JUNE 16, 2018
China’s maritime militia threat
By Jonathan G. Odom
For The Straits Times
The world continues to have concerns about
tensions in the South China Sea and East
China Sea, especially the risk that an incident
between two or more vessels at sea could
unintentionally spiral into war. While many
vessels transiting these waters are warships,
coast guard cutters, and cargo ships, most are
fishing boats whose crews are earning a living.
Over the past decade, however, several
questionable incidents have involved fishing
boats from one of those nations: China. These
include five Chinese vessels surrounding the
USNS Impeccable in 2009, a stand-off
between the Philippines and China at
Scarborough Shoal in 2012, a Vietnam-China
stand-off involving an oil rig in 2014, and the
mass convergence in 2016 of 230 Chinese
fishing boats around the disputed
Senkaku/Diaoyu islands. Is this coincidental or
is there a root source?
To answer this question, scholars have
data-mined China-based informational
resources and uncovered that the actors
involved are more than merely patriotic
fishermen. What has happened is that China
has developed a maritime militia from its
fishing fleets, and deployed it to advance its
interests. Greater attention needs to be paid to
this development given the stakes and their
significance as seen through the lens of
international law.
CHINESE GOVERNMENT’S ROLE
First, the actions of China’s maritime militia
are legally “attributable” to China. Ordinarily,
a nation is not responsible for actions
committed by private individuals or groups.
But there are grounds in international law
under which actions by private entities can be
attributed to a nation, several of which are met
by the maritime militia’s actions.
There is strong evidence to conclude that
the maritime militia is an organ of China’s
government. China’s Constitution states: “It is
the honourable duty of the citizens of the
People’s Republic of China to perform
military service and join the militia in
accordance with law.” China’s Military
Service Law specifies: “The armed forces of
the People’s Republic of China shall be
composed of the People’s Liberation Army
(PLA), the People’s Armed Police Force, and
the militia.”
There is also strong evidence to conclude
that China directs, controls, and instructs the
maritime militia. More specifically, political
and military leaders exercise power over
militia units; they task militia units to conduct
operations; they fund, equip, and train militia
units to conduct assigned missions; and they
compensate, reward, and discipline individual
members of the militia units. In short, the
public record of evidence demonstrates that
the actions of China’s maritime militia can be
attributed to China.
MARITIME LAW
Second, China’s maritime militia raises
specific concerns under the Law of the Sea, the
international law governing the use of force,
and international humanitarian law.
Past actions by the maritime militia have
contributed to three recurring violations of
China’s obligations under the Law of the Sea.
First, militia vessels have interfered with the
maritime freedoms of other nations, thereby
breaching China’s obligation to maintain “due
regard” under the Law of the Sea Convention
(UNCLOS). Second, militia vessels have
navigated unsafely in relation to other vessels,
violating the Collision Regulations
Convention. Third, China has failed to police
the fishing boats of its militia, breaching its
UNCLOS duty as a flag state.
While these previous violations of the
peacetime international law are problematic,
the potential effects of China employing its
maritime militia for belligerent purposes could
be more troubling.
Aggressive use of the maritime militia
could lead to war. Under international law,
what constitutes a “use of force” is determined
by the nature of actions, and not necessarily by
the status of actors. Firing a missile, laying
mines, enforcing a blockade, or conducting an
amphibious landing of a disputed island could
constitute a “use of force” -- whether it was
committed by the navy or a maritime militia. If
China’s maritime militia engaged in any such
actions, affected nations could justifiably use
force in self-defence and escalation could
spiral.
Consider this description in a PLA Daily
article about China’s maritime militia: “Putting
on camouflage, they qualify as soldiers; taking
off the camouflage, they become law-abiding
fishermen.” Does this reflect a mindset to
exploit international humanitarian law? The
consequences of feigning civilian status would
be tragic for legitimate fishermen who could
inadvertently become targets if war broke out.
CODE OF CONDUCT
Third, China’s use of its maritime militia can
impact the interests of many nations. They
include China’s neighbours that have
competing territorial and maritime claims, but
they also include other Asia-Pacific nations
whose navies pass through and operate in the
waters of the Asia-Pacific.
It can result in a number of serious
consequences, including risks to life, risks of
significant property damage, and risks of
strategic harm to relations between China and
other nations. Worse still, China’s use of
fishing boats and personnel feigning civilian
status could jeopardise the lives of innocent
civilians from any nation.
For these reasons, interested nations
should address their concerns about China’s
maritime militia in multilateral fora and
communicate them directly to China in official
dialogues. In particular, any South China Sea
Code of Conduct should apply to the
behaviour of not only China’s navy and coast
guard, but also its maritime militia. They
should be ready to take actions to counter any
hostile behaviour by the militia.
As a larger political debate continues in
the Asia-Pacific about upholding the
international rules-based order, the world
should recognise that China’s use of its
maritime militia is a challenge to that order. In
response, nations should say and do what is
necessary to counter that challenge effectively.
Jonathan G. Odom, a judge advocate in the
US Navy and Military Professor of Law at the
Asia-Pacific Centre for Security Studies in
Hawaii, recently published a legal analysis on
China’s maritime militia in the Asia-Pacific
Journal of Ocean Law and Policy. The views
expressed here are his own