The Status Of Maritime Militia In The South China Sea Under International Law Perspective

In order to assert its geopolitical claims in the South China Sea region, China has used an unusual method, namely the use of its fishing industry as a reserve power called maritime militias. This research aims to analyze the status of civilian fishing vessels that play a dual role as Chinese troops, as China often sends maritime militias to carry out diplomacy with low-scale violence against other countries in the South China Sea. This research also analyzes the urgency of the legal framework that inevitably regulates the use of maritime militias. This study uses a normative juridical approach by analyzing relevant international instruments, in general the 1982 Law of the Sea Convention, ILC Articles on the Responsibility of States for Internationally Wrongful Acts, and ongoing negotiations between ASEAN and China in the formation of the South China Sea Code of Ethics . The analysis in this study concludes that: first , Chinese maritime militias only have the status and rights of private vessels; Second , the actions of the Chinese maritime militias can be imposed as actions of the state (China); and Third , there is an urgent need for specific regulations regarding maritime militias. ,


Introduction
As one of the claimant State in the South China Sea (SCS), the People's Democratic Republic of China (China) had shown numerous efforts from diplomatic, administrative, economic, to military means 1 to hinder other claimant States 2 in the disputed areas. 3 The claim asserted by China in the SCS is commonly known as the "nine-dash line", an imaginary line adopted to claim 90% 4 area of the SCS. 5 Such controversial claim, as anticipated, was highly opposed by the other neighboring States around the SCS until the Philippines in 2013 finally brought the matter to the Permanent Court of Arbitration (PCA). 6 However, even after the PCA awarded that it approved 14 out of 15 claims from the Philippines and decided all kinds of China's claims as illegitimate as well as inconsistent with the UNCLOS 1982, 7 still, China strongly declared its refusal to conform to the decision. 8 Among all the means resorted by China to assert its claims, what has been considered as unusual is the utilization of more than 200,000 civilian fishing vessels serving as maritime militias. 9 This unconventional force is organized under the People's Armed Forced Maritime Militia (PAFMM) and operated, although unofficially, under the direction of the People's Liberation Army Navy (PLA Navy). 10 As militias, the members of PAFMM provided their service to various activities of China's interest. 11 Essentially, the maritime militias perform the role during peacetime to endorse China's coercive maritime diplomacy against its geopolitical opponents in disputed areas not only on SCS but also in the East China Sea. 12 The main purpose is to harass other States at a certain level of coercion severe enough to manifest its claims but low enough to avoid international armed conflict. The kinds of operations frequently conducted by China's maritime militias are namely presence, harassment and sabotage, escort, and also intelligence, surveillance, and reconnaissance. 13 Principally, China exploits the grey area of international law, where a unit of civilian status is made to serve military purposes while shifting from one role to another from time to time. This strategy certainly provided the PLA Navy an auxiliary force, a force-multiplier with lower cost, and eventually presented China's opponents with an operational, legal, and political challenge in SCS's disputed areas. Such a lacuna in international law as well as the size and scope of the maritime militia have complicated the battlespace, decreasing China's opponents' effectivity in decision-making, and confer a political dilemma which leads to the opponents' hesitation in taking actions against China during this maritime crisis. 14 Such implications had put the opponents in a much weaker and unfair bargaining position at sea where the Navies of other States ultimately find themselves bound to political sensitivity in confronting civilian actors. 15 Regardless of whether or not the maritime militia plays a significant combat role, a number of law scholars now question the actual status of its presence in the disputed area, especially of SCS, 16 and finds it important to determine the status 10 RUSI Journal, Vol. 163, No. 5, 2018, p. 19;Kraska& Monti, Op. cit., p. 456 of maritime militia in order to give it the treatment accorded in international law and knowing where to seek responsibilities upon the damage caused by the conduct of maritime militias.

Research Question
China's maritime militias operate under the absence of law. Hence, to solve the dilemma faced by other States, it becomes necessary to provide answers and analyze the main questions presented: what is the status of China's maritime militias?; how shall they be treated and who shall be held responsible for the damages they caused?. Besides, this paper will also analyze the urgency for a legal framework regulating the maritime militias in the SCS.

Research Objectives
This paper aims to analyze the legal status of maritime militias in the SCS, by assessing its chain of command, characteristics, as well as functions to establish a definite answer on how the other States shall treat them under international law. This paper also analyzes the best legal framework to put an end to the ambiguity exploited by China's maritime militias.

Research Method
This research applies the juridical normative approach, which mainly analyzes relevant legal instruments and literature with regard to the research problem. 17 The paper assesses primarily international law, the national law of relevant States, as well as maritime law literature. The analysis was elaborated through the qualitative method on how the currently available legal norms should be applied to maritime militias in the SCS.

Results and Discussion
First and foremost, it is necessary to discuss what should be considered as 'militia' in international law. While there has not been a treaty-based definition of 'militia' agreed internationally, 'militia' has been commonly defined as a military unit/group of paramilitary comprised of regular citizens rather than professional https://nationalinterest.org/feature/countering-chinas-third-sea-force-unmask-maritime-militia-16860 accessed on 28 January 2020. 17  close proximity to the USNS Impeccable, 29 then continued to impede the path of the Impeccable by stopping directly ahead of the ship, blocking its way 30 and forcing it to a halt. 31 Moreover, they also made attempts to cause damages upon the cables the USNS Impeccable was towing by crossing it in very close distance. 32  fishermen in distress, before eventually rescued by Vietnam. 37 The incident happened around the waters of Reed Bank, which has been decided by the PCA as the Philippines' continental shelf. 38 The fact that both incidents occurred in disputed areas sends a message more than mere fishermen collision at sea.

Status of Maritime Militia under International Law
Maritime militiasoperate on its ambiguity in the perspective of its    manned by a crew which is under regular armed forces discipline". 61 It has to be noted that indeed there exists China's national law regulating militias as a part of their armed forces, 62 however as was elaborated before, the maritime militia does not bear any external mark-hence harder to be distinguished from regular fishing vessels-and are still engaged in fishing activities in between. They also were registered as private fishing vessels, not as vessels belonging to China's government. Conclusively, they may serve the armed forces, but the vessels cannot be considered as warships under the definition in UNCLOS 1982.
In the next articles, warships are often coupled with other kinds of terminology, which are government vessels operated only for non-commercial purposes, 63 and duly authorized ships marked and identifiable as being on government services. 64 These terminologies are presumably provided to accommodate the various ships besides warships usually used by States to support governmental functions or missions. Interpretation upon the names used for vessels used in non-commercial activities indicates that the relevant rules apply as well to ships complimentary to warships, such as troops carrier, supply ships, and hospital ships, along with ships with public functions, like coast guard, icebreakers, and customs ships. 65 However, on the plain wording of Article 96, the words 'government non-commercial' attract a strict cumulative test, which translates into the loss of immunity if such ships were used for any commercial purposes. 66 This interpretation eliminates China's maritime militia and its fluid function at sea. Furthermore, the terminology of 'duly authorized ships marked and identifiable as being on government services' also cannot cover China's maritime militia, having established their lack of the absence of any identification mark to distinguish them as being on government services. fluid characters and functions, shifting from daily fishing to operating under the command of China's armed forces without any formal notice do not mean it can be entitled to the sovereign immunity conferred upon public vessels, but rather denying it of one. Conclusively, China's maritime militia still attracts a more commercial status rather than a public one.

Maritime Militia and State Responsibility
The analysis in the previous chapter probably was not very satisfactory for

Conclusion
China resorted to the utilization of its massive fishing industry as reserve force since it was a cheaper source than sending its navies and warships for exists a direct command for each specific conduct of the maritime militias, to give raise to China's legal responsibility on the damage imposed by its maritime militias'. Unfortunately, there is only very limited information regarding this command. A clearer understanding of the mandate upon China's maritime militias will fancy the opponents with a more definitive conclusion of the analysis.
It is highly suggested that the other claimant states in the SCS, not to overlook this matter of maritime militias. Hence, as the other claimant states in the SCS are ASEAN member States with the negotiation on COC currently on the process, it will work so much in every State's favor if the regulation of maritime militias can be incorporated into the COC of SCS. The clearer legal framework on maritime militias' regulations will give every State a better judgment on how to engage with maritime militias according to international law.