Japanese Maritime Security and Law of the Sea (International Law in Japanese Perspective, 14) 9004470069, 9789004470064

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Japanese Maritime Security and Law of the Sea

International Law in Japanese Perspective Series Editor Yuji Iwasawa

volume 14

The titles published in this series are listed at brill.com/iljp

Japanese Maritime Security and Law of the Sea By

Yurika Ishii

LEIDEN | BOSTON

The Library of Congress Cataloging-​in-​Publication Data is available online at https://catalog.loc.gov lc record available at https://lccn.loc.gov/​2021052890

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill.” See and download: brill.com/brill-​typeface. issn 0929-​7 111 isbn 978-​9 0-​0 4-​4 7006-​4 (hardback) isbn 978-​9 0-​0 4-​5 0041-​9 (e-​book) Copyright 2022 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff, Brill Hotei, Brill Schöningh, Brill Fink, Brill mentis, Vandenhoeck & Ruprecht, Böhlau Verlag and V&R Unipress. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Requests for re-​use and/​or translations must be addressed to Koninklijke Brill nv via brill.com or copyright.com. This book is printed on acid-​free paper and produced in a sustainable manner.

Contents  Acknowledgements xi  List of Maps xiii  Abbreviations xiv  Table of Authorities xvi  Editorial Notes xxiii  Japanese Legal Materials xxiv  Introduction 1 1  Unilateral Pacifism in Japanese National Security Laws 1 1.1 Unilateral Pacifism 1 1.2 The Administrative Structure of the Japanese Government 4 1.3 Changes in International and Regional Relations 5 2  The Path to “Internationalism” 9 3  Structure of the Book 12 1  Use of Weapons at Sea 14  Introduction 14 1  The Basis of Japanese National Security Law 14 1.1  Constitutional Limits 14 1.2 The Structure of the Self-​Defense Forces Act 16 1.3 A Brief History of the Development of the Concept of the Use of Weapons 20 2  Legality of the Coercive Measures at Sea under International Law 25 3  Use of Weapons at Sea 28 3.1 The Role of the Japan Coast Guard 28 3.1.1  Mandates of the jcg 28 3.1.2  Practice 31 3.2 Maritime Security Operations 33 3.2.1  Mandates of the jmsdf 33 3.2.2  Practice 34 3.3 Gray Zone Situations 38  Conclusion 41 2  Use of Force at Sea 43  Introduction 43 1  The Right of Self-​Defense 43 1.1  Use of Force 43

vi Contents 1.2 Armed Attack 45 1.3 Right of Collective Self-​Defense 48 2  The sdf’s Authority to Inspect Foreign Vessels beyond the Japanese Territorial Sea 51 2.1 Inspection of the Vessels under the Surrounding Situation Act 51 2.2  Act Concerning Maritime Transportation Regulation of Foreign Military Vessels 53 3  Remaining Challenges 55 3.1 The Regulation of sdf Personnel During Operations 55 3.1.1  Criminal Responsibility for the sdf’s Conduct under Foreign or International Criminal Laws 55 3.1.2  Rights and Obligations of sdf Personnel Participating in an International Armed Conflict 57 3.2 The jcg’s Status During an International Armed Conflict 59  Conclusion 60 3  Territorial Sea 61  Introduction 61 1  Legislative History 61 1.1 From the Nineteenth Century to the Hague Conference of 1930 61 1.2 The First and the Second United Nations Conferences on the Law of the Sea 64 1.3 Japan’s Enactment of Its First Domestic Law on the Territorial Sea in 1977 65 1.4 The Third Conference on the Law of the Sea 68 1.5 Japan’s Ratification of unclos and Its Domestic Legislation of 1996 69 2  The Innocent Passage Regime in Japan 70 2.1 An Overview 70 2.2 Continuous and Expeditious Passage 71 2.3 Innocent Passage 73 2.3.1  Warships 74 2.3.2  Ships Carrying Hazardous Materials 74 2.3.3  Ships with Nuclear Weapons 77 2.4 Submerged Vessels 84 3  The Right of Protection for the Coastal State 85 3.1 Private Vessels 85 3.2 Warships and Government Ships 86

Contents



vii

3.3

J apan’s Options in the Territorial Waters of the Senkaku Islands 88  Conclusion 91 4  Straits 92  Introduction 92 1  Designated Areas 93 1.1 Legislative History 93 1.2 Selection of the Five Designated Areas 98 1.3 Designated Areas and Neighboring States 102 1.3.1  Sōya Strait and Russia 102 1.3.2  Tsushima Strait and the Republic of Korea 106 2  Straits Covered by Territorial Seas 107  Conclusion 112 5  Exclusive Economic Zone, Continental Shelf, and Islands 114  Introduction 114 1  Exclusive Economic Zone and Continental Shelf 115 1.1 Domestic Laws 115 1.1.1  Legislative History and Japan’s Position in the Development of the International Law of the Sea 115 1.1.2  The Implementation of unclos 121 1.1.3  Overlapping Areas in the Sea of Japan and the East China Sea 122 1.2 Military Activities within the eez 124 1.2.1  Military Activities in General 124 1.2.2  Marine Data Collection Activities in the eez 125 1.3 Islands 128 1.3.1  u nclos Article 121(3) 128 1.3.2  The Japanese Government’s Position 132 1.3.3  Management of the Islands 136 2  Maritime Boundary Disputes and Provisional Arrangements with Neighboring States 138 2.1 The Republic of Korea 138 2.1.1  Fishery Management 138 2.1.2  Continental Shelf 141 2.2 China 143 2.1.1  Fishery Management 143 2.1.2  Continental Shelf 146

viii Contents 2.3 The Soviet Union /​Russia 148 2.4 Taiwan 152 2.5 Summary 153  Conclusion 154 6  Air Defense 155  Introduction 155 1  Territorial Air Defense in Japan 157 1.1 The Background 157 1.2 The Use of Weapons against an Aircraft Intruding into Japanese Territorial Air 161 1.3 Practices 164 2  Ballistic Missile Defense 165 2.1 The Background 165 2.2 s df Act Article 82-​3 167 3  Air Defense Identification Zone 169  Conclusion 171 7  Protecting the Sea Lanes of Communication 172  Introduction 172 1  Sea Lanes Defense 173 1.1  The Development of the Sea Lanes Defense 173 1.2 Deployment of the jmsdf to Counter Security Threats at Sea 180 2  Unexpected Encounters at Sea 183 3  Anti-​Piracy Operations 185 3.1 The Development of International Anti-​Piracy Cooperation 185 3.2 Act on Punishment of and Measures against Piracy of 2009 186  Conclusion 188 8  The Use of Civilian Assets for National Security Management 189  Introduction 189 1  Historical Backgrounds 189 2  Chartering a Civilian Vessel in Time of Emergency 191 2.1 The Gulf War and the Use of Civilian Vessels and Aircraft 191 2.2 The mod’s Chartering of Nacchan World and Hakuou 195 2.3 The Vessels at a Time of Natural Disaster and a National Security Emergency 196

Contents

3  Navigation Order under the Marine Transportation Act 198 4  Securing the Japanese Flags 199  Conclusion 201  Conclusions 202  Bibliography 207  Index 221

ix

Acknowledgements This monograph is the outcome of my work on Japanese maritime security and the law of the sea as a civilian faculty member of the National Defense Academy of Japan. The research was funded by the Japan Society for the Promotion of Science (jsps) kakenhi jp16k16999 and jp18k01290. The publication became possible only because of enormous support from experts, colleagues and friends, both tangible and intangible. I am grateful to Iwasawa Yuji for his kind encouragement of this publication. I benefited from the exchange of views with academics and practitioners, especially through the Japan Society of Ocean Policy (jsop) led by Okuwaki Naoya and the Japan Institute for the Law of the Sea chaired by Sakamoto Shigeki, the current president of jsop. Nakatani Kazuhiro and Onuma Yasuaki occasionally offered their insights on the Japanese policy towards international law and the role of the law in international politics. I was also privileged to have worked in interdisciplinary research groups on maritime security funded by the jsps, Japan Institute of International Affairs, the Sasakawa Peace Foundation, the Sasakawa Japan-​China Friendship Fund, and the Suntory Foundation. This book would have never existed without James Kraska. I joined in projects realized under his leadership, including the annual workshops co-​organized by the Naval War College and the Japan Maritime Self-​Defense Force since 2015, dialogues and conferences in Newport, and an intensive course of Gujarat National Law University in 2016 as a faculty member. I am grateful for the journey that the law of the sea study took me. Many workshops, seminars, and conferences helped me to enrich my views in Andaman-​ Nicobar, Bandung, Brussels, Copenhagen, Colombo in Sri Lanka, Fukuoka, Geneva, Gujarat, The Hague, Hainan, Kobe, Kuala Lumpur, Kumamoto, Kyoto, Jakarta, London, Manila, Mexico City, Nanjing, Newport, Osaka, Paris, Port Louis in Mauritius, Sapporo, Singapore, Sendai, Sydney, Taipei, Tokyo (my home base), Turin, Valletta, Washington dc and online. The staff of the Ministry of Defense, the Ministry of Foreign Affairs, the Japan Coast Guard (jcg) patiently went through the disclosure process of the high volume of classified documents. Faculty and administrative staff and librarians at the National Defense Academy of Japan helped me to secure the research environment. An anonymous reviewer provided many valuable comments. Ingeborg van der Laan, Kate Elliott and Fem Eggers assisted me finalizing the manuscript. Any remaining errors are, of course, my own. The views expressed in this book are solely mine and do not represent the views of the institutions or the groups that I belong to.

xii Acknowledgements Yuki, my husband, has been the bedrock throughout the whole process. Marika, our seven-​year-​old daughter, is a constant reminder that I should take nothing for granted. My parents and parents-​in-​law have given me immeasurable help. Finally, my special gratitude and respect go to the men and women of every nation who serve to maintain global security at sea. I learned many perspectives through the interaction with military personnel and coast guard officers, mostly from the Self-​Defense Forces and the jcg, but also from across the world. Important events in this respect include my stay at Harvard Law School from 2014 to 2015, the United Nations Office of Drugs and Crimes, Global Maritime Crimes Programme meetings from 2018 to 2020 and the Copenhagen meeting in 2019 to update the San Remo Manual on the Law of Armed Conflicts at Sea. Their pride and professionalism in their duties and passion for maritime security laws have been the drive to pursue this project. Y. I. June 3, 2021

List of Maps 1  Soya Strait (Source: United States Department of State, Limits of Seas: Japan (1998), 16) 101 2  Tsugaru Strait (Source: United States Department of State, Limits of Seas: Japan (1998), 17) 102 3  Osumi Strait (Source: United States Department of State, Limits of Seas: Japan (1998), 18) 108 4  Tsushima Strait (Source: United States Department of State, Limits of Seas: Japan (1998), 19) 113

Abbreviations aalcc adiz api bmd caricom cmc clcs doalos dod dprk efz eez gci gcii gciii gcvi ghq hc hr icao icc icj icrc ilc imo isnt itlos jasdf jcg jfa jgsdf jmsdf ldp meti mlit mod

Asian-​African Legal Consultative Committee Air Defense Identification Zone Additional Protocol (i) to the Geneva Conventions ballistic missile defense The Caribbean Community The Central Military Commission (China) Commission on the Limits of the Continental Shelf United Nations Division for Ocean Affairs and the Law of the Sea The Department of Defense (The United States) Democratic People’s Republic of Korea exclusive fisheries zone exclusive economic zone Geneva Convention (i) on Wounded and Sick in Armed Forces in the Field Geneva Convention (ii) on Wounded, Sick and Shipwrecked of Armed Forces at Sea Geneva Convention (iii) on Prisoners of War Geneva Convention (iv) on Civilians The General Head Quarter (Supreme Commander for the Allied Powers) The House of Councilors (Japan) The House of Representatives (Japan) International Civil Aviation Organization The International Criminal Court The International Court of Justice The International Committee of Red Cross The International Law Commission The International Maritime Organization Informal Single Negotiating Text The International Tribunal for the Law of the Sea The Japan Air Self-​Defense Force (Japan) The Japan Coast Guard (Japan) The Japan Fisheries Association (Japan) The Japan Ground Self-​Defense Force (Japan) The Japan Maritime Self-​Defense Force (Japan) The Liberal Democratic Party (Japan) The Ministry of Economy, Trade and Industry (Japan) The Ministry of Land, Infrastructure, Transport and Tourism (Japan) The Ministry of Defense (Japan)

Abbreviations mof The Ministry of Finance (Japan) mofa The Ministry of Foreign Affairs (Japan) msr marine scientific research nm nautical miles ntt Nippon Telegraph and Telephone (Japan) pap People’s Armed Police (China) pla The People’s Liberation Army (China) plan The People’s Liberation Army Navy (China) pko peace keeping operations pow prisoners of war rok The Republic of Korea scapin Supreme Commander for the Allied Powers Directives scc Japan-​ U S Security Consultative Committee sdf The Self-​Defense Forces (Japan) sloc s sea lines of communication sofa Status of Forces Agreement unclos United Nations Convention on the Law of the Sea unclos i First United Nations Conference on the Law of the Sea unclos ii Second United Nations Conference on the Law of the Sea unclos iii Third United Nations Conference on the Law of the Sea wmd weapons of mass destruction

xv

Table of Authorities * Treaties and the Japanese laws are listed chronologically based on the date of the adoption or enactment. Treaties Treaty of Commerce, Navigation and Delimitation, Japan-​Russia, signed on February 7, 1855, entered into force on August 7, 1856, 112 cts 467 Treaty for the Exchange of Sakhalin for the Kurile Islands, Japan-​Russia, signed on May 7, 1875, ratified on August 22, 1875, 149 cts 179 Portsmouth Peace Treaty, Japan-​Russia, signed on September 5, 1905, entered into force on November 25, 1905, 199 cts 144 Hague Convention (v) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, signed on October 18, 1907, entered into force January 26, 1910, usts 540 Hague Convention (xiii) Respecting the Rights and Duties of Neutral Powers in Naval War, signed on October 18, 1907, entered into force on January 26, 1910, usts 545. Russo-​Japanese Agreement, signed on July 17, 1907, Gaimusho [mofa] ed., Nihon Gaiko Nempyo Narabini Shuyo Monjo [Chronology of Japanese Diplomacy and Documents] 1 (1965): 280 Convention respecting the Regulation of the Liquor Traffic, Japan-​U S, signed on May 31, 1928, entered into force on July 6, 1928, Japan, Treaty No. 1 of 1930 Convention on International Civil Aviation, signed on December 7, 1944, entered into force on April 4, 1947, 15 unts 295 Convention (ii) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, signed on August 12, 1949, entered into force on October 21, 1950, 75 unts 85 Convention (iii) relative to the Treatment of Prisoners of War, signed on August 12, 1949, entered into force on October 21, 1950, 75 unts 135 Security Treaty Between the United States and Japan, signed on September 8, 1951, entered into force on April 28, 1952, tias 2491, 3 ust 3329 Treaty of Peace with Japan, adopted on September 8, 1951, entered into force on April 28, 1952, 136 unts 1832 Treaty of Peace between the Republic of China and Japan, signed on April 28, 1952, entered into force on August 5, 1952, 138 unts 3 Civil Air Transport Agreement, Japan-​U S, signed on August 11, 1952, tias 12945

Table of Authorities

xvii

Mutual Defense Treaty Between the United States and the Republic of Korea, signed on October 1, 1953, entered into force on November 17, 1954, tias 3097, 5 ust 23602376 Mutual Defense Assistance Agreement between Japan and the United States of America, signed on March 8, 1954, entered into force on May 1, 1954 Japan-​Sino Fishery Agreement in the Private Sector, signed on April 15, 1955, reprinted in Nicchu Kankei Kihon Siryo Shu (Ministry of Foreign Affairs ed., 1970): 65–​77 Joint Declaration by the Union of Soviet Socialist Republics and Japan, signed on October 19, 1956, entered into force on December 12, 1956, 263 unts 99 Convention on the Territorial Sea and the Contiguous Zone, adopted on April 29, 1958, 516 unts 205 Convention on the Continental Shelf, adopted on April 29, 1958, entered into force June 10, 1964, 499 unts 311 Convention on Fishing and Conservation of the Living Resources, adopted on April 29, 1958, entered into force on March 20, 1966, 558 unts 285 Treaty of Mutual Cooperation and Security between the United States and Japan, signed on January 19, 1960, entered into force on July 23, 1960, 11 ust 1632 Administrative Agreement under Article iii of the Security Treaty between Japan and the United States of America, signed on February 28, 1952, entered into force on April 28, 1952, 1 Japan’s Foreign Relations-​Basic Documents 472 Memorandum of Understanding on Japan-​ Sino Fisheries between Japan China Fisheries Council and China Fisheries Association, signed on January 22, 1963, reprinted in Ajia Keizai Shunpo 529 (1963): 26 Treaty on Basic Relations between Japan and the Republic of Korea, signed on June 22, 1965, entered into force on December 18, 1965, 583 unts 44 Agreement between Japan and the Republic of Korea concerning Fisheries, signed on June 22, 1965, International Legal Materials 4 (1965): 1128 Japan-​Sino Fishery Agreement in the Private Sector, signed on December 17, 1965, reprinted in Nicchū Kankei Kihon Siryō Shū (Ministry of Foreign Affairs ed., 1970): 255 Agreement between Japan and the United States of America Concerning the Ryukyu Islands and the Daito Islands, signed on June 17, 1971, entered into force on May 15, 1972 , 841 unts 274 Agreement Between Japan and The Republic of Korea Concerning the Establishment of Boundary in the Northern Part of The Continental Shelf, signed on January 30, 1974, entered into force on June 22, 1978, 1225 unts 103 Agreement Concerning Joint Development of The Southern Part of The Continental Shelf Adjacent to The Two Countries, signed on January 30, 1974, entered into force on June 22, 1978, 1225 unts 113

xviii 

Table of Authorities

Fishery Agreement (with annexes, exchange of notes and agreed minutes), Japan-​China, signed on August 15, 1975, 1103 unts 3 Exchange of Notes Constituting an Agreement Concerning the Delimitation Of The Territorial Waters, Denmark-​Sweden, adopted on June 25, 1979, entered into force on December 21, 1979, 1183 unts 31 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, signed on October 10, 1980, entered into force on December 2, 1983, 1342 unts 137 Convention on the Law of the Sea, adopted on December 10, 1982, entered into force on November 1, 1994, 1833 unts 3 Agreement on Cooperation on Fishery between Japan and ussr, signed on May 12, 1985, entered into force on May 13, 1985, reprinted in The Law of the Sea: Current Development in State Practice (United Nations, 1987): 103 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, adopted on 22 March 1992, entered into force on 5 May 1992, 1673 unts 126 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, signed on August 4, 1995, entered into force on December 11, 2001, 2167 unts 3 Agreement on Fisheries between the Republic of Korea and Japan, signed on November 28, 1998, entered into force on January 22, 1999, mofa Notification, Treaty No. 3 of 1999 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Protocol, adopted on October 14, 2005, entered into force on July 28, 2010, imo Doc. leg/​c onf.15/​2 1 Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia, adopted on November 11, 2004, entered into force on September 4, 2006, 2398 unts 199 Arrangement between Japan and Djibouti regarding the Status of Self Defense Force in Djibouti, signed on April 3, 2009, entered into force on April 3, 2009, mofa Notification, Treaty No. 223

xix

Table of Authorities



Japanese Law

Penal Code, Act No. 45 of 1907 National General Mobilization Law, Act No. 55 of 1938 Cabinet Act, Act No. 5 of 1947 Seafarers’ Law, Act No. 100 of 1947 Public Safety Agency Act, Act No. 265 of 1947 (never entered into force) Act on the Navigation Order for the Transportation of Japanese Collectively Returning from Foreign Countries, Act No. 35 of 1947 Japan Coast Guard Act (jcg Act), Act No. 28 of 1948 Police Duties Execution Act, Act No. 136 of 1948 Mine Safety Act, Act No. 70 of 1949 Public Corporation and National Enterprise Labor Relations Act, Act No. 83 of 1949 Marine Transportation Act, Act No. 187 of 1949 Fisheries Act, Act No. 267 of 1949 Mining Act, Act No. 289 of 1950 Stimulants Control Act, Act No. 252 of 1951 Law on the Development of Natural Resources of Oil and Gas, Act No. 162 of 1952 Aviation Act, No. 231 of 1952 National Safety Agency Act, Act No. 264 of 1952 Narcotics and Psychotropics Control Act, Act No. 14 of 1953 Act on the Promotion of the Isolated Islands, Law No. 72 of 1953

刑法 國家總動員法 内閣法 船員法 保安庁法 海外からの日本国民の集団的引 揚輸送のための航海命令に関す る法律 海上保安庁法 警察官職務執行法 鉱山保安法 公共企業体労働関係法

海上運送法 漁業法 鉱業法 覚せい剤取締法 石油及び可燃性天然ガス資源開 発法 航空法 保安庁法 麻薬及び向精神薬取締法 離島振興法

xx  Act on Establishment of the Defense Agency, Act No. 164 of 1954 Self-​Defense Force Act, Act No. 165 of 1954 Act on the Regulation of Nuclear Source Material, Nuclear Fuel Material and Reactors, Act No. 166 of 1957 Act on Regulation of Fishing Operation by Foreign Nationals, Act No. 60 of 1967 Act on Prevention of Marine Pollution and Maritime Disaster, act No. 136 of 1970 Act on the Preservation of the Environment of Seto Naikai, Act No. 110 of 1973 Act on Territorial Sea, Act No. 30 of 1977 Provisional Measures Law on Fishery Zone, Act No. 31 of 1977 Act on the Prevention of Collision, Act No. 62 of 1977 Provisional Measures Law for Unemployed Fishermen in According to the Conclusion of International Agreements, Act No. 94 of 1977 Act concerning the Deployment of International Emergency Assistance Unit, Act No. 93 of 1987 Act on Cooperation with United Nations Peacekeeping Operations and Other Operations, Act No. 79 of 1992 Law on the Territorial Sea and the Contiguous Zone, Act No. 73 of 1996 Law on Exclusive Economic Zone and Continental Shelf, Act No. 74 of 1996 Law on Exercise of Sovereign Rights over Fisheries and Other Activities in the eez, Act No. 76 of 1996 Law on Preservation and Management of Ocean Living Resources, Act No. 77 of 1996

Table of Authorities 防衛庁設置法 自衛隊法 核原料物質、核燃料物質及び原 子炉の規制に関する法律 外国人漁業の規制に関する法律 海洋汚染等及び海上災害の防止 に関する法律 瀬戸内海環境保全特別措置法

領海法 漁業水域に関する暫定措置法 海上衝突予防法 国際協定の締結等に伴う漁業離 職者に関する臨時措置法

国際緊急援助隊の派遣に関す る法律 国際連合平和維持活動等に対す る協力に関する法律 領海及び接続水域に関する法律 排他的経済水域及び大陸棚に関 する法律 排他的経済水域における漁業等 に関する主権的権利の行使等に 関する法律 海洋生物資源の保存及び管理に 関する法律

xxi

Table of Authorities

Surrounding Areas Situations Act, Act No. 60 of 1999 Act on Promotion of Private Finance Initiatives, Act No. 117 of 1999 Act on the Navigation Order for the Transportation of Japanese Collectively Returning from Foreign Countries, Act No. 35 of 1947, amended, Act No. 160 of 1999 Act on Inspection Operation of Vessels, Act No. 145 of 2000 Misdemeanor Act, Act No. 39 of 1948 Act on the Operation of Vessels Inspection in an Important Influence Situation and Others, Act No. 145 of 2000 Japan Coast Guard Act (jcg Act), Act No. 114 of 2001 Act on Japan’s Peace and Independence and Securing of Safety of the State and Nationals at an Armed Attack Situation, Act No. 79 of 2003 (last amended in Act 76 of 2015) Act on Measures related to Forces of the United States of America, No. 103 of 2004 Act on the Restriction of Maritime Transportation of Foreign Military Supplies and others in Armed Attack Situations, Act No. 116 of 2004 Act on Treatment of Prisoners of War, Act No. 117 of 2004 Act on Penal Sanctions against Grave Breaches of the International Humanitarian Law, Act No. 115 of 2004 Basic Act of Ocean Policy, Act No. 33 of 2007

周辺事態に際して我が国の平和 及び安全を確保するための措置 に関する法律 民間資金等の活用による公共施 設等の整備等の促進に関する 法律 海外からの日本国民の集団的引 揚輸送のための航海命令に関す る法律

周辺事態に際して実施する船舶 検査活動に関する法律 軽犯罪法 重要影響事態等に際して実施す る船舶検査活動に関する法律 海上保安庁法の一部を改正する 法律 武力攻撃事態等及び存立危機事 態における我が国の平和と独立 並びに国及び国民の安全の確保 に関する法律 武力攻撃事態等におけるアメリカ 合衆国の軍隊の行動に伴い我が 国が実施する措置に関する法律 武力攻撃事態における外国軍用 品等の海上輸送の規制に関する 法律 武力攻撃事態及び存立危機事 態における捕虜等の取扱いに関 する法律 国際人道法の重大な違反行為の 処罰に関する法律 海洋基本法

xxii  Act on Cooperation with the International Criminal Court, Act No. 37 of 2007 Act on Special Measures concerning the Implementation of Replenishment Support Activities for Maritime Interdiction Operations against Terrorism, Act No. 1 of 2008 Law on Navigation of Foreign Ships in the Territorial Seas and Internal Waters, Act No. 64 of 2008 The Act on Establishment of the Minister of Defense, Act No. 44 of 2009 Law on Punishment of and Measures against Acts of Piracy, Act No. 55 of 2009 Law on the Development of Base Facilities and Preservation of the Low-​ Tide Line for the Promotion of Use and Conservation of the Exclusive Economic Zone and Continental Shelf, Act No. 41 of 2010 Japan Coast Guard Act, Amended, Act No. 71 of 2012 Act to Amend a Part of the Self-​Defense Forces Act to Contribute to the Peace and Security of Japan and the International Society, Act No. 76 of 2015 Special Measures Law on Protection of the Remote Islands on Borders and the Maintenance of the Local Community within Certain Remote Islands, Act No. 33 of 2016

Table of Authorities 国際刑事裁判所に対する協力等 に関する法律 テロ対策海上阻止活動に対する 補給支援活動の実施に関する特 別措置法

領海等における外国船舶の航行 に関する法律 防衛省設置法 海賊行為の処罰及び海賊行為へ の対処に関する法律 排他的経済水域及び大陸棚の保 全及び利用の促進のための低潮 線の保全及び拠点施設の整備等 に関する法律

海上保安庁法の一部を改正する 法律 我が国及び国際社会の平和及び 安全の確保に資するための自衛 隊法等の一部を改正する法律 有人国境離島地域の保全及び特 定有人国境離島地域に係る地域 社会の維持に関する特別措置法

Editorial Notes 1.

2. 3. 4.

5. 6.

Personal names are spelled out according to the custom of the individual’s origin in the main text. Chinese, Korean and Japanese names are spelled in order of the family name and the given name [e.g., Yoshida Shigeru]. Only the family name is used from the second time. Names of the authors in the footnotes are spelled out in order of the given name and the family name. The affiliations and positions mentioned in the main text and the footnotes are of the time of the events or the speech unless otherwise specified. The Japanese domestic laws are cited as: the number of the act and the year of the legislation [e.g., Act No. 165 of 1954]. Full information is available in the table of authorities. The minutes of the Diet are cited as: The name of the speaker, his or her position at the time of the speech, Diet session, House of Representatives (hr) or House of Councillors (hc), the name of the meeting or the committee, number of the minutes and its page number, date [e.g., Hara Tōru, Director, Bureau of Defense, Defense Agency, 91st Diet, hc, Budget Committee, No. 3 at 14, February 14, 1980]. Article 1, paragraph 2 appears as Article 1(2). Article 1 bis appears as Article 1-​2. All the journals and periodicals are fully spelled out except the following records: ∵

cts tias unclos Official Records

Consolidated Treaty Series The Treaties and Other International Acts Series 1–​7, United Nations Conference on the Law of the Sea, Official Records (1958) unclos ii Official Records 1–​2, Official Records of the Second United Nations Conference on the Law of the Sea (1960) unclos iii Official Records 1–​17, Third United Nations Conference on the Law of the Sea, Official Records (1975–​1984) unls The United Nations, Legislative Series unts The United Nations, Treaty Series ust United States Treaties and Other International Agreements

Japanese Legal Materials This short guide provides practical information to enable readers to access the Japanese legal materials that are cited in this book. The url s below were last accessed on June 3, 2021. 1. Legislation Japan has a parliamentary system where the Diet (Kokkai) nominates the Prime Minister, the head of the Cabinet (Naikaku), who chooses the members of the Cabinet. The legislative body is the Diet, which consists of the House of Councilors (Sangiin) and the House of Representatives (Shūgiin). The Acts and regulations in force are available at https://​elaws.e-​gov.go.jp. They are formally published in Official Gazettes (Kanpō). Unofficial English translations of some of the Acts are available at the Japanese Law Translation website at http://​www.jap​anes​elaw​tran​slat​ion.go.jp. The Acts enacted after 1930, both those still in force and repealed, are also available at https://​hou​rei.ndl.go.jp/​. The Acts from 1867 to 1930 are available at https://​dajo​kan.ndl.go.jp/​. The text of the current Constitution, the Constitution of Imperial Japan and relevant documents are available at https://​ www.ndl.go.jp/​const​itut​ion/​e/​index.html. The records of the Diet from 1947 are available at https://​kok​kai.ndl.go.jp/​. The Diet is the state’s only legislative body. A bill may be sponsored by the Cabinet, members of the Diet and Diet Committees. In practice, the Cabinet proposes approximately 70–​80 percent of the enacted Acts. The ministries in charge of the matter draft the cabinet-​sponsored bills, and the Cabinet Legislation Bureau submits the bill to the Cabinet for the Cabinet Decision (see https://​www.clb.go.jp/​engl​ish/​proc​ess/​). A member of the Diet may submit his or her questions to the government regarding a bill beforehand. The responsible agencies prepare the response, and the representatives of the ministries provide explanations on the bill during the meetings. Members of the Diet may also submit a Question Statement (shitsumon shuisho) to the government through the Chair of each House. The government agencies will provide the response. The Question Statements submitted to the House of Representatives and their responses are available at https://​ www.shug​iin.go.jp. Those submitted to the House of Councilors are available at https://​www.sang​iin.go.jp.

Japanese Legal Materials

2.

xxv

Cabinet Decisions

The Cabinet adopts decisions by consensus among the members of the Cabinet. Decisions up to 1960 are available at https://​www.digi​tal.archi​ves. go.jp. Decisions up to 1963 are also available at https://​rnavi.ndl.go.jp/​polit​ics/​ entry/​post-​30.php. Decisions from 1964 to 1997 are listed in a catalogue (Kakugi oyobi jimujikan kaigi fugijiko no kenmei to mokuroku). Decisions from 1997 to the present are mostly available at http://​www.kan​tei.go.jp/​jp/​kakug​iket​tei/​ index.html. See also National Diet Library’s Resesarch Guide, https://rnavi.ndl. go.jp/en/post-440732.html. 3.

Press Releases, Statements by Government Agencies and Guidelines

Press releases, statements and guidelines issued by government agencies are available at the websites of each ministry (see https://​www.gov-​onl​ine.go.jp/​ eng/​links.html). The National Diet Library’s Web Archiving Project stores some of the past website pages at https://​warp.da.ndl.go.jp/​?_​lang=​en. 4. Judgments Japan has a three-​tiered judicial system. The Supreme Court is the highest judicial body. The Constitution provides that no extraoridinary tribunal shall be established, nor shall any organ or agency of the executive sector be given final judicial power. Judgments are partly published in official case reports. They are available at https://​www.cou​rts.go.jp/​app/​hanrei​_​jp/​sear​ch1. Commercial databases such as Westlaw Japan, LexisNexis JP and D1-​Law.com contain judgments both published and unpublished in official case reports. 5.

Government Documents and Records

Some government documents and records are published either in a hard copy or on the Internet. The Diplomatic Archives of the Ministry of Foreign Affairs preserves the diplomatic records and make them available to the public (see https://www.mofa.go.jp/about/hq/record/index.html). The government

newgenprepdf

xxvi 

Japanese Legal Materials

manage the other unpublished documents (https://administrative-doc.e-gov. go.jp/). I requested their disclosure and specified the date, the document number and the ministry that preserves when I cite them.

Introduction 1

Unilateral Pacifism in Japanese National Security Laws

1.1 Unilateral Pacifism The starting point for this book is an observation that Japanese national security laws –​laws that govern the authority and the mandate of the government to act for national security –​contain a structural distortion. Since World War ii ended, Japan has long taken a strategy to limit the mandates and functions of its military –​Self-​Defense Forces (sdf)1 –​and rely on the United States’ assets in defending itself from external threats. In 1945, when Japan unconditionally surrendered to the Allies, the General Headquarters (ghq) disarmed the Japanese Imperial Army and Navy to prevent the country from engaging in another war.2 Yet, immediately after enacting the new Constitution in 19463 and the first democratic election in 1947, the ghq allowed Japan to establish the National Police Reserve in August 1950 in the wake of the Korean War.4 On the same day as Japan restored peaceful relations with the Allied Powers under the San Francisco Peace Treaty on September 8, 1951,5 it concluded the Security Treaty with the United States.6 The sdf was formally established on July 1, 1954.7 While it grew to be one of the world’s largest forces,8 the mandate and authority of the sdf under the Self-​Defense Forces Act (sdf Act) remained 1

2

3 4 5 6 7 8

The Japan Self-​Defense Forces were founded on July 1, 1954. They are divided into Japan Ground Self-​Defense Force, Japan Maritime Self-​Defense Force, and Japan Air Self-​Defense Force. Their headquarters is the Ministry of Defense. They have 247,000 personnel and 56,000 reserve personnel as of today. For the historical development of the sdf, see Chapter 1. From the early 17th century to the mid 19th century, the Tokugawa Shogunate governed Japan, taking the seclusion policy. The reformers overthrew the Tokugawa Shogunate in 1868 and established a modern nation under the Imperial system. The new government founded Imperial Army and Navy in 1868. The Navy became the world third-​largest after the Royal Navy and the US Navy by 1920. Constitution of Japan, promulgated on November 3, 1946, entered into force on May 3, 1947. Order No. 260 of 1950. Treaty of Peace with Japan, adopted on September 8, 1951, entered into force on April 28, 1952, 136 unts 1832. Security Treaty Between the United States and Japan, signed on September 8, 1951, entered into force on April 28, 1952, tias 2491, 3 ust 3329. Self-​Defense Force Act (sdf Act), Act No. 165 of 1954. jmsdf inherited the assets of Imperial Navy including its bases in Ohminato, Maizuru, Yokosuka, Kure and Sasebo. Japan became one of the world’s top five naval powers in the 1990s. Brian Benjamin Crisher & Mark Souva, “Power at Sea: A Naval Power Dataset,” 1865–​2011, 40 International Interactions 602 (2014). The data show that jmsdf has been the fifth largest in the 1990s after the United States, Russia, the United Kingdom and France; the fourth in the 2000s

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004500419_002

2 Introduction restricted. The government has been reluctant to dispatch troops abroad even for peaceful missions.9 To this date, the sdf has never directly engaged in an international armed conflict. The need for Japan to confront international and global security threats was ignored or denied in the domestic context. The domestic law restrictions on the sdf have been gradually removed since the end of the Cold War. In 1991, Japan Maritime Self-​Defense Force (jmsdf), for the first time, went abroad to the Persian Gulf for the minesweeping operation after the Gulf War ended. In 1992, the Peace Keeping Operations Act (pko Act) authorized the government to dispatch the sdf to foreign territory for peacekeeping missions and international humanitarian relief operations.10 Since then, there has been a series of pieces of national security legislation, the latest and most significant of which was done in 2015.11 The Japanese national security laws are not intended merely to implement its rights and obligations under the Constitution and international law. Constitution Article 9 provides that “the Japanese people forever renounce war,” and for this purpose, “land, sea, and air forces, as well as other war potential, will never be maintained.” The sdf is deemed as constitutional because it is the necessary forces for the purpose of self-​defense. The empowerment of the sdf has gone through a process of balancing interests –​domestic policies, the anti-​war sentiments in Japanese society, the interests of the United States, which is its ally since Japan’s independence, and the policies of neighboring states. Japan’s unique characteristic is that it does not have an autonomous military law that regulates the sdf’s conduct. Instead, the law authorizes the sdf to take the measures by terms of administrative law. The Prime Minister’s command and control over the sdf is based on his authority to control and supervise administrative branches under Constitution Article 72. The Minister of Defense oversees the operations of the sdf under Constitution Article 73(1) which mandates the Cabinet to “administer the law faithfully.”12 Neither does it

9

10 11 12

and the 2010s after the United States, Russia and China, on the basis of tonnage of the fleets. The House of Councilors adopted a resolution confirming that it would not deploy the sdf abroad in light of the provisions of the current Constitution and “the stark peace-​ loving spirit of the Japanese nationals.” Tsurumi Yūsuke, 19th Diet, hc, Plenary Meeting, No. 57 at 35, June 2, 1956. Act on Cooperation with United Nations Peacekeeping Operations and Other Operations, Act No. 79 of 1992. Act to Amend A Part of the Self-​Defense Force Act to Contribute to the Peace and Security of Japan and International Society, Act No. 76 of 2015. See Chapter 1, Section 1.1. The Act on Establishment of the Defense Agency, Act No. 164 of 1954, Article 5(2); The Act on Establishment of the Minister of Defense, Act No. 44 of 2009, Article 4(2). On the other hand, the Constitution of the Empire of Japan had

Introduction

3

have an autonomous rule to control the sdf personnel’s hostilities in an international armed conflict or a military tribunal.13 The Japanese government has had to secure that the sdf’s mandate is within constitutional limits, to comply with international law and to enable Japan to contribute to the maintenance of peace and security for the international society and its own sake. For this purpose, the government has justified the sdf’s authority by the logics and terms, such as “use of weapons,” “minor self-​defense,” “avoidance of the integration of force,” “Survival Threatening Situation,” “Important Influence Situation” and more. The irony is that these terms make little sense outside Japan and prevent the government and society from taking a broader perspective concerning its national security.14 A belief supporting the policy of relying on these concepts is that Japan’s unique role is to preserve the peace by avoiding expanding, or even thinking about expanding, the mandate of the government to use its force. This creed is what this volume calls “unilateral pacifism.” The distortion becomes apparent in the context of security at sea, an inherently international domain. The law of the sea itself, which governs rights and obligations of states at sea, went through significant development through the United Nations Law of the Sea Conferences i, ii, and iii (unclos i-​i ii), which took place in 1958, 1960, and between 1973 and 1982, respectively. Japan was an influential party in all of these conferences, as a major maritime power. Yet, the United Nations Convention on the Law of the Sea15 (unclos) and general international law leave much room for interpretation on many issues. Japan has encountered a number of legal problems, including rights and duties within its territorial sea, straits, exclusive economic zones (eez), the continental shelf and undelimited areas.

13 14

15

a provision that the Emperor has supreme command of the Army and Navy, and determines the organization and peacetime standing of the Army and Navy. The Constitution of the Empire of Japan, promulgated on February 11, 1889, entered into effect on November 29, 1890, Articles 11-​12. See Chapter 2, Section 3. This problem has been criticized for long. For instance, see Shinya Murase, “Anzenhosho Ni Kansuru Kokusaiho to Nihon Ho (International Law on National Security and Japanese Law) (Part 1) [Japanese],” Jurist 1349 (2008): 92–​110; Shinya Murase, “Anzenhosho Ni Kansuru Kokusaiho to Nihon Ho (International Law on National Security and Japanese Law) (Part 2) [Japanese],” Jurist 1350 (2008): 52–​66. United Nations Convention on the Law of the Sea, adopted on December 10, 1982, entered into force on November 1, 1994, 1833 unts 3.

4 Introduction In Japan, the Diet customarily enacts an implementing law when the government ratifies a treaty.16 However, there remain many unclos provisions which are not reflected in domestic statutes. Japanese laws that establish its territorial sea, eez and continental shelf merely define these geographical areas.17 The issue of the use of force is governed by other laws than the implementing legislation of unclos such as the sdf Act and the Japan Coast Guard Act (the jcg Act).18 Because unclos itself does not have a specific rule on maritime security beyond what is already provided in the UN Charter, the instrument is of little help in searching for guidance on Japan’s use of force at sea. As a result, the legal issues concerning the maritime security are underexplored. 1.2 The Administrative Structure of the Japanese Government There have been several structural characteristics within the Japanese government that have reinforced this belief of unilateral pacifism, particularly during the Cold War. In the first place, Japanese politics are defined by the strong policy-​making power of the bureaucracy and the relative weakness of the Cabinet and the Diet.19 The administrative division has the substantive authority to allocate budgets and control both diplomacy and domestic governance. Yet, there had been infamous compartmentalization among the policy-​making agencies including the Ministry of Finance (mof), the Ministry of Foreign Affairs (mofa), the Ministry of Defense (mod) and the Ministry of Economy, Trade and Industries (meti). On the other hand, the Prime Minister, who is designated among the Diet members, used to have only limited influence over this sector. In addition, politicians tended to ideologize the national security issues. The Diet has long been dominated by the conservative Liberal 16

17 18 19

While the Cabinet has the authority to conclude treaties (Constitution, Article 73(3)), the Constitution requires that the Diet approve the ratification (ibid., Article 59) in order to secure democratic oversight. Even though there is no domestic law that directly implements the rights and obligations stipulated within international instruments that Japan is a party to, they still have a direct effect within Japan’s domestic legal order. Constitution, Article 98(2). See also Yuji Iwasawa, International Law, Human Rights, and Japanese Law (Clarendon Press, 1998); Yuji Iwasawa, “Domestic Application of International Law,” Recueil Des Cours 378 (2016): 9–​261. See Chapters 3–​5. See Chapter 1, Section 2.2. The official English name of the jcg was Maritime Safety Agency until April 2000. Yet, its Japanese name has not been changed since its establishment. For the sake of convenience, this book uses the term the jcg. For a comprehensive analysis of Japanese administration, see Nobukatsu Kanehara, Anzen Hoshō Senryaku (Nikkei Shinbun Publishing [Japanese], 2021), 28. See also Shin’ichi Kitaoka, “ ‘Proactive Contribution to Peace’ in Context,” in Japan’s World Power: Assessment, Outlook and Vision, ed. Guibourg Delamotte (Routledge, 2017), 100–​111.

Introduction

5

Democratic Party (ldp) during the Cold War. The leftist oppositions used to condemn the strengthening of national security because it could pose a threat to socialism. The anti-​military sentiment embedded in Japanese society contributed to maintaining such structures.20 It is symbolistic that there used to be no close interaction between the Cabinet –​and eventually the Prime Minister –​and the sdf. It was not until 2013 that an effective connection between the two was institutionalized when the National Security Council was established.21 The revision of the national security laws in 2015 became possible only because of the stable Diet and the solid leadership of the Prime Minister under the second Abe Administration from 2012 to 2020.22 Furthermore, the sdf lacked the centralized control and the cooperation among the three forces –​the Japan Ground Self-​Defense Force (jgsdf), the jmsdf, and the Japan Air Self-​Defense Force (jasdf) –​during the Cold War. The Joint Staff Council, established in 1954, had limited authority to govern integrated operations. The Defense Agency for a long time assumed that it was favorable to disperse the authorities among the three forces rather than to centralize them. It was not until 2006 that the Joint Staff Control was established to operationalize the three forces under a single command and control. As a result, there was little debate over concrete, practical and realistic operations, at least in the public forum. Against these backgrounds, there used to be little internal drive for the government to engage with national security issues until the end of the 1980s. 1.3 Changes in International and Regional Relations After the end of the Cold War, the Japanese strategy to restrict its military operations has been tested by changes in the dynamism of international politics.23 Two inter-​related factors have had particular significance. 20

21

22 23

For instance, Kitaoka Shin’ichi points out that Japan’s “passive pacifism” is deeply rooted in the Japanese people. Japanese public opinion and media are the most vocal opponents of Japan’s pro-​active contribution to the peace. Kitaoka, “ ‘Proactive Contribution to Peace’ in Context,” 110. Mori Satoru similarly asserts that the “passive, unilateral pacifism” formed a kind of postwar Japanese exceptionalism. Satoru Mori, “The New Security Legislation and Japanese Public Reaction,” Tokyo Foundation for Policy Research, 2015. Nobukatsu Kanehara, “The Power of Japan and Its ‘Grand Strategy,’ ” in Japan’s World Power: Assessment, Outlook and Vision, ed. Guibourg Delamotte (Routledge, 2017), 34–​65. There used to be the National Defense Council from 1956 to 1986, and its successor, the Security Council. They were advisory groups on the military and national security issues. For the development of the civil-​military relations, see Takako Hikotani, “The Japanese Diet and Defence Policy-​Making,” International Affairs 94, no. 4 (2018): 791–​814. For the interplay of Japan’s national security policy, national sentiment and the international relations, see Alessio Patalano, Post-​War Japan as a Sea Power : Imperial Legacy, Wartime Experience and the Making of A Navy (Bloomsbury Academic, 2016); Sheila

6 Introduction The first is Japan’s relations with the United States.24 After Japan achieved its independence in 1952, the Yoshida Doctrine largely defined its national security policy. It was a strategy adopted by the Prime Minister Yoshida Shigeru to prioritize the reconstruction of Japan’s domestic economy, with its security maintained by the alliance with the United States. The initial stage of the US’s strategy was to contain the communist powers –​the Soviet Union and People’s Republic of China –​and to allow Japan to recover from the damage of the war, but never so far as to enable the country to become a threat to the United States. Japan was incorporated into the US’s security system so that the United States controlled Japan’s military power and its energy supply. Japan did not have to, and it would have been detrimental to, expand its military power as long as it was under the umbrella of the United States.25 Notwithstanding the containment, the United States gradually demanded Japan pay its share regarding sea lane defense.26 The jmsdf was not strong enough to operate in the blue waters in the 1950s. However, in the late 1960s after the Cuban missile crisis and the Vietnam War, the global balance of power shifted, as the Soviet Union’s maritime power increased and the US’s dominance in the West Pacific and Indian Oceans relatively declined.27 The Nixon Doctrine in 1969 forced Japan to reshape its defense policy and to develop naval defense capability.28 In 1978, Japan and the United States adopted the Guidelines for Defense Cooperation for the first time.29 The Guidelines did not “obligate either

24

25 26 27 28

29

A. Smith, Japan Rearmed : The Politics of Military Power (Harvard University Press, 2019). See also Glenn D. Hook et al., Japan’s International Relations: Politics, Econmics and Security (Routledge, 2013). There are a number of studies regarding the Japanese post-​World War ii policies on international relations. For the latest research on the interaction and coordination between Japan and the United States, see James Kraska and Yusuke Saito, “The Law of Military Operations and U.S. –​Japan Alliance,” Naval War College Review 73, no. 3 (2020): 85–​111; Kara Bue et al., More Important Than Ever: Renewing the U.S.-​Japan Alliance for the 21st Century (Center for Strategic and International Studies, 2018); Kyoko Hatakeyama, Japan’s Evolving Security Policy (Routledge, 2021). Takashi Shiraishi, “Japan and Southeast Asia,” in Network Power: Japan and Asia, ed. Peter J Katzenstein and Takashi Shiraishi (Cornell University Press, 1997), 169. See Chapter 7, Section 1. National Security Council, “National Security Study Memorandum 5: Japan Policy,” 28 April 1969, Digital National Security Archive (DNSA), Japan and the U.S., 1960–​1976. “Informal Remarks in Guam with Newsmen, July 25, 1969,” Public Papers of the Presidents of the United States: Richard Nixon, 1969, 544–​556. The doctrine was officially published in February 1970. First Annual Report to the Congress on United States Foreign Policy for the 1970s, Public Papers of the Presidents of the United States: Richard Nixon, 1970, 116–​190. Guidelines for Japan-​U.S. Defense Cooperation, November 27, 1978, available at https://​ www.mod.go.jp/​en/​j-​us-​allia​nce/​gui​deli​nes/​index.html.

Introduction

7

government to take legislative, budgetary, administrative,” yet instructed the parties to establish an effective framework for the alliance. The instrument confirmed that the jmsdf and the US Navy would jointly conduct maritime operations to defend the surrounding waters and protect the sea lanes of communication (sloc).30 In the early 1980s, Japan adopted the 1,000 Nautical Mile Sea-​Lane Defense Policy,31 which was the government’s first official plan to protect its sloc by developing its defense capability anti-​submarine reconnaissance, protection of the straits and ports, and mine clearing.32 The goal was to cover two major sea routes that are both strategically important. One heads towards the southwest through the Ryūkyū Islands and the Nansei Shotō towards the Bashi Channel, and the other towards the southeast from the Ogasawara Islands to Guam.33 Such a plan was necessary to enable the 7th Fleet, the US Army and Marines to smoothly move to Hokkaidō, in case an emergent situation occured. The Guidelines for Defense Cooperation of 1997 reflected that Japan-​U S operational cooperation included sea and airspace management by specifying maritime traffic coordination to increase sea and air traffic control and airspace management in and around Japan.34 Furthermore, the Guidelines of 2015 included a separate section on maritime security.35 This instrument was adopted shortly before the substantial amendment of the sdf Act. In the light of the significant change of the global and regional security environment, including the power competition in the Indo-​Pacific region, it emphasized “seamless, robust, flexible, and effective bilateral responses” and the close alliance coordination. Then, it explicitly stated that the two governments will cooperate closely on measures “to maintain maritime order based upon international law, including freedom of navigation.” These policies pushed the close coordination between the forces on the both sides. As this book will 30 Ibid. 31 This term first appeared in the Diet in 1980. Hara Tōru, Director, Bureau of Defense, Defense Agency, 91st Diet, hc, Budget Committee, No. 3 at 14, February 14, 1980. Prime Minister Suzuki’s statement appears at Visit of Japanese Prime Minister Suzuki, 81 US Department of State Bulletin, No. 2051 at 3, June 1981. 32 See Chapter 7, Section 1. 33 Ibid. See also Euan Graham, Japan’s Sea Lane Security 1940–​2004, 2005, 101; Alessio Patalano, “ ‘The Shape of Things to Come?’: The Decade the US-​Japan Security Treaty Became a ‘Maritime Alliance’ (1971–​1981),” in 2016 International Forum on War History: Proceedings, 2016, 119. 34 Guidelines for Japan-​US Defense Cooperation, September 23, 1997, available at https://​ www.mod.go.jp/​en/​j-​us-​allia​nce/​gui​deli​nes/​index.html. 35 Guidelines for Japan-​US Defense Cooperation, April 27, 2015, available at https://​www. mod.go.jp/​en/​j-​us-​allia​nce/​gui​deli​nes/​index.html.

8 Introduction explore, the United States’ security strategy in the region directly influenced the Japanese maritime laws and policies. The second is Japan’s instable diplomatic foundation with the neighboring states. The San Francisco Peace Treaty of 195136 did not create a solid regional order in the Far East. The Soviet Union, China, the Republic of Korea (rok), and the Democratic People’s Republic of Korea (dprk) did not sign this instrument. It was not until 1956 that Japan restored its relations with the Soviet Union,37 1965 with the rok,38 and 1972 with mainland China.39 Japan concluded the peace treaty with Taiwan –​the Kuomintang government that represented China –​in 1952,40 but terminated its recognition after establishing diplomatic relations with Beijing. To this date, Japan has not normalized formal diplomatic relations with dprk. Notwithstanding Japan’s reparations and apologies for its responsibility for its actions until the end of Wolrd War ii, the historical problems keep coming up, making diplomatic relations difficult.41 Japan faces territorial disputes with Russia and the rok on the Northern Territories42 and Takeshima respectively.43 China and Taiwan claim their territorial sovereignty over Senkaku Islands. Furthermore, Japan has not entered into maritime delimitation agreements with the neighboring countries, except the one with the rok regarding the continental shelf between Kyūshū Island

36 37 38 39 40 41 42

43

Treaty of Peace of Japan, adopted on September 8, 1951, entered into force on April 28, 1952, 136 unts 1832. Joint Declaration by the Union of Soviet Socialist Republics and Japan, signed on October 19, 1956, entered into force on December 12, 1956, 263 unts 99. Treaty on Basic Relations between Japan and the Republic of Korea, signed on June 22, 1965, entered into force on December 18, 1965, 583 unts 44. Japan-​China Joint Communiqué, signed on September 29, 1972. Treaty of Peace, signed on April 28, 1952, entered into force on August 5, 1952, 138 unts 3. See Onuma Yasuaki, “Japanese War Guilt and Postwar Responsibilities of Japan,” Berkeley Journal of International Law 20 (2002): 600–​620. Northern Territories here refers to Iturup (Etorofu-​tō); Kunashir (Kunashiri-​tō); Shikotan (Shikotan-​tō); Habomai Islands (Habomai-​guntō). They are at times called “Kurile Islands,” but the very issue of the territorial dispute between Japan and Russia is whether they are included as a part of “Kurile Islands,” title to which Japan renounced under the San Francisco Peace Treaty. Therefore, this book uses the term “Northern Territories.” For an overview of Japan’s territorial disputes, see Kentaro Serita, Territory of Japan: Its History and Legal Basis (Japan Publishing Industry Foundation for Culture, 2018); Raul Pedrozo, “International Law and Japan’s Territorial Disputes,” International Law Studies 92 (2016): 119–​52. For the historical concept of the territory in Japan, see Masaharu Yanagihara, “Some Thoughts on The Concept of Territory in The Late Edo and Early Meiji Periods,” The Japan Institute of International Affairs Repository, 2018, 1–​27.

Introduction

9

and Cheju Island.44 It has concluded provisional arrangements to develop natural resources within its jurisdictional waters instead.45 Still, the lack of delimitation agreements has been one reason why disputes remain regarding the use of the Sea of Japan and the East China Sea. While the United States shifted its power from this region after the Cold War ended, the security threats posed by the neighboring countries continued. Soviet Union continuously posed security threats during the Cold War. Russia has enhanced its military presence by keeping intruding Japanese Air Defense Identification Zone (adiz) and territorial air. The sdf’s number of scrambles against Russian military aircraft has doubled in a decade since 2000. China started to increase its naval power in the 1980s. In the later 2000s, it started to act assertively in the Sea of Japan and East China Sea by sending their ships to the Senkaku Islands and building oil rigs in the undelimited area of East China Sea. dprk started to develop nuclear arms and missiles in the 1990s and first tested its nuclear weapon in 2006. It keeps testing missiles regardless of the UN Security Council resolutions prohibiting such operations. These emerging security threats in the region compelled Japan to reconsider its national security strategy. 2

The Path to “Internationalism”

Japan’s “unilateral pacifism” is a pathology that emerged because Japan tried to reflect these interests in its exceptional way. The overarching question of this book is whether and to what extent it has defined Japanese maritime security and law of the sea. To answer this question, the study will examine the Japanese domestic law and its interpretation of international law regarding the use of force, and the mandates of the sdf and jcg, the two organizations authorized to use coercive measures in each maritime zone under the coastal state’s jurisdiction and the airspace above them, both in peacetime and in time of emergency. In this process, the book tries to seek the path to “internationalism” –​a principle that transcends nationalism and advocates political and economic cooperation among countries. The ocean is a sharable space, allowing states to simultaneously satisfy a range of objectives, such as transportation, 44 45

Agreement between Japan and the Republic of Korea concerning the Establishment of Boundary in the Northern Part of The Continental Shelf Adjacent to The Two Countries, signed on January 30, 1974, entered into force on June 22, 1978, 1225 unts 103. See Chapter 5, Section 1.

10 Introduction communication, and exploitation of the sea. Because this open nature of the maritime domain risks subjugation by certain states, the development of the law of the sea has involved dynamic interaction between the need for a stable international framework and the ambitions of the maritime powers. It has been prerequisite for Japan to design a normative system that modifies disparities in power and allows equitable use of the maritime domain since its opening of the country in the 1850s.46 The necessity to seek the paths towards internationalism is well recognized in the Japanese government after the end of World War ii. It is notable that Yoshida himself –​who defined Japan’s naval policy during the Cold War –​was an internationalist.47 In the last days of the Cold War, the government started to seek such a path albeit gradually. In 2004, when the National Defense Program was adopted and the amendment of the sdf Act followed, international cooperation became the primary mandate of the sdf.48 The Cabinet expressed that “improving the international security environment is one of the major pillars of Japan’s security policy, whose prosperity and growth depend heavily on the security of the sea line of communication.”49 The National Defense Program stated that it is necessary to achieve these goals by both its efforts and cooperative efforts with the United States, Japan’s alliance partner, as well as with the international community. The National Security Council and stronger leadership of the Cabinet have been the push-​factors to enhance the national security policies that are internationally accountable. After all, the preamble to the Japanese Constitution stipulates this principle and reads, “[w]‌e desire to occupy an honored place in an international society striving for the preservation of peace.” It is necessary to unravel Japanese legal concepts based on understanding the dynamics behind its national security. In light of these development, this book traces how Japanese law concerning maritime security oscillates between unilateral pacifism and internationalism after World War ii.

46 47

48 49

For a comprehensive analysis on Japan’s acceptance of and contribution to the law of the sea, see Naoya Okuwaki, “Nihon Ni Okeru Kaiyōhō,” Jurist 1387 (2009): 68–​78. While he was a patriot, he prioritized diplomacy, most notably the relations with the United States. Yuichi Hosoya, Jishu Dokuritsu to Ha Nanika (Shinchosha [Japanese], 2018), 47; Shin’ichi Kitaoka, Nihon Seiji-​Shi –​Gaikō to Kenryoku (Yuhikaku [Japanese], 2017), 210. See also Nakasone Peace Institute, The Japan-​US Alliance of Hope : Asia‐Pacific Maritime Security (Japan Publishing Industry Foundation for Culture, 2020). National Defense Program Guidelines, approved by the Security Council and the Cabinet on December 10, 2004, available at https://​www.mod.go.jp/​e/​d_​act/​d_​pol​icy/​natio​nal.html. Statement by the Chief Cabinet Secretary, December 10, 2004, para.3, available at https://​ www.mod.go.jp/​e/​d_​act/​d_​pol​icy/​natio​nal.html.

