Category Archives: Territorial and Law of the Sea Disputes

United Nations Convention on the Law of the Sea, International Maritime Organization, and international maritime law.

The Royal Navy and Freedom of Navigation Operations

By Pete Barker

In July, two major announcements were made renewing the Royal Navy’s commitment to the principle of freedom of navigation in the coming years. Firstly, the Secretary of State for Defence, the Right Honourable Michael Fallon, told Reuters that Britain was intending to send a warship to the South China Sea in 2018. The Defence Secretary explicitly stated that, “we have the right of freedom of navigation and we will exercise it.” In a direct reference to China, he added, “we won’t be constrained by China from sailing through the South China Sea.” Shortly afterward, the Foreign Secretary, the Right Honourable Boris Johnson, announced that the Royal Navy’s new aircraft carriers (the first of which is currently undergoing sea trials in UK waters) would deploy to the Pacific region to conduct freedom of navigation operations “to vindicate our belief in the rules-based international system and in the freedom of navigations through those waterways which are absolutely vital for world trade.” This statement develops remarks made by Sir Kim Darroch, the UK Ambassador in Washington DC, at the end of last year.

The significance of these declarations by senior government ministers and diplomats should not be underestimated. Indeed, they have provoked a swift reaction from Chinese officials who have warned countries from outside the region from stirring up trouble. In a barely-veiled reference to recent UK military operations, Chinese foreign ministry spokesman Lu Kang stated pointedly, “Whoever they are, under whatever pretexts and whatever they say, their precedents of interfering in other regions on high-sounding reasons but only leaving behind chaos and humanitarian disaster warrant sharp alert of regional countries and people.” 

Freedom of navigation is not a recently discovered concept for the British. When a Spanish ambassador had the temerity to complain to Queen Elizabeth I about the voyages of Sir Francis Drake in the Pacific Ocean in the sixteenth century, she replied with one of the clearest early statements on the freedom of the seas: “The use of the sea and air is common to all; neither can any title to the ocean belong to any people or private man, for as much as neither nature nor regard of the public use permitteth any possession thereof.”1 Although her successor to the throne, King James I, flirted with the idea of nations having dominion over the oceans (mainly to protect Scottish fishing rights), it was still accepted that prohibiting innocent passage would be contrary to the dictates of humanity.2 By the early seventeenth century, Britain, by then a major maritime power, had recognized the benefits of oceans being open to all and has been a loyal adherent to this policy for the past 350 years. In the twentieth century, this commitment manifested itself during the negotiations which produced the United Nations Convention on the Law of the Sea (UNCLOS). UK diplomats made significant contributions to the development of some key concepts relating to freedom of navigation, such as the right of transit passage through international straits, later adopted by all the signatory nations.3

Although the UK has supported freedom of navigation as a matter of principle for centuries, its economic and practical impact for a leading world economy should not be ignored. The two are inextricably linked. In a recent address to a multi-national workshop on freedom of navigation and the law of the sea at the U.S. Naval War College, noted University of Virginia professor Ambassador John Norton Moore (ret.), a member of the U.S. 1982 UNCLOS negotiating team, stated that the provisions of the treaty “for freedom of navigation are of the utmost importance in protecting global trade, one of the core mechanisms for global economic growth.” The United Nations estimated that in 2011, nearly half of the world’s annual trade by sea passed through the Malacca Straits and the adjacent South China Sea. The economic arguments for maintaining navigational rights in this region are unassailable, especially as the UK develops new trading relationships with Asian partners following its planned withdrawal from the European Union.

Historically, the UK has not conducted a formal program of freedom of navigation operations in the manner that the U.S. has. Of course, ships of the Royal Navy exercise their legal rights through the waters of the world on a daily basis, whether transiting through key straits or conducting innocent passage through territorial waters of coastal states. Their presence provides security for commercial shipping of all nations that are exercising similar rights. The exercise of these rights is no different to the navy of any other country in the world (Chinese ships recently transited through the Dover Straits on their way to conduct exercises in the Baltic, a practice also seen from Russian ships). However, by highlighting these operations years in advance, the UK has given them added strategic significance. This approach does not form part of the U.S. program. Current U.S. policy seems to be that such operations are only confirmed retrospectively in the annual Department of Defense report. On the basis of announcements to date, the UK seems to be taking a more overt and open approach to the conduct of freedom of navigation tasking. As noted by Dr. Euan Graham, the use of an aircraft carrier would also be a significant change from current U.S. tactics.

The actual operations are unlikely to appear dramatic and will probably be similar to those conducted by U.S. ships under Presidents Obama and Trump. One of the key considerations for the UK will be to clearly articulate what is being challenged by any particular operation to avoid inadvertently strengthening illegitimate claims (as discussed by Professor James Kraska in relation to U.S. operations here). In all likelihood, these operations will consist of straightforward passages possibly coupled with routine exercises such as a man overboard drill although such operational decisions are clearly speculative at this stage. But these actions speak louder than words. They demonstrate the resolve of the UK to maintain the rule of law at sea throughout the world, to support partner nations in the region which are committed to this concept (including countries such as Japan and India), and to continue a historic association with one of the oldest norms of international law. The UK has designated 2017 as the “Year of the Navy” and this commitment to conducting freedom of navigation operations halfway around the world shows both the value that is placed on this right and the resurgent capability of the Royal Navy to take action to preserve these freedoms.

Lieutenant Commander Peter Barker is a serving Royal Navy officer and barrister. He is currently the Associate Director for the Law of Coalition Warfare at the Stockton Center for the Study of International Law (@StocktonCenter), part of the U.S. Naval War College.  He can be contacted at peter.barker.uk@usnwc.edu.

This post is written in a personal capacity and the views expressed are the author’s own and do not necessarily represent those of the UK Ministry of Defence or the UK government.

References

1. Camden, Annales, 225 (ed. 1635) quoted on page 107 of Thomas Wemyss Fulton, The Sovereignty of the Sea, William Blackwood and Sons, 1911

2. Ruth Lapidoff, Freedom of Navigation – Its Legal History and Its Normative Basis, 6 J.Mar. L. & Com. 1975, p.268

3. Clyde Sanger, “Ordering the Oceans: The making of the law of the sea”, University of Toronto Press, 1987, page 95

Featured Image: Prime Minister Theresa May visits HMS Queen Elizabeth, HMS Queen Elizabeth made her first entry into her home port of Portsmouth. The Prime Minister went on board and met with members of the crew and addressed the ship’s company
(Jay Allen)

Sea Control 141 – The Law of the Sea with John Burgess

By Matthew Merighi 

Join us for the latest episode of Sea Control for a conversation with Professor John Burgess of the Fletcher School about the Law of the Sea and its enduring effects on maritime security. This interview was conducted as part of the roll-out of the Fletcher School’s recently released primer on the Law of the Sea.

Download Sea Control 141 – Law of the Sea with John Burgess

A transcript of the interview between Professor Burgess (JB) and Matthew Merighi (MM) is below.

MM: And we’re back as I mentioned at the top I’m here with professor John Burgess of the Fletcher School of Law and Diplomacy. Professor Burgess thank you very much for being with us on Sea Control today.

JB: It’s my pleasure.

MM: As is Sea Control tradition, please tell us a little bit about yourself. Tell us about what are the main formative experiences you’ve had that brought you from where you were to where you are today.

JB: Well, I’m a Professor of Practice at the Fletcher School and that’s after having worked in law firms for about 35 years. But I did always have an interest in national and maritime security. I took a sabbatical and worked for the U.S. State Department in the area and I’d say the majority of my published articles were in the U.S. Naval Institute’s Proceedings, so moving towards maritime security and Law of the Sea as part of the courses I taught here was a pretty natural progression for me.

