thediplomat 2020 07 06 9 - China’s Maritime Militia Vessels May Be Military Objectives During Armed Conflict

Last year, outgoing Chief of Naval Operations Admiral John Richards warned his Chinese counterpart, Vice Adm. Shen Jinlong, that the United States was aware that China uses a militia fishing fleet to push its illegal claims in the East and South China Seas. Richards warned that the U.S. Navy would respond to aggressive acts by those ships as though they were part of the armed forces. Many of these fishing vessels are indistinguishable from China’s ordinary fishing fleet, as they engage in a variety of peacetime missions and receive military training to conduct operations during armed hostilities.

In the event of naval conflict in the region, the vessels of the Chinese maritime militia could be used to support some PRC military missions. Some of the maritime militia may be coastal fishing craft that are immune from capture during armed conflict but may be attacked if they assist the People’s Liberation Army Navy (PLAN) military effort in any manner.  Most of the maritime militia vessels operate on high seas and are usually engaged in commercial fishing, but occasionally are called on to assist the PLAN or China Coast Guard (CCG). This class of ships may be captured as lawful prize during armed conflict and they also may be attacked for such time as assist the PLAN during hostilities. Finally, a third category of fishing vessels operate as de facto naval auxiliaries and operate in conjunction with the PLAN and CCG. There is no universal definition for naval auxiliaries, but such ships are subject to the same treatment as warships and during armed conflict may be sunk on sight outside of neutral waters. These ships are more formally incorporated into the operations of the PLAN. Distinguishing among the various units of the maritime militia and understanding their targetability during any naval war presents a challenge to naval intelligence collection and analysis to discern the nature of the vessels and their command and control structure.

Maritime Militia

The groundbreaking work of the China Maritime Studies Center (CMSI) at the Naval War College reveals that there is not one maritime militia in China, but rather a constellation of forces among localities and provincial governments that support national defense efforts. At the national level, militia policies are prescribed by the Central Military Commission chaired by Xi Jinping, yet the militia are under local and provincial leadership. Local PLA commands provide organization and training, sometimes in concert with the CCG and the Maritime Safety Administration. On the civilian side, the organization consists of the party-state administrative apparatus, while the military structure falls within provincial-level military districts. Broadly construed, these forces are styled as the People’s Armed Forces Maritime Militia (PAFMM) and operate as a Third Sea Force of China.

The problem in analyzing their legal status arises from the disparate nature of the PAFMM. Many of the fishing cooperatives that are part of the PAFMM are ordinary fishing organizations that operate as commercial fishing ventures, and then only occasionally conduct operations for the PLAN. Other components are more professionalized and better equipped for direct action missions, operating as a maritime vanguard of naval auxiliaries to enforce “rights protection” of maritime claims, rather than fishing. Activities are also initiated by the local and provincial authorities, albeit with PLA approval. The different missions of the various components of the PAFMM during peacetime and armed conflict further complicates how to think about them. The variation within the PAFMM has aided the Chinese regime’s effort to intentionally try to obfuscate the status of the PAFMM: “putting on camouflage they qualify as soldiers, taking off camouflage they are law abiding fishermen.” China’s policy is to hide its maritime militia by operating it as a sort of “dark fleet.”

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The PAFMM appear to be a driving force behind the decade-long expansion in the Chinese fishing fleet. The world’s fishing fleet is over-capitalized. Too many hulls are chasing too few fish, which has led to fisheries depletion and exacerbated illegal, unreported and unregulated (IUU) fishing. China has the largest fishing fleet in the world. In 2015 it had some 370,000 non-powered and another 672,000 motorized fishing vessels. Perhaps unsurprisingly, China is world’s worst IUU offender. China was reducing its fishing capacity up until 2008, it then reversed course, undergoing a fleet expansion since then. The fishing fleet expansion is linked to the rise of the PAFMM, which has received new steel-hulled boats, China’s Beidou navigation satellite system, which can track and report text  messages on the position of other afloat units, and paramilitary training. Their vessels conduct military exercises with the PLAN and CCG, while receiving compensation, including subsidies, social benefits and pensions from localities. Yet not being a direct subcomponent of the PLA provides the PAFMM with greater flexibility in taking action and escalation of maritime interests and claims without the reputational or deterrent risk of involving the PLA.

