Japan Institute for National Fundamentals

September 27, 2010
Japan Institute for National Fundamentals

It is very regrettable that Japan has succumbed to China’s pressure to release a Chinese fishing boat captain with a decision shelved on how to treat him after his boat deliberately rammed Japan Coast Guard patrol vessels in Japanese territorial waters near the Senkaku Islands of Okinawa Prefecture. We urgently make the following proposals to prevent China from making further arm-twisting backed by military power and to defend Japan’s territorial sovereignty and national interest.

1. Politicians should make this incident an opportunity to thoroughly reconsider Japan’s postwar national defense arrangements.
• In addition, the following actions should be taken:
2. The government should publish video footage evidencing that the Chinese fishing boat deliberately rammed the Japanese patrol vessels.
3. The government should deploy Self-Defense Forces units on the Senkaku Islands.
4. The government should launch Japan's test drilling in Shirakaba and other natural gas fields within Japan's exclusive economic zone in the East China Sea.
5. The Diet should enact legislation to penalize foreign ships for illegal acts.

1. Since the end of World War II, Japan has considered its security under a hypothesis symbolized by the Constitution's preface saying "we have determined to preserve our security and existence, trusting in the justice and faith of the peace-loving peoples of the world." But Japan must admit that the hypothesis has been destroyed miserably, as indicated by this latest incident. Japan is required to revise its fundamental postwar arrangements by turning the Self-Defense Forces into real, full-fledged Armed Forces for a normal democratic country and improving and enhancing equipment for maritime security operations as one of nations with longest coastlines in the world. We would like to encourage politicians as representatives of the nation to grow more conscious of such reform.

2. The Chinese government has not buried the hatchet in response to the release of the fishing boat captain on September 25. But it has demonstrated an even more coercive attitude, demanding that the Japanese government make an apology and compensation. The Japanese government should flatly reject the unreasonable demand and publish video footage evidencing the Chinese fishing boat's deliberate ramming against the Japan Coast Guard vessels in order to demonstrate the legitimacy of Japan's arrest of the captain to the international community.

3. In waters near the Senkaku Islands, the Japan Coast Guard has deployed patrol boats and conducted regular patrol flights of aircraft. While the Japanese government has rented Uotsuri, Minami Kojima and Kita Kojima Islands among the Senkaku Islands from their owners since 2002, the Coast Guard has maintained and managed Uotsuri Island's lighthouse (set up by a Japanese political group in 1988) as a national property since 2005. In order to enhance its effective control of the Senkaku Islands and defend its inherent territory, Japan should deploy Self-Defense Forces units and implement the SDF's surveillance in airspace and waters near the islands. By taking actions to demonstrate its determination to defend its territory on its own, Japan can expect the United States to apply the Japan-U.S. Security Treaty to the Senkaku Islands.

4. In a retaliatory action against Japan's arrest of the Chinese fishing boat captain, China might have unilaterally launched drilling in the Shirakaba (called Chunxiao in China) gas field in the East China Sea. Japan and China agreed in 2008 to allow a Japanese company to invest in a Shirakaba development project. Bilateral negotiations to fix the investment ratio started later and have been suspended in response to the incident. If China's drilling is confirmed, Japan should take a counteraction to launch test drilling within Japan's exclusive economic zone.

5. The United Nations Convention on the Law of the Sea endorses foreign ships’ right of innocent passage in a coastal state’s territorial sea and cites 12 noninnocent passage cases including any threat or use of force, any exercise or practice with weapons, information collection, propaganda, the launching or landing of aircraft, the loading or unloading of any commodity, pollution and fishing. Among Japan’s domestic laws, the Act on Regulation of Fishing Operation by Foreign Nationals provides for the punishment of foreign fishing ships. The Act on Navigation of Foreign Ships through the Territorial Sea and Internal Waters has punitive clauses for dubious staying and wandering other than innocent passage. But no Japanese law exists to regulate other acts amounting to noninnocent passage. (In this incident, the Chinese fishing boat captain was arrested for his suspected obstruction of executive officers.)

No effective law has been developed to regulate any illegal operation within the exclusive economic zone where Japan has sovereign rights. (The existing Act on the Exercise of the Sovereign Right for Fishery, etc. in the Exclusive Economic Zone is insufficient.)

The Self-Defense Forces are not authorized to conduct defense operation against unlawful territorial infringement short of armed attack. Unless an order is issued for maritime policing actions, the SDF have no legal ground for responding to such infringement. (Military forces in other countries are authorized to conduct such operations.) Japan Coast Guard officers’ use of weapons is strictly restricted, although some improvements have been achieved under the revised JCG Act. The Fisheries Agency’s patrol boats are armed only with water cannons.

In order to prevent any threat to Japan’s territorial sea and exclusive economic zone, the nation should develop relevant legislation and improve equipment.

The Japanese government has published its basic view on the Senkaku Islands as part of Japan’s territory, as summarized below (based on the view seen on the website of the Ministry for Foreign Affairs). We support this view.

(1) Based on a confirmation that the Senkaku Islands had been uninhabited and showed no trace of having been under the control of China, the Japanese government incorporated the Senkaku Islands into the territory of Japan in January 1895.(2) These islands were neither part of Taiwan nor part of the Pescadores Islands that were ceded to Japan from the Qing Dynasty of China in accordance with the Treaty of Shimonoseki that came into effect in May 1895.(3) Accordingly, the Senkaku Islands are not included in the territory that Japan renounced under the 1951 San Francisco Peace Treaty. The Senkaku Islands were placed under the administration of the United States as part of the Nansei Shoto Islands and the administrative rights over these islands were reverted to Japan in accordance with the 1971 agreement for Okinawa's reversion to Japan.(4) China began to make its territorial claims to the Senkaku Islands after the question of the development of petroleum resources on the continental shelf of the East China Sea came to the surface in the latter half of 1970.(5) None of the points raised by China as historic or geographic evidence provides valid grounds under international law to support China's territorial claims to the Senkaku Islands.

Prime Minister Naoto Kan should point out to the international community the outrageousness of China's arguments and stick to an attitude of rejecting China's unrestrained intimidation firmly.