MM: I guess I’ll probably start the podcast off by mentioning the fact that you have a very robust library of maritime books. I’m curious, you’ve done maritime work but what got you interested in maritime law in the first place? Was it a personal experience or was it kind of discovering it by happenstance through your legal work or what brought you into maritime law?

JB: Well, of course a place like Fletcher been interested in international law and it’s interesting the way fashion works sometimes. The Law of the Sea, as we’ll talk later about the principal Convention, was adopted back in 1994. The course at Fletcher was taught for a while but then dropped out of the curriculum and the more I looked at the issues the more odd that seemed because the Law of the Sea, as embodied in the Law of the Sea Convention, is one of the most comprehensive pieces in international law that exists. And it covers obviously 90 percent of the planet and it raises all the classic issues of international law: how nations work together, how disputes are settled, how resources and rights are allocated, and it crystallizes all of those issues and we face the questions and disputes and developments every day. And so that led me to really want to focus on it in a systematic way. And, of course, here at the school of the international relations, it was a great venue to be able to apply the law to a very rapidly developing set of global situations.

MM: Let’s talk then about the historical underpinnings that have led us to where we are now before we get too far into the current issues. So, the Law of the Sea: tell us a little bit about it. What is it? You talked a little bit about its effects but what is it functionally at its core, why does it exist, what’s the history behind it, and how did it come to be?

JB: To summarize concisely, for the Law of the Sea, one of the reasons that it’s so interesting is that it’s both very old and it’s newest today. When nations began trading, gradually maritime custom and maritime law developed governing those relationships and by the 17th century, international legal thinkers were beginning to think about the ocean as a separate legal space that was not owned by any nation or controlled by any nation, but was a common; shared for commerce and navigation among the world’s nations. And that concept has evolved as part of customary international law for centuries.

After the second World War, in a more complicated world in some ways, with increasing numbers of nation states and  technology permitting greater exploitation of oceanic resources, nations began to focus on that system of customary law and whether it should be embodied in a treaty or treaties. And back in 1958, under UN auspices, preliminary group of treaties was adopted, but the scope was limited. And that led to a desire to address, on a comprehensive basis, the issues of Law of the Sea.

Over 10 years, dozens of nations in a conference of Law of the Sea worked to evolve what has become today, the Law of the Sea Convention: a treaty regarding the Law of the Sea, which became effective in 1994. And it is very, very detailed and very broad in its scope. It did several revolutionary things. It defined on a systematic basis a series of maritime zones; parts of the ocean over which states had different rights. And particularly, introduced the concept that we can spend a few more minutes on later, of an Exclusive Economic Zone, the right of coastal states to exploit the living and nonliving resources of the adjacent waters out to 200 nautical miles. It also crystallized in a written form the rights of maritime nations to freely navigate.

That idea that there is an element of the commons that is available for free navigation, the conduct of trade, the conduct of naval operations and at one level, the 1994 treaty of the UN Convention on the Law of the Sea is a great compromise that assures developed nations and maritime nations the traditional rights and access of navigation. And developing nations and others have the right to exploit neighboring living and nonliving resources in the sea. Of course, for some countries it’s both; the United States draws great value from its economic zones off its oceans in terms of fishing, mineral, petroleum, other resources and as the world’s leading naval power, it’s critical to the United States to be able to exercise the rights of navigation that are embodied in that treaty.

MM: Before we go into some of those areas and get into the specifics, I was wondering if you could tell us since many of us already know customary international laws but I’m sure there are some people out there that haven’t worked in international relations in the legal space, but walk us through what is customary international law and if that is a form of law, why then would there need to be a treaty and then a Convention to institutionalize that in paper?

JB: Customary international law is sets of practice that are adhered to by the international community as evidenced by state practice, what nations do, as evidenced by the supporting actions of international courts, the adjudication by these commentators, that isn’t written down in a law book, but which by reason of practice over the course of time and the acquiescence of the international community, takes on the nature of law and that is an historic element of international law and is relevant to the Law of the Sea to this day.

The issue with customary international law however is it’s neither comprehensive, things can develop technological enabling or security issues that the law hasn’t addressed before, and you can’t rely on the accumulation of custom to address. And its interpretation is limited in scope but comes up as academic commentators write articles, as courts interpret decisions and with somethings as complicated as the governance of the world seas, something more comprehensive, something that was more up to date in many respects was critical.

I’ll just throw one example and that relates to environmental issues. For protection of the oceanic environment for a variety of reasons, there was no substantial body of customary international law on that topic, and it could’ve taken decades or longer for it to evolve. And by then environmental issues in the 20th century to respect to the world’s oceans could be critical. So, one of the thing that treaty does is systematically set up a regime for addressing those questions. You can’t do that customary international law, you need a treaty.

MM: Let’s start going through the treaty then. You mentioned there’s a number of different areas, but you mentioned first and foremost the fact that the ocean is divided into different zones.

JB: Yes, that is correct.

MM: So, walk us through those zones, what are they, how are they determined, and what can states do in those different zones?

JB: I’m going to walk through it beginning close to land and heading out to sea. And in principal, the rights of a coastal state are highest, this makes sense, closest to land, and are more limited as you go out to sea. Internal waters which are the waters on the landward side of the low tide line are, sovereign territory; those waters are fully subject to the laws of the state, and if you’re on the Connecticut river, you’re under U.S. and Connecticut law as an internal water. But then, on the other side of that baseline, that’s created to determine the outer limit of internal waters, you’re in what’s called the territorial sea, the territorial sea has a breadth of up to 12 miles. States can define it, and most do, out to 12 miles and states, in essence, are sovereign over the territorial waters along their coast as well. They have the full ability to legislate and enforce their laws in those waters. Subject to one very important right that we can talk about later which is a right of innocent passage by third party states to traverse the waters, subject to limitation, but that’s it.

That’s really the only exception or limitation on the coastal states sovereignty. The next key zone is the one I described to you, the one that really was created under the Convention of the Law of the Sea and that is an Exclusive Economic Zone (EEZ). That goes out all the way to 200 miles and it says that the coastal states have the exclusive right in that zone to exploit the living and nonliving resources. The seabed, what’s under the seabed, petroleum, fish, mineral rights, but those otherwise are part of the high seas, they can’t restrict navigation in the way they can in territorial waters, and their rights are therefore limited as opposed to territorial waters.

Once you get beyond 200 miles, it is the high seas, a commons that the world continues to have rights to navigate in. Below the surface, after 200 miles, there may continue to be rights to exploit minerals, under the extended continental shelf. That continental shelf set of rights can extend depending on the geology, it’s a complicated equation of a coastal state, out beyond 200 miles but typically not beyond 350 miles as an outer limit. And beyond that the seabed again becomes part of the common. It’s open to exploitation by all nations, whether they have access to the coast, whether they are landlocked or not, under the separate regime established under the treaty.

MM: So, it’s pretty intuitive then in terms of the rights of different zones and how they’re allocated for large bodies of land, so say for example knowing how far the end of California is from 200 miles, that’s pretty easy.

JB: It is, yeah.

MM: But they’re also notions of a place where there’s a lot of other features, I guess is the technical terminology from there and I think one of my favorites from the Law of the Sea Convention is the difference between islands and rocks. So, I was wondering if you could walk us through the differences between those two features are and how they play into the Law of the Sea?

JB: Yeah, I’m always reminded of the old Simon and Garfunkel song, “I am a rock; I am an island,” but it’s actually a legal concept here, not a musical one, and the key point is that, as you described, if you’re along a continental coastline, it’s pretty intuitive, you get 12 miles and then you get 200 miles. It’s a small percentage relative to the size of the continent, but how do you treat an island? And an island is defined under the Convention as a body of land surrounded by water that’s above sea level at high tide, and it actually creates a territorial sea and an EEZ as well, so if you’re looking at the Florida Keys individual islands that remain above high tide, they have the potential to create, a territorial sea and an EEZ all on their own.