Introduction

11

The underlying question in this context is to what extent Japan has endorsed the comprehensiveness of unclos. The convention defines the maritime zones that the coastal states may claim, stipulates how zones are to be delimited and sets out the respective rights and obligations of coastal other states therein. International jurisprudence points to the interpretation that the States should understand the instrument to be comprehensive or collectively exhaustive.50 This understanding is, of course, not without criticism. However, the convention is intended to be the constitution of the law of the sea. In addition, the prohibition on reservation prescribed in Article 309 will support such an explanation. There existed various coastal states’ claims before 1982, yet one of the purposes of unclos was to overcome that inconsistency and create a regime that supersedes such discrepancies. If one allows interpretation to recognize a zone not provided under the Convention, it will make the delicate balance meaningless.51 This book will pay careful attention to the extent to which Japan’s maritime policies coincide with this understanding. This book’s methodology follows the positivist doctrine. One of the primary goals of this book is to describe and analyze the development of Japanese law. At the same time, it recognizes law as a product of a process of claims and counterclaims, assertions, and government reactions as representative of states and other actors both at the domestic and international levels.52 Therefore, the book gives weight to the process of articulating and assessing what occurs when rights or interests are engaged. When one deals with maritime security issues, deconstructing legal arguments seems necessary to explain historically conditioned conceptual schemes. Such a clarification regarding Japanese maritime security law is the main task of this volume. This approach fits with this book’s theme because the laws concerning maritime security –​a concept which has legal, policital and operational aspects –​have developed through interactions among participants within the legal processes. This book will not delve into the general international law theories regarding the use of force and law of the sea, in light of their depth and complexity. The present contribution will limit itself to analyzing the Japanese domestic law’s 50 51

52

Donald R. Rothwell and Tim Stephens, The International Law of the Sea, (Hart, 2nd ed. 2016), 14. See Annex vii Arbitral Tribunal, The South China Sea Arbitration (The Philippines v. China) [South China Sea], July 12, 2016, pca Case No. 2013-​19, paras. 253, 263. The Japanese foreign minister upheld the unclos’s universality and comprehensiveness. mofa, Press Release, July 21, 2021. James Crawford, Chance, Order, Change (Martinus Nijhoff, 2014), 20. See also Onuma Yasuaki, International Law in a Transcivilizational World (Cambridge University Press, 2017), 124.

12 Introduction structure and its compatibility with international law. Neither this book covers all of the topics on maritime security. In particular, it does not discuss the US’s use of the Japanese territory, Japan’s policy on the arctic and outer space, and law of naval warfare, notwithstanding their relevance.53 It will not examine the pre-​ World War ii history unless it is necessary to discuss contemporary problems. Lastly, the examination of the dynamics between unilateral pacifism and the internationalism of Japanese security policy would require a theoretical analysis of the concept of sovereignty constructed by Japanese constitutional lawyers, the nature of the transformation from the Constitution of the Empire of Japan to the current Constitution led by the ghq after Japan’s surrender and the significance of Article 9 and the administrative police power under public law. Answering these questions on a dogmatic level is beyond this volume’s scope. 3

Structure of the Book

This volume is divided into eight chapters, and each chapter specifies legal structures that Japanese laws on maritime security are based on. The purpose of Chapter 1 is to set the scene. It explores the historical development of Japanese national security law in the light of domestic politics and overviews the sdf’s mandate and authority under Japanese domestic law in the maritime domain both in times of emergency and in peacetime. It then discusses the logic of the “use of weapons,” which is a peculiar concept created under Japanese law. Chapter 2 discusses to what extent that unique Japanese approach to jus ad bellum may limit the options that the Japanese government can take and may bring about unexpected consequences in an international context. Chapters 3 to 6 concern Japan’s rights and obligations regarding the defense of its maritime areas –​in territorial waters, straits and air space. They go in detail into the concept of jurisdiction over territorial seas, straits used for international navigation and the territorial air under Japanese laws, and their relevance to its national security. Chapter 3 clarifies Japan’s position on the issues concerning the territorial sea throughout the historical development of the international law of the sea. 53

For Japan’s approach towards arctic, see Kentaro Nishimoto, “The Rights and Interests of Japan in Regard to Arctic Shipping,” in Governance of Arctic Shipping, ed. Robert C. Beckman et al. (Brill, 2017), 357–​78. On the outer space policies, see Setsuko Aoki, “Current Status and Recent Developments in Japan’s National Space Law and Its Relevance to Pacific Rim Space Law and Activities,” Journal of Space Law 35 (2009): 363–​438; Setsuko Aoki, Nihon No Uchū Senryaku ( Japanese) (Keio University Press, 2006).

Introduction

13

It examines the Japanese government’s interpretation of the rules of innocent passage and their relevance to the Non-​Nuclear Principles –​the policy that Japan will not allow nuclear weapons to be brought into Japanese territory, and the issue of to what extent the jcg or even the sdf may exercise physical force against ships owned by foreign governments within Japan’s territorial sea. Chapter 4 discusses straits. Japan has taken a peculiar policy by limiting the breadth of the territorial sea to 3 nm (nautical mile) in five strategically important straits used for international navigation. The chapter will also cover cooperation with the rok and Russia regarding the straits that Japan and the twos states share. Problems remain regarding the rest of the straits which are covered by territorial sea under Japanese law. Chapter 5 develops the analysis of maritime entitlement on jurisdictional waters. It focuses on the legal basis of the maritime title Japan claims under unclos and the allocation of the title with neighboring states. The analysis includes the provisional arrangement between Japan and its neighboring countries regarding undelimited areas and waters surrounding contested islands, namely, the Northern Territories, Takeshima and Senkaku Islands. Chapter 6 explores Japan’s law and policy over air defense, both within its territorial air and beyond. In particular, it concerns the domestic laws on territorial air defense, ballistic missile defense (bmd), and the air defense identification zone (adiz). It will focus on the logic of the use of weapons against missiles and unidentified aircraft heading towards Japanese territory. Chapter 7 discusses the political background and legal issues regarding the protection of sea lanes of communication. It will also discuss the anti-​piracy operations and the deployment of jmsdf to the zones the security of which has been threatened. Chapter 8 focuses on the problems concerning the cases where the Japanese government charters, operates or otherwise commands a civilian vessel to transport goods and persons for the purpose of preserving national security. It will briefly discuss the Japanese government’s effort to secure Japanese flags. It is a minor, but nonetheless important, part of Japanese maritime security policy. Finally, the conclusion will demonstrate how the unilateral pacifism has defined Japanese maritime security laws and policies. It will observe the ambivalent relationship between the unilateral pacifism and the internationalism.

­c hapter 1

Use of Weapons at Sea

Introduction

A military is a unique apparatus. It is an indispensable organization for securing national independence and its people’s safety, yet it has the capability to threaten peace and the rule of law. Therefore, each country has its system to govern its armed forces. Japan does it in a distinct manner. In my view, its exceptionality does not lie in the Constitution. It is the structure of the sdf Act that contains certain limits in its functioning as a military law. Section 1 examines the characteristics of the Japanese national security law. Then, Section 2 will analyze the significance and the limits of the statutory restriction of the jcg and jmsdf’s use of weapons. 1

The Basis of Japanese National Security Law

1.1 Constitutional Limits The foundation of Japanese national security law is the Constitution, which is the supreme law of the nation. Its founding principles are popular sovereignty,1 the separation of powers,2 and civilian control.3 No law, ordinance, or other act of government, contrary to the provisions within it, will have legal force or validity.4 It follows that the interpretation of Article 9, which falls under a Chapter entitled “renunciation of war,” is of prime importance. The provision reads as follows.

(1) Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign

1 Constitution, Article 1. 2 Constitution, Articles 41, 65, 76. 3 Constitution, Article 66(1). In order to maintain civilian control, the Constitution provides that “[t]‌he Prime Minister and other Ministers of State must be civilians.” A “civilian” is a person who is neither (1) an individual who experienced the former Army or Navy and is deeply influenced by military ideology; nor (2) who is currently an sdf officer. Tanaka Kakuei, Prime Minister, 72nd Diet, hr, Budget Committee, No. 2 at 24, December 6, 1973. See also Ohmura Jōji, 72nd Diet, hr, Committee of Construction, No. 3 at 1, December 19, 1973. 4 Constitution, Article 98(1).

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004500419_003

Use of Weapons at Sea



15

right of the nation and the threat or use of force as means of settling international disputes. (2) In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.

The government in 1946 initially upheld an understanding that the provision prohibits every use of force, including the use of force for self-​defense,5 while it was before the Constitution came into effect. Japan was still under the control of the ghq at the time.6 Japan regained its independence on April 28, 1952, when the San Francisco Peace Treaty came into effect. The government made a statement that “necessary minimum force” for individual self-​defense is allowed under Article 9 as long as an imminent and unlawful intrusion against Japan occurred, there is no appropriate means to exclude the harm and the use of force is limited to the minimum necessary.7 The establishment of the National Security Forces, the predecessor to the sdf, in 1952 followed after this interpretation.8 5

6

7

8

Yoshida Shigeru, Prime Minister, 90th Imperial Diet, Issue an Extra, No. 6 at 79–​81, June 27, 1946. For the history of the interpretation of Article 9, see Hideaki Shinoda, Shūdanteki Jieiken No Shisōshi (Fukosha [Japanese], 2016). For the characteristics of Japanese position in the international society after World War ii, see also Wakamizu Tsutsui, The Changing Postwar International Legal Regime:The Role Played by Japan (Kluwer Law International, 2002). The supreme law in Japan was the Instrument of Surrender during September 3, 1945, until the San Francisco Treaty of Peace came into effect on April 28, 1952. Instrument of Surrender, signed at September 2, 1945, Records of the U.S. Joint Chiefs of Staff: Record Group 218. Its Paragraph 6 required the Japanese government to carry out the provisions of the Potsdam Declaration, of which paragraphs 6 and 9 provided for the disarming of Japanese forces. The interpretation came against the background that the United States intended to completely disarm and demilitarize Japan at the initial stage. See U.S. Initial Post-​Surrender Policy for Japan (swncc150/​4 /​a ), September 21, 1945, ghq/​s cap Records, the United States National Archives & Records Administration (rg331). Yoshida Shigeru, Prime Minister, 13th Diet, hc, Budget Committee, No. 16 at 13, March 6, 1952. Yoshida already in 1950 stated that Japan is entitled to the right of self-​defense. Yoshida Shigeru, Prime Minister, 7th Diet, hr, Plenary Conference, No. 11 at 1, January 23, 1950. When the sdf was established, the government reiterated that the Japan was entitled to the necessary minimum force for individual self-​defense. Ōmura Seiichi, the Secretary of Defense Agency, 21th Diet, hr, Budget Committee, No. 2 at 1, December 22, 1954. The supporters of the “re-​interpretation” of Article 9 in 2014 referred to the statement of 1952 as one of the justifications. Because the “re-​interpretation” of 1952 was accepted, they argued, so should be the one in 2014 be. Craig Martin criticizes this view because the statement of 1952 was in effect the first formal interpretation of Article 9 after the return of full sovereignty. He argues that to characterize it as a “change” is an attempt to justify “re-​interpretation” in 2014 and fallacious. Craig Martin, “Change It To Save It: Why

16 

Chapter 1

The government “re-​interpreted” Article 9 in July 2014 to recognize the exercise of the right of self-​defense when an armed attack against a foreign state occurred.9 According to this renewed position, the use of force must satisfy the following conditions.10 First, in the case of individual self-​defense, an armed attack against Japan from outside the country occurs. Alternatively, in the case of “collective self-​defense,” an armed attack against a foreign country that is in a close relationship with Japan occurs, which threatens Japan’s survival, and circumstances are created that pose a clear danger that would fundamentally alter (or, in the words of the government, “overturn”) the Japanese people to life, liberty, and the pursuit of happiness.11 Second, self-​defense may be used when there are no other appropriate means available to repel the attack and ensure Japan’s survival and protect its people. Third, the use of force should be limited to the minimum necessary for self-​defense.12 While this re-​interpretation received a significant amount of criticism, these requirements stand as of today. This book will not get into this debate over the significance of Article 9. 1.2 The Structure of the Self-​Defense Forces Act Article 9 of the Constitution prohibits the maintenance of “land, sea, and air forces, as well as other war potential,” and the instrument does not have any other provision which deals with the authority of the commander-​in-​chief. The Prime Minister, who has the highest authority over the sdf, exercises the power to command and control the sdf based on Article 72 of the Constitution, which provides that the Prime Minister “exercises control and supervision over various administrative branches.”13 The Cabinet Act Article 6 provides that the And How To Amend Article 9,” Ritsumeikan Journal of Peace Studies 18 (2017): 14; Craig Martin, “Binding The Dogs of War: Japan and The Constitutionalizing of Jus Ad Bellum,” University of Pennsylvania Journal of International Law 30 (2008): 268. 9 Cabinet Decision, Development of Seamless Security Legislation to Ensure Japan’s Survival and Protect its People, July 1, 2014. 10 sdf Act, Article 76. 11 Prior to this re-​interpretation, the term “imminent and unlawful intrusion” was used instead of “an armed attack.” The government changed the expression but explained that in substance the meaning was “essentially the same.” Yokohata Yusuke, Secretary of Legislative Bureau, Cabinet Office, 189th Diet, hr, Special Committee for the Peace and Security Legislation for Japan and International Society, No. 6 at 34, June 1, 2015. Yokohata explained that the concept of “armed attack,” the requirement of use of force under international law, inherently included imminent and unlawful intrusion. This requirement of “intrusion” was borrowed by the concept of legitimate defense in general. 12 Ibid. 13 Constitution, Article 72. On the contrary, the Constitution of the Empire of Japan, Article 11, provided that the Emperor had the supreme command of the Army and Navy.

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17

Prime Minister has to exercise this power based on the decision made in the cabinet meeting.14 The sdf Act Article 7 provides that the Prime Minister has the high command to the sdf. The sdf Act authorizes the sdf to take certain “Operations” (kodō) when necessary for a particular “Situation” (jitai). This book will explain before it uses these terms and capitalize the initial letters of each operation. The mandate of the sdf is divided into the primary and secondary mandates. The primary mandate is to defend Japan to protect the country’s peace and independence.15 This is the duty that only the sdf is in charge of. The secondary mandate is to maintain the public order of Japan.16 It is principally the responsibility of the police organizations, the National Police Agency in the land area and the jcg at sea, to maintain safety in the domestic sphere. The sdf plays a role when these organizations cannot deal with threats and crises. When the police power cannot maintain the public order in a case of emergency, the Prime Minister may issue the Public Security Operation (chian shutsudō) order.17 When there is a special need to protect human lives or property or to maintain the public order at sea, the Minister of Defense may issue the Maritime Security Operation (kaijo keibi kodō) order.18 In addition, the sdf’s role in this regard includes a wide range of operations, such as measures against ballistic missile defense,19 measures against intrusion into the territorial airspace,20 and anti-​piracy operations.21 To the extent that they do not hinder the pursuance of the primary mandate and are not equivalent to the threat or use of force, the sdf has the following activities as a part of the secondary mandate.22 One is to secure Japan’s safety in situations that would gravely affect Japan’s peace and security if left as they were. The other is to contribute to the peace and security of international society through contributions to measures for international peace, mainly through the United Nations and other forms of international cooperation. This distinction between the primary mandate under Article 3(1) of the sdf Act and the rest is fundamental. It is because only for the former purpose –​to defend Japan and to protect the peace and independence of the 14 Cabinet Act, Act No. 5 of 1947, Article 6. 15 sdf Act, Article 3(1). 16 Ibid. 17 sdf Act, Article 78. Public Security Operation order has never been issued to this date. 18 Ibid., Article 82. See Section 2.2. 19 Ibid., Article 82-​3. See Chapter 6, Section 2. 20 Ibid., Article 84. See Chapter 6, Section 1. 21 Ibid., Article 82-​2. See Chapter 7, Section 2. 22 Ibid., Article 3(2).

18 

Chapter 1

country –​may the sdf resort to a “use of force” (buryoku no kōshi). The government defined the “use of force” under Article 88 of the sdf Act as “combat acts done as a part of international armed conflict by material and human organizations by states.”23 The sdf Act provides three types of such situations when the Prime Minister may issue a Defense Operation order.24 They are an Anticipated Armed Attack Situation,25 an Armed Attack Situation,26 and a Survival Threatening Situation.27 The Diet must declare the existence of one such situation and approve the Defense Operation.28 Once the Prime Minister authorizes the operation, each individual attack is not subject to an individual permission. The government has taken the position that the “use of force” under Article 2(4) of the UN Charter and Article 9 of the Constitution is “essentially identical.”29 However, the meaning of “essentially” has never been clarified.30 In addition, the requirements for the issuance of the Defense Operation

23

The government submitted its position paper on “The Relationship between The Use of Weapons and Use of Force” on September 27, 1991 to hr, Special Committee of International Peace Cooperation and Others. See Ishibashi Daikichi, 122nd Diet, hr, Special Committee of International Peace Cooperation and Others, No. 3 at 19, November 18, 1991. 24 There are three phases in the case of individual self-​defense, i.e., when Japan is attacked: a situation where an armed attack is expected (buryoku kōgeki yosoku jitai); a situation where the armed attack is imminent (Anticipated Armed Attack Situation, buryoku kōgeki seppaku jitai); and a situation where an armed attack has actually occurred (Armed Attack Situation, buryoku kōgeki jitai). A Defense Operation order may be issued in each case, but the use of force is permitted only in the latter two situations. sdf Act, Article 88. Act on Japan’s Peace and Independence and Securing of Safety of the State and Nationals at an Armed Attack Situation, Act No. 79 of 2003, Article 2(1). 25 sdf Act, Article 76(1)(i). 26 Ibid. 27 Ibid., Article 76(1)(ii). The Survival Threatening Situation (sonritsu kiki jitai) is when an armed attack occurs against a foreign country with which Japan has a close relationship and, as a result, Japan’s survival and poses a clear danger to the Japanese people’s right to life, liberty and the pursuit of happiness. This wording, “the Japanese people’s right to life, liberty and the pursuit of happiness,” reflects the texts of Article 13 of the Constitution, a provision on the fundamental human rights. Its second sentence provides that “Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.” 28 Ibid., Article 76(1); Act No. 79 of 2003, Article 9(4). The approval must be done prior to the operation in principle, unless there is an emergent necessity and there is no time for the prior approval of the diet. 29 Questions Statement, Kaneta Seiichi, 153rd Diet, hr, No. 27, February 5, 2002. 30 Takeshi Nakano, “Buryoku Koshi /​Buki Shiyo No Hoteki Kisei [The Legal Regulation of The Use of Force /​Use of Weapons] (Part I),” Jichi Kenkyu 93, no. 9 (2017): 84 (n.3).

Use of Weapons at Sea

19

order is much stricter than the requirements for exercise of the right of the self-​defense under Constitution Article 9.31 When the sdf has to take forcible measures for other mandates, there is a strict limit on its “use of weapons” (buki no shiyō). The “use of weapons” means the use of machines, instruments, and devices, such as firearms, explosive material, and swords, for killing people directly or destroying objects through armed combats.32 The same term is used in some international instruments33 but their significance is irrelevant in the present context. The sdf Act Chapter 3 lists each case in which the sdf may use weapons. In 1991, the Diet reviewed the draft Act on Cooperation with United Nations Peacekeeping Operations and Other Operations (pko Act), which codified the sdf’s mandate to use weapons abroad for the first time.34 It has been the government’s position that the use of weapons does not conflict with the Constitution. The use of weapons will “never” evolve into the use of force prohibited under Constitution Article 9 because (1) the former is strictly based on the principle of proportionality and (2) the situations where the use of weapons is allowed are limited to the cases where a state or a quasi-​state will never confront the sdf.35 Whether this explanation will be justified under international law will be examined in the following chapters. The relationship between the use of force and weapons is not as simple as the government explains. Nakano Takeshi argues that there are two possible interpretations of the use of force.36 A narrow interpretation limits the meaning of “force” as an exercise of the power of the sdf –​an organization fighting 31 32 33

34 35

36

Chapter 2, Section 1.1. Kudō Atsuo, Director of the Cabinet Legislation Bureau, 121st Diet, hr, Special Committee on Peace Keeping Operation, No. 3 at 3, September 25, 1991. For instance, see Convention on International Civil Aviation, signed on December 7, 1944, entered into force on April 4, 1947, 15 unts 295, Article 3-​2; Convention (iii) relative to the Treatment of Prisoners of War, signed on August 12, 1949, entered into force on October 21, 1950, 75 unts 135, Article 42; Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, signed on October 10, 1980, entered into force on December 2, 1983, 1342 unts 137, Article 3(8). Act No. 79 of 1992, Article 24. Nomura Issei, Councilor, Cabinet Secretariat, 122th Diet, hr, Special Committee on International Peace Cooperation, No. 5 at 15, November 20, 1991. This explanation was maintained in 2015. See Abe Shinzō, Prime Minister, 181st Diet, hr, Special Committee on Peace and Security Legislation, No. 3 at 6, May 27, 2015. Nakano, “Buryoku Koshi /​Buki Shiyo No Hoteki Kisei [The Legal Regulation of The Use of Force /​Use of Weapons] (Part I),” 73. Part 2 is available at Takeshi Nakano, “Buryoku Koshi /​Buki Shiyo No Hoteki Kisei [The Legal Regulation of The Use of Force /​Use of Weapons] (Part II),” Jichi Kenkyu 93, no. 10 (2017): 49–​70. Part 3 is available at Takeshi

20 

Chapter 1

against a foreign force done as a function of a country’s sovereignty. The text of the sdf Act Article 88(1), which provides for “Defense Operation,” is consistent with this understanding. In contrast, a broader interpretation defines the use of force as a power exercised by the individual members of the sdf against the members of a foreign force. This interpretation better justifies the control over the sdf, wherein an officer is entitled to use weapons, but the sdf is not engaged in the use of force.37 The government explains that the use of weapons is not the use of force prohibited by Article 9 of the Constitution.38 Nakano points out that this could be read as either that the use of weapons is not the use of force or that the use of weapons is a part of the use of force permitted under Article 9.39 The government does not seem to have explicitly clarified its position in this regard. A Brief History of the Development of the Concept of the Use of Weapons The distinct feature of Japanese national security law is that the sdf are to use weapons under the statutory restrictions to exclude national security threats. To this date, the sdf has never engaged in the use of force. In other words, the sdf’s mandates for other than the use of force has been essential in protecting the country. It is necessary at this stage to elaborate on the significance of the concept of the use of weapons. It would be useful to start with an overview of this concept’s development.40 The National Police Reserve, the sdf’s predecessor, was established as a police organization in August 1950 two months after the Korean War erupted.41 Declassified documents show that it was referred to as a “constabulary” and 1.3

37 38 39 40

41

Nakano, “Buryoku Koshi /​Buki Shiyo No Hoteki Kisei [The Legal Regulation of The Use of Force /​Use of Weapons] (Part III),” Jichi Kenkyu 93, no. 11 (2017): 24–​43. sdf Act, Article 3(2). Abe Shinzō, Prime Minister, 181st Diet, hr, Special Committee on Peace and Security Legislation, No. 3 at 6, May 27, 2015. Nakano, “Buryoku Koshi /​Buki Shiyo No Hoteki Kisei [The Legal Regulation of The Use of Force /​Use of Weapons] (Part I),” 26. Under the laws of Imperial Japan, the use of weapons against its own nationals was in principle illegal. The Imperial Army Order No. 3 of 1910, amended as Order No. 5 of 1916, permitted the use of weapons in limited situations. However, its legal structure is fundamentally different from that of the post-​World War ii regulations, and so this book will not examine the rules at that time. See Nakano, “Buryoku Koshi /​Buki Shiyo No Hoteki Kisei [The Legal Regulation of The Use of Force /​Use of Weapons] (Part II),” 79. Order No. 260 of 1950.

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considered to have a paramilitary role.42 The National Police Reserve was reformed into the National Safety Forces in October 1952. The National Safety Forces Act recognized the use of weapons to protect the warehouses of weaponries.43 When the sdf was established in July 1954, the sdf Act succeeded and amended this provision to authorize sdf personnel to use weapons to protect weapons and other machinery.44 The Act strictly limited the conditions for taking coercive measures that could harm other people to the case of legitimate defense. It was not designed to restrict military capacity, but rather copied the Police Duties Execution Act, which specifies the police’s authority.45 The government characterized the protection of weapons and machinery as the exercise of police power.46 On the other hand, sdf personnel are not authorized to use weapons against the citizens in Japan’s territory to protect themselves except in an emergency.47 Contrary to the police, sdf personnel do not have the judicial police authority, and thus they do not engage in the suppression of crimes and the arrest of the suspects. The jsmdf evolved through a historically different path from the jgsdf.48 Before World War ii ended, maritime policing activities were within the Imperial Navy’s mandate because there was no separate institution governing the maritime safety. After the Imperial Navy was dissolved, the ghq required Japan to clear the mines in ports and sea lanes as early as September 1945.49 42 43 44 45 46

47 48

49

Increase in Japanese Security Agencies (National Police Reserve, Maritime Safety Agency), ghq/​s cap Records, Top Secret Records of Various Section, Administrative Division, esd-​ 3, File 12. sdf Act, Article 76. Ibid., Article 95. Act No. 136 of 1948, Article 7. Concerning the details of the use and the treatment of the weapons, see Code of Conduct concerning the Use and the Treatment of Guns by Police Officers and Others, National Public Safety Commission, Regulation, No. 7 of 1962. Tomofuji Kazutaka, Defense Agency, Director General, 107th Diet, hr, Cabinet Committee, No. 3 at 11, October 23, 1986. The explanation was provided at the time of the amendment of Article 95. For the analysis of the legislative development concerning the use of weapons, see Nakano, “Buryoku Koshi /​Buki Shiyo No Hoteki Kisei [The Legal Regulation of The Use of Force /​Use of Weapons] (Part II),” 81. sdf Act, Articles 92-​5, 92-​4. Article 90 under Public Security Order allow the sdf to use weapons under certain limits. For the historical development of the jmsdf and the use of weapons, a detailed description may be found in Susumu Nakamura, “Jietiai No Bukino Shiyo [The Use of Weapon by The Self-​Defense Force]” (Yokohama Kokuritsu University (Ph.D. Dissertation, Ko No. 1490), 2012), Chapter 1 (unpublished; on file with the National Diet Library). General Order No. 1, September 2, 1945, reproduced in Jun Eto, Senryo-​Shi Roku ( Japanese) (Kodansha, 1981), 191. There remained 55,000 mines laid by Japan and 12,000 that the United States dropped during the bombing operations during the Pacific War.

22 

Chapter 1

Furthermore, the Sea of Japan became chaotic, with many smuggling activities and illegal entries into Japan.50 In 1946, the Ministry of Transportation established the Monitoring Headquarters to prevent the unlawful entry of foreign vessels.51 While the Japanese government had asked the ghq for a formal maritime police establishment, it was not until cholera spread into the Korean Peninsula that the ghq agreed to create a coastguard.52 The jcg was founded as an external bureau of the Ministry of Transportation in May 1948.53 To prevent the jcg from turning into a navy, the jcg Act laid down certain conditions. It stipulated that jcg personnel might use the weapons only to protect the officers themselves54 and that the weapons should be limited to small arms for jcg officers.55 It also specified that the jcg and its personnel should not be trained or organized as a military establishment, and it should not function as such.56 In May 1950, the jcg Act was amended, and the provision on the use of weapons was added by reference to the Police Duties Execution Act, which was enacted in June 1948.57 In October 1951, the so-​called “Y-​Committee” was established secretly and directly under the Cabinet to discuss the re-​establishment of a Japanese maritime force. Its initial purpose was to lay the framework for the US’s provision of its naval ships on loan to Japan. The committee consisted of former Navy officials and the personnel of the jcg. As a result of the committee’s meetings, the Coastal Safe Force was established in April 1952 as an external bureau of the jcg. The National Safety Forces Act provided the Secretary of the Defense Agency’s authority to dispatch the Coastal Safe Force to take necessary measures when there was an emergent necessity to protect lives and property at sea or maintain security.58 The idea was to integrate the Coastal Safe Force and the 50

Supreme Commander for the Allied Powers Directives (scapin) 1391, “Suppression of Illegal Entry into Japan,” December 10, 1946; scapin 1015, “Suppression of Illegal Entry into Japan,” June 12, 1946. 51 It was abolished in 1949 under Act No. 157 of 1949. 52 Japan Coast Guard, Ten Years of History ( Ju-​Nen Shi) (Heiwa no umi kyokai, 1961), 30; James Auer, “Japans Maritime Self-​Defense Force: An Appropriate Maritime Strategy?,” Naval War College Review 24 (1971): 3–​18. 53 The jcg’s English name was until 2000 the Maritime Safety Agency (msa). However, its Japanese name has not been changed. This book will consistently use jcg to avoid confusion. 54 jcg Act, Article 20. Before this provision was inserted, it is recorded that the jcg personnel had to combat the criminals with potatoes and firewoods. Japan Coast Guard, Ten Years of History ( Ju-​Nen Shi), 32. 55 Ibid. 56 Ibid., Article 25. 57 Act No. 136 of 1948. 58 Act No. 264 of 1951, Article 65.

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jcg into a single organization, the Safety Security Force, under the National Safety Forces’s authority, to be the maritime force of Japan.59 However, because of strong opposition from the jcg, the Act was repealed before it came into force on July 1, 1954, when the Defense Agency was established to replace the National Safety Agency. The jcg remained as the bureau of the Minister of Transportation. The sdf was authorized to use weapons to defend its assets under sdf Act Article 95, but its international implication was slim. The Japanese government hesitated to dispatch the sdf abroad during the Cold War. In 1958, it declined to send sdf officers to United Nations Observation Group in Lebanon to monitor Lebanon’s ceasefire because it would conflict with the sdf Act and the Act on Establishment of the Defense Agency.60 In 1965, the jmsdf for the first time deployed its assets abroad when a large typhoon hit Japanese fisheries vessels in Mariana.61 The operation was done in the high seas and it was to rescue the Japanese, so there was no inter-​state dimension. Furthermore, the Act concerning the Deployment of International Emergency Assistance Unit of 1987 was enacted, which allowed the sdf to engage with humanitarian relief operations when there was a request from the state. Still, it did not grant the sdf authority to use weapons in a foreign territory.62 However, following the experience in the Gulf War between 1990 and 1991, where Japan gave 13 billion dollars for the pursuit of the war but the recipient states did not appreciate it, the government started to change its policy.63 The United Nations Peacekeeping Operations Act of 1992 made a turning point. The Act expanded the sdf’s mandate to enable the deployment of sdf units or personnel to peacekeeping operations and to use weapons in foreign territories for the first time.64 At the same time, since there was strong domestic

59 60 61 62 63 64

Maritime Public Safety Agency Act, Act No. 265, July 31, 1947, never entered into force and was repealed on July 1, 1949. For the historical analysis, see Nakamura, “Jietiai No Bukino Shiyo [The Use of Weapon by The Self-​Defense Force],” chap. 1. Makoto Iokibe, Sengo Nihon Gaikoshi (Yuhikaku [Japanese], 2006), 89. The United Nations Observation Group in Lebanon was established under un sc Resolution 128, June 11, 1958. jmsdf, Kaijo Bakuryo Kanbu, Kaijo Jieitai 25 Nen-​Shi [25 Years History of JMSDF], 1980, 125. Act concerning the Deployment of International Emergency Assistance Unit, Act No. 93 of 1987. See Sheila A. Smith, Japan Rearmed : The Politics of Military Power, 55. Cabinet Legislative Bureau took the position that it was not constitutional to dispatch the sdf. Act No. 79 of 1992. For the analysis of this act, see Shunji Yanai, “Law Concerning Cooperation for United Nations Peace-​Keeping Operations and Other Operations,” Japanese Annual of International Law 36 (1993): 33–​75.

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opposition to the Act, the government had to limit the possible forcible measures that the sdf could use. According to the government’s official position, which was published in 1991 at the time of enacting the pko Act, there are two standards for the use of weapons.65 The first standard is the use of weapons for self-​preservation, and the second is for the pursuit of a mission.66 The pko Act only stipulated the former standard. This distinction between the “self-​preservation” standard and the “pursuit of a mission” standard was relied on a series of national security laws enacted from 1999 to 2004. In 2003, the Diet passed the Armed Attack Situation Act.67 In 2004, seven laws related to the emergency laws were passed. In particular, the Act on the Restriction of Maritime Transportation of Foreign Military Supplies and Others in Armed Attack Situations68 and the Act on Inspection Operation of Vessels,69 among others,70 included the provision on the use of weapons at sea. All of the provisions relied on the “self-​preservation” standard. These laws were enacted against the backdrop of the US’s change of security policy in the East Asian region. In 1997, the then-​existing 1978 Guidelines for Japan-​U S Defense Cooperation were replaced by a new version, which greatly expandSed the military cooperation between the two states. Following the new guidelines, the Surrounding Areas Situations Act was enacted in 1999.71 The Act enabled the sdf to conduct logistic support and search and rescue mission when there is a threat that the safety of Japan will be endangered if left unchallenged even when no armed attack against Japan has taken place, so long as the actions of the sdf are not integrated into those foreign forces. The use of weapons under this act is allowed to protect sdf officers themselves or persons who engage with these officers’ missions.72 It was not until 65 66

67 68 69 70 71 72

Report of the Advisory Board of International Peace Cooperation (December 18, 2008, chaired by Akashi Yasushi), paras. 84-​85. The Cabinet Legal Office labeled these two standards as Type A and Type B respectively, when the Diet examined the pko Act in 1992. Tanba Minoru, mofa Director of the Bureau of the United Nations, 122nd Diet, hr, Special Committee on the International Peace Cooperation, No. 9 at 21, December 2, 1991. Act No. 79 of 2003. This law was enacted with other two laws. Act on the Restriction of Maritime Transportation of Foreign Military Supplies and others in Armed Attack Situations, Act No. 116 of 2004, Article 37. Act on Inspection Operation of Vessels, Act No. 145 of 2000, Article 6. Act on Measures related to Forces of the United States of America, No. 113 of 2004, Article 12; Act on Treatment of Prisoners of War, Act No. 117 of 2004, Article 152. Surrounding Areas Situations Act, Act No. 60 of 1999. See Chapter 2, Section 2. Ibid., Articles 11.

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the Peace and Security Legislation of 2015 was enacted that the scope of the use of weapons was expanded beyond self-​preservation to include the pursuit of a mission.73 The amendment also added a new provision, Article 95-2, to the sdf Act. It mandated the sdf to protect the weaponry and other assets of the United States and other states when it is requested and Japan’s Minister of Defense decides that it is necessary for Japan’s security. In summary, the expansion of the scope of the sdf’s use of weapons mandate has been done in a balance between the need to increase the presence of the sdf in international peace cooperation, the constitutional limits, and the opposition to such an expansion of the sdf’s mandate. 2

Legality of the Coercive Measures at Sea under International Law

The following part of this chapter discusses the legality concerning the jcg and jmsdf’s use of weapons at sea. Law enforcement operations at sea normally include signaling and stopping, visiting and searching the vessel, detaining and arresting people, and seizing the items on the vessel or the vessel itself, directing or steaming the vessel to other places. When the vessel resists the operation, the law enforcing vessel may resort to deadly weapons. The legality of such coercive measures has been an important subject of international law discourse. While it is not the purpose of this section to fully explore the jurisprudence, it is necessary at this stage to articulate the applicable rules. The first issue is whether such police measures against a foreign vessel cross the threshold of Article 2(4) of the UN Charter. This article provides that “[a]‌ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or any other manner inconsistent with the purposes of the United Nations.”74

73

74

Act No. 76 of 2015, Articles 84-​3 and 94-​5 (the protection of the nationals abroad) and Articles 84-​5(2)(4) and 94-​7(3)-​(6) (the international cooperation on peace keeping operations). For the use of weapons in pko operations, see Masahiro Kurosaki, “The Legal Frameworks of ‘Coming-​to-​Aid’ Duty: The Pluralism of the Concept of Self-​Defense and Its Multi-​Layered Legal Grounds,” Japanese Yearbook of International Law 60 (2017): 194–​ 211; Tadashi Mori, “Decisions in Japan to Use Military Force or Participate in Multinational Peacekeeping Oprations,” in Oxford Handbook of Comparative Foreign Relations Law (Oxford University Press, 2019), 829–​42. On the significance of “in their international relations” and whether it constitutes an infringement against “territorial integrity” or “political independence,” see Albrecht

26 

Chapter 1

The threshold between a police measure and the use of force in international relations has been much debated.75 In the maritime domain, it is particularly difficult to decide whether such measures are taken “in their international relations.” The nature of the activities is determined in light of the relevant circumstances in each case. The elements that courts and tribunals would consider include the gravity of the measures, the place where the measures took place, the legal status of the law enforcing authority and the targeted vessel, and the backgrounds and the contexts of the disputes. The jurisprudence of courts and tribunals, state practice and scholarly views vary to a wide extent and there is no conclusive formula. In particular, there is no unanimous view on the issue whether there is a minimum threshold of gravity under the UN Charter Article 2(4) is an issue.76 Even if there is such a threshold, the practice shows that the test is not definitive. In Guyana v. Suriname, the Annex vii Arbitral Tribunal held that Suriname Navy’s warning against a private operator in a disputed area without resorting to weapons constituted a threat of the use of force prohibited under Article 2(4).77 On the other hand, it often occurs that a coast state agency fires against a delinquent vessel, which may even result in sinking the ship, yet the flag state rarely claims

Randelzhofer, “Article 2(4),” in Charter of the United Nations: Commentary, ed. Bruno Simma, 3rd ed. (Oxford University Press, 2016), 200. 75 There are a number of writings on this distinction. See in particular, Patricia Jimenez Kwast, “Maritime Law Enforcement and the Use of Force: Reflections on the Categorisation of Forcible Action at Sea in the Light of Guyana/​Suriname Award,” Journal of Conflict & Security Law 13 (2008): 49–​92; Olivier Corten, The Law against War : The Prohibition on the Use of Force in Contemporary International Law (Hart, 2010), 55; Douglas Guilfoyle, Shipping Interdiction and Law of the Sea (Cambridge University Press, 2009), 265; Atsuko Kanehara, “The Use of Force in Maritime Security and the Use of Arms in Law Enforcement under the Current Wide Understanding of Maritime Security,” Japan Review 3, no. 2 (2020): 35–​53; Kouichi Morikawa, “Kaijo Hoshikko Ni Tomonau ‘Use of Force’ No Gainen,” in Kokusaiho No Dainamizumu, ed. Yuji Iwasawa et al. (Yuhikaku, 2019), 651–​67; Yumi Nishimura, “Kaiyo Anzen Hosho to Kokusai Ho [Maritime Security and International Law],” ed. Japan Institute of International Affairs, Mamoru Umi, Tsunagu Umi, Megumu Umi -​-​Kaiyo Anzen Hosho no Shokadai to Nihon no Taiou (Japan Institute of International Affairs, 2012). 76 See Tom Ruys, “The Meaning of ‘Force’ and The Boundaries of The Jus Ad Bellum: Are ‘Minimal’ Uses of Force Excluded from UN Charter Article 2(4)?,” American Journal of International Law 108, no. 2 (April 2014): 159–​210; Corten, The Law against War, 68. 77 Annex vii Arbitral Tribunal, The Delimitation of the Maritime Boundary between Guyana and Suriname, Award of September 17, 2007, Reports of International Arbitral Awards 30: 1-​144 [Guyana v. Suriname], para. 445. The Tribunal took the view that “action mounted by Suriname … seemed more akin to a threat of military action rather than a law enforcement activity.”

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the violation of the UN Charter.78 The legal status of the targeted vessel is also significant. If a state takes coercive measures against foreign warships or government ships used for non-​commercial purposes, it likely constitutes the violation of Article 2(4). On the other hand, even if the measures are taken against a private vessel, it can still violate the same provision.79 While one cannot make a categorical determination, if there is a legal basis under international law that the law enforcing agencies take certain actions against a foreign vessel, it will negate the conflict with Article 2(4). The next issue is whether the law enforcement is compatible with the law of the sea. As the introduction stated and Chapters 3 to 6 will explore, the law of the sea allocates jurisdiction and authorities based on the maritime columns.46 The measures shall comply with these rules. Finally, one has to examine whether the degree of the measures is justified under international law. There seems to be no serious dispute regarding the requirements of necessity, reasonableness, the complementary nature of the act, and the duty to respect human safety and dignity. Some treaties require the state parties to comply with certain standards. For instance, the United Nations Fish Stocks Agreements, Article 22(f), provides that the authorities shall “avoid the use of force except when and to the degree necessary to ensure the safety of the inspectors and where the inspectors are obstructed in the execution of their duties. The degree of force used shall not exceed that reasonably required in the circumstances.”80 Similarly, the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Protocol, Article 8-​5 (10), provides that the state parties comply with specific requirements of the due account.81 There are also 78

79 80

81

See Rob McLaughlin, “Authorizations for Maritime Law Enforcement Operations,” International Review of the Red Cross 98, no. 2 (2017): 465–​490; 467. It is noted that in the Red Crusader incident, the Danish frigate fired an aimed shot and damaged a British fishing trawler in the fishing area off the coast of Faroe Islands. The British and Danish governments established an adversarial international commission. The Commission found that the Danish frigate used excessive force, but the issue of Article 2(4) did not arise. Guyana v. Suriname, para. 445. Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, signed on August 4, 1995, entered into force on December 11, 2001, 2167 unts 3. Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Protocol, adopted on October 14, 2005, entered into force on July 28, 2010, leg/​ conf.15/​2 1. Article 8-​5 (10) provides that the state parties shall (i) take due account of the need not to endanger the safety of life at sea;(ii) ensure that all persons on board are treated in a manner which preserves their basic human dignity, and in compliance with the applicable provisions of international law, including international human rights

28 

Chapter 1

manuals and standards issued in international settings.82 The International Tribunal for the Law of the Sea (itlos) held in M/​V Saiga that “the general international law requires that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea.”83 These requirements seem to have been established under international law. 3

Use of Weapons at Sea

3.1 The Role of the Japan Coast Guard 3.1.1 Mandates of the jcg The jcg has the primary responsibility for maritime law enforcement.84 It is an institution of approximately 12,000 personnel and currently an external bureau of the Ministry of Land, Infrastructure, Transport and Tourism (mlit). The jcg’s mandates are, among others, to encourage compliance with law at sea, to maintain the navigation order of vessels at sea, and to secure the safety and security of the sea.85 To pursue such mandates, the jcg’s personnel is authorized to take specific measures against foreign vessels. First, jcg officers may request cooperation from persons and vessels in the vicinity when necessary for performing its duties or in arresting a criminal, or in case of an emergency.86 Second, jcg officers may order the master of a vessel to submit documents required by law to be kept on board the ship and conduct an

82 83 84

85 86

law; (iii) ensure that a boarding and search pursuant to this article shall be conducted in accordance with applicable international law; (iv) take due account of the safety and security of the ship and its cargo, among other requirements. See International Institute of Humanitarian Law, Sanremo Handbook Rules of Engagement (2009), Section 2.2. itlos, M/​V Saiga Case (Saint Vincent and The Grenadines v. Guinea), Case No. 2, Judgment of July 1, 1999, itlos Reports 1999:10, para. 155. For the mechanisms of maritime law enforcement under Japanese law, see Chie Kojima, “Maritime Law Enforcement in Japan,” The Korean Journal of International and Comparative Law 6 (October 3, 2018): 117–​33. For the significance of the role of the jcg, see Ministerial Council decision on the Strengthening of the Maritime Security System, 21 December 2016; Third Basic Plan on Ocean Policy, 15 May 2018, at 25. jcg Act, Article 2(1). In 2012, the jcg Act was amended so that jcg personnel have a mandate to arrest and otherwise exercise judicial police authority on a remote island. jcg Act, Article 28-​2. Ibid., Article 16.

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on-​site inspection.87 Third, if a jcg officer recognizes that a crime is about to be committed at sea or there is a dangerous situation, including a natural disaster, the officer shall take necessary measures.88 These include stopping the vessel or postponing its departure, moving the ship to a designated place, and discharging the crew and the cargo.89 To perform these duties, officers are allowed to use coercive measures such as the ramming or the shooting of water cannon as a part of the necessary measures. The geographical limits of the application are not set under the jcg Act. Instead, each individual law that the jcg implements sets the jurisdictional scope. The jcg Act Article 19 authorizes jcg personnel to carry the weapons necessary to pursue their mandates. Article 20(1) provides that the use of weapons provision under the Police Duties Execution Act Article 7 shall apply mutatis mutandis.90 The provision allows police personnel to use weapons when there are reasonable grounds for the necessity of the apprehension of a criminal suspect or the prevention of his or her escape, for self-​protection or the protection of others, or for the suppression of resistance to the execution of the police’s official duty. Such use may include warning shots. However, it may not inflict injury upon any person except in certain limited cases.91 Regardless of the differences between the land and the sea environment, the same requirements as are on police personnel are imposed to the jcg’s use of weapons. The criterion set in the jcg Act would readily satisfy the requirements under international law as Section 2 presented.92

87

Ibid., Article 17(1). They may look for the ship’s identity, the port of registry, the name of the master, the place of departure, the port of destination, the nature of cargo, among others. 88 Ibid., Article 18. 89 Ibid. 90 Ibid., Article 20(1). It was merely Article 20 until paragraph 2 was inserted in 2001. 91 Police Duties Execution Act, Article 7. The cases where the police may use weapons that may injure a person are limited to (1) a situation which falls under the Penal Code, Act No. 45 of 1907, Article 36 (legitimate defense) or Article 37 (necessity), (2) (i) a case when a person is actually committing, or is suspected of having committed, a serious crime which is subject to the death penalty, life imprisonment or imprisonment for a maximum period of not less than three years, or (ii) a case when the police try to arrest a person under an arrest warrant, or in execution of a subpoena or detention warrant, the suspect or a third person resists such police official’s execution of duty. In case of (2)(i) and (ii), it is necessary that the police officer believes that there are no alternative measures than resorting to the weapons to prevent the resistance or to arrest the suspect. 92 It is noted that the government once expressed its view that the reasonable and necessary use of weapons to stop a non-​innocent passage, even if it ends up in sinking a foreign vessel, is permissible under international law. Nawano Katsuhiko, Secretary of Japan Coast

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Chapter 1

Article 20(1) does not exclude foreign sovereign vessels from its scope as long as it is compatible with international law. In February 2021, the Japanese government clarified that if crews of a foreign government ship try to land on the Senkaku Islands, it may be possible to classify such conduct as a serious crime and the jcg may use weapons to suppress the resistance in accordance with the Police Duties Execution Act.93 Article 20(2) was inserted in 2001 to allow jcg to deal with other threats that does not fit in Article 20(1).94 The government proposed the amendment because of the increase in suspicious vessels, mainly from the dprk.95 It provides that it can use weapons against a foreign ship, except warships and government ships used for non-​commercial purposes,96 if the officer reasonably believes that, from the appearance of the vessel, the manner of navigation, the abnormal behavior of the crew, and other relevant factors, that the situation satisfies the following elements and he or she needs to stop the vessel. The first is that the vessel is a foreign vessel, other than a warship and ship owned or operated by a government for non-​commercial purposes, and is

93

94

95

96

Guard Agency, No. 2 at 7, October 24, 2001. It will be an exceptional case that the sinking of a vessel is justified under the test of necessity and reasonableness. The government explained this view in the Working Group on National Defense in the Liberal Democratic Party. For the explanation in the Diet, see Seguchi Yoshio, 204th Diet, hr, National Security Committee, No. 2 at 14, April 6, 2021. Seguchi explained that it is permissible to use weapons if the requirements under the Police Duties Execution Act Article 7 are satisfied. jcg Act, Article 20(2). It was amended under Act No. 114 of November 2, 2001. The regulation of suspicious vessels became important to prevent the abduction of the Japanese by the dprk, the peak of which was from the late 1970s to the early 1980s. The Japanese government officially acknowledges that 17 people were victims, and it also claims that there were 883 other cases of missing persons, where the possibility of abduction by the dprk cannot be ruled out. See the mofa website, at https://​www.mofa.go.jp/​reg​ion/​asia-​ paci/​n_​ko​rea/​abduct​ion/​index.html. Ōgi Chikage, Minister of Land and Transportation, 153rd Diet, hr, Joint Examination Committee with Foreign and Defense Committee, Land and Transportation Committee, Cabinet Committee, No. 1 at 18, October 23, 2001. It is noted that suspicious vessels at times came from China. On February 1, 1993, a vessel with no indication of its name and nationality approached and shot to a cargo vessel, Yūshō, at a spot 150 km northwest of Kume Island. Later, the vessel also shot at a Panamian vessel, Orange Ocean. As jcg stopped the vessel, it turned out to be a Chinese government’s vessel chartering a private boat and regulating drug smuggling. The jcg stopped boarding and released the boat. Okinawa Times, February 4, 1993. The government has explained that these public vessels enjoy immunity from Japanese jurisdiction under international law. Nakatani Gen, Defense Minister, 189th Diet, hc, Special Committee for Peace and Security of Japan and International Society, No. 4 at 30, 29 July 2015.

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conducting non-​innocent passage as provided under unclos Article 19.97 The government’s interpretation of the innocent passage will be discussed in Chapter 3, Section 2.3, in detail. The second is that there is a probability that if the navigation of the vessel is left as it is, it will repeat such non-​innocent passage in the future.98 The third is that such navigation is for the purpose of committing a serious crime within Japanese territory, which is punishable by the death penalty, life imprisonment, or imprisonment for no less than three years.99 The fourth is that the measures are necessary to prevent the occurrence of such a serious crime based on available information.100 The threshold for using weapons against a foreign ship is much higher than the requirements provided under unclos Article 25(1), which authorizes the coastal state to “take the necessary steps” in its territorial sea to prevent non-​innocent passage. It is also noted that Article 20(2) does not apply beyond the Japanese territorial sea. When such a suspect ship is found in the territorial sea, the jcg is entitled to exercise the right of hot pursuit to the high seas.101 The Territorial Sea and Contiguous Zone Act Article 3 stipulates that the Japanese law applies to any act which impedes the official duty of hot pursuit, even when such an act was done on a foreign ship. In summary, Article 20(2) only applies in quite a limited scope. 3.1.2 Practice In practice, the jcg personnel are extremely cautious not to come even close to the threshold of the use of force, which is prohibited under the UN Charter Article 2(4). Except for the cases in the 1950s,102 there are a couple of instances where the jcg used weapons based upon the current jcg Act Article 20(1). The first is the case of two suspected vessels from the dprk offshore of Noto Peninsula on March 23, 1999, which the next section explains in detail. The vessels did not stop regardless of the jcg’s repeated order to do so and tried to escape from law enforcement, and thus the jcg fired shots against one of the vessels to implement the jcg Act Article 18(2). Yet, the jcg and jmsdf 97 98 99 100 101

jcg Act, Article 20(2)(i). jcg Act, Article 20(2)(ii). Ibid., Article 20(2)(iii). Ibid., Article 20(2)(iv). Nawano Katsuhiko, 153rd Diet, hc, Committee of Land and Transportation, No. 3 at 11, October 25, 2001. 102 This includes the case of the Razyezdnym on August 2, 1953, where the Russian fishery boat entered territorial waters and approached the coast so that the jcg shot the vessel. Hajime Hirose, “Kaijo Hoan Jiken No Kenkyu (19) [A Research on Maritime Safety Incidents] (Japanese),” Sosa Kenkyu 55, no. 10 (2006): 86–​92.

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Chapter 1

eventually let the suspect vessel escape. Another case of a suspect vessel from the dprk occurred offshore of the south-​west of Kyūshū Island on December 22, 2001. The jcg found a vessel within the Japanese eez and it was suspected that the vessel was violating Fisheries Act.103 While it chased the vessel and fired warning shots, the vessel counter-​attacked using automatic guns and a rocket-​launcher. The jcg therefore shot back as a legitimate defense as provided for in the jcg Act Article 20(1). To this date, the jcg has never used a weapon based on Article 20(2). Instead of using firearms, the jcg enforces the law and secures order by using non-​lethal coercive measures when necessary. Such operations may also constitute the use of force, but it is less likely that the agency cross the thresholds as described in the previous section. In fact, experts criticize that the operational exercise of jcg personel for being nominal and insufficient so that they are not well trained to cope with criminals at the sea.104 When there are territorial or maritime conflicts with other states, the jcg’s law enforcement becomes a diplomatic issue. For instance, on September 7, 2010, a Chinese fisheries vessel, Minjinyu 5179, rammed into two jcg vessels, Mizuki and Yonakuni, in the territorial sea of Senkaku Islands. The jcg customarily used to let the fisheries boat leave territorial waters, but since it had damaged the vessels, it arrested the vessel’s master. China vehemently protested against this action and took retaliatory action including halting the export of rare earth minerals to Japan. Japan, in the end, released the master and the vessel on bail.105 On a different occasion, the jcg arrested a Taiwanese fisheries vessel, Tung Sheng Chi No. 16, at approximatey 150 nm from Okinotori Island. Taiwan also strongly protested against this measure, stating that the area was in the high seas. Japan claimed that the area was within the Japanese eez. Japan eventually released the master and the vessel on bail.106 Such sensitivity of law enforcement measures has also led the organization to be restrained in taking coercive measures. 1 03 Fisheries Act, Act No. 267 of 1949. 104 Yuji Satō, Hatō Wo Koete (Bungei Shunju [Japanese], 2019), 95. Satō is the former secretary of the Japan Coast Guard Agency. 105 See for example, For the facts of the case and the diplomatic exchanges between Japan and China, see mofa, Major Exchanges between Japan and the People’s Republic of China concerning the Collision Incident between Japan Coast Guard Patrol Vessels and a Chinese Fishing Trawler in Japanese Territorial Waters off the Senkaku Islands (October 2010), at https://​www.mofa.go.jp/​reg​ion/​asia-​paci/​china/​r-​relati​ons/​majo​r_​e.html. See also Sheila Smith, Intimate Rivals: Japanese Domestic Politics and a Rising China (Columbia University Press, 2015), 188. 106 Taipei Times, April 26, 2016, at 1. See Chapter 5, Section 1.3.

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3.2 Maritime Security Operations 3.2.1 Mandates of the jmsdf When the jcg cannot cope with a threat and the Defense Minister decides that there is a particular necessity to protect human lives or assets at sea or to maintain security, the Minister may issue a Maritime Security Operation order.107 The sdf Act Article 82 provides that, when there is a specific necessity to protect human lives or property at sea or maintain security, the sdf units shall undertake necessary operations at sea under the Minister of Defense’s order with the approval of the Prime Minister.108 The target of the operation is unlimited as long as it is within the jurisdiction of Japan. It may be carried out against civilian vessels, foreign warships and government ships used for non-​commercial purposes and submerged submarines. The sdf Act Article 93(2) provides that the jsmdf has the same the mandates with the jcg concerning the approach to, and the visit and search of, vessels when it is necessary.109 The sdf does not have the power to exercise the judicial police authority. The sdf Act Article 93(1) and (3) provides that the sdf shall use weapons under the Police Duties Execution Act Article 7 and the jcg Act Article 20(2) respectively. As explained in the previous section, Police Duties Execution Act Article 7 only stipulates the case for arresting or suppressing criminals. The government has never set out its position on whether the jmsdf is entitled to use weapons against a foreign sovereign under the sdf Act Article 93(1).110 Whether and to what extent the sdf may use force against a foreign sovereign to expel it from the Japanese territorial sea is up to the interpretation of the sdf Act and international law, which will be discussed in Chapter 3. The government has explained that, if foreign warships or public vessels unlawfully shoots or rams into Japanese vessels, the jmsdf is entitled to use weapons to exclude such an action to the extent it is reasonable and necessary in light of the situation, under the Maritime Security Operation order.111 On the other

1 07 sdf Act, Article 82. 108 The Cabinet has adopted Cabinet Decisions to expedite the authorization process when there is an emergent maritime security threat, as Chapter 3 will discuss. 109 For the mandates of the JCG, see Section 3.1. 110 However, the SDF can take the same measures with the JCG against foreign government ships as explained in Section 3.1.1. 111 Nakatani Gen, Defense Minister, 189th Diet, hc, Special Committee for Peace and Security of Japan and International Society, No. 4 at 30, 29 July 2015. The JMSDF may also resort to the SDF Act Article 95 (the protection of the SDF’s assets and weaponry).

