The Gray Zone Operations Of Navy Under The Law Of The Sea In Peacetime

In recent years,as the United States successively released the “White Paper: The Gray Zone” and the “Report on Gray Zone Conflict”,international politic research has paid more and more attention to the Gray Zone theory.Academia generally agrees that a typical form of Gray Zone Operation is between traditional war and peace,which relevant policies and legal frameworks are uncertain.Therefore,the Gray Zone Operation actually includes an evaluation of the state of international law of a particular action.At the same time,in contrast to international practice,as countries continues exploiting marine resources more deeply and the competition is getting intensifying,the navies have been increasingly participating in various forms of maritime activities.However,as a relatively special maritime existence in peacetime,the navy naturally has the meaning and appearance of military or even war.On the one hand,naval activities have a strong international attribute,and on the other hand,the lack of international legislation makes it difficult to regulate such activities.As a result,naval activities in practice are largely faced with the problem of ambiguity in legal regulations.The above makes naval activities largely fall into the theoretical category of Gray Zone Operations.In view of this,this article introduces the Gray Zone theory from the perspective of international politics into the scope of the law of the sea in peacetime,starting from the legality of the Gray Zone theory,and focusing on the two major types of naval activities,military activities and law enforcement activities.It systematically analyzes the legal issues related to the navy’s Gray Zone Operations.In addition to the introduction and conclusions,this article is divided into five chapters.The main contents include: an overview of navy’s Gray Zone Operations in peacetime;typical forms of navy’s Gray Zone Operations in recent years;research on Gray Zone issues in naval military activities;research on the Gray Zone issues in naval law enforcement activities;the path to improve the Chinese navy’s operational architecture in the new era.Chapter One is an overview of the navy’s Gray Zone Operations in peacetime.First,it summarized the basic types of naval activities in peacetime,maritime military activities and law enforcement activities.As a relatively special concept,Military Operations Other Than War actually contains maritime military activities and law enforcement activities in peacetime.Secondly,the Gray Zone theory is introduced.The origin of the theory can be traced back at least to the Cold War period between the United States and the Soviet Union.Many activities of the two countries during this period were defined by the academic circles as the original form of Grey Zone Operations.After the publication of American Quadrennial Defense Review Report,theoretical research on the Gray Zone has been continually heating up.From the perspective of international law,the Gray Zone refers to areas where certain relevant policies or legal frameworks are unclear when the subject of international law implements their actions.The areas ultimately point to the disputed international law theory or rules,rather than a physical space zone.The Gray Zone is not equal to a disputed area in the sense of international law.Objectively speaking,the direct reason for the rise of the Gray Zone theory is the theoretical hype carried out by the United States based on its own interests.Due to the scarcity of existing international laws and regulations on naval activities,most of naval activities are theoretically included in the research scope of Gray Zone Operations.The basic legal characteristics of the Gray Zone can be expressed as being between war and peace,the application of peacetime law or wartime law is vague,and it has both political and legal attributes.Finally,the origin of the navy’s Gray Zone Operations is discussed.The so-called navy’s Gray Zone Operations refers to certain naval activities in areas where the legal regulations are ambiguous.The main manifestations are the uncertain legal status of the navy as the subject of action,the vague legal nature of naval activities and the conflicts they cause,and the unclear international law norms related to the activities.The rise of the navy’s Gray Zone Operations is mainly affected by two forces.The “pull” force refers to the fierce competition of maritime interests,and the “push” force refers to the ambiguity of international law.Chapter Two is research on the typical form of the navy’s Gray Zone Operations in recent years.A systematic summary and analysis of the typical navy’s Gray Zone Operations in recent years,especially the Gray Zone Operations related to the navies of major powers.Divided by behavior,the most typical navy’s Gray Zone Operations is the naval law enforcement in disputed waters.This article takes the Case Concerning the Detention of Three Ukrainian Naval Vessels as an example to make an in-depth analysis.The case highlights the combination of objectivity and subjectivity demonstrated by the International Tribunal for the Law of the Sea in identifying naval law enforcement activities.Secondly,the chapter introduces the typical mixed-use and fraudulent navy’s Gray Zone Operations in recent years,including maritime activities by non-military personnel using warships as vehicles,naval activities using nonmilitary ships as vehicles,and maritime activities that disguise or pretend to be civilian vehicles.The above activities all take advantage of the ambiguity of international law to varying degrees.In addition,the navy’s Gray Zone Operations in different sea areas mainly include the innocent passage of foreign warships in the territorial waters,the non-traffic activities of foreign navies in the exclusive economic zone,and the naval operations on the high seas represented by the non-proliferation operations.The above three types of navy’s Gray Zone Operations reflect typical historicity and continuity,with great controversies in international law.Chapter Three elaborates the research on the Gray Zone in naval military activities.To explore the Gray Zone in naval military activities,the first task is to clarify a basic and fundamental issue of what is a military activity.This chapter takes the definition of maritime military activities under the United Nations Convention on the Law of the Sea(UNCLOS,hereinafter referred to as the Convention)as an example to analyze.As a legacy issue of the Convention,the definition of maritime military activities has always been attracted the attention of theorists.However,there are still controversies in international judicial practice.In addition,the conflicts of interest between traditional maritime powers and emerging