So, I’m going to indulge for a second if it’s okay in a little geometry, let’s say you’re in the middle of the Pacific and you’ve got an island that is a mile wide. Well, it can create a territorial sea and an exclusive economic zone. I’m not great at geometry but I think the area of the circle is πr squared. So, 200 miles and square it: 40,000 miles, multiplied by pi; a one-mile island can create a tens of thousands of square miles of exclusive economic rights. Interestingly enough, that would mean that the nation that has the largest EEZs is the United States because of the range of the islands principally that are United States territory in the Pacific. Surprisingly enough, the next one is France.

MM: France?

JB: To understand that, you need to go look at a map and go “oh yeah French Polynesia or the islands that France controls in the Indian sea, Indian Ocean rather.” And how did they get so big? Because of this leverage and the drafters of the Law of the Sea Convention, they kind of knew that, they said we have to safeguard the abuse of that status so only one kind of island gets those rights. There’s a subset of islands that we’re going to call rocks. And those are islands that can’t sustain human habitation or economic activity. They don’t have to be literally rocks; they could be a sand spit, they could be a coral reef, but if they lack the capacity to support human habitation in a meaningful way or meaningful economic activity, then they do not generate an EEZ. And it eliminates that ability to leverage, so dramatically, the territory of an island to an essence to create very, very significant and valuable oceanic zones. So, they thought of it, but it’s still an issue in today’s law.

MM: So, let’s talk about that a little bit, because obviously the incentive for a country that owns a rock, you know, if it’s not the size of Oahu which has Honolulu on it, but is kind of the cartoon depiction of sort of a person on a tiny deserted island with a palm tree on it.

JB: Yeah with the palm tree on it (laughs).

MM: But the incentive I’m sure for a country with that in order to gain those exclusive economic rights is to say, “oh well, that can sustain human habitation.” So, I was wondering how then is it determined whether a piece of land in the water is an island or a rock? You have this sort of the definitions, but how do you define then human habitation, well, human habitation is pretty easy, but economic activity seems to be kind of fuzzy?

JB: Well, actually both of them are a bit tricky and as typically happens, the treaty doesn’t give you a lengthy piece of guidance on how to do that. And many nations including the United States have, I’ll use the phrase, been liberal in their interpretation whether a feature is an island, for the reasons you described. But in the last year, last summer, an international tribunal on the South Seas, which adds South China Sea in particular, which we’ll talk about, looked at that question and provided some more detailed interpretation and it said a few things.

First of all, when we evaluate whether an island can sustain human habitation or economic life, we’re going to look at the island in its natural state, so for starters, if the Chinese or somebody else build a huge structure or transform the island, you can’t look at that, you have to go back historically, see what it looked like before human intervention transformed it. Secondly, you’re going to look at the ability to sustain human life without massive outside intervention. If you fly in lots of people, you fly in water, fly in food, it’s clear that those external interventions again aren’t the test, you have to look at what is there on the island. And interestingly enough, it doesn’t necessarily have to have a human population. The question is “is there water, are there resources to supply food whether its vegetation or animal or fish that could or does sustain a human population?” And not on a transitory basis, people coming through for two months a year to fish doesn’t count.

Secondly, in the tribunal they also took a hard look at what economic activity or life would mean, and underscored that it couldn’t be merely extractive. You know there are islands that were made of bird dung, guano, and in the 19th century, people would go and mine these islands, well that’s just extractive, that’s not economic life, there has to be some set of resources that would permit economic activity on an island, and that could be mining, it could be fishing, but it can’t simply be mining that cannot sustain and does not sustain a local population. That still raises lots of factual questions in every case, but it does make clear that an island has to be something more than just a palm tree and someone waiting for the ship to come, to qualify. And that’s going to have implications for nations like the U.S. and France and others who have significant island claims.

MM: So, we understand a bit about the zones, how they’re built, how they’re projected out, and some of the controversies surrounding this which we’ll get into the specifics in a bit, but to set up the ground work for everyone out there in our audience, tell us a little bit about what you alluded to earlier, about innocent passage and freedom of navigation. What is it, how does it function, and how does the Law of the Sea Convention define those different kinds of activities? What are the rules of the road?

JB: And those are critical elements because really the Law of the Sea is a balancing of interests of states, the coastal states want to control as much as possible, as far as possible and obviously maritime and commercial states wish to be able to conduct trade and activities without interference by coastal states, and those compromises are reflected in a couple of different concepts.

The first is the concept of innocent passage. As I mentioned a few minutes ago, the sovereign coastal state has a lot of power and authority in the territorial sea, subject to one exception and that is the vessels of third parties can traverse the territorial sea to make a transit or to enter into the ports of the coastal state under the doctrine of innocent passage. The coastal state cannot forbid that kind of transit or activity, and when you think about it that’s pretty critical to commerce, a cargo ship proceeding along the U.S. coast in order to trade in order to access U.S. ports in order to efficiently transit is going to enter territorial waters, and this right of innocent passage allows it to do so, but it’s a very limited right. The passage has to be continuous, it has to be expeditious, you can’t anchor off a coast for a week, absent an emergency set of circumstances, so it’s got that test, and it has a variety of other tests that are designed to assure that innocent passage isn’t exploited to take advantage of the coastal states’ resources or military security.

For example, you can’t fish on innocent passage, because that is in conflict with the rights of the coastal state. You can’t operate military systems, you can’t take on or land aircraft or launch aircraft. Submarines have to proceed on the surface which kind of spoils the whole purpose of being a submarine precisely to avoid provocative threats to the security and safety of the coastal state. So that’s the balance its achieved.

Transit rights relate to a very specific kind of territorial water, and that’s international straits. Straits of water that connect bodies of the high seas or economic zones and you could think of lots of examples: the Straits of Gibraltar, the Straits of Malacca, places which are narrow waterways, that would be the territorial waters of the contiguous states, but this special set of transit rights are granted. It’s rather like innocent passage, but because international straits are so critical to global security and commerce the rules are more relaxed.

I mentioned submarines couldn’t proceed on a submerged basis in innocent passage. They can in transit rights. The number of restrictions on activities in transit rights is much more limited than for innocent passage. And aircraft have transit rights as well as vessels in innocent passage, only surface vessels and submarines have that right. So, this is to the more liberal regime, which is a critical regime to assuring global access to those straits that are fundamental choke points in the conduct of global commerce.

MM: There’s also a concept inside the Law of the Sea called sovereign immunity.

JB: Yes.

MM: I was wondering if you – since that’s at least tangentially connected to innocent passage and freedom of navigation rules – walk us through what is sovereign immunity? What does that mean?

JB: Well, it’s more than in the Law of the Sea; it’s really more of a doctrine of international law that states will not conduct criminal or adversarial actions against other states. And when you think about it, it’s an element of comity and we won’t go on with France interfering with U.S. military aircraft and ships and France similarly does not want us doing the same with theirs. But its significant with the Law of the Sea in that many of the provisions in the Law of the Sea exempt vessels that are subject to sovereign immunity or aircraft that are subject to sovereign immunity. For instance, the anti-pollution provisions don’t apply to a U.S. warship or a French warship for that matter.

In innocent passage, it’s an interesting dynamic because it basically says that if a ship that has a right to sovereign immunity violates the ground rules for innocent passage, the coastal state has the right to take steps to ask it to cease the passage. What that means isn’t entirely clear, it is in fact very likely that there’s no right of force or coercive ability to force the sovereign immune vessel to change its course and conduct, so implicit of that is risk of standoff and certainly the rights against the sovereign immune vessels are more limited. And state interference with those kind of vessels is a very serious breach, not just of Law of the Sea but of international law, which was why when the Chinese picked up a drone operated by the U.S. vessel, which is subject to sovereign immunity, it was a U.S. government vessel although not a naval ship as such, that raises implications of a breach of sovereign immunity.