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Chapter 1

hand, Article 93(3), which applies Article 20(2) mutatis mutandis, excludes foreign warships and government ships from its scope.112 3.2.2 Practice There have been only three cases where the jmsdf engaged in Maritime Security Operations. Each incident made the Japanese government reconsider its security management. The first was when the sdf chased two suspicious ships found in the internal waters off the coast of Noto Peninsula.113 On March 23, 2001, a reconnaissance aircraft P-3C spotted two ships marked as Dai-​ichi Taiseimaru and Daini Yamato-​maru. There were many dubious points as regards fishery vessels, such as the lack of fishing gear and the flag. As the jcg investigated, the former vessel was actually abandoned, and a boat with the same name with the latter operated off the coast of Hyōgo Prefecture. The jcg tried to halt these unidentified boats, fired warning shots under Article 20 of the jcg Act,114 and chased the boats, but the ships did not stop. Since the situation exceeded the capabilities of the jcg, Norota Hōsei, the Secretary of Defense Agency, issued a Maritime Security Operation order. The Defense Agency handed rules of engagement to the unit, which was the first time in the history. The jmsdf destroyers Haruna and Myōkō chased the vessels,115 and gave warning shots to stop the vessels.116 The destroyer Myōkō approached the suspicious ships to conduct a visit and search. Officers were trained in the shooting of rifles and handguns, but none was well versed in close combat –​the essential anti-​terrorism technique within the police jurisdiction.117 When the vessels crossed the 1 12 jcg Act, Article 20(2). 113 I am grateful for Nakamura Susumu for his insights and comments on this case and the jmsdf’s mandate on the use of weapons. 114 The jcg gave warning shot to prevent the flee of the suspects and to arrest them per Police Duties Execution Act Article 7. jcg Article 20 is the same as today’s Article 20(1). Also, the jcg did not exercise its right of hot pursuit since those boats pretended that they were Japanese vessels. 115 The jcg chased the vessel based on its mandate to encourage the compliance with law under the jcg Act Article 15. However, since the jmsdf does not have the same authority as this provision, it applied the jcg Act Article 17(1) per the sdf Act Article 93(2), which provided the authority to stop and visit a suspect vessel. 116 Since the jmsdf did not have the authority to arrest the suspect, it conducted a warning shot because the flee was deemed as the resistance to the execution of the public duty under the Police Duties Execution Act Article 7. 117 A reportage states that there were no bulletproof vests, and that the inspection personnel wrapped comic books on to their bodies with packing tape. Takino Takahiro, Jieitai No Riaru (Kawade Shobo, 2015), 74. The Defense Agency was preparing to transport vests

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line of the Air Defense Identification Zone (adiz) of Japan, the jmsdf decided to halt the operation. The adiz was not legally significant in the context, but it was rather a discretional decision. This incident pushed the amendment of the jcg Act to establish Article 20(2).118 In addition, it revealed the vulnerability of the sdf in its operational capability. The government established a Special Boarding Unit and a Maritime Interception Team in the jmsdf.119 Modeled after the United States Navy Sea, Air, and Land Teams, their main task is to disarm and neutralize highly threatening ships and vessels. Also, the jcg strengthened its law enforcement capabilities and published a handbook on the use of weapons and training personnel,120 and the cooperation between the jcg and the Defense Agency was tightened.121 On December 22, 2001, when the jcg chased a dprk vessel off the coast of Amami Ōshima, the Defense Agency did not have to issue the Maritime Security Operation order.122 The second was when the government found a foreign submarine within Japan’s territorial sea off the coast of the Sakishima Islands on November 10, 2004. It turned out to be a nuclear-​powered submarine that belonged to the People’s Liberation Army (pla) of China. The Japanese Secretary of Defense Agency issued the Maritime Security Operation order before China admitted that its asset entered the Japanese territorial sea. The jmsdf traced the submarine from the start to the end but did not use any weapons.123 In 1996, the Cabinet already decided that, when a foreign submarine submerges within

1 18 119

120 121

1 22 123

when necessary in the meantime, but the vessel crossed the adiz line before it provided materials. Act No. 114 of 2001. The following framework was approved in June of the same year. The jcg will first respond to a suspicious vessel. Then, the jcg and Defense Agency should promptly notify each other when they recognize suspicious vessels. If the situation gets serious, the Prime Minister will establish the Emergency Response Office in his/​her office. Specific operational procedures, including developing a joint response manual between jcg and sdf are established. Ministry of Defense, White Paper (2004), Chapter 3–​1; jcg, Annual Report (2003), Section 1–​1. See also Satō, Hatō Wo Koete, 147. Ōgi Chikage, Minister of Land and Transportation, 153rd Diet, hr, Joint Examination Committee with Foreign and Defense Committee, Land and Transportation Committee, Cabinet Committee, No. 1 at 18, October 23, 2001; Nakatani Gen, Minister of Defense, 153rd Diet, hr, Joint Examination Committee with Foreign and Defense Committee, Land and Transportation Committee, Cabinet Committee, No. 1 at 18, October 23, 2001. See Section 2.2.1. For the description of the present case, see Peter Dutton, “Scouting, Signaling, and Gatekeeping: Chinese Naval Operations in Japanese Waters and the International Law Implications,” China Maritime Study, vol. 2, 2009.

36 

Chapter 1

Japan’s territorial waters, the sdf will demand that the vessel sail on the surface and show its flag after the Maritime Security Operation order is issued.124 Nevertheless, it took approximately three hours for the government to issue the order after the submarine entered Japanese territorial seas.125 After this incident, the Defense Agency published a guideline on dealing with a submarine passing through Japanese territorial seas.126 It was decided that the jmsdf would be responsible from the initial stage in such a situation, because it is beyond the jcg’s capability to confront with a foreign submarine. The third was anti-​piracy measures off the coast of Somalia.127 Japan did not have an anti-​piracy law that provided criminal jurisdiction when a foreign vessel attacked another foreign ship even when it was carrying cargo from and to Japan. This was notwithstanding the fact that more than 90 percent of the vessels used for international communication are of foreign registries.128 The Japanese government decided to deploy the jmsdf under the Maritime Security Operation order on January 16, 2009.129 The government’s project team agreed that protection was to be given to Japanese vessels and foreign vessels operated by Japanese corporations or that carried Japanese cargo. jcg officers were allowed to board such vessel to arrest offenders. It was also decided that weapons would be limited to self-​defense and necessity, where both are provided under the Japanese penal code.130 In June of the same year,

1 24 Cabinet Decision, December 24, 1996. 125 Harada Yoshiaki, 161st Diet, hr, Committee of Foreign Affairs, No. 4 at 2, November 12, 2004. 126 When a submarine submerged in territorial waters is found, measures such as requests that it surface and leave should be made by the jmsdf under the Maritime Security Operation order. The Minister of Defense shall immediately issue the order, and for this purpose the information shall be shared among ministries as soon as possible. After the submarine leaves Japanese territory, the jmsdf will continue to identify the submarine’s nationality and its re-​entry to its home country. The Ministry of Defense published its policy regarding a submerged foreign vessel reflecting the lesson learned in this case. Ministry of Defense, White Paper (2007), Part iii, Section 3. 127 See Chapter 8, Section 2. 128 See Chapter 8, Section 4. 129 Press Conference, Minister of Defense, Hamada Yasukazu, January 16, 2009. 130 Penal Code, Articles 36(1) and 37(1). In fact, there has been no case where a jcg officer actually used this authority to arrest pirates. For the only case where Somalia pirates were tried in Japan, see Jun Tsuruta, “ ‘The Guanabara Case,’ ” Journal of East Asia and International Law 7, no. 1 (2014): 243–​48; Yurika Ishii, “M/​V Guanabara: Japan’s First Trial on Piracy Under the Anti-​Piracy Act,” Maritime Safety and Security Law Journal 1 (2015): 45–​55.

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37

the Act on Punishment of and Measures against Piracy (Anti-​Piracy Act) was enacted, which replaced the order as the basis of the operation.131 When the government issue the Maritime Security Operation order, it looks into not only the requirements of the sdf Act Article 82 but also its political contexts and potential consequences. There are cases where the jcg was not capable of dealing the situation but the government did not deploy jmsdf. For instance, there were a number of suspicious vessels found in Japanese territorial water and fled from the jcg before and after 1999, but the Noto Peninsula incident was the only case where the government issued the Maritime Security Operation order.132 Since the end of the 2000s, the number of Chinese fisheries boats, the Chinese Coast Guard (ccg) and People’s Liberation Army Navy (plan) vessels to the vicinity of the Senkaku Islands. From August to September 2016, approximately 200 to 300 Chinese fishery boats escorted by ccg approached to the area.133 In particular, from August 5 to 9, the ccg vessels entered into the territorial sea of Senkaku Islands every day.134 The government protested against China via the diplomatic route repeatedly that the China’s action would escalate the situation and that the ccg’s vessels must leave the water. However, the government did not issue the Maritime Security Operation order. As Chapter 3 will discuss in detail, the main strategy in the Senkaku situation is the escalation management. The concern was that the deployment of a naval vessel, confronting with ccg, may intensify the tension and the actual conflict may occur. In practice, the sdf is quite cautious in resorting the weapons, too. There are a few incidents that the sdf used weapons but they did not have an international dimension.135 To this date, the only occasion on which the sdf used 131 Act No. 55 of 2009. For the background and characteristics of this Act, see Atsuko Kanehara, “Japanese Legal Regime Combatting Piracy: The Act on Punishment of and Measures Agaisnt Act of Piracy,” Japanese Yearbook of International Law 53 (2010): 469–​89; Mariko Kawano, “The First Experience of Prosecution under the Japamese Anti-​Piracy Act of 2009,” in Jurisdiction and Control At Sea: Some Environmental and Security Issues, ed. Gemma Andreone (Giannini Editore, 2014), 115–​26. 132 Kentaro Furuya, “Maritime Security –​The Architecture of Japan’s Maritime-​Security System in the East China Sea,” Naval War College Review 72, no. 4 (2019): 27–​52. 133 Cabinet Office, Press Release, “Senkaku Shotō Shūhen Kaiiki niokeru Chūgoku Kōsen oyobi Chūgoku Gyosen no Katsudō Jōkyō ni Tsuite [On the Activities of Chinese Public Vessels and Fisheries Vessel in Early August, 2016]” (October 8, 2016). 134 Ibid., 3. The pictures showed that 14 ccg vessels out of 23 carried cannons. 135 (1) On September 19, 1960, two human bodies were found stranded by ropes in a deep valley at Gunma Prefecture, and the personnel of the jgsdf had to shoot them down on September 24. (2) In 1974, the sdf shot at sea lions at the coast of Hokkaidō, as a part of the shooting trainings. (3) On November 9, 1974, a collision incident occurred between a cargo vessel registered to Liberia and Daijūyūyōmaru, an lpg tanker registered to Japan,

38 

Chapter 1

weapons under Article 93(1) was the Noto Peninsula incident. There has never been a case where the sdf resorted to Article 93(3). In summary, while the Maritime Security Operation is to have the sdf to exercise the police power in lieu of the jcg, its decision is made based upon the government’s discretion and a highly political consideration. It also means that, notwithstanding the deterrent effect of the jsmdf and the changes in the maritime security environment, actual operations to protect Japanese maritime interests will be carried out mainly by the jcg.136 3.4 Gray Zone Situations The sdf Act or any other law does not provide an explicit provision concerning a situation where a threat against national security is posed, but such threat does not meet the armed attack threshold.137 The government called this situation a “gray zone situation (gurē zōn jitai)” in the mid-​2010s.138 While this term is not a legal one defined under Japanese law, the government has occasionally used it and explained it to be “neither pure peacetime nor contingencies over territory, sovereignty, and maritime economic interests.”139 The same term in other contexts has broader connotations.140 Yet, the Japanese government has

136 137 138 139

140

where the latter tanker burned out. The Secretary of Defense Agency dispatched the jmsdf as a part of a Disaster Relief Operation. On November 27, the jmsdf sank the tanker by bombs and tornados. See the Third Basic Ocean Policy Plan of 2018, Cabinet Decision, May 15, 2018, 24-26. See also Richard J. Samuels, “ ‘New Fighting Power!’ ” International Security 32, no. 3 (2007): 84–​112. For the concept of the gray zone situation, see Tomohisa Takei, “Gray Zones and Vulnerability in the U.S.-​Japan Alliance,” Asia Policy 15, no. 3 (2020). Onodera Itsunori, Minister of Defense, 185th Diet, hr, Special Committee on National Security, No. 2, at 4, October 28, 2013. Ministry of Defense, Boei Hakusho (White Paper) (2016), at 2; Nakatani Gen, Minister of Defense, 189th Diet, hr, Special Committee on Peace and Security Legislation, No. 18 at 38, July 8, 2015. For this issue in general, see Kouichi Morikawa, “Gure-​Zoon Jitai Tiasho No Shatei to Sono Hoteki Seishitsu [On the Gray Zone Situation and Its Legal Nature],” Kokusai Mondai 684 (2016): 29–​38. For instance, the US Department of Defense (dod) uses it to refer to a situation“between peaceful relations and overt hostilities, where a country uses a steady progression of small, incremental steps to secure its aims while remaining below the threshold of armed conflict.” Department of Defense, Indo-​Pacific Strategy Report: Preparedness, Partnerships and Promoting a Networked Region (June 1, 2019), at 8. Other experts use this term to mean “hybrid”wars, which is a military strategy to blend conventional, irregular, and cyber warfare with other influencing methods as listed above. See also Asbjørn Eide, Allan Rosas, and Theodor Meron, “Combating Lawlessness in Gray Zone Conflicts

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39

not gone very far to widen its definition to this extent. Its only significance is to distinguish the situation from an Armed Attack Situation, which triggers the exercise of the right of self-​defense. This volume limits itself to the examination of this narrow concept. The government started to use this term presumably because the threshold of the right of self-​defense was quite high –​“an organized and planned use of force against Japan” from outside Japan has to occur –​and there may be cases where the sdf is not allowed to use force against a security threat as Chapter 2 will discuss. The 2014 Advisory Panel Report discussed the need for legislation that enabled the government to respond to an infringement that did not amount to an armed attack.141 It described this concept as a situation where it was difficult to determine whether an “organized and planned use of force” was being employed.142 Then, it argued that a gap might be created in terms of responsive actions when the government was assessing the situation and taking steps to issue an order under the sdf Act. As a result of this gap, the report argued that difficulties might arise in bringing a situation under control and deterring the attacker or the offender.143 Several provisions provide legal bases for deploying the sdf abroad, when the armed attack has not yet occurred. However, the procedural thresholds for such deployment are high, and the purposes of the operations are strictly limited. Thus, the report recommended ensuring a “seamless response,” which includes the sdf’s minimum necessary action to repel such an infringement. In the Cabinet Decision on July 1, 2014, responding to an infringement that does not meet the threshold of an armed attack was specified as one of the three pillars of the 2015 legislation.144 A possible scenario was when an infringement from the outside occurs in areas surrounding remote islands, and police forces are not present nearby, or police agencies cannot respond immediately because of the lack of capability.145 Another situation could be when an attack takes place against units of the US armed forces currently engaged in

Through Minimum Humanitarian Standards,” American Journal of International Law 89, no. 1 (1995): 215–​23. 141 The Advisory Panel on Reconstruction of the Legal Basis for Security, Report of the Advisory Panel on Reconstruction of the Legal Basis for Security (May 15, 2014) 42. 142 Ibid. 143 Ibid. 144 Cabinet Decision on Development of Seamless Security Legislation to Ensure Japan’s Survival and Protect its People, July 1, 2014. 145 Ibid., Section 1(2).

40 

Chapter 1

activities which contribute to the defense of Japan and such situation escalates into an armed attack depending on its circumstances.146 However, the amendment of the sdf Act in 2015 did not specifically provide articles to deal with the gray zone situation. The Act Articles 95 and 95-2 provided that the SDF may use weapons to protect the SDF or the allies’ weaponry and assets when an unknown entity attacks them. Otherwise, it was decided to deal with it under the existing laws by expediting the Maritime Security Operation order’s issuance process. Three Cabinet Decisions were adopted to cope with these situations. The first one dealt with foreign warships whose navigation was not innocent under international law.147 The second one dealt with a situation in which an armed group illegally landed on Japan’s remote islands or entered the surrounding waters.148 The third one dealt with a foreign ship that conducted illegal violence, detention, or deprivation of a Japanese civilian vessel on the high seas, which was not tantamount to piracy or an armed attack.149 Regarding these situations, the Cabinet decided that the government should respond as follows to ensure close cooperation among relevant organizations and a thorough and seamless response to any illegal acts from the viewpoint of protecting Japanese sovereignty and ensuring the safety of the Japanese people. The Prime Minister can issue a Maritime Security Operation order without having an official meeting after each Minister had given consent. The Cabinet, thus, decided to improve the effectiveness of responses to acts and the interagency coordination between the jmsdf and the jcg, instead of enacting a new provision concerning the gray zone situation. There are challenges to promote the close cooperation among the two organizations. There exist contrasting differences in their architectures.150 Not only their mandates but their size, assets and equipment, training, and even culture

1 46 Ibid. 147 Cabinet Decision, On Foreign Warships Conducting Non-​ Innocent Passage under International in Japanese Territorial Sea and Internal Waters, May 14, 2015. 148 Cabinet Decision, On the Response of the Government against Incidents of Armed Groups’ Unlawful Landing of Remote Islands, May 14, 2015. 149 Cabinet Decision, On the Response to the Case where the sdf Recognizes that Foreign Vessels Intrudes Japanese Private Vessels on the High Seas, May 14, 2015. This Cabinet Decision concerns a situation where the government finds, during the sdf’s patrol and surveillance activities, a foreign vessel conducting acts of infringement against civilian vessels that are not tantamount to either piracy or an armed attack on the high seas. 150 Prime Minister Abe recognized that there had been tensions among the two organizations. Abe Shinzō, Prime Minister, 189th Diet, hc, Special Committee for the Peace and Security Legislation for Japan and the International Society, No. 4 at 15, July 29, 2015.

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41

are dissimilar.151 However, they started to conduct joint training to cope with a situation when such coordination was required and their relationship became closer. It would not be appropriate to conflate their roles or emphasize the jcg’s priority in the jmsdf in securing maritime safety, but the effective law enforcement capability supplemented by the jmsdf serves to maintain the maritime security of Japan.152 Furthermore, it is noted that the gray zone scenarios do not specifically cover a situation when a group of private vessels poses a security threat. For instance, in July 2012, more than 100 Chinese fishery vessels entered into a bay of the small city Tamanoura in Nagasaki Prefecture, and stayed there for a week. The purpose of the entry was explained to be an escape from a typhoon. The vessels were brand new and their size ranged from 100 to 500 tons of which is more than 10 times the size compared to that of vessels owned by local fishermen in Nagasaki. The number of the crew of these vessels was more than 3,000, whereas the population of Tamanoura was about 1,800. It is not a realistic scenario that the jcg can coercively evict these boats if they conduct unlawful acts. However, it is considered that there was no legal issue because the vessels were subject to jcg’s regulation.

Conclusion

The characteristics of the Japanese law is that the jcg and the jmsdf protects Japan’s maritime interests via their police function because the threshold for the use of force is quite high. In light of the applicable rules as explained in Section 2, their operations would not violate international law as long as the organizations act in accordance with the jcg Act and the sdf Act. The problem is that their mandates may not be sufficient to cope with a security threat, especially in a gray zone situation. There has been no legislation to give a new mandate to, or to institutionalize the coordination

151 See also Furuya, “Maritime Security –​The Architecture of Japan’s Maritime-​Security System in the East China Sea,” 14. 152 Lindsey Black argues that “the anti-​militarist norm in combination with regional and international norms” has shaped the policy makers in Japan to respond to maritime threats since the 1990s in terms of favoring the jcg over the jmsdf. Lindsay Black, Japan’s Maritime Security Strategy: The Japan Coast Guard and Maritime Outlaws (Palgrave Macmillan, 2014). I would question this assessment because the capability of the jcg –​in terms of both human resources and material assets –​is still insufficient to cope with a security threat without the support of the jmsdf.

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Chapter 1

between, the jcg and jmsdf. Furthermore, there remains a significant gap between the Maritime Security Operation threshold and that of a Defense Operation, and it has not been filled in the latest amendment of the sdf Act in 2015.

­c hapter 2

Use of Force at Sea

Introduction

While the law enforcement agencies have played a major role in protecting Japanese maritime security, the law governing the use of force also raises legal issues. To clarify their significance, Section 1 examines the Japanese government’s understanding of the use of force, armed attack, and the right of collective self-​ defense under its domestic law. Section 2 then examines the sdf’s inspection of foreign vessels during an Important Influence Situation (jūyō eikyō jitai) and an Armed Attack Situation. Lastly, Section 3 discusses the remaining challenges that are rarely discussed within the government and the Diet. 1

The Right of Self-​Defense

1.1 Use of Force The prohibition of the use of force is the fundamental principle of contemporary international law which is enshrined under the UN Charter Article 2(4). The Security Council’s authorization under Chapter vii and the right of self-​defense under Article 51 constitute explicit exceptions to this provision. Article 51 provides that “[n]‌othing in the present Charter shall impair the inherent right of individual or collective self-​defence if an armed attack occurs.” The prohibition of the use of force and the requirements of the self-​defense under international law is both reflected in the texts of the sdf Act and endorsed by the government through interpretation of the sdf Act or the Constitution. The sdf Act Article 88(2) also provides that the sdf shall comply with international law rules and customs, and shall not exceed the limits that is determined to be reasonably necessary in light of the situation. The government defined the “use of force” under Constitution Article 9 as “combat acts done as a part of international armed conflict by material and human organizations by a state.”1 The “material and human organizations”

1 See Chapter 1. For the government’s official positions on these basic concepts, see Rippo to Chosa, 372 (2015): 59. See also Masahiro Sakata, Seihu No Kenpo Kaishaku (Yuhikaku [Japanese], 2013), 7.

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004500419_004

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here means a military, and in Japan, it is the sdf.2 The “international armed conflict” refers to a conflict between the sdf and a state or a quasi-​state entity, an entity that Japan does not recognize as a state but which may enjoy its status as a subject of international law.3 Whether an actual situation meets this definition will be decided on a case-​by-​case basis in the light of factors such as its international character or whether it is planned and organized.4 This definition excludes domestic terrorism or sporadic shooting, or small attacks from the scope of the argument.5 As discussed in Chapter 1, Section 2, it is an unsettled topic in international discourse whether there are forcible acts that, because of their small scale or confined purposes, are covered by Article 2(4). The icj in the Nicaragua case distinguished an armed attack under Article 51 and the use of force under Article 2(4) based on scale and effect.6 Yet, the case law of the icj does not seem to render unequivocal support to the existence of a gravity threshold.7 On the other hand, the Japanese government’s definition of “force” seems to imply a certain level of intensity. In practice, there are a few incidents where a foreign military asset –​a submarine or an aircraft –​entered Japanese territorial sea and territorial air without harming people or properties. The government never raised an issue whether it violated Article 2(4).8

2 The government has described the military as an organization equipped and organized. Satō Tastuo, 15th Diet, hr, Committee of International Trade and Industry, No. 18 at 8, February 12, 1953. 3 The Japanese government’s description of an international armed conflict is significantly narrower than, for instance, the International Committee of the Red Cross (icrc)’s position. The icrc defines it “[a]‌ny difference arising between two States and leading to the intervention of armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts or how much slaughter takes place.” International Committee of the Red Cross, Commentary on the First Geneva Convention : Convention(I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Cambridge University Press 2016) para 236. See also Oscar M. Uhler, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, ed. International Committee of the Red Cross, 1958, 20. 4 Ishiba Shigeru, Minister of Defense, 156th Diet, hr, Special Committee on Humanitarian Restoration Assistance to Iraq, Prevention of International Terrorism and Japanese Cooperation and Assistance Operations, No. 7 at 4, July 2, 2003. 5 Ibid. 6 icj, Military and Paramilitary Activities and against Nicaragua (Nicaragua v. the United States), Merits, June 27, 1986 [1986] icj Reports 14, at 101, para. 191. 7 Ruys, “The Meaning of ‘Force’ and The Boundaries of The Jus Ad Bellum: Are ‘Minimal’ Uses of Force Excluded from UN Charter Article 2(4)?,” 165. 8 See Chapter 4, Section 2, and Chapter 7, Section 1.

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1.2 Armed Attack The Japanese government had defined an “armed attack” as “an organized and planned use of force done by a state or a quasi-​state entity” when it drafted the Armed Attack Situation Act of 2003.9 Before this Act, the government explained that the “armed attack” under Article 76 of the sdf Act is “approximately the same” as the term in Article 51 of the UN Charter.10 Whether an armed attack has occurred should be decided based on international relations, the intention clarified by the attacking state, the methods, the modes of the attack, and other elements.11 When the government drafted the Armed Attack Situation Act, it explained that the gravity of an armed attack should be such that it “threatens the existence of Japan.”12 Article 76 of the sdf Act provides that the situation where an armed attack occurs “from the outside (gaibu kara)” triggers the Defense Operation order. This text derives from the Japan-​U S Security Agreement of 1951, which provides that the United States may utilize its force within Japan’s territory to secure the country from armed attack caused by “an outside power or powers.”13 An armed attack includes not only one against Japanese territory, but also one against the sdf’s vessels on the high seas.14 To my knowledge, the government has not expressed its view regarding whether an attack against the jcg’s vessels would trigger the Defense Operation order. Since the establishment of the United Nations there has been a long-​standing controversy about whether a state is allowed to resort to self-​defense when there is a use of force against it that has not reached the armed attack

9 10

11

12 13 14

Tōgō Kazuhiko, mofa Director of Bureau of Treaties, 145th Diet, hc, Special Committee for Japan-​U S Guideline, No. 9 at 28, May 20, 1999. Sanada Hideo, 85th Diet, hc, Cabinet Committee, No. 2 at 19, October 16, 1978. Yet, the government made this assessment that the two were “approximately the same” when it answered a question whether anticipatory self-​defense was permissible. Furthermore, the government explained that an “armed attack” in Article 5 of Japan-​U S Mutual Security Cooperation Treaty is “the same” with the one in Article 51 of the UN Charter. Takahashi Michitoshi, 34th Diet, hc, Budge Committee, No. 11 at 31, March 9, 1960. Ibid. This view was repeated in the subsequent meetings. See Noroda Yoshinori, Secretary of the Defense Agency, 145th Diet, hr, Committee of National Security, No. 3 at 5, March 3, 1999; Inada Tomomi, 193th Diet, hr, Foreign and Defense Committee, No. 18 at 5, May 16, 2017. Sanada Hideo, 85th Diet, hc, Cabinet Committee, No. 2 at 19, October 16, 1978. Japan-​U S Security Treaty, Article 1. Fukuda Yasuo, Secretary of the Cabinet, 154th Diet, hr, Special Committee on the Response to an Armed Attack Situation, No. 18 at 8, July 24, 2002. See also Sakata, Seihu No Kenpo Kaishaku, 32.

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Chapter 2

threshold.15 There are two primary schools of thought. A restrictive approach argues that the Charter prohibits the use of force unless the requirements of Article 51 are satisfied.16 In contrast, a permissible approach contends that self-​defense is permitted under customary international law even when those requirements are not satisfied.17 Recent writings that back a broader interpretation tend to require the satisfaction of conditions under the provision while supporting the concept of an “armed attack” wide enough to cover a minimal standard of force.18 The Japanese government has long taken the permissible approach as a matter of international law. As early as 1954, the issue arose when Japan concluded the Mutual Defense Assistance Agreement with the United States.19 During the discussions regarding national security, the Diet posed a question whether Japan’s right of self-​defense was limited to the right provided in Article 51 or whether it was entitled to the right provided in international treaties or customary international law.20 The government stated that in such a “minor case,” states are allowed to exercise their use of force under customary international law. In 1960, the government stated in a general context that it might resort to self-​defense in the case of a conflict between patrols at the frontier.21 This term, “minor self-​defense” (mainā jiei ken), is another concept peculiar to Japanese legal discourse. The government did not alter its position after Nicaragua. It stated that the judgment had its effect only on the parties to the case, but it understood that the icj recognized that countermeasures against a use of force that does not reach the threshold of an armed attack may also include

15 16 17 18 19 20 21

For its historical analysis, see Tadashi Mori, Jieiken No Kiso (University of Tokyo Press [Japanese], 2009); Tadashi Mori and J Bloch, Origins of the Right of Self-​Defence in International Law: From the Caroline Incident to the United Nations Charter (Brill, 2018). Ian Brownlie, International Law and the Use of Force by States (Clarendon Press, 1963), 240. C. H. M. Waldock, “The Regulation of the Use of Force by Individual States in International Law,” Recueil Des Cours 81 (1953): 476; Derek Bowett, Self-​Defense in International Law (Manchester University Press, 1958), 200. Tom Ruys, “Armed Attack” and Article 51 of the UN Charter : Evolutions in Customary Law and Practice (Cambridge University Press, 2010); Christine D. Gray, International Law and the Use of Force (Oxford University Press, 2018). Mutual Defense Assistance Agreement between Japan and the United States of America, signed on March 8, 1954, entered into force on May 1, 1954. Shimoda Takesou, mofa, Director of the Treaty Bureau, hc, 19th Diet, Committee on Foreign Affairs, April 26, 1954, No. 25 at 11–​12. Takahashi Michitoshi, 34th Diet, hr, Special Committee on Japan-​US Security Treaty, No. 21 at 26, April 20, 1960.

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47

the use of force.22 The suggested option was to take necessary measures that would not reach the threshold of the use of force. On the other hand, Japan has taken a rigorous approach on this issue as a matter of the domestic law. It requires that the armed attack to actually occur. Yet, it has maintained the position that, as long as the three requirements of self-​defense are satisfied, as described in Chapter 1, Section 1.1, Japan may resort to the use of force before an actual attack takes place in the territory of Japan. It includes hitting the enemy’s base even when the missile aiming Japan is not launched.23 In 1956, the government expressed that it was not the purpose of the Constitution to require the Japanese government to wait until missiles destroy its territory when, for instance, a guided missile was launched.24 The same argument was made in the late 1990s and the 2010s when the dprk increased its missile launching to the Sea of Japan.25 However, the government’s explanation in 2015 was that Japan does not possess the capability to attack the enemy’s base, as a matter of fact, and it does not expect to undertake such an attack as a part of the self-​defense.26 Japan does not explicitly support the position that a non-​state actor may conduct an armed attack, and thus the victim state may resort to the right of self-​ defense against such an actor. There has been a significant amount of discussion over this question. The icj held in the Palestinian Wall Advisory Opinion that Article 51 “recognizes the existence of an inherent right of self-​defence in the case of an armed attack by one State against another State,”27 suggesting that non-​state actors may not trigger self-​defense. Several states, including the United States, and many commenters expressed the opposite view.28 Japan does not recognize a room that a non-​state actor such as terrorist groups, other than a quasi-​state entity, will launch an armed attack that

22

Tōgō Kazuhiko, Director of the Bureau of Treaties, mofa, 143rd Diet, hr, Committee of Foreign Affairs, No. 4 at 14, September 18, 1998. 23 Funada Naka, Secretary of Defense Agency, 24th Diet, hr, Cabinet Committee, No. 15 at 1, February 29, 1956. 24 Ibid. 25 Noroda Yoshinori, Secretary of the Defense Agency, 145th Diet, hr, Committee of National Security, No. 3 at 5, March 3, 1999; Inada Tomomi, 193rd Diet, hr, Foreign and Defense Committee, No. 18 at 5, May 16, 2017. 26 Nakatani Gen, 189th Diet, hc, Special Committee of Peace and Security Legislation, No. 20 at 16, September 14, 2015. 27 icj, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, July 9, 2004, [2004] icj Reports 136, at 194, para. 139. 28 Gray, International Law and the Use of Force, 202.

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Chapter 2

triggers self-​defense, at least in the context of Japanese law.29 The meaning of “a quasi-​state entity” has not been clearly defined, and the government has held that it would be decided on a case-​by-​case basis.30 Elements include whether the entity satisfies some of or all the conditions of statehood, whether it has its territory and political regime and can be a party to an international armed conflict, although it is not internationally recognized as a state,31 and whether the entity has political claims, certain organizations and military capabilities.32 Examples mentioned by the government were the Taliban regime after the Afghanistan War of 2001,33 and the remnants of the Hussein regime after the Iraq War of 2003, which tried to restore the previous regime and continue the resistance against the armed forces of the United States and the United Kingdom.34 On the other hand, if these remainders were engaged with violence for their private purposes, they would not be considered a quasi-​state entity.35 1.3 Right of Collective Self-​Defense The sdf Act Article 76(1)(ii) provides that if there is an armed attack against another state that Japan is in a close relationship with, and it threatens Japan’s

29

It should be noted that Kishida Fumio, the Minister of Foreign Affairs, in 2014 referred to the possibility that a non-​state actor may conduct an armed attack. However, his statement was made in the specific context of assessing the US’s air bombing against Islamic State in Syria done with an acknowledgment of the Syrian government. Therefore, Kishida’s statement is not to be characterized as Japan’s general endorsement of such a position. Kishida Fumio, Minister of Foreign Affairs, 187th Diet, hr, Committee on National Security, No. 2 at 6, October 14, 2014. It supports the United States’ war on terror on the premise that it is in accordance with the UN Charter. Motegi Toshimitsu, Minister of Foreign Affairs, 200th Diet, hr, Committee on National Security, No. 9 at 8, January 17, 2020. 30 Ishiba Shigeru, Minister of Defense, 156th Diet, hc, Special Committee on Armed Attack Situations, No. 11 at 23, June 4, 2003. 31 Ibid. 32 Akiyama Osamu, Secretary of Cabinet Legislative Bureau, 156th Diet, hc, Committee of Diplomacy and Defense, No. 15 at 29, July 10, 2003. 33 Ishiba Shigeru, Minister of Defense, 156th Diet, hc, Special Committee on Armed Attack Situations, No. 11 at 23, June 4, 2003. 34 Ishiba Shigeru, Minister of Defense, 156th Diet, hr, Special Committee on Humanitarian Restoration Assistance to Iraq, Prevention of International Terrorism and Japanese Cooperation and Assistance Operations, No. 7 at 4, 2 July 2003. The government seems to have intended to exclude the organized armed group in a non-international armed conflict from its scope, albeit not definitively. 35 Ishiba Shigeru, Minister of Defense, 169th Diet, hr, Committee of National Security, No. 6 at 2, April 25, 2008.

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survival and poses a clear danger to “the Japanese people’s right to life, liberty, and the pursuit of happiness,” the Prime Minister may order the sdf to undertake Defense Operation. Differences exist between the concept of the collective self-​defense under international law and the Japanese law. The sdf Act and other Japanese domestic laws do not use the term “collective self-​defense.” The government and members of the Diet utilized this term for the sake of convenience. The government has explained that it distinguishes individual self-​defense and collective self-​defense only on the basis of whether the armed attack is launched directly against Japan.36 Under international law, states may resort to the collective self-​defense under the UN Charter Article 51, when an armed attack occurs against a state, until the Security Council has taken measures necessary to maintain international peace and security. In the Nicaragua v. The United States case, the icj held that the victim state should have declared itself to have been attacked, and issued a request for assistance as a precondition for any other state to use force against the aggressor in the exercise of collective self-​defense.37 The sdf Act Article 76 requires the occurrence of an armed attack, but does not incorporate the declaration and the request requirements. The government explained that these requirements are implicit in Article 88(2), which requires the compliance with international law and customs, and that the Japanese law is consistent with the Nicaragua judgment.38 When Japan resorts to collective self-​defense, a state “to which Japan has a close relationship” must be attacked.39 The attacked state’s declaration and the consent are the premises for the Japanese government to act. Therefore, its concept of collective self-​defense does not deviate from the requirements of the icj case. The right of collective self-​defense was introduced particularly to strengthen the alliance with the United States. The latest Japan-​U S Defense Cooperation Guidelines, adopted in 2015, confirms that the forces of the two countries 36 37 38

39

Kishida Fumio, Minister of Foreign Affairs, 189th Diet, hr, Special Committee on Peace and Security of Japan and International Society, No. 4 at 30, May 28, 2015. icj, Military and Paramilitary Activities in and against Nicaragua, para.199. Akiba Takeo, mofa Director of International Law Bureau, 189th Diet, hr, Special Committee of Peace and Security of Japan and International Society, No. 19 at 8, July 10, 2015. Furthermore, the House of Councillors issued an annex resolution that a request or a consent of the victim state is necessary. hc, Special Committee of the Peace and Security Legislation, September 17, 2015. See also Tadashi Mori, “Kokuren Kenshō to Heiwa Anzen Hōsei,” Quarterly Jurist 19 (2016): 108. Kishida Fumio, Minister of Foreign Affairs, 189th Diet, hc, Special Committee of Peace and Security of Japan and International Society, No. 10 at 8, August 19, 2015.

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“will maintain and strengthen deterrence and their defense postures against ballistic missile launches and aerial incursions.”40 The two governments will “cooperate to expand early warning capabilities, interoperability, network coverage, and real-​time information exchange and to pursue the comprehensive improvement of capabilities to respond to the threat of ballistic missiles.” They will also “continue to coordinate closely in responding to provocative missile launches and other aerial activities.” Such cooperation is expected to enhance aerial security in the region.41 However, it is questionable that it actually enables the Japanese government to effectively respond to the threat, in light of the high thresholds as discussed in the previous section. As an actual case, it was disputed whether Japan could have intercepted the missile launched from the dprk at the US bases in Guam after Kim Jong Un threatened to attack the US base with its intercontinental ballistic missile in August 2017. Assuming that Japan was capable of shooting it down, the Japanese government did not exclude the possibility that such a situation constituted a Survival Threatening Situation.42 Onodera Itsunori, the Minister of Defense, explained that, under the Japan-​U S alliance, Japan plays the role of a shield and the US plays the role of deterring the attacking adversary.43 Considering that both of these roles would enhance Japan’s deterrence, the loss of the US’s deterrence or striking power might bring about the Survival Threatening Situation.44 Yet, the government emphasized that the decision should be made on a case-​by-​case basis and avoided a concrete assessment.45 In summary, the problem of a Survival Threatening Situation operation is not that the measures would conflict with existing international law or the Constitution. Instead, it is that the narrow and obscure definition could put a limit on Japan’s security strategies. While the “re-​interpretation” of Constitution Article 9 invited an enormous amount of criticism, its practical significance has been hardly discussed. 40 41

Guidelines for Japan-​U S Defense Cooperation, April 27, 2015, Section A-​2. Japan and the United States has coordinated to establish Integrated Air and Missile Defense (iamd). See Koichi Arie and Naohiko Yamaguchi, “U.S. Initiative for Integrated Air and Missile Defense (IAMD),” nids Journal of Defense and Security 19 (2017): 17–​36. 42 Onodera Itsunori, Minister of Defense, 193th Diet, hr, Committee of National Security, No. 9 at 11, August 10, 2017. The sdf Act Article 82-​3 provides that the sdf may destroy a ballistic missile on the high seas only where it would “fall within the territory” of Japan. See Chapter 6, Section 2. 43 onodera Itsunori, Minister of Defense, 193th Diet, hr, Committee of National Security, No. 9 at 11, August 10, 2017. 44 Ibid. 45 Ibid.

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The sdf’s Authority to Inspect Foreign Vessels beyond the Japanese Territorial Sea

2.1 Inspection of the Vessels under the Surrounding Situation Act This section turns into the maritime operations at the time of emergency. The sdf has certain authority to inspect a foreign vessel in the maritime domain beyond the Japanese territorial sea for the security purposes. The first instance is the inspection of the vessels in an Important Influence Situation and international peace cooperation operations.46 An Important Influence Situation is a situation that is likely to impose a grave security threat to Japan, including an armed attack against the country, if left as it is. The basis for such support was first set out in the Act on the Situation in Areas Surrounding Japan of 199947 and later in the Important Influence Situation Act of 2015.48 The Inspection of the Vessels in the Surrounding Situation Act of 2000 mandates the sdf to assist the State in engaging with the situation and conduct inspections of foreign vessels beyond the territorial sea.49 The necessity to allow the sdf to take certain forcible measures to support its ally, specifically the United States, even when Japan has not been directly attacked, has been recognized since the alliance’s establishment. It was the 1997 Guideline that triggered the enactment of the Surrounding Situation Act.50 It stipulated that Japan would provide a support to those US forces conducting operations to achieve the Japan-​U S Security Treaty’s objectives.51 In order to secure the compatibility with the domestic law, the sdf was to conduct such activities as intelligence-​gathering and surveillance to protect lives and property and ensure navigational safety. This Guideline led to the enactment of the Inspection of the Vessels in the Surrounding Situation Act.52

46 47 48 49 50 51

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sdf Act, Article 84-​5. Act No. 60 of 1999. Amended under Act No. 76 of 2015. Act on the Operation of Vessels Inspection in an Important Influence Situation and Others, Act No. 145 of 2000. The Guidelines for Japan-​U S Defense Cooperation, September 23, 1997. Ibid., Section 2(2)(b). It states that, by its nature, “Japan’s rear area support will be provided primarily in Japanese territory. It may also be provided on the high seas and international airspace around Japan, which are distinguished from areas where combat operations are being conducted.” In supporting the foreign force, Japan will make appropriate use of authorities and assets of central and local government agencies as well as private sector assets. Act No. 145 of 2000.

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The Important Influence Situation Act specifies that Japan cannot provide lethal weapons and materials to a foreign country. However, it allows the state which Japan supports to charge oil and supplement ammunition on the vessels of the jmsdf.53 Such support activities are explained as not being the “use of force” prohibited under Article 9 of the Constitution because there is no “integration of use of force” (buryoku kōshi no ittaika). The government’s position is that this assessment of “integration” must be done on a case-​by-​case basis. The following elements should be taken into account: (1) the geographical relationship between the sdf and the place of hostilities; (2) the concrete actions taken; (3) the closeness of the personnel who are in charge of the use of force by the other state; and (4) the actual situation of the state Japan is to aid.54 This theory of “non-​integration” has been criticized particularly by constitutional lawyers, who argue that the criteria of geographical and personal closeness have no legal significance. Nonetheless, the government maintained its position that, as long as the conditions specified in each Act are satisfied, the jus ad bellum problem may not arise.55 For the criticism against the “integration of use of force” formula, what the jmsdf can do against foreign vessels beyond the Japanese territorial sea is quite restrictive. The operation under the Inspection of the Vessels in the Important Influence Situation Act is mainly to inspect the cargo and the destination of a private vessel. The original Act of 2000 provided only the situation in the area surrounding Japan. After the amendment in 2015, the International Peace Cooperation Operation was added, in light of the increase of security threat posed by the transportation of wmd and international terrorism organizations. Warships and ships owned or operated by a foreign government and used only for non-​commercial purposes are excluded from this law’s scope.56 The operation shall be carried out based on the UN Security Council’s

53

54 55

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Act No. 60 of 1999, Annex ii. The support includes: (1) the supplementing of water, fuel, meals, and other materials and services; (2) the transportation of personnel and materials as well as the provision of transportation equipment; (3) activities of repairing and maintaining equipment; (4) medically treating the wounded and sick; and (5) providing medical equipment, communication equipment, lodging, and disinfection. Ōmori Masasuke, Secretary, Cabinet of Legislation, 140th Diet, hr, Budget Committee, No. 12 at 18, February 13, 1997. For a comprehensive analysis of this legislation, see Akira Mayama, “Kaijo Churitsu to Koho Chiiki Shien (Japanese),” Jurist 1279 (2004): 20–​30; Akira Mayama, “The Constitutional Limitation on the Exercise of the Right of Collective Self-​Defense: Minesweeping in Foreign Territorial Waters and Close-​in Logistical Support for Belligerents,” Japanese Yearbook of International Law 60 (2017): 171–​93. Act No. 145 of 2000, Article 2.

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authorization or the consent of the flag state.57 Therefore, no legal problem arises vis-​à-​vis the flag state’s jurisdiction. The difficult part is that the law obliges the sdf to board and inspect the vessel after obtaining the master’s consent.58 It is not a requirement under international law or the Constitution. It is a transposition of Japanese administrative police law. If the master refuses such a request, there is no option for the sdf but to persuade the master and to track the vessel as necessary. It restricts the jmsdf’s capability to support the other states which deal with the situation which would harm Japanese security, because, if the vessel carries unlawful materials, it is unlikely that the master will consent to the jmsdf’s inspection. This limit does not seem to have been challenged in the Diet or other political forums. Act Concerning Maritime Transportation Regulation of Foreign Military Vessels Another instance of the sdf’s authority to conduct high seas inspection is Act on the Restriction of Maritime Transportation of Foreign Military Supplies . Under the pre-​U N Charter international legal order, in such a case the law of neutrality would have been applied so that belligerent states would be entitled to conduct economic warfare against a third state’s vessels. However, Japan no longer recognizes the law of neutrality per se.59 As a result, the law which authorizes the sdf to take coercive measures against a third party’s vessel when Japan is a party to international armed conflict may not be explained under the logic of existing international law. This act provides the sdf’s authority to resort to material force against a third state in response to an armed attack.60 The law sets forth the procedures for the jmsdf to board, search, and seize vessels on the Japanese territorial sea or the high seas under the Defense Operation order.61 When it is necessary to restrict the maritime transportation of foreign military supplies, the Minister of Defense may order units of the jmsdf to take specific measures after obtaining the prime minister’s approval.62 The mofa shall take steps to announce the scope of the cargo restriction and the area of 2.2

57 Ibid. 58 Ibid., Annex Table. 59 See Chapter 2, Section 3. 60 Act No. 116 of 2004, Article 37. 61 Defense Operation Order is the order issued in the case of an Armed Attack Situation or a situation of imminent armed attack under sdf Act, Article 76(1). 62 Ibid., Article 4.

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implementation to pertinent foreign governments and international organizations without delay.63 When its personnel have sufficient grounds to suspect that a ship is transporting foreign military supplies,64 a jmsdf commanding officer may stop the vessel and conduct an onboard inspection.65 If the cargo is foreign military supplies, the sdf is entitled to request their transfer to the sdf. In addition, if the master of the vessel does not comply with the request, among others, the sdf may request the ship to dock at a Japanese port.66 There is a provision that authorizes sdf officers to use weapons with specific restrictions.67 When these measures are taken, a Foreign Military Supply Tribunal shall temporarily be established in the mod as a special organ to adjudicate the case.68 The Japanese government explained that the legal basis for taking such measures as a part of maritime economic warfare was not exercise of the belligerent rights. Instead, it was a measure taken as part of a self-​defense exercise to a minimum and necessary extent, which is permitted under the UN Charter

63 64

65 66 67

68

Ibid., Article 5. Ibid., Article 2(2). Foreign military supply means the items listed in the law and limited to those specified by Cabinet Order. If the following materials are sent to the foreign forces which are engaged in the Armed Attack Situation, they may be included in the list: (a) nuclear, chemical, biological or toxic weapons (including missiles and other means capable of transporting these), or anti-​personnel mines; (b) firearms; (c) ammunition or military explosives; (d) military arms; (e) military aircraft, rockets, ships or vehicles; (f) military communications equipment or electronics; (g) components or accessories of those listed in (a) through (f); (h) military gunpowder (excluding explosives) or fuel. When the following materials are sent to the foreign force and the force is situated in the high seas surrounding Japan, they will also be included in the list: (i) armor plates, military helmets, body armor and other military equipment (excluding those listed in (a) through (g)); (j) devices for the repair or maintenance of aircraft, rockets, ships or vehicles, or components or accessories; (k) fuel (excluding those types listed in (h)), lubricants or operating oil for aircraft, rockets, ships or automobiles; (l) food (limited to those which are sent to foreign forces). Ibid, Articles 16-​24. Ibid, Article 25. Ibid, Article 37. It is provided that (1) the provision of Article 7 of the Police Official Duties Execution Act applies mutatis mutandis, and (2) if the crewmembers of the subject ship do not obey repeated orders to stop given by the commanding officer persistently resists the execution of duty or tries to escape and when there are sufficient grounds to believe that there are no other means to stop the said ship, the sdf personnel may use the weapons within limits which are reasonably necessary according to the circumstances, following the orders of the commanding officer. Ibid, Article 7.

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and Japanese Constitution.69 The main problem is that there is no established international law rule which obliges a third party, in this case, the vessel’s flag state, to tolerate the interference taken against it on the high seas as a part of an act of self-​defense.70 The government, too, remained to state that the third party was “in the status to tolerate the interception.”71 It could not go far as to express that there was “a legal obligation” on the third party’s side. The issue will not arise if the law of neutrality applies because a neutral state is under an obligation to allow the search and visit of belligerent states. However, as long as the government bases its explanation on self-​defense, it will not be able to provide a theoretically consistent basis for the inspection. 3

Remaining Challenges

Compared with the rules and concepts discussed in Chapter 1 and the previous sections, there has been little discussion on (1) the personnel’s rights and obligations under Japanese law when the sdf pursues operations which would have an international dimension, and (2) the jcg’s status during a Defense Operation. The Regulation of sdf Personnel During Operations Criminal Responsibility for the sdf’s Conduct under Foreign or International Criminal Laws There are primarily two missing areas concerning the regulation of the sdf personnel’s rights and obligations. One concerns the sdf’s criminal responsibility under both foreign and international law. The other is the sdf’s rights and obligations during an international armed conflict. The former issue is that there is no domestic statute that explicitly governs the sdf’s criminal conduct abroad. There is no special law that applies when an sdf officer commits crimes under international criminal law, and there is no special military tribunal that tries such offenses.72 The Penal Code applies 3.1 3.1.1

69 70 71 72

Ishiba Shigeru, Secretary of Defense Agency, 159th Diet, hc, Special Committee on Humanitarian Assistance to Iraq and The Response to Armed Attacks, No. 10 at 4, May 26, 2004. For the analysis on this issue, see Kouichi Morikawa, “Buryoku Kogeki Jitai Kaijo Yuso Kisei Ho to Kokusai Ho,” Jurist 1279 (2004): 11–​19. Hayashi Akira, mofa, Director of the Bureau of Treaties, 159th hc, Special Committee on Humanitarian Assistance to Iraq and The Armed Attack Situation, No. 14 at 3, June 2, 2004. sdf Act provides penalties when the officers violate provisions of the Act. However, these regulations are by nature the same as the prescription of other civilian officers, such as

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to the personnel as long as no special law provides otherwise, and its Article 3 provides personal jurisdiction for certain serious crimes committed outside Japan.73 However, the Penal Code does not govern all of the sdf’s conducts. For instance, there is no extraterritorial jurisdictional clause penalizing negligent manslaughter. Therefore, if an sdf officer kills a civilian by fault during the operation on a foreign soil, that person may not be prosecuted before the Japanese court. Furthermore, the Penal Code does not lay down the superior command’s responsibility. Therefore, the commander of the unit may not be held criminally responsible for the personnel’s offenses during the operation. When Japan concludes status of forces agreements with the territorial state when it dispatches the sdf for pko or other operations, it is conventional that the host state waives its criminal jurisdiction against the sdf’s personnel.74 If there is no such agreement, the sdf’s personnel may enjoy sovereign immunity from the criminal jurisdiction of the victim’s state, although the scope of such immunity and the state practice is far from consistent.75 This means that the personnel in question may not be sanctioned in any jurisdiction. The Act on Penal Sanctions against Grave Breaches of the International Humanitarian Law, which was enacted when Japan ratified the four Geneva Conventions of 1949 and two Additional Protocols in 2004, criminalizes a

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the prohibition of bribery. When such violation occurs, the investigation is done by a special police officer who has exclusive jurisdiction, but the trial takes place before the ordinary court. Act No. 45 of 1907. Japan concluded an arrangement with Djibouti concerning the status of the sdf of Japan and the jcg as well as their personnel and other personnel sent to Djibouti with the aim of taking law enforcement measures to counter acts of piracy off the Somali coast. It was the first time that Japan established an overseas base after wwii. Djibouti has waived the criminal jurisdiction against sdf officers. Arrangement between Japan and Djibouti regarding the Status of Self Defense Force in Djibouti, signed on April 3, 2009, entered into force on April 3, 2009, mofa Notification, No. 223, para. 8. There is a room to argue that the territorial exception (an official would not enjoy immunity for criminal conduct within the territory of the forum state) would apply. However, even one can make such an argument, whether the same applies to the military personnel remains unsettled. The International Law Commission (ilc) has worked on the study on the immunity of state officials from foreign criminal jurisdiction since 2007, only to agree on a limited number of provisions. See Report on the work of the 69th session (2017), A/​ 72/​10, at 175. See also Aurel Sari, “The Status of Armed Forces in Public International Law,” in Research Handbook on Jurisdiction and Immunities in International Law (Elgar, 2015), 356; Rosanne van Alebeek, “Functional Immunity of State Officials from the Criminal Jurisdiction of Foreign National Courts,” in Cambridge Handbook on Immunities and International Law (Cambridge University Press, 2019), 496–​524; Hazel Fox and Philippa Webb, The Law of State Immunity, 3rd ed. (Oxford University Press, 2013), 91.

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minimal number of international humanitarian law violations.76 While the law is technically applicable to sdf personnel, it is hard to conceive of such a scenario occurring. When Japan ratified the Statute of the International Criminal Court (icc) in 2007, it did not criminalize the offenses that are subject to the jurisdiction of the icc.77 It merely enacted domestic legislation to cooperate with the institution.78 It is compatible with the treaty because the icc Statute does not require the member states to criminalize the core crimes. The Japanese government’s position was that the Penal Code was sufficient to cope with the crimes under the Statute,79 notwithstanding the gap described above. Hence, there remains a possibility that sdf personnel is subject to the icc’s jurisdiction, but Japan does not have the legal basis for prosecuting the individual. Scholars and ngo s have criticized this defect for a long time, but there has been no sign of the legislation. 3.1.2

Rights and Obligations of sdf Personnel Participating in an International Armed Conflict The other and related issue is that the current sdf Act does not provide the rights and obligations that apply during an international armed conflict. Once the Defense Operation order is issued, it is up to the sdf to decide what action it would take. The sdf Act provides that the sdf must comply with the applicable international legal rules and customs, and the action must not exceed the limits that is considered as reasonably necessary in the situation.80 Little 76

77

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79 80

Act on Penal Sanctions against Grave Breaches of the International Humanitarian Law, Act No. 115 of 2004. For the historical development of ihl in Japan, see Hitomi Takemura, “The Post-​War History of Japan: Renouncing War and Adopting International Humanitarian Law,” in Asia-​Pacific Perspectives on International Humanitarian Law, ed. Suzannah Linton, Tim McCormack, and Sandesh Sivakumaran (Cambridge University Press, 2019), 456–​72. For the analysis, see Yasushi Masaki, “Nihon to Kokusai Keiji Saibansho (Japanese),” in Kokusai Keiji Saibansho, ed. Shinya Murase and Keiko Ko, 2nd ed., 2014, 362; Kazuya Yokohama, Kokusai Keiho Niokeru Jokansekinin to Sono Kokunaihoka (Keio University Press, 2021), 236. For the potential tensions between international and domestic criminal laws regarding the superior command’s responsibility, see Hiromi Satō, The Execution of Illegal Orders and International Criminal Responsibility (Springer, 2011), 153. Act on Cooperation with the International Criminal Court, Act No. 37 of 2007. It provides the destruction of cultural property (Article 3), the offense of delaying the transfer of prisoners of war (Article 4), the transfer of a State’s nationals or residents to an occupied territory (Article 6), and the prevention of a civilian’s emigration (Article 6). Asō Tarō, Minister of mofa, 166th Diet, hr, Plenary Meeting, No. 15 at 9, March 20, 2007; Mizuno Keni’chi, Vice Minister of Justice, 166th Diet, hc, Committee of Foreign and Defense, No. 8 at 3, April 26, 2007. sdf Act, Article 88(2).

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has been officially discussed regarding the regulation of the sdf at the time of armed conflict beyond these general rules. Neither is there domestic rule concerning the status of the sdf in an international armed conflict. The sdf is a military in terms of api Article 43(1). A member of the Diet once raised a question about what if an sdf officer was captured during a pko. In other words, whether the government would require the capturing state to treat the officer as a prisoner of war or would not require the recognition of such status, but demand it to treat him or her humanely as a person of equal status to a prisoners of war.81 The government first stressed that there would be “no possibility” that one of the parties to the conflict would capture an sdf officer during the pko operation.82 Then, it stated that it would require the state to order the immediate release of the sdf officer. The government explained that the officer should be treated in accordance with the standard of universally recognized human rights and the principles and the spirit of international humanitarian law.83 It did not answer to the question whether it would claim the said state’s obligation under Geneva Convention iii on Prisoners of War of 1949. Against this background there is Constitution Article 9 which provides that “[t]‌he right of belligerency of the state will not be recognized.” It follows that the Japanese government denies the right of belligerency as such. When Japan’s status concerning the Vietnam War was questioned in the Diet, the government explained that the war was not “war in the traditional sense of international law,” and whether Japan was a neutral state was “not directly governed by international law.”84 The government had said that the rights of belligerency that conventions before 1945 recognized –​when war was a legitimate means to pursue a state’s policy, as articulated in Hague Conventions v85 and viii86 –​were no longer recognized.87 On the other hand, the government 81 Questions Statement, Nagashima Akihisa, 196th Diet, hr, No. 374, June 19, 2018. 82 Ibid. 83 Ibid. 84 Saitō Kunihiko, mofa Director of the Bureau of Treaties, 109th Diet, hc, Cabinet Committee, No. 3 at 24, September 1, 1987. For the overview of the government’s position, see also Kenji Matsuyama, “Kenpo Kyu Jo No Koseken Hinin Kitei to Buryoku Hunso Tojikoku No Dai Sangoku Ni Taisuru Sochi (Japanese),” Refarensu 64, no. 1 (2014): 87–​101. 85 Hague Convention (v) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, signed on October 18, 1907, entered into force January 26, 1910, usts 540. 86 Hague Convention (xiii) Respecting the Rights and Duties of Neutral Powers in Naval War, signed on October 18, 1907, entered into force January 26, 1910, usts 545. 87 Tōgō Kazuhiko, mofa Director of the Bureau of Treaties, hr, 145th Diet, Special Committee for Guideline for Japan-​US Defense Cooperation, No. 9 at 6, April 20, 1999.

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has maintained that the sdf’s use of force is distinguished from the “rights of belligerency since Japan is naturally entitled to resort to the former as a part of the exercise of the right of self-​defense.”88 This explanation corresponds with Japan’s position under the alliance with the United States. As long as Japan allows the United States to use the bases in the Japanese territory when it is engaged in an international armed conflict with a third state, Japan violates neutrality.89 Yet, the government takes the position that such the law of neutrality is not the same after the non-​use of force principle is established under the UN Charter.90 The non-​recognition of belligerent rights does not mean that military law is not necessary. Quite the opposite. This lack of military regulation would de facto limit Japan’s options in countering a threat to its national security.91 If the sdf is to engage in a Defense Operation, the organization has to engage in hostilities without domestic laws that regulate its operation. The lack of the necessary law that governs sdf hostilities makes the sdf “too dangerous” to let it use the force.92 Yet, the latest legislation in 2015 did not fulfill this lacuna. 3.2 The jcg’s Status During an International Armed Conflict The other missing argument is the jcg’s status during an international armed conflict. Since only the sdf may use force to defend Japan, the jcg is not mandated to take part in the military operation. Furthermore, the jcg Act Article 25 provides that “[n]‌othing contained in this Law shall be construed to permit the jcg or its personnel to be trained or organized as a military establishment or to function as such.” However, the sdf Act Article 80 provides that the Prime Minister may put part or all of the jcg under the control of the Minister of Defense in the cases of the situations of Defense Operation and Public Security Operation.93 It is therefore necessary to read the sdf Act Article 80 and the jcg Act Article 88 Ibid. 89 See Yasuo Ishimoto, Kokusaiho No Kozo Tenkan (Yushindo Kobunsha [Japanese], 1998), 118; Mayama, “Kaijo Churitsu to Koho Chiiki Shien (Japanese),” 20. 90 Takashima Masuo, mofa, Director of Bureau of Treaties, 68th Diet, hr, Committee of Foreign Affairs, No. 11 at 14, April 26, 1972. 91 In the words of Inoue Tatsuo, the sdf is “useless,” not because domestic law strictly limits the actions of the organization but because of the lack of the regulations at the time of the use of force. Tatsuo Inoue, Rikkenshugi No Kuwadate (University of Tokyo Press, 2017), 296. 92 Ibid. 93 The Minister of Defense will command the jcg through its Secretary. Order of Implementation of the sdf Act, Article 103.