maritime powers are still intensified,the increasingly diverse forms of maritime activities of sovereign countries and other challenges make the definition of maritime military activities more complicated.Based on the empirical perspective,this chapter has opened up a new way of thinking of the definition of maritime military activities,and provided a method of definition as a whole,that is,taking the subject of maritime activities as preliminary evidence,focusing on the behavioral mode,and taking into account the purpose of activities within a limited scope.The chapter re-examines the Freedom of Navigation Operation as one of the typical Gray Zone Operations of America in the South China Sea based on this standard.This article puts forward two conclusions: what it should be and what it is.As it should be,this action refers to both a special law enforcement activity and an activity with characteristics of military.In fact,according to existing international judicial practice,it may be difficult for a court or arbitral tribunal to identify it as a military activity.Therefore,The Gray Zone Operations in the South China Sea of the United States should be viewed in a more differentiated,objective and comprehensive manner.In general,this chapter clarifies the criteria for defining military activities,which undoubtedly has practical significance for controlling navy’s Gray Zone Operations and preventing maritime conflicts.Chapter Four is the research on the Gray Zone in naval law enforcement activities.This chapter mainly starts with the legality and rationality of the Naval law enforcement activities.First of all,from the perspective of international treaties,customary international law and naval practice of various countries,this chapter digs into the legality of naval law enforcement and puts forward that naval law enforcement is lawful under a certain international law basis.But it is obviously not enough to support all naval law enforcement activities.The gulf between practice and rules has caused a crisis in the legitimacy of naval law enforcement.The naval operations initiated by the United States under the Proliferation Security Initiative are a typical example.Secondly,from the perspective of rationality,naval law enforcement poses objective risks on maritime peace,mainly including the issue of excessive law enforcement,pan-militarization of maritime activities,and increasing risk of maritime conflicts.At the same time,the new development of the principle of prohibition of the use of force requires higher requirements for naval law enforcement.The principle of proportionality should also be applied to the specific law enforcement of the navy,and the principle even challenge the rationality of the navy as the subject of law enforcement activities.Finally,in regard to the coordination of naval law enforcement and global ocean governance,this article proposes that naval law enforcement is an integration of global ocean governance to a certain extent,but also inevitably a challenge to global ocean governance.The way to achieve coordination between naval law enforcement and global governance is to attach importance to the establishment of international rules for naval law enforcement and appropriately incorporate them into the scope of global ocean governance.Chapter Five is the perfect path of the Chinese navy’s operational system in the new era.Based on the new development of the naval action system,that is,the deep advancement of the Military-civilian Integration Strategy and the promulgation and implementation of the Coast Guard Law of the People’s Republic of China,Chinese plan to reshape the Gray Zone theory has been mentioned.In view of the dialectical understanding of the Gray Zone theory and the current status and risks of the Chinese navy’s maritime operations,this chapter proposes that the existence of Gray Zones under international law should be allowed,and China should adapt to the trend of Gray Zone Competition.At present,it is not necessary to take too much attention to the American Gray Zone theory accusations and constraints.In contrast,the primary task at this stage is still to take the Military-civilian Integration Strategy and the implementation of the Coast Guard Law of the People’s Republic of China as an opportunity to learn from the naval construction experience of maritime powers,integrate military and civilian resources,unify the construction of maritime power with the maintenance of maritime rights and interests,strengthen naval construction,and improve the naval action system.On this basis,China should carry out the work of maritime rights protection and law enforcement in a rational and moderate manner.Of course,as a responsible major country committed to maintaining maritime peace and security,which also the intention of perfecting the naval action system,China will,based on its own vital interests,strengthen the prevention and control the maritime conflict risks,prevent international litigation risks,maintain maritime peace and security,make sure to fight without breaking,and achieve dynamic balance.On the basis of summarizing the full text,the conclusion part further clearly pointed out that the American Gray Zone theory actually has value deviations and paradoxes.The theory centers on the interests of the United States,and in fact it has become a theoretical tool for the United States to maintain hegemony.On the one hand,the United States criticizes other countries’ Gray Zone Operations.On the other hand,they deliberately ignore the long history of Gray Zone Operations of their own country and the status quo of continuously strengthening the Gray Zone Operations.Therefore,as far as China is concerned,it is necessary to pay attention to the use of international law to rebuild the theory,and to eliminate the instrumental and unilateral interest orientation of the American Gray Zone theory based on international law.Meanwhile,according to the current international situation and future development trends of international law,China should be aware of the navy’s Gray Zone Operations will exist for a long time,which is an objective fact.It is also an inevitable result that international law,as a product of the compromise of the interests of various countries,cannot be trivial and comprehensive.Therefore,the evaluation of the navy’s Gray Zone Operations must be analyzed depends on the specific situation.It is not appropriate to make a general negative evaluation,nor should we be overly restricted by the theory.In the future,China’s primary task will still be to strengthen the construction of the naval action system,and simultaneously prevent both maritime conflict risks and international litigation risks in order to serve China’s maritime interests and the construction of the Marine Community with Shared Destiny.