MM: So then let’s talk about some of the specific examples since you mentioned China, since that’s the one that probably most of the people out here are familiar with. Walk us through the South China Sea, why is the Law of the Sea a part of the disputes happening there? What does it say about the disputes that have been happening and how is it generally guided the developments that have happened in that region?

JB: Well, in some ways it’s a textbook example of the importance of the Law of the Sea because the South China Sea is fraught with conflict. There are small islands: the Spratlys, for instance, and the Paracels that are claimed by the multiple adjoining states. The claims with respect to economic zones and extended continental shelf create issues of overlap and conflict. And, this is in a region where suspicion and friction between the neighboring states is high, so the ground rules of the Law of the Sea are critically important element in helping to resolve the frictions that are embedded in the issues I just described to you. And one of the key elements has been the tension between the Chinese view of its rights with respect to the South China Sea and those of the adjoining states.

The international tribunal decision at the permanent court of arbitration in 2016 that I mentioned earlier, really arose out of that and some other related disputes, but the principal core was with respect to China’s view of its rights over the South China Sea. China has asserted that it has broad sovereign rights within an area defined by the so-called 9-dash line, and that expression comes from the fact that the map that originally included it had nine dashes, the number of dashes varies from time to time, that doesn’t matter. What does matter is that the line embraces the great majority of the South China Sea. It comes down close to Indonesia, Vietnam and to the Philippines. And the line conflicts with the Exclusive Economic Zones of those nations. China’s never defined precisely, and certainly not in the context of the Law of the Sea, what it means by the sovereign rights under the 9-dash line, but both verbally and in action, has asserted rights that would be in conflict with the Law of the Sea for instance, the access of Filipino fishers to living resources within the South China Sea has been restricted by the Chinese on the basis of the 9-dash line.The tendency of China to increasingly enforce or assert the 9-dash line was triggered when Vietnam and the Philippines began oil exploration in the South China Sea.

The tribunal took a hard look at the 9-dash line, and it unequivocally said that, this line which China asserts has its origins in ancient historic rights to the sea is in conflict with the Convention of the Law of the Sea and hence is legally of no effect. The tribunal said that when China signed the Convention, it gained great rights including to the EEZ around China that didn’t exist before, and in doing so, also lost any more vague and historic claims. And that was a very important decision both legally and geopolitically. It’s no question that legally it was the right decision. This kind of broad, inchoate historic right to great reaches of water doesn’t exist anywhere in the Law of the Sea. And in addition, it was a firm message that, from a political standpoint, China’s position was an overreaching assertion of sovereign rights, which is one of the reasons why the Chinese have so bitterly denounced the decision.

MM: So, let’s talk about the other end of this, since we’ve talked mostly about the economic rights, let’s talk about freedom of navigation in the South China Sea, because you mentioned the drone seizure, what then does the Law of the Sea say should be happening in the South China Sea and what is the position of China, how they’re acting, and how do they contrast with one another?

JB: Yes, the tribunal did not address that set of issues, but it has been an escalating and critical source of friction as well particularly although not exclusively between the U.S. and China. And it has two elements, the first relates to innocent passage. I’ve described that before, it’s the right for the continuous and expeditious crossing of territorial seas, innocent passage is available to warships as well as civilian vessels, but a certain number of nations including China have asserted that it’s necessary to provide notification and to obtain consent to conduct innocent passage. The U.S. position, which is consistent with the Convention, is that that consent is not required.

That war honestly has been more one of words than of action perhaps fortunately. The U.S. conducts what it calls freedom of navigation exercises from time to time to preserve those rights. It’s complicated in the South China Sea because those navigation exercises have sometimes been ambiguous, the U.S. has sailed within 12 miles of certain of these small maritime features and it’s been unclear whether the U.S. is in fact asserting innocent passage and conceding there’s a territorial sea around the feature, or is the U.S. asserting that there’s no territorial sea, and is simply a high seas transit right, and that ambiguity continues. China protests those exercises, we periodically conduct them, as I said the struggle has largely been one of words, but it is important and as a security matter for the United States, the assertion of the right of innocent passage within the South China Sea is very important.

The other and more broad question is, whether there are any limitations on the conduct of military surveillance, reconnaissance, or activities within China’s EEZ. And China also interprets its rights there very broadly. It asserts that the EEZ can only be used for peaceful purposes and that reconnaissance flights, this is beyond the 12 miles remember, it’s out beyond that zone, or military exercises are inconsistent with its interpretation of the Convention. And that has led to serious difficulties.

More than a decade now ago, there was a collision between a Chinese interceptor aircraft and a U.S. reconnaissance aircraft, the Chinese pilot was killed and his plane crashed, the U.S. aircraft was forced to land on an emergency basis on a Chinese airbase. And unfortunately, with the last couple of years, nothing that serious has occurred, but there have been recurring games, for the lack of a better word, of international chicken between Chinese interceptor aircraft and U.S. reconnaissance aircraft. And the risk of an incident there is real. And again, arises from the U.S. goal of assuring, particularly as a major power in the region and as a leading naval power, that its high seas rights are preserved. The erosion of that would be a serious blow to U.S. security interests, and China’s assertions that at least within the EEZ, conduct of that nature is not allowed of absent Chinese consent.

MM: So, lest our audience assume that basically every tension over the Law of the Sea somehow involves the United States and China or let’s be honest, sometimes just China and its neighbors, tell us a little bit about the United States and Canada and its disagreements on freedom of navigation.

JB: What could be friendlier than the United States and Canada? But things do happen when the issues are ones critical to open navigation to the principles of Law of the Sea and to access resources and that’s shown up between the United States and Canada on an abiding disagreement regarding the fabled Northwest Passage, the sea route through the Canadian island chain, that once upon a time explorers hoped led directly to El Dorado, but now with melting arctic ice may offer a way through the great circle route to significantly reduced transit time between the U.S. east coast and Asia. 

The Canadian position is that they are internal waters and if you recall, internal waters are equivalent to sovereign territory, there are no rights of third party nations and the rights abide exclusively with the coastal state. And in some ways, this has become a key psychological element to the Canadians, the Northwest Passage being truly part of the “Canadian north” or the “Canadian arcti”c, however you define it. The U.S. perspective is rather different. It is that the Northwest Passage is in fact an international strait, a way to connect two sets of high seas, and is subject to the transit rights available to third party nations under international law. And that therefore for example, a U.S. ship could proceed through the northwest passage without consent or notification, provided that it abided by the rules applicable to transit passage.

This disagreement remains more theoretical than real in the sense that traffic obviously through the Northwest Passage is limited. The two states have agreed to share information regarding such passages without the United States in anyway acknowledging that Canadian waters are internal and without Canada acknowledging in any fashion that the Northwest Passage is an international strait. And part of the disagreement turns on what an international strait mean. What does it mean to be used to permit passage between two sets of high seas or EEZs? Does “real use” constitute part of that definition? Because historically transit to the Northwest Passage relative to most other international straits has been very limited.

The U.S. view is that it can be used and it has been used whether or not it’s a large number of times and hence it’s a strait. The Canadian view is that that’s not the case because usage has been highly limited and doesn’t correspond to what has been historically associated with international straits. There are ironies to the position on both sides, I will note that it’s not entirely clear that it would be a geopolitical victory for the U.S. if it is an international strait, because for example, that means that Russian reconnaissance aircraft are free to fly down the straits under rights of transit. On the other hand, from the U..S standpoint, the principle at stake is critical because if there is any evolving body of law that erodes the definition of international straits, it’s a clear detriment to a leading maritime and a naval nation like the United States, so it does matter.

MM: So, the Canada issue and the strait versus internal water alludes to the fact that the ocean is changing and that as a result of the changes in the ocean, it is also then driving changes in the Law of the Sea, if not the law itself, but in terms of evolving issues that are coming up. So, besides the Canada strait versus internal waters issue, what other issues do you see coming down the pike for the Law of the Sea?

