Tensions in the South China Sea have been escalating for more than a decade, culminating in recent clashes between China and the Philippines. A key player in these events is China’s massive fishing fleet, which operates in a military gray zone adjacent to the China Coast Guard and near the People’s Liberation Army Navy (PLAN). Recent developments indicate that China is becoming more transparent about the true nature of its People’s Armed Forces Maritime Militia (PAFMM).
Under international custom and law, these fishing vessels cannot be classified as warships, yet they enjoy the sovereign immunity of their flag state. This is precisely why China has organized them—by some estimates, up to 200,000 vessels—into the PAFMM. Any action against these fishing vessels by a warship or merchant vessel of another state is expected to be condemned by the Chinese government as hostile and unlawful, no matter how justified.
Considering China’s hegemonic ambitions, its maritime militia should be regarded as an auxiliary of the PLAN. The United States and other nations must respond accordingly if the PAFMM continues to undermine the rules-based international order. Furthermore, the United States and its allies should consider invoking the right to issue letters of marque and reprisal if China maintains the ambiguous status of its “little blue men.” China has opened a new front in naval warfare, and the United States must counter this threat to the freedom of the seas.
Defining a Warship Under UNCLOS
The United Nations Convention on the Law of the Sea (UNCLOS) defines a warship as a “ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State, and manned by a crew under regular armed forces discipline.” The United States extends sovereign immunity to “other vessels owned by the United States, U.S.-flagged bareboat and time-charter vessels, and voyage charter vessels for the duration of government service,” categorizing them similarly to regular gray-hull naval auxiliaries—vessels bearing the USNS prefix and blue-and-yellow Military Sealift Command (MSC) stack markings.
The MSC also operates some unmarked auxiliaries, not painted haze gray like contemporary warships. Nonetheless, the United States asserts sovereign immunity for these vessels, and flying U.S. colors satisfies UNCLOS’s “external markings” requirement.
Hybrid Crews and Warship Status
The United States has made common use of hybrid crews, combining civilian mariners (CivMars) with Navy service members under the operational command of a commissioned officer. This raises two points regarding the definition of warships and auxiliaries:
- A warship need not be crewed solely by full-time, professional military sailors working for a regular armed force. Civilians operating a navy vessel, even if they do not directly handle weapon systems, are integral to the ship’s mission.
- The operation of “civilianized” ships does not negate overall Navy control, as opposed to some commercial or nonmilitary governmental entity. Because a commissioned officer is the master of the vessel, CivMars are sworn to obey, making them subject to the regular discipline of a competent military authority.
Furthermore, the absence of an officer on board a warship or auxiliary does not negate its status. The United States explicitly states: “U.S. Navy and U.S. Coast Guard vessels which, except for the lack of a commissioned officer as commanding officer, would be warships, are also auxiliaries.” The U.S. military empowers noncommissioned officers to take independent, decisive leadership roles, and some Navy and Coast Guard boats do not carry commissioned officers, despite being armed vessels conducting warship operations. A reasonable interpretation of UNCLOS indicates that a vessel may be a warship or auxiliary if it is under a nation-state’s military command structure. Therefore, a boat launched from a warship with only seamen and noncommissioned officers on board is no less a sovereign vessel than the ship from which it launched.
The PAFMM: Fishing Boats or Military Auxiliaries?
One consideration for the PAFMM is whether a militia fishing vessel can be marked as enjoying sovereign immunity. Militia vessels carry Chinese flags and names in Chinese script. Holding the PAFMM to the same standard used by the United States to judge other nations’ navies, the fleet meets the standard of a naval auxiliary in this regard. The second factor is the degree to which the vessel is under the control of a commissioned officer. By U.S. standards, the PAFMM’s integration and interoperability with the China Coast Guard and PLAN suggest there is likely an officer coordinating efforts. Additionally, China has tacitly admitted that a vessel operating under the PAFMM does so at the behest of state and military. In 2006, the Chinese government issued a white paper stating, “China’s militia is under the unified direction of the State Council and the [Central Military Commission], and the dual leadership of local Party committees and governments as well as the military commands.” This document makes additional references to building up naval militia forces and better training and equipping them to operate as an integral part of the PLAN.
