The Legal Status and Characterisation of Maritime Militia Vessels

A recent report has described how Royal Australian Navy helicopter pilots were targeted with lasers during a night flight in the South China Sea. The lasers were allegedly directed from Chinese fishing vessels – the primary cadre from which the so-called Chinese ‘maritime militia’ is drawn. Further, the incident occurred – according to another report – shortly after a US admiral warned that the paramilitary force could be treated as ‘combatants’. 

What is the Chinese maritime militia? As described below it is a hybrid body (or bodies), but in essence it is a civilian reserve force (often of fisherman) capable of being called upon to conduct military or governmental activities. A number of recent official reports (eg, US, and Japan), have specifically commented upon the rise in China’s employment of this force multiplier in the South and East China Sea regions. At a certain level such a force may be benign, called upon to assist in search and rescue efforts. The concern, however, is that militia vessels are also being used to further Chinese strategic claims in disputed waters by – for example – harassing the fishermen of other states – including by sinking their vessels, as is reported to have occurred with a Philippines fishing vessel just a few days ago. In another episode, Chinese fishing vessels formed a cordon around Chinese oil exploration vessels operating off Vietnam.

The concept of a ‘maritime militia’ is relatively recent, but not without historical parallel. There has long been (and remains) well settled law around the practices of privateering, use of merchant vessels as auxiliaries to naval forces, and conversion of merchant vessels into warships. In this post, however, I will briefly outline two status and characterisation challenges ahead – or rather, already with us – presented by the increased use of maritime militia by China in the current geo-political and legal context: The status and characterisation of militia vessels under the United Nations Convention on the Law of the Sea (UNCLOS) and the customary law of the sea; and their status under the Law of Naval Warfare (LoNW).

Status and Characterisation under the Law of the Sea

Under the law of the sea, vessels are generally divided into sovereign immune vessels – warships and state vessels on non-commercial service – and other vessels, often collectively described as merchant vessels. A similar – but not necessarily parallel – distinction for domestic regulatory purposes is often made between public and private vessels. It is clear that a vessel used for private commercial purposes (such as fishing) is not a public vessel.

The Chinese maritime militia straddles these categories uncomfortably. There appear to be two components of the maritime militia. The first is the formally established PAFMM (Peoples Armed Forces Maritime Militia), described in a 2018 US Defence report to Congress as ‘a subset of China’s national militia, an armed reserve force of civilians available for mobilisation’, and as having ‘organisational ties to, and sometimes directed by, China’s armed forces’ (pp71-72). The crew appear to operate under militia discipline, and the vessels have a formally mandated support role – in effect, as auxiliaries to the China Coast Guard.

The other component of the Chinese maritime militia is vessels drawn from the regular fishing fleet, employed from time to time on directed operations – for example, by harassing sovereign immune vessels (such as with the 08 March 2009 USNS Impeccable incident), and preventing resupply of Philippines forces at Second Thomas Shoal. A critical question then is, can a ‘militia’ vessel fluidly transition from having a civilian (merchant / private) character to a military (public / state) character? And if so, what are the legal consequences?

In many respects, the transitioning of a merchant vessel into a state vessel on non-commercial service is unremarkable and unobjectionable. US doctrine, for example, states that Military Sealift Command vessels, even if time-chartered, are entitled to sovereign immunity, as are (for more limited purposes) similar vessels on voyage-charter (see the US Commander’s Handbook para 2.3.2). But the shortest acceptable period of altered status and character is probably set as a voyage, and there are notification requirements that attend each change of status.

Such transitions of status and character are also recognised in the LoNW, including in 1907 Hague (VII) which deals with the conversion of merchant vessels into warships. Additionally, the status of ‘auxiliary’ has a long history in naval warfare. The Argentine attack on SS Atlantic Conveyer, a merchant vessel taken up from trade to support the deployment of UK forces to the Falkland Islands conflict (and thus at the time an auxiliary) was not then, nor now, considered to have been unlawful. Although there were legal concerns at the time as to whether Atlantic Conveyor, as an auxiliary, could be armed – ultimately she was not – there was no doubt as to her LOAC status and targetability.

However, the fluid, hybrid nature of maritime militia employment means that individual vessel transitions in status are much less clear than the longer term and notified changes anticipated in the law of the sea. Indeed, this body of law traditionally takes a dim view of revolving door status and nationality – eg UNCLOS art 92(2) which renders stateless a vessel claiming two nationalities and ‘using them according to convenience’. ‘State vessel on non-commercial service’ is thus not an appropriate status for a vessel engaged in commercial fishing on Monday, state directed harassment operations on Tuesday, and then commercial fishing again on Wednesday – Andrew Ericson, James Kraska, Michael Monti, Liza Tobin, and Masaaki Yatsuzuka (amongst others) have commented upon this challenge. This uncertainty has clear implications for characterising use of force by maritime militia vessels against other vessels. PAFMM vessels, for example, might not be characterised as private vessels, and thus could not commit piracy – although this carries with it implications and consequences flowing from ‘sovereign’ uses of force at sea (including different assessment criteria under the Articles on State Responsibility arts 5 or 8).  However, depending upon the approach one takes to the issue of ‘private ends’ in UNCLOS art 101(a), the ad hoc component of the maritime militia could well be subject to assessment in terms of piracy. At the very least, one could envisage a case where members of the ad hoc maritime militia are arrested and charged with piracy for harassment operations by a regional state unless and until China acknowledged their actions as having been on government service.

Most likely, the ultimate legal solution will be to characterise the PAFMM ab initio as state vessels on non-commercial service, but to characterise the ad hoc maritime militia as private fishing vessels unless otherwise notified.

Status and Characterisation under Law of Naval Warfare

Similarly, should a Common Article 2 international armed conflict arise, the precise status to be accorded maritime militia vessels is of central concern in terms of their liability to attack, and to other measures short of attack. If a maritime militia vessel is an auxiliary, for example, then it can be attacked – rule 65 in the San Remo Manual (SRM) reflects this long held customary position (‘Unless they are exempt from attack… enemy warships and military aircraft and enemy auxiliary vessels and aircraft are military objectives…’).

However, if the maritime militia vessel is prima facie a merchant vessel, then it can only be attacked under more stringent circumstances, and generally only after resistance by that fishing vessel has rendered other measures short of attack – such as visit and search, diversion, or capture – ineffective. Further still, if the fishing vessel of ambiguous status is also a ‘small coastal fishing vessel’, then any targeting assessment must start from the position that the vessel is prima facie exempt even from capture, unless it engages in hostilities-related conduct, as per 1907 Hague (XI) art 3 – ‘Vessels used exclusively for fishing along the coast or small boats employed in local trade are exempt from capture, as well as their appliances, rigging, tackle, and cargo. They cease to be exempt as soon as they take any part whatever in hostilities.’

Conclusion

The incidence and aggressive nature of Chinese maritime militia operations in the South and East China Seas is increasing. The potential for ‘a rule of the road’ incident to escalate from confrontation, to a bump, to a collision, to become a use of force, is manifest. But – unlike during the Cold War – there is currently little history and only bare structures for the management of incidents at sea – especially as between between US and other warships and cutters on one hand, and Chinese maritime militia (and naval and coast guard) units on the other. This makes defraying irritants and de-escalating incidents more challenging. When the ambiguity that attends both the status of maritime militia vessels, and the consequent sovereign character to be assigned (or not) to their conduct is then added to this geo-political context, the potential for misunderstanding and escalation is worryingly high.