JB: Well, the issue you just alluded to is one of them. And as you also mentioned it goes well beyond the question of the northwest passage. As we’ve talked about before, the definition of the low tide line is a very important marker, one of the key ways, not the only way, but one of the key ways that the baselines from which the maritime zones are measured is defined. We had a discussion about the difference between a rock and an island.

Well imagine if as it seems to be the case, global sea levels are rising, there are currently islands that are a meter or two above sea level. Given another 50 or a 100 years, if current trends continue, that could fundamental impact on the definition of maritime zones. They may be retreating landward. There are islands which would disappear, eliminating EEZs, or territorial seas associated with those islands. And there’s no resolution today about whether the baseline should be frozen and the way the borders are defined today is embedded, at least for some period of time, or whether they’re ambulator: the legal word for walking around, whether they reflect adjustments in sea level. 

There are groups under the International Bar Association and U.N. auspices looking at it and it’s a real question. Let alone dealing with the broader question which is not purely a Law of the Sea question of what becomes of island states, small nations in the Pacific or the Indian Ocean, it’s not simply a question of maritime borders disappearing, but of a country disappearing. And what is the status of a country’s sovereignty and what happens to its population? So it’s a good thing that it isn’t going to happen in the next five years, because it’s going to take a lot longer to resolve issues of that depth and complexity.

MM:  So, as is Sea Control tradition since we’re approaching the end, please walk us through what it is that you’re reading right now. You obviously have a very interesting and diverse background in terms of you know your education. So, tell us a bit about what you’ve been reading lately, whether its Law of the Sea-related or maritime-related, even if it’s something fun you found online recently.

JB: Yeah, well I think I describe two things. One is kind of a pure Law of the Sea book, but it covers a bit different topics then we’ve been discussing but one that the audience might be interested in is and that is a book by Natalie Klein on maritime security and the Law of the Sea that talks about issues we really couldn’t talk about today, including piracy and weapons of mass destruction and issues of intersection of security issues and Law of the Sea. And I’ve also been reading a book on the Barbary pirates which is a kind of a classic set of questions that relates to the history of U.S. frigates but also these, some of these issues were present at the beginning of the United States, issues of control of piracy, freedom of navigation. If the Barbary pirates were anything, they were dedicated to limiting freedom of navigation and exploiting the sea in a way that was at odds with freedom of commerce and of security.

MM: Wonderful, well thank you very much again professor for being with us on Sea Control and best of luck with all of your work. And hopefully we’ll be able to welcome you back on again at some point in the future

JB: My pleasure, thanks a lot.

John A. Burgess is Professor of Practice and Executive Director of the LLM Program at Tufts University’s Fletcher School of Law and Diplomacy. He teaches courses on international finance transactions, international securities regulation and cross-border mergers and acquisitions.

Matthew Merighi is the Senior Producer of Sea Control and Assistant Director of Fletcher’s Maritime Studies Program.

South China Sea: Continuous U.S. Presence or a New Law of the Sea Treaty

This article originally featured on Divergent Options and is republished with permission. Read it in its original form here.

By David Mattingly


National Security Situation:  The United Nations Convention for the Law of Sea (UNCLOS III) has failed to adequately define a nation’s territorial waters and to create a body which can enforce its judgements on nations involved in arbitration.

Date Originally Written:  February 7, 2017.

Date Originally Published:  March 6, 2017.

Author and / or Article Point of View:  David Mattingly is retired from the U.S. Navy and has sailed with U.S. Navy Carrier Task Groups in the South China Sea (SCS).  He holds a Masters of Arts in National Security Studies where he studied the geopolitics of the SCS and authored “The South China Sea Geopolitics: Controversy and Confrontation.”

Background:  Over the centuries, a few countries with strong navies controlled the world’s oceans.  The outcome of many conflicts fought on land often had a strong maritime element.  Dutch jurist Hugo Grotius first addressed the Law of Sea in his 1609 treatise Mare Liberum in which he established the idea of the freedom of the seas[1].  After  World War II and the emergence of the United Nations, the first Convention of the Law of the Sea (UNCLOS) concluded with four treaties being signed: Convention on the Territorial Sea and the Contiguous Zone (CTS); Convention on the High Seas (CHS); Convention on Fishing and Conservation of the Living Resources of the High Seas (CFCLR); and Convention on the Continental Shelf (CCS); as well as the Optional Protocol of Signature concerning the Compulsory Settlement of Disputes (OPSD)[2].  UNCLOS II convened in Malta to discuss territorial seas and fishery limits, however, the convention ended without agreeing upon a new treaty[3].  Today, UNCLOS III has been accepted by 167 nations and the European Union, however, although the U.S. has agreed in principle to the convention, it has not been ratified by the U.S.[4].  In the last attempt for ratification in 2012, it failed due to the “breadth and ambiguity” of the treaty and because it was not in the “national interest of the United States” to give sovereignty to an international body.  Ratification was overwhelmingly supported by the Department of Defense and the U.S. shipping industry[5][6].

Traditionally, a nation’s territorial boundary was established as a three-mile belt along its coastline based on the distance that a cannon could shoot a projectile.  All waters beyond the three-mile limit were considered international territory.

Today, the SCS is a possible flash point for confrontation over unresolved issues of the UNCLOS III between the Peoples Republic of China (PRC), its neighboring states which have joined to form the Association of Southeast Asian Nations (ASEAN), and the U.S.  The islands in the SCS remained largely uninhabited until the mid-1970s when the PRC began to lay claim to a number islands and shoals which were claimed during the reign of Emperor Yongle of the Ming Dynasty in 1405 and later claimed by the PRC in what has come to be known as the “Nine-dash line[7].”  A map which was produced after World War II extended the PRC’s territorial waters claim deep into the SCS.  France challenged the PRC’s claim in 1931 by claiming the Parcel Islands and the Spratley Islands as territory of French-Indo China which then passed to the government of Vietnam after the Franco-Indo China War ended in 1954[8].

To understand UNCLOS III, it is important to first understand the definitions of terms such as the differences between an island and a rock.  The PRC began an aggressive land reclamation program where soil was dredged from the ocean bottom to create islands, which have standing under UNCLOS III, unlike rocks and shoals which are not recognized.  The islands created by the PRC can support military garrisons, home porting of both military and fishing ships, and extend the PRC’s territorial limits under the “archipelagos concept[9].”  Within UNCLOS III, this concept furthers a nation’s territorial rights by considering the seas between the mainland and the islands claimed by a nation as a connecting, rather than separating, element.  The PRC could therefore declare an emergency and suspend the “right of innocent passage” for its self-protection.

Significance:  Merchant shipping between Asia, the Middle East, and the Americas transverse the SCS and a PRC declaration of emergency which suspended the “right of innocent passage” would have major impact in global shipping.

Option #1:  The U.S. and coalition naval forces create a continuous presence in the SCS and actively challenge PRC naval activities and construction of and on islands and rocks in dispute.

Risk:  The PRC has openly harassed and attacked ships and aircraft of the U.S. and ASEAN member nations.  The PRC has established the SCS as its home waters and had several years to construct military garrisons on the islands which it created.  It is possible that the Peoples Liberation Army Navy (PLAN) has placed surface to air missiles on the larger islands.  Additionally, the PLAN has aggressively modernized its ships and aircraft to include launching its first aircraft carrier.  As such, Option #1 may increase the possibility of a naval confrontation between the U.S. and the PRC.

Gain:  A naval coalition could provide protection for fishing and merchant shipping in the SCS and shape the narrative that the international community will not idly allow the PRC to control one of the most important sea lines of commerce.

Option #2   The U.S. and other nations could call for UNCLOS IV.  As evidenced by recent events in the SCS, UNCLOS III left many gray areas that are open for arbitration and the decisions lack the power of enforcement.  UNCLOS IV would address these gray areas and establish an enforcement framework.