China also employs a concept called “people’s war,” which is similar to World War II–era U.S. policies integrating all facets of the national economy with military objectives. China takes this further by using its regular armed forces to conduct civilian work and by training civilians to perform military tasks. This concept has been ingrained in the PAFMM since its formation in the late 1940s to prevent a reinvasion of mainland China by Kuomintang forces. Although the militia may not be in the regular service of the PLAN, it is China’s policy that “the principle of combining regular work with military training and combining peacetime needs with wartime needs are observed in the building of the militia.” The Chinese merchant marine fishing crews are regularly subjected to military training under this policy, indicating they are under a form of military discipline sufficient to compel compliance and carry out orders.
Applying the standard to which the United States holds itself, a PAFMM vessel is a sovereign naval auxiliary of China when conducting any operation not directly related to fishing. However, the act of fishing as an instrument of state power can be reconsidered in a different light—one the United States has a unique ability to counter.
Privateering and the PAFMM
Privateering is generally defined as converting a privately held ship into a naval auxiliary and remunerating that vessel’s owners and crew with the profits from selling goods they capture. Although this practice was largely confined to Atlantic powers during the Age of Sail, reevaluating the actions of the PAFMM according to U.S. conventions invites comparison.
China’s “little blue men” are indisputably instruments of national power. Recent events combined with China’s position on militias are integral to the Chinese expansionist scheme, much like the British East India Company wielded military and political power on behalf of the British Empire. Even before the firm was nationalized, Queen Elizabeth I “encouraged the development of this [privateer] supplementary navy” to seize Spanish treasure while remaining officially distant from the means taken to effect capture. In the case of the PAFMM, a key distinction is that there is no known prize court or compensation awarded directly to the fishing crews as a reward for capture.
If the PAFMM are just innocent fishing vessels co-opted by the government to its own end, China’s use of the PAFMM to expand its exclusive economic zone (EEZ) nevertheless benefits the militia by opening new fishing grounds from which they may profit. Should a PAFMM vessel prove to be little more than a PLAN ship dressed as a fishing boat, the comparison to privateering is considerably stronger. Replace Spanish gold with the oil, mineral, and seafood resources inherent in a nation’s EEZ, and the PAFMM is, by definition, privateering against rival nations. The fishing vessels “colonize” lands and strengthen Chinese claims over those lands, thereby expanding China’s EEZ. They take direct action against the national vessels of other states and reinforce China’s circular claims of ownership by taking harvest from those waters, which could not be done legally unless those waters were already under lawful Chinese control.
Policy and Action
The United States and its allies in the Indo-Pacific must adjust policy to better understand the PAFMM’s legal status. If it is determined that the PAFMM are naval auxiliaries enjoying sovereign immunity, they cannot be interdicted on the high seas but may be ejected from another nation’s territorial sea should they breach innocent passage. Violations of innocent passage include not only any fishing activity but also the “threat or use of force” against another nation’s sovereignty and territorial integrity, including aggressive maneuvers intended to intimidate or control the navigation of another nation’s warships or merchant marine. A strong, unified policy of ejecting PAFMM vessels, either under escort or by force, from internationally recognized waters under another nation’s jurisdiction must be a cornerstone of regional agreements going forward.
Should China disavow the actions of its fishing fleet, they may be considered privateers, subject to interdiction if they carry out acts of piracy in the view of opposed governments. Law enforcement organizations should conduct visit, board, search, and seizure operations against suspected PAFMM privateers, either forcing China to claim immunity (thereby exposing them to credible accusations of military actions against foreign nations without declaring war) or disrupting and discouraging illegal militia activity.