Peacetime Roles

During peacetime, the PAFMM plays a central role in advancing China’s maritime claims and position through coercion, fulfilling General Secretary Xi Jinping’s vision to mobilize civilians for military operations. This reserve force aids in search and rescue missions, critical infrastructure protection of ports and oil rigs, presence missions and “rights protection” operations to assert China’s unlawful maritime claims, and harassment and expulsion of foreign civilian and government vessels, including warships, in waters claimed by China. PAFMM vessels also have engaged in direct-action, unconventional operations in support of the PLA-N and CCG encounters with U.S. naval vessels and those of regional states in the South China Sea and the East China Sea.

In 2009, for example, maritime militia encircled the USNS Impeccable as it was conducting military surveys in waters beyond China’s territorial sea. The Chinese ships included a combined force of maritime militia trawlers and Chinese government vessels that attempted to disrupt U.S. Navy operations by threatening to cut the towed array that trailed behind the U.S. naval auxiliary ship in international water. In 2012, Chinese fishing vessels in coordination with the CCG were the vanguard of China’s taking sovereign control of Scarborough Shoal – a tiny islet feature in the South China Sea. In 2016, an arbitration tribunal determined that Chinese vessels had unlawfully prevented Filipino fishermen from engaging in traditional fishing at Scarborough Shoal (para. 814). The tribunal also found that Chinese fishing vessels engaged in destructive IUU fishing, including harvesting endangered giant claims, corals and sea turtles, as recounted in para. 764 of the arbitration award.

In May 2014, PAFMM vessels supported China’s emplacement of the massive Haiyang Shiyou-981 oil rig south of Triton island in areas long regarded as Vietnam’s exclusive economic zone (EEZ) – igniting a standoff that involved over one hundred ships on both sides. The Fugang Fisheries organization dispatched a 29-trawler militia flee to protect the oil rig, in support of the Guangzhou Military Region and Hainan Military District. For over two months, the fishing vessel militia arrayed in protective rings around the Chinese oil rig – illustrating a layered “cabbage strategy, driving away Vietnamese vessels attempting to enforce their EEZ, and sinking three.

In May 2015, Jiangmen Military Sub-district in Guangdong Province organized a military exercise for maritime militia elements focusing on their wartime missions. Exercises involved assembly and mobilization, maritime rights protection, patrolling, logistics, and emergency repair of piers damaged during combat. In March 2016, some 100 Chinese fishing vessels appeared around Malaysia’s Laconia Shoals off the coast of Sarawak and within the Malaysian EEZ. These ships flew no flag and had no evident registration and were accompanied by two CCG vessels. In 2019, PAFMM vessels approached within half a nautical mile from the Philippine outpost on Loaita Cay in the Spratly Islands. The Philippines deployed a former U.S. Navy LST-542-class tank landing ship to monitor the two Chinese trawlers.

It is the same story in the East China Sea. Since the Japanese government purchased three of the Senkaku Islands from a private Japanese citizen in 2010 to prevent them from being occupied, Chinese fishing vessels and CCG ships routinely enter the territorial sea and the contiguous zone as a way to harass Japan and destabilize the status quo. In 2020 China has escalated these presence operations near the Senkaku Islands to pressure Tokyo. China claims the Senkaku Islands are disputed, although they were under U.S. military control during its occupation of Okinawa until 1971 and reverted to Japan based on its 1895 claim when the islands were unoccupied and terra nullius.

Roles During Armed Conflict

The militia fishing vessels are a primary instrument to change “facts on the ground” in peacetime, such as construction of artificial islands in the South China Sea, while exercising and training a paramilitary naval force that may be employed during armed conflict. The dual military-civilian structure of the PAFMM poses operational challenges for China’s adversaries. In their debut during armed hostilities, the maritime militia were involved in the 1974 seizure of the Western Paracel Islands from Vietnam. Beijing learned that using fishing vessels to prosecute the invasion was less likely to bring the United States into the conflict, even when they threatened a U.S. ally.

Today the most capable units of the PAFMM are prepared to wage a guerilla war style “People’s War at Sea,” armed with sea mines and anti-air artillery and missiles. The ships are also trained to conduct intelligence, surveillance and reconnaissance (ISR) and potentially relay data to facilitate the PLAN kill chain. This distributed network, estimated to be as many as 20,000 vessels and hundreds of thousands of militia constitutes a “maritime reconnaissance network” that complicates force planning for a potential adversary.