Risk:  Major powers agreeing to a new UNCLOS could perceive that they have lost sovereign rights.  The UN lacks the ability to enforce treaties unless the major powers are onboard thus the text of a new UNCLOS would have to be carefully worded.

Gain:  In creating an agreement that is recognized by the international community, confrontation between the U.S., the PRC, and ASEAN may be avoided.

Other Comments:  None.

Recommendation:  None.

David Mattingly serves on the board of directors for the Naval Intelligence Professionals and is also a member of the Military Writers Guild. The views reflected are his own and do not represents the United States Government of any of its agencies. Divergent Options’ content does not contain information of an official nature nor does the content represent the official position of any government, any organization, or any group.


Endnotes:

[1]  Harrison, James. July 5, 2007. Evolution of the law of the sea: developments in law -making in the wake of the 1982 Law of the Sea Convention.

[2]  Treves, Tullio. 1958 Geneva Conventions on the Law of the Sea. United Nations.  http://legal.un.org/avl/ha/gclos/gclos.html

[3]  Second United Nations Convention on the Law of the Sea 17 March – 26 April 1960 Geneva, Switzerland. , January 8, 2017. Washington School of Law, American University. http://wcl.american.libguides.com/c.php?

[4]  The Convention of the Law of Sea. U.S. Navy Judge Advocate Corps. http://www.jag.navy.mil/organization/code_10_law_of_the_sea.htm

[5]  Patrick, Stewart M, June 10, 2012. (Almost) Everyone Agrees: The U.S. Should Ratify the Law of the Sea Treaty. The Atlantichttps://www.theatlantic.com/international/archive/2012/06/-almost-everyone-agrees-the-us-should-ratify-the-law-of-the-sea-treaty/258301/

[6]  Senators Portman and Ayotte Sink Law of the Sea. July 16, 2012. Portman Senate Office, Washington, DC.

[7]  Tsirbas, Marina. , June 2, 2016. What Does the Nine-Dash Line Actually Mean? The Diplomathttp://thediplomat.com/2016/06/what-does-the-nine-dash-line-actually-mean/

[8]  Bautista, Lowell B. 2011.  Philippine Territorial Boundaries: Internal tensions, colonial baggage, ambivalent conformity.  University of Wollongong. New South Wales, http://jati-dseas.um.edu.my/filebank/published_article/3162/035 053%20Lowell%20B.%20Bautista-
 Philippine%20Territorial,%20JATI%20VOL16,%202011-%20new.pdf

[9]  Katchen, Martin H. 1976. The Spratly Islands and the Law of the Sea: “Dangerous ground” for Asian Peace. Presented at the Association of Asian Studies, Pacific Area Conference.  June.  Revised and published in the Asian Survey.

Featured Image: International Tribunal for the Law of the Sea (ITLOS)

Hainan’s Maritime Militia: All Hands on Deck for Sovereignty Pt. 3

By Conor M. Kennedy and Andrew S. Erickson

Part I and II of this conclusion to our series on Hainan’s maritime militia discussed the Hainan Provincial Military District (MD) leadership’s approach to constructing maritime militia forces in response to national militia guidelines and how they address challenges during construction efforts. This final installment in our series offers a glimpse into what the Hainan MD’s efforts have yielded in force scale. It also examines the incentivizes motivating the builders of this force, such as political drivers and pressures confronting local officials. The conclusion also outlines issues meriting further observation and analysis, such as the significance of the Sansha Maritime Militia force for China’s third sea force more broadly, and the degree to which Chinese officials frame related efforts as part of a “People’s War.”

Although this series has discussed in depth four key locations for maritime militia development, they are part of a far broader effort by the entire Hainan MD. The maritime militia units of Sanya, Danzhou, Tanmen, and Sansha should not be seen in isolation, but rather as elements of the Hainan MD militia force system. Directed by national militia construction guidelines and a highly publicized visit by paramount leader Xi Jinping to the Tanmen Maritime Militia, every other county in Hainan Province has established singular or multiple maritime militia units. These include districts of the provincial capital Haikou and many other directly administered and autonomous counties. Additional noteworthy maritime militia units are located in Lingshui County, Chengmai County, Changjiang Li Autonomous County, Wanning City, and Dongfang City. While our research to date has not revealed them to be on the same level of the four leading units in the totality of their documented capabilities or achievements, they nonetheless merit further examination. Dongfang and Wanning Cities’ maritime militia, for example, participated in defense of China’s HYSY-981 oil rig alongside the better-known Sanya and Tanmen maritime militia units.

Below is a map depicting all of the 31 maritime militia units under the Hainan MD jurisdiction identified as we conducted research for this series.

While local conditions produce considerable variety in unit scale and type, one can notionally estimate the total number of personnel and vessels in Hainan’s maritime militia force by assuming that the 31 units displayed are the rough median size of a militia company. Most maritime militia units, often referred to using tactical-level unit organization terms such as “fendui” (分队) or “company” (连), may comprise around 120 personnel and 10 vessels. This would yield a hypothetical total of 3,720 personnel and 310 vessels in Hainan’s maritime militia force. Such estimation is admittedly imprecise: Chinese organizational terms often lack both alignment with Western equivalents and consistency with regard to precise status and numerical size. As Kenneth Allen and Jana Allen explain, “Different Chinese and English dictionaries translate fendui (分队) as subunit, detachment, element, or battery…Although fendui refers specifically to battalions, companies, platoons, and sometimes squads, which together comprise the grassroots level (基层), a fendui can also refer to an ad hoc grouping of personnel organized for a particular function.” Moreover, characteristics specific to China’s maritime militia may accentuate organizational and numerical variation: some units lack vessels organic to the unit and rely on the requisitioning of civilian vessels for training and missions. Other detachments vary in size from 70 to over 300 personnel. Units also vary considerably in capability. Sansha City’s new maritime militia fleet, for instance, is vastly superior to the Chengmai County Maritime Militia Company.   

The overall distribution of Hainan’s maritime militia force reflects the militia-building responsibility given to each locality as contained in the commonly invoked guidance that “provinces build battalions, cities build fendui, and counties build companies” (省建大队、市建分队、县建中队). While Hainan Province lacks a battalion-level unit and adherence to this formulation is less than exact, its various cities and counties have all established maritime militia fendui or companies. Required by the Hainan MD, every single Hainanese coastal city and county with a harbor has established its own maritime militia force.  

Incentivizing Cadres

As documented throughout this series, China’s civilian and military leaders find strategic and operational advantages in the maritime militia, and have made use of these forces at sea. While key cities and counties with marine economies are sufficiently robust to support capable maritime militia forces, other localities with far less potential to form an elite maritime militia are nevertheless developing their own units. Other factors may also be driving this buildup. While this series has already surveyed the carefully-calibrated incentives available to maritime militia personnel for their services, it has not yet directly addressed the motivation of local officials involved in building the militia. This is ever-more critical: local civilian and military officials represent the key force in building the militia, which do not organize autonomously. This section will therefore consider the role of provincial politics and bureaucrats’ incentives in maritime militia building.

There is an obvious political dynamic involved in militia building, harking back to China’s radical past when revolutionary zeal constituted a criterion for cadres’ selection or promotion. To further their Party careers, local officials naturally embrace and support major political campaigns and policies. As China pursues regional predominance in maritime power militarily and economically, major national resources are being lavished on coastal provinces and their maritime forces. China is also actively working to boost the population’s maritime consciousness through a variety of measures, including by cultivating and publicly praising maritime militia leaders and their units. Hainan MD Commander Zhang Jian and Political Commissar Liu Xin wrote that leaders of People’s Armed Forces Departments (PAFD) should strive to be “rights protection commanders and political commissars,” and government leaders should serve as “rights protection secretaries or mayors.” Cadre evaluation, according to Zhang, rewards those who take the initiative in upholding China’s claimed maritime rights, suggesting increased opportunities for career advancement by local officials thus dedicated. Such grassroots forces are also intended to spread maritime awareness and consciousness among the masses, forming a component of national defense education on maritime affairs conducted by local People’s Liberation Army (PLA) Commands.  