A holdover from antiquity presents another option: issuing letters of marque and reprisal. Although the maritime powers of 1856 outlawed the practice in the Paris Declaration, the United States has consistently refused to ratify that treaty and retains that power in Congress under the Constitution. The most recently aggrieved nation in the South China Sea, the Philippines, has a constitutional legislative power, similar to the U.S. War Powers Resolution, declaring that in a “national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy.” Should either country issue letters of marque and reprisal (which must include prize courts to surrender captures to public ownership if warships are so employed), China again would have to either claim immunity or tacitly admit the militia vessels were acting in a piratical fashion, undermining territorial claims based partly on their actions.
Prize courts would have to establish whether the militia vessel was a valid target for reprisal based on evidence of unwarranted and illegal aggression, with more immediate and tangible effects than existing admiralty courts. Letters of marque and reprisal should be narrowly targeted against specific offending PAFMM vessels. Warships or private vessels (in case of capture or retaliation as a means of defense by a merchant marine vessel) should be authorized to execute these letters, removing the guise of neutrality that has enabled the PAFMM to successfully carry out its mission. It also would reduce the PAFMM’s operational capability, no matter the immediate fallout and eventual outcome of this policy change.
Regional and International Implications
The South China Sea is one of the world’s most critical maritime regions, through which a significant portion of global trade passes. The escalating tensions in this region have significant implications for regional and global stability. China’s actions, particularly through the PAFMM, have far-reaching consequences for international maritime law, regional security, and global trade.
China’s expansive claims and aggressive behavior in the South China Sea are part of a broader strategy to assert dominance over the region. This strategy includes the construction of artificial islands, the militarization of disputed areas, and the use of the PAFMM to enforce Chinese claims. These actions have been met with condemnation and pushback from neighboring countries, including the Philippines, Vietnam, Malaysia, and Indonesia, as well as from extra-regional powers such as the United States, Japan, and Australia.
The United States has responded to Chinese aggression by increasing its military presence in the region and conducting freedom of navigation operations (FONOPs) to challenge China’s excessive maritime claims. These operations assert the right of all nations to navigate through international waters, including areas claimed by China as part of its territorial sea. The United States has also strengthened military alliances and partnerships with countries in the region to counterbalance Chinese influence.
The Role of ASEAN and Regional Cooperation
The Association of Southeast Asian Nations (ASEAN) plays a crucial role in addressing the South China Sea disputes. ASEAN member states have varying interests and claims in the South China Sea, and their collective response to Chinese actions is essential for regional stability. However, achieving a unified stance has been challenging due to China’s economic and political influence over some ASEAN members.
ASEAN has made efforts to negotiate a Code of Conduct (CoC) with China to manage disputes and prevent conflicts in the South China Sea. While progress has been slow, the CoC aims to establish norms and guidelines for the behavior of states in the region, including the PAFMM. A robust and enforceable CoC could help mitigate tensions and promote peaceful resolution of disputes.
Regional cooperation and confidence-building measures are also vital for maintaining stability. Joint naval exercises, maritime security initiatives, and dialogue mechanisms can enhance trust and reduce the risk of accidental conflicts. ASEAN-led forums, such as the ASEAN Regional Forum (ARF) and the East Asia Summit (EAS), provide platforms for dialogue and cooperation on security issues, including the South China Sea.
Legal and Diplomatic Efforts
International law, particularly UNCLOS, provides the legal framework for resolving maritime disputes. The 2016 ruling by the Permanent Court of Arbitration in favor of the Philippines’ claims against China was a landmark decision, rejecting China’s expansive claims based on the nine-dash line. However, China has refused to recognize the ruling, complicating efforts to resolve the disputes through legal means.
Diplomatic efforts, including bilateral and multilateral negotiations, are crucial for managing and resolving disputes. The involvement of international organizations, such as the United Nations, can help mediate conflicts and uphold international law. The role of major powers, including the United States and the European Union, in supporting a rules-based order in the South China Sea is also essential.
Economic and Environmental Implications
The South China Sea is rich in natural resources, including fisheries, oil, and gas. The economic stakes are high, as control over these resources can significantly impact the economies of the claimant states. Overfishing and environmental degradation are serious concerns, exacerbated by the activities of the PAFMM and other fishing fleets.
