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Seiji Kurosawa

【#382】Chinese War Ship’s Intrusion as Seen from International Law

Seiji Kurosawa / 2016.06.22 (Wed)

June 20, 2016

     On June 15, a Chinese war ship passed through Japanese territorial waters around Kuchinoerabu Island in Kagoshima Prefecture. The Chinese Navy’s Dongdiao-class electronic reconnaissance ship sailed through the Tokara Straits covered with Japanese territorial waters toward southeast. A Japanese P-3C maritime patrol aircraft of the Maritime Self-Defense Force discovered and tracked the ship and gave a warning. Nevertheless, the Chinese ship sailed in the territorial waters over two and half hours. The incident came just after a Chinese Navy frigate passed through the contiguous zone (up to 12 nautical miles beyond territorial waters) around the Senkaku Islands in the East China Sea on June 9.

Right of passage is questionable
     Let me summarize the rights of passage under the United Nations Convention on the Law of the Sea (UNCLOS). Ships enjoy freedom of navigation in the high seas under the principle of freedom of the high seas (Article 87). In territorial waters of coastal states, foreign ships have the right of innocent passage (Article 17) or transit passage (Article 38).
     An innocent passage is admitted as far as the passage is continuous, quick and innocent (i.e. without affecting peace, order or security). A transit passage is admitted for international straits that are used for international navigation and covered with territorial waters, as far as the passage is normal.
     In simple terms, during innocent passages through a country’s territorial waters, foreign ships are barred from conducting military exercises or information gathering (Paragraph 2 of Article 19). During transit passages in a country’s territorial waters, helicopters on foreign ships can fly and foreign submarines can cruise underwater.
     On the electronic reconnaissance ship’s passage through the Tokara Straits, the Chinese Defense Ministry published a statement that the Chinese war ship’s passage through the territorial waters conforms to the freedom of navigation principle as provided by the UNCLOS. The statement indicates that the Chinese ministry has the right of innocent passage through territorial waters in mind. However, the Chinese side has never given any reasonable explanation that the slow passage of the intelligence gathering ship was innocent without violating Paragraph 2 of Article 19.
     A Chinese Foreign Ministry spokesperson said foreign military ships have the right of passage through the straits used for international navigation and do not have to make any prior notice or obtain prior permission. The remark indicates the right of transit passage through international straits. At present, however, Japan’s international straits (Soya, Tsugaru, Tsushima Higashi, Tsushima Nishi and Osumi) have high seas in their centers with territorial waters limited, remaining outside the transit passage system. Japan does not admit the existence of international straits through which foreign countries can claim the right of transit passage.
     Therefore, these one-sided Chinese explanations are questionable.

Selfish double standards
     China has asserted its national security interest in its exclusive economic zone that is far wider than territorial waters or contiguous zone, uniquely interpreted freedom of navigation, an international law principle, and imposed the unique interpretation on others. China does not admit foreign military ships’ innocent passage without prior permission in its territorial waters. On the other hand, China claims freedom of navigation through foreign territorial waters, having its war ships accumulate their military operations under the name of innocent passages.
     The Chinese approach represents cherry-picking double standards. Protest alone cannot prevent China from accumulating results. Japan pursuing the rule of law must take tougher responses.

Seiji Kurosawa is Secretary General of the Japan Institute for National Fundamentals.