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25 in a coherent manner. In such a case, the Prime Minister will require the Minister of Defense to control the jcg under a cabinet order.94 This may result in the jcg’s vessels becoming a military target even if they are not taking part in hostilities with the sdf.95 Actions of the jcg in an armed conflict, such as patrolling the coastline, may be regarded as hostile acts.96 There may not be an international legal issue, but it will make the jcg’s position insecure and ambivalent. There has been little debate on this issue either.

Conclusion

The historical and societal choices Japan has made created gaps in its national security laws. It is not that any of these choices violates international law or contradicts the icj jurisprudence. Yet, they virtually narrow down Japan’s options in the face of the security threats. Furthermore, there are missing areas such as the regulation of the sdf in an international armed conflict and the jcg’s status during the Defense Operation. Once the sdf commences the use of force, the lacuna will substantially restrict the ambit of the sdf’s operations. Having these limitations within the Japanese national security laws in mind, the following chapters will explore the unilateral pacifism that appears in Japanese law of the sea.

94

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The First Protocol Additional to the Geneva Conventions (api) Article 43(3) stipulates that a party to a conflict that incorporates an armed law enforcement agency into its armed forces shall so notify the other parties to the conflict so that the members of such agency enjoy the status of combatants. The incorporation of the JCG will not take place and it would put the personnel in an instable position. International Institute of Humanitarian Law, San Remo Manual on International Law Applicable to Armed Conflicts at Sea (Cambridge University Press, 1995), para. 39. According to the San Remo Manual on the Law of Armed Conflicts at Sea of 1994, such operations include situations where vessels are incorporated into or assist the enemy’s intelligence system or contribute to the enemy’s military action. While the Manual merely stipulates the case of merchant vessels and not civilian government vessels, there seems to be no reason why this rule would not cover the jcg’s vessels. Akira Mayama, “Maritime Law Enforcement and International Armed Conflict,” Paper presented at Naval War College and Japan Maritime Self-Defense Force, Workshop on Japanese Security Policy and International Law: Gray Zone Conflict (March 6–​7, 2018), unpublished. Mayama points out that jcg’s patrols could be considered hostile conduct, in light of the rule that even radio reporting of the location of the enemy by merchant ships during armed conflict is regarded as such.

­c hapter 3

Territorial Sea

Introduction

Japan’s composition as a state of more than 6,800 islands with a sizable internal water, and its proximity to other states in East Asia, have produced an unique approach to its territorial sea. The approach reflected Japan’s national interests, both as a coastal state of a navigational chokepoint and a country that depends on international maritime commerce.1 During the codification process of unclos i-​i ii and the domestic implementation of the Territorial Sea Convention and unclos, neighboring states and other naval powers influenced its maritime policy. Section 1 reviews the history of the domestic legislation. Section 2 focuses the innocent passage regime. Section 3 surveys the significance of the right of protection with a particular focus on how it would prevent foreign sovereign vessels from conducting non-​innocent passage. 1

Legislative History

1.1 From the Nineteenth Century to the Hague Conference of 1930 During the Edo period from the early 17th century to the mid 19th century, the Tokunaga shogunate strictly limited foreign relations and trade between Japan and other countries under an isolationist foreign policy. However, in the 1850s, Japan started to open its window to the international society by concluding treaties of peace and amity with major powers. Afterwards, the government tried to promote maritime commerce and fisheries. In the latter half of the 19th century, the studies on the law of the sea and naval warfare were the focus of the Japanese government.

1 Sakamoto Shigeki, an international lawyer, points out that Japan is both a transiting and transited maritime country. Shigeki Sakamoto, Nihon No Kaiyō Seisaku to Kaiyō Hō (Shinzansha [Japanese], 2018); Shigeki Sakamoto, “Nihon to Kokusai Kaikyo –​Tokutei Kaiiki No Mondai Wo Chushin Ni,” in Kokusai Kaikyo, ed. Shigeki Sakamoto (Toshindo [Japanese], 2015). For an overview of the Japanese law of the sea, see also Chie Kojima, “Implementation of the United Nations Law of the Sea Convention in Japan,” in Asia-​Pacific and the Implementation of the Law of the Sea, ed. Seokwoo Lee and Warwick Gullett (Brill, 2016), 34–​52.

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004500419_005

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The first occasion on which Japan recognized its territorial sea was at the time of the Franco-​Prussian War. On July 28, 1870, Japan declared that the belligerent states were not permitted to engage in hostilities in Japanese harbors or inland waters or within “three miles” from its coast.2 On August 29 of the same year, another Proclamation added that “three miles” was meant to reflect “the distance of a cannon shot from the land.”3 The Japanese government thereby officially upheld the limit of 3 nm for its territorial sea.4 Over the ensuing decades, Japan repeatedly reasserted the same width for the territorial sea. It declined to exercise its sovereign rights beyond its territorial waters and objected to other states doing so. For example, Japan protested Russia’s establishment of a 12 nm customs zone in 19095 and then a 12 nm fishing area in 1911.6 When Japan concluded the Convention Respecting the Regulation of the Liquor Traffic of 1928 with the United States, both states maintained the 3 nm limit for territorial waters.7 Two Sasebo Prize Court cases from the Russo-​Japanese War supported this position. During this conflict, Japanese naval forces captured The Rossia, a Russian warship, just 6 nm from Kushingham, Korea. The Sasebo Prize Court ruled that the seizure was lawful since it occurred in international waters.8 The Court also awarded a prize for

2 Proclamation of the Grand Council of State (Dajōkan Fukoku), No. 492, July 28, 1870, Hōrei Zensho (1870) 273. There is a study which claims that the unit “mile (ri)” used in these instruments meant a unit customarily used in Japan in the Edo era, instead of a nautical mile (which was not defined internationally at the time). If that was the case, one unit was approximately 3.9 km, and the proclamation could have meant approximately 11.7 km. See Masayuki Takeyama, “Fufutsu Sensō to Nihon No Ryōkai Fukuin,” Hōgaku Shinpō 116, no. 3–​ 4 (2009): 455–​522. See also Kentaro Nishimoto, “Kaiyō Kankatsuken No Rekishiteki Tenkai (3) [Historical Evolution of Maritime Jurisdiction (3)],” Kokka Gakkai Zasshi 125 (2012): 464. 3 Proclamation of the Grand Council of State, No. 546, August 29, 1870, Hōrei Zensho (1872) 323. 4 For this history, see Sōji Yamamoto, Kaiyōhō (Sanseidō [Japanese], 1991), 19; Shigeki Sakamoto, “Japan and the Law of the Sea: Key Historical and Contemporary Milestones,” in Implementation of the United Nations Convention on the Law of the Sea, ed. Dai Tamada and Zou Keyuan (Springer, 2021), 17–​38. 5 Letter from Mr. Guild to Secretary of State, February 3, 1912, [1912] Foreign Relations of the United States 1304 (1919), which described Japan’s protest against Russia’s Law 10 of December 23, 1909. See Stefan A. Riesenfeld, Protection of Coastal Fisheries under International Law (Carnegie Endowment for International Peace, 1942), 202; Zengo Ōhira, “Fishery Problems between Soviet Russia and Japan,” Japanese Annual of International Law 2 (1958): 7. 6 For detail on these Laws of May 29, 1911 and June 11, 1911, see Riesenfeld, Protection of Coastal Fisheries under International Law, 202. 7 Convention respecting the Regulation of the Liquor Traffic, Japan-​U S, signed on May 31, 1928, entered into force on July 6, 1928, Japan, Treaty No. 1 of 1930, Article 1. 8 The Rossia, Sasebo Prize Court, May 26, 1904, reproduced in Cecil James Barrington Hurst and Francis Edmond Bray, 2 Russian and Japanese Prize Cases (H M Stationery Office 1912) 39–​45.

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capturing the fishing vessel The Michael taken at sea 5.5 nm from Korea, and therefore lawful, since it was beyond 3 nm.9 Japan also claimed 3 nm limits in a case concerning a collision between its naval cruiser, Chishima, and a British commercial steamship, Ravenna. The incident took place in off the coast of the present-​day city of Matsuyama, Ehime Prefecture. Chishima sank and the captain and 74 crew members drowned, whereas the Ravenna suffered only minor damage. The Imperial Japanese Government sought compensation from P&O before Her Britannic Majesty’s Court for Japan in Admiralty in Yokohama, and filed suit on May 6, 1893.10 In this process, the Japanese government argued that the collision occurred within the 3 nm limit of the territorial inland sea and that therefore Japanese law applied.11 In the end, the London Foreign Office upheld the Japanese claim and a settlement fulfilled the Japanese claim for liability. The Japanese government officially expressed its position in the 1930 Codification Conference, which was the first significant attempt by the international community to restate or codify the rules for the law of the sea. After World War i, the League of Nations turned toward codifying legal issues that were less contentious and more amenable to agreements.It set up a Preparatory Committee, which drew up the basis of a discussion for the 1930 Hague Codification Conference on the territorial waters, among other topics.12 In reply to the Questionnaire of the Committee of Experts for the Progressive Codification of International Law, Japan insisted that international law generally recognized territorial waters to an outer limit of 3 nm from the coast, based on state practices, as mentioned above.13 It also opposed creating a contiguous zone and claims of a coastal state’s security interest beyond its territorial sea.14 The United States and the United Kingdom joined Japan in the view 9 10

The Michael, Sasebo Prize Court, May 26, 1904, reproduced in Hurst and Bray, 80–​85. Privy Council, The Imperial Japanese Government v. The Peninsular and Oriental Steam Navigation Company [1895] U.K.P.C. 33, Jul. 3, 1895; See also G. Wardlaw Burnet, “Notes on Decided Cases,” Juridical Review 7 (1985): 297–​304; Robert Lanning, “The Chishima-​ Ravenna Collision,” in The British Courts and Extra-​Territoriality in Japan, 1859–​1899 (Brill, 2014), 283–​313. 11 Teikoku Ryokai ni Kanshi Eikoku Seihu ni Taisuru Sengen no Ken [Notification to the Government of Great Britain on Imperial Territorial Water], Nov. 14, 1893, Kōbun Betsuroku (Meiji 26 Nen-​28 Nen) [Official Document (1893–​1895)] 12 (1895). 12 Hunter Miller, “The Hague Codification Conference,” American Journal of International Law 24 (1930): 674. 13 League of Nations, 2 Conference for The Codification of International Law, C.74.M.39.1929.V, 168. 14 Ibid. See also Sakutaro Tachi, “Daiikkai Kokusai Hoten Hensan Kaigi Ni Okeru Ryokai Mondai,” Kokka Gakkai Zasshi 45 (1931): 1–​37.

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that territorial waters have a 3 nm breadth. However, the conference failed to adopt this standard even in a draft convention.15 The First and the Second United Nations Conferences on the Law of the Sea After World War ii, the United Nations opened the First United Nations Conference on the Law of the Sea (unclos i) in Geneva from February 24 to April 27, 1958. Japan had joined the United Nations on December 18, 1956 and could not comment on the provisional ilc drafts of the treaties developed and circulated in 1955 and 1956. Yet, it was an active participant in unclos i. While Japan disputed straight baselines and historic bays, the most relevant topic to maritime security was the breadth of the territorial sea. During the conference, Japan maintained that coastal states could not unilaterally expand their sovereignty into the high seas beyond 3 nm. In particular, Japan rejected the idea that a 3 nm territorial sea was merely an expression of self-​interest to benefit the significant maritime powers. The delegate of Japan stated that, in the nineteenth century when Japan renounced its policy of isolation, it had not owned a single large, ocean-​going vessel but still supported the 3 nm rule and recognized the importance of freedom of the high seas.16 As a result of the discrepancy in the states’ views, the Territorial Sea Convention failed to define the breadth of the territorial sea.17 In 1960, the Second United Nations Conference on the Law of the Sea (unclos ii) was held to negotiate various schemes for the breadth of the territorial sea and fishing zones. At the time Japan held to the 3 nm limit as the prevailing standard, but it was also willing to compromise and accept the UK’s proposal for a 6 nm territorial sea.18 However, as its proposal was not accepted at the close of unclos i, Japan emphasized that the 3 nm rule was the recognized rule of law, and that a rule of international law could be changed “only by means of an international agreement based on a consensus of opinion among nations.”19 During unclos ii, Japan reminded the conference that 1.2

15

See Jesse S. Reeves, “The Hague Conference on The Codification of International Law,” American Journal of International Law 24 (1930): 52–​57. 16 49th mtg, April 16, 1958, Consideration of the Draft Articles adopted by the International Law Commission at Its Eighth Session (A/​3159) (continued), 3 UNCLOS i Official Records 149, paras. 3-​5. 17 Convention on The Territorial Sea and The Contiguous Zone, adopted on April 29, 1958, 516 unts 205. 18 Committee of the Whole Verbatim Records of the General Debate: 9th mtg, a/​c onf.19/​ pv.9, 2 unclos ii Official Records 167, 168. 19 Ibid.

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it continued to recognize a 3 nm limit pending no further agreement on the issue.20 It viewed a broader territorial sea or the creation of a fisheries zone as an “encroachment on the freedom of the seas.”21 Yet, the conference failed to reach an agreement on the limits of the territorial sea for the second time. Japan’s Enactment of Its First Domestic Law on the Territorial Sea in 1977 Japan ratified the Territorial Sea Convention on May 8, 1968. Yet, it maintained the 3 nm territorial sea limit based on customary international law,22 and it did not enact the implementing law. Japan remained a strong advocate for the narrowest possible territorial sea until it compromised on a 12 nm territorial sea at the Third United Nations Conference on the Law of the Sea (unclos iii).23 The policy was motivated by the need for the growing economy to secure the sea lanes of communication and access to living resources since Japan relied heavily on distant water pelagic fisheries.24 In 1967, Japan enacted the Act on Regulation of Fishing Operation by Foreign Nationals, which prohibited foreigners from fishing in its territorial waters.25 Japan did not establish any fishery regulation beyond the territorial sea, except under bilateral agreements with neighboring states.26 Japan established no domestic legislation besides this law to implement its rights and duties within its territorial sea. Ironically, it was a confrontation with foreign fishing vessels that compelled Japan to shift its position and support a 12 nm limit.27 During the late 1960s, foreign fishing fleets began operating as close as 3 nm off Japan’s coast. From 1971 to 1977, local fishermen filed some 2,000 claims with the Fisheries Agency of Japan against foreign vessels fishing near the coast –​half of them in waters within 12 nm from the land.28 These ships were mainly from the Soviet Union, 1.3

20 Ibid., 168. 21 Ibid. 22 Nakajima Tosijirō, mofa Secretary of Treaty Division, 77th Diet, hr, Committee of Foreign Affairs, No. 3 at 12, March 5, 1976. 23 Shunji Yanai and Kuniaki Asomura, “Japan and the Emerging Order of the Sea –​Two Maritime Laws of Japan,” Japanese Annual of International Law 21 (1977): 48–​114. 24 For this background, see Shigeru Oda, International Control of Sea Resources (Martinus Nijhoff, 1989), 28. 25 Act No. 60 of 1967. 26 At the time in 1968, Japan was already a state party to bilateral fisheries agreements with South Korea, China and the Soviet Union. See Chapter 5. 27 Yamamoto, Kaiyōhō, 49. 28 Yanai and Asomura, “Japan and the Emerging Order of the Sea –​Two Maritime Laws of Japan,” 49.

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the rok, and China. While the number of violations increased, these countries excluded Japanese fishing vessels from their territorial seas or fishery zones.29 In particular, the rok in 1952 declared the so-​called “Peace Line,”30 which pushed Japanese vessels out of the area surrounded by the line until the two countries reached an agreement in 1965.31 In 1956, the Soviet Union established the “Bulganin Line,” asserting exclusive control over salmon stocks within certain areas encompassing the Okhotsk Sea and waters adjacent to the Kamchatka Peninsula.32 It also officially established an exclusive fishery zone of 200 nm in 1976, the first state in this region to do so.33 Likewise, China captured many Japanese fishing vessels in areas off its coast in the 1950s, for which the reason was never disclosed.34 Against this backdrop, the Japan Fisheries Association (jfa) started to call for a wider territorial sea around Japan.35 At the Asian-​African Legal Consultative Committee (aalcc) in January 1971, Japan announced for the first time that it was ready to accept a 12 nm territorial sea.36 This proposal accompanied two considerations. One was the 29

30 31 32 33

34 35

36

The details of the confrontation will be covered in Chapter 5. Oda, International Control of Sea Resources, 21; Nobukatsu Kanehara and Yutaka Arima, “Japan’s New Agreement on Fisheries with the Republic of Korea and with the People’s Republic of China,” Japanese Annual of International Law 42 (1999): 1–​31. Presidential Proclamation of Sovereignty over Adjacent Seas (January 18, 1952) translated in 8 unls (1959): 14. Agreement between Japan and the Republic of Korea concerning Fisheries (signed on June 22, 1965) 4 ilm (1965): 1128. Soviet Salmon Fishing Decree of March 21, 1956, translated in MacChesney, 51 U.S. Naval War College, Situations, Documents and Commentary on Recent Developments in the International Law of the Law of the Sea (1957): 494. Edict of December 10, 1976, On Provisional Measures for the Preservation of the Living Resources and for the Regulation of Fishing in Marine Areas Adjacent to the Coast of U.S.S.R., 50 Vedomosti Verkhovnogo Soveta S.S.S.R. [Communications of the Supreme Soviet of the U.S.S.R.] 728 (1976) translated in 15 ilm (1976): 1381. The number of captured vessels rose to 1,909 in 5 years from 1950 to 1954. See Zengo Ōhira and Terumichi Kuwahara, “Fishery Problems between Japan and the People’s Republic of China,” Japanese Annual of International Law 3 (1959): 109–​25. Ōta Koji, Minister of Fisheries Agency, 68th Diet, hr, Committee on Agriculture, Forestry and Fisheries, No. 10 at 22, April 18, 1972; Fujita Iwao, President of Japan Fisheries Association, 72nd Diet, hr, Committee on Agriculture, Forestry and Fisheries, No. 3 at 12, December 12, 1973; Sasaki Teruo, Deputy Secretary of Fisheries Agency, 80th Diet, hr, Committee on Foreign Affairs, No. 10 at 14, April 13, 1977. See Tsuneo Akaha, Japan in Global Ocean Politics (University of Hawaii Press, 1985), 85. Asian-​African Legal Consultative Committee, Report of the 12th Session 283 (1971). See also Shigeru Oda and Hisashi Owada, “Annual Review of Japanese Practice in International Law X (1971–​1972),” Japanese Annual of International Law 23 (1979): 93.Shigeru Oda, “Proposals Regarding a 12-​Mile Limit for the Territorial Sea by the United States in 1970

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necessity to secure the freedom of passage through straits. The other was to establish preferential fishing rights for coastal states beyond their territorial sea instead of exclusive rights. These two issues, which also reflected American concerns, persisted throughout the negotiations for unclos. The intensifying resource competition caused the Diet to establish a 12 nm territorial sea and 200 nm exclusive fishery zone in 1977. The fisheries industry was a significant source of the Liberal Democratic Party’s vote, so the jfa succeeded in achieving support from most of the two houses’ members.37 The 1977 Act on the Territorial Sea was accompanied by the creation of five excepted “designated areas” in the Sōya Strait, Tsugaru Strait, Ōsumi Strait, and the Tsushima East and West Channels, where Japan maintained the 3 nm limit.38 Chapter 4 will deal with this policy in detail. The law provided for the establishment of normal and straight baselines.39 In its implementation, however, Japan utilized the low-​water line for normal baselines.40 Furthermore, it did not establish a contiguous zone under the domestic law. Lastly, it incorporated Seto Naikai in its internal water on the premise that the area was a historic water. The legal status of the inland sea continued to percolate throughout the 1960s, by which time, it had become a waterway for tankers.41 The dense petrochemical complexes along the shore from Okayama to Hiroshima fueled rapid economic growth in the region.42 On November 29, 1966, a Liberian vessel, the Texada, collided with a Japanese vessel Ginko-​ maru.43 Two crewmembers of the Texada were criminally prosecuted for their negligence. The pertinent issue was whether the place of the collision was within Japan’s territory. Both the District Court and the High Court held that the Seto Naikai was a part of a historic bay and therefore within the territory .

37 38 39 40 41 42 43

and Japan in 1971: Implications and Consequences,” Ocean Development and International Law 22 (1991): 192. Of the 733 members of the Diet, 623 approved the establishment of the 12 nm territorial sea. Ikejiri Bunji, Council of Japan Fisheries of Association, 80th Diet, hr, Committee on Agriculture, Forestry and Fisheries, No. 21 at 5, April 22, 1977. Act No. 30 of 1977, Annex 1. Ibid., Article 2(1). Enforcement Order No. 210 of 1977, arts. 1-​2. See in general Shigeru Oda and Hisashi Owada, The Practice of Japan in International Law, 1961–​1970 (University of Tokyo Press, 1982), 146. This is the reason why a specific law was enacted to preserve the environment of maritime area. Law on the Preservation of the Environment of Seto Naikai, Act No. 110 of 1973. See Zengo Ōhira, “Seto Naikai No Hoteki Chii [The Legal Status of Seto Naikai] (Japanese),” Aoyama Hōgaku Ronshū 14 (1973): 107–​24; Hideo Takabayashi, “Legal Status of the Kii Channel –​Limits of the Seto Inland Sea,” Japanese Annual of International Law 21 (1977): 1–​14.

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of Japan.44 The High Court ruled that the legal status of the historical bay was recognized, since Japan had continuously and historically claimed the area as part of its internal waters and no foreign state had objected.45 Furthermore, the High Court stated that foreign states need not affirmatively acknowledge Japan’s claim, as their acquiescence was sufficient for Japan to establish legal title to Seto Naikai as a historic bay.46 Simple indifference on the part of foreign states met the second condition.47 When the Diet ratified the Territorial Sea Convention in 1968, mofa explained that the international community had long recognized Seto Naikai as part of Japan’s internal waters.48 1977 Act on the Territorial Sea Act made this recognition formal.49 1.4 The Third Conference on the Law of the Sea During the negotiations at unclos iii, Japan sought a reasonable balance of interests between coastal and maritime states and pushed for the prohibition of reservations to the treaty to maintain a coherent maritime regime. Japan became one of the major naval powers, including the United States, the United Kingdom, France, and the Soviet Union. In particular, the United States proactively promoted freedom of navigation in this process, and Japan generally adhered to its policy.50 By the early 1970s, the United States had accepted the concept of an expanded territorial sea contingent upon the right of transit passage through straits used for international navigation. On February 18, 1970, President Richard Nixon presented to Congress a report on US foreign policy based upon three pillars, namely, the strength, partnership, and a willingness

44

Wakayama District Court, July 15, 1974, 844 Hanrei Jihō 844 (1974): 105; Osaka High Court, November 19, 1976, Hanrei Jihō 844 (1976): 102. 45 Ibid. 46 Ibid., 103. 47 On the contrary, Oda Shigeru argued that there was insufficient basis to conclude that Seto Naikai was historic waters. Shigeru Oda, “Kii Suido No Chii [Legal Status of Kii Channel] (Japanese),” in Umino Shigen to Kokusaihō I [Maritime Resource and International Law], ed. Shigeru Oda, 1971, 41. 48 Takashima Masurō, mofa Treaties Bureau, Counselor, 58th Diet, hr, Foreign Affairs Committee, No. 12 at 14, April 17, 1968. 49 The Act No. 30 of 1977, Article 2. The geographical scope of the Seto Naikai was defined by Cabinet Order No. 210 of 1977. 50 Kasuomi Ōuchi, “A Perspective on Japan’s Struggle for Its Territorial Rights on the Oceans,” Ocean Development and International Law 5 (1978): 114. For the negotiation process of unclos iii, see also Mamoru Koga, “Review of Treaty Negotiating Procedures for International Lawmaking : Lessons from UNCLOS III,” in Trilateral Perspectives on International Legal Issues : Relevance of Domestic Law and Policy, ed. Michael Young and Yuji Iwasawa, 1995, 61–​72.

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to negotiate.51 In the interest of developing a stable regime for the oceans and averting conflicts at sea, the United States relented on the 12 nm territorial sea on the condition that the freedom of transit through straits was protected.52 Later that spring, President Nixon endorsed the terms of a new law of the sea treaty that provided for a 12 nm territorial sea in exchange for the freedom of navigation and overflight of straits.53 Nonetheless, whereas the US’s motivation was strategic in a military sense, Japan’s focus was mostly on the economic interests. Some scholars have suggested that a regime protecting the freedom of passage for warships, submarines, and military aircraft was unnecessary for Japan.54 Japan’s endorsement of a 12 nm territorial sea was conditioned upon freedom of navigation through international straits and the award of preferential rights to coastal states for fisheries beyond the territorial sea in lieu of creating a new fisheries zone. This position was similar to the US approach, except that whereas freedom of navigation through straits was the principal US interest, Japan was more concerned about restricting coastal state fishery jurisdiction to 12 nm in return for preferences for developing states.55 1.5 Japan’s Ratification of unclos and Its Domestic Legislation of 1996 Japan signed unclos in February 7, 1983 and the Part xi Agreement in July 29, 1994. The Diet approved the two instruments in 1996 and Japan ratified unclos on June 20, 1996. At the same time, the Diet amended the Act of Territorial Sea to adopt the Law on Territorial Sea and Contiguous Zone.56 The new law had three material changes. First, it clarified that the straight baseline should be established in accordance with unclos Article 7.57 According to the provisions, the new Enforcement Order designated straight baselines that added more than 50,000 square kilometers to Japanese internal waters.58

51 52 53 54 55 56 57 58

Richard Nixon, U.S. Foreign Policy for the 1970s: A New Strategy for Peace, January 5, 1970, Report to Congress, February 18, 1970, 62 Department of State Bulletin 273–​275. John R. Stevenson, International Law and the Oceans, February 18, 1970, 62 Department of State Bulletin (1970): 339, 341. Statement by President Nixon, United States Policy for the Seabed, 62 Department of State Bulletin (1970): 737, 738. Ōuchi, “A Perspective on Japan’s Struggle for Its Territorial Rights on the Oceans,” 114. Oda, “Proposals Regarding a 12-​Mile Limit for the Territorial Sea by the United States in 1970 and Japan in 1971: Implications and Consequences,” 192. Act on the Territorial Sea and the Contiguous Zone, Act No. 73 of 1996, translated in 35 Law of the Sea Bulletin 76 (1997). Ibid., Article 2(2). Enforcement Order No. 206 of 1996.

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Second, the new law also established a contiguous zone in accordance with unclos Article 33. Third, the new law specified that the right of hot pursuit in accordance with unclos Article 111.59 The 1977 and 1996 legislation was silent on the right of protection under unclos Article 25 its territorial waters. However, the jcg Act was amended in 2001 to authorize jcg officers to exercise force when there is a reasonable necessity to stop a foreign ship’s innocent passage as provided for under unclos Article 19.60 Further discussion on the right of protection will be developed in Section 4. 2

The Innocent Passage Regime in Japan

2.1 An Overview The Japanese government did not establish a comprehensive regime of innocent passage in the 1977 and 1996 statutes, unlike its neighbors such as Russia,61 the rok,62 and China.63 The Act of the Territorial Sea merely set out the geographical scope of the territorial sea. It was against the following backgrounds.64 First, Japan was already a party to the 1958 Territorial Sea Convention. Under the Constitution Article 98(2), treaties ratified by Japan have domestic legal validity. Second, if there was a situation requiring specific regulation, the government was entitled to enact a new law to fill the void. Japan already regulated certain activities in its territorial sea by individual statutes. Such statutes included the Act on Regulation of Fishing Operation by Foreign Nationals,65 which prohibited fishing operations by foreigners without permission from the Japanese government in its territorial sea, and the Act on the Prevention 59 60 61

Act No. 73 of 1996, Article 3. Act No. 114 of 2001. Federal Act on the Internal Maritime Waters, Territorial Sea and Contiguous Zone of the Russian Federation, Article 11. 62 The rok, Territorial Sea Law No. 3037 of December 31, 1977, Article 5, translated in 19 unls (1980) 136; Territorial Sea and Contiguous Zone Act, December 6, 1995, translated in 33 Law of the Sea Bulletin (1997) 48. 63 China, Law on the Territorial Sea and the Contiguous Zone of February 25, 1992, Articles 6-​8, translated in 21 Law of the Sea Bulletin 24. 64 See Atsuko Kanehara, “The Japanese Legal System Concerning Innocent Passage of Foreign Vessels (1990–​1998),” Japanese Annual of International Law 42 (1999): 90–​110. See also Kaiyōhō Jōyaku Kentō Iinkai [Committee on Law of the Sea Convention], Kaiyōhō Jōyaku ni Kakawaru Kaijō Hoan Mondai [Maritime Security Legislation with regards to Law of the Sea Convention] (1995) 50. 65 Act on Regulation of Fishing Operation by Foreign Nationals, Act No. 60 of 1967.

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of Collision,66 which obligated safe navigation. Furthermore, the jcg was entitled to undertake necessary measures to implement Japanese law under the jcg Act Article 18. In 2001, the jcg Act was amended so that the agency is entitled to use weapons against a vessel conducting non-​innocent passage, although the threshold was so high that the provision has never been used.67 Third, Japan had a large stake in advancing the freedom of navigation. More than 99 percent of Japan’s imports are carried by sea, so the government had an enduring interest in ensuring that coastal states did not abuse their sovereignty in the territorial sea. However, against the background of the increase in suspect vessels from the dprk and foreign fisheries vessels in the territorial seas of the Senkaku Islands and other remote islands, it has started to proactively regulate the foreign vessels utilizing Japanese territorial sea. The following sections will explore the legal issues concerning the innocent passage regime. 2.2 Continuous and Expeditious Passage unclos Article 18(2) provides that passage within a foreign territorial sea shall be continuous and expeditious. In 2008, the government defined what constitutes “passage” in the Law on Navigation of Foreign Ships in the Territorial Seas and Internal Waters (Law on Navigation of Foreign Ships).68 Under the jcg Act, the jcg regulates foreign vessels in cases in which the purpose of navigation is unclear, or the ship is involved in criminal activities,69 such as smuggling or trafficking.70 However, before enacting Law on Navigation of Foreign Ships, the jcg was not entitled to exercise its police power and visit such vessels unless

66 67 68

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Act on the Prevention of Collision, Act No. 62 of 1977. See Chapter 1, Section 2.2.1. Law on Navigation of Foreign Ships in the Territorial Seas and Internal Waters, Act No. 64 of 2008. For the background to this law, see Masaaki Kobashi, “Ryōkai to Ni Okeru Gaikoku Senpaku No Kōkō Ni Kansuru Hōritsu Ni Tsuite,” Un’yu Seisaku Kenkyu 11 (2008): 43; Chie Kojima, “Japan’s Practice Regarding the Regulation on Navigation of Foreign Vessels,” in Regulation on Navigation of Foreign Vessels (Brill, 2019), 34–​51. jcg Article 18 provides that a JCG personnel may take coercive measures when a crime is to be committed at sea or there is an emergent situation such as a natural disaster or explosion of hazardous materials and that there is a risk against human life and body or properties. The measures include, among others, to stop or alter the course of a vessel (Article 18(1)(i)), make the crew disembark(Article 18(1)(iii)), restrict or prohibit traffic between ships or between a ship and shore (Article 18(1)(v)). The laws which regulate these activities include the Stimulants Control Act, Act No. 252 of 1951 and the Narcotics and Psychotropics Control Act, Act No. 14 of 1953.

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there was an affirmative legal basis under the jcg Act. For example, suppose Japanese authorities confronted suspicious vessels in Japanese territorial seas, and these ships claimed that they had traveled off course and were suffering from engine problems. In that case, the jcg could only request these ships to depart its territorial sea if there was no other suspicious activity.71 Because the threshold for the visit under the JCG Act is quite high,72 Law on Navigation of Foreign Ships has played a major role in regulating vessels which could be prejudicial to the national security. The act prohibits foreign vessels from stopping, anchoring, mooring, and hovering, insofar as these activities do not have a direct bearing on a passage in the territorial seas and internal waters.73 The law recognizes legitimate actions by foreign ships under force majeure or distress or to assist persons, ships, or aircraft in danger or distress. In such cases, the master of the vessel should notify the jcg before stopping, anchoring, mooring, or hovering.74 The Secretary of the jcg is entitled to allow its officer to inspect the ship if there is reasonable ground to believe that the master is not complying with this notification obligation or the notification is false.75 However, such authorization shall not be interpreted so as to authorize a criminal investigation.76 If the jcg has reasonable grounds to believe a ship has violated the Law on Navigation of Foreign Ships, it may order the vessel to leave Japan’s internal waters or the territorial sea immediately.77 If the master ignores the order, the individual is subject to penal sanctions.78 In 2012, the law was amended to require foreign vessels to leave Japanese waters without the jcg first conducting an onboard inspection.79 It was against the background that the number of Chinese and Taiwanese trawlers routinely entering the Senkaku Islands’ territorial sea sharply increased from the end of the 2000s. It became difficult for the jcg to inspect every vessel at

71 72 73 74

75 76 77 78 79

jcg Act, Article 17. See Chapter 1, Section 2.2.1. Act No. 64 of 2008, Article 4(1). Ibid., Article 5(1). The information includes data related to the identification of the ship (the name, imo number, type, nationality, port of registry, gross tonnage); information on the registered owner, operator, master or their representative; the reasons for the activities; the location, date and time of the activities. Ibid., Article 6(1). Ibid., Article 6(3). Ibid., Article 8. Ibid., Article 12-​13. Amended Act No. 71 of 2012.

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the same time.80 Furthermore, an incident happened on September 7, 2010, when a Chinese trawler, Minjinyu 5179, crashed into two jcg cutters, Yonakuni and Mizuki.81 The Law on Navigation of Foreign Ships is also the basis for regulating foreign vessels conducting marine research in the territorial waters. A foreign vessel is required to obtain the prior consent of the government to do the research. Otherwise, it is subject to the law enforcement under this act. Such research or survey activities are regulated for not being the passage as defined in unclos Article 18(2), as opposed to the non-​innocent passage as listed in unclos Article 19(2)(j). The demand for exploration among private entities increased because of the expansion of the market for offshore wind power plants and submarine cables. There emerged cases that a foreign entity uses a vessel operated by a Japanese company, and the government cannot discover its actual purpose of the research. Furthermore, different agencies may authorize different research projects depending on their purposes and content without consulting with the jcg. In April 2020, the government formulated a necessary procedure for obtaining the government’s permission. The entity is required to submit the plan beforehand, and the relevant agencies will examine in coordination whether such research would impair maritime safety and security.82 2.3 Innocent Passage The Territorial Sea Convention Article 14(4) and unclos Article 19(1) provide that “[p]‌assage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.” unclos Article 19(2) specifies activities that render passage non-​innocent. Generally, Japan has avoided regulating foreign vessel’s passage based on its type as Sections 2.3.1 and 2.3.2 discuss. When the jcg Act was amended in 2001, the government explained that whether the navigation is non-​innocent is decided by facts such as the appearance of the vessel, the mode of the navigation and abnormal conduct of the crew.83 Yet Japan has considered the carriage of nuclear weapons to constitute 80 81 82

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For the necessity of the amendment, see Shimomura Hakubun, 180th Diet, hr, Committee on Land and Transportation, No. 13 at 2, August 3, 2012. See Chapter 1, Section 2.2.3. Gaikoku Senpaku ni yoru Wagakuni Ryokai to niokeru Kaiyo Chosa to no Toriatsukaini kansuru Shokan Jigyo Kankeisha eno Shuchi ni tsuite, April 1, 2020.The notice was issued by Cabinet Secretariat, Headquarters for Ocean Policy, Ministry of Internal Affairs and Communications, mofa, Ministry of Education, Culture, Sports, Science and Technology, Fisheries Agency, Agency for Natural Resources and Energy, Ministry of Land, Infrastructure, Transport and Tourism, jcg and mod. Nawano Katsuhiko, Secretary of Japan Coast Guard Agency, No. 2 at 7, October 24, 2001.

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non-​innocent passage, as Section 2.3.3 examines. In this limited context, the Japanese government accepts that Article 19(2) is not an exhaustive list of examples of non-​innocent passage under Article 19(1). 2.3.1 Warships Japan takes the position that warships are entitled to innocent passage. In 1968, when Japan ratified the Territorial Sea Convention, mofa considered the option to require prior notification by warships at the time of passage, except in the case of transit through international straits.84 However, the Foreign Ministry concluded that no requirement of prior notification or prior consent should be imposed on such vessels in innocent passage.85 One reason for this decision was that only a small number of states imposed such restrictions.86 The other was the practical difficulty of deciding the innocence of the ship.87 Japan voted in favor of prior notification for warships while opposing a requirement for prior coastal state permission, stating that the latter obligation had not been established under customary international law.88 After the proposal was rejected, Japan acknowledged the interpretation that warships were entitled to enjoy the rights of innocent passage. In 1977, Minister of Foreign Affairs Miki Takeo clarified that warships enjoyed such rights inside Japan’s territorial sea so long as they do not act in a way prejudicial to the peace, good order, or security of Japan.89 2.3.2 Ships Carrying Hazardous Materials Japan maintains that ships carrying hazardous materials are entitled to the right of innocent passage in territorial seas under unclos Article 23. This issue is significant for Japan as an industrial power dependent upon sea lanes. During unclos iii, some states bordering straits declared their opposition to this view, arguing that ships carrying hazardous materials were not entitled to innocent passage in territorial seas. Japan joined a group of nine maritime 84

mofa, Division of Treaty, August 1, 1981, Gi-​81-​12, Gaikoku Gunkan no Ryokainai Tsuko ni Kansuru Jizen Tsukoku Seido ni Tsuite [On Prior Notification of and the Innocent Passage of Foreign Warship in Territorial Sea] (unpublished document, on file with the mofa). 85 mofa, Division of Treaty, Gaikoku Gunkan no Ryokai Koko ni kansuru Jizen Tsukokusei ni kansuru Gimon Gito [Questions and Answers on the Prior Notification of the Passage of Warships], January 23, 1969 (unpublished document, on file with the mofa). 86 Ibid. 87 Ibid. 88 a/​c onf.13/​c .1/​s r.31-​3 5, 3 unclos iii Official Record 98. 89 Miki Takeo, Minister of Foreign Affairs, 58th Diet, hr, Budget Commission, No. 18 at 6, March 17, 1968.

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powers that defended the right to resist such an interpretation.90 Declassified Japanese documents show that the mofa considered this issue alongside the passage of ships with nuclear weapons.91 It interpreted that the definition of “nuclear substances” provided in Article 23 did not cover nuclear weapons. The Article refers to existing international agreements, and these instruments exclude warships. Therefore, Japan supported this provision, which was not in conflict with its prohibition on the passage of ships carrying nuclear weapons.92 Still, Japan decided not to publicly convey this interpretation, acknowledging that the provision could be interpreted to permit innocent passage of warships carrying nuclear weapons.93 Japan also did not approve the draft declaration of the United States, which stated that unclos “provisions on innocent passage provide a more detailed articulation of, but in no way derogate from, the general international right of innocent passage for all ships of all nations in the territorial sea.”94 Tokyo was concerned that the term “general international right of innocent passage” was too broad to include the right of innocent passage of warships with nuclear weapons.95 Besides this issue, Japan advocates the passage of ships with hazardous materials through foreign territorial seas. Japan is a member state of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, adopted in 1989.96 Article 6(1) of the Convention provides that “[t]‌he state of export shall notify … the competent authority of the states concerned of any proposed transboundary movement of hazardous wastes or other wastes.” This provision emerged from negotiations between developed and developing states. It left open the question whether coastal states may require prior notification of foreign ships carrying hazardous waste. Japan was in a position to secure the navigation route notwithstanding the Basel Convention.97 When it ratified the Convention, Japan issued a declaration that 90

The United States, The Joint Chiefs of Staff, “Memorandum for “wg-​9 ” Members, Subject: Responsive-​mode statements for Montage Bay,” 15 November 1982 (unpublished document, on file with the mofa). 91 mofa, Kaishaku Sengen ni Kansuru WG9 Kyogi Taisho Hoshin [Principles on Working Group 9 of Interpretative Declaration], November 27, 1982, Umi-​57-​0-​37 (unpublished document, on file with the mofa). 92 Ibid., at 4. 93 Ibid. 94 The Joint Chiefs of Staff, Memorandum for “WG-​9” Members, Responsive-​mode Statements for Montego Bay, 15 November 1982 (unpublished document, on file with the mofa) 8. 95 Ibid., at 6. 96 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, adopted on 22 March 1989, entered into force on 5 May 1992, 1673 unts 126. 97 Yamanaka Makoto, mofa Chief of the Treaty Division, 125th Diet, hc, Committee of Commerce, No.1 at 11, December 7, 1992.

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nothing in the treaty “shall be interpreted as requiring notice to or consent of any state for the mere passage of hazardous wastes or other wastes on a vessel exercising navigational rights and freedoms.”98 This issue became a diplomatic problem in November 1992, when the Akatsuki Maru, a Japan-​registered vessel carrying recycled plutonium extracted from Japan’s nuclear plant, left France on a voyage to Japan.99 Before the Great East Japan Earthquake on March 11, 2011, 30 percent of Japanese energy was derived from nuclear power plants. France and the United Kingdom recycled its nuclear waste. Although the path of the voyage was kept secret, many states on the potential passage publicly prohibited the ship from passing through their waters. In particular, the Caribbean Community (caricom) states foreclosed this option by explicitly forbidding passage through the Carribean Sea in a declaration on October 31, 1992.100 The declaration stated that “shipments of plutonium and other radioactive or hazardous materials should not traverse the Caribbean Sea.101” Japan made it clear that such opposition was contrary to international law.102 In the end, however, the vessel chose to pass around the Cape of Good Hope, through the Indian Ocean, past the south of Australia, then north through the Tasman Sea between Australia and New Zealand, and then north to Japan.103 The vessel stayed outside of the eez of the protesting states. This lengthy route added a month to the voyage. The opposition still exists. In July 2011, caricom again urged the United Kingdom, France, and Japan to cease transporting vitrified high-​level waste through the Caribbean Sea because of the area’s economic importance and ecological fragility.104 98

The text is available at Basel Convention, Status of Ratification, at http://​www.basel.int/​ Countr​ies/​Status​ofRa​tifi​cati​ons/​Par​ties​Sign​ator​ies/​tabid/​4499/​Defa​ult.aspx. 99 For the analysis of the case, see Kazuhiro Nakatani, “International Legal Aspects of the Maritime Transportation of Recovered Plutonium from France to Japan,” Proceedings Nuclear Inter Jura ’93, 1995. See also Barbara Kwiatkowska and Alfred Soons, “Plutonium Shipments –​A Supplement,” Ocean Development and International Law 25, no. 4 (1994): 419–​29. 100 Caribbean Community (caricom) Secretariat, Declaration by the Special Meeting of the Conference of Heads of Government on Shipments on Plutonium, October 31, 1992. 101 Ibid. 102 mofa Law of the Sea Division, Purutoniumu Kaijo Yuso ni Kansuru Gimon Gito [Q & A on Maritime Transportation of Plutonium], October 29, 1992 (unpublished document, on file with the mofa). 103 Donald Rothwell, “Innocent Passage in the Territorial Sea: The unclos Regime and Asia Pacific State Practice,” in Navigational Rights And Freedoms, And The New Law Of The Sea, ed. Donald Rothwell and W. S. G. Bateman (Brill, 2000), 74. 104 caricom Secretariat, Press Release 287/​2011, caricom Demands Halt to Passage of Hazardous Waste Through Caribbean Sea, July 20, 2011. J. Ashley Roach, Excessive Maritime Claims (Brill, 2012), 407, fn. 68.

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Japan has not been successful in persuading these countries so that they allow the passage of the vessels with radioactive materials. It is noted that a foreign natural or legal person who owns a vessel equipped with a research or test nuclear reactor is required to obtain permission from the Nuclear Regulation Authority to maintain the reactor within Japanese territory, when the vessel enters Japanese waters.105 This regulation is considered as part of the management of nuclear power plants rather than a regulation of passage. 2.3.3 Ships with Nuclear Weapons The only exception that the Japanese government has imposed on innocent passage arises from the carriage of nuclear weapons.106 This restriction derives from the Non-​Nuclear Principles that the Japanese government will not (1) possess, (2) produce, or (3) permit the introduction of nuclear weapons into Japan. Allowing the innocent passage of warships carrying nuclear weapons on board is considered incompatible with the third principle. The principles were never incorporated into legislation, but after Prime Minister Satō Eisaku confirmed them in his speech,107 they were adopted in a Diet resolution108 and have been upheld by the government on several occasions. The government’s position was initially that the passage of US warships through the Japanese territorial sea was not subject to prior consultation as long as it was innocent under international law in 1960 when Japan and the United States amended their security treaty.109 In 1968, when ratifying the Territorial Sea Convention of 1958, the government made it official that innocent passage 105 Act on the Regulation of Nuclear Source Material, Nuclear Fuel Material and Reactors, Act No. 166 of 1957, Article 23-​2. 106 This exception was confirmed by the Prime Minister and the Minister of Foreign Affairs. Miki Takeo, Minister of Foreign Affairs, 58th Diet, hr, Committee of Foreign Affairs, No. 12, April 17, 1968; Fukuda Takeo, Prime Minister, 80th Diet, hr, Plenary Conference, No. 16, April 7, 1977. 107 Satō Eisaku, Prime Minister, 57th Diet, hr, Committee of Budget, No. 2 at 18, December 11, 1967. 108 hr, Resolution on the Principles of Non-​Nuclear Weapons and The Reduction of the Okinawa US Bases, November 24, 1971. Prior to the formulation of “Three Principles,” it was confirmed by Prime Minister Kishi Nobusuke that nuclear weapons shall not be possessed and introduced in Japanese territory. Kishi Nobusuke, Temporary Prime Minister and Minister of Foreign Affairs, 26th Diet, hc, Budget Committee, No. 3 at 1, February 8, 1957; Kishi Nobusuke, Temporary Prime Minister and Minister of Foreign Affairs, 26th Diet, hc, Budget Committee, No. 24 at 21, May 7, 1957. 109 Takahashi Michitoshi, 34th Diet, hr, Japan-​US Security Treaty Special Committee No. 29 at 20–​21, May 6, 1960.

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did not extend to warships capable of carrying nuclear weapons, notably Polaris submarines.110 Miki Takeo, Minister of Foreign Affairs, confirmed that the passage of such warships that regularly carried nuclear weapons was considered non-​innocent.111 Such foreign warship, including US warships, had to consult with the Japanese government prior to the passage. Yet, he mentioned that a warship’s transit of the territorial sea from one part of the high seas to another might not count as the ship “introducing” nuclear weapons into Japanese territory, and in that case it was not subject to prior consultation.112 In 1974, the government presented another official view that the passage of foreign warships capable of carrying nuclear weapons such as Polaris submarines was not innocent, and Japan reserves the right not to authorize such passage.113 If there was prior consultation, the government would not allow the passage because of the Non-​Nuclear Principles.114 The following sections will elaborate on the significance of these principles and the existence of the secret agreement between Japan and the United States. 2.3.3.1 The Non-​Nuclear Principles On August 6, 1945, the atomic bomb Little Boy destroyed Hiroshima and killed 140,000 people. On August 9, the Fat Man did the same to Nagasaki, killing another 74,000 people. More people passed away from the radiation exposure in the aftermath of the attacks. The human tragedy and stark images of Hiroshima and Nagasaki generated strong political movements to prevent the use of nuclear weapons. The Daigo Fukuryū Maru incident widened Japan’s anti-​nuclear weapons campaign. On March 1, 1954, the radiation from the US nuclear test at Bikini Atoll near the Marshall Islands showered on a tuna boat.115 Even though the vessel was outside the US’s danger zone, the ship and its crew were at risk. One crew member died from radiation exposure just six months after the incident. 110 Miki Takeo, Minister of Foreign Affairs, 58th Diet, hr, Plenary Session, No. 18 at 7, March 17, 1968. 111 Ibid. 112 Ibid. Miki referred to the Soya Strait or the strait between the Goto Islands and Hirado as an example. He denied the possibility that such warships would go through Seto Naikai. 113 Miyazawa Kiichi, Prime Minister, 74th Diet, hc, Cabinet Committee, No. 4 at 2, December 25, 1974. 114 This position was maintained afterwards. See Kuriyama Takakazu, 95th hc, Committee of Foreign Affairs, No. 3 at 14, November 12, 1981. 115 Ralph E. Lapp, “Twenty-​Three Fishermen and A Bomb,” New York Times, February 23, 1958, at 101 & 122. For the commencement of the nuclear test, see “Atom Blast Opens Test in Pacific; No Hint of Hydrogen Plans Given,” N.Y. Times, March 2, 1954 at 1.

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The United States never apologized, but provided an ex gratia payment to the Japanese government for the victims’ families.116 This incident led to a resolution, adopted by both houses of the Diet, which called for the prohibition of nuclear weapons and the international control of nuclear energy.117 A year following the Daigo Fukuryū Maru incident, the First World Conference against Atomic and Hydrogen Bombs was held in Hiroshima. A campaign against nuclear weapons collected more than 32 million signatures worldwide.118 In 1963, Tokyo District Court held in its obiter dictum that the US’s use of nuclear weapons violated international law.119 Within this context, the government and the Diet adopted the Non-​Nuclear Principles. The Principles were first expressed formally by Prime Minister Satō Eisaku on December 11, 1967.120 On November 24, 1971, the Principles were adopted as part of a non-​binding resolution by the House of Representatives.121 The United States officially handed over Okinawa’s administration to Japan in 1972,122 and the Japanese government sought to ensure the return was completed without nuclear weapons on the island. The Non-​Nuclear Principles embody Japan’s Cold War dilemma. This policy helped the Japanese government to navigate these competing demands. The principles remained political ones. In 1987, the District Court of Tokyo held that the Principles did not have legal normativity.123 The case was that a group of anti-​nuclear activists claimed that the Japanese government was obliged to make the US naval vessel uss Houston, a nuclear-​powered submarine that 116 On January 11, 2016, the ex-​fishermen and their bereaved families, who potentially were radiated because of the series of nuclear tests, sued the Japanese government for compensation before the District Court of Kōchi for the government’s failure to disclose the result of the investigation. The District Court dismissed the claims on July 20, 2018, and the Kōchi High Court did the same on December 12, 2019. 117 Resolution on the International Regulation of Nuclear Power and the Nuclear Weapons, Yagi Hidetsugu, 19th Diet, hc, Plenary Meeting, No. 29 at 2, April 5, 1954. 118 Maria Rost Rublee, Nonproliferation Norms: Why States Choose Nuclear Restraint, Nonproliferation Norms: Why States Choose Nuclear Restraint (University of Georgia Press, 2009), 56. 119 Tokyo District Court, 1955 (wa) 2914, 1957 (wa) 4177, Judgment of December 7, 1963. 120 Satō Eisaku, Prime Minister, 57th Diet, hr, Budget Committee, No. 2 at 18, December 11, 1967. 121 Resolution of the House of Representative on Non-​Nuclear Principles and Okinawa Base of the United States, Sakurauchi Yoshio, 67th Diet, hr, Plenary Meeting, No. 18 at 7, November 24, 1971. 122 Agreement between Japan and the United States of America Concerning the Ryukyu Islands and the Daito Islands, signed on June 17, 1971, entered into force on May 15, 1972. 123 District Court of Tokyo, Case Showa 59 (Gyosei Ho-​U) 164 (decided on September 30, 1987).

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called at Yokosuka Port, leave its territory. The group believed the Japanese government was also obliged to ask the United States whether other submarines in Japan, such as the Los Angeles-​class and the Sturgeon-​class submarines, carried nuclear weapons and, if they did, the government was required to request them to leave. The applicants alleged that the Principles were not an abstract declaration but rather an enforceable legal norm that codified a concrete obligation since the majority of the Diet had supported them.124 The Tokyo District Court dismissed the case on two grounds. The first was the lack of the applicants’ standing, because the Territorial Sea Convention merely provided for the regulation of the exercise of sovereign rights and did not provide a basis for the rights of individuals. The second was that the Non-​Nuclear Principles were not legally binding.125 The government has set out its policy at international forums on several occasions.126 However, Japan never made an authoritative declaration or statement on the Three Principles during unclos i.127 Furthermore, there is no official record during the conference that shows Japanese officials rejecting the right of innocent passage for nuclear-​armed warships in the meeting, even though it officially rejected it in 1968 in the Diet. During debates within the Territorial Sea Convention, Yugoslavia proposed a provision that stated, “[t]‌he coastal state may deny the exercise of the right of innocent passage through its territorial sea to any ship carrying any kind of nuclear weapon.”128 The delegate of Yugoslavia explained that the provision reflected his government’s belief that nuclear energy should be solely for peaceful ends and that international law did not authorize its utilization for military purposes.129 The delegation of Japan remained silent on this proposal, which was rejected at the conference.130 In his treatise of 1991, Yamamoto Sōji commented that applying the Non-​ Nuclear Principles to foreign warships equipped with nuclear arms was permissible if two conditions were met.131 First, the ship’s passage through the 1 24 Ibid. 125 Ibid. 126 mofa, Examples of Announcements made by the Government of Japan on the Three Non-​Nuclear Principles, https://​www.mofa.go.jp/​pol​icy/​un/​disa​rmam​ent/​nnp/​annou​ nce.html. 127 Japan states this policy occasionally in international forums. However, the official record of unclos i does not record such a statement. 128 a/​c onf.13/​c .1/​l .21, Yugoslavia Proposal, Article 24, March 24, 1958, 3 Official Record 214. 129 Consideration of the draft articles adopted by the International Law Commission at its eighth session (A/​3159), 42nd mtg, April 11, 1958, 3 Official Record 129. 130 Ibid., 131. 131 Yamamoto, Kaiyōhō, 71.

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territorial sea must be objectively prejudicial to the peace, good order, and safety of the coastal state. Second, the coastal state must notify the user states of what constitute activities prejudicial to peace, good order, and safety. In this regard, the passage of warships with nuclear weapons was distinguished from that of vessels carrying conventional weapons. Although Japan may not have to enact new legislation, it must inform other countries of the criteria used to determine the innocence of passage and the measures it may employ against a foreign warship. The government’s position in the Diet was that Japan’s policy that it would not recognize a ship carrying nuclear weapons as innocent was already well known and that it was unnecessary to provide the further specific notification.132 However, the mofa was in a difficult position in explaining this policy to other states parties to unclos. For example, when the five maritime powers –​Japan, the United States, the United Kingdom, France, and the Soviet Union –​gathered for the Ninth Session of unclos iii in 1982, Japan distributed the draft of the declaration for the interpretation of innocent passage.133 The government was fully aware that the United States and the Soviet Union might oppose Japan’s interpretation and the other maritime powers remained silent on the subject.134 In the end, it decided not to bring up this issue even as a preliminary matter.135 Instead, the Japanese government bilaterally consulted on its policy with the United States.136 As referred in Chapter 1, Japan granted the United States authority to “dispose … land, sea and air forces in and about Japan” in 1951.137 There remained a room to read this provision to mean that US forces based in Japan could attack a third state with nuclear weapons without Japan’s consent and that the United States was not obliged to defend Japan even in case of emergency. Therefore, when the two states revised the agreement in 1960 with 1 32 Fukuda Takeo, Prime Minister, 80th Diet, hr Plenary Meeting, No. 16 at 8, April 7, 1977. 133 mofa, Kaiyo ho Joyaku Kaishaku Sengen ni Kansuru Nishigawa Senshin Gokakoku Kyogi Senmonka Kaigao [Expert Meeting of Western Five Developed States on the Interpretative Declaration of the Law of the Sea Convention], September 14, 1982, Umi-​57-​0-​34 (unpublished document, on file with the mofa). 134 mofa, Kaishaku Sengen ni Kansuru WG9 Kyogi Taisho Hoshin [Principles on Working Group 9 of Interpretative Declaration], November 27, 1982, Umi-​57-​0-​37 (unpublished document, on file with the mofa). 135 Ibid, at 22. 136 mofa, Kaiyoho Kaigi ni okeru Hikaku San Gentoku to Taibei Sekko [Negotiation with the United States], February 16, 1981 (unpublished document, on file with the mofa). The document shows that mofa contacted the United States in order to notify it of the timing of the explanation of the Non-​Nuclear Principles. 137 Security Treaty Between the United States and Japan, Article 1.