Success in maritime militia work can help local officials impress their superiors, potentially facilitating advancement. Numerous accolades are accorded governments, institutions, enterprises, units and individuals that contribute exceptionally to national defense efforts. Sansha City recently garnered national attention when it was designated a “National Double-Support Model City” in recognition of its exceptional assistance to the military, with which the Sansha Maritime Militia cooperates. The famous Tanmen Maritime Militia Company, which received a visit from President Xi Jinping in 2013 on the first anniversary of the Scarborough Shoal Incident, had previously earned numerous plaudits from the PLA for its persistent sea service. Having recently garnered multiple awards for its armed forces work, Lingshui County has made major progress in developing its maritime militia force. Reflecting such success, nine civilian armed forces cadres who worked with the militia have since risen to township deputy mayor and deputy party secretary positions, suggesting opportunities for career mobility through militia work.  

Numerous reports celebrate the diligence of the Lingshui County PAFD Political Commissar Colonel Xing Jincheng on building up the maritime militia under his authority. After transferring to the Lingshui PAFD from his position as deputy political commissar of a PLA regiment, Colonel Xing expressed an unwillingness to relax in an easy “reserves” job. Dismissing suggestions that he rest after a long career, and ride out his final posting on Hainan’s scenic southern coast, Xing is lionized for instead devoting great energy to enforcing strict discipline in the PAFD staff and in building the Lingshui Maritime Militia. Extensive media coverage of Xing puts his efforts in the context of the latest PLA reforms; and the growing mission role of maritime rights protection, extending down to even grassroots PAFDs.  

Other reports indicate that local government officials must fulfill their responsibilities in supporting national defense mobilization work as a key function of their position or else risk losing their jobs. For example, an article in the November 2016 issue of China’s Militia featuring Guangxi Autonomous Region’s efforts in this respect included an unattributed quote referencing military work by local civilian government and Party leaders: “[those] who don’t stress the importance of and cannot grasp armed forces work are incompetent and derelict in their duties.” The article then explains how Guangxi Party and government officials have increased their maritime militia force in response to the growing mission of rights protection in the South China Sea. China has raised Military-Civilian Fusion to the level of national strategy, as documented in the 2013 doctrinal volume Science of Military Strategy. As a result, officials in coastal provinces can be subject to performance metrics in construction of “maritime mobilization forces” (such as maritime militia) when considered for career advancement.

October 2016: Sansha Maritime Militia in the Paracels prepare to conduct a joint patrol with troops of the Sansha PLA Garrison (Wen Wei Po).

A Patriotic Employment Release Valve

The reduction in PLA Army personnel by 300,000 announced in September 2015 will likely exacerbate the growing number of PLA veterans who feel neglected by China’s government and society. Recent protests in Beijing by veterans groups highlight the fact that provincial MDs and governments are ill-prepared to deal with the newly demobilized troops that are currently or will soon be deprived of their previous employment. PAFDs are the front-line military departments that handle veteran’s affairs and work to reintegrate veterans into society. Responsible for organizing and managing local militia units, the thousands of county PAFDs across China can easily funnel these veterans into various militia units, affording these former soldiers a new chance to serve in leadership positions among the militia force. Indeed, news coverage of Lingshui County states more and more demobilized veterans are entering the maritime militia, becoming “the ‘vanguard’ in maritime rights protection.” The Hainan MD thus occupies advantageous terrain for converting demobilized PLA troops into a new grassroots force for furthering Chinese maritime claims in the South China Sea.

The Sansha Maritime Militia fleet exemplifies this new trend. Our installment on this unit documented how this new “state-run militia fishing fleet” functions primarily as a force for maritime rights protection. A break from the more traditional mode of maritime militia construction, as exemplified by the Tanmen Maritime Militia, this new fleet is manned by professional mariners, law enforcement, and PLA veterans who earn substantial salaries regardless of fishing catch performance. Chinese sources anticipated correctly that most of this fleet’s 84 vessels would be delivered by the end of 2016. In December 2015, the Guangzhou Taicheng Shipbuilding Industry Co. Ltd. featured one such vessel on its website, whose interior it furnished as a subcontractor following its construction by Xijiang Shipyard. The accompanying description stated that the vessel had a “weapons and equipment room” (武备库) and an “ammunition store” (弹药库). Open sources reveal this vessel, Qiongsanshayu 000212, to be part of the new fleet of Sansha Maritime Militia vessels delivered to the state-run Sansha City Fisheries Development Company, which operate under the guise of fishing. Details available in other open sources, some of which show the Sansha Maritime Militia training to load “light weapons” onto the deck of these new vessels, help confirm the intended roles and identities of this new militia fleet.

Openly available AIS data has identified all of the 84 Sansha Maritime Militia vessels operating in the South China Sea. Intermittent AIS transmissions (available via the website Marine Traffic) indicate that at least seven different Sansha Maritime Militia vessels were present at Scarborough Shoal at varying times, and 17 more vessels observed at Mischief Reef. While vessels may transmit AIS signals when operating singularly or in small groups, maritime militia vessels most likely move in larger groups: the Sansha Maritime Militia fleet comprises six companies, which generally operate as units. Openly available satellite imagery (e.g., from Google) also shows such vessel groups moored at Mischief and Subi reefs. In September 2016, the Philippine Ministry of Defense released photos of Sansha’s maritime militia vessels at Scarborough Shoal. Despite Philippine statements in October 2016 that PRC ships had left the shoal, AIS data reveal that Sansha Maritime Militia and CCG vessels were present there as recently as February to mid-April 2017. As this report went to press, AIS data and satellite images confirmed the presence of Sansha Maritime Militia vessels at Scarborough Shoal, Fiery Cross Reef, Mischief Reef, and Subi Reef.    

7 September 2016: The Philippines released photos showing two Sansha Maritime Militia vessels present at Scarborough Shoal.
A Google Earth image dated 30 April 2016 shows a Sansha Maritime Militia vessel alongside a China Coast Guard cutter at the recently built wharf at Subi Reef.

Sansha City Fisheries Development Company, the commercial name for its state-run militia fleet, was established quietly with little mention in the PRC press. This contrasted markedly with the often widespread fanfare and in-depth reporting on even minor economic achievements by Sansha City and Hainan’s marine economy. After all, local officials have every incentive to promote their advancement by trumpeting economic development, a key performance metric—unless instructed otherwise for information security reasons. The rapid construction of this militia fleet since its establishment in February 2015 raises the prospect of China replicating this new model of maritime militia building elsewhere, perhaps in the East China Sea. As part of any Chinese effort to prepare for East China Sea operations, one might imagine an analog to the Sansha Maritime Militia in another archipelagic municipality, such as Zhejiang Province’s Zhoushan City. It is clear that China has not abandoned the standard model of building the maritime militia out of existing commercial fishing and shipping fleets. However, the combined pressures of a commercial shipbuilding slump, large numbers of unemployed veterans reentering civil society, and benefits to political and military careers in local officials may make the Sansha Maritime Militia model attractive to other provinces.

With numerous projects and investments, Hainan Province is striving to become a global tourism destination. Major influxes of Chinese and foreign tourists toting smartphones and digital cameras make the Hainan MD’s task of ensuring security and secrecy in its military facilities increasingly arduous. Sanya City, for instance, is not only a popular vacation destination but also contains the Yulin Naval Base, a leading home for China’s secretive ballistic-missile submarine force. One of the militia’s missions is the security of important infrastructure and operations such as key ports or coastal patrols. Militia personnel also reportedly perform security functions to protect military facilities and national defense construction projects.