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In the run-up to a conflict, the maritime militia may employ coercive tactics, such as ramming vessels to goad an adversary into striking back, while CCG and even PLAN forces wait over the horizon to rush to the scene and “teach a lesson.” The United States, Japan, Indonesia, Vietnam and Malaysia have all confronted China’s maritime militia, raising the risk that the situation could escalate. Yet failing to confront the PAFMM normalizes Beijing’s presence and reach in other nations’ territorial seas and EEZs. This scenario exemplifies the “Three Warfares” asymmetric strategy to employ disorienting psychological warfare, media warfare and legal warfare to circumvent traditional and especially Western notions of armed conflict.

Targeting Considerations

The PAFMM is comprised of a variety of unit, and during armed conflict, vessels from each type of organization would have to be analyzed separately as part of the targeting process. Fishing vessels of the PAFMM potentially fall into one of three categories for purposes of targeting during armed conflict. Furthermore, unlike the law of land warfare, at sea the decision to use force against a target is not a binary choice between protected civilian targets and objects and lawful military targets and objects. A third option is open to naval belligerent forces – capture of enemy merchant ships to be adjudicated in court as a lawful prize. Each of these three options is available for addressing PAFMM ships, depending on the unit they are attached to and their conduct during the war.

First, coastal fishing vessels are immune from capture and attack unless they assist the PLAN during hostilities. Small coastal fishing vessels are immune from attack during armed conflict if they are used exclusively for fishing along the coast or are employed in coast trade. This rule was recognized in the 1900 case of the Paquete Habana, and codified in article 3 of Hague XI. The rule is also reflected in article 47(g) of the San Remo Manual on International Law Applicable to Armed Conflict at Sea and para. 8.6.3.2(4) of the Commander’s Handbook on the Law of Naval Operations. Such vessels are also immune from capture as naval prize, as reflected in article 136(f) of the San Remo Manual. The PAFMM generally will not qualify as small coastal fishing vessels and small boats engaged in local coastal trade, however, as they routinely operate on the high seas. Furthermore, these craft are subject to the inspection, and must comply with the regulations of the adversaries’ on-scene commander.

Second, ordinary, ocean-going fishing vessels of the maritime militia may not be attacked unless through their conduct they become military objectives. Under rule 40 of the San Remo Manual, such vessels are those that by their nature, location, purpose and use make an effective contribution to military action by inserting themselves into the conflict. To be targeted, these vessels must make an effective contribution to military action, and their total or partial destruction must offer a definite military advantage. Such vessels may be targeted if they engage in belligerent acts on behalf of the enemy, such as laying mines, act as an auxiliary, such as by ferrying troops, are integrated into the enemy’s kill chain through ISR or early warning and command and control, actively resist the belligerent right of visit and search, being armed beyond what is required for personal safety, such as carrying anti-aircraft weapons, or otherwise making an effective contribution to the military action, such as by carrying military supplies, as reflected in rule 60 of the San Remo Manual. This conduct makes such vessels lawful military targets that may be destroyed in armed conflict, as reflected and section 8.6.2.2 of the Commander’s Handbook.

Even if these vessels may not be targeted unless through their action they become military objectives, they are still subject to capture anywhere outside neutral waters under rule 135 of the San Remo Manual.

Third, some professionalized PAFMM vessels may be directly targeted as de facto naval auxiliaries, outfitted to facilitate the operations of the PLA, regardless of their conduct. These maritime militia vessels are not warships, and only warships are entitled to conduct belligerent operations. Warships must belong to the armed forces of a state, bear marks of nationality, be under command of a commissioned naval officer and manned by a crew subject to military discipline, as reflected in articles 2-5 of Hague VII, article 8(2) of the 1958 High Sea Convention, and article 29 of the 1982 UN Convention on Law of the Sea. Naval auxiliaries are always military objects, as reflected in rule 40 of the San Remo Manual. There is no treaty that contains a definition of military definition of “military objective” in naval warfare, nor is there a universal definition of a “naval auxiliary.” While naval auxiliaries may not lawfully conduct attacks, like warships they may be targeted during armed conflict, even if they are unarmed.

These three categories require adequate intelligence collection and analysis to discern among them – commanders must know what they are shooting at, and they must evaluate the PAFMM in terms of these three categories to comply with the law of naval warfare.

James Kraska is Chair and Charles H. Stockton Professor of International Maritime Law in the Stockton Center for International Law at the U.S. Naval War College. The views presented do not necessarily reflect the policy or position of the U.S. Navy or Department of Defense.

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