China’s recent declaration of a nature reserve on a disputed South China Sea shoal is illegal and an example of Beijing’s legal warfare, according to a new report by lawyers at the U.S. Indo-Pacific Command.
Beijing in September unilaterally declared a national nature reserve covering 13.5 square miles on Scarborough Reef in the South China Sea. The reef, a rock about 120 miles west of the Philippine island of Luzon, is claimed by China, Philippines and Taiwan.
The report by the Hawaii-based military command said Chinese coast guard vessels “operationalized” the reserve on Oct. 13 and ordered Philippines vessels to stay out of what is being called an “environmental reserve.”
“China’s nature reserve represents another example of legal warfare — i.e., China’s misuse and weaponization of legal mechanisms to create a veneer of legitimacy to justify its malign actions,” said the report by the command’s staff judge advocate office.
“China’s actions add to its pattern of aggressive and unlawful behavior in the [South China Sea] that includes persistent and dangerous harassment of Philippine vessels in the Philippine [exclusive economic zone], annually establishing sweeping and legally baseless fishing bans over waters in which it has no legal entitlement under international law, and employing maritime barricades to preclude traditional fishing rights authorized by international law.”
Defense Secretary Pete Hegseth recently criticized China over its nature reserve declaration.
“We recently saw Beijing’s unjustifiable claim of Scarborough Reef as a quote, nature reserve,” he said. “Again, you don’t put platforms on a nature reserve.”
The comment by the secretary suggests China may be planning to deploy some type of military force on or near the reserve which covers an area along the northeast side of the reef.
The defense secretary recently told defense ministers from the Association of Southeast Asian Nations in Kuala Lumpur, Malaysia, that the move was “yet another attempt to coerce new and advanced territorial and maritime claims in the South China Sea at your expense.”
Mr. Hegseth said China’s “provocative actions also demonstrate a lack of respect for your countries, challenging and threatening territorial sovereignty.”
“China’s sweeping territorial and maritime claims in the South China Sea fly in the face of their commitments to resolve [disputes] peacefully,” Mr. Hegseth said.
Chinese naval and maritime militia vessels have stepped up aggressive activities in the South China Sea over the past several years. The goal, according to U.S. military officials, is to take control over the strategic waterway.
Chinese President Xi Jinping in 2015 promised then-President Obama that China would not militarize disputed islands in the sea.
However, since that promise, China has deployed anti-ship and anti-aircraft missiles on several disputed islands that were built up over the years, according to military officials.
An estimated $5 trillion in international trade passes through the South China Sea annually.
Control over the sea would give Beijing greater power to advance its goal of becoming a major regional power in Southeast Asia.
According to the Indo-Pacom report, Chinese actions at the reef undermine regional stability and are part of a broader strategy of winning without fighting by advancing illegal maritime claims and eroding international norms.
The activity “directly undermines U.S. national security and the interest of our allies and partners across the Indo-Pacific region,” the report said.
A senior defense official at the command said Chinese aggressive activities in the South China Sea have “accelerated from a confrontational standpoint in at least the last year or so.”
“The tensions began in earnest about 12 years ago, in 2013, with the Chinese occupation and control of Scarborough Reef and essentially reneging on an agreement that they made with the Philippines for both sides to withdraw in order to control tensions,” the official said. “The Chinese stayed and they never left.”
That began a regional island-building expansion and island reclamation projects on the nearby Spratly Islands, a standoff with Vietnam further north over an oil platform in 2014 and a series of provocative maritime activities, the official said.
“China has essentially doubled down on their aggressive activities,” the official said. “They’ve continued to kind of flood the zone with additional navy and coast guard ships every time the Philippines is operating anywhere in the vicinity of these contested features with activities happening at Sabena Shoal and most prominently at Scarborough Reef.”
The sea confrontations have included China’s use of water cannons and aggressive vessel maneuvering, including shouldering and intentional collisions, the official said.
The report said China has used its domestic law in purporting to divide the declared reserve into “core” and “experimental” zones and to control access to the reserve through a regulatory process.
However, the reserve is illegal under a 2016 international arbitral tribunal ruling that found Scarborough Reef to be a “rock” that is not entitled to an exclusive economic zone or continental shelf, the report said.
The United States rejects the reserve as legal warfare and part of coercive and destabilizing gray zone tactics, the report said.
“The United States stands with our Philippine ally and firmly rejects China’s destabilizing declaration of a ‘nature reserve’ at Scarborough Reef,” the report said.
“China’s unilateral declaration is yet another coercive attempt to advance its sweeping territorial and maritime claims in the [South China Sea] at the expense of its neighbors, including unlawfully preventing Filipino fishermen from accessing these traditional fishing grounds.”
The report, posted on the command website Thursday, noted that Chinese scholars have openly stated that the nature reserve is a tactic intended to consolidate China’s administrative control over Scarborough Reef, exclude Philippine vessels and potentially justify future land reclamation and construction — which may include establishing a research lab or similar structure on or near Scarborough Reef.
“China’s coercive actions do not strengthen or in any way advance a legal basis for its territorial claim to Scarborough Reef,” the report said.
Additionally, China’s coercive action complicates and escalates the territorial sovereignty dispute with the Philippines over the shoal. It also violates China’s commitment to the ASEAN states in the area, specifically a 2002 Declaration on the Conduct of Parties in the South China Sea.
The Indo-Pacom legal report is part of the office’s counter-lawfare initiative, a tool to deter adversaries from using “legal warfare,” or lawfare, as an element of coercion or pretext for aggression.
The uninhabited Scarborough Reef is claimed by the Philippines and has been controlled by China, which maintains a coast guard force there since 2012.
Prior to 2012, Philippine naval vessels regularly expelled Chinese fishing boats from the resource-rich shoal and had claimed sovereignty over the maritime area.
“Scarborough Shoal is widely seen as the most palpable erosion of stability in the South China Sea since 2012,” the Asia Maritime Security Initiative said in a report on Chinese gray zone coercion.
The initiative is a project of the Center for Strategic and International Studies, a think tank.
• Bill Gertz can be reached at bgertz@washingtontimes.com.
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