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the Treaty of Mutual Cooperation and Security,138 Prime Minister Kishi and Secretary of State Christian Herter signed an exchange of notes that accompanied the Treaty. It stated that “major changes in their equipment … shall be the subjects of prior consultation with the Japanese government.”139 This statement appeared designed to signify the introduction of nuclear weapons. Japan asserted that calling in at a port or transit was also subject to prior consultation. If there had been prior consultation, Japan would have refused the introduction of nuclear weapons into its territory, and the Japanese government made that clear to the US government.140 However, in the late 2000s, an independent group of experts conducted an investigation that revealed that Tokyo had agreed that the United States was not required to consult with Japan before a port call or the innocent passage of US warships carrying nuclear weapons.141 It found a copy of the minutes of a meeting between Minister of Foreign Affairs Fujiyama Aiichiro and Ambassador Douglas MacArthur ii, which revealed that the euphemism “major changes in their equipment” meant the introduction into Japan of nuclear weapons, including intermediate and long-​range missiles, as well as the construction of bases for such weapons.142 Furthermore, the term “prior consultation” was understood to mean that the procedures for the entry of US armed forces into Japan, including warships and military aircraft into Japanese waters, would be unaffected.143 In other words, Tokyo and Washington dc had different understandings of the meaning of the term “introduction.” The US’s view was that the term did not cover US forces’ entry into Japan’s territorial seas or internal waters. Instead, the US insisted that entry into Japanese waters and ports by US warships carrying nuclear weapons did not require 138 Treaty of Mutual Cooperation and Security between the United States and Japan, signed on January 19, 1960, entered into force on July 23, 1960, 11 ust 1632. 139 Exchanged Notes, Regarding the Implementation of article vi of Treaty of Mutual Cooperation and Security between Japan and the United States of America, January 19, 1960, 1 Nihon Gaiko Bunsho [Japan’s Foreign Relations-​Basic Documents] 963–​965. 140 Kishi Nobusuke, Prime Minister, 34th Diet, hr, Japan-​U S Mutual Security Agreement Special Committee, No. 20 at 8, April 19, 1960. 141 mofa Tyosa Chimu [Investigation Team of mofa], Iwayuru “Mitsuyaku” Mondai ni Kansuru Tyosa Hokokusho [Investigation Report on the So-​Called “Secret Agreement], March 5, 2010, 57. See also Memorandum of conversation, September 9, 1958, 18 Foreign Relations of the United States, 1958–​1960, 65. For the assessment from the international law perspective, see Toshiya Ueki, “Nichibei ‘Mitsuyaku’ Mondai Wo Meguru Kokusaiho Kihan to Kenpo Kihan (Japanese),” Jurist 1418 (2011): 62–​76. 142 Treaty of Mutual Cooperation and Security, Record of Discussion, January 6, 1960, para 2 (a). 143 Ibid., para 2(c).

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consultation.144 The investigation concluded Japan was aware of the US’s view but left it as it was. 145 The secret agreement was a severe compromise that the Japanese government had to make to secure its security umbrella during the Cold War.146 2.3.3.2 The Yoron Island Submarine Incident of 1980 The only case where the issue materialized was the Yoron Island Submarine incident. On August 21, 1980, a fire swept through a Soviet Union nuclear-​powered Echo i class submarine on the high seas, approximately 145 kilometers off Okinawa’s main island. The fire destroyed the submarine, killed at least nine of its crew, and seriously injured three others. Two days later, the Soviet Union asked Japan to tow the submarine through the territorial sea in the strait between Yoron Island and Okinoerabu Island. A distance of 17 nm separates the two islands. The Yoron Island submarine incident of 1980 raised the question whether coastal states may inquire into the presence of nuclear weapons on board a sovereign immune boat that has suffered a casualty at sea.147 Japan asked whether the submarine had nuclear weapons on board and if there was a risk of leakage of radioactive material. The Soviet Union insisted that there was no risk, but it refused to divulge whether the boat carried nuclear weapons. The Japanese government objected to the response as insufficient and ordered the submarine to remain outside its territorial sea.148 The Soviet Union ignored

144 State Department Telegraph, No. 474, September 29, 1958, “320.1 U.S.-​Japan Security Treaty, January to September,” Tokyo Embassy: Classified General Records, compiled 1956–​1958, rg84, National Archives, reprinted in 18 Foreign Relations of the United States, 1958–​1960, Japan=​Korea 88. 145 This falsehood had already been revealed in the memoir of a diplomat in the mid-​1990s. Kei Wakaizumi, Tasaku Nakarishiwo Shinzemuto Ho’ssu (Bungei Shunju [Japanese], 1994). However, the Government of Japan never acknowledged the allegation. 146 Yokosuka City in Kanagawa prefecture, where the US Yokosuka Navy Base is located, used to publish the information on the cases where the City suspected that a warship carrying the nuclear weapons comes into Yokosuka Base until 2010. See Yokosuka City, “Kaku-​heiki no Nihon Mochikomi Mondai,” available at the City’s website https://​www.city.yokos​uka. kanag​awa.jp/​index.html. In addition, on December 5, 1965, an aircraft carrier Douglas A-​4 Skyhawk, which had a hydrogen nuclear bomb, was lost while its carrier, uss Ticonderoga, was 130 km from Kikai Island of Kagoshima Prefecture. It came to light in 1981 when the United States government revealed the incident. 147 Robert J. Grammig, “The Yoron Jima Submarine Incident of August 1980: Soviet Violation of the Law of the Sea,” Harvard International Law Journal 22 (1981): 331–​54. 148 “Soviet Ignores Order, Tows Submarine Near Japan: No Signs of Radiation,” N.Y. Times, August 24, 1980, at 1, 10.

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Japan’s demand, however, and towed the submarine through the strait.149 The Japanese government proclaimed that it “deeply deplored” the Soviet Union’s violation of its territorial sea despite repeated warnings.150 After the submarine had transited through the strait, the Soviet Union denied that it carried nuclear weapons and insisted that the voyage was an innocent passage.151 The submarine did not leak radiation into its territorial sea in the end.152 Critics suggest that Japan was not entitled even to make such an inquiry. Both Japan and the Soviet Union were parties to the Territorial Sea Convention, which does not contain a special regime for vessels carrying nuclear weapons or permit coastal states to require prior authorization before foreign warships or submarines can pass through territorial seas.153 The diplomatic exchanges between the two states suggest that Japan believed it could legitimately ask about radioactive contamination and the nature of the armament on board a foreign warship as a precondition for granting passage through its territorial sea.154 This incident is also significant in terms of the rules on straits used for international passage, which will be discussed in Chapter 4, Section 2. 2.4 Submerged Vessels unclos Article 20 provides that, while in innocent passage in territorial seas, foreign submarines and other underwater vehicles must navigate on the surface and show their flag. It is debatable whether the separation of Articles 19 and 20 means that if a submarine fails to comply with the latter provision, its passage may still be considered innocent.155 The Japanese government has never explicitly stated that submerged navigation in its territorial sea per se is not innocent. However, the government is in a position that the jmsdf can 149 Ko Nakamura, “Kaku-​Sekisai Gunkan No Ryoukai-​Tsuukou Ni Tsuite [On the Passage of a Nuclear-​Loaded Warship through the Territorial Sea],” Hogaku Kyoushitsu 13 (1981): 94. 150 Ibid., at 95. 151 Ibid. 152 Ibid. 153 Grammig suggested that because the Soviet Union de facto did not comply with Article 23 of the Territorial Sea Convention, Japan’s denial and inquiry were legitimate. Grammig, “The Yoron Jima Submarine Incident of August 1980,” 336. 154 Japan points to Part ii Section 1 (General Provisions) of unclos that covers all vessels including warship. See also C. John Colombos, “The Legal Regime of Warships in Foreign Waters,” in Melanges En l’honneur de Gilbert Gidel (Sirey, 1961), 160. 155 See Gerald Fitzmaurice, “Some Result of the Geneva Conference on the Law of the Sea,” International & Comparative Law Quarterly 8 (1959): 98. But see contra, Kevin Aquilina, “Territorial Sea and the Contiguous Zone,” in The IMLI Manual on International Maritime Law, ed. David Attard, Malgosia Fitzmaurice, and Norman A. Martinez Gutierrez (Oxford University Press, 2014), 45.

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undertake Maritime Security Operation to maintain the safety at sea when a foreign submarine traverses underwater of the Japanese territorial sea.156 The organization will request the submarine to navigate on the surface and to show their flag.157 If the vessel does not comply with the request, it will require the vessel to leave the Japanese territorial sea.158 If the submarine is a warship, it enjoys the immunity from the Japanese jurisdiction and the sdf cannot undertake coercive measures when it violates this rule.159 With regards to the coercive measures that jmsdf will take against the vessel, the government does not seem to distinguish a submerged submarine and a warship on the surface. On December 24, 1996, the Cabinet decided the sdf was entitled to take “necessary measures” against foreign submerged submarines found in Japan’s territorial sea and internal waters under a Maritime Security Operation order issued by the Prime Minister.160 The order facilitates interagency decision-​making so that senior officials can quickly issue orders to respond to an intrusion. The government advanced this effort on November 10, 2004 as a submerged People’s Liberation Army (pla) Han-​class nuclear submarine entered Japanese territory between Ishigaki Island and Tarama Island.161 As Chapter 1 described, the government issued a Maritime Security Operation order without deciding the nationality of the submarine. After this incident, the Cabinet determined that, in the event of a foreign submarine intruding into Japan’s territorial sea, the Defense Minister issues Maritime Security Operations order unless special circumstances required otherwise.162 3

The Right of Protection for the Coastal State

3.1 Private Vessels unclos Article 25(1) provides that a coastal state may take “necessary steps” in its territorial sea to prevent passage that is not innocent. The measures taken 156 Nakajima Akihiko, mod, Director of Bureau of Operational Policy, 186th Diet, hr, Security Committee, No. 3 at 4, March 27, 2014. 157 Ibid. 158 Ibid. 159 Ibid. 160 Cabinet Decision, December 24, 1996. 161 Yukiya Hamamoto, “The Incident of a Submarine Navigating Underwater in Japan’s Territorial Sea,” Japanese Annual of International Law 48 (2005): 123–​29. See also James Kraska, “Putting Your Head in the Tiger’s Mouth: Submarine Espionage in Territorial Waters,” Columbia Journal of Transnational Law 54 (2015): 210. 162 Cabinet Decision, January 19, 2005, para. 4. See Chapter 2, Section 2.

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as “necessary steps” or the level of force that may be used is undefined and open to disagreement.163 Yet, there is no disagreement that private vessels may be subject to a visit, boarding, inspection, detention, seizure, or the imposition of other measures of constraint or arrest, or judicial proceedings.164 As discussed in Chapter 1, the jcg Act was amended in 2001 so that the Secretary of the jcg, under certain conditions, can permit a jcg officer to use weapons against private vessels engaged in non-​innocent passage.165 However, the threshold is quite high because it requires not only that the passage be non-​innocent in terms of unclos Article 19 but also that the vessel must be suspected of committing serious crimes in Japan. In November 2011, the jcg issued a report on basic principles of the maritime police authority.166 The report pointed out that the jcg’s mandate is not sufficient to deal with a situation occurring at sea. In its examination it particularly underscores the importance of an administrative police authority.167 It emphasizes the necessity to allow the jcg to act before a crime is committed. Such actions included early identification of suspicious vessels and warnings, the imposition of coercive measures such as the investigation of cargo, and the authority to stop, visit, board, and even to use arms and water cannon on such vessels, and effective measures to prevent the violation, including the seizure of property and the imposition of fines. While some of these measures are provided under the jcg Act or the Law on Navigation of Foreign Ships, the proposal has not been fully materialized. 3.2 Warships and Government Ships Whether a coastal state may resort to coercive measures against warships and government vessels to compel them to leave its territorial sea has been a serious issue under both international and Japanese law.168 The government once 1 63 Donald Rothwell and Tim Stephens, The International Law of the Sea (Hart, 2010), 218. 164 Kraska, “Putting Your Head in the Tiger’s Mouth: Submarine Espionage in Territorial Waters,” 234. 165 Act No. 114 of 2001. 166 Japan Coast Guard, Report on Basic Principles on Maritime Police by Minister of Land, Infrastructure, Transport and Tourism (2011) (Japanese). 167 The distinction between administrative police (la police administratif) and judicial police (la police judiciaire) has its origin in French administrative law. An administrative police act is done to prevent disorder and to secure public safety. An act of the judicial police is based upon powers of criminal investigation. 168 For the discussion of international law, see Shizuka Sakamaki, “Measures against Non-​Innocent Passage of Warships and Other Government Ships Operated for Non-​ Commercial Purposes,” Japanese Yearbook of International Law 62 (2019): 81–​110.

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expressed its view that concrete measures taken against foreign warships as an exercise of the right of protection have to be decided based on case-​by-​ case basis and that there is no international standards or criteria regarding this issue.169 The government also stated that if these vessels unlawfully shoot at or ram Japanese vessels, the sdf can use weapons as long as that is reasonable and necessary to stop such actions as a part of a Maritime Security Operation.170 The Cabinet Decisions of 2015 merely refers to “warship” and does not provide any measures regarding government ships in general.171 In 2015, the government clarified that the “necessary measures” of unclos Article 25 had to be carried out to an extent that did not infringe the immunity of the foreign public vessel and it should be proportionate to the vessel’s intrusion.172 The response should be decided on a case-​by-​case basis and did not exclude the possibility of resorting to coercive measures.173 When the other party shot water cannon or otherwise obstructed navigation, the Japanese authority would do the same.174 In this context, the government recognized that the principle of sovereign immunity from the executive jurisdiction applies to foreign public vessels.175 Japan’s approach is restrictive compared with those of other countries which have the law to cope with foreign sovereign ships that are non-​innocent. For instance, Sweden’s law provides that “force of arms shall be used” to compel a foreign submarine found submerged within its territorial sea to be “turned away.”176 It also stipulates that “[s]‌hould special circumstances so 169 Kishida Fumio, Minister of Foreign Affairs, 186th Diet, hr, Security Committee, No. 3 at 6, March 27, 2014. 170 Nakatani Gen, Defense Minister, 189th Diet, hc, Special Committee for Peace and Security of Japan and International Society, No. 4 at 30, July 29, 2015. 171 Cabinet Decision, May 14, 2015 (Foreign Warship). 172 Kishida Fumio, Minister of Foreign Affairs, 189th Diet, hr, Special Committee of Peace and Security Legislation on Japan and International Society, No. 4 at 12, May 28, 2015. 173 Ibid. Questions Statement, Nagashima Akihisa, 186th Diet, hr, No. 25, February 18, 2014. 174 Satō Yūji, Secretary of jcg, 189th Diet, hr, Special Committee of Peace and Security Legislation on Japan and International Society, No. 4 at 12, May 28, 2015. 175 Kishida Fumio, Minister of Foreign Affairs, 189th Diet, hr, Special Committee of Peace and Security Legislation on Japan and International Society, No. 4 at 12, May 28, 2015; Yanagisawa Kyoji, Director General of the Defense Agency, 154th Diet, hr, Security Committee, No. 5 at 11, April 4, 2002. 176 Förordning (1982:756) om Försvarsmaktens ingripanden vid kränkningar av Sveriges territorium under fred och neutralitet, m.m. (IKFN-​förordning) [Ordinance Concerning Intervention by Swedish Defence Forces in the Event of Violations of Swedish Territory in Peacetime and in Neutrality (1982:756)], Article 5. The English translation is reproduced in Roma Sadurska, “Foreign Submarines in Swedish Waters: The Eroison of an International Norm,” Yale Journal of International Law 10 (1984): 59.

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require, the force of arms may be used without prior warning under a decision by the Supreme Commander.”177 This law was enacted against the background of the increasing use of the ussr’s submarines in the Cold War era. There is no comparable provision in Japanese law. 3.3 Japan’s Options in the Territorial Waters of the Senkaku Islands In the early 2010s, against a backdrop of the rise of China’s maritime power, the Japanese government started to consider enacting a law to regulate the innocent passage regime. This issue is essential in the situation in the Senkaku Islands. The islands were terra nullius before Japan incorporated them into the Japanese territory in January 1895. It was not until 1971 that the Chinese government started to contest Japan’s sovereignty. The tension escalated after China began to send ccg vessels to the water surrounding the islets. After the Japanese government purchased three islets from a private citizen on September 11, 2012, the number of ccg vessels entering the islands’ territorial sea sharply increased.178 Japan challenged a Chinese coastguard ship in the territorial sea of the Senkaku Islands not because it was a government vessel but because the ship claimed the territorial sea belonged to China, which was an activity “not having a direct bearing on passage” in terms of Article 19(2)(l).179 In March 2013, the Chinese government reorganized maritime law enforcement organizations.180 Previous to the reform, there were five law enforcement agencies. The State Oceanic Committee was established, and four organizations but Maritime Safety Administration was integrated into the ccg Office and located under the control of the Ministry of Land, Infrastructure, and Energy. On March 21, 2018, the Central Committee of the Communist Party of

1 77 Ibid. 178 For the analysis on Sino-​Japan relations regarding Senkaku Islands, see Koichi Satō, “The Senkaku Islands Dispute: Four Reasons of the Chinese Offensive –​A Japanese View,” Journal of Contemporary East Asia Studies 8, no. 1 (2019): 50–​82. 179 The government has not explicitly referred to unclos provision, but recognized that the navigation of Chinese government vessels in the territorial sea of Senkaku Islands was not innocent. See mofa, Vice Minister, December 8, 2008, Press Conference from 17:01, at https://​www.mofa.go.jp/​mofaj/​press/​kai​ken/​jikan/​j_​0​812.html. 180 They were, namely, the Maritime Police of the Border Control Department (bcd); the Maritime Safety Administration (msa); the Fisheries Law Enforcement Command (flec); the General Administration of Customs (gac); the State Oceanographic Administration (soa). See Lyle J. Goldstein, “Five Dragons Stirring Up the Sea: Challenge and Opportunity in China’s Improving Maritime Enforcement Capabilities,” China Maritime Studies Institute 5 (2010).

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China published the “Party and National Organization Reform Proposal.”181 It stated that the ccg and related functions formerly under the State Oceanic Administration would be placed under the People’s Armed Police Force, which is under the sole jurisdiction of the Central Military Commission (cmc). Previously, the ccg had been under the dual command of the cmc and the State Council, but now it is under the direct chain of command under the cmc. On January 22, 2021, the National People’s Congress of China passed the ccg Act.182 The characteristic of this Act is that it entirely relies on the concept of “jurisdictional maritime area.” Its draft published in November 2020 defined this term as “Chinese internal sea, territorial sea, contiguous zone, eez, continental shelf and other maritime areas over which China has jurisdiction.”183 “Other maritime area over which China has jurisdiction” would have included areas surrounded by the “Nine-​Dash Line.” The Annex vii Tribunal rejected this line’s legal significance in 2016,184 but China never officially conceded its claim. Instead, it could include “Mid-​ocean archipelagic waters,” which is the water surrounded by the Spratly Islands and, potentially, other islets in the South China Sea.185 The final version adopted on January 22 removed the clause on the definition. Yet, the deletion does not solve the problem because the ccg Act still uses this concept. The ccg will rely either on an interpretation note of the Supreme Court186 or the draft’s definition in implementing the Act. The ccg Act does not contain a provision regarding the undelimited area, even though China has not delimited the maritime area other than the Tonkin Gulf with Vietnam. The Act authorizes the ccg to take necessary measures to regulate fisheries and other production activities within China’s “jurisdictional maritime area.” This would mean the confrontation ccg would regulate activities in 181 Shēnhuà dǎng hé guójiā jīgòu gǎigé fāng’àn, available at http://​www.gov.cn/​zhen​gce/​2018-​ 03/​21/​cont​ent_​5276​191.htm (Chinese). 182 Chinese Coast Guard Act, passed 25th mtg, 13th National People’s Congress, Standing Committee on January 22, 2021, entered into effect on February 1, 2021. 183 Draft ccg Act, Article 74(2). The draft is available at https://​npco​bser​ver.com/​wp-​cont​ ent/​uplo​ads/​2020/​11/​Coast-​Guard-​Law-​Draft.pdf. 184 Annex vii Arbitral Tribunal, South China Sea, para. 1203, B(2). 185 For a critical analysis of this concept, see Yurika Ishii, “A Critique Against the Concept of Mid-​Ocean Archipelago,” in Implementation of the United Nations Convention on the Law of the Sea, ed. Dai Tamada and Keyuan Zou (Springer, 2021), 133–​47. 186 Supreme Court, adopted in the 1674th Meeting of Supreme Court Adjudication Committee, December 28, 2015, entered into force on August 2, 2016, Legal Interpretation No. 16 of 2016, available at http://​www.court.gov.cn/​zixun-​xiangq​ing-​24261.html. There is a minor difference that, while Article 1 of this note includes “internal water” in the “jurisdictional maritime area,” the draft ccg Act uses the term “internal sea.”

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the undelimited area of the East China Sea and the Japanese eez surrounding Okinotori Island.187 The mandate of the ccg to use weapons is broader than that of the jcg. ccg Act Article 50 provides that ccg personnel shall, “based on nature, degree, and urgency of the illegal and criminal acts and the offenders, reasonably decide the necessary limits of the use of weapons, and try to avoid or reduce unnecessary casualties and property losses.” While it provides the reasonableness and necessity, it does not stipulate the complementary nature of the use of weapons.188 Other provisions that stipulate the use of weapons require that such use is necessary, but do not provide reasonableness or proportionality conditions. Furthermore, ccg Act Article 21 provides that “if foreign warships and foreign government ships used for non-​commercial purposes that violate Chinese law and regulations in the jurisdictional maritime water, the ccg has the right to take necessary warning and control measures to stop them, and order them to leave the water immediately.” If the vessel refuses to leave and cause serious harm or threats, “the ccg has the right to take measures such as forced towing and eviction.” This article governs the “jurisdictional maritime area” instead of the territorial sea and covers government ships including coast guard ships. When the ccg coercively evicts or tows the jcg vessels or the sdf vessels in the undelimited eez of the East China Sea and the Japanese eez surrounding Okinotori Island, it undisputedly violates unclos Article 96. The Japanese government may issue a Maritime Security Operation order and a jmsdf vessel may try to counter such actions.189 Yet, it is questionable whether such coercive actions would be tantamount to the armed attack that triggers a Defense Operation order under the sdf Act.190 It is because the ccg is not “planning” to attack Japan but merely enforcing its domestic law. If it does not meet the threshold of an armed attack, Japan has little choice but to protest against the violation of unclos and the principle of sovereign immunity through diplomatic channels. If the ccg or the pla resorts to more coercive actions against the jmsdf’s vessel, then there is room to assess whether it constitutes 1 87 See Chapter 5, Section 1.3. 188 As cited in Chapter 1, itlos has held that “the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. Considerations of humanity must apply in the law of the sea.” itlos, M/​V Saiga No. 2, para. 155. It should also be noted that a passage in the draft ccg Act stating that, “when the personnel uses the weapons on ships, they shall try to avoid shooting the parts below its waterline,” is deleted in the final version. 189 See Chapter 1, Section 2. 190 Tōgō Kazuhiko, mofa Director of Bureau of Treaties, 145th Diet, hc, Special Committee for Japan-​U.S. Guideline, No. 9 at 28, May 20, 1999.

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an armed attack which triggers the Defense Operation order, yet its threshold is quite high.191 The confrontation between the ccg and the jcg may occur in the territorial sea of the Senkaku Islands. In this situation, too, the UN Charter Article 2(4) applies, so that both sides must refrain from the use of force against each other. However, there is an asymmetry between the two parties. The ccg may evict or tow the jcg out of the “jurisdictional maritime area” if it is to avert the harm to the national sovereignty. On the other hand, the jcg and the jmsdf are not authorized to take such action unless the other party –​the ccg in this case –​uses its force first. The use of weapons is rigorously regulated as Chapter 1, Section 2 examined. The current Japanese law on the protection of the territorial sea and the use of weapons does not meet the demand for the jcg and the jmsdf to cope with such a situation. In April 2021, the Japanese government for the first time recognized that repeated entrance of ccg’s vessels into Senkaku Islands’ territorial water, claiming that the territory belongs to China, was a violation of international law.192 It means that, in the Japanese government’s perception, the provocative conducts are no longer an issue of the non-​innocent passage, but rather an intrusion into the Japanese territory.

Conclusion

Various considerations, including competition over fisheries among neighboring countries, the need to secure maritime commercial routes, and national security, have defined Japan’s policy on its territorial sea. Russia and China’s expansion of its territorial sea and fisheries zones during the 1970s pushed Japan to declare the 12 nm territorial sea. The US’s security policy in the region during the Cold War broadly defined Japan’s policy on the innocent regime. Yet, the mandate of the jcg and the jmsdf to protect the territorial sea, including their authority to use weapons, is restricted, out of consideration to secure foreign vessels’ right of innocent passage. 191 Fukuda Yasuo, Secretary of the Cabinet, 154th Diet, hr, Special Committee on the Response to an Armed Attack Situation, No. 18 at 8, July 24, 2002. See Chapter 1, Section 1. 192 mofa, Diplomatic Bluebook 2021 (2021): 53.

­c hapter 4

Straits

Introduction

Japan –​a country with approximately 70 straits1 that satisfy the geographical requirements prescribed in Part iii of unclos –​does not incorporate the regime of transit passage in its domestic laws.2 Instead, it adopts a unique policy of freezing the 3 nm territorial sea limits in five main international sea lanes: the Sōya Strait (La Perouse Strait), Tsugaru Strait (Sangar Strait), Ōsumi Strait, the Tsushima East Channel, and the Tsushima West Channel (Korean Strait). The territorial sea area in these straits is called the “designated areas” (tokutei kaiiki). Limiting the territorial seas to 3 nm leaves a high seas corridor in each strait so that unclos Part iii does not apply.3 The other straits are categorized as the territorial sea, where foreign ships enjoy only innocent passage. It was the government’s position that these straits do not satisfy the functional requirement provided in Part iii because they are not used for “international navigation.”4 To this date, only a few countries have adopted the same policy as Japan. The rok in the Tsushima West Channel,5 Germany in the Fehmarn Belt,6 Denmark and Sweden in Skagen, Laeso, Anholt, Bornholm, and the Sound Channels,7

1 The number of straits differs depending on the statistics. In 1975, mofa listed up 72 straits that would be covered by 12 nm territorial sea. See Inoue Issei, Member of the hr, 101st Diet, hr Budget Committee, No. 14 at 25, March 1, 1984. 2 Act No. 30 of 1977. The pre-​1977 history is covered in Chapter 3, Section 1. 3 unclos Article 36. 4 Fukuda Takeo, Prime Minister, 80th Diet, hr Plenary Meeting, No. 16 at 8, April 7, 1977. 5 The rok, Territorial Sea and Contiguous Zone Act, No. 3037, adopted on December 31, 1977, entered into force on April 30, 1978, Article 2. The rok and Japan shares the Tsushima West Channel. See Section 1.3.2. 6 Bekanntmachung der Proklamation der Bundesregierung über die Ausweitung des deutschen Küstenmeeres vom 11. November 1994 [Proclamation of November 11, 1994 by the Government of the Federal Republic of Germany concerning the Extension of the Breadth of the German Territorial Sea], BGBl. I S. 3428 (German). Germany shares the Fehmarn Belt with Denmark. 7 Exchange of Notes Constituting An Agreement Concerning The Delimitation Of The Territorial Waters, Denmark=​Sweden, adopted on June 25, 1979, entered into force on December 21, 1979, 1183 unts 31.

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004500419_006

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Finland in certain areas in the Baltic Sea adjacent to Estonia8 –​all of these countries retain the territorial sea limit at less than 12 nm in certain straits. Yet, Japan seems to be the only country that limits its territorial sea within a strait whose entire coast belongs to a single country. Strait states other than those listed above extend their territorial sea to 12 nm and incorporate either the transit passage, which is designed precisely to meet these demands, or retain the innocent passage regime in excess of the rights of the coastal state provided in unclos.9 This chapter’s primary focus is to provide its background and assess Japan’s approach to straits from the maritime security perspective. Section 1 deals with the legislative history and the implications for the establishment of these designated areas. Section 2 examines the legal status of straits other than the designated areas. 1

Designated Areas

1.1 Legislative History The Act on the Territorial Sea of 1977 was enacted to mitigate the intensity of fishing conflicts, as explained in Chapter 3. Thus, the Diet needed to pass the law as early as possible, even before unclos was concluded. At that time, Japan theoretically had three options for governing its straits without contravening international law.10 First, it could incorporate the transit passage regime into its domestic law because the basic framework of the new regime was already known.11 Nonetheless, the government did not choose this option for the reasons explored in the following part. Second, it could stick to the non-​suspendable innocent passage regime under the Territorial Sea Convention Article 16(4), to which it was a party. However, the government was already looking at the new regime, which drastically changed the previous laws on straits. The record does not show that the government considered this option. Instead of these choices, the government ended up with the third option –​refraining

8 9 10 11

Act 981/​95, Amending the 12 nm Act on the Limits of the Territorial Waters of Finland, translated in 29 Law of the Sea Bulletin 56. For an analysis of state practice, see Erik Jaap Molenaar, Coastal State Jurisdiction over Vessel-​Source Pollution, International Environmental Law and Policy Series (Kluwer Law International, 1998), 299. For an extensive analysis on Japanese policy on straits, see Sakamoto, “Japan and the Law of the Sea: Key Historical and Contemporary Milestones,” 21. See also Sakamoto, “Nihon to Kokusai Kaikyo –​Tokutei Kaiiki No Mondai Wo Chushin Ni,” 10. a/​c onf.62/​w p.8/​Partii, 4 unclos iii Official Record 152 (1983).

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from extending the territorial sea limit to 12 nm in vital sea lanes. The high seas corridor remained within these major international straits. At that time, the government explained that the legislation was only provisional. The provision stipulates that the designated areas are established “for the time being,”12 which was meant to cover the period until the international standard became definite so that Japan could enact an operative law.13 The government explained that the transit passage regime had not been established under customary international law by 1977. It would be too early for Japan to incorporate the transit passage regime.14 The government did not change this stance even after 1982, and Japan ratified unclos in 1996. The staff of the International Legal Affairs Bureau of mofa once considered specifying some Japanese straits to be governed by Part iii of unclos after the convention was adopted.15 However, the government did not propose to amend the law, and the designated areas remain intact to this date. It was not that the government accepted the transit passage regime under customary international law and avoided its applicability by creating a high seas corridor in the major straits.16 It never admitted that these five straits were ones that the transit passage regime would apply to. It was notwithstanding that it selected the designated areas based on the geographical conditions and foreign vessels’ traffic volume. The records –​both the discussion in public forums and the declassified internal documents –​show that in choosing this policy the government considered Japan’s substantial interests in securing its sloc and the incompatibility of the Non-​Nuclear Principles with the transit passage regime. The relations with the neighboring countries that share straits –​the Soviet Union and the rok –​mattered, as Section 1.3 will discuss. 12 13

14 15 16

Law No. 30 of 1977, Supplementary Provisions, Article 2. Fukuda Takeo, Prime Minister, 80th Diet, hr Plenary Meeting, No. 16, April 7, 1977. Kuribayashi Tadao pointed out at the time of legislation that the term “for the time being” might not be a short period as usually understood, because unclos iii was still in a delicate situation mainly due to the confrontation between the South and the North on the issue of deep sea-​bed mining, and it would take a considerable time before unclos came into effect. Tadao Kuribayashi, “The Basic Structure of the New Regime of Passage through International Straits –​An Emerging Trend in the Third UNCLOS and Japan’s Situation,” Japanese Annual of International Law 21 (1977): 43. Fukuda Takeo, Prime Minister, 80th Diet, hr Plenary Meeting, Minute No. 16, April 7, 1977. A partial translation of Prime Minister Fukuda’s speech is available at Yanai and Asomura, “Japan and the Emerging Order of the Sea –​Two Maritime Laws of Japan,” 60. Owada Hisashi, Director-​General of International Legal Affairs Bureau, mofa, 101st Diet, hr Budget Committee, No. 14 at 25, March 1, 1984. Sakamoto, “Nihon to Kokusai Kaikyo –​Tokutei Kaiiki No Mondai Wo Chushin Ni,” 10.

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In a broader context, Japan’s primary concern was rooted in East Asia’s geopolitical changes at the time. In 1977 the government was particularly worried about Malacca Strait, a significant conduit for Japan’s maritime transportation since the early 1950s.17 In addition, there was a power shift with the United States after its bitter entanglement in the Vietnam War in the late 1960s. The change was exemplified in 1969 by the Nixon Doctrine, in which President Richard Nixon announced he was lessening the burden of the US troops and American commitment across Asia.18 As referred in the Introduction chapter, instead of cutting back its regional security commitment, the United States demanded that Japan undertake the primary responsibility for providing the manpower for its defense.19 The United Kingdom, another maritime power in the West that became closely involved in Asian security, also accelerated its military withdrawal under mounting fiscal pressure after 1968.20 Moreover, nationalism in Southeast Asian countries was at its height in the same period. Claiming their territorial title over maritime areas was a part of this movement.21 After unclos i was held in 1958, Indonesia and Malaysia were eager to secure their exclusive authority over the Malacca Strait. Indonesia did it in 1957 when it unilaterally declared the establishment of archipelagic water to demonstrate the integral unity of its state. 22 In 1960, it formally enacted a law to that effect23 and continued to claim archipelagic waters throughout unclos iii. Malaysia claimed the same in 1969.24 Japan formally protested to both countries that such an expansion was not acceptable under international law, and these pieces of legislation did not bind Japanese vessels and airplanes.25 While these two states were in an antagonistic relationship from 17

For economic and political implication of the Malacca Strait, see Graham, Japan’s Sea Lane Security 1940–​2004, 156–​60. See also Mariko Kawano, “Transit Passage through the Malacca and Singapore Straits,” Questions of International Law 76 (2020): 35–​58. 18 Richard Nixon, Informal Remarks in Guam With Newsmen, July 25, 1969, Public Papers of the Presidents of the United States: Richard Nixon 1969 548 (1971). 19 Auer, “Japans Maritime Self-​Defense Force: An Appropriate Maritime Strategy?,” 3. 20 Lee Long Long, Southeast Asia and the Law of the Sea (Singapore University Press, 1980), 64. 21 Michael Leifer, Malacca, Singapore, and Indonesia (Sijthoff & Noordhoff, 1978), 17. 22 Declaration, December 17, 1957, translated in Vivian Louis Forbes, Indonesia’s Delimited Maritime Boundaries (Springer, 2014), 99. This statement is called the Archipelago Principle or Wowasan Nusantara. Leifer, Malacca, Singapore, and Indonesia, 17. 23 Act No. 4 Prp. of 1960 on Indonesian Waters. This 1960 Law was amended in 1985 (Act No. 17 of 1985) and 1996 (Act No. 6 of 1996), translated in Forbes, Indonesia’s Delimited Maritime Boundaries, 101. 24 Emergency (Essential Powers) Ordinance, No. 7, 1969 (as amended), art. 3, P.U. (A) 307A/​ 1969. 25 Leifer, Malacca, Singapore, and Indonesia, 35.

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the late 1950s to the mid-​1960s, the presidential transition in Indonesia from Sukarno and Suharto in 1967 and the establishment of asean in 1967 enabled the coastal states to cooperate to regulate the maritime area.26 Japan started to play a more assertive role in Southeast Asia under the Kishi Nobusuke administration. The establishment in 1969 of the Malacca Strait Council, a private consortium led by the Nippon Foundation supported by the Ministry of Transport, to lead the regulation of the strait was part of the effort to secure the maritime route.27 The main concern for both the government and the shipowners was that the coastal states might begin to restrict the use of large tankers for the sake of safety and the prevention of pollution. However, when Japan tried to establish an international cooperative mechanism to introduce a Traffic Separation Scheme (tss) through the international fora, such as the Inter-​Governmental Maritime Consultative Organization (imco),28 these states vehemently reacted against that. At the time when Japan tried to enact the Act on the Territorial Sea, the relations among Japan and these coastal states hit rock bottom. It was not until the 1990s that these states started to cooperate with Japan in establishing and maintaining the navigation and environment management systems.29 Another difficulty was that there was mounting pressure on the government from the domestic business sector during unclos iii. At the international level, the government was generally satisfied with the Informal Single Negotiating Text (isnt) of 1975.30 Japan’s interest in the unimpeded passage of tankers through the chokepoints such as the Malacca Strait, Sunda Strait, Hormuz Strait, and the Strait of Bab el Mandeb was reasonably secured.31 Domestically, however, business interest groups claimed that the transit passage regime under the draft was not enough because the primary jurisdiction on a vessel within a foreign territorial sea was not reserved to that of the flag state. When the isnt became public, the Japanese Business Federation,32 the 26

Ralf Emmers, “The Influence of the Balance of Power Factor within the ASEAN Regional Forum,” Contemporary Southeast Asia 23 (2001): 277. 27 Haruhiro Fukui, “How Japan Handled UNCLOS Issues,” in Japan and the New Ocean Regime, ed. Robert L. Friedheim (Brill, 1984), 41. 28 Graham, Japan’s Sea Lane Security 1940–​2004, 156. 29 For the collaborative aspect of the management of the Singapore and Malacca Straits, see Kawano, “Transit Passage through the Malacca and Singapore Straits.” 30 a/​c onf.62/​w p.8, 4 unclos iii Official Records 152. 31 See Ōuchi, “A Perspective on Japan’s Struggle for Its Territorial Rights on the Oceans,” 114. 32 Japanese Business Federation (Nihon Keizaidantai Rengoukai, as known as Keidanren) is a representative of the Japanese business sector which establishes a consensus among the business community on a variety of issues and communicates with a wide range of stakeholders, including political leaders, administrators, labor unions, and citizens.

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largest economic organization at the national level that represented industrial associations nationwide, issued a report.33 It demanded that coastal regulations be internationally agreed upon and applied equally to all ships, and that the application and implementation of rules and regulations by states be uniform.34 It also asserted that merchant vessels should be entitled to free passage through international straits. The flag state should have exclusive jurisdiction over such vessels, a point which was no longer an issue at the international level.35 Therefore, there was difficulty incorporating the transit passage regime into domestic laws. The regime of the designated areas was a compromise by the Japanese government to meet with the maritime powers’ demand for smooth passage through the Japanese strait, the coastal states’ claim over their territorial seas, and the business sector’s call to secure the commercial route. Second, the other, as yet unofficial, reason for adopting this policy was that the government wanted to keep the high seas corridors to allow the US’s nuclear warships to transit main sea routes without violating the Non-​Nuclear Principles.36 Although this reasoning was already questioned during the legislative process, the government did not admit that fact.37 However, declassified materials show that the mofa was fully aware that once it incorporated the transit passage regime into Japan’s domestic laws, it would be contrary to unclos if Japan refused vessels with nuclear weapons passage through the straits.38 The Non-​Nuclear Principles had to be amended to allow foreign warships with nuclear weapons to navigate Japanese straits without prior consultation or notification.39 Former high officials of mofa also acknowledged

33

Keizaidantairengoukai Kaiyou Kaihatsu Kondankai [Report of the Law of the Sea Research Committee], Shinkaiyouhou Jidai wo Mukaete: Hikoshiki Tannitsu Kosho Joyaku Soan no Kento wo Chushin ni [In the Era of a New Law of the Sea: On the Informal Single Negotiating Text], 308 Keizai Shiryo 1 (1976). 34 Ibid. 35 Ibid., 17. See also Ōuchi, “A Perspective on Japan’s Struggle for Its Territorial Rights on the Oceans,” 114. 36 See Chapter 2. 37 Fukuda Takeo, Prime Minister, 80th Diet, hr Plenary Meeting, No. 16 at 3, April 7, 1977. See also Miki Takeo, Minister of Foreign Affairs, 58th Diet, hr, Committee on Foreign Affairs, No. 12 at 8, April 17, 1968; Miyazawa Kiichi, 74th Diet, hc, Committee on Cabinet Affairs, No. 4 at 2, December 25, 1974. 38 Ministry of Foreign Affairs, Law of the Sea Conference, the Non-​Nuclear Principles, and the Government Observation on April 17, 1968, March 20, 1975 [Kaiyo ho kaigi to Hikaku san gensoku, Showa 43 nen 4 gatsu 17 nichi Seihu kenkaitou tono Kanren nitsuiteno Kangaekata] (unpublished document, on file with the mofa). 39 Ibid. See Shigeru Oda and Hisashi Owada, “Annual Review,” Japanese Annual of International Law 27 (1984): 97–​102.

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the close link between the two to the news media in the 2000s.40 This reason explains why Japan did not change the law in 1996 when unclos was already in force. 1.2 Selection of the Five Designated Areas The government did not intend to freeze the territorial sea limit to 3 nm in every geographical strait. Instead, it provided the following three criteria for selecting designated areas: (1) a high seas corridor that existed under the 3 nm territorial sea regime would be lost if the territorial sea limit were to be extended to 12 nm; (2) the strait lay between two high seas; and (3) the strait was used for international navigation by foreign vessels.41 The key requirement was the functional condition –​that the strait was used for international navigation –​which was required under unclos Article 37. There is a debate whether the text of the Convention requires actual use of the strait. The Japanese government took the position that foreign vessels did have to use the strait.42 It is noted that the relevance of actual use in deciding the status of a strait was challenged before the icj in the Corfu Channel case in 1949.43 The Albanian government did not dispute that the Corfu Channel was a strait in the geographical sense, but it denied that it belonged to “the class of international highways” on the ground that it was not a necessary route between two parts of the high seas. On the other hand, the British government submitted that 2,884 vessels had passed through the Channel from April 1, 1936 to December 31, 1937, claiming that the route was in fact used by foreign vessels.44 The Court held that the decisive criterion was its geographical situation and the “fact of its being used for international navigation.”45 The Court reached the conclusion that the channel should be considered “as belonging to the class of international highways” and that the coastal state cannot prohibit the passage of foreign ships. This part of the judgment developed into the Territorial Sea Convention Article 16(4). The government picked the five straits mainly based on the traffic volume in the area.46 The jcg was in charge of investigating the frequency of the passage 40 41

Mainichi Shinbun, July 29, 2006, A1 Sec.1. Okayasu Makoto, Secretary of Fisheries Agency, hr, Committee of Agriculture and Fisheries, No. 19 at 4, April 20, 1977. 42 Ibid. 43 icj, Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment, April 9, 1949 [1949] icj Report 4, 28. 44 Ibid., 29. 45 Ibid. 46 Suzuki Zenkō, Minister of Agriculture and Forest, 80th Diet, hr, Budget Committee, No. 12 at 5, February 23, 1977.

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of foreign ships. It initially researched 38 straits, which could qualify as straits used for international navigation in March and April 1977.47 The jcg counted the transiting vessels twice for every strait, and it assessed the straits as “frequently used for international navigation” when more than two foreign vessels passed through on each occasion and more than five ships passed at least once.48 In this context, the term “international navigation” was understood to include vessels passing through Japan’s territory when traveling from one state to another and vessels from a foreign state traveling to and from Japan.49 Declassified materials show that the understanding of the mofa and the jcg was that there was no internationally shared standard for the traffic through a strait that was deemed to be “used for international navigation.”50 The only precedent that the jcg was aware of was the Corfu Channel case, where it was reported that 2,200 vessels passed through in a year and eight months.51 The jcg also commented that the traffic through the Berth Strait or Torres Strait, which Australia recognized to be international straits, was no less great than that of Japan’s five straits.52 During the debate concerning Act on the Territorial Sea in 1977, one of the House of Representatives members claimed that the traffic volume in Tsugaru Strait was 11,000 vessels –​3,500 domestic vessels, 2,500 foreign vessels, and 5,000 vessels the nationality of which was not confirmed.53 The mofa did not officially admit this statistic.54

47

I requested the jcg to disclose the result of this investigation. It turned out that the agency had destroyed the record because the required preservation term had expired, and thus it is no longer available. The existence of such an investigation is referred to in the Diet. Suzuki Noboru, jcg General Director, hr, Committee for Agriculture, Forest and Fisheries, No. 20 at 14, April 21, 1977. It is also referred to in a declassified document. jcg, Kaikyo Tsuka Senpaku Jittai Chosa Irai eno Taiō [Response to the Request of the Investigation], February 6, 1996 (unpublished document, on file with the jcg). 48 Chiyuki Mizukami, Nihon to Kaiyoho ( Japanese) (Yushindo Kobunsha, 1995), 34. See also Akira Mayama and Takanari Yamada, “Senpaku Jido Shikibetsu Sochi Deta Ni Yoru Kokusai Kaikyo Nintei (Japanese),” Journal of International Security 47, no. 4 (2020): 9. 49 jcg, The Consultation with mofa on the Investigation of the Traffic of the Straits, February 23, 1996 (an unpublished file, on file with jcg); jcg, Kaikyo Tsuka Senpaku Jittai Chosa Irai heno Taio [Response to the Request of the Investigation], February 6, 1996 (unpublished document, on file with the jcg). 50 Ibid. 51 Ibid. 52 Ibid. 53 Masamori Seiji, 80th Diet, hr, Agriculture, Forestry and Fisheries Committee, No. 20 at 21, April 21, 1977. 54 Itō Keiichi, 80th Diet, hr, Agriculture, Forestry and Fisheries Committee, No. 20 at 21, April 21, 1977.

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If it is the case, it seems to be fair to conclude that the strait is actually used for international navigation. There were considerations other than traffic volume in choosing straits where the government set the designated areas.55 The main factor seems to have been the government’s policy of securing the US’s passage and excluding the Soviet Union from Japan’s territory. While this view was never officially confirmed by the government, it was reported in the media that the Defense Agency proposed to cover Soya Strait and Ōsumi Strait with the territorial sea, where the innocent passage regime applies, so that the Soviet Union’s submarines could not submerge in these areas.56 Since the US did not use Sōya Strait much, the Defense Agency claimed that there was no need to create a high seas corridor there.57 On the other hand, the Defense Agency recognized the need to open Tsugaru and Tsushima Straits as they were the major straits that the 7th Fleet used.58 The need to maintain the status quo of the Korean Peninsula was also taken into account.59 Also, the Defense Agency proposed to designate Tokara Strait, instead of Ōsumi Strait, because of a security concern that the latter was too close to the mainland of Kyūshū Island. The proposal did not pass. Furthermore, the straits adjacent to Izu Shichishima60 were not selected, because fishermen in the region wanted to establish a 12 nm territorial sea to secure their fishing areas.61 Lastly, Notsuke Suido –​the narrowest area of Kunashiri Strait, a strait between Hokkaidō and Kunashiri Island –​was excluded to preserve Japan’s territorial claims to Kunashiri Island, one of the four islands that the Soviet Union occupied.62 The government reconsidered its policy when it ratified unclos and enacted the Law on Territorial Sea and Contiguous Zone of 1996. Declassified 55

Kokusai Kaikyo no 3 Kairi Toketsu, Soya, Osumi wa Hantai, Mainichi Shinbun, March 2, 1977, at 2. See also Tsuneo Akaha, “Internalizing International Law: Japan and the Regime of Navigation under the UN Convention on the Law of the Sea,” Ocean Development & International Law 20, no. 2 (1989): 113–​39. 56 Kokusai Kaikyo no 3 Kairi Toketsu, Soya, Osumi wa Hantai, Mainichi Shinbun, March 2, 1977 at 2. 57 Ibid. 58 Ibid. 59 Ibid. 60 These are straits between Izu-​Hanto =​Ōshima, Ōshima =​Toshima, Kozu-​jima =​Miyake-​ jima, Kozu-​jima =​ Zeni-​su, Miake-​jima =​ Ogura-​jima, Ogura-​jima =​ Inanba-​jima. 61 Chiyuki Mizukami, “Shin Kaiyoho Chitsujo Ni Okeru Kokusai Kaikyo Tsuko Seido to Wagakuni No Kanren Kokunaiho Seibi No Baai No Mondaiten,” in Shin Kaiyoho Joyaku No Teiketsu Ni Tomonau Kokunai Hosei No Kenkyu, ed. Nihon Kaiyo Kyokai, 1982, 69. 62 Ibid.

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* * LA PEROUSE (SōYA) STRAIT

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map 1  Soya Strait source: usdos, limits of seas: japan (1998), 16

documents show that when Japan ratified unclos, the mofa requested the jcg to investigate 110 straits, including straits less than 6 nm wide.63 The jcg declined to investigate, stating that the work was too much for it.64 It insisted that there was no claim from foreign states before Japan ratified unclos and that any strait other than the five was an international one.65 The jcg consulted with the mofa and decided that the straits not included in the 38 straits investigated in 1977 were not suitable for usual international navigation by foreign vessels because of their width and depth.66 The two organizations did not find any reason to add to or reduce the list to maintain the five areas. 63 Ibid. 64 Ibid. 65 After the enactment of Law No. 73 of 1996, the United States protested that Shimonoseki Strait and Bungo Channel were straits under Part iii of unclos. It is the Japanese position that these straits are part of Japanese internal waters and therefore Part iii does not apply. United States Department of State Office of Ocean Affairs, Straight Baseline and Territorial Sea Claims: Japan, ed. United States Department of State Office of Ocean Affairs, Limits in the Sea, 1998. 66 Ibid.

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TS

UG

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PACIFIC OCEAN

YŌ

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SEA OF JAPAN

map 2  Tsugaru Strait source: usdos, limits of seas: japan (1998), 17

1.3 Designated Areas and Neighboring States There are two channels, Sōya Strait and Tsushima West Channel, where Russia and South Korea, respectively, are on the other side. The policies of these two countries toward these straits deserve close examination as they reflect their geopolitical significance. 1.3.1 Sōya Strait and Russia Sōya Strait connects the Sea of Japan and the Okhotsk Sea, and is 23 nm at its narrowest. Today, Japan limits its territorial sea to 3 nm, whereas Russia claims a 12 nm territorial sea, leaving high seas 8 nm wide in the strait. Soya Strait is the gateway for the Russian fleet in Vladivostok to the Pacific Ocean. Historically, the legal status of Soya Strait has not been fixed because the coastal authority of Sakhalin Peninsular, the northern shore, changed from time to time.67 The Treaty of Commerce, Navigation and Delimitation concluded in 1855 first demarcated the national boundary of these two states 67

Most of the national boundaries were defined under agreements between the two states before the Soviet Union occupied the four islands of Etorofu, Kunashiri, Habomai, and Shikotan in 1945. English translations of relevant materials are available at mofa, Joint

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between the islands of Etorofu and Uruppu.68 It was not clear which country owned the Sakhalin Peninsular at the time because neither state declared territorial title to the land. Under the Treaty of Saint Petersburg of 1875, the two states agreed that Japan owned the Kurile Islands and Russia owned the Sakhalin Peninsular.69 During the Russo-Japanese War from February 8, 1904 to September 5, 1905, the Japanese government promulgated Imperial Ordinance No. 11, which stated that the Minister of the Navy, or if necessary a subordinate official, may designate a “defense sea area” (Bogyo-​kaimen).70 It was a maritime area within which the movements of vessels could be regulated and from which vessels might be excluded by force of arms.71 The Navy Ministry identified such areas as up to 6 nm from the coast.72 According to the emergent military necessity, its object was “to restrict neutral vessels’ navigation by exclusively using the high seas.”73 However, the mofa opposed the plan, insisting that such an area would not be established beyond the 3 nm territorial sea. Therefore, the government did not implement the order except in the Tsugaru Strait, where the government prohibited navigation at night.74 After the two countries ended the Russo-​Japanese War, Russia ceded the southern part from the 50th parallel North of the Island of Sakhalin and all the adjacent islands to Japan under Treaty of Portsmouth.75 Japan became to have total control over the entire coast of the Sōya Strait. At the same time, both states agreed not to “take any military measures which may impede the free navigation of the Strait of La Perouse and the Strait of Tartary,”76 which was a concession Japan made. The Russo-​Japanese Convention of 190777 and Compendium of Documents on the History of Territorial Issue between Japan and Russia (2001). 68 Treaty of Commerce, Navigation and Delimitation between Japan and Russia, February 7, 1855, 112 cts 467. 69 Treaty for the Exchange of Sakhalin for the Kurile Islands, May 7, 1875, 149 cts 179, Article 2. 70 Imperial Order No. 11, issued on January 23, 1904, approved by the Diet on March 22, 1904. See Naval War College, International Law Situations 122 (1912). 71 Ibid. For an analysis to characterize this practice as Japan’s attempt to present a new practice under international law, see also Okuwaki, “Nihon Ni Okeru Kaiyōhō,” 69. 72 Kaigun Shireibu, 1 Meiji 37-​8 Kaisen-​shi, 197–​205. 73 Ibid. 74 Kaigun Daijin Kanbo, Senji Kokusaihoki Koyo [International Law of War] 73 (1937). 75 Treaty of Portsmouth, Japan-​Russia, signed on September 5, 1905, entered into force on November 25, 1905, 199 cts 144, Article 4. 76 Ibid. 77 Russo-​Japanese Agreement, July 17, 1907, Article 1 Gaimusho ed., 1 Nihon Gaiko Nempyo Narabini Shuyo Monjo [Chronology of Japanese Diplomacy and Documents] 280 (1965).

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the 1925 Convention on the Basic Principles of Mutual Relations between the Soviet Union and Japan78 confirmed the Portsmouth Peace Treaty’s provisions. Moreover, in 1941, when Japan went to war with the United States, Japan declared the waters around the southern extremity of Sakhalin and Northern Hokkaidō as zones prohibited for navigation.79 This measure was taken to establish the “defensive sea areas.”80 The government notified the neutral states that the establishment of this area was “for the necessity of national defense.”81 For the Sōya Strait, it stated that a designated navigation route, with a width of 2 nm, was open from sunrise until sunset for general navigation.82 It also provided that all the ships that violated the rules were treated in accordance with Japanese law and that the safety of such ships was not guaranteed.83 The Soviet Union, the only neutral state in the region, protested against such measures and argued that they were against international law and the Portsmouth Treaty.84 It demanded free transit of the area and claimed that the Japanese government should pay for any damage its actions caused.85 The Japanese position was that it did not shut down Soviet Union vessels’ navigation, as it opened the Sōya Strait during the daytime. In the wintertime, when the area was frozen, it opened the Tsugaru Strait.86 In practice, nonetheless, Japan obstructed the free passage of ships through the area. Records show that Soviet ships were subjected to bombardment and detention en route through the Sōya Strait, and 18 Soviet ships were seized and sunk during wwii.87 Such a measure by the Japanese government was in accordance with the law of blockade at the time, but it was hardly compatible with the Portsmouth Treaty.88

78

Convention on Fundamental Principles for Relations, Japan-​U.S.S.R., January 20, 1925, art.2, reprinted in mofa, Joint Compendium of Documents on the History of Territorial Issue between Japan and Russia, Chapter iii Section 1. 79 Rikujo Bakuryo Kana Kanri-​bu [Headquarter of the Army], 5 Showa Juno-​rokunen Senso Kakkoku Kaisen Kanrei Hosei [Domestic Laws on Naval Warfare in 1939–​1941] 245 (1954). 80 Executive Order, December 11, 1941, reprinted in Naval War College, 41 International Law Documents 83–​90 (1941). 81 Kaigun Daijin Kanbou [Office of the Minister of Navy], Senji Kokusai Hoki Koyo [Commentary on the International Law of War] 72 (1937). 82 Ibid. 83 Ibid. 84 Ibid. 85 Ibid. 86 Ibid. 87 A A Kovalev and W E Butler, Contemporary Issues of the Law of the Sea: Modern Russian Approaches (Eleven International Publishing, 2004), 215–​16. 88 For the legal status of straits at the time of armed conflict under international law, see Kentaro Wani, “Development of the Law of the Sea and the Legal Status of International

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Under the San Francisco Peace Treaty Article 2(c), Japan renounced all right, title, and claim to the southern part of Sakhalin and its islands. At the San Francisco Peace Conference, the Soviet Union’s delegation proposed to add the following provisions to the draft:



1. The Laperouse (Soya) and Nemuro Straits along the entire Japanese coast, as well as the Sangar (Tsugaru) and Tsushima, should be demilitarized. These Straits would always be open for the passage of merchant ships of all countries. 2. The straits specified in point 1 of the present Article should be open for the passage only of those warships which belonged to powers contiguous to the Sea of Japan.89

The delegation also proposed establishing a special legal regime on Tsugaru Strait, a non-​freezing strait and the shortest route from Vladivostok, Nakhodka, and other major ports to the Pacific Ocean.90 John Foster Dulles, the US’s delegate, opposed this provision. He pointed out that the only naval force that would use this strait was the ussr navy. The clause virtually meant cutting Japan in two and separating it from Korea so that not even a United Nations force could operate in the region.91 The issue of the strait was thus set aside. The maritime delimitation within this strait has not been completed. As the Soviet Union was not a party to the San Francisco Peace Treaty, the Japanese government’s position is that the title of the southern portion of Sakhalin, which it renounced, has not been determined.92 Yet, the government has explained that Japan is not in a position to object against Russia’s effective control of the Sakhalin Peninsula.93 In addition, the boundary is influenced Straits in Time of International Armed Conflict,” Japanese Yearbook of International Law 81 (2019): 39–​80. 89 Conference for the Conclusion and Signature of the Treaty of Peace with Japan; San Francisco, California, September 4–​8, 1951, Record of Proceedings 122 (1951). 90 Ibid. 91 Ibid., 301. Against the background of the Soviet Union’s proposal was the concept of the “closed sea,” which was uniquely Russian. Soviet jurists alluded to both the Sea of Okhotsk and the Sea of Japan as closed of regional sea while Moscow never made any official statement. See William E. Butler, The Soviet Union and The Law of The Sea (The Johns Hopkins Press, 1971), 139; D. W. Given, “The Sea of Okhotsk; USSR’s Great Lake?,” U.S. Naval Institute Proceedings 96/​9/​811 (September 1970), 48. 92 See mofa Website, at https://​www.mofa.go.jp/​reg​ion/​eur​ope/​rus​sia/​territ​ory/​index. html. See also Hatoyama Kunio, Minister of Internal Affairs and Communications, 171st Diet, hr, Budget Committee Second Section, No. 2, February 20, 2009. 93 mofa Website, at https://​www.mofa.go.jp/​reg​ion/​eur​ope/​rus​sia/​territ​ory/​index.html.

