South China Sea Bully: China's "People's War at Sea"

Armed Chinese "fishermen" attack Vietnamese fishing boats as reported by Tuoi Tre News here:

A Vietnamese fishing boat from the central province of Quang Ngai was operating in the Vietnamese waters in the East Vietnam Sea on Friday when it was reportedly attacked by three Chinese ships, local authorities said.

These Chinese ships got close to the QNg 96507 TS, with 16 fishermen on board, when it was fishing off Vietnam’s Hoang Sa (Paracel) archipelago, the authorities of the province’s Ly Son District said on Saturday, citing a report from the attacked boat’s captain, Nguoi Lao Dong (Laborer) newspaper reported.

Crew members of the foreign ships, which were in white and coded with 46102, 45101 and 37102, got on board the local boat, with AK assault rifles and electric batons in their hands, said captain Nguyen Loi.

These Chinese then beat a number of the fishermen with their weapons, causing injuries to them, Loi said.

The foreigners also smashed navigation equipment and fishing tools on the local ship, and took away all the aquatic products from it.

This report is covered by the U.S. Office of Naval Intelligence in its Worldwide Threats to Shipping report of 6 August 2015 (pdf).

In most of the world, fishermen do occasionally spar over fishing areas, but this reported incident has some interesting characteristics. First, the Chinese fishermen had weapons - "AK assault rifles and electric batons" - and this, with the Chinese, heavily implies some sort of official sanction in having fishing boats so equipped - though many near coastal fishing boats do carry some sort of weaponry to fend off sea robbers, this has the feel of something more.

In addition, as well set out by James Kraska in his Diplomat article, "China’s Maritime Militia Upends Rules on Naval Warfare: The use of fishing vessels as a maritime militia has profound legal implications":

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

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

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

Professor Kraska is also author (with Michael Monti) of a recent U.S. Naval War College (NWC) study The Law of Naval Warfare and China’s Maritime Militia (pdf):

China operates a distributed network of fishing vessels that are organized into a maritime militia to support the People’s Liberation Army Navy (PLAN). The militia is positioned to conduct a “people’s war at sea” in any futureconflict. This strategy exploits a seam in the law of naval warfare, which protects coastal fishing vessels from capture or attack
unless they are integrated into the enemy’s naval force. The maritime militia forms an irregular naval force that provides the PLAN with an inexpensive force multiplier, raising operational, legal and political challenges for any opponent.
***
In a meeting last year, a former admiral of a blue water naval force in Northeast Asia said off the record that Chinese fishing vessels operate with military personnel on board — a point seconded by the retired chief of navy of a Southeast Asian State now at odds with China over maritime claims.
***
China believes that a civilian militia composed of fishing vessels may be a less provocative means of promoting its strategic goal of regional hegemony. During peacetime, this approach is likely correct since fishing vessels are not instruments of war. Opposing States are less inclined to mobilize to resist fishing vessels in the same way they would resist foreign warships. (emphasis added)

Well, that may be true to a point. But it seems to me to be a very short step from identifying the Chinese bullying tactics and the placement by the PLAN of armed troops on fishing boats for those threatened states to respond by placing their own armed military or quasi-military forces onto to their own fishing fleets and thereby potentially escalating matters with some rapidity.

I highly recommend reading the two Kraska pieces in their entirety - these are not dry law review articles concerning the meaning of the placement of an "and" instead of an "or" in some part of the Bankruptcy Code, but rather the analysis of Chinese efforts to push the limits of international law (not that international law seems to restrict great powers all that much, a cynic would say).

The greater point is there is more to worry about than just interference with regional fishing fleets in China's actions.

Final Chapter of NYTimes "The Outlaw Sea" - "A Renegade Trawler, Hunted for 10,000 Miles by Vigilantes"

Ian Urbina finishes up his four part series on "The Outlaw Sea" with A Renegade Trawler, Hunted for 10,000 Miles by Vigilantes:

For 110 days and across two seas and three oceans, crews stalked a fugitive fishing ship considered the world’s most notorious poacher.