Sustainable management of marine resources is critical for the long-term stability and prosperity of the region. Regional cooperation on environmental protection and resource management can help address these challenges. Initiatives such as joint fisheries management and marine conservation programs can promote sustainable use of resources and reduce tensions.
The Expanding Reach of China’s Fishing Fleet and Global Maritime Practices: An Analytical Overview
The massive presence of the Chinese fishing fleet in Latin American waters has significantly contributed to China’s status as one of the world’s leading seafood exporters. However, this expansion comes with the dubious distinction of being the worst offender in illegal, unreported, and unregulated (IUU) fishing. Recent developments have seen Chinese vessels subjected to inspections by the U.S. Coast Guard and partner nations in a bid to curb these questionable practices in the Pacific Ocean.
Regulatory Measures and Inspections
In late 2023, thanks to measures implemented by the South Pacific Regional Fisheries Management Organization (SPRFMO), the U.S. Coast Guard began inspecting several Chinese vessels. SPRFMO, a 14-member intergovernmental organization, aims to ensure sustainable fisheries in the South Pacific Ocean. These measures allow member states, including Peru, Chile, and Ecuador, to monitor each other’s fishing and shipping activities to combat overfishing in international waters.
In October, the U.S. Coast Guard conducted its first boardings and inspections on the high seas off the coast of Peru, focusing primarily on Chinese fishing vessels. U.S. Coast Guard Lieutenant Commander Paul Ledbetter, commander of the Coast Guard Cutter Alder, emphasized the importance of responsible fishing practices to ensure the sustainability of marine resources.
Juan Carlos Sueiro, director of Fisheries at Oceana Peru, highlighted China’s resistance to transparency and sustainability laws, including satellite tracking regulations and government subsidies to its distant water fishing fleets. Sueiro underscored the need for international efforts to address Beijing’s non-compliance with global fishing regulations.
Irresponsible Practices of China’s Fleet
China operates the world’s largest distant water fishing fleet, comprising over 17,000 vessels. Each year, approximately 400 Chinese vessels fish near the exclusive economic zones of Peru, Chile, Ecuador, Argentina, and Brazil, primarily targeting squid. The Chinese fleet employs various tactics to evade detection, such as turning off satellite tracking devices, using twin vessels, or flying flags of Latin American countries.
In addition to illegal fishing, other crimes such as slavery, forced labor, smuggling, and human trafficking have been recorded on these vessels. For instance, a U.S. Coast Guard search plane observed the extensive Chinese fishing fleet off the Peruvian coast, revealing the magnitude of the fleet and its activities.
Supply ports and transshipment of squid to large refrigerated cargo ships allow these vessels to remain in Pacific and Southwest Atlantic waters for extended periods. Although China imposes temporary restrictions on its squid fishing vessels in the South Pacific, these measures are not based on sustainability criteria but rather on operational dynamics, commercial considerations, and market fluctuations.
International Response and Strategic Implications
The United States has prioritized assisting South American countries in policing their coastlines to ensure responsible and equitable fishing practices. Lt. Cmdr. Ledbetter stressed the importance of upholding the rules-based order in maritime operations. Over the past five decades, there has been a 50 percent decline in ocean life, with 90 percent of the world’s fish stocks being fully exploited, overfished, or depleted. The Chinese fleet is the largest significant contributor to this depletion.
The transformation of the Pacific into a “huge factory” due to the extensive activities of the Chinese fishing fleet has raised alarms among environmental groups and regional authorities. Chinese vessels report only a fraction of their total catch, as evidenced by the 2017 case in Ecuador, where the Chinese vessel Fu Yuan Yu Leng was caught with 500 tons of illegally caught fish, including vulnerable species.
China’s potential compliance with U.S. inspections could be influenced by its trade relationship with the United States, a major importer of legal seafood. However, experts like Sueiro believe that China will continue its IUU fishing practices discreetly to avoid conflicts and maintain its global image.
