China’s Maritime Militia Upends Rules on Naval Warfare

By James Kraska

August 10, 2015

http://thediplomat.com/2015/08/chinas-maritime-militia-upends-rules-on-naval-warfare/

The use of fishing vessels as a maritime militia has profound legal implications.

China operates a network of fishing vessels organized into a maritime militia with paramilitary roles in peacetime and during armed conflict. The maritime militia forms an irregular naval force that provides the People’s Liberation Army Navy (PLAN) with an inexpensive force multiplier, raising operational, legal and political challenges for any opponent. The sheer size and scope of the vast network of China’s maritime militia complicates the battlespace, degrades any opponent’s decision-making process and exposes adversaries to political dilemmas that will make them more cautious to act against China during a maritime crisis or naval war. The legal implications are no less profound.

The maritime militia erases the longstanding distinction between warships and civilian ships in the law of naval warfare, which is analyzed in depth in a recent Naval War College study, The Law of Naval Warfare and China’s Maritime Militia. The law of naval warfare protects coastal fishing vessels from capture or attack during armed conflict. Although warships may engage civilian fishing vessels that assist enemy forces, it may be virtually impossible to distinguish between legitimate craft and those that are integrated into the PLAN as an auxiliary naval force. Regardless of whether the maritime militia plays a decisive combat role, its presence in the theater of war confronts opponents with vexing legal and operational dilemmas.

As the U.S. Supreme Court case of the Paquete Habana in January 1900 illustrates, the issue of employing fishing vessels during armed conflict is not necessarily new. After the U.S. Navy captured Cuban fishing craft the Paquete Habana and the Lola during the Spanish-American War, the U.S. Supreme Court ordered their release. The court held that “By ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war.”

During the war in Indo-China, the U.S. Seventh Fleet was bedeviled by fishing vessels integrated into the enemy order of battle. One of the most remarkable occasions occurred in the immediate ramp up to major U.S. combat involvement in the war. In September 1964, North Vietnam employed fishing vessels to report the position of U.S. warships in the Gulf of Tonkin. A declassified National Security Agency study notes that a message was sent from “an unidentified vessel to an unidentified shore based shipping net control station” at the same time that the USS Maddox passed two fishing vessels at a distance of two thousand yards. Soon thereafter Maddoxwas engaged by three North Vietnamese gunboats. The ensuing “Gulf of Tonkin Incident” was the basis for ajoint resolution of Congress that authorized American entry into the Vietnam War. Throughout the war, fishing vessels ferried supplies to the North Vietnamese Army along the coast. These “Waterborne Logistics Craft” (prounounced “wēblĭks”) were a continuous challenge for U.S. naval forces.

Using fishing vessels as naval auxiliaries violates the principle of distinction – a key tenet of international humanitarian law (IHL), which prescribes that civilians and civilian objects should be protected from armed attack. The entire purpose of the principle of distinction is to protect civilians and ameliorate the effects upon them of warfare. The central purpose of the principle of distinction is to ameliorate the effects of warfare upon civilians, but China’s maritime militia blurs beyond recognition the line between fishing vessels and naval functions.

With 200,000 vessels, China operates the largest fishing fleet in the world, and its commercial industry employs 14 million people – 25 percent of the world’s total. This massive enterprise operates in conjunction with the armed forces to promote Beijing’s strategic objectives in the South China Sea and East China Sea. The militia, for example, were involved in the 1974 invasion of the Paracel Islands, as well as impeding freedom of navigation of U.S. military survey ships. The maritime militia also provides logistics support to Chinese warships. In May 2008, for example, militia fishing craft transferred ammunition and fuel to two warships near Zhejiang Province.

Fishermen are assigned to collectives or attached to civilian companies and receive military training and political education in order to mobilize and promote China’s interests in the oceans. The fishing vessels of the militia are equipped with advanced electronics, including communications systems and radar that supplement the PLAN force structure and enhance interoperability with other agencies, such as the China Coast Guard. Many boats are equipped with satellite navigation and can track and relay vessel positions, and gather and report maritime intelligence.

The fleet support missions being undertaken by China’s maritime militia may make fishing vessels lawful targets during armed conflict, with potentially tragic consequences for legitimate fishermen from China and nearby states. This is an example of China’s “legal warfare,” which is the perversion of legal concepts or processes to counter an opponent. Unlike the Philippines’ arbitration case over China’s dashed line, which is not “legal warfare” because it simply seeks a legal determination based on the rule of law, the maritime militia exploit seams in the law and thereby place at risk the very civilians that the law is made to protect.

The customary rule of distinction places great pressure on the United States and its allies to give wide effect to the inviolable status of China’s fishing vessels. Distinguishing between legitimate fishing vessels and those militia boats supporting the PLAN will be virtually impossible because of the large number of vessels, the vast expanse of ocean space, and the lack of sensors on the U.S. side. Any militia trawlers destroyed in naval combat will be the centerpiece of political and public diplomacy efforts by China to undermine enemy resolve. Even non-kinetic responses, such as electronic jamming of fishing vessel transmissions, will be incorporated into China’s propaganda campaign to generate sympathy, particularly among other states in East Asia.

As a force multiplier, the maritime militia poses an operational challenge that requires an expansion in U.S. and allied force structure, including warships, submarines and, especially, unmanned drones and unmanned subsurface vehicles, to manage the threat. As Beijing further integrates the maritime militia into its naval force structure, the line between civilian fishing ships and military vessels erodes.

James Kraska is professor and research director in the Stockton Center for the Study of International Law, U.S. Naval War College, and author of Maritime Power and Law of the Sea and International Maritime Security Law.