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by Kamen Opasnosti (Nijouiwa), an isolated rock over which Russia exercises sovereignty, which is located about 14 km to the southeast of Cape Krilon, the southwestern end of Sakhalin.94 The maritime delimitation between the two states has hardly been the subject of negotiations. The Soviet Union once proposed negotiations on the delimitation of maritime areas not influenced by the territorial dispute, but Japan did not accept it.95 The legal status of the Soya Strait will remain intact for the time being. 1.3.2 Tsushima Strait and the Republic of Korea Tsushima West Channel connects the Sea of Japan with the Cheju Strait and the East China Sea. This channel is approximately 23 nm wide. South Korea established its 12 nm territorial sea in 1977,96 but it chose to retain the 3 nm limit in the Tsushima West Channel.97 Coupled with Japan’s decision to establish the designated areas, a high seas corridor has been maintained within the strait. The rok’s decision to retain a 3 nm territorial sea limit was made mainly to preserve the freedom of navigation and overflight of the maritime powers.98 Under the rok’s domestic law, a foreign warship or another government ship operated for non-​commercial purposes was required to give notification and receive authorization before entering and transiting its territorial sea.99 In addition, submerged transit within the territorial sea was considered non-​ innocent.100 Such a stringent regulation was likely to invite confrontations with other user states. If the rok established a 12 nm territorial sea in the area, it could impede foreign warships.101 94

Alex G Oude Elferink, The Law of Maritime Boundary Limitation: A Case Study of the Russian Federation (Martinus Nijhoff, 1994), 309. 95 Ibid., 310. 96 The rok established its 12 nm territorial sea under Territorial Sea and Contiguous Zone Act, No. 3037, adopted on December 31, 1977, entered into force April 30, 1978, Article 1. 97 Enforcement Decree of Territorial Sea and Contiguous Zone Act, Presidential Decree No. 9162, September 20, 1978, Article 2, translated in United States Department of State, Straight Baseline and Territorial Sea Claims: South Korea, 121 Limits in The Seas 15 (1998). This decree was amended subsequently by Presidential Decree No. 13463, September 7, 1991 and by Presidential Decree No. 15133, July 31, 1996. Texts are available at 33 United Nations Law of the Sea Bulletin 45–​54 (1997). 98 See Chi Young Pak, The Korean Straits, International Straits of the World (Martinus Nijhoff, 1988), 13. 99 Enforcement Decree, Article 4. The United States officially protested this claim when it was first made by South Korea in 1977. 121 Limits in The Seas 10. 100 Territorial Sea and Contiguous Zone Act, Article 5(e). 101 Pak, The Korean Straits, 13.

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Among the maritime powers, the United States was entitled to transit the territorial sea of the rok under the Mutual Defense Treaty of 1953, which was concluded during the Korean War.102 It provided that “[t]‌he Republic of Korea grants, and the United States of America accepts, the right to dispose United States land, air and sea forces in and about the territory of the Republic of Korea as determined by mutual agreement.”103 This provision has been generally interpreted to allow US warships to pass through rok’s territorial sea. The rok was mostly concerned about unnecessary tension with the Soviet Union. Even if the Korean government established a transit passage regime, it was worried that the coastal states’ obligations, such as the designation of routes and the monitoring of expeditious passages, might have caused friction with Moscow.104 The other factor was Japan. If both countries extended their 12 nm territorial sea, that would have inevitably created maritime delimitation and joint management issues for the channel. It would also have involved a complex process because of the difficult negotiations over fishing rights the two countries were having in the 1970s. Considering these elements, the Korean government declared its domestic law immediately after Japan established its designated areas, and since then the status of the channel has remained intact. 2

Straits Covered by Territorial Seas

The cases examined above are where Japan, at its discretion or under negotiation with the neighboring states, made its claim within the limits of international law. A problem arises concerning the status of the rest of the straits covered by the territorial sea where the Japanese government recognizes only an innocent passage regime. Since 1977, the Japanese government has maintained the position that there was no strait governed under the Territorial Sea Convention Article 16(4) or unclos Article 38. The government’s reasoning has not changed. It is that the strait has to be actually “used” for Part iii of unclos to be applied. To this date there is not yet enough state practice, and there remain uncertain aspects especially regarding the conditions of application of the transit passage regime, and what form of navigation is actually permitted under this regime. It is premature to identify specific straits that come under the regime 102 Mutual Defense Treaty Between the United States and the Republic of Korea, signed October 1, 1953, tias 3097, 5 ust 23602376. 103 Ibid., Article 4. 104 Pak, The Korean Straits, 13.

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JAPAN

JAPAN

KYŪSHŪ

KYŪSHŪ

Ō

SU

M

I-

I KA

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Ō

map 3  Osumi Strait source: usdos, limits of seas: japan (1998), 18

of straits used for international navigation. This official position was set out in Prime Minister Suzuki’s speech in 1977.105 It was then confirmed in 1996 when Japan ratified unclos,106 and most recently in 2015.107 Also, the government conveyed this view to foreign governments on various occasions.108

105 Suzuki Zenkō, Prime Minister, 80th Diet, hr, Budget Committee, No. 12 at 5, February 23, 1977. 106 Nishida Yoshihiro, mofa, 136th Diet, hr, Committee of Transportation, No. 11 at 4, May 15, 1996. 107 Question Statement, Ogata Rintaro, hr, 189th Diet, No. 70, February 24, 2015. 108 The declassified materials show that at least the government explained its position to foreign representatives on the following occasions. mofa, Wagakuni Shuhen no Kaikyo no Hoteki Chii (Zaikyo Denma-​ku Tai yorino Shokai) [The Legal Status of Straits surrounding Japan (A Reply to Denmark Embassy in Tokyo)], December 17, 1991 (unpublished document, on file with the mofa. This document includes a draft of the reply to Denmark Embassy, Emb.ref.No.90.Dan.1.a.); mofa, Telegraph No. 7587, October 19, 1991, From Ambassador Edamura to Minister of Foreign Affairs, On the Meeting between Treaty Bureau, Chief, Mr. Yanai and Mr. Yakoblev of Ministry of Soviet Union (unpublished document, on file with the mofa).

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It was not until the 2010s that neighboring countries started to question this policy. As Chapter 3 discussed, in 1980, a nuclear-​powered Soviet Union ship was pulled through Yoron Island and Okinoerabu Island, with a width of approximately 17 nm.109 The Soviet Union did not claim its right to non-​suspendable innocent passage or transit passage, when Japan protested against such a conduct. The issue became most relevant in the Sino-​Japan relationship. China has conducted surface and submarine fleet activities in Japanese waters since the 2000s, in Peter Dutton’s words, “to send strategic messages, to scout avenues for operations in the Pacific Ocean, and perhaps to find methods to control access to the coastal waters of East Asia during times of crisis.”110 There is no legal issue when Chinese naval vessels transit straits where the designated areas were established and high seas corridors remain. Therefore, Japan has not protested against China’s operation through the Tsugaru Strait, Ōsumi Strait, and Tsushima channels.111 The problem surfaces when it comes to the straits covered by territorial seas. As Chapter 2 described, on November 10, 2004, a Chinese submarine navigated underwater of the territorial sea, which was part of a strait between Ishigaki Island and Tarama Island, the minimum width of which is approximately 18 nm. Wu Dawei, then vice-​minister of Foreign Affairs, conveyed to the Japanese ambassador in Beijing that the submarine had mistakenly entered the territorial sea in the course of an ordinary training session due to certain technical reasons. He also stated that China regretted the occurrence of this incident.112 The Japanese government took this statement as an apology,113 and the Chinese side concluded that the problem was resolved.114 China did not question the status of the territorial water that its submarine had trespassed in regardless of the fact that its traffic volume was sufficiently large.115 1 09 See Chapter 3, Section 2. 110 Dutton, “Scouting, Signaling, and Gatekeeping: Chinese Naval Operations in Japanese Waters and the International Law Implications,” 2:6. 111 Ibid 7. It is noted that such practice raises security concerns. China keeps testing its submarine capability through the Japanese high seas corridor, not just in the five straits but also in Miyako Strait, a corridor of 2 nm between Yokoate Island and Amami Oshima and the eastern part of Yonaguni Island. 112 For the detail and full translation of the statements of both governments’ officials, see Hamamoto, “The Incident of a Submarine Navigating Underwater in Japan’s Territorial Sea,” 121. 113 Press conference by Foreign Minister machimura from 3:39 p.m. on November 16, 2004. 114 Press conference by a Chinese Foreign Ministry spokesperson on November 11, 2004 in Beijing. See Hamamoto, “The Incident of a Submarine Navigating Underwater in Japan’s Territorial Sea,” 126. 115 See Dutton, “Scouting, Signaling, and Gatekeeping,” 11.

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However, China reversed its approach to the status of Japanese straits when a Chinese reconnaissance ship passed through the Tokara Strait off Kagoshima Prefecture on July 17, 2016.116 The Chinese warship’s move aimed to collect information about a joint naval drill being conducted by Japan, the United States, and India. A spokesperson for the Chinese Foreign Ministry stated that it did not need to obtain Japanese permission for the transit because the strait was subject to the transit passage regime.117 Japan rejected China’s claims, stating that it did not recognize the area as a strait governed under Part iii of unclos.118 Defense Minister Nakatani Gen added that, as a matter of courtesy, it was better that warships make prior notifications when they enter territorial waters.119 Incidents followed where a Chinese reconnaissance naval vessel passed through the territorial waters of Tsugaru Strait on July 2, 2017, and two ccg vessels, ccg No. 1304 and ccg No. 2506, went into Tsushima East Channel on July 14 of the same year. In both cases, the Japanese government did not declare that they were non-​innocent passages. When the Japanese government expressed its concern via diplomatic channels regarding the incident on July 2, the Defense Department of China responded that “Tsugaru Strait is not a territorial sea. Every ship, including a naval vessel, has a right to transit the area”120 and its passage was “consistent with international law.”121 It is simply an error to argue that the transit passage regime applies to these two channels because there are high seas corridors within the strait so that unclos Part iii does not apply. Nonetheless, its practice would compel Japan to reconsider its policy on straits. The key issue is whether the straits covered by the territorial sea is in fact used for the international navigation. The decision has to be made based on the statistics. The Japanese government has not shown a concrete number

1 16 Press Conference, Minister of Foreign Affairs, Kishida Fumio, June 17, 2016. 117 There seems to be an inconsistency among the assertions made by the Chinese government on this point. On June 15, Mr. Lu Kang stated that all countries were entitled to “innocent passage,” while on June 20, Ms. Hua Chunying said that such vessels were entitled to “transit passage.” Foreign Ministry Spokesperson Lu Kang’s Regular Press Conference on June 15, 2016. 118 Press Conference, Minister of Foreign Affairs, Kishida Fumio, June 17, 2016. 119 Press Conference, Minister of Defense, Nakatani Gen, June 17, 2016. He did not mention that such a notification is legally required. 120 “Foreign Ministry Spokesperson Geng Shuang’s Regular Press Conference on July 3, 2017,” available at https://​www.fmprc.gov.cn/​mfa_​eng/​xwfw​_​665​399/​s2510​_​665​401/​t1475​054. shtml. 121 Ibid.

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regarding the traffic volumes through major straits covered by the territorial sea as of today.122 According to an investigation conducted by Mayama Akira and Yamada Takanari, where their research group tracked vessels through the automatic identification system (ais), the volume of Ōsumi Strait in May 2017 was 2,512 vessels, among which 1,532 vessels were of foreign nationality. The simple estimation is that more than 18,000 foreign vessels would pass through this strait.123 On the other hand, Mayama and Yamada observed the number of vessels passing through Tokara Strait using ais data during three months in 2017, and reported that among a total of 1,400 vessels that passed through the channel, approximately 380 vessels were of foreign registry.124 The annual volume of traffic will be approximately 5,600 vessels in total, 1,520 of them foreign.125 This research was done by researchers in their personal capacity for a limited period of time. The government’s investigation in a periodical manner would be necessary for a constructive argument.126 Whether the volume would satisfy the condition that Tokara strait is used for international navigation requires a careful consideration. It is reported that the annual traffic volume, which includes the non-​international navigation, of Malacca Strait is estimated as 72,000 vessels and Gibraltar Strait 71,000.127 While not all of the vessels are engaged in international navigation, there is no disagreement that these straits satisfy the functional requirement under Article 38. Straits with less volume may qualify as the ones where the transit passage regime applies. Mayama and Yamada compares Tokara Strait with Tanaga Strait, where China’s plan fleets passed through in October 2015.128 The annual traffic volume of Unimak Strait is approximately 7,000 vessels,129 and that of 122 For a critical analysis of Japanese policy towards the straits among Japanese scholars, see Mayama and Yamada, “Senpaku Jido Shikibetsu Sochi Deta Ni Yoru Kokusai Kaikyo Nintei (Japanese)”; Sakamoto, “Japan and the Law of the Sea: Key Historical and Contemporary Milestones.” 123 Mayama and Yamada, “Senpaku Jido Shikibetsu Sochi Deta Ni Yoru Kokusai Kaikyo Nintei (Japanese),” n. 45. 124 Ibid., 14. 125 Ibid. 126 The jcg publishes the traffic volume of major straits and channels in the internal waters, but the research does not seem to include straits covered by the territorial water. 127 Suzanne Lalonde, “The Right of Overflight above International Straits,” Canadian Yearbook of International Law 52 (2015): 35–​76. 128 mfa, Foreign Ministry Spokesperson Lu Kang’s Regular Press Conference on October 27, 2015. 129 Craig H. Allen, International Law for Seagoing Officers (Naval Institute Press, 6th ed., 2014), 113.

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Tanaga Strait is considered to be a little less. Yet, the United States did not protest and acknowledged that the Chinese fleet’s passage was lawful, stating that “[t]‌he five plan ships transited expeditiously and continuously through the Aleutian Island chain in a manner consistent with international law.”130 This case will provide a merkmal for the present discussion. If the straits covered by the territorial sea are actually used for international navigation, Japan’s national security policy has to be reconsidered. Under the current law, the Japanese government will issue a Maritime Security Operation order against a submerged foreign submarine vessel transiting the straits as Chapter 1, Section 2, stated. It will also take air defense measures against aircraft intruding into Japanese territorial airspace as Chapter 6, Section 1, will discuss. The risk that Japan may violate UNCLOS Article 38 is hardly an issue in the domestic sphere.

Conclusion

The Japanese government has identified the governance of its strait as a core security concern from both geopolitical and geostrategic standpoints. The establishment of the designated areas is one of the characteristics of Japanese maritime policy. The reason for taking this approach was based on several considerations, yet the most important one was to secure the Japan-​U S alliance during the Cold War period. It was not that Japan recognized the applicability of the transit passage regime and tried to avoid it. Issues remain regarding the straits covered by the territorial sea. It is time the government justified its policy based on empirical statistics instead of stressing the ambiguity of the rules under the unclos. 130 For the analysis of the case, see Sam LaGrone, “Chinese Warships Made ‘Innocent Passage’ Through U.S. Territorial Waters off Alaska,” usni News, 2015; Anastasia Telesetsky, “United States Practice Regarding Innocent Passage and Navigational Transit,” in Regulation on Navigation of Foreign Vessels (Brill Nijhoff, 2019), 180–​95.

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Exclusive Economic Zone, Continental Shelf, and Islands

Introduction

Japan benefits from its vast eez of over 4.47 million square kilometers, the sixth largest in the world, in addition to outer continental shelf of 180,000 square kilometers. Not only is it rich in living and non-​living natural resources, but it is in the center of western Pacific Ocean, a strategically vital area for maritime powers in the region.1 On the one hand, the issues concerning fishery management and the exploration of the continental shelf have been priorities for Japan regarding its ties with neighboring countries since World War ii. Japan has not been able to delimit the maritime area in most of the East China Sea and the Sea of Japan, except for a maritime delimitation agreement with rok concluded in 1974.2 Instead, Japan has concluded provisional arrangements on the development of natural resources with neighboring countries, the management of which has been an essential part of bilateral diplomatic relations with each country. On the other hand, it was not until the 2000s that the Japanese government began to pay close attention to their maritime security aspects.3 The Ryūkyū Islands chain comprises the central part of the first island chain in China’s maritime strategy, and the Southwest Islands (Nansei shotō) largely overlap with its second island chain. The Okinotori Island are between Tokyo and Guam. The water surrounding this feature would be the theater of submarine warfare between the U ​ S and China if a conflict were to occur over Taiwan. If China successfully keeps foreign-​flagged warships away from the Northeast Asian region, it will have effectively decoupled the ​U S from its treaty allies –​Japan and South Korea.4 The 2010s saw a sharp increase in Chinese and Taiwanese 1 Ryōta Kaji, “Okinotorishima Wo Meguru Shomondai to Nishitaiheiyo No Kaiyo Anzen Hosho [Issues Concerning Okinotori Island and Maritime Security of West Pacific Ocean] (Japanese),” Rippo to Chosa 321 (2011): 136. 2 See Section 1.2.1. 3 Kaji, “Okinotorishima Wo Meguru Shomondai to Nishitaiheiyo No Kaiyo Anzen Hosho [Issues Concerning Okinotori Island and Maritime Security of West Pacific Ocean] (Japanese),” 128. 4 James Kraska and Raul Pedrozo, International Maritime Security Law, International Maritime Security Law (Brill, 2013), 277.

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004500419_007

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vessels fishing within the Japanese eez around the Ogasawara Islands, Gotō Islands, and Miyako Island, violating Japanese fishery laws against the backdrop of the rapid growth of fisheries activities by Chinese vessels. These activities are a part of a larger picture of China’s maritime power’s growth, which became overt in the South China Sea. Japan’s domestic legal regime has been by no means successful in managing the area for several reasons. First, the government has long overlooked the protection of remote islands.5 It was not until the end of the 2000s that the government started to secure the outlying islands’ low-​water line that formed the basepoints for Japan’s eez  s. Second, Japan lacked legislation regulating maritime scientific research by foreign ships. The government had to rely upon international law to demand that such ships leave the Japanese jurisdictional area. Third, there have been many undelimited areas between the neighboring states. This chapter explores the Japanese approach to such issues under both domestic and international law. Section 1 presents an overview of the relevant laws and treaties concerning the Japanese maritime area. Then, Section 2 analyzes the Japanese approach to the regime of islands. Lastly, Section 3 covers issues concerning the military activities within the eez. This section focuses on jurisdiction over the vessels’ activities in the waters surrounding Japan, the geographical scope of the arranged areas, and the background to the existing agreements. It does not detail the argument for fishery stock management and oil exploitation, which have been written about extensively in other scholarly works. 1

Exclusive Economic Zone and Continental Shelf

Domestic Laws Legislative History and Japan’s Position in the Development of the International Law of the Sea 1.1.1.1 unclos i and the Continental Shelf Convention Japan was traditionally a strong opponent of any sort of fishing zone beyond its territorial sea.6 Since the interwar period, Japanese fishermen had been deeply engaged in pelagic fisheries, including pearl shell fishing in the Arafura Sea off 1.1 1.1.1

5 Japan Coast Guard Agency, Kaijo Hoan no Genkyo (1987). The number of islands which have more than 100 m coastline is 6852. 6 See Chapter 3, Section 1.

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the northern coast of Australia, tanned crab fishing in Bristol Bay in southwestern Alaska, as well as salmon fishing off the west coast of Kamchatka. The conflict between Japan and these coastal states started when these states claimed their sovereign rights over sedentary species in continental shelves under Article 2(4) of the Convention on the Continental Shelf of 1958,7 because this provision was not compatible with pre-​existing state practices. Oda Shigeru claimed that “There is no logical or practical reason for separating exploitation of live resources attached to the sea bed from the customary type of fishing.”8 The Japanese government refused to sign this convention because Japan could not agree with its Article 2(4), which included living organisms belonging to sedentary species into the scope of “the natural resources.”9 It also did not enact any domestic law concerning continental shelf regulation until 1996 when it ratified unclos.10 However, Japan started to claim sovereign rights over non-​living natural resources on the continental shelf under customary international law.11 As a result, from 1967 to 1969, Japan gave several oil companies licenses to explore mining areas in the East China Sea. In 1972, the first test drilling succeeded in an area 15 kilometers off the Agano River of Niigata Prefecture, where oil production started in 1976.12 The negotiation over the continental shelf with the rok and China in the 1970s was based on this understanding that the continental shelf regime had been established under international law. On the other hand, Japan adopted the Convention on Fishing and Conservation of the Living Resources of 1958, which did not provide an exclusive right of the coastal state over the maritime area beyond the territorial sea.13

7

Convention on the Continental Shelf, signed April 29, 1958, entered into force June 10, 1964, 499 unts 311, Article 2(4). 8 Shigeru Oda, “A Reconsideration of the Continental Shelf Doctrine,” Tulane Law Review 32 (1957): 35. See also Zengo Ōhira, “The Freedom of the Seas and Japan,” Annual of Hitotsubashi Academy 5, no. 1 (1954): 86–​96. 9 Continental Shelf Convention, Article 2(4). 10 Section 1.1.2. 11 Aichi Kiichi, Minister of Foreign Affairs, 61st Diet, hc, Budget Committee, No. 19, March 25, 1969. He referred to the establishment of state practice and the icj’s North Sea Continental Shelf case. icj, North Sea Continental Shelf (Federal Republic of Germany v. The Netherlands), Judgment of April 26, 1969, [1969] icj Report 3. 12 Mizukami, Nihon to Kaiyoho ( Japanese), 113. 13 Convention on Fishing and Conservation of the Living Resources, signed on April 29, 1958, entered into force March 20, 1966, 558 unts 285.

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1.1.1.2 unclos iii In the meantime, pelagic fisheries continued to grow in Japan from the 1950s to the 1970s.14 In the 1960s, while more than 90 percent of the members of the nearly 230,000 Japanese fishery companies operated traditionally in Japan’s coastal waters, approximately one-​third of the almost 9 million tons of fish caught annually by the Japanese came from distant waters.15 Japan advanced plans that would have provided only for “preferential rights” for coastal States while protecting the position of traditional fishing states. It sought to ensure that a gradual accommodation of interests could be brought about in the expanding exploitation and use of fishery resources of the high seas without causing any abrupt change in the current order in fishing, disturbing states’ economic and social structures.16 However, during the summer of 1971, the Japanese proposal failed to attract support at the aalcc Working Group in Geneva and the UN Seabed Committee.17 Japan repackaged its proposal and submitted it for consideration at the aalcc meeting in January 1972. The working paper, “Proposed Regime concerning Fisheries on the High Seas,”18 competed with a contending paper submitted by Kenya’s delegation titled “The Exclusive Zone Concept.”19 Japan favored a zone of the high seas in which the coastal state had preferential rights, but the area basically would retain the high seas character.20 The summer session of the 1972 UN Seabed Committee considered revised drafts of the two proposals.21 Yet, the Kenyan proposal gained traction in the end. The Japanese concept of preferential treatment lived on in a handful of proposals from the Soviet group, the European Community, and the United States through the idea of “optimum utilization” of living resources.22 This concept 14 Fukui, “How Japan Handled unclos Issues,” 44. 15 Ibid. 16 Japan, “Proposals for a Régime of Fisheries on the High Seas,” UN Doc. a/​a c.138/​s c.ii/​ l.12 (1972). 17 Oda, “Proposals Regarding a 12-​Mile Limit for the Territorial Sea by the United States in 1970 and Japan in 1971: Implications and Consequences,” 193. 18 Asian-​African Legal Consultative Committee, Report of the 13th Session (1972), 131. See also Shigeru Oda and Hisashi Owada, “Annual Review of Japanese Practice in International Law XI (1972),” Japanese Annual of International Law 24 (1981): 52–​106. 19 Asian-​African Legal Consultative Committee, Report of the 13th Session (1972), 155. 20 Statement of Mr. Osigo, UN Doc. a/​c onf.62/​c .2/​s r.28, Summary records of meetings of the Second Committee 28th meeting, August 6, 1974, para. 1, 2 unclos iii Official Record, 217. 21 UN Doc. a/​a c. 138/​s c.i/​l .12 (1972) and UN Doc. a/​a c.138/​s c.ii/​l .10 (1972). 22 Draft Articles on the Economic Zone, UN Doc. a/​c onf.62/​c .2/​l .38 (1974), Draft Articles on Fisheries, U.N. Doc. a/​c onf.62/​c .2/​l .40 (1974), and Draft Articles for a Chapter on the Economic Zone and Continental Shelf, UN Doc. a/​c onf.62/​c .2/​l .47 (1974).

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was woven into the final text to ensure that coastal states did not monopolize their 200 nm zones.23 Coastal states that could not harvest the entire allowable catch in their eez would give other states, especially developing states, access to their resources.24 Furthermore, coastal states would take into account the need to “minimize economic dislocation” among foreign-​flagged fishermen who have “habitually fished in the zone” and who have made “substantial efforts” in the past to manage the stocks.25 Yet, Japan’s disappointment over the 200 nm eez was substantial. The fear was borne out that the eez would slowly evolve into a zone of national jurisdiction that would be devoid of any consideration, as required in unclos, for conservation or optimum utilization in the common interest.26 As unclos iii drew to a close, Peru,27 Colombia,28 and other states made statements claiming broad sovereignty rights in the eez. In a letter to the President of the Conference, Japan protested these claims as inconsistent with unclos and an infringement of high seas freedoms applying in the zone.29 It was not until the vast majority of the coastal states accepted the 200 nm of exclusive zones into their domestic laws that the Japanese government realized the disadvantage of rejecting the new maritime regime.30 In December 1976, the Soviet Union for the first time unilaterally established a 200 nm fishery zone in the region and excluded Japanese fishery vessels previously engaged in fishing.31 At that stage, the government decided to establish an exclusive fishery zone (efz). 1.1.1.3 The Enactment of Domestic Laws The relative importance of fishery activities in the Japanese economy had diminished by the end of the 1970s. The government promised to provide 23 24 25 26 27 28 29 30 31

unclos, Article 62. Ibid., Article 62(2). Ibid., Article 62(3). Oda, “Proposals Regarding a 12-​Mile Limit for the Territorial Sea by the United States in 1970 and Japan in 1971: Implications and Consequences,” 196. UN Doc. a/​c onf.62/​l .143. UN Doc. a/​c onf.62/​w s/​3 2. UN Doc. a/​c onf.62/​l .157, Letter dated September 24, 1982 from the representative of Japan to the President of the Conference, 17 unclos iii Official Record, at 224. Yanai and Asomura, “Japan and the Emerging Order of the Sea –​Two Maritime Laws of Japan,” 65. Decree of the Presidium of the Supreme Soviet of the ussr on Provisional Measures to Conserve Living Resources and Regulate Fishing in the Sea Areas Adjacent to the Coast of the ussr, reprinted in U.N. Document A/​Conf.62/​53, February 15, 1977, 7 unclos iii Official Record 47.

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compensation to fishery groups for a certain period for the losses they would suffer from the establishing of an efz.32 In addition, the mofa and the Fisheries Agency officials commented that Japanese fishermen would be allowed to operate within 200 nm of the exclusive waters of most coastal states by virtue of their historical rights,33 a view which was ultimately rejected in unclos iii. Nonetheless, government officials relied upon this justification to persuade major fishery groups to accept the forthcoming shift to Japan’s ocean policy.34 The government submitted to the Diet the draft of the Provisional Measures Law on the Fishery Zone,35 which provided exclusive fishery rights within a 200 nm width of maritime space from its baseline.36 It chose to establish a fishing zone instead of an exclusive zone, taking note of the variety of state practices at the time and considering the law to be provisional pending the outcome of unclos iii.37 However, strong opposition to this draft came from fishermen in the southwestern part of the Kyūshū area, who operated within 200 nm off the coast of rok or China, neither of which had adopted an exclusive fishery zone. The concern was that Japanese legislation might prompt these countries to introduce an exclusive zone over areas where more than 90 percent of the fishermen’s total catch in the region came from.38 Because the government initially submitted the law to the Diet to protect the fishery industries in the north, which faced the Soviet Union, the problem was called “the North-​South problem.”39 Therefore, the Cabinet decided to maintain the status quo vis-​à-​vis South Korea and China for the sake of the Japanese fishery regime. For this purpose, the East China Sea, the Yellow Sea, and the western part of the Japan Sea were all excluded from the fishing zone.40 In addition, the rok’s and China’s nationals 32

Provisional Measures Law for Unemployed Fishermen in According to the Conclusion of International Agreements, Act No. 94 of 1977. 33 Ko Nakamura, “200 Kairi Suiiki No Kokusaika to Nihon No Kaiyo Seisaku [The Internationlization of the 200 NM Zone and Japanese Ocean Policy],” Nihon No Kaiyo Seisaku 1 (1978): 8. 34 Ibid. 35 Provisional Measures Law on the Fishery Zone, Act No. 31 of 1977. 36 Law on Exclusive Economic Zone and Continental Shelf, Act No. 74 of 1996. 37 Yanai and Asomura, “Japan and the Emerging Order of the Sea –​Two Maritime Laws of Japan,” 71. 38 For the statistics at that time, see Tsuneo Akaha, “From Conflict to Cooperation: Fishery Relations in the Sea of Japan,” Pacific Rim Law and Policy Journal 1 (1992): 250. 39 Fukui, “How Japan Handled unclos Issues,” 49. 40 Act No. 31 of 1977, Article 3(3); Enforcement Order for the Implementation of the Act, Order No. 212 of 1977, Article 1. For the map of the area which was excluded from the efz, see Yanai and Asomura, “Japan and the Emerging Order of the Sea –​Two Maritime Laws of Japan,” 76.

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were in principle exempted from the application of the fishery regulations.41 Thus, Japan intended to be reciprocal regarding these two neighboring countries because it wanted to avoid unfavorable repercussions in its existing fishery relations.42 It turned out that a considerable number of South Korean and Chinese fishery vessels came quite close to the outer limit of the territorial sea, which prompted Japan to conclude bilateral fishery agreements.43 Incorporating the continental shelf regime into Japanese domestic law was done through customary international law. Even after 1977, the government considered it unnecessary to enact a specific law concerning the continental shelf’s development.44 Instead, the Mining Act,45 the Mining Security Act,46 and the Law on the Development of Natural Resources of Oil and Gas,47 which were all designed to govern the land area’s development, were applied to control the continental shelf activities. Under the Mining Act, Japanese corporations were, in principle, allowed to obtain licenses to develop the mining area on a first come, first served basis. The government continued to give permission for the exploitation of the continental shelf area based on this Act.48 A judicial case where the continental shelf’s legal status was disputed under the domestic law went to the Tokyo High Court in 1984.49 In that case, odeco Nihon sa, a company in Panama, conducted drilling on the continental shelf off the coast of Ibaraki Prefecture. Under Japanese tax law, the government was entitled to impose a tax on the revenue gained from domestic activities. The issue was whether the revenue gained from the continental shelf activity qualified as a domestic activity. The court ruled that the revenue was subject to taxation. The enactment of domestic law was not necessary because the continental shelf was established under customary international law. The court cited the North Sea Continental Shelf case and stated that under Japanese law, 41 42 43 44 45 46 47 48 49

Act No. 31 of 1977, Articles 6-​11. The exception was within fishery zones adjacent to the designated areas in Soya Strait, Tsugaru Strait, Osumi Strait, and the Tsushima West and East Channels. Yanai and Asomura, “Japan and the Emerging Order of the Sea –​Two Maritime Laws of Japan,” 76. See Section 1.2. Minister of Commerce, Ohira Masayoshi, 61st Diet, hc, Committee on Budget, Minute No. 18 at 4, March 24, 1969. Mining Act, Act No. 289 of 1950. Mining Security Act, Act No. 70 of 1949. Law on the Development of Natural Resources of Oil and Gas, Act No. 162 of 1952. Hashimoto Toshikazu, Secretary of Resource and Energy Agency, 82nd Diet, hr, Committee on Commerce and Industry, No. 5 at 3, November 2, 1977. Odeco Nihon SA v. Shiba Taxation Office Superintend case, Tokyo High Court, March 14, 1984, 35(3) Gyoshu 231.

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customary international law had the domestic legal effect under Article 98(2) of the Constitution. There was no particular opposition from the other state to the government’s interpretation. 1.1.2 The Implementation of unclos After it ratified unclos, Japan enacted the Law on the eez and the Continental Shelf50 and repealed the Provisional Measures Law on the Fishery Zone. The law specified the eez’s geographical zone and the continental shelf, and its content was basically identical to pertinent provisions of unclos.51 The law does not provide detailed regulations for either the eez or the continental shelf on the assumption that it could rely on other legislation, the relevant provisions of unclos, and customary international law.52 To implement the fishery policy, the government enacted the Law on the Exercise of Sovereign Rights over Fisheries and Other Activities in the eez.53 The law implemented Article 73 of unclos, which states that coastal states may take measures, including boarding, inspection, arrest, and judicial proceedings, to exercise their sovereign rights. The prohibited acts under this law included establishing a fishery without the Japanese authorities’ permission, falsified logbooks, and the operation of fishing in a different area or species from the one that was permitted.54 The other legislation was the Law on the Preservation and Management of Ocean Living Resources.55 Before this Act existed, Japan relied on the control of fishing efforts, such as the size and number of vessels, fishing seasons, types of fishing gear, areas, and periods of operation, for fishery management and conservation.56 In contrast, setting the total allowable catch (tac) under this Act was considered more realistic and practical because it allowed the Minister for Agriculture, Forestry and Fisheries and the governors of prefectures to continue to manage fisheries jurisdiction while obliging foreign vessels to comply with the regulation.57 In addition, such a management approach was 50 51 52

Act No. 74 of 1996. Ibid., Article 1. Masahiro Miyoshi, “The North Sea Continental Shelf Cases Revisited: Implications for the Boundaries in the Northeast Asian Seas,” Asian Yearbook of International Law 15 (2009): 194, fn.7. 53 Act on Exercise of Sovereign Rights over Fisheries and Other Activities in the eez, Act No. 76 of 1996. 54 Ibid., Articles 3-​4. 55 Law on Preservation and Management of Ocean Living Resources, Act No. 77 of 1996. 56 Moritaka Hayashi, “Japan,” The International Journal of Marine and Coastal Law 12, no. 4 (1997): 570–​80. 57 Ibid.

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considered to provide more orderly fishery activities compared to the prior approach.58 In 1996, the government also amended other relevant laws, such as the Act on the Prevention of Marine Pollution and Maritime Disaster.59 With regard to the continental shelf, in November 2008, Japan submitted information on the outer limit of the continental shelf to the Commission on the Limits of the Continental Shelf (clcs) in accordance with Article 76(8) of unclos.60 In April 2012, the clcs adopted its recommendations61 and the Japanese government designated the Shikoku Basin Region and the Southern Oki Daito Ridge Region as a part of the Japanese continental shelf.62 With increased Chinese reconnaissance vessels within Japanese jurisdictional waters, the government amended the Mining Act in 2012 so that a foreign vessel was required to obtain prior permission to conduct an exploration activity on the Japanese continental shelf.63 1.1.3 Overlapping Areas in the Sea of Japan and the East China Sea The Law on the eez and the Continental Shelf provides that if any part of the 200 nm line lay beyond the median line between Japan and the opposite state, the median line should be substituted for the limit of the domestic line.64 The law thus temporarily limits Japanese domestic jurisdiction to the Japanese side of the equidistance line pending delimitation.65 This coincides with the position of the mofa that “maritime delimitation should be conducted based on the geographical equidistance line.”66 Under international law, Japan possesses 58

59 60 61 62 63 64 65 66

Ibid. For the Japan’s policy on environment protection, see Makoto Seta, “Japanese Law and Policy on Marine Environment Protection: The Recent Activation of Ministry of Environment,” in Implementation of the United Nations Convention on the Law of the Sea, ed. Dai Tamada and Keyuan Zou, 2021, 179–​97; Jun Tsuruta, “Japanese Measures against the Protection and Preservation of the Marine Environment under the UNCLOS and the IMO Treaties,” Meiji Gakuin Law Journal 106 (2019): 93–​116. Act on Prevention of Marine Pollution and Maritime Disaster, Act No. 136 of 1970. For the backgrounds and the issues concerning the submission, see Masahiro Miyoshi, “Japan’s Claim to Extended Limits of the Continental Shelf,” in Governing Ocean Resources: New Challenges and Emerging Regimes, ed. Jon M. van Dyke (Brill, 2013), 238. clcs, Summary of Recommendations of The Commission on The Limits of The Continental Shelf in regard to The Submission Made by Japan On November 12, 2008, adopted by the Commission, with amendments, on April 19, 2012. Enforcement Order No. 302 of 2014. This order was implemented on October 1, 2014. Act No. 289 of 1950, Article 100-​2. See Kazuhiro Nakatani, “Japan’s Undersea Resources and Its New Mining Act,” in The Law of Energy Underground, ed. Donald N. Zillman et al., 2014, 201–​10. Act No. 74 of 1996, Article 2(1). Ibid. Articles 1(2) and 2(2). mofa, “The Current Status of China’s Unilateral Development of Natural Resources in the East China Sea,” March 21, 2021, https://​www.mofa.go.jp/​a_​o/​c_​m1/​page3e​_​000​356.html.

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200 NM EEZ and continental shelf in accordance with the UNCLOS. As Section 2.2 of this chapter explores, Japan has protested against China’s unilateral development of the continental shelf in the East China Sea, on the China side of the geographical equidistance line.67 There is no clause in Japanese domestic statutes concerning the overlapping maritime area between the Japanese coast and the median line. In particular, no explicit rule provides the obligation not to jeopardize or hamper the reaching of the final agreement, which unclos Articles 74(3) and 83(3) provide. There seems to have been no domestic debate regarding this lacuna during the legislation process. As Section 2 will explore, Japan focused on concluding provisional arrangements for the use of the overlapping area with neighboring states. Under international law, states have overlapping maritime titles in the undelimited area. In other words, states are entitled to exercise their sovereign rights in the area subject to the obligation under unclos Articles 74(3) and 83(3). There are, of course, other duties, including the duty to cooperate under general international law and the prohibition of the use of force under the UN Charter Article 2(4). However, the concrete rules regarding the coastal state’s behavior are far from being settled. In the words of a report published by a research group under the British Institute of International and Comparative Law, it seems to be “difficult to draw any general trends from the practice regarding the content of this obligation and any applicable customary international law obligations of restraint.”68 There has been little dispute between Japan and the neighbouring countries regarding the Japanese side of overlapping area. However, on August 16, 2020, the rok for the first time protested against Heiyō, a hydrographic survey vessel of the jcg’s Hydrographic and Oceanographic Department that was operating on a spot 140 km away from the coast of Gotō, Nagasaki, and 10 km away from the median line in the Japanese side.69 The same happened to Syoyō on January 11, 2021, and to Takuyō on January 22, 2021.70 The Japanese government protested against the rok by the diplomatic route on each occasion. Other 67 68

69 70

mofa, “Japan’s legal position on the development of natural resources in the East China Sea,” August 6, 2015, para. 2(1), https://​www.mofa.go.jp/​a_​o/​c_​m1/​page3e​_​000​358.html. British Institute of International and Comparative Law, “Report on the Obligation of States under Articles 74(3) and 83(3) of unclos in Respect of Undelimited Maritime Areas,” 2016, 114. For an analysis of the obligation of self-​restraint, see also Kentaro Nishimoto, “The Obligation of Self-​Restraint in Undelimited Maritime Areas,” Japan Review 3, no. 1 (2019): 1–​11. Asahi Shinbun, August 16, 2020. Asahi Shinbun, January 11, 2021.

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counterparties, China and potentially the dprk, have not made such a claim against Japan. While the lack of the domestic legislation that recognize the overlapping area does not mean that it conflicts with international law, the government may need to address its maritime policy to avoid potential conflicts with neighboruing states. 1.2 Military Activities within the eez 1.2.1 Military Activities in General The legal assessment of the military activities in the eez is not uniform. There are states that claim that the coastal state is entitled to govern military activities in the eez.71 However, unclos’s text favors the interpretation that states enjoy the freedom to conduct military activities within foreign eez s in general.72 On the one hand, Article 56 explicitly provides that certain activities, including marine scientific research (msr), are subject to the exclusive jurisdiction of the coastal state. On the other hand, Article 58 provides that non-​resource-​ related high seas freedoms and other internationally lawful uses of the seas related to those freedoms apply seaward of the territorial sea. Freedom to conduct military activities is considered to be covered by the latter provision. In negotiations at unclos iii, states including China, El Salvador, and Peru tried to broaden coastal state authority in the eez to include residual competencies and rights, only to be explicitly rejected by the majority of the delegates. China continues to oppose such an understanding, claiming that the coastal state is entitled to regulate military-​related activities to a certain extent.73 The Japanese government has not clarified its position on the military activities in general and the conducts of hostilities during an international armed conflict in a foreign eez. It stated that military exercises are permissible within its eez even without the coastal state’s prior consent, as long as they are carried out with due regard for the coastal state.74 This interpretation derives from the 71 72 73

74

J. Ashley Roach, Excessive Maritime Claims, 4th ed. (Brill, 2020), 30. See Kraska and Pedrozo, International Maritime Security Law, 279; Raul Pedrozo, “Military Activities in the Exclusive Economic Zone: East Asia Focus,” International Legal Studies 90 (2014): 514–​43. For a debate on this issue, see Raul Pedrozo, “Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China’s Exclusive Economic Zone,” Chinese Journal of International Law 9, no. 1 (2010): 9–​29; Haiwen Zhang, “Is It Safeguarding the Freedom of Navigation or Maritime Hegemony of the United States? –​ Comments on Raul (Pete) Pedrozo’s Article on Military Activities in the EEZ,” Chinese Journal of International Law 9, no. 1 (2010): 31–​47. Ebihara Shin, Foreign Ministry Deputy Director General, 142nd Diet, hr, Committee on Foreign Affairs, Minute No. 9 at 6, April 17, 1998. This explanation was provided in a context in which Taiwan conducted a live fire exercise in a maritime area between Taiwan

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wording of Article 58(3) of unclos. In practice, Japan did not protest against joint patrol activities and other military exercises conducted within its eez as long as they did not harm Japan’s fisheries and other economic activities. In addition, Japan itself has conduct naval exercises and patrols within other states’ eez s. 1.2.2 Marine Data Collection Activities in the eez A more intricate problem is the regulation of marine data collection activities within the eez. The legal issues concerning the governance of such conduct are among the novel questions added to the modern law of the sea under unclos. It was not disputed that msr would be included within the high seas regime in the pre-​u nclos era.75 However, when msr in the eez became subject to the coastal state’s jurisdiction under unclos, the distinction between msr and other research activities, such as hydrographic surveys, military surveys, and marine meteorological data collection, became an issue.76 The Law on the eez and Continental Shelf of 1996 provides that Japan’s laws and regulations apply to both the exploration of natural resources and msr.77 Accordingly, the government made it clear that prior consent was required for marine surveys within the Japanese eez under international law. However, no such legislation authorized the jcg to exercise its police authority against foreign vessels exploring natural resources or conducting msr in general terms. Therefore, as long as such activities are not prohibited under the eez Act and other relevant domestic statutes, the jcg is only entitled to require the vessel to stop its activities and leave the area. The government did not intend to comprehensively regulate msr, although it may regulate the activity under the Mining Act or the Provisional Measures Law on Fishery Zone. Japan took the position that it would not prepare a comprehensive regulation because such research activities would benefit all humankind.78

75 76

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and Yonaguni Island. The government protested Taiwan because the exercise threatened the Japanese fishermen. Myron H. Nordquist and University of Virginia. Center for Oceans Law and Policy., United Nations Convention on the Law of the Sea, 1982 : A Commentary (Martinus Nijhoff, 1985), 430. Bernard H. Oxman, “The Third United Nations Conference on the Law of the Sea: The 1972 New York Session,” American Journal of International Law 72 (1978): 57–​83; Bernard H. Oxman, “The Regime of Warships under the United Nations Convention on the Law of the Sea,” Virginia Journal of International Law 24 (1983): 809–​64. Act No. 74 of 1996, Article 3(1). Nobori Seiichiro, Cabinet Councilor’s Office of External Affairs, 145th Diet, hc, Committee for Foreign Affairs and Defense, No. 21 at 6, August 6, 1999.

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Since the early 1990s, however, Chinese vessels have started to conduct data collecting activities within the Japanese eez without obtaining Japan’s consent or in a different area than the spot for which permission was given.79 Before Japan formally established its eez in 1996, it did not have domestic legislation over marine research conducted over the water column above the continental shelf.80 Nonetheless, it was the government’s position that it had the authority to permit the exploration of its continental shelf under customary international law.81 After it declared its eez, Japan officially started to protest against China for conducting such data-​collecting activities. The declassified records show that Japanese claims against China at the time of 1996, prior to Japan’s enactment of the Law on EEZ and the Continental Shelf, were twofold. First, Japan required China to obtain prior consent to conduct exploration activities within its eez. It did not clarify whether Japanese prior consent was required for military intelligence collection.82 Second, when the activities were carried out in the East China Sea, where an undelimited area existed, Japan required prior consent when the works were conducted in waters on Japan’s side of the median line between the two countries.83 It did not clarify its position when these activities were carried out in waters on China’s side of the median line, even though Japan had potential maritime title over the area. In May 1996, the government found Chinese surveillance vessels in the maritime area in vicinity of the Okinawa Islands. Japan had not established eez at the time, but the councilor of Asian Affair Bureau conveyed to the Chinese Ambassador that, if they were exploring the Japanese continental shelf, it

79

Akira Takada, “Marine Scientific Research in the Exclusive Economic Zone and Japan-​ China Agreement for Prior Notification (1995–​2001),” Japanese Annual of International Law 44 (2001): 134–​50. 80 Katō Ryōzō, mofa, Director-​General of Asian Affairs Bureau, 134th Diet, hc, Committee for Foreign Affairs, No. 10 at 5, December 12, 1995. 81 In 1988, there was a case where Japan did not give permission to the Federal Republic of Germany for a seismic survey over the continental shelf in the Okinawa area. See Saitō Kunihiko, mofa, Director-​General of Treaties Bureau, 112nd Diet, hr, Committee for the Cabinet, No. 5 at 20, April 14, 1988. In 1996, when China and France tried to conduct a survey over the Japanese continental shelf, the Japanese government required them to have prior consent. See Katō Ryōzō, mofa, Asian Affairs Bureau, Director General, 136th Diet, hr, Committee for Foreign Affairs, No. 8 at 2, May 17, 1996. 82 mofa, Briefing Paper for the Secretary of mofa, May 13, 1996 (unpublished document, on file with the mofa). 83 Ibid.

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would infringe the Japanese sovereign rights.84 The issue was on the agenda when the two governments consulted over the Fishery Agreement of 1997, but they could not reach any agreement. In 1998, when the ministries of the two countries held a meeting in Beijing, Japan claimed again that China was not entitled to explore the Japanese side of the continental shelf from the median line without Japan’s consent.85 China responded that it did not recognize the median line, but it explained that it refrained from conducting action because it did not want to harm the Japan-​ Sino relationship.86 In the Seventh Japan-​China Security Dialogue held in 1999, in which the directors general of the mofa and mod participated, Japan claimed again that Chinese vessels were conducting marine research not only within the Japanese eez but also within its territorial sea.87 In addition, their activities were in the southern part of the eez of Ishigaki Island and the Danjo Archipelago, which were undisputed eez s of Japan. China responded that its activities were justified because the East China Sea was not delimited.88 In 2000, Prime Minister Mori Yoshirō and Premier Zhu Rongji agreed that marine research was a maritime security issue. In particular, Zhu emphasized the importance of mutual dialogue. He even proposed to Mori that the two governments reciprocally visit each other’s naval vessels.89 However, the leaders never reached a formal agreement on this issue because they could not agree on the coastal states’ rights and obligations under unclos. In February 2001, the two parties finally reached the Framework of Mutual Prior Notification for Marine Research Activities.90 This non-​binding 84

mofa, Asian Affair Bureau, China Division, May 13, 1996 (unpublished document, on file with the mofa). The document indicates that, after April 24, 1996, five Chinese marine research vessels were navigating in zig-​zag in the western part of Okinawa Island. 85 mofa, Asian Affiar Bureau, China Division, Kaiyoho no Mondai ni Kansuru Nicchu Kyogi (Gaiyo) [Japan-​China Consultation on Issues on Law of the Sea (Summary)], August 21, 1998 (unpublished document, on file with the mofa). 86 Ibid. 87 mofa, China Division, Dai 7 kai Nicchū Anzen Hoshō Taiwa (Gaiyo) [7th Japan-​China Dialogue on Security Issues], July 19, 2000 (unpublished document, on file with the mofa). 88 Ibid. This issue was confirmed in the Japan-​China Ministers of Foreign Affairs Meeting in 2000. mofa, Nicchū Gaishō Kaidan (Chōshoku-​kai) Gaiyo [Japan-​China Ministers of Foreign Affairs Meeting (Breakfast Meeting)] July 29, 2000 (unpublished document, on file with the mofa). 89 Telegraph No. 2681, Nicchū Shunō Kaidan (Zentei Kaigo) [Japan-​China Summit Meeting (Plenary Session)], October 15, 2000 (unpublished document, on file with mofa). 90 mofa, Kaiyō Chōsa Katsuro no Sogo Jizen Tsuhō no Wakugumi no Nisshi notameno Kososho no Kokan ni Tsuite [On Framework of Mutual Prior Notification for Marine Research Activities], February 13, 2001 (unpublished document, on file with the mofa).

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instrument requires each of the two countries to notify the other before researching natural resources within the other’s jurisdictional waters. It was the first time Japan and China shared a set of rules for marine research in the East China Sea. However, this Framework did not work because China’s surveillance activities without prior notification or in areas different from those notified continued.91 This series of diplomatic exchanges urged the Japanese government to enact a law explicitly regulating msr. In 2005, senators from the Democratic Party of Japan, an opposition party at the time, submitted in vain a draft of the Law concerning the Exercise of Sovereign Rights on the Exploration of Natural Resources and Maritime Scientific Research.92 However, in the light of the changes in maritime security, the Cabinet decided to enact a law under the Second Basic Ocean Policy Plan of 2013. In 2014, the working team under the Headquarters for Ocean Policy promoted the examination of eez management. Accordingly, the Liberal Democratic Party in August 2015 established a working group to submit a law to strengthen management of and entitlement to the Japanese eez.93 The law was to include a provision regulating foreign surveillance vessels.94 It was reported that under that law a foreign vessel had to obtain prior permission. If it contravened the prior notification, the government could halt or rescind permission and impose a penalty on the vessel.95 The draft has never materialized to this date. 1.3 Islands 1.3.1 unclos Article 121 unclos added a new dimension to the issue of maritime entitlement generated from islands. When the Territorial Sea Convention defined the island that was entitled to have a territorial sea and contiguous zone,96 the primary focus was on whether a state could claim territorial sovereignty over a small maritime feature.97 In the end, the parties agreed on the definition of an island

See the description in Miyoshi, “Japan’s Claim to Extended Limits of the Continental Shelf,” 238. 91 Ibid. 92 163th Diet, hr, Bill No. 16, submitted by Hosono Goshi, admitted on October 21, 2005. 93 Mainichi Shinbun, August 27, 2015. 94 EEZ Katsudo Kisei de Bassoku Morikomu [Regulation of Activities in EEZ establishes Penalty], Mainichi Shinbun, October 25, 2016. 95 Ibid. 96 Territorial Sea Convention, Article 10(1). 97 Sōji Yamamoto, Shima No Koksuaiho Jou No Chii, 1991, 6.

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as “a naturally formed area of land, surrounded by water, which is above water at high tide.”98 After the basic eez concept was upheld in unclos iii, the argument shifted to the issue on whether every islet could acquire the 200 nm wide jurisdictional waters. The result of the negotiation was unclos Article 121. Paragraph 1 inherited from the provision of the Territorial Sea Convention. Paragraph 2 provides that, except as provided for in Paragraph 3, an island generates eez and continental shelf. Then Paragraph 3 provides that “[r]‌ocks which cannot sustain human habitation or economic life of their own shall have no exclusive economic zone or continental shelf.”99 This paragraph was inserted because certain states insisted it was inequitable if every high tide could generate vast maritime spaces. However, the relationship between an “island” and a “rock” was not explicitly written into the Convention and was subject to each state’s interpretation. This paragraph was inherently associated with the eez, a newly created maritime zone under unclos, and the re-​defined continental shelf. An issue remains whether the pre-​u nclos arguments on an island’s definition are still relevant because this paragraph is equally connected to maritime entitlements over continental shelves. In contrast to the eez, the coastal state’s rights respecting the area of a continental shelf constituting a natural prolongation of its land territory under the sea exist ipso facto and ab initio by virtue of its sovereignty over the land.100 Notwithstanding paragraph 3, states, including Japan, have established the full maritime jurisdictional space for every maritime feature to which they exercise territorial title, with very few exceptions. There are two relevant issues concerning the interpretation of this provision. The first issue is the relationship between Paragraphs 1 and 3 of Article 121. There are two main approaches. Whereas the “separate approach” claims that these paragraphs respectively and separately define maritime features, the “integrated approach” explains that paragraph 3 is a subcategory of paragraph 1. In the maritime delimitation case between Nicaragua and Columbia in 2012, the icj endorsed the latter approach. It stated that “the entitlement to maritime rights accorded to an island by the provisions of paragraph 2 is expressly limited by reference to the provisions of paragraph 3,”101 and that “the legal 98 Territorial Sea Convention, Article 10(1). 99 The icj has stated that this article is now a part of customary international law. Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment of November 19, 2012 [2012] icj Reports 624 [Nicaragua v. Colombia], para.139. 100 icj, North Sea Continental Shelf, para. 19. 101 icj, Nicaragua v Colombia, para. 139.

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régime of islands set out in unclos Article 121 forms an indivisible régime, all of which … has the status of customary international law.”102 If one takes the “integrated approach,” the second issue is the meaning of the conditions set out in Article 121(3). If Paragraph 3 is the exception to Paragraph 1, it is necessary to clarify the meaning of the phrases “human habitation” and “economic life of its own.” The icj held that size, nature, and limited elevation above high tide are not relevant to an island’s legal status in Nicaragua v. Colombia.103 Beyond this point, the interpretation of this paragraph is subject to disagreement in international jurisprudence. In 2016, the Annex vii Arbitral Tribunal laid down a stringiest standard in the South China Sea case. In summary, the Tribunal concluded that a maritime feature’s legal status depended upon the objective capacity of that feature in its natural condition to sustain either a “stable community of people” or an economic activity that was not dependent on outside resources or purely extractive in nature.104 While this conclusion was drawn from the Tribunal’s examination of the text, the context, the object, the purpose, and the travaux préparatoires of unclos, the logic and appropriateness of this interpretation is to be criticized because of the following points. First, the underlying reasoning of the Tribunal’s decision that this element requires “a stable community” was not necessarily straightforward. The Tribunal relied on the fact that its genesis was “inextricably linked with the expansion of coastal state jurisdiction” through the eez.105 It then stated that the expansion of state jurisdiction over adjacent resources was “for the benefit of the coastal state population,”106 referring to various regional declarations made before the Third United Nations Conference on the Law of the Sea (unclos iii).107 Therefore, “human habitation” means “the habitation of a feature by a settled group or community for whom the feature is a home.”108 However, the regional declarations made before unclos iii were a part of resource nationalism, and they indeed emphasized the ties between the waters adjacent to sovereign lands and the people. The exclusive 1 02 Ibid. 103 Ibid. 104 Annex vii Arbitral Tribunal, South China Sea, para. 542-​543. (“Such a community needed not necessarily be large, but for instance, in the case of non-​indigenous inhabitation, the intent of the population must be truly to reside in and make their lives on the islands in question in the case of non-​indigenous inhabitation.”). 105 Ibid, para. 512. 106 Ibid, para. 513. 107 Ibid. para. 514. 108 Ibid., para. 520.

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or preferential rights proposed in these instruments were not necessarily reflected in the final wording of the Convention. In addition, this account may not apply to the continental shelf, which was established before these declarations were issued. Furthermore, the Tribunal characterized Article 121(3) as a provision of limitation for the object and purpose of “preventing encroachment on the international seabed reserved for the common heritage of mankind and of avoiding the inequitable distribution of maritime space under national jurisdiction.”109 The Tribunal did not mention its role in the process of maritime delimitation.110 The same critique goes for the second point –​the interpretation of the term “economic life of their own.” The Tribunal drew its conclusion above from the term “of their own.”111 This stringent condition is tied with the “a stable community” requirement.112 It is almost contrary to the ordinary meaning of the term “or.” It also substantially contradicts the finding that size itself cannot be dispositive of a feature’s status if Paragraph 3 requires the feature to be able to provide water, food, living space, and the resources necessary for an economic and excludes supply from an outside resource. Given that this provision was a compromise resulting from hard negotiation and that many maritime states did not want this clause from the start, it would be contrary to the object and the purpose of the provision to read it in such a way. Most importantly, these requirements do not match existing state practice. When a country has a remote island, it is often the case that there may be no stable community or no economic activities that satisfy the condition laid down in this Award. Nonetheless, the fact that such a remote island is no man’s land or is utilized to conduct economic activities derived from the adjacent area or of a purely extractive nature has almost never been used to disqualify the base point of an eez or a continental shelf.113 In addition, there have been 1 09 Ibid., para. 535. 110 See Barbara Kwiatkowska and Alfred Soons, “Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own,” Netherlands Yearbook of International Law 21 (1990): 139–​81. 111 South China Sea Arbitration, para. 500. 112 Ibid, paras. 496-​497. 113 Examples of islands which potentially do not satisfy the Award’s standard but are used as a basepoint of adjacent maritime spaces include: (1) Clipperton Island (France), (2) Baker Island, Howland Island, Wake Island, Palmyra Atoll, Kingman Reef, Jarvis Island, Papahānaumokuākea Marine National Monument (the United States; it is not a member of unclos but it establishes eez s and continental shelves so that its practice would count), (3) Aves Island (Venezuela), (4) Jan Mayen (Norway), (5) L’Esperance Rock (New Zealand), (6) Clarion and Guadalupe Islets (Mexico), (7) St. Peter and St. Paul Rocks

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cases in which states agreed to give full effect to maritime features that potentially did not satisfy the conditions.114 Therefore, it is fair to say that state practice has not followed this standard. The icj did not refer to this criterion when it had to decide the status of maritime features in the maritime delimitation case between Nicaragua and Costa Rica in 2018.115 1.3.2 The Japanese Government’s Position In contrast to the interpretations made by the icj and the Annex vii Arbitral Tribunal, the Japanese government’s interpretation of Article 121 is summarized as follows.116 The government explained that the maritime features provided under Paragraph 1 of this provision belonged to a different category from those provided under Paragraph 3.117 Once a maritime feature satisfies the conditions of Paragraph 1, then such a feature is fully entitled to the adjacent maritime zones under Paragraph 2. unclos does not define a “rock” because the wording in Paragraph 3 remained ambiguous, and there was no state practice to clarify the meaning of the two conditions of “human habitation” and “economic life of its own.”118 This interpretation signifies that the Japanese government does not endorse the comprehensivenss of Article 121. The Japanese government’s position will be vulnerable if its only basis is this separated approach, because the international jurisprudence supports the integrated approach. Therefore, it is necessary to assess whether each island satisfies the requirements of Article 121(3), namely, capability of sustaining human habitation or economic activities of its own.