Addressing IUU Fishing and Policy Recommendations
Given the magnitude of illegal fishing and its repercussions, the involvement of the U.S. Coast Guard is a crucial measure to establish control mechanisms limiting IUU fishing. Sueiro emphasized the importance of diverse efforts and strategies to combat IUU fishing effectively. China’s strategy to be present in all the world’s oceans necessitates a coordinated international response.
The SPRFMO’s role in fostering cooperation among member states to monitor and regulate fishing activities is vital. Joint efforts, including inspections, data sharing, and enforcement of regulations, are essential to curb the impact of the Chinese fishing fleet on global fish stocks.
Sustainable Fishing and Environmental Impact
The decline in ocean life and the depletion of fish stocks highlight the urgent need for sustainable fishing practices. Overfishing not only threatens marine biodiversity but also undermines the livelihoods of communities dependent on fishing. International organizations and governments must implement and enforce stricter regulations to ensure the long-term sustainability of marine resources.
Environmental groups like Oceana play a critical role in advocating for sustainable fishing practices and raising awareness about the impact of IUU fishing. Collaboration between governments, non-governmental organizations, and the private sector is necessary to develop and implement effective strategies to combat overfishing and protect marine ecosystems.
The presence of the Chinese fishing fleet in Latin American waters and its associated illegal activities underscore the need for a robust international response. Regulatory measures, inspections, and enforcement of sustainable fishing practices are crucial to addressing the challenges posed by IUU fishing. The United States and its allies must continue to support regional efforts to ensure the sustainability of marine resources and uphold the rules-based international order.
By fostering cooperation among nations, implementing effective regulations, and promoting sustainable fishing practices, the global community can mitigate the impact of illegal fishing and protect marine ecosystems for future generations. The continued vigilance and commitment of all stakeholders are essential to achieving these goals and ensuring the health and sustainability of the world’s oceans.
Strategic Moves in the Atlantic: US-Argentina Joint Efforts Against Chinese Illegal Fishing
In an assertive move to combat illegal, unreported, and unregulated (IUU) fishing, the U.S. Coast Guard and the Argentine Navy will commence joint exercises in the Atlantic Ocean starting April 2024. This initiative targets the pervasive issue of Chinese-operated fishing vessels infringing upon the territorial waters of Argentina, Chile, and Peru, which these countries argue is depleting fish stocks and damaging the natural biodiversity of the southwest Atlantic—a crucial nesting and feeding area for seabirds and marine mammals.
Collaborative Maritime Security Efforts
The joint exercises will see the U.S. Coast Guard deploying the destroyer USS James to collaborate with Argentine naval vessels. This partnership aims to curb the invasive fishing practices of the Chinese fleet, which has been under scrutiny for its extensive and often illegal fishing activities. Data from the NGO Global Fishing Watch indicates that nearly 3,000 deepwater fishing boats operate under the Chinese flag globally, with about 400 active in the southwest Atlantic. These vessels primarily target Argentine squid and Patagonian toothfish. Alarmingly, the Chinese vessel activity in this region surged from 61,727 hours per 500 square kilometers in 2013 to a staggering 384,046 hours in 2023.
Since 1986, Argentine authorities have seized 80 foreign-flagged boats, including Chinese and Taiwanese vessels, for illegal fishing in their waters, demonstrating a longstanding commitment to protecting their maritime resources. The upcoming U.S.-Argentina joint cruise is part of a broader, ongoing global effort to bolster maritime security partnerships and address IUU fishing. This initiative aligns with the U.S. Coast Guard’s strategy launched in 2020, which has already seen increased cooperation with Ecuador, Peru, and Chile.
Shifts in Argentina’s Foreign Policy
Analysts suggest that the cooperation between the U.S. Coast Guard and Argentina reflects a significant shift in Argentina’s foreign policy under President Javier Milei, who was elected in November. This shift represents a move away from China and toward strengthening ties with the United States. The recent visits of high-profile U.S. officials, including Secretary of State Antony Blinken and CIA Director William Burns, underscore this realignment.