Finally, an additional security function of Hainan’s advanced maritime militia units is escorting China’s growing fleet of research vessels that perform hydrographic and geologic surveys. We introduced one example in our installment on Sanya’s maritime militia: the Sanya Fugang Fisheries Co. Ltd.’s 30-day escort mission for China National Offshore Oil Corporation’s April 2013 exploration in the Zhongjiannan basin south of Triton Island. This was the location of the HYSY-981 oil rig incident a year later. In another example, the Guangzhou Marine Geological Survey Office stated on its website in an undated article that “for years, our office has hired fishing vessels as escorts during every seismic and drilling operation for the protection of underwater cables and to ensure the smooth and safe progress of operations.” U.S. Naval War College professor Ryan Martinson has made public some of the most recent escort operations conducted by fishing vessels for PRC survey vessels. While the extent of the Hainan Maritime Militia’s continued involvement in these escort operations remains unclear, it appears to be a growing mission for China’s maritime militia overall and worthy of additional research.      

Conclusion: People’s War Turns Seaward

This series has surveyed only a small portion of China’s total maritime militia force, the world’s largest. Part 1 examined national militia development guidelines and how they were translated by Hainan Province during its recent spate of maritime militia construction. Part 2 explored challenges confronting Hainan Province in its development of maritime militia forces and some of the solutions introduced to address them. Hainan Province is a key maritime frontier province, charged with administering all of Beijing’s expansive South China Sea claims. Yet Hainan as a province and military district does not build its maritime militia in isolation. It is, rather, one of many coastal provinces that raise such forces. In fact, other more economically and technologically advanced provinces—such as Guangdong and Zhejiang—possess greater socioeconomic bases on which to develop larger-scale, more technically sophisticated maritime militia units. Provinces construct militia forces in response to national militia guidelines under a dual-responsibility system between government/Party and PLA leaders. The resulting maritime militia fleets are thus made available to operate alongside the PLA Navy (PLAN), China Coast Guard, as well as other provinces’ maritime militia forces. Case in point: China’s defense of its HYSY-981 oil rig in 2014. PLA senior colonel and Professor Jiao Zhili of the Nanjing Army Command College’s National Defense Mobilization Department described the event as mobilization for military struggle: “during the ‘981’ offshore platform’s struggle with Vietnam in the South China Sea, the emergency mobilization of militia from Hainan, Guangdong, and Guangxi to the front lines on the perimeter was a major strategic deterrent for Vietnam.” The mobilization orders for this event originated in the former Guangzhou Military Region, now the Southern Theater Command. While maritime militia units are raised and directed by individual provinces, they fulfill roles within a grander regional military structure.

These forces are often discussed by outside observers in reference to China’s gray zone operations, while Chinese authors often invoke the tradition of People’s War when discussing the militia. The study of these irregular maritime forces begs the question of whether we are witnessing a form of “Maritime People’s War.” In Chinese strategic thought, People’s War is regarded as the mixed use of regular and irregular forces in peacetime (and wartime if necessary) to overcome a superior adversary (or multiple adversaries) through the adroit use of various tactics, deceit, and protraction. The PLA continues to uphold the core concept of People’s War, adapting and evolving specific elements of the strategy to suit modern strategic and operational needs. China’s 2006 Defense White Paper, for instance, states that the PLAN is “exploring the strategy and tactics of maritime people’s war under modern conditions.” As current strategic considerations call for prioritizing the enhancement of China’s maritime defenses, the PLA is likely expanding the operational space of People’s War to cover Chinese maritime claims to the maximum extent feasible.

For China’s provinces, the MD system is described as the “practical application of people’s war thought in the military system” and an important channel through which civilian-military integration efforts are implemented. Hainan MD Commander Zhang Jian also describes the missions of the Hainan MD’s maritime militia in terms of a Maritime People’s War. He advocates “us[ing] maritime people’s war as a means to declare sovereignty, participate in development, cooperate with law enforcement, and support combat operations.” Zhang outlined how the maritime militia will conduct missions within joint military-law enforcement-civilian defense operations, essentially making combined use of the main forces of the PLA services and the local forces of the provinces. Such amalgamation is a defining feature of People’s War. The incidents this series has explored illustrate the multifarious tools that China utilizes in order to seize tactical advantages envisioned in traditional concepts of People’s War. Provinces and their local forces undoubtedly comprise the fundamental elements of People’s War, and remarks by Chinese officials like State Councilor and Defense Minister General Chang Wanquan’s in August 2016 suggest official endorsement of such strategies. This raises questions beyond the scope of this series that require further research, particularly in reconciling China’s continued national tradition of militia building with the realities of modern warfare. This topic is certainly not absent from debate in China, as analysts wrestle with the adaptation and evolution of People’s War to suit supporting roles for the PLA of today. As China adapts a time-honored concept to serve growing maritime security interests, the maritime militia is proving critical to its operationalization.

At the very least, this series demonstrates the widespread local mandate for maritime militia building in Chinese provinces such as Hainan. Maritime militia building is directed by official policy in China’s coastal provinces. Most coastal counties and cities raise and sustain their own maritime militia units according to the scale of their respective marine economies. While the Chinese government may not often admit openly and outwardly to using its maritime militia forces to support its objectives at sea, the voices of key stakeholders inside China and the central guidance passed down to the provinces reveal much about plans to construct and use these forces. Regardless of how these forces are characterized, provinces use them to protect China’s claimed maritime rights and interests and to support an increasingly blue-water-capable PLAN by dispatching greater numbers of militia personnel away from their shorelines to increase China’s strategic depth at sea.

Numerous PLA authorities, including Commander Zhang Jian, articulate the value the presence of fishing vessels has in all of waters claimed by China to demonstrate sovereignty and protect maritime rights and interests. Deputy Director Xu Kui of the National Defense University’s National Defense Mobilization Research Department explains how the maritime militia is a key force under China’s new “military strategic guideline” of preparing for maritime military struggle, and that it must “maintain a regular presence in disputed waters.” Echoing others, Xu cites the longstanding success of the Tanmen Maritime Militia in preserving Chinese presence in the Spratlys. The Tanmen Maritime Militia offers living testimony to how even a single township or county can impact the status quo in maritime East Asia. This consideration is not lost on China’s leaders, and Hainan’s leading maritime militia units represent prime examples of the diverse avenues of force that Chinese provinces can develop and contribute in the service of overall national maritime ambitions.

For all these reasons, Hainan’s maritime militia—both the bulk of its forces overall and the elite vanguard units probed deeply in this series—will remain a key component of China’s statecraft and security efforts the South China Sea: as a standing, front-line force, with its leading units celebrated as models for others to emulate.

Conor Kennedy is a research associate in the China Maritime Studies Institute at the U.S. Naval War College in Newport, Rhode Island. He received his MA at the Johns Hopkins University – Nanjing University Center for Chinese and American Studies.

Dr. Andrew S. Erickson is a Professor of Strategy in, and a core founding member of, the U.S. Naval War College’s China Maritime Studies Institute. He serves on the Naval War College Review’s Editorial Board. He is an Associate in Research at Harvard University’s John King Fairbank Center for Chinese Studies and an expert contributor to the Wall Street Journal’s China Real Time Report. In 2013, while deployed in the Pacific as a Regional Security Education Program scholar aboard USS Nimitz, he delivered twenty-five hours of presentations. Erickson is the author of Chinese Anti-Ship Ballistic Missile Development (Jamestown Foundation, 2013). He received his Ph.D. from Princeton University. Erickson blogs at www.andrewerickson.com and www.chinasignpost.com. The views expressed here are Erickson’s alone and do not represent the policies or estimates of the U.S. Navy or any other organization of the U.S. government.

Featured Image: February 2017: Head of the Lingshui County PAFD Colonel Xing Jincheng, in plain clothes, speaks to the maritime militia under his command (CCTV News).