(Brazil), (8) Okinotori-​Shima (Japan), (9) Abu Musa, the Greater and Lesser Tunbs and the Hawar Islands (disputed between Iran and uae), (10) the Zuqar Island, Jabal al-​Tair Island and the Al Zubair Group, the Mohabbakahs, the Haycocks and South West Rocks (Yemen, disputed in Eritrea/​Yemen Arbitration). Kwiatkowska and Soons, “Entitlement to Maritime Areas of Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own,” 145. 114 Jonathan i Charney, “Rocks That Cannot Sustain Human Habitation,” American Journal of International Law 93 (1999): 863–​78. 115 In this case, the icj did not recognize Perla Cayos of Nicaragua as a basepoint of the maritime delimitation, stating that it did not satisfy the criteria of Article 121. icj, Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v. Nicaragua), Judgment of February 2, 2018, [2018] icj Reports 139, paras. 112-​113. 116 Ōshima Shōtarō, Director of Economic Bureau, mofa, 145th Diet, hr, Committee of Construction, No. 8 at 20, April 16, 1999; Kitera Masato, Deputy Minister’s Secretariat, mofa,164th Diet, hr, Committee on Foreign Affairs, No. 9 at 8, April 7, 2006. 117 Ōshima Shōtarō, Director of Economic Bureau, mofa, 145th Diet, hr, Committee of Construction, No. 8 at 20, April 16, 1999. 118 Ibid.

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The interpretation of Article 121 started to have a practical significance after China, Taiwan, and rok began to claim that Okinotori Island is not an island that generated an eez and a continental shelf in the early 2000s.119 The island is made of coral reefs, with about 11 km of coastline. It is 4.5 km wide from east to west and 1.7 km in length from north to south. It is on the Palau-​ Kyūshū Ridge in the Philippine Sea, 1740 km south of Tokyo. There were six islets at high tide in 1931, when it was incorporated in Japanese territory, but today there remain only two small atolls, i.e., Kita-​kojima and Higashi-​kojima. The corals surrounding them are regarded as fringing reefs under Article 6 of unclos, and the seaward low-​water line of the reef is designated as the baseline for measuring the territorial sea’s breadth. Major typhoons pass through this area and severely damage its coastal lines. Since 1987, the Japanese government has started to cover the islets with concrete to protect them from further deterioration. This island has been used for research activities both for scientific purposes and to support fishery activities in the area. The Japanese Agency for Marine-​Earth Science and Technology (jamstec) has led meteorological observation and scientific research on the coral reefs and seabed resources since 1993. The government started to operate a lighthouse in the coral reef in 2007.120 It further tried to build a pier, but it has not been successful.121 Some Japanese commentators argued that the condition “economic life of its own” included productive activities, including the development of natural resources, the support of navigation by constructing lighthouses and other facilities, as well as the establishment of protected marine areas, which would invite an increase in fishing activities and tourism.122 Therefore, according to such an explanation, the maritime entitlement of Okinotori Island may be

119 According to the jcg’s report, four Chinese msr vessels conducted operation in the eez surrounding Okinotori Island. The rok and Taiwan also active, but they tend to enter into eez in East China Sea. See jcg, Press Release, https://​www.kaiho.mlit.go.jp/​info/​top​ics/​ . See also Kaji, “Okinotorishima Wo Meguru Shomondai to Nishitaiheiyo No Kaiyo Anzen Hosho [Issues Concerning Okinotori Island and Maritime Security of West Pacific Ocean] (Japanese),” 128. 120 Kaji, 132. 121 On March 30, 2014, a pier that was to be constructed was overturned and seven workers died because of the accident. Asahi Shinbun, March 30, 2014. 122 Moritaka Hayashi, “Shima /​Iwa Ni Tsuiteno Kokusaiko Seido [International Law Regime on Islands and Rocks](Japanese),” in Okinotorishima No Iji Saisei Ni Kansuru Chosa Kenkyu [Research on the Maintenance and Recovery of the Okinotori Island], ed. The Ocean Policy Research Foundation, 2007, 10–​21.

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justified under Paragraphs 1 and 2 of Article 121, and the island may satisfy the requirements under Paragraph 3.123 However, other countries do not appreciate these efforts and justification. Since the early 2000s, China has officially tried to disqualify this maritime feature. In December 2003 and April 2004, during negotiations regarding these activities, China’s representatives insisted that Okinotori Island was a rock in the terms of Article 121(3).124 China continues to conduct marine scientific research within the eez surrounding the island. The Chinese government has expressed its position that it does not have to obtain prior authorization from Japan because the maritime area is the high seas.125 In 2008, Japan requested the Commission on the Limits of the Continental Shelf (clcs) to extend the continental shelf. In February 2009, China claimed that Okinotori Island is “in fact a rock as referred to in Article 121(3) of the Convention,” so that it is not in accordance with the Convention to include the “rock of Oki-​no-​Tori” in Japan’s submission.126 South Korea also made a statement of the same nature.127 When the Commission made its recommendation in 2012,128 it deferred making a recommendation in relation to the Southern Kyūshū -​Palau Ridge Region (kpr). The only base point was Okinotori Island until such time as the matters referred to in the notes verbales were resolved.129

123 The government stated that the definition of “rock” is not clear under international law. Horiguchi Matsuhiro, mofa, Director of Economic Bureau, 109th Diet, hr, Committee on Agriculture, Forest and Aquaculture, No. 10 at 34, September 17, 1987; Yachi Shōtarō, 136th Diet, hc, Special Committee on unclos, No 3 at 30, June 4, 1996. 124 Yabunaka Mitoji, mofa Director of Asia Pacific Bureau, 159th Diet, hr, Committee of Foreign Affairs, No. 13 at 6, April 23, 2004; Nishimiya Shinichi, mofa Deputy Director-​ General, 162nd Diet, hc, Foreign and Defense Committee, No. 13 at 6, June 2, 2005. 125 See Foreign Ministry Spokesperson Lu Kang’s Regular Press Conference on January 2, 2019. 126 cml/​2 /​2 009, February 6, 2009. 127 mun/​0 46/​0 9, February 27, 2009. 128 clcs.13.2008.los (Continental Shelf Notification), November 19, 2008. 129 Yasuhiko Kagami, Kentaro Nishimoto, and Yumi Nishimura, “Issues Regarding the Recommendations of the Commission on the Limits of the Continental Shelf on the Submission by Japan,” ssrn Electronic Journal, 2016, http://​ssrn.com/​abstr​act=​2740​277. Kagami et al argues that such a deferral is not justified under the Commission’s Rules of Procedure, because the question with regard to the legal status of Okinotori Island is not the dispute provided for in Annex i, Paragraph 5(a). The same paragraph is inconsistent with the provisions of unclos, notably Article 76(8), which limits the mandate of the clcs. The rule was revised, because it created unnecessary burdens on the Commission by making it susceptible to use as a convenient forum to advance political and legal claims between States, an outcome that lies outside the Commission’s mandate.

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The clcs, in fact, recognized the extended continental shelf of the Shikoku Basin Region (skb) based on Okinotori Island.130 These decisions of the clcs are not relevant to the disputes over Okinotori Island in legal terms because the clcs does not have the authority to decide the legal status of the maritime feature in the first place. However, the decision made by the clcs shows the actual repercussion of the claims made by China and rok. A dispute between Japan and Taiwan occurred in the context of Japan’s exercise of its sovereign right. In the 2000s, Taiwanese fishery boats started to operate within the eez surrounding Okinotori Island in contravention of Japanese laws. The jcg had customarily evicted these vessels from those waters. In October 2005 and June 2012, the jcg arrested Taiwanese fishery boats, and the Taiwanese government paid the deposit to secure their release on both occasions.131 In April 2016, the coast guard detained the Tung Sheng Chi No. 16, a tuna boat registered in Taiwan with a captain and nine crew members, and towed the boat to Iwo Jima.132 The vessel was operating a fishery 150 nm off Okinotori Island. The vessel’s owner paid a security deposit of $54,400 with the help of the Taiwanese government. The Taiwanese government’s reaction was tough this time, and it even suggested bringing the case before a judicial institution.133 The Japanese government claimed that Taiwan should immediately remove its vessels from the zone.134 After Tsai Ing-wen took her office in May 2016, Taipei shifted its position that it would not take any specific legal stance on this issue.135 As described in Chapter 3, Section 3.3, China has newly established the ccg Act, which obliges the ccg to monitor the Chinese vessels’ msr.136 It is possible that a Chinese vessel could conduct msr within the eez of Okinotori

130 Ibid., para.158. The report stated that “[t]‌he submerged prolongation of the land mass of Japan in this region extends from the land territories on the Izu-​Ogasawara Arc to the east and the Daito Ridge and the Kyushu-​Palau Ridge in the west. In this regard, Japan refers explicitly to the following land territories: … Oki-​no-​Tori Shima Island on the Kyushu-​ Palau Ridge.” 131 Kaji, “Okinotorishima Wo Meguru Shomondai to Nishitaiheiyo No Kaiyo Anzen Hosho [Issues Concerning Okinotori Island and Maritime Security of West Pacific Ocean] (Japanese),” 132. 132 Taipei Times, April 26, 2016, at 1. 133 Ibid. 134 Press Conference by Foreign Minister Kishida Fumio, Tuesday, May 10, 2016, 8:50 a.m., Front Entrance Hall, Prime Minister’s Office. 135 Taiwan Today, May 24, 2016. See also Tinghui Lin, “Okinotori,” Asia Maritime Transparency Initiative. June 17, 2016. 136 ccg Act, Article 12(5).

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Island and that ccg would follow such activity. Yet, when such msr is carried out without Japan’s consent, the jcg will be put in a difficult position. It either has to arrest the operating vessel in order to implement the Japanese law and trigger a diplomatic dispute or to let the vessel violate Japanese law. In order to avoid such a conflict, its maritime entitlement has to be justified under the international law. 1.3.3 Management of the Islands Against the background of these disputes, Japan started to promote the development of its remote islands (ritō), which are the islands beside the Mainland (Honshū), Hokkaidō, Kyushū, Shikoku. It started with the Law on the Maintenance of the Sea Lane to the Isolated Island of 1952,137 which allocated subsidies to maintain and improve these isolated islands’ shipping routes. The Act on the Promotion of the Isolated Islands of 1953 was established to protect the remote islands.138 These Acts were designed to promote the domestic municipality policy by securing the local communities. However, after the rapid economic growth in the late 1950s, the population and industry concentration in the major cities on the mainland did not stop. These laws could not prevent local people from moving out.139 In the southern part of Japan, while the Izu Islands, Oki, Tsushima, Amami Islands, and the Tokara Island chain remain inhabited, Iwo Jima, Minamitori Island, and Okinotori Island are controlled by the government, and remain uninhabited. In 2007, when Japan enacted the Basic Act on Ocean Policy,140 preserving remote islands was upheld as one of the significant agendas for the Japanese maritime strategy for systematic and integrated management. In 2010, the Diet enacted Act on Facilitation of Law-​Water Line and Facilities for the Preservation and Promotion of the Use of Exclusive Economic Zone and Continental Shelf .141 In its enforcement order, the government designated 185 remote islands that formed the basepoints of its eez as required to preserve its low-​water line, and 99 islands, among which are the basepoints that

1 37 Act No. 226 of 1952. 138 Act No. 72 of 1953. 139 It is reported that more than 100 islands became a no-​man’s land in the post-​World War ii period. Kio Urano, Nihon No Kokkyo: Bunseki, Shiryo, Bunken (Sanwa Shoseki [Japanese], 2014), 115. 140 Act No. 33 of 2007. See Naoya Okuwaki, “Basic Act on Ocean Policy and Japan’s Agendas for Legislative Improvement, The,” Japanese Yearbook of International Law 51 (2008): 182. 141 Act on Facilitation of Law-​Water Line and Facilities for the Preservation and Promotion of the Use of Exclusive Economic Zone and Continental Shelf, Act No. 41 of 2010.

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form the outer limit of the baseline of eez.142 The islands included a part of the Senkaku Islands (Kuba Island and Taishō Islands). Still, they did not include Takeshima and the Northern Territories, where the government could not conduct the survey. This law also defined a “designated remote island” (Tokutei Rito) as an island for which the facilitation of the basepoint is specifically important for the preservation and use of the eez.143 The Enforcement Order designated the Okinotori Island and Minamitori Island.144 Minamitori Island is Japan’s easternmost island, which is located on the Pacific Plate and is 1,850 km southeast of Tokyo. It is the only island that forms the sole basepoint of the Japanese eez. The United States once controlled the island under the San Francisco Peace Treaty. The island was returned to the Japanese government in 1968, but the United States retained control of the long-​range navigation transmission station. The station was transferred from the ​U S Coast Guard to the jmsdf in 1993. In April 2016, the Diet passed an act to protect remote islands on the borders to promote human habitation on the remote islands by limiting the financial costs of transportation to those islands, creating employment, and stabilizing the fisheries and other activities.145 The primary purpose of this law was to prevent further population outflow from the remote islands. This bill’s sponsor specifically intended to sustain local communities on the basepoints of the territorial sea and the eez from a national defense perspective.146 These measures were to deter suspicious vessels’ actions and attempts by foreigners to land on the remote islands, too.147 On the other hand, the sponsor mentioned that there was no intention to invite territorial conflicts with neighboring states.148 To this date, it seems that the Japanese government has not shown a comprehensive policy for the maritime security in the areas surrounding the remote islands.

1 42 143 144 145

Enforcement Order No. 157 of 2010, Annex, Article 2. Act No. 41 of 2010, Article 2(3). Enforcement Order No. 157 of 2010, Article 1. Special Measures Law on Protection of the Remote Islands on Borders and the Maintenance of the Local Community within Certain Remote Islands, Act No. 33 of 2016. 146 Takebe Arata, Member, 190th Diet, hc, Cabinet Committee, No. 11 at 1, April 19, 2016. 147 Ibid. 148 Ibid.

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Maritime Boundary Disputes and Provisional Arrangements with Neighboring States

Maritime boundary disputes and provisional arrangements with neighboring states have been significant problems in post-​war relationships between Japan and the rok, China, the Soviet Union, and Taiwan. The disputes were mixed with disagreements over maritime boundary delimitation. The provisional arrangements on exploiting natural resources with these countries as provided under unclos Articles 74(3) and 83(3) have been an important part of Japan’s ocean management policy. This section will overview the existing practice. Its purpose is not to get into the detail of each dispute but rather to highlight the diplomatic interaction and the national interests of each state behind its negotiations in the post-​World War ii period. 2.1 The Republic of Korea 2.1.1 Fishery Management The first post-​World War ii conflict over fishery management in the Sea of Japan and East China Sea between Japan and the rok began when the rok’s first president, Rhee Syngman, declared a so-​called Peace Line or Syngman Rhee Line on January 18, 1952.149 The declaration was to claim the rok’s sovereign rights over the continental shelf and water above it within the line. According to the memoire of Kim Dong-​Jo, the former secretary of the foreign ministry, the rok government intended to target Japanese vessels against the backdrop of a dispute over Takeshima, which Japan never conceded in the negotiation process of the San Francisco Peace Treaty.150 In January 1953, the rok’s maritime police started to seize Japanese fishery vessels operating within the declared line.151 Between 1952 and 1964 a total of 232 Japanese trawlers were seized within the area, 3,904 Japanese fishermen were arrested, and

149 Presidential Proclamation of Sovereignty over Adjacent Seas, January 18, 1952, translated in 8 unls 14 (1959). 150 Dong-​Jo Kim, Kannichi No Wakai: Nikkan Kōshō Jūyo Nen No Kiroku [Korea-​Japan Reconciliation] (Simul Publishing Association, 1993), 40. The rok government secretly notified the US, China, and Italy that it would not target their vessels. 151 Shigeru Oda and Hisashi Owada, “Annual Review of Japanese Practice in International Law 1961 and 1962,” Japanese Annual of International Law 8 (1964): 127. See also Choon-​Ho Park, “Fishing under Troubled Waters: The Northeast Asia Fisheries Controversy,” Ocean Development & International Law 2 (1974): 103.

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2,784 of them served terms ranging from a few months to more than one year for their intrusion into the space delimited by the Rhee Line.152 The dispute continued until the two states came to the Agreement concerning Fishery Management of 1965,153 which provided that both states had the right to establish fishery zones extending no more than 12 nm from their respective baselines.154 The states parties found a joint control zone in the southern part of the Sea of Japan and off the Korean coast.155 Vessels within the zone were to be subjected to the exclusive jurisdiction of their flag state.156 While the agreement did not refer to the Rhee Line, it was the Japanese government’s position that the line was not compatible with the new agreement.157 In addition, because Japan never recognized the line, which was illegal under international law, the government gave no explicit reason for abolishing it under the agreement.158 Fishery management under the 1965 Agreement eventually turned out to be dysfunctional. When both Japan and rok established their 12 nm territorial seas in 1977, the agreement lost its practical application except in the Tsushima Strait, where both countries maintained 3 nm territorial seas.159 In addition, the modernization of fishery activities in both states brought about the over-​ exploitation in the Sea of Japan. For Japanese fishermen a serious concern arose when many Korean fishery vessels left fishing gear, such as gill nets, pipes, and baskets, in the fishery zone, which caused the serious deterioration of the fishing environment. In 1980, the two states began to take voluntary fishing regulation measures under a self-​regulatory scheme but with little effect.160

152 Shigeru Oda, “The Normalization of Relations between Japan and the Republic of Korea,” American Journal of International Law 61 (1967): 35, 51. 153 Agreement between Japan and the Republic of Korea concerning Fisheries, signed on June 22, 1965, 4 ilm 1128 (1965). 154 Ibid., Article 1(1). 155 Ibid., Article 3. (The provisional regulation measures govern dragnet fishing, seine fishing and mackerel-​angling by vessels of over 60 tons, until such time as conservation measures necessary to maintain maximum sustained productivity of fishery resources were to be implemented on the basis of scientific surveys.). 156 Ibid. For a concise overview of this agreement, see Oda, “The Normalization of Relations between Japan and the Republic of Korea,” 52. 157 Shiina Estusaburō, Minister of Foreign Affairs, 50th Diet, hr, Special Committee on Korean Problems, No. 3 at 5, October 26, 1965. 158 Takatsuji Masami, Director General, the Cabinet Legislative Bureau, 49th Diet, hr, Standing Committee on Budget, No. 2 at 24, August 4, 1965. 159 See Akaha, “From Conflict to Cooperation: Fishery Relations in the Sea of Japan,” 250. 160 Mizukami, Nihon to Kaiyoho ( Japanese), 101.

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When both Japan and the rok ratified unclos in 1996 and established their eez s, the two states agreed to amend the 1965 Agreement and recognize each coastal state’s exclusive sovereign rights within its eez. Negotiations for a new treaty started in May 1996. However, the negotiations soon reached deadlock.161 The Korean government insisted that it should delimit the maritime area first and then conclude the fishery agreement so as not to alter the previous maritime regime. The Japanese government opposed this proposal, claiming that a new fishery agreement was urgently necessary, whereas maritime delimitation would take time.162 In addition, the rok insisted that Takeshima, a barren islet of 0.23 square kilometers, contained neither an eez nor a continental shelf, as it was a rock under Article 121(3). Therefore, the islet could not be the basepoint for delimitation. Some assumed that the Korean government had made this argument because, if the boundary line were drawn so as to disregard Takeshima, the island would be located within the Korean eez.163 In the end, the rok withdrew its proposal in 2006.164 For once, the two states parties agreed that the new fishery agreement should be independent of maritime delimitation and that they would establish a provisional maritime area. However, further fundamental differences remained in terms of the provisional area’s scope and the assured catch under the provision.165 Against this backdrop, the Liberal Democratic Party, the ruling party, required the government to terminate the 1965 Agreement in 1997, and it did so in January 1998.166 The Korean government strongly reacted against this notification and started to operate off Hokkaidō’s coast.167 In the April summit meeting, the two governments decided to restart negotiations, focusing on resource management within the provisional area.168 Prime Minister Obuchi Keizō pushed hard to conclude the agreement, which was finally reached at the end of the same year.169 The Agreement provided that each state party would

161 For the background to the negotiation process, see also Park Hee Kwon, The Law of the Sea and Northeast Asia: A Challenge for Cooperation, 2000, 57. 162 Mark J. Valencia, A Maritime Regime for Northeast Asia (Oxford University Press, 1996), 255. 163 Ichiro Komatsu, Jissen Kokusaiho, ed. Tomohiro Mikanagi, 2nd ed. (Shinzansha [Japanese], 2015), 135. See Yachi Shōtarō, Minister of Foreign Affairs, Secretariat Deputy Director, 136th Diet, hc, Committee on Foreign Affairs, No. 8 at 11, May 17, 1996. 164 Komatsu, Jissen Kokusaiho, 136. 165 Ibid. 166 Ibid. 167 Ibid. 168 Ibid. 169 Agreement on Fisheries between the Republic of Korea and Japan, signed on November 28, 1998, entered into force on January 22, 1999, Treaty No. 3 of 1999.

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allow the other state’s nationals to operate within its eez. In addition, two provisional zones were established in the southern part of the Sea of Japan, which contained Takeshima, and in the northern part of the East China Sea.170 The states parties did not delimit the maritime area, but they deemed the continental shelf’s delimitation line under the 1974 Delimitation Agreement to be the limit of each state’s eez.171 2.1.2 Continental Shelf The conflict over the overlapping continental shelf between Japan and rok started in the early 1970s.172 As stated in the previous section, Japan began to permit oil exploitation at the end of the 1960s. In 1970 South Korea also proclaimed its Submarine Mineral Resources Development Law173 and its Enforcement Decree,174 under which the government gave licenses to oil companies for mining the seabed. However, the blocks that the rok authorized partially overlapped with the continental shelf claimed by Japan. As the Korean government started to sign contracts with oil companies to exploit the area, Japan strongly opposed these unilateral measures.175 Both countries agreed in November 1970 to set up a working group to settle the conflict, but only in vain.176 Instead, the governments started a ministerial meeting in 1972, at which Japan accepted the joint development approach without getting into the maritime delimitation issue.177 At that time, a fundamental difference between the two countries over the continental shelf’s delimitation methods became evident. The Korean government insisted that the natural prolongation theory should be the basis of the continental shelf. Accordingly, it claimed its maritime entitlement up to the Okinawa Trough. The Japanese government opposed such an interpretation, arguing that the median line should be the negotiations’ starting point. 1 70 Ibid., Article 9. 171 Agreement Between Japan and The Republic of Korea Concerning the Establishment of Boundary in the Northern Part of The Continental Shelf, signed on January 30, 1974, entered into force on June 22, 1978, 1225 unts 103. 172 Pak, The Korean Straits, 43. See also Oude Elferink, The Law of Maritime Boundary Limitation: A Case Study of the Russian Federation, 303. 173 Submarine Mineral Resources Development Law, Law No. 2184, January 1, 1970. 174 Presidential Decree No. 5020, May 30, 1970. Against this background was the issurance of United Nations Economic Commission for Asia and The Far East Committee for Co-​ordination of Joint Prospecting for Minteral Resources in Asian Offshore Areas (Report of The Sixth Session), May 13-​27 1969, E/​CN.11/​L.239. 175 Pak, The Korean Straits, 44. 176 Ibid. 177 Ibid.

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In 1974, the parties reached two agreements. One was to delimit the continental shelf between Kyūshū Island and the southeastern part of the Korean Peninsula (the 1974 Maritime Delimitation Agreement). It is the only maritime delimitation agreement that Japan concluded, and the delimitation is based upon the median line principle. The other was to establish a joint development (the 1974 Joint Development Agreement).178 The southern terminal point of the continental shelf boundary under the 1974 Maritime Delimitation Agreement was on the northern limit of the joint development zone under the 1974 Joint Development Agreement. The most difficult part of the negotiation over this agreement was over one of the mining blocks, which was wholly located on the median line’s Japanese side. It was estimated to have rich oil deposits. The inclusion of the block in the joint development area was a concession Japan made.179 The Chinese government immediately protested against the Joint Development Agreement. The Japanese government persuaded the Chinese government that the joint development zone had been restricted within the Korean and Japanese sides of the hypothetical equidistance lines between the rok, Japan, and China.180 However, the joint development zone turned out to be commercially unviable, and development has been halted. The differences concerning the methods of delimitation have not been ironed out. In 1996, when both states ratified unclos, the governments held a meeting for maritime delimitation but could not reach an agreement. In 2012, South Korea submitted the continental shelf’s outer limit to the clcs, stating that it extended to the Okinawa Trough.181 Japan immediately opposed the submission, and the Commission deferred its recommendation.182 The 1974 Joint Development Agreement will expire in 2028, but the governments does not seem to have started negotiations for its renewal.

178 Agreement Concerning Joint Development of The Southern Part of The Continental Shelf Adjacent to The Two Countries, signed on January 30, 1974, entered into force on June 22, 1978, 1225 unts 113. 179 Miyoshi, “The North Sea Continental Shelf Cases Revisited: Implications for the Boundaries in the Northeast Asian Seas,” 196. 180 For the background, see Sun Pyo Kim, Maritime Delimitation and Interim Arrangements in North East Asia, 2004, 284; Clive Schofield, “Defining Areas for Joint Development in Disputed Waters,” in Recent Developments in the South China Sea and Prospects for Joint Development, ed. Shicun Wu and Nong Hong, 2014, 87. 181 clcs/​8 0 at 14, December 24, 2012. 182 sc/​1 3/​0 19, January 11, 2013.

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2.2 China 2.2.1 Fishery Management Japan and China started to discuss fisheries within the East China Sea as early as in the 1950s,183 although they did not begin official diplomatic relations until 1972.184 The two non-​governmental representatives, the Japan-​China Fisheries Council and the China Fisheries Association, reached the first fishery agreement in June 1955.185 These agreements established fishing zones beyond the territorial seas of each state. They regulated the operational conditions in these zones, including the maximum number of fishing vessels, fishing periods, and the mesh size of fishing nets. The governing principle was the flag state principle. They also established a joint commission, which helped to implement the agreement. Two agreements in 1963186 and 1965187 followed to consult over Japanese fishing vessels conducting excessive fishery activities off China’s coast. The two countries officially started to negotiate a formal agreement over the management of the East China Sea in 1972, immediately after they resumed diplomatic relations. The Fishery Agreement was concluded in August 1975,188 and the basic framework of the agreement was the same as that of the 1955 Agreement. It was the establishment of the eez that changed the basis of fishery management between the two states. Japan no longer had fishery rights in the Yellow Sea after China and South Korea established a 200 nm maritime zone. There was also a change in the fishery industry in each state. Japanese fishermen lost their power as the country became industrialized, and the pelagic fisheries were no longer tenable in the era of unclos. In contrast, Chinese fishermen increased their presence in the East China Sea. Therefore, the two states started to renegotiate a new fisheries agreement in 1995.

183 For the history of the bilateral relationship on fishery management in the East China Sea, see Keyuan Zou, “Maritime Issues between China and Japan and the Prospect for Resolution,” China Oceans Law Review 2010, no. 12 (2010): 152–​74. 184 See Hisashi Uchida, “Legal Aspects of Japan-​China Trade between 1949 and 1975,” Japanese Annual of International Law 19 (1975): 39–​79. 185 Japan-​Sino Fishery Agreement in the Private Sector, signed on April 15, 1955, reprinted in Nicchu Kankei Kihon Siryo Shu 65–​77 (Ministry of Foreign Affairs ed., 1970). 186 Memorandum of Understanding on Japan-​Sino Fisheries between Japan China Fisheries Council and China Fisheries Association, signed on January 22, 1963, reprinted in 529 Ajia Keizai Shunpo 26 (1963). 187 Japan-​Sino Fishery Agreement in the Private Sector, signed on December 17, 1965, reprinted in Nicchu Kankei Kihon Siryo Shu 255–​269 (Ministry of Foreign Affairs ed., 1970). 188 Fishery Agreement (with annexes, exchange of notes and agreed minutes), signed on August 15, 1975, 1103 unts 3.

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The record shows that maritime delimitation was on the negotiating table when the new fishery treaty was being negotiated.189 In 1996, both countries’ foreign ministries found it challenging to agree on the maritime boundary because of the fundamental difference in understanding delimitation principles.190 Japan insisted that the median line should be the basis of the negotiation. Yet China emphasized that the equitable principle and the natural prolongation theory should be the basis for the continental shelf. Furthermore, declassified material shows that while China insisted on delimiting the maritime area before any fishery agreement, Japan contended that they needed to decide on the fishery agreement first because they would disagree on maritime delimitation.191 They finally reached an agreement in September 1997. The two parties agreed to grant each other’s nationals and fishing vessels the right to conduct fishery activities in their eez s based on the principle of reciprocity. The vessels were to comply with the coastal state’s fishery laws.192 Against the backdrop of the dispute concerning the territorial title to Senkaku Island, the two countries established the Provisional Measures Zone at the northern part of the islets. The northern limit of this zone was the equidistance line from Japan, China, and rok.193 Its southern boundary was decided so that it did not overlap with the claim of Taiwan.194 The eastern and western lines were a 52 nm limit measured from the baselines of both coasts.195 China demanded to set the zone as wide as possible so that Chinese vessels could operate off the coast close to Japan, whereas Japan wished the zone to be as narrow as possible.196 The Provisional Measures Zone management was mandated to the Japan-​Sino Fishery Joint Committee to decide the total catch of the fishery resource and appropriate management measures to protect marine resources.197 The two states have exclusive jurisdiction over their nationals and fishery vessels.198 189 mofa and Fisheries Agency, Kaiyoho oyobi Gyogyo no Mondai ni Kansuru Nicchu Kyogi no Kekka Gaiyo [Summary of Japan-​Sino Consultation over Law of the Sea and Fisheries], December 6, 2000 (unpublished document, on file with the mofa). 190 Ibid. 191 mofa, Asian Affairs Bureau, China Division, Kaiyoho no Mondai ni Kansuru Nicchu Kyogi (Gaiyo) [Japan-​Sino Consultation over Issues on Law of the Sea], August 21, 1998 (unpublished document, on file with the mofa). 192 Fishery Agreement, Article 2. 193 Anami Koreshige, 142nd Diet, hr, Committee of Foreign Affairs, No. 9 at 4, April 17, 1998. 194 Ibid. 195 Ibid. 196 Ibid. 197 Fishery Agreement, Article 7. 198 Ibid.

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The Diet of Japan approved the treaty in January 1999. However, China refused to ratify the treaty, claiming that the northern part of the Provisional Measures Zone, a bed for rich natural resources, should also be included in the joint management area. The Agreement did not initially include the site. Moreover, it overlapped with the Intermediate Zone established under the Japan-​Korea Fishery Agreement of 1998. In February 2000, both countries declared the area a Median Zone, a concession Japan made, and decided to allow each other’s nationals to conduct fisheries without a license from the coastal state. Fishery management between the two countries entered a new phase in a few different ways after the conclusion of the bilateral treaty. First, the management of the Provisional Measures Zone turned out to be unsuccessful. The concern is growing that Chinese fishery vessels conduct tiger net fishing, which harms fishery resources, such as mackerel and horse mackerel.199 Second, flag state responsibility within the Japanese eez has become part of the negotiation agenda. Illegal coral poaching, mainly by Chinese or Taiwanese ships, in the eez surrounding the Ogasawara Islands of the Tokyo Metropolis (located 1,000 km south of the mainland Tokyo), the Gotō Islands in Nagasaki Prefecture, and the Miyako Island in Okinawa Prefecture had also become a serious issue. Notably, after October 2014, the number of vessels sharply increased.200 It was against the background that the price of red coral has risen sharply in recent years. Under Chinese domestic law, red coral is also protected as an endangered species, and it is prohibited to exploit it.201 However, Chinese authorities have not taken effective measures to prevent fishermen from poaching in the Japanese eez. Lastly, according to the United Nations Expert Panel’s report on Sanctions against the dprk, published in January 2019, the dprk has sold fishing rights to Chinese fishery operators, violating the UN Security Council’s resolutions, to acquire foreign currency. It has been reported that Chinese fishing boats flew the dprk’s national flag to disguise their identity and entered the undelimited area between Japan and the dprk. However, so far, no effective measures to prevent such operations have been taken.

1 99 Komatsu, Jissen Kokusaiho, 149. 200 Asahi Shinbun, November 17, 2014. (It was reported that 212 Chinese vessels were in operation in waters surrounding Ogasawara Islands on October 30, 2014. On November 17, two Chinese fishermen were arrested off the coast of Kagoshima, for the first time during this period.). 201 For details on Chinese law on its fishery regulation in distant waters, see Guifang Xue, China and International Fisheries Law and Policy, 2005, 136.

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2.2.2 Continental Shelf The dispute over the continental shelf of the East China Sea is another primary concern.202 In June 2004, China started to develop the Shirakaba (Chunxiao in Chinese) oil-​gas field, which straddled the equidistance line between the two states. The Japanese government protested this development in order to halt the operation via the diplomatic route in vain. There has been a difference between Japan and China over methods of delimiting the continental shelf. The Chinese government has insisted that the natural prolongation of its continental shelf extends to the Okinawa Trough and that the unique features of the East China Sea –​such as the natural prolongation of the continental shelf and contrasting geographic formulations of the continent of China and the islands of Japan –​should be taken into consideration. In contrast, the Japanese government has maintained that the median line should be the basis for maritime delimitation in the light of the relevant provisions of unclos and international jurisprudence. Boundary delimitation based on the geographical equidistance line is the equitable solution in the delimitation of the maritime area.203 In contrast, with the negotiation between Japan and the rok, Japan and China negotiated unclos regime’s boundary. The major differences between unclos and the previously existing international law rules are twofold. First, unclos modified its definition of the continental shelf so that a coastal state was entitled to claim the 200 nm regardless of the geomorphology of the seabed.204 Second, whereas the Continental Shelf Convention provided that the median line should be the maritime boundary unless special circumstances justified another boundary line,205 unclos provided that maritime delimitation should be effected by agreement based on international law, as referred to in Article 38 of the icj Statute, which included relevant international case law.206 Instead of agreeing on the boundary, the two states came to two understandings regarding the use of the East China Sea in 2008. The first Understanding of 202 See in general Shigeki Sakamoto, “Japan-​ China Dispute over Maritime Boundary Delimitation,” Japanese Yearbook of International Law 51 (2008): 98–​118; Yumi Nishimura, “Nicchū Tairikudana No Kyōkai Kakutei Mondai to Sono Shori Hōsaku [The Problems Concerning the Delimitation of the Continental Shelf between Japan and China and The Ways for Its Resolution](Japanese),” Jurist 1321 (2006): 51–​58. 203 mofa, Press Release: Japan’s Legal Position on the Development of Natural Resources in the East China Sea, August 6, 2015. 204 unclos, Article 76(1). 205 Continental Shelf Convention, Article 6(1). 206 unclos, Articles 74(1) and 83(1).

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the Japan-​China Joint Development in the East China Sea207 provided that both sides would conduct joint development at the sites based on mutual benefit. The second Understanding on the Development of the Shirakaba Oil and Gas Field208 provided that Chinese enterprises would welcome Japanese corporations’ participation under Chinese laws regarding cooperation with foreign enterprises to explore and exploit offshore petroleum resources in developing the existing Shirakaba oil and gas field. The consultation on these two agreements was never held because immediately after these understandings were concluded, the two states’ political relations hit bottom.209 In addition, China took the position that other oil-​gas fields such as Pinghu, Baijiating, and Tianwaitian, which lies on the Chinese side of the median line, were never the subject of consultations under these understandings.210 In the early 2010s, China accelerated its development of oil and gas on the Chinese side of the geographical equidistance line of the East China Sea. In 2015, the Japanese mofa announced that there were 16 structures on the overlapping continental shelf. Japan protested against China’s exploitation and requested it to cease its activities and resume negotiations to implement the joint development agreements concluded in 2008, which China ignored. In addition, in 2012, Chinese officials submitted to the clcs that it should extend the continental shelf up to the Okinawa Trough.211 The Japanese immediately opposed the submission,212 and the commission deferred its decision. Legal questions are twofold. The first is whether China’s exploitation infringes Japanese sovereign rights under Article 76 of unclos. Since Japan never renounced its maritime entitlement up to 200 nm from its coast, the exploitation seemingly violates its rights. However, in Ghana v. Côte d’Ivoire, Côte d’Ivoire requested itlos to adjudge and declare the activities undertaken unilaterally by Ghana in the Ivorian maritime area to constitute a violation

207 The agreement was written in Japanese and Chinese. An unofficial English translation of mofa is reprinted in Moritaka Hayashi, “The 2008 Japan-​China Agreement on Cooperation for the Development of East China Sea Resources,” in Maritime Border Diplomacy, ed. Myron H. Nordquist and John Norton Moore, 2012, 38. 208 Ibid., 43. 209 Ibid., 45. 210 Gao Jianjun, “A Note on the 2008 Cooperation Consensus Between China and Japan in the East China Sea,” Ocean Development & International Law 40, no. 3 (2009): 291–​303; Xinjun Zhang, “Why the 2008 Sino-​Japanese Consensus on the East China Sea Has Stalled: Good Faith and Reciprocity Considerations in Interim Measures Pending a Maritime Boundary Delimitation,” Ocean Development & International Law 42, no. 1–​2 (2011): 53–​65. 211 clcs/​8 0, 12, December 14, 2012. 212 sc/​1 2/​3 72, December 28, 2012.

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of its exclusive sovereign rights over its continental shelf.213 In the end, the Tribunal held that “maritime activities undertaken by a State in an area of the continental shelf which has been attributed to another State by an international judgment cannot be considered to violate the sovereign rights of the latter if those activities were carried out before the judgment was delivered and if the area concerned was the subject of claims made in good faith by both States”214 and rejected the claim. If one applies the same test to the East China Sea, there is a room for China to argue that their exploitation does not violate Japanese sovereign rights. The second is whether China’s development violates Article 83(3) of unclos, prohibiting, hampering, or jeopardizing the final reach toward a maritime delimitation agreement. While this provision may be interpreted in many ways, there seems to be a consensus that this obligation is result-​oriented and inherently context-​dependent.215 In Guyana v. Suriname, the Annex vii Arbitral Tribunal made a distinction between “activities of the kind that lead to a permanent physical change, such as exploitation of oil and gas reserves, and those that do not, such as seismic exploration.”216 This distinction may be one of the elements to evaluate the legality, but there may be other activities that may violate this obligation.217 Therefore, it is difficult to reach a definitive assessment at this stage. Yet, the Japanese government continues to protest against the unilateral development of the continental shelf where it has entitlement. 2.3 The Soviet Union /​Russia The post-​World War ii conflict over fishery management in the Behring Sea began as early as in 1945,218 immediately after the Soviet Union occupied the Kurile and Northern Islands in contravention of the Neutrality Pact of 1941.219 Japan renounced its territorial title over the Kurile Islands under the San 2 13 itlos, Ghana v. Cote d’Ivoire, para. 561. 214 Ibid., para. 592. It is noted that Côte d’Ivoire did not dispute the legality of Ghana’s operations in the whole undelimited area, but instead, claimed the “Ivorian maritime area.” 215 See itlos, Ghana v. Cote d’Ivoire, Separate Opinion, Judge Paik, para. 8. 216 Annex vii Arbitral Tribunal, Guyana v. Suriname, para. 467. 217 Section 1.1.3. See also British Institute of International and Comparative Law, “Report on the Obligation of States under Articles 74(3) and 83(3) of unclos in Respect of Undelimited Maritime Areas,” 2016, 114. 218 For the historical development of the fishery regulation in this area, see Ōhira, “Fishery Problems between Soviet Russia and Japan.” 219 Neutrality Pact between Empire of Japan and Soviet Union, signed on April 13, 1941, entered into force on April 25, 1941.

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Francisco Peace Treaty,220 but continued to claim its sovereignty over the four northern territories, which comprised approximately 196,000 square kilometers of jurisdictional waters with rich fishery resources.221 One of the main agendas in 1956 was the regulation of the exploitation of fishery management.222 Fishermen in the Hokkaidō and Sanriku areas resumed their Northwest Pacific fishery operations immediately upon the conclusion of the San Francisco Peace Treaty. In response, the Soviet Union tried to control fishery activities in its coastal areas. Because the negotiation over the territorial dispute was deadlocked, the Soviet Union unilaterally declared the so-​ called Bulganin Line in the Sea of Okhotsk and the Bering Sea, requiring that it had to give its permission to engage in all foreign salmon fishing within the line.223 They claimed that the stock was damaged because of Japanese fishermen’s activities, a claim which was not acceptable to the Japanese government. Therefore, the government officials were compelled to separate the negotiation on fishery from the territorial dispute. The two countries agreed upon the Convention Concerning the High Seas Fisheries of the Northwest Pacific Ocean on May 15, 1956.224 The two states then officially restored their diplomatic relations through a joint declaration in October 1956,225 and this fisheries convention took effect on the same day. It established a commission for the assessment of the fishery stocks of salmon, trout, herring, and crab beyond the Soviet 12 nm limit in the Sea of Japan, the Sea of Okhotsk, the North Pacific Ocean, and the Bering Sea, and for the determination of the allowable catch for each party. The decision and recommendation of the commission were binding on both parties.226 This flexible mechanism was introduced because a timely determination of catch quotas was important. The period of salmon fishing in that area was strictly limited.227 2 20 San Francisco Peace Treaty, Article 2(c). 221 Kiyofumi Nakauchi, “Problems of Delimitation in the East China Sea and the Sea of Japan,” Ocean Development & International Law 6, no. 1 (1979): 314. 222 Tsuneo Akaha, “The Postwar Soviet-​Japanese Fisheries Regime and Future Prospect,” Ocean Yearbook 9 (1991): 28–​56. 223 Soviet Salmon Fishing Decree of March 21, 1956, translated in MacChesney, 51 U.S. Naval War College, Situations, Documents and Commentary on Recent Developments in the International Law of the Law of the Sea, 494 (1957). 224 Convention concerning the High Seas Fisheries of the Northwest Pacific Ocean, signed on May 15, 1956, 1 Nihon Gaiko Shuyo Bunsho /​Nenpyo 752. 225 Joint Declaration by the Union of Soviet Socialist Republics and Japan, signed on October 19, 1956. Unofficial translation is available at 1 Japanese Annual International Law 129 (1957). 226 Akaha, “The Postwar Soviet-​Japanese Fisheries Regime and Future Prospect,” 231. 227 Ibid.

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The regime did not last for long. After adopting the Continental Shelf Convention, the Soviet Union started to claim its sovereign rights over crabs and other sedentary species. In addition, since around 1968, large trawlers had started to catch mackerel in Sanriku, Fukushima, the Choshi Coasts, and Izu Islands, spurring disputes with Japanese fishermen who stuck with the traditional pole-​and-​line fishery.228 The Soviet Union’s fishing operations damaged the live stocks off Japan’s coast where the Japanese government had imposed regulations on fishery resources.229 On December 10, 1976, Moscow established the 200 nm fishery zone, which went into effect on March 1, 1977, partly in response to the US’s legislation in 1976.230 Notwithstanding the Japanese government’s protests,231 the new Soviet legislation included the sea surrounding the Northern Territories, rejecting Tokyo’s claim.232 In addition, the Soviet government announced on May 1, 1978, that it would terminate the 1956 Convention to prioritize its 200 nm exclusive zone. As described in Section 1.1, the Japanese government’s decision to establish the 12 nm territorial sea and the 200 nm exclusive fishery zone in 1977 was to counter such unilateral actions of the Soviet Union. In practice, it was the Soviet Union that continued the occupation of these territories. Therefore, the two states came to two provisional agreements in May and August 1977.233 One of the contracts concluded established a fishery zone surrounding the Northern Territories in which the Soviet Union allowed Japanese fishermen to conduct fisheries. The other agreement provided that the territorial scope of application should be established in accordance with Japanese Law No. 31 of 1977 on provisional measures in relation to the fishing zone.234 The 1977 provisional agreements were renewed each year until 1984, when the Soviet Union established its 200 nm eez on March 1, 1984. The two states came to conclude a new fishery agreement that was compatible with unclos, 2 28 Mizukami, Nihon to Kaiyoho ( Japanese), 14. 229 Ibid. 230 Fishery Conservation and Management Act of 1976, Pub. L. No. 94-​265, 90 Stat. 331 (1976). 231 Statement of Japanese Government of February 25, 1977, reprinted in 28 Japanese Annual of International Law 79, 80 (1985). 232 Ibid., 80. 233 Agreement on Fisheries off the Coast of the ussr in the North-​Western Part of the Pacific Ocean for the year 1977 of May 27, 1977, 33 sdd No. 2541 (Russian); Agreement on Fisheries off the Coast of Japan for the Year 1977 of August 4, 1977, 22 Japanese Annual of International Law 213 (1978). 234 Shigeru Oda and Hisashi Owada, “Annual Review of Japanese Practice in International Law XV (1976–​1977),” Japanese Annual of International Law 28 (1985): 86.

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replacing the 1977 provisional agreements.235 The agreement obliged the states parties to permit other states to conduct fisheries within their 200 nm eez s. Each side’s catch quota was to be determined by each government based on relevant factors regarding the nature of the resource through annual bilateral consultation.236 After both states had ratified unclos, the Operation Framework Agreement for the Waters Surrounding the Northern Islands was concluded in February 1998.237 The treaty’s purpose was to provide for the joint management of fishing resources in the Northern Territories area. This agreement established annual meetings at governmental and unofficial levels to decide upon quotas and fees for these fisheries without prejudicing Japan’s claims to the islands. This agreement also provided for the safe operation of fishery vessels within the area. Since the mid-​1990s, the distribution of natural resources and the safety of the law enforcement actvities have been an important issue between the two countries. Japan has protested Russia’s excessive activities against Japanese fishery boats, even if they were based upon legitimate authority.238 On August 16, 2006, Kisshin Maru No. 31 was operating near Kaigara Island when the Russian authority shot the vessel and one of the crewmembers was killed. It was the first fatality since 1956. The Japanese mofa immediately protested to Russia, claiming that the boat had been shot within Japan’s territorial waters.239 In return, the Russian authorities insisted that the vessel was operating in a prohibited area and taking part in illegal fishing for crabs. In the end, mofa officials visited Moscow to release the other crewmembers, but the captain 235 Agreement between the Government of Japan and the Government of the Union of Soviet Socialist Republics concerning the Mutual Relations in the Field of Fisheries off the Coasts of the Two Countries (Unofficial Translation), 28 Japanese Annual of International Law 297 (1985). 236 In addition, in 1978 the two states concluded a specific fishery cooperation agreement on the management of salmon originating from Soviet rivers. In accordance with the state of origin principle, the Soviet Union held the primary authority and managed the fisheries. The agreement was revised in 1985, when principles of management and preservation were incorporated into it. See Agreement on Cooperation on Fishery between Japan and ussr, agreed on May 12, 1985, entered into force on May 13, 1985, reprinted in The Law of the Sea: Current Development in State Practice, 103 (United Nations, 1987). 237 An Agreement on Certain Matters regarding Operation on Living Maritime Resources, signed on February 21, 1998, entered into force on May 21, 1998, mofa, Jōyakushū 1998 Nikokukan Jōyaku (1998): 1743–​1751. 238 Joseph Ferguson, Japanese-​Russian Relations, 1907–​2007 (Routledge, 2008), 121. 239 mofa, Press Release, August 16, 2006, at https://​www.mofa.go.jp/​mofaj/​press/​rele​ase/​18/​ rls_​08​16b.html.

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was detained two months longer and forced to pay a fine.240 Furthermore, there are two prompt release cases between Japan and Russia before itlos in 2007. These cases occurred against the background of Russia’s stringent law enforcement activities in this period.241 2.4 Taiwan After World War ii, in 1952, Japan signed a peace treaty with Taipei.242 When Japan recognized Beijing as the representative government of China in 1972,243 it terminated its previous diplomatic ties with Taipei.244 Nonetheless, Japan-​ Taiwan relations have been maintained on a non-​governmental basis through the Interchange Association of Japan and the East Asia Relations Commission of Taiwan. With disputes over the Senkaku Islands and the increasing demand for fishery grounds in Taiwan, Taipei started to claim its fishery rights in the Senkaku Islands’ waters. The two parties started to negotiate fishery issues in 1996. After sixteen meetings, the Japan-​Taiwan Fishery Arrangement was concluded in 2013.245 For Taiwanese fishermen, the area surrounding the Senkaku Islands and the southern part of Okinawa was important. The negotiations between the two non-​ governmental organizations concerning fisheries started in 1996. To establish order in operations by Japanese and Taiwanese fishery operators the “exemption zone” and the “special cooperation zone” were established in part of the eez south of the twenty-​seventh parallel. Additionally, the Japan-​Taiwan Fishery Committee was set up to serve as a forum for discussions between Japanese and Taiwanese officials concerning operational rules and measures to protect and manage fishery resources.246 In practice, Taiwanese fishermen were allowed to conduct fishery activities adjacent to the Senkaku Islands without there being conflict over the territorial title. However, it was reported that the difference over the rules regarding

2 40 Ibid. 241 itlos, Case No. 14, The “Hoshinmaru” Case (Japan v. Russian Federation), Prompt Release, Judgment of August 6, 2007, itlos Report 2005–​2007:18; Case No. 15, The “Tomimaru” Case (Japan v. Russian Federation), Prompt Release, Judgment of August 6, 2007, itlos Report 2005–​2007: 68. 242 Treaty of Peace between the Republic of China and Japan, signed on April 28, 1952, entered into force on August 5, 1952. 243 Japan-​China Joint Communiqué, para. 1. 244 Ibid. para. 3. 245 Agreement on the Construction of Fishery Order, signed on April 10, 2013. 246 Ibid.

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orderly fishing became evident after the implementation of this agreement.247 In 2017, both sides decided to establish a special committee for further negotiation on fisheries. 2.5 Summary This brief overview of bilateral relations demonstrates the difficulty of pursuing maritime cooperation in Northeast Asia.248 Most of the area is governed by provisional arrangements of various sorts which have created a complicated situation for jurisdiction allocation. There are conflicts among the fishery management agreements, which were concluded separately on a bilateral basis between Japan and the rok, Japan and China, and the rok and China. The common feature of these fishery agreements is that the two countries establish a provisional management area and regulate it based on the flag state principle. However, the Median Zone under the Japan-​China agreement and the Intermediate Zone under the Japan-​r ok agreement overlap with each other, and the adjustment of jurisdiction has not been made. The dprk also has a potential claim over the Sea of Japan. An integrated and comprehensive management system is desirable, but the challenging political climate will not allow the coastal states to negotiate over fisheries anytime soon. It is noted that dprk’s fishery vessels have posed national security threats against Japan in recent years. The number of dprk’s fishery vessels illegally operating in the Japanese eez in the Sea of Japan increased in the late 2010s. Some boats are reported to be armed with small missiles. In addition, it is reported the Chinese vessels operate within dprk’s waters, violating the UN sanctions imposed in 2017, prohibiting the country from selling fishing rights in exchange for foreign currency.249 Lastly, empty boats carrying corpses of North Korean fishermen occasionally reach the Japanese shore.250 The main cause 247 Disappointment in Okinawa after unsuccessful Taiwan-​Japan fishery talks, Ryukyu Shinpo, March 8, 2016. 248 Besides the 1974 Maritime Delimitation Agreement between Japan and the rok, there are only two maritime delimitation agreements in the region: the 1985 dprk-​Soviet Union territorial sea agreement and the 1986 dprk-​Soviet Union eez and Continental Shelf Agreement. Ted McDorman, “Region V: Central Pacific and East Asian Maritime Boundaries,” in International Maritime Boundaries 5 (Brill, 2005), 3439–​51. 249 un Security Council, Resolution 2397 (2017), para. 6. See also Choe Sang-​Hun, “Defying U.N. Ban, Chinese Ships Pay North Korea to Fish in Its Waters,” New York Times, July 22, 2020. 250 Motoko Rich, “Ghostly Boats Carry North Korean Crews, Dead and Alive, to Japan,” New York Times, December, 7, 2017; Ju-​min Park and Kaori Kaneko, “North Korean boats carrying dead bodies wash ashore in Japan,” The Guardian, December 1, 2015.

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is considered to be that the fishermen have to operate at dangerous distances from the beach because of the increasing Chinese fleets and the diminishment of the natural stocks. There are no official diplomatic relations between Japan and dprk, although Japan continues to protest to dprk through its embassy in Beijing. There has been little cooperation between the two states regarding these issues.

Conclusion

This chapter explored Japanese specific policies on the eez and continental shelf that are relevant to maritime security. When it ratified the UNCLOS, Japan limited its domestic jurisdiction in these maritime zones up to the median line in the Sea of Japan and the East China Sea. The analysis of this chapter shows that it was not because Japan considered the convention was a comprehensive instrument. It was out of the concern that the geographical equidistance line is the boundary in light of the convention and international jurisprudence. On the other hand, it does not distinguish an overlapping area on the Japanese side and the maritime domain that solely belongs to Japan. In addition, it has not yet abandoned the understanding that paragraphs 1 and 3 of the UNCLOS Article 121 are separable. Such practice may suggest a departure from the understanding that the instrument is collectively exhaustive. The possibility of concluding a maritime boundary agreement besides the one with the ROK is slim. Therefore, Japan has concluded provisional agreements and arranged cooperation frameworks with the neighboring countries to develop natural resources. Effective cooperation schemes, particularly with China and the ROK, are necessary for the stability of the region.

­c hapter 6

Air Defense

Introduction

Japanese airpower has been indispensable for regional stability against the backdrop of the threats posed by its neighbors. The Soviet Union, and later Russia, regularly monitored and at times intruded into Japan’s territorial air, as it was concerned by the US’s superior air power during the Cold War. The 1990s saw the increase in the Chinese pla Air Force and its ballistic and cruise missile capabilities.1 The dprk has continued to test ballistic missiles since 1993, and the number of cases increased significantly after the mid-​2000s.2 To counter these threats and enhance the safety of its territory and maritime areas and the airspace adjacent to them, the sdf Act Article 84 provides that, when a foreign aircraft enters Japanese territorial airspace without its authorization, the sdf takes the necessary measures to force it to land or expel it from the airspace over Japanese territory. Furthermore, in 2005, the government inserted Article 82-​3 to strike down missiles that will hit the territory of Japan even before they reach its territorial sea. However, there remain legal issues concerning the rights and obligations of the sdf under both international and domestic laws when counter these threats. This chapter will explore issues of territorial air defense, ballistic missile defense and adiz. It would be useful to briefly overview the relevant international law rules concerning the use of airspace. The core norms regarding freedom of the air are found in customary international law because there is no comprehensive convention regulating airspace use equivalent to unclos. Essential distinctions exist (1) between the rules applicable in territorial airspace and the airspace beyond national territory and (2) between civil and state aircraft, the latter of which includes military aircraft.

1 For China’s modernization of its air defense and the implications of that for Japanese national security, see Christopher W. Hughes, “Japan’s Military Modernization: A Quiet Japan-​ China Arms Race and Global Power Projection,” Asia-​Pacific Review 16, no. 1 (2009): 84–​99; Andrew S. Erickson, “Beijing’s ‘Starter Carrier’ and Future Steps: Alternatives and Implications,” Naval War College Review 65, no. 1 (2012): 14–​54; Ronald O’Rourke, “China Naval Modernization: Implications for U.S. Navy Capabilities –​Background and Issues for Congress,” Congressional Research Service, 2015. 2 See Section 3.

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004500419_008

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The first distinction is whether space belongs to a state’s territorial air.3 No aircraft, whether civil or state, may enter or fly over a national space without prior permission of the territorial state.4 It is noted that states enjoy the right to transit over straits and archipelagic sea lanes.5 On the other hand, states are entitled to the freedom of overflight beyond a state’s territorial air, a fact which was confirmed under Articles 58(2) and 87(1) of unclos.6 There is no established rule regarding the vertical boundary of territorial air. Japan has never clarified its position regarding the upper limit of its territorial sea.7 When the dprk’s missile flew over Japanese territory for the first time on August 31, 1998, then Prime Minister Obuchi explained that the demarcation between territorial air and space was in dispute. The missile flew above the atmosphere, yet it was “difficult to decide whether it was the trespasser of the territorial air.”8 There are four other cases where the dprk’s missile overflew Japanese territory, but the Japanese government never claimed that they constituted violations of sovereignty.9 The second distinction is between a military or state aircraft and civil aircraft. The International Civil Aviation Convention (Chicago Convention) is applicable only to civil aircraft,10 and no generally accepted convention specifically regulates a state or military aircraft. The definition of a military or state aircraft varies. The Convention on the Regulation of Aerial Navigation of 1919,11 which was the first multilateral convention regulating the airspace’s use, defines a military aircraft as an aircraft commanded by a person in the military service detailed for the purpose.12 The Hague Rules of Aerial Warfare 3 4 5

6 7

8 9 10 11 12

icao Convention, Article 2. Jan Wouters and Sten Verhoeven, “State Aircraft,” in Max Planck Encyclopedia of Public International Law, ed. Rüdiger Wolfrum, 2008, para. 1. unclos, Articles 39 and 54. States bordering straits may designate sea lanes and prescribe traffic separation schemes for navigation in straits where necessary to promote the safe passage of ships (unclos Article 41(1)). Before designating or substituting sea lanes or prescribing or substituting traffic separation schemes, such states shall refer proposals to the competent international organization (i.e., imo) with a view to their adoption (Article 41(4)). unclos, Article 87(1). Hozaki Takumi, 68th Diet, hr, Committee of Foreign Affairs, No. 16 at 14, May 19, 1972; Takei Shunsuke, Parliamentary Secretary, mofa, 192th Diet, hr, Committee of Cabinet, No. 4 at 7, October 26, 2016; Mikami Masahiro, Director of International Law Bureau, mofa, 197th Diet, hr, Committee of Foreign Affairs and Defense, No. 4 at 19, November 27, 2018. Obuchi Keizō, Prime Minister, 143th Diet, hr, Main Proceedings, No. 7 at 10, September 3, 1998. They occurred on April 5, 2009, February 7, 2016, August 28, 2017, and September 15, 2017. icao Convention, Article 3(a). Paris Convention, Article 30. Ibid., Article 31.