Gabriela Ippolito O’Donnell, a political science professor at the National University of San Martín in Argentina, emphasized the clear stance of President Milei regarding China. The president has signaled a 180-degree turn in foreign policy, aligning more closely with the U.S., especially if Donald Trump wins the upcoming U.S. elections. This change is evident in the military cooperation and the authorization granted to the U.S. military to operate in Argentine territory, a marked departure from the policies of his predecessors.
The Geopolitical Context
According to Michael Paarlberg, an assistant professor of political science at Virginia Commonwealth University, President Milei’s decision is a strategic move to distinguish himself from previous administrations that were more aligned with China. This growing cooperation with the U.S. fulfills Milei’s promise to reverse the policies of former President Alberto Fernandez and Cristina Fernandez de Kirchner, who had fostered military ties with China.
However, this does not signal a complete severance from China. Analysts like Fabricio Fonseca, an assistant professor of diplomacy at Taiwan’s National Chengchi University, argue that Argentina’s approach under Milei is more about diversifying international relationships rather than entirely breaking away from Beijing. China remains Argentina’s largest trading partner, and the nation’s fishing rights serve as a critical bargaining chip in its geopolitical strategy.
The Environmental and Economic Impact
The rampant IUU fishing by Chinese vessels has profound environmental and economic implications. The southwest Atlantic is a key region for marine biodiversity, and the depletion of fish stocks threatens the ecological balance and the livelihoods of local communities dependent on fishing. Over the past five decades, there has been a 50 percent decline in ocean life, with 90 percent of the world’s fish stocks now fully exploited, overfished, or depleted. The Chinese fleet is the most significant contributor to this depletion.
Max Valentine, campaign director for Oceana, a Washington-based conservation group, likened the Pacific to “a huge factory” due to the extensive activities of the Chinese fishing fleet. These vessels often report only a fraction of their total catch, further exacerbating the problem of overfishing. For instance, in 2017, the Chinese vessel Fu Yuan Yu Leng was caught illegally fishing in the Galápagos Marine Reserve, carrying 500 tons of fish, including endangered species like hammerhead sharks.
Strategic and Sustainable Solutions
Addressing the challenge of IUU fishing requires a multi-faceted approach. The joint U.S.-Argentina efforts are a crucial step towards establishing control mechanisms to limit the expansion of illegal fishing activities. Enhanced maritime security partnerships, stricter enforcement of regulations, and technological advancements in monitoring and surveillance are essential components of this strategy.
Moreover, sustainable fishing practices must be promoted to ensure the long-term health of marine ecosystems. International cooperation and adherence to regulations set by organizations like the SPRFMO are vital to achieving these goals. The involvement of NGOs and conservation groups can also play a significant role in advocating for and implementing sustainable practices.
The joint exercises between the U.S. Coast Guard and the Argentine Navy signify a robust response to the pervasive issue of IUU fishing by Chinese vessels in the southwest Atlantic. This collaborative effort highlights a strategic shift in Argentina’s foreign policy under President Milei, aligning more closely with the United States while seeking to diversify its international relations. The environmental and economic stakes are high, necessitating a comprehensive approach to address the challenges posed by illegal fishing practices. By fostering international cooperation, enforcing regulations, and promoting sustainability, the global community can mitigate the impact of IUU fishing and protect marine biodiversity for future generations.
The Future of the South China Sea
The future of the South China Sea remains uncertain. The complex and multifaceted nature of the disputes requires a comprehensive approach that includes legal, diplomatic, military, and economic measures. The international community must remain vigilant and engaged in promoting a rules-based order and preventing conflicts.
China’s actions in the South China Sea are part of a broader strategy to reshape the regional and global order. The response of the United States and its allies will be critical in determining the outcome of this contest. A strong and united front, based on respect for international law and the principles of freedom of navigation, is essential for maintaining peace and stability in the region.
In conclusion, the escalating tensions in the South China Sea pose significant challenges to regional and global stability. China’s use of the PAFMM and other aggressive tactics underscores the need for a coordinated and comprehensive response from the international community. By upholding international law, strengthening regional cooperation, and maintaining a strong military presence, the United States and its allies can counter China’s ambitions and ensure the freedom of the seas for future generations.