The "vigilantes" are the Sea Shepherd society and two of its vessels. Reminds me of Oscar Wildes' quote about fox hunters:

"Fox hunting is the unspeakable in pursuit of the inedible."

In this case, one trawler was pursued. You could probably do a whole series on illegal Chinese fishing ships. See this BBC report, China illegally fishing off W Africa - Greenpeace:

More than 70 Chinese vessels have been found fishing illegally off the coast of West Africa, Greenpeace says.

Using information gathered from 2000 to 2014, Greenpeace said Chinese companies had fished in prohibited grounds or under-declared their catches.

Boats either turned off their identification systems or transmitted false location data, it added.

One company's fishing capacity off the coast of Guinea Bissau is said to have exceeded its authorised limit by 61%.

See also here:

Chinese vessels operating in foreign waters caught, on average, 4.6 million tons of fish annually between 2000 and 2011, cumulatively worth $12 billion, the report estimates. That includes an estimated 3.1 million tons of fish caught off African coasts, 80 percent of which was unreported.

“China’s massive distant-water fishing fleet is problematic for a few reasons, the most prominent being that a significant portion of its catch is illegal, unreported, or unregulated,” the Woodrow Wilson Center’s Katie Lebling wrote in a Nov. 11 research brief. That means it’s impossible to ensure sustainable fishing practices.

The report by Ms. Lebling is here:

Also worth reading The Status of Fisheries in China: How deep will we have to dive to find the truth?
Poor oversight by the Chinese government and lack of significant outside pressure to change are the main drivers of current practices, which are far from sustainable and have significant side effects for some of the world’s poorest countries.

If these vigilantes start taking on the Chinese fishing fleets, it might get interesting.

Interesting Reading on Law, Pirates and Private Maritime Security Forces

Worth reading the original to see part of the complexity the maritime community has to deal with in attempting to keep its ships safe and secure, here are selections from an article from Maritime Executive by Simon O.Williams, LLM dealing with  International Legal Framework Governing Maritime Security:

***
While UNCLOS [United Nations Convention on the Law of the Sea] includes several articles regulating state responses against piracy (Articles 100 to 107 and 110), the Convention provides no foundation or guidance for private efforts in combating piracy. Instead, there are many fragmented treaties, conventions, legal principles and soft law instruments that supplement UNCLOS.
***
The Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA) Convention and Protocol was designed to fill voids in international law necessary to combat other threats to human life and security of navigation and commerce at sea not fully prescribed under UNCLOS. It requires states to pass legislation making unlawful piratical and terrorist acts against navigation serious criminal offenses under their national laws.
***
In 2005 the 1988 SUA Convention and Protocol were amended to become the 2005 SUA Convention and the 2005 SUA Protocol. The 2005 SUA framework contains three new categories of offenses.

         - Using a ship as a weapon or as a means for committing terrorist acts.
         - Proliferation of weapons of mass destruction (WMD) on the high seas.
         - Transporting a person alleged to have committed an offense under other                  UN anti-terrorism conventions.
***
SOLAS
***
In relation to private maritime security, a main legal conundrum with SOLAS is whether employing armed security on board a vessel can deprive the ship’s Master of their overall responsibility to control all actions aboard their vessel, as required by SOLAS. If so, this would be in contradiction of SOLAS Reg 34-1 and Reg 8, Chapter XI-2.

Many coastal states have taken additional steps to clarify the relationship between Master and privately contracted armed security personnel (PCASP), amending national legislation to reaffirm the Master’s overall authority to authorize PCASP targeting, deployment and target engagement (specifically, weapons discharge of any-kind). In an effort to resolve this dispute, the largest international shipping association, the Baltic International Maritime Council (BIMCO), has released a commercial contract template, GUARDCON, which establishes this clear line of superiority with the ship’s Master remaining in command at all times.
***
U.N. Firearms Protocol

In addition to the Law of the Sea framework, maritime security providers must also navigate the complex international legal regime of the U.N. Firearms Protocol, a legally binding agreement which entered into force in 2005, currently signed by 109 states plus the European Union, to ensure armed security provider, or those importing/transporting weapons, carry the required port and transit state permits.
***

Making this matter more complicated in recent years, floating armories have emerged as offshore supply stores delivering weapons and crews to client vessels, circumventing port and coastal state regulations and bypassing the need for import/export compliance. Of course, this has opened a Pandora’s box in terms of unaccounted-for firearms. In other circumstances, PCASP have jettisoned weapons into the sea after completing missions in order to sidestep import/export regulations reaffirmed in the Protocol.