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of 1923, a draft adopted by an expert committee under the League of Nations which never came into force, defines a public or state aircraft as an aircraft used exclusively for public service. The Chicago Convention provides that an aircraft used in military, customs, and police services shall be deemed a state aircraft, to which the Convention is not applicable.13 Notwithstanding these various definitions, it has not been disputed that military and state aircraft enjoy immunities under customary international law when those aircraft enter foreign airspace.14 This distinction is important in a context of the territorial state’s use of weapons against an intruding aircraft. The use of weapons against civil aircraft is prohibited under the Chicago Convention.15 It provides that the states parties must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, they must not endanger the lives of persons on board and the safety of aircraft. On the other hand, if a foreign aircraft that is not covered by the Chicago Convention enters a state’s territorial airspace, that state is entitled to shoot it down as long as that is necessary and reasonable, and it is a last resort. 1

Territorial Air Defense in Japan

1.1 The Background It is necessary to first overview the history of the air force in Japan and the US’s involvement in Japan’s air security policy to identify the context for the legal issues. While the beginning of the Japanese air force could be traced to the 1920s, it was not until World War ii ended and the United States Air Force (usaf) reorganized the Japan Air Defense Force (jadf) that today’s air force came into being.16 In September 1945, the Fifth Air Force of the U ​ S Army started its operation in Japan and the Korean Peninsula. The Fifth Air Force’s role included the transportation of the U ​ S Forces throughout Japan, the moni­ toring and surveillance activities in the area and the dominant position in the airspace over Japanese territory and the southern part of the Korean peninsula. The main issues concerning the transfer included the chain of command, the 13 14 15 16

Ibid., Article 3(b). Paris Convention, Article 32. See also Wouters and Verhoeven, “State Aircraft,” para. 5. icao Convention, Article 3-​2 (a). Shizue Okada, “Koku Keikai Kansei Soshiki No Keisei to Koku Jieitai Heno Ikan [Formation of Aircraft Control and Warning (ac&w) and Its Transfer to jasdf: Conflict in the Alliance],” Boei Kenkyusho Kiyo 15, no. 1 (2012): 85–​117.

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rules of engagement (roe), and the operation’s coordination.17 The concept of air defense developed in this era has not fundamentally changed. In July 1950, the unit under the U ​ S Fifth Air Force joined the conflict, and its headquarters moved to Korea after the war erupted.18 To fulfill the vacuum in Japan and support the Fifth Air Force, the 314 Air Division was deployed in Japan, and three strategic units were established.19 In 1952, when the San Francisco Peace Treaty came into effect, the United States agreed that the Japanese government possessed complete and exclusive sovereignty in the airspace above Japanese territory. At the same time, the United States retained the rights, power, and authority over the airspace adjacent to, or in the vicinity of, facilities and areas necessary for their support, defense, and control.20 As an interim measure, the two countries agreed that the U ​ S Force controlled Japanese civil aviation through its air traffic control services regarding areas close to the US’s bases until Japan could provide such services itself.21 The usaf and jasdf were in close contact regarding precautions and measures against Japan’s territorial air violations. It was confirmed by an Administrative Agreement under Article iii of the Security Treaty that in the event of hostilities, or imminently threatened hostilities, in the vicinity of Japan the two governments would immediately consult together to take necessary joint measures for the defense of that area and to carry out the purposes of Article 1 of the Security Treaty of 1951.22 Until the Fifth Air Force returned to Japan in September 1954, the jadf played the primary role in establishing the jasdf. The jasdf formed three units succeeding the strategical units established by the United States.23

17

Memorandum of Understanding Relative to the Release and Utilization of Those Air Bases and Aircraft Control and Warning Sites in Japan Furnished to the United States Forces, Japan under the Administrative Agreement (hereinafter “Hobson-​Matsumae mou”), reproduced in Osamu Ishii and Naoki Ono, Amerika Gasshūkoku Tainichi Seisaku Bunsho Shūsei: Nichibei Gaiko Mondai 1958 Nen III (Kashiwa Shobo [Japanese], 1998), 325. 18 Ibid. 19 They were, namely, 6013 Operation Wing (located in Misawa, Aomori), 6014 Operation Wing (located in Iruma, Saitama), 6015 Operation Wing (located in Kasuga, Fukuoka). 20 Administrative Agreement under Article iii of the Security Treaty between Japan and the United States of America, 1 Japan’s Foreign Relations-​Basic Documents at 472–​502, Article iii(1). 21 Civil Air Transport Agreement, Japan-US, August 11, 1952, tias 12945. 22 Administrative Agreement under Article iii of the Security Treaty between the United States of America and Japan, February 28, 1952, Article 24. 23 They were, namely, the Northern Part Unit (the 9001 Unit, Misawa), the Eastern Part Unit (the 9003 Unit, Iruma) and the Western Part Unit (the 9004 Unit, Kasuga).

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In the early period the US’s governance introduced two elements which continue to be the foundation of Japan’s air system. The first is the air traffic control system. The usaf established the aircraft control and warning system, which was initially introduced in 1946. It strengthened it with fixed radar sites, and the operation was finalized in 1957. The jasdf gradually took over this system after its establishment in 1954. A similar measure was taken when Okinawa was returned in May 1972. The two governments agreed that the Japanese government exclusively conducted air traffic control services within its airfields. However, the usaf was to temporarily conduct the traffic control within Naha Airport, the major port for civil aviation, in the light of the proximity of the Kadena Air Base, the significant US base, and airport.24 In 1975, it was agreed that the United States would continue to provide air traffic control services in the vicinity of the airfields that it used under sofa.25 The United States designed the overall system to ensure the security of “the free nations of the Pacific Area” and it was part of the US’s Cold War strategy. The Air Defense System operated by the Fifth Air Force at that time covered an area including the rok.26 In addition, timely information was received from Taiwan and the Thirteenth Air Force in the Philippines.27 Information was available from Thailand and South Vietnam as well.28 These systems enabled Japan to protect its territory effectively. The second is the primary air defense concept under Japanese law, which was discussed during the transition era from the usaf to the jasdf in the late 1950s. In 1953, the government requested the US government to take appropriate measures against the ussr’s frequent intrusion into the territorial air of Hokkaidō. The jasdf issued a directive on measures against the violation of territorial airspace. In 1958 the directive provided procedures for the interceptor to give warnings to the intruder.29 This orthodox procedure is maintained

24

mofa, Okinawa ni okeru Koku Kotsu Kansei [Air Traffic Control at Okinawa] (May, 1972) (unpublished document, on file with the mofa). 25 mofa, Koku Kotsu Kansei [Air Traffic Control (Revised)] (1975) (unpublished document, on file with the mofa). 26 Ibid. 27 Ibid. 28 Ibid. 29 Office of the Chief of Staff Air Self Defense Force, Directive of Chief of Staff, asdf No.8, February 17, 1958, reproduced in Ishii & Ono (eds.), Ishii and Ono, Amerika Gasshūkoku Tainichi Seisaku Bunsho Shūsei: Nichibei Gaiko Mondai 1958 Nen III, 342. It provides that when an intruding foreign aircraft is found, use of the international emergency frequency or visual signals should be made. Then, a warning without signaling gunfire should be issued. Signaling gunfire should be made within the forward visibility of the intruder

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as of today. The two governments agreed to operate this agreement after the new Mutual Security Agreement was concluded in 1960. As part of the implementation of this exchange of letters, a staff study on Japan’s air defense responsibilities in 1958, approved by Vice Commander Fifth Air Force Kenneth B. Hobson and jasdf Director of Defense of jasdf Matsumae Misoo, extensively discussed the use of force in the air.30 The concept of “air defense” was elaborated through this consultation, and the result of the discussion was reflected in the roe published in 1958.31 The Hobson-​ Matsumae report criticizes an interpretation of Article 84 of the sdf Act, that the sdf was entitled only to conduct police operations. It stated that the authority to destroy, not being an approved action against an intruder aircraft, was a significant obstacle to operations because denying the air defense system the authority to destroy intruder aircraft if such aircraft commit hostile acts negates the effectiveness of the entire system.32 Furthermore, Matsumae arranged on September 2, 1959 with Robert Whitney Burns, the Lieutenant General of the Fifth Air Force, the defense of Japanese territorial air.33 The arrangement provided that the US Force may deal with threats without prior consultation when delay in the jasdf’s operation may risk Japanese security. The Japanese mofa was aware that the usaf’s measures against foreign aircraft intruding into Japanese territorial air were fundamentally different from the police measures.34 When the usaf encounters an enemy and hostile aircraft, it may attack the aircraft and, when necessary, the usaf may enter the enemy’s territorial airspace. The declassified material shows that mofa and the Defense Agency desired to abolish this agreement in the mid-​1970s.35 The usaf withdrew its military aircraft after 1965 because the capability of the jasdf became sufficient to cope with the

without inflicting injury on it. When the interception is made in the hours of darkness, warning actions should be taken with navigation lights as a rule. 30 Staff Study Responsibilities for the Air Defense of Japan, Tokyo, Desp. No. 1321, reproduced in Ishii and Ono, 329. 31 Rules of Engagement for Japan Air Self Defense Force, Office of The Chief of Staff Air Self Defense Force Japan Defense Agency, Kasumigaseki, Japan, aso-​General Order B No.6, February 17, 1958, reproduced in Ishii and Ono, 339. 32 Ibid., at 332, para. 14. 33 US Department of State, Confidential U.S. State Department Central Files, The Far East 1945-​Jan. 1963, Internal Affairs and Foreign Affairs, 794.5/​10–​1559. 34 mofa, “Matsumae-​Baanzu Kyotei no Toriatsukai,” February 3, 1971, Reference Number H250013 (on file with the mofa). 35 Ibid.

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intrusion. The agreement does not have practical significance today, but it has not been officially abolished. A notable incident occurred during the Cold War was the MiG-​25 Incident.36 On September 6, 1976, Lieutenant Viktor Ivanovich Belenko of the Soviet Union Air Defense Force escaped from his home country with a MiG-​25, entered Japanese airspace without the Japanese authorities’ permission, and landed at Hakodate Airport. Belenko sought asylum in the United States, which he was immediately granted. At that time, the MiG-​25, a supersonic reconnaissance aircraft and among the fastest of jets, was what Japan and the US were interested in. Against the Soviet Union’s protests, the jasdf dismantled the aircraft, examined it, and tested the engine before Japan returned the body in November of the same year. The entry of the MiG-​25 revealed the weakness of Japanese air defense. The incident led to the introduction of the E-​2C Hawk Eye airborne warning and control system. The major reorganization of the Japan-US alliance took place in the 2000s. Following the December 2002 meeting of the Security Consultative Committee (scc), the two countries intensified consultations about their security and defense policies and developed options to adapt the alliance to the changing regional and global security environment. After the two governments agreed on the transformation and realignment in 2006,37 they made two major changes. First, they established a bilateral and joint operations coordination center at Yokota Air Base to ensure constant connectivity, coordination, and interoperability among the forces. Second, measures to facilitate the movement of civilian aircraft through Yokota air space were explored. This was against the background of the expansion of Haneda Airport in 2008. Based on this arrangement, American control over air traffic was partly transferred to Japan, and Japanese traffic control officers were deployed to Yokota Air Base. The Use of Weapons against an Aircraft Intruding into Japanese Territorial Air When a foreign aircraft enters Japanese airspace above Japanese territory in violation of Japanese domestic laws, including the Aviation Act, the Minister 1.2

36 37

See “Re Mig-​25,” Japan-​m ig 25 Incident (3), September 24, 1976 (on file with the nsc East Asia and Pacific Country Files, the Gerald R. Ford Presidential Library). See also Wakamizu Tsutsui, “Kokusaiho Wo Meguru Saikin No Ugoki (6),” Jurist 630 (1977): 136–​44. Security Consultative Committee Document U.S.-​Japan Alliance: Transformation and Realignment for the Future, October 29, 2005, Secretary of State Rice, Secretary of Defense Rumsfeld, Minister of Foreign Affairs Machimura and Minister of State for Defense Ohno, at http://​www.mofa.go.jp/​reg​ion/​n-​amer​ica/​us/​secur​ity/​scc/​doc0​510.html.

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of Defense is entitled to have sdf units take measures necessary to make that aircraft land or leave Japanese airspace under the sdf Act Article 84. Article 84 authorizes the sdf to take “necessary measures” against a foreign aircraft that intrudes into Japanese territorial air to force it to land or to expel it from Japanese territory.38 The government characterized such an operation as police measures.39 Since the National Police Agency does not have the capability to suppress foreign aircraft, it is the jasdf’s sole mandate to act against such an aircraft.40 The sdf Act does not explicitly provide the sdf’s mandate to use of weapons against an intruding aircraft. As described in Chapter 1, the law stipulates the authority and the conditions to use weapons regarding every other operation. The government maintains the position that the use of weapons is permissible as a part of “necessary measures” under Article 84.41 Initially, the government stated that the use of weapons was permissible per customs under international law.42 In this context, the Japanese government characterized the use of weapons as police measures and not as the use of force prohibited under Article 9 of the Constitution.43 The coercive measures are not to counter-​attack a foreign military or police unit intruding into Japanese territorial air, but rather to protect Japanese administrative safety. The government expressed its position that the sdf unit may use weapons against an intruder only to the extent that it meets the requirements of legitimate defense and necessity.44 The use of weapons against a flying aircraft would require a careful consideration because it often leads to the shooting down of the object.45 The scenarios 38 39

sdf Act, Article 84. Masuhara Keikichi, Deputy Secretary, National Safety Agency, 19th Diet, hr, Cabinet Committee, No. 27 at 19, April 20, 1954. 40 Ibid. 41 For the analysis of the use of the weapons to implement Article 84 of sdf Act, see Nakano, “Buryoku Koshi /​Buki Shiyo No Hoteki Kisei [The Legal Regulation of The Use of Force /​ Use of Weapons] (Part iii),” 28. 42 Masuhara Keikichi, Deputy Secretary, National Safety Agency, 19th Diet, hr, Cabinet Committee, No. 27 at 19, April 20, 1954. In 1969, after Pueblo case, the Prime Minister Satō explained that such use of weapons should be done in accordance with international customs. Satō Eisaku, 61th Diet, hr, Main Plenary, No. 27 at 16, April 17, 1969. 43 Questions Statement, Satō Masahisa, 176th Diet, hc, No. 51, October 29, 2010. See also Nakano, “Buryoku Koshi /​Buki Shiyo No Hoteki Kisei [The Legal Regulation of The Use of Force /​Use of Weapons] (Part III),” 29. 44 Norota Yoshinari, Secretary of Defense Agency, 145th hc, Special Committee on Japan-​ US Defense Cooperation Guideline, No. 4 at 11, May 11, 1999. 45 Nakajima Akihiko, mod, Director of Bureau, 185th Diet, hc, Special Committee on National Security, No. 14 at 10, December 5, 2013.

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include cases where the plane tries to resist the jasdf by force or there is an imminent danger of grave harm against the lives and property of nationals and the use of weapons is the only means to exclude such a danger.46 In 2013, the government clarified that the same measures may be taken against drones.47 Notwithstanding the government’s characterization, a question arises whether the measures taken against a foreign aircraft violates the UN Charter Article 2(4). In principle, the same analysis in Chapter 1, Section 2, applies. Yet, in light of the nature of air defense, where there is little time for deliberation and the risk of causing a great harm by using weapons against a flying object, international lawyers have divergent views. On one hand, there are views to characterize such measures as the use of force. Tom Ruys argues that a state’s use of potentially lethal force within its own territory against military or police units of another state amounts to the interstate use of force under Article 2(4) of the UN Charter.48 Yet, he also contends that an unlawful territorial incursion, even if small in scale, that reflects manifestly hostile intent may come within the ambit of Article 2(4), which may justify the measures taken by the territorial state.49 In the context of small-​scale incursions, additional elements should exist that attest to the intruder’s hostile intent such as the general geopolitical and security context, the repeated nature of the incursions, and the location of the intrusion, among others. Yoram Dinstein argues that interceptor planes may shoot down aircraft belonging to another state in the case of an incident “short of war.”50 The very crossing of the frontier by military formations itself constitutes an armed attack, even if fire is not opened, when the incursion is deliberate and it goes beyond the de minimis threshold of a few soldiers intentionally overstepping the line for a short while but then withdrawing.51 On the other hand, other scholars emphasize the sovereign authority of the territorial state. Olivier Corten considers that such measures are law enforcement operations. The regulations on the use of force in the context of the air defense are fundamentally different from those under the UN Charter because 46

Onodera Itsunori, Minister of Defense, 185th Diet, hr, National Security Committee, No. 3 at 6, December 6, 2013. Onodera also mentioned that the measures should be taken in accordance with the Rules of Engagement. 47 Abe Shinzō, Prime Minister, 185th Diet, Main Conference, No. 2 at 16, October 16, 2013. 48 Tom Ruys, “The Meaning of ‘Force’ and the Boundaries of the Jus Ad Bellum,” American Journal of International Law 108 (2014): 188. 49 Ibid. 50 Yoram Dinstein, War, Aggression and Self-​Defense, 6th ed. (Cambridge University Press, 2017), 4. 51 Ibid 91.

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the territorial state has a very extensive right to take necessary measures against intruding aircraft.52 To my knowledge, the Japanese government has not expressed its position why the use of weapons against foreign aircrafts is justified under international law. However, Corten’s view seem to match with its air defense under the sdf Act Article 84. 1.3 Practices Scramble operations against unidentified foreign aircrafts happen on a daily basis. The use of weapons against such aircraft hardly takes place. The only case in which the jasdf fired signal shots against a foreign aircraft occurred on December 9, 1987. It noticed four unidentified aircrafts moving toward the Okinawa mainland from the East China Sea. Among them, Tu-​16J electronic reconnaissance aircraft changed their route and tried to reach the Okinawa mainland’s airspace. Despite the warning of the jasdf fighter, it entered the airspace of Okinawa Mainland. At that point, the jasdf fired the first signal shot. The Tu-​16Js did not comply with the jasdf’s demands, flew over Naha Base, Futenma Base, and Kadena Base for approximately 20 minutes, and left Okinawan airspace. Then they reached the Amami archipelago and entered the airspace between Okinoerabu Island and Tokuno-​shima for four minutes. When the F-​4EJ fired its second shot, the Tu-​16Js left Japanese territorial airspace and later landed at Pyongyang. The Japanese government protested to the Soviet Union, which announced that the Tu-​16Js entered Japanese airspace due to bad weather and certain equipment malfunctions. The Defense Bureau Deputy Secretary of the Defense Agency claimed that the action of the Soviet Union was in bad faith because it was a sunny day and the view was clear.53 A contemporary problem is whether the jasdf may take coercive measures against foreign aircraft flying over straits covered by territorial seas as Chapter 4, Section 2 discussed.54 Another issue is whether and under what circumstances can the jasdf take coercive measures against Chinese aircrafts flying over the Senkaku Islands’ territorial air. On December 13, 2012, the jcg found that China State Oceanic Administration’s Y-​12 flew over Senkaku’s airspace for the first time. The jcg required the aircraft to leave via wireless transmission. There has not been a case where the jcg or jasdf confronts with China’s manned airplane above the islands. On May 18, 2017, a drone launched 52 Corten, The Law against War : The Prohibition on the Use of Force in Contemporary International Law, 60. 53 Nishihiro Seiki, Deputy Secretary of Defense Bureau of the Defense Agency, 111st Diet, hc, Committee of Cabinet, No. 2 at 11, December 10, 1987. 54 See Chapter 4, Section 2.

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from a ccg’s vessel, which was already in the territorial sea of Senkaku Islands, flew the territorial airspace for the first time. The jasdf scrambled the drone. The government explained that Aviation Act Article 132, which regulates the flight of drones, applies in this situation and the sdf warned the drone to leave the area in accordance with sdf Act Article 84.55 If the jasdf has to confront with Chinese public aircraft in the area, the jasdf have to choose appropriate measures to effectively defend its airspace, both in accordance with international law and Japanese law. The lack of the provision of the use of weapons under the domestic law may be a hurdle to resort to coercive measures. 2

Ballistic Missile Defense

2.1 The Background Legal consideration of bmd requires a different set of examinations because an interception that destroys missiles beyond the territorial air may conflict with the principle of the freedom of the high seas. The Japanese domestic bmd system developed mainly in response to the dprk, which started to demonstrate its missile capability at the end of the 1990s. While several countries possess anti-​ballistic missile systems on land, Japan is one of only a few states that have introduced a sea-​based missile defense system.56 It is useful to overview the context of the dprk’s development of its ballistic missiles. The first operation was conducted over the Sea of Japan on May 29 and 30, 1993, when the dprk launched Rodong i, which was capable of carrying chemical weapons and a small nuclear device. After the strong protests of Japan and the US, the dprk agreed to comply with the Nuclear Non-​ Proliferation Treaty, but it eventually withdrew from the treaty in 1994. On August 31, 1998, a flying object was launched from a dprk missile-​ launching facility.57 The Ministry of Foreign Affairs of the dprk declared that 55 56 57

Questions Statement, Ohshima Tadamori, 193th Diet, hr, No. 330, May 30, 2017. See us dod Missile Defense Agency, available at https://​www.mda.mil/​sys​tem/​aegis_​ bmd.html. Defense Agency, Defense of Japan (1999): 203–​204. English translation is also available at Kazuhiro Nakatani and Akio Morita, “The Taepodong Missile Incident and the Responses Thereto,” Japanese Annual of International Law 43 (1999): 150–​62. For the development afterwards, see also Kazuhiro Nakatani, “The Taepodong Missile Incident, the New Guidelines for Japan-​U S Defense Cooperation and the Use of Force,” in Trilateral Perspectives on International Legal Issues: Conflict and Coherence (American Society of International Law, 2003), 263–​85.

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it was a satellite, the launch of which was justified under international law as a peaceful use of outer space.58 However, based on the conditions of its flight and other factors, the Japanese government believed that the object was a two-​ stage missile, classified by the United States as the Taepodong i.59 The Japanese government immediately protested to the dprk at its taking of such measures and started economic sanctions against it by prohibiting commercial transactions between the two states.60 Japan expressed its condemnation to the Security Council, stating that the launch of the missile violated the principle of the freedom of the high seas and the principles provided under the Chicago Convention as well as the Convention on International Maritime Organization, because it was done without prior warning and the missile landed in the vicinity of frequently used sea lanes.61 Following the Teopodong i incident, the Japanese government started to develop the bmd system with the United States in 1999. In December 2003, the Cabinet decided to introduce a multi-​layered missile defense system.62 The first layer was a sea-​based Aegis bmd system, which enabled Japan to intercept incoming missiles at the highest point of their course. The interceptors were equipped with kinetic warheads, which would hit the incoming missiles’ warheads to destroy them in the air. The intervention was planned to take place on the high seas and eez s of China and the rok. The second layer was a ground-​based Patriot Advanced Capability 3, which enabled Japan to intercept incoming missiles, most likely within Japanese territory. After Kim Jong-​Il passed away, Kim Jong-​Un significantly intensified the dprk’s missile policy. As of June 2021, missiles have flown over Japan’s territory five times. Because of this background, in 2017 the Japanese government decided to introduce Aegis Ashore, which enables Japan to intercept missiles from land. However, considerable opposition arose from residents local to the candidate sites, Akita and Yamaguchi Prefectures, and the government had to withdraw the plan in 2020.

58 59 60 61 62

Radio Press Tokyo, September 4, 1998. Nakatani and Morita, “The Taepodong Missile Incident and the Responses Thereto,” 151. Nakatani and Morita, 151. Comment by Chief Cabinet Secretary Nonaka Hiromu on North Korea’s Test Missile Launch, August 31, 1998. U.N. Doc. S/​1998/​835, September 4, 1998. Press Release of the Cabinet Office, December 19, 2003.

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2.2 sdf Act Article 82-​3 In 2005, the Japanese Diet amended the sdf Act to insert a new provision, Article 82-​2, which was renumbered to Article 82-​3.63 This provision authorizes the sdf to “protect lives and properties within Japanese territory” from the “fall” of ballistic missiles and objects other than aircraft flying to Japanese territory.64 Under Paragraph 1 of this Article, when the Minister of Defense decides that ballistic missiles or other objects are approaching Japanese territory and action is necessary to avoid damage to human lives or property, the Minister, with the approval of the Prime Minister, may order units of the sdf to take measures to destroy ballistic missiles or other objects either within Japanese territory or over the eez and high seas.65 The measures are the use of weapons so that the government does not have to decide whether it is an armed attack to prevent the event.66 When these actions are taken, the Prime Minister should promptly report their result to the Diet.67 As previously stated, Japan has not defined the vertical boundary of her territorial air. Yet, the requirement of Article 82-​3 is not that the object intrude into the territorial air of Japan. If it is certain that it is flying across Japanese territory and will fall outside Japan, this provision does not apply.68 Prior to this amendment, the sdf Act did not provide any option for counter-​ attacking the missile other than Defense Operation.69 However, the definition of “an armed attack” that the government relied upon was too narrow because it excludes a sporadic launch of ballistic missiles. Article 84 of the sdf Act,

63 64 65 66

67 68 69

Before the current Article 82-​2 (the anti-​piracy operation) was inserted in 2009, the provision number for the current Article 82-​3 was Article 82-​2. An unofficial translation of this Article is available at Tomohiro Mikanagi, “The Legal Basis of Missile Defense –​An Examination of the Japanese Situation,” Japanese Annual of International Law 48 (2005): 67. sdf Act, Article 82-​3(1). Ibid., Article 82-​3(3). Under Paragraph 3, the Minister of Defense may issue an order to units of the sdf in advance in accordance with an emergency manual, when there is no time to obtain Prime Ministers’ prior approval. The government explained that the manual for the emergency sets out the scope of the missile, the means of destruction, the scope of the sdf units’ operation and cooperation with other administrative organs. Tanaka Naoki, Minister of Defense, 180th Diet, hc, Budget Committee, No. 14 at 7, March 26, 2012. sdf Act, Article 82-​3 (5). Kobayashi Takayuki, Parliament Secretary of Minister of Defense, 192th Diet, hr, Cabinet Committee, No. 4 at 7, October 26, 2016. For the background, see Mikanagi, “The Legal Basis of Missile Defense –​An Examination of the Japanese Situation.”

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which provides the measures against airspace intrusion, provides only for a case where a “foreign aircraft” enters Japan’s territorial airspace and does not apply to a ballistic missile. Whether intervention with the missile outside Japanese territory is allowed under international law vis-​à-​vis the launching state was little questioned. Under international law, in most cases a government may invoke the right of individual self-​defense under Article 51 of the UN Charter. If the threat is imminent and clear and the hostile intention of the country is evident, the government may assume that the launch constitutes an armed attack.70 However, the Japanese government does not take such a position. The measures are a part of the maintenance of the public safety, and its use of weapons is not characterized as the use of force. Arguably, there remains a logical stretch in characterizing anti-​missile defense as police measures. Ohno Yoshinori, the Secretary of Defense Agency, once stated that no harm occurs to the launching state because the destruction is done either within Japanese territory or above the high seas.71 This statement does not match with the explanation that the actions are police measures. For instance, the launching state may lose the scientific data which it may have expected to acquire. However, the launching state would not be entitled to claim the data if the activities violated the intercepting state’s sovereignty so that the right to the property in the projectile is hardly an issue.72 The Missile Defense Operation order were issued for several times when the dprk launched missiles towards Japan.73 An actual counter-​attack never took place. While it is critically important to maintain the missile defense systems, the legal basis to use these systems is rigorously restricted.

70 71 72 73

For the arguments whether it triggers Article 51 under international law, see Mikanagi, ibid., 74. Ohno Yoshinori, the Secretary of Defense Agency, 162nd Diet, hc, Committee of Defense and Foreign Affairs, No. 19 at 11, July 14, 2005. Mikanagi, “The Legal Basis of Missile Defense –​An Examination of the Japanese Situation,” 73. It is reported that the orders were issued at least on March 27, 2009, March 16, 2012, December 7, 2012, April 7, 2013, January 29, 2016. On August 3, the Japanese government failed to issue the order when dprk’s missile went down on the Japanese eez. Since August 8, 2016, the order became effective without time-​limit, so that the sdf constantly prepares for the launch.

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Air Defense Identification Zone

An Air Defense Identification Zone (adiz) is a defined airspace area within which aircraft must identify themselves. The declaration of an adiz does not constitute a claim of sovereign rights.74 Nonetheless, as long as it does not violate existing international law rules, such a zone could be established over territorial air and the airspace beyond national territory. The establishment of an adiz and the implementation of air defense measures over eez s and high seas are potentially in conflict with the principle of freedom provided in both customary international law and Articles 58(1) and 87 of unclos. As long as the purpose of the measures is only to verify the aircraft’s intention and the measures do not involve coercive methods, establishing an adiz is considered compatible with existing international law rules.75 The Japanese adiz was established in 1956 by the usaf while it was occupying Okinawa. The US had already promulgated rules concerning an adiz surrounding its territory in the wake of the Korean War. The rules were designed to control all air traffic in the adjacent airspace, mainly to prevent Soviet military aircraft from intruding into the US’s territorial air. The Japanese adiz was operated by the usaf under the same rule. After the air warning and control system transfer became effective, the Defense Agency declared in 1969 that it was using the same geographical area.76 However, the instrument merely stated that the adiz was to be used for the flight of sdf aircraft. Other planes, including foreign ones, are regulated under Article 84 of the sdf Act, which provides the measures to be taken if an aircraft violates Japan’s territorial air. The Japanese government defines an adiz as “airspace established by the Japan Ministry of Defense to facilitate taking measures against territorial airspace violation.”77 In an adiz, the jasdf is to identify an aircraft “approaching Japanese territorial airspace,” and an aircraft unidentified by flight plan is to be subject to an in-​flight interception for visual confirmation.78 Japan is an exceptional state, as it explicitly limits its measures to aircraft approaching its 74

J. Ashley Roach, “Air Defence Identification Zones,” in Max Planck Encyclopedia of Public International Law, ed. R Wolfrum, 2009, para. 1. 75 See Wolff Heintschel von Heinegg, “Military Activities in the Exclusive Economic Zone,” Revue Belge de Droit International 2014, no. 1 (2014): 53. 76 Order on the Flight Guidelines within Air Defense Identification Zone, Order No. 36, August 29, 1969. 77 Japan aip, enr 5.2. Japan aip is available at https://​aisja​pan.mlit.go.jp/​html/​AIP/​html/​ 20140​724/​frame/​index-​en-​JP.htm. 78 Japan aip, enr 5.1.

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territory. Most states do not provide such a limitation. However, in practice, the jasdf intercepts unidentified planes within the adiz when uncertain whether the aircraft are coming toward Japanese territory. When it inherited the adiz line from the United States, the line passed through the Yonaguni Island. Two-​thirds of the islands were covered by the Taiwanese adiz, which was also initially established by the United States. Because Japan and Taiwan had not had diplomatic relations since 1972, the two countries were unable to discuss the matter on a bilateral basis, and Japanese airplanes passing through the area over the Yonaguni Island had to obtain permission from Taiwan. On June 24, 2010, the Ministry of Defense announced a new adiz to cover the whole of the Yonaguni Islands and their territorial sea with an additional 2 nm as a buffer zone. That created an overlap with Taiwan’s adiz, against which Taiwan claimed that the demarcation line should remain unchanged.79 The issues concerning the adiz were given more attention when China announced its adiz over the East China Sea in November 2013.80 The announcement stated that all aircraft, regardless of their destination, would have to comply with the procedures within the adiz. It also provided that China’s armed forces would adopt “defensive emergency measures” to respond to aircraft that did not identify themselves or refused to follow instructions. It was reported that this rule on “defensive emergency measures” was deleted from the rule that China’s transportation authority announced on December 28, 2014. However, the wording has not been deleted from the Chinese Ministry of National Defense’s announcement, which shows that China’s policy has not changed. There are two main issues concerning the Chinese adiz. The first problem is that the establishment of this adiz is contrary to the principle of the freedom of the high seas. The second is that China’s adiz describes the Senkaku Islands airspace as part of China’s territorial airspace. The Japanese government protested that the islands were “an inherent part of Japan’s territory,” so such a description was not acceptable. On the day following China’s announcement, the Japanese government issued the following statement: “[t]‌he announced measures unduly infringe the freedom of flight in international airspace, which is the general principle of international law, and will have serious impacts on the order of international aviation.”81 79 80 81

Taipei Times, June 26, 2010. Statement by the Government of the People’s Republic of China on Establishing the East China Sea Air Defense Identification Zone, Xinhua News Agency, November 23, 2013. mofa, November 24, 2013, Statement by the Minister for Foreign Affairs on the announcement on the “East China Sea Air Defense Identification Zone” by the Ministry of National Defense of the People’s Republic of China, para.3.

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The Chinese adiz did not deviate from the relevant state practices, as long as the “defensive emergency measures” did not mean forcible measures, and China refrained from exercising its jurisdiction against aircraft that do not intend to enter its territorial air. The problem was that China undertook measures that hindered flights of other states’ planes. On May 24 and June 11, 2014, the Chinese fighter Su-​27 approached very near the jmsdf’s op-​3 c and the jasdf’s ys-​1 1eb. The Japanese government immediately protested such action as dangerous. On July 25, 2015, Laos Airline A320, flying from Busan, the rok, to Vientiane, Laos, was directed by China’s transportation authority to return to the point of departure, for it did not submit its flight plan in compliance with the rule of China’s adiz. Such measures may be contrary to the established international law.

Conclusion

For the importance of air defense for Japan’s security, there remain legal gaps and holes in the protection of Japanese airspace. Japan has developed its own domestic rules concerning these issues, striking a careful balance between the need to defend its territory and the requirement not to infringe the freedom of overflight. None of the measures described in this Chapter –​the territorial air defense, ballistic missile defense and adiz –​seem to be in violation of international law. Yet, difficult questions endure to what extent the territorial state may exercise its force against an intruding military aircraft. The current law does not provide concrete criteria as opposed to the measures taken at sea.

­c hapter 7

Protecting the Sea Lanes of Communication

Introduction

The protection of sloc s has two main purposes for Japan. One is to secure safe and unimpeded transportation at sea. It is vital for Japan because more than 99 percent of the Japanese trade by volume goes through the sea. The other is to secure the military advantage in the region. It allows the United States, its ally, to smoothly dispatch the units from Guam to Yokosuka and Hokkaidō, in case of an emergency. Japan’s policy to defend the sloc s has not been coherent. Since the 1950s, there existed the two impediments that inhibited the Japanese government from pursuing its plan to protect Japan’s sloc s. One was the jmsdf’s lack of capability and the other was the lack of domestic authorization to deploy the jmsdf. However, the decline of the US’s support in the 1970s pushed the government to pursue the policy for sloc s protection. To analyze the dynamics behind the policy, Section 1 traces the interaction between the Japanese and US governments regarding securing the sea routes. It will also analyze legal issues concerning the jmsdf’s activities to protect sloc s on the high seas and the eez s of foreign states. Section 2 will examine the jmsdf’s attempts for confidence building measures with neighboring states. Lastly, Section 3 will discuss the challenges in anti-​ piracy operations. The meaning of the term “Sea Lane Defense” policy under Japanese domestic laws and policies varies from time to time. In 1983, Defense Agency explained that the government planned to protect Japan’s sloc by developing its defense capability, including anti-​submarine reconnaissance, protection of the straits and ports, and mine clearing.1 Today, the term “Sea Lane Defense” may imply anti-​piracy operations or the jmsdf’s maneuvers and military exercises. This chapter will use this term to mean Japan’s policy to protect its maritime route in a general sense.

1 mod, Japanese Defense White Paper (1983) 89.

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004500419_009

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Sea Lanes Defense

1.1 The Development of the Sea Lanes Defense When sdf was established in 1954, there was no clear military strategy regarding sea lane defense.2 The capability of blocking the ussr was necessary because the United States troops would not have been able to arrive immediately. However, the Ministry of Finance was reluctant to equip air and maritime forces. In 1957 the National Defense Council and the Cabinet adopted the Basic Policy on National Defense, which set forth the guiding principles of Japan’s security for the first time.3 It decided that Japan would gradually have an effective defensive capability, yet it did not specify a maritime policy. In the Second National Defense Plan for 1962–​1966, adopted in 1961, it was intended that the jmsdf control the Sōya, Tsugaru, and Tsushima straits to counter the Soviet Union.4 However, the mof rejected the necessary budget for acquiring a helicopter destroyer, and the defense capability remained insufficient. The necessity of defending sloc s was manifested in official policy in the late 1960s when the Third Defense Build-​up Plan for 1967–​1971 was included in 1967 as one of its goals strengthening the defensive capability of “the surrounding maritime areas,” such as ports, straits, and coastal areas.5 The Defense Agency explained that the plan was to secure maritime regions in Japan’s vicinity, and this did not include areas hundreds or thousands of kilometers away.6 In 1969, the Defense Agency clarified that it meant 1,300 to 1,400 nm. However, it also stated that the jmsdf was capable of defending only about 1/​6 to 1/​7 of the total maritime transportation7 and conceded that the jmsdf could not conduct the protection operation within the Straits of Malacca, the choke point.8

2 Tetsuo Kotani, “Sea-​Lane Defense: The Dynamics of U.S.-​Japan Naval Cooperation during the Cold War (Japanese),” Doshisha Law Review 58, no. 4 (2006): 1485–​1513. 3 Kokubo no Kihon Hoshin, decided on May 20, 1957. 4 Dai Niji Boei Seibi Keikaku, decided on July 18, 1961, reprinted in Arisawa Hiromi=​Inaba Shuzo (ed) Shiryo Sengo Nijunenshi at 164 (1966). 5 Dai Sanji Boeiryoku Seibikeikaku no Shuyo Komoku, decided by the National Defense Conference [Kokubo Kaigi] on March 13, 1967, with the Cabinet Decision on March 14. For the history of this policy, see Horita Mitsuaki, Wagakuni no Shī Rēēn Boei Rongino Hensen [Development of Japanese Sea Lane Defense Debates], 120 Rippo to Chosa (1984) 17. 6 Shimada Yutaka, mod Director of Defense Bureau, 55th Diet, hc, Budget Committee, No. 12 at 28, May 12, 1957. 7 Shishido Motoo, mod Director of Defense Bureau, 61st Diet, hc, Cabinet Committee, No. 28 at 27, July 10, 1969. 8 Arita Kiichi, Secretary of Defense Agency, 61st Diet, hr, Cabinet Committee, No. 35 at 22, July 24, 1969.

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The policy changes in the late 1960s occurred after the Cuban Missile Crisis and the Vietnam War transformed the global balance of power. As the Soviet Union’s maritime power increased, US power in the West Pacific and Indian Oceans declined in relative terms. At the same time Japan experienced rapid economic growth from the mid-​1950s to the early 1970s. In 1968, Japan became the world’s second-​largest economy. The United States subsequently started to express its frustration over Japan’s reluctance to play a proactive role in defending its sloc. The Nixon Doctrine, which was first announced in 1969, forced Japan to reshape its defense policy.9 The Nixon administration made it clear that the United States would keep all its treaty commitments and provide a shield if a nuclear power threatened the freedom of a nation allied with the country, or of a nation whose survival it considered vital to its security and the security of the region as a whole. However, the statement also emphasized that the Asian states could now share the burden. In August 1970, Nakasone Yasuhiro, then Secretary of the Defense Agency, published a policy plan to prepare the Fourth Defense Build-​up Plan.10 His policy advocated using helicopter carriers to secure control of the air and the sea between Minamitori Island, Okinotori Island, and the Nansei Shotō, i.e., areas that encompass two major sloc s, and prevent hostile submarines from entering those areas. The Satō Eisaku Administration adopted the plan in 1972 to recognize the importance of substantive cooperation between Japan and the United States regarding peacetime defense operations. The plan was to protect the two major sloc s and not to control areas, as Nakasone proposed.11 In March 1975, the term “Sea Lane Defense” attracted attention when a member of the Diet claimed that there was a secret agreement between the US and Japan whereby, in the event of an emergency, the jmsdf would be responsible for the protection of the maritime area surrounded by Hawaii, Guam, the Philippines, and Yokosuka in cooperation with the US Seventh Fleet.12 While the Japanese government denied the existence of such an agreement, 9

10 11 12

Informal Remarks in Guam with Newsmen, July 25, 1969, Public Papers of the Presidents of the United States: Richard Nixon, 1969, at 544–​556. The doctrine was officially published in February 1970. First Annual Report to the Congress on United States Foreign Policy for the 1970s, Public Papers of the Presidents of the United States: Richard Nixon, 1970 (1971) at 116–​190. Nakasone Yasuhiro, Secretary of Defense Agency, 64th Diet, hc, Budget Committee, No.1 at 21, December 15, 1970; Nakasone Yasuhiro, Secretary of Defense Agency, 65th Diet hr, Cabinet Committee, No. 20 at 29, May 7, 1971. Satō Eisaku, Prime Minister, 68th Diet, hr, Budget Committee, No. 21 at 45, March 30, 1972. Satō clarified that Nakasone’s plan is not adopted in the Forth Defense Build-​up Plan. Ueda Tetsu, Member, 75th Diet, hc, Budget Committee, No. 5 at 32, March 8, 1975.

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it affirmed the necessity of implementing a plan for burden-​sharing between the two countries.13 The government made it clear that cooperation with the US forces beyond Japan’s territorial sea was not unconstitutional, should an armed attack occur and such operations become necessary for it to defend itself.14 Later that year, the Ford Administration announced its New Pacific Doctrine, which made the partnership with Japan a US strategy pillar.15 The doctrine differed from the Nixon Doctrine, as it incorporated “more modest and more realistic expectations” between the United States and its allies in the Pacific.16 It led to the establishment of the Working Committee of Defense Cooperation under the Japanese government, which developed the National Defense Program Outlines of 1976.17 The Committee recognized “the possibility of limited military conflict breaking out in Japan’s neighborhood” and noted that equilibrium between the superpowers and the Japan-US security arrangement would be critical to maintaining international stability and “preventing full-​scale aggression against Japan.”18 It affirmed that Japan had to conduct warning and surveillance missions within its territory and neighboring seas and airspace and collect intelligence.19 In the first Guidelines for Japan-US Defense Cooperation of 1978,20 both countries confirmed that the jmsdf and the US Navy would jointly conduct maritime operations to defend the surrounding waters and protect the “sea lines of communication.”21 The guidelines stated that the jmsdf “will primarily conduct (1) operations for the protection of major ports and straits in Japan, (2) anti-​submarine operations, and (3) operations for the protection of 13 Ibid. 14 Ibid. 15 Gerald Ford, Address at the University of Hawaii, December 7, 1975. 16 James M. Naughton, Ford Proclaims ‘Pacific Doctrine’ of Peace with All, New York Times, December 8, 1975, at 1. 17 National Defense Program Outlines, October 29, 1976, reprinted in mod, Defense of Japan 1989, at 262–​266; 3 Japan’s Foreign Relations-​Basic Documents 262–​266. 18 Ibid. 19 It held that the jmsdf must (i) possess one fleet escort force as a mobile operating ship unit in order to quickly respond to aggressive action and such situations at sea; (ii) possess surface anti-​submarine capability of at least one ship division in operational readiness at all times in each assigned sea district; (iii) maintain submarine units, anti-​submarine helicopter units, and minesweeping units, providing the capability for surveillance and defense missions as well as minesweeping at important harbors and major straits; (iv) maintain fixed-​wing anti-​submarine aircraft units in order to provide the capability of carrying out such missions as surveillance and patrol of the nearby seas and surface ship protection. 20 Guidelines for Japan-​US Defense Cooperation, 1978. 21 Ibid.

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ships and other operations in the surrounding waters.”22 The US Naval Forces were to support the jmsdf operations and conduct other functions, “including those that may involve the use of task forces providing additional mobility and strike power, with the objective of repelling enemy forces.”23 In addition, the new defense cooperation required Japan to purchase military assets from the United States, partly in response to the criticisms from both the US government and its Congress that Japan was not paying its fair share. The next turning point came when the Soviet Union invaded Afghanistan in December 1979 during the Carter Administration. The concept of “comprehensive security” emerged from the 1980 Comprehensive National Security Study Group, an effort by Prime Minister Ōhira Masayoshi to strengthen the sdf’s military capability to better support the Japan-US Alliance. For example, the jmsdf developed anti-​submarine warfare capability in the 1980s due to the Soviet submarine fleet’s growth. The Reagan Administration first designed the 1,000 nm sea lane defense plan. In January 1980, Harold Brown, the US Secretary of Defense under this administration, stated that Japan needed to play a more active role in its security.24 It was the first time that the US senior official had formally requested Japan to increase its military budget. He stated that for the United States to avoid destabilizing the region, “steady and significant increases” in Japanese defense capabilities were necessary.25 The Joint Communiqué, issued by the leaders of both states when Prime Minister Suzuki visited President Reagan in May 1981, confirmed “the desirability of an appropriate division of roles between Japan and the United States” as a means of “ensuring peace and stability of the region.”26 In an interview held after the communique was issued, Suzuki officially pledged his government’s commitment to “the 1000 Nautical Mile Sea-​Lane Defense Policy.”27 Nakasone, the Prime Minister, who had initially promoted this policy as Secretary of the Defense Agency,28 confirmed Japan’s commitment to visiting 22 Ibid. 23 Ibid. 24 For a critical analysis of the development of this policy, see Thomas B. Modly, “The Rhetoric and Realities of Japan’s 1000-​Mile Sea-​Lane Defense Policy,” Naval War College Review 38, no. 1 (1985): 25–​36. 25 Ibid 25. 26 Joint Communique, May 8, 1981, Department of State Bulletin, 2051, June 1981, at 2. 27 US Department of State, ‘Visit of Japanese Prime Minister Suzuki,’ 81(2051) US Department of State Bulletin, at 3 (June 1981). 28 “Because of Expansion [We Risk] Being Isolated,” Washington Post, January 19, 1983, A12. (An Interview with Prime Minister Yasuhiro Nakasone.) According to a separate

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Washington immediately after his inauguration in 1983.29 The first proposed change was that Japan should have sea control over the Sōya, Tsugaru, Ōsumi, and Tsushima straits so that Soviet submarines could be contained within the Sea of Japan. The second proposed change was to prevent Soviet from passing through the Japanese archipelago. The third change that needed to be made was to secure the sea lane. The Prime Minister understood that the sea lane referred to the 1,000 nm lines of transportation, the Southeastern line from Tokyo and the Southwestern line from Osaka. Defense Secretary Casper Weinberger stated that it was important for Japan to engage in sea lane defense, allowing the US Navy to send part of its fleet to the Indian Ocean to protect oil transportation. He also mentioned that both the United States and Japan needed to concentrate their resources on restricting the ussr’s military power in Asia.30 Weinberger clarified that his goals were to build up Japan’s air defense to the point where it could detect and stop overflights by the Soviet Union’s long-​range backfire bomber and be able to bottle up the submarine and surface ships of the Soviet Pacific fleet in the Sea of Japan through the control of strategic straits.31 Prime Minister Miki, Nakasone’s predecessor, had decided in November 1976 that the defense budget should not exceed one percent of gdp. Declassified documents reveal that Nakasone admitted that the defense budget would need to exceed that limit for the plan to be pursuable.32 The Nakasone administration abolished Miki’s policy in 1986. The ceiling was broken in the 1987 fiscal budget, allowing Nakasone to fulfill the pledge he had made during his Washington visit. Nevertheless, Japan’s defense budget has rarely exceeded the

document, Nakasone said at a breakfast with the owner of The Washington Post before the summit that Japan would “robustly protect the Japanese archipelago like an unsinkable aircraft carrier.” 29 Telegram No. 729, From Ambassador Ohgawara to the Minister of Foreign Affairs, No. R007575, arrived at mofa, Director of North American Bureau on January 19, 1983, 6:52 pm, 2015–2105, the Diplomatic Archives of the Ministry of Foreign Affairs of Japan) 30 Ibid. See also Telegram No. 721, Q93EA, sent from Ambassador Ohgawara to the Minister of Foreign Affairs, which arrived at mofa on January 19, 1983, 4:48 pm, No. F007512, 2015–2205, the Diplomatic Archives of the Ministry of Foreign Affairs of Japan. 31 Don Oberdorfer, “Japan Plans Wider Role on Defense,” Washingon Post, January 19, 1983, A1, A12, A13. 32 Summary of an Interview with Director Wilenson, Newsweek Tokyo Bureau, at 46, 2015–2205, the Diplomatic Archives of the Ministry of Foreign Affairs of Japan. This policy was reflected in the discussions within mofa. See North American Affairs Bureau, Anzenhoshō/​ Bōei Mondai [Security and Defense Issues], December 11, 1984, the Diplomatic Archives of the Ministry of Foreign Affairs of Japan.

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limit since 1986.33 The National Defense Program Outlines at the time reflected this passive approach in protecting sloc s.34 The original npdo in 1976 and the revised one in 1995 did not have much focus on the maritime security interests. While discussions regarding the Japan-US cooperation on sea lane defense continued, many potential gaps were not addressed. First, the Japanese government construed the term “sea lane defense” to protect two major “lines” connecting Japan with the Philippines and Guam. On the other hand, the United States believed the term included the area surrounding Yokosuka, Okinawa, Guam, and the Philippines, otherwise known as the “naval defense zone.”35 Second, Tokyo interpreted the term as defending only maritime transportation, partly because the jmsdf could strengthen air forces in the 1980s. On the other hand, Washington expected that it had to be a three-​dimensional operation, which necessarily meant protecting the airspace. Lastly, when the debate took place, Japan was only entitled to exercise individual self-​defense. Japan could defend the sea lanes in an emergency, but only if the protection measures fell within the constitutional limits of Article 9. Protecting US vessels engaged in an armed conflict that Japan was not involved in might have exceeded this limit. Washington did not pay much attention to this issue, partly because the plan was not limited to a wartime situation. The defense cooperation between the two states regarding the protection of sloc s was based on such ambiguity. The Defense Cooperation Guidelines of 1997 reflected that Japan-US operational cooperation included sea and airspace management. It specified maritime traffic coordination to increase sea traffic and air traffic control and airspace management in and around Japan. The focus of the 2010 National Defense Program Guidelines (ndpg) shifted from the Northern area to the South West of Japan against the background of China’s expansion. The guideline indicated that the budgets of the jgsdf would be reduced and the corresponding 33

As of June 2021, it was only in FYs1987–​1990 and FY2010 that the defense budget exceeded the one percent limit. 34 ndpo and National Defense Program Guidelines (ndpg) is a document that is issued when drastic changes in the national security policy take place. ndpg has been updated four times since then. The original 1976 ndpo was issued under Miki Takeo administration; the 1995 ndpo, under Murayama Tomiichi administration on November 28, 1995; the 2004 ndpg under Koizumi Junichiro administration on December 10, 2004 (the name has been changed since 2004); the 2010 ndpg under Kan Naoto administration on December 17, 2010; the 2013 ndpg under Abe Shinzō administration on December 17, 2013. For the background and the development of these instruments, see Yasuaki Chijiwa, “Unfinished ‘Beyond-​the-​Threat Theory’ –​Japan’s ‘Basic Defense Force Concept’ Revisited –​,” National Institute for Defense Studies Journal of Defense and Security 17 (2016): 83–​101. 35 Graham, Japan’s Sea Lane Security 1940–​2004, 122.

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resources allocated to jmsdf and jasdf. However, there was strong resistance on the part of the jgsdf so that the restructuring of the security design was not complete. Redeployment of the forces to the South West was also opposed.36 Instead, the guideline introduced the idea of dynamic defense to allow greater mobility of the sdf. The 2013 National Defense Program Guidelines introduced the concept of Dynamic Joint Defense Force to enhance the integration of the sdf. The importance of maritime cooperation was also reflected in the Guidelines for Defense Cooperation of 2015, which explicitly stated that both states will “cooperate in minesweeping, as appropriate, including to secure the safety of sea lines of communication.37” Since the end of the Cold War and the proliferation of global security threats in the 2000s, Japan has engaged in multilateral security cooperation schemes with not only the United States but other like-​minded countries. In 2002, the United States, Japan, and Australia first held a Trilateral Strategic Dialogue (tsd). Following this interchange, Prime Minister Abe Shinzō created the Quadrilateral Security Dialogue (quad) initiative in 2007 among these three countries plus India in the face of rising Chinese maritime power. quad temporarily ended with Australia’s departure in 2009 but was revived in 2017. In the meantime, Japan has engaged with capacity building projects with ASEAN maritime countries by providing training on the maritime law enforcement, defense equipment and assets such as patrol vessels. In 2016, Prime Minister Abe Shinzō called for the Free and Open Indo-​Pacific Strategy (foips).38 It is a concept to ensure a rule-​based international order by promoting the rule of law, freedom of navigation and overflight, pursuing economic prosperity by improving connectivity within the region, and committing to peace and stability. In 2017, the United States adopted its own version of foips. For the United States, its aim was to counter China’s Belt and Road Initiative and to prevent China from being a regional hegemon and preserve the security in the maritime area. On the other hand, the main aim of the Japanese version of foip  s is to improve connectivity with the Asian and African continents and to promote stability and economic growth. The policies made under

36 37 38

For the development of ndpg s in the 2010s and the interaction within the sdf, see also Kitaoka, “ ‘Proactive Contribution to Peace’ in Context,” 107. Guidelines for Defense Cooperation, Japan-​US, 2015, Section D-​3. Address by Prime Minister Shinzo Abe at the Opening Session of the Sixth Tokyo International Conference on African Development (ticad vi), August 27, 2016.

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this concept now forms an important part of its diplomacy and maritime security policy. 1.2 Deployment of the jmsdf to Counter Security Threats at Sea The Japanese government has been hesitant in dispatching the jmsdf to counter actual security threats at sea. The opponents of such a deployment had often brought up the Constitutional restrictions. In 1983, a member of the Diet raised a question whether Japan could defend a foreign vessel to protect its maritime routes. In response, the government stated that “the sdf’s securing of the sea lanes must be done within the scope of the right of the individual self-​defense.”39 When a foreign vessel was attacked on the high seas, Japan could not resort to the use of force against the attacking state only because the vessel was shipping materials to Japan.40 However, if such an attack had been done to destroy the sea lanes to Japan, then Japan could resort to self-​ defense if the Constitutional requirements for self-​defense were met.41 It was an obscure and unrealistic hypothesis. Yet, the member of the Diet and the government obsessed with the concern whether the operation in the sea lane defense would conflict with the Constitution. The practical hurdle was the lack of statutory basis. As described in Chapter 1, it is necessary for the sdf to conduct an operation. The sdf has many times been dispatched to pko and on refugee rescue missions, but there are only a few cases in which the jmsdf has gone abroad for security purposes. The government has either enacted a special measures law or picked up an existing provision from the sdf Act. The first operation was the mine clearance in the Persian Gulf beyond the territorial sea of the coastal States. On April 11, 1991, the ceasefire came into effect after Iraq accepted UN Security Council Resolution 687.42 In response to the US’s request, on April 24, the Secretary of Defense Agency decided to dispatch jmsdf to clear the mines to secure the safety of the navigation of Japanese vessels. The deployment was based on the sdf Act which authorized the mine clearance.43 The provision did not specify the geographical location, but the operation was limited to the high seas area.

39

Tanigawa Kazuo, Secretary of Defense Agency, 98th Diet, hc, Budget Committee, No. 6 at 2, March 15, 1983. 40 Ibid. 41 Ibid. 42 un sc Res. 687, April 3, 1991. 43 sdf Act, Article 84-​2 (Article 99 at the time of deployment).

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Japan deployed the sdf to support the United States’ retaliatory attacks on Afghanistan after 9.11 under specific measures act from 2001 to 2010. Initially, the United States asked Japan to join as a member of the Coalition of the Willing. Since Japan did not have the legal basis for joining the operation, it dispatched a fleet of the jsmdf for the purpose of “research and study necessary for the execution of affairs” as provided for in Article 4 of the Act for Establishment of the Defense Agency. In November, the Diet passed the Act on Special Measures against Terrorism and the Act on Special Measures concerning the Implementation of Replenishment Support Activities for Maritime Interdiction Operations against Terrorism, which formed the basis for the deployment.44 The jmsdf’s mandate was limited to replenishing vessels of the United States and other participating countries to the Operation Enduring Freedom-​Maritime Interdiction Operation (oef-​m io) in the Indian Ocean. The law had a two-​year time limit, but the government extended the duration against the background of the Iraq War of 2003 and geopolitical change in the Middle East. The Act on Special Measures against Terrorism expired in 2007. Yet, the government resumed dispatch on the basis of the new Anti-​Terrorism Special Measures Law of 2008, which replaced the older law.45 In 2007, the Japanese government sought the UN Security Council authorization so that the Diet would agree to the jmsdf’s participation in these maritime operations.46 This was notwithstanding the fact that the operation was not under the UN’s authority. In the end, the Security Council Resolution 1776 for the first time made express reference to the oef-​m io “expressing its appreciation for the leadership provided by the [nato], and for the contribution of many nations to International Security Assistance Forces (isaf) and the oef coalition, including its maritime interdiction component.”47 In January 2010, the special measures act expired, which terminated the operation, and the troops deployed in the area withdrew.48 Another case is the mission of the Gulf of Aden from 2019 to the present. On June 13, 2019, unidentified men bombed two oil tankers outside the Strait of Hormuz when economic sanctions imposed by the United States and the European Union against Iran were intensified.49 One of the tankers was the 44 45 46 47 48 49

Act No. 113 of 2001. Act No. 1 of 2008. See Gray, International Law and the Use of Force, 201. un sc Res 1776, September 19, 2007, preamble, para. 20. For the analysis, Yasuyuki Yoshida, Kaijō Soshi Katsