“API Geoeconomic Briefing” is a weekly analysis of significant geopolitical and geoeconomic developments in the post-pandemic world. The briefing is written by experts at Asia Pacific Initiative (API) and includes an assessment of burgeoning trends in international politics and economics and the possible impact on Japan’s national interests and strategic response. (Editor-in-chief: Dr. HOSOYA Yuichi, Research Director, API & Professor, Faculty of Law, Keio University)
This article was posted to the Japan Times on April 13, 2021:
API Geoeconomic Briefing
April 13, 2021
Countering China’s threat to the Senkakus requires a full rethink of operations
Senior Research Fellow, Asia Pacific Initiative (API)
The Senkaku Islands, which were not included in the territories that Japan renounced under the 1951 San Francisco Peace Treaty, have long been considered Japanese territory, both historically and under international law.
China, however, has repeatedly intruded into Japan’s territorial waters around the islands. To respond to such activities, Japan should consider revising its domestic laws in case of contingencies at sea.
China’s coast guard law, which came into force on Feb. 1, has some points that concern both Japan and the United States.
In security talks involving the two nations’ foreign and defense ministers held in Tokyo on March 16, “serious concerns” were expressed over the law and opposition “to any unilateral action that seeks to change the status quo or to undermine Japan’s administration of these islands.”
One of the problems arising from China’s coast guard law is that it broadly permits the use of weapons against foreign military ships and foreign government ships.
Article 32 of the United Nations Convention on the Law of the Sea (UNCLOS) largely grants immunity to warships and other government ships operated for non-commercial purposes. This is based on the principle that states are equal under international law and they have the right to conduct affairs without outside interference.
There are exceptions, as a coastal state can require a foreign warship to leave its territorial sea if it disregards a request for compliance of the state’s regulations. But it is not clear under international law to what degree a coastal state can force a warship to exit its territorial waters if it fails to comply with the request.
Therefore, the point about the China coast guard law largely allowing enforcement measures and use of weapons against warships and other government ships becomes a problem.
The biggest part of that problem lies in China’s behavior. Recklessly driving an illegally modified car in a pedestrian zone is certainly not permitted, but recklessly driving a car that underwent legal maintenance in a pedestrian zone is also not permitted.
Even if China’s coast guard law is consistent with international law, the China Coast Guard shouldn’t be allowed to unlawfully invade Japanese territorial waters.
It is incorrect to say that all acts of entering another state’s territorial sea violate international law, since the UNCLOS states foreign warships and other government vessels enjoy the right of innocent passage through territorial sea.
But the China Coast Guard ships’ acts of approaching Japanese fishing boats within Japan’s territorial waters, claiming they are conducting law enforcement activities under Chinese domestic laws, do not fall under innocent passage.
We must be vigilant not only against what is stipulated under the China coast guard law but also against what China is attempting to do by acting under the law.
In January 2019, U.S. Chief of Naval Operations Adm. John Richardson reportedly told his Chinese counterpart, Vice Adm. Shen Jinlong, that the U.S. Navy would not treat China’s coast guard patrol ships or “maritime militia” — fishing boats that work with the military — differently from the Chinese navy, and would respond to their provocative acts in the same way it reacts to the Chinese navy.
Also in 2019, the U.S. Defense Intelligence Agency released a report on China’s military that stated: “Under Chinese law, maritime sovereignty is a domestic law enforcement issue under the purview of the CCG. Beijing also prefers to use CCG ships for assertive actions in disputed waters to reduce the risk of escalation and to portray itself more benignly to an international audience.”
The report also identifies that China’s maritime militia, a reserve force of civilians, plays a major role in coercive activities to achieve China’s political goals.
In the National Defense Authorization Act for fiscal year 2021, U.S. Congress urged the U.S. government to investigate and report on China’s use of fishing vessels in coast guard activities.
What countries including the U.S. are worried about is China’s “gray zone” strategy.
For now, China wants to avoid getting into a war with the U.S., which overwhelms China in terms of military power.
That is why Beijing is putting the China Coast Guard at the front end to intrude on territorial waters and conduct what it calls law enforcement activities so that they won’t be regarded as constituting an armed attack.
The coast guard coordinates seamlessly with the maritime militia and the navy. And while it emphasizes its function as a domestic law enforcement agency backed by the China coast guard law, it attempts to unilaterally change the status quo in a long-term perspective.
But while China is building up a seamless maritime security system, the U.S. also has a seamless system.
The U.S. Coast Guard, which is a law enforcement agency, is also part of the U.S. military. It operates under the Homeland Security Department during peacetime but serves under the navy in times of conflict.
The Navy, Marine Corps and the coast guard together released in December a new maritime strategy entitled “Advantage at Sea” aimed at deepening tri-service integration.
In February, the U.S. Coast Guard held joint exercises with the Japan Coast Guard near the Ogasawara Islands, some 1,000 kilometers south of Tokyo, with an aim to improve interoperability and enhance collective ability to respond to maritime threats and challenges.
An unresolved issue
How can Japan respond to such developments? There are three key points to consider.
First, Japan should work together with countries that express concerns over the China coast guard law, including the U.S., Indonesia, the Philippines and Vietnam, to broadly appeal to the international community in raising awareness and put stronger pressure on China to stop acts that violate international law.
When China declared the establishment of an air defense identification zone (ADIZ) in the East China Sea in November 2013, the U.S., Australia, South Korea and Japan lodged a protest against China.
Following the announcement, the U.S. sent B-52 bombers into the ADIZ without informing Beijing ahead of time.
In late 2014, it was reported that China’s Civil Aviation Administration removed from the ADIZ rules in its Aeronautic Information Publication the warning that it would adopt “defensive emergency measures” against uncooperative aircraft in the zone.
This indicates the significance of continuing diplomatic efforts in cooperation with other countries including the U.S.
Secondly, Japan should strengthen its coast guard.
Until 2012, Japan exceeded China in the number of patrol ships of 1,000 tons or more, but China now holds twice the number of such ships compared with Japan and is working on building larger vessels.
Thirdly, Japan should create a system that enables it to respond seamlessly to China’s gray zone strategy.
Regarding this seamless response, the Japan Coast Guard tasked with enforcement of domestic laws is currently dealing with the intrusion of China Coast Guard vessels into Japan’s territorial waters.
The Japan Coast Guard’s use of weapons basically follows the police duties execution law.
Moreover, Article 25 of the Japan coast guard law prohibits the Japan Coast Guard from being trained or organized as a military establishment or to function as such.
Japan’s system differs in this regard from the U.S. Coast Guard or the China Coast Guard, which have a military function in addition to conducting law enforcement.
In the case of contingencies that cannot be dealt with by the Japan Coast Guard, the government can assign the Self-Defense Forces to conduct maritime security operations upon Cabinet approval.
However, such SDF operations will be conducted for enforcement of domestic laws and the criteria for use of weapons will essentially be based on the police duties execution law, the same as for the Japan Coast Guard.
If China’s actions were taken as an attempt on the Senkaku Islands, it would be possible to consider issuing a defense operation order to the SDF, which would allow it to exercise the use of force if deemed necessary.
But Japan faces high hurdles concerning the use of force in defense operations since it can be exercised only after there is an armed attack.
Japan has strictly defined “armed attack” as the “organized and premeditated use of force against Japan.”
The advisory panel on reconstruction of the legal basis for security, set up by then-Prime Minister Shinzo Abe, released a report in May 2014, urging the need to fill the gap in Japan’s response to security incidents or situations that fall short of a full-scale armed attack, as the nation cannot deal with such cases under the police duties execution law and there is no legal framework to exercise the right of self-defense in such situations.
In June 2014, the ruling Liberal Democratic Party and its coalition partner Komeito held talks and agreed to deal with the issue by operational improvement instead of exploring a fundamental overhaul.
Their decision to prioritize the other part of the report, which was to “allow the limited exercise of the right to collective self-defense,” was groundbreaking, and we cannot criticize the political judgment made at the time.
Although the Cabinet approved in May 2015 an operational improvement including speeding up procedures for issuing a maritime security operation order, the issue of creating a legal framework enabling seamless response to security situations was left unresolved.
The proposals in the report released seven years ago also remain unresolved.
What can be done to close the gap?
One idea is to relax the criteria for use of weapons during maritime security operations by the Japan Coast Guard or the SDF, and the other idea is to ease the conditions for SDF operations. It would be possible to implement both measures.
As for the first part, it would be possible to relax the conditions under Article 20 paragraph 2 of the Japan Coast Guard law for the use of weapons against foreign vessels when they refuse to stop and resist inspection.
The paragraph, however, explicitly excludes warships and foreign government vessels. Therefore, while the law is applicable to responses against foreign fishing boats, it cannot be applied to respond to the China Coast Guard vessels.
Concerning the second part about easing the requirements for SDF operations, it would be possible to revise the definition of armed attack so as not to restrict it to “organized and premeditated use of force against Japan” and make it easier to assign the SDF to defense operations.
It would also be possible to consider a new type of operation in which the SDF exercises the right of self-defense against the use of force which falls short of an armed attack, while being careful to remain consistent with international law.
China didn’t just come up with the idea of establishing the coast guard law. The nation is deliberately targeting the gray zone.
Japan, which strictly defines armed attacks, is an attractive target for China aiming to expand its gray zone.
Meanwhile, the U.S. Coast Guard’s official motto is Semper Paratus, Latin for “always ready.”
Every time a China Coast Guard ship enters Japan’s territorial waters, a Japan Coast Guard ship travels alongside it and repeatedly calls on the Chinese ship to leave the area, sending warnings using radio and an electronic bulletin board.
While we should feel gratitude for the Japan Coast Guard’s continuous efforts, we cannot depend solely on its work.
The entire nation must effectively prepare for contingencies by establishing the necessary legal framework, allocating resources including increasing budgets and working together and sharing roles beyond organizational boundaries.
We cannot afford to maintain the present condition amid the changing strategic environment and China’s intensifying gray zone activities.
The views expressed in this API Geoeconomic Briefing do not necessarily reflect those of the API, the API Institute of Geoeconomic Studies or any other organizations to which the author belongs.