The Principle of Self-Defense

Of primary importance to the legal reasoning behind the private use of force at sea in counter-piracy is the principle of Self-Defense.
***
“Customary international law, among other legal authorities, provides that the use of force is restricted to cases of necessity or self-defence, i.e. cases in which there is no other way out and in which the requirements of necessity, reasonableness and proportionality are observed in connection with the use of force. Such customary international law is binding […] The use of force by private security guards must therefore be based on the general, internationally accepted principles of self-defence.”
***
Moreover, individual guards or any persons aboard a vessel, for that matter, have the right to self-defense of their person. This is a fundamental human right. If pirates or other assailants are directing weapons’ fire in their direction, for example, and they believe their lives to be in grave danger, the same right of self-defense for vessels applies at the personal level.

Doctrine of Necessity

After being discussed for decades in international law circles, the Doctrine of Necessity was finally incorporated into the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts.

Article 25 of this document provides that an otherwise illegal act, such as using force to neutralize a terrorist or pirate attack at sea, can be justified if it meets two criteria.
The act was the only means of safeguarding an essential interest of the state against a grave and imminent peril.

The act did not seriously impair an essential interest of the state toward which the obligation existed.
***

As with any set of laws meant to create order out of chaos, one question remains - who will enforce the law and by what means?  It's also worth noting that pirates seem to have little difficulty with the issues of the U.N. Firearms Protocol.

It Is to Laugh: "European Court Condemns France's Treatment of Somalian Pirates"

European Court Condemns France's Treatment of Somalian Pirates

The European Court of Human Rights (ECHR) demanded Thursday that France pay thousands of euros to the 10 Somalian pirates arrested after they diverted two boats in 2008.

The Court stated that although the French Army was entitled to detain the pirates on the sea, it remained compelled to present them immediately to a judge as soon as they landed on French soil.

Therefore, the court asked the country to pay damages ranging from US$2,000 to US$6,000 to each of the 10 pirates involved in the taking of the French boats Le Ponant and the Carré d'As in the Gulf of Aden in April and September 2008.

You might recall the Russians may have had a different policy at least in 2010. See Russian navy ‘sent Somali pirates to their death’:

Ten captured Somali piracy suspects are thought to have died after the Russian navy released them in an inflatable boat without navigational equipment, Russian media are reporting. An unnamed source told Russia's Interfax news agency yesterday: "It seems that they all died."

Inconvenient that. For the pirates

I would guess the Euro Courts probably don't like the yardarm and rope idea much either.

Cruise Ships: Ways to Kill an Industry

You could blame the "greedy" passengers for making over-inflated claims and outrageous demands as set out in this lawsuit report, "Carnival cruise passengers sue seeking $5000 per month for life" from MarineLink:

A group of passengers suing Carnival cruise lines for damages after an engine fire left their ship adrift for days are asking the company to pay $5,000 a month for the rest of their lives for medical bills and mental anguish.

A lawsuit brought by 33 passengers of the ill-fated 2013 voyage could change how cruise lines insulate themselves from legal actions, according to maritime legal experts.

Or, if the fine print on the tickets they bought gets tossed as a "contract of adhesion" by sympathetic judges, then you could blame the cruise lines for overreach in attempting to avoid liability for most everything under the sun and above the sea.

You could blame the engineering of the cruise ships or perhaps their construction or maintenance.

You might expect lawsuits on such matters to be lined up end to end in the federal courts . . . and you would just be seeing the crowd chasing the visions of pots of money at the end of the cruise ship rainbow.

However it shakes out, if these cases succeed, I suspect that the cruise business will decline in capacity and increase in cost, which usually spells doom for an industry.

$5000 a month for life? Nice retirement plan. Could probably afford to take some cruises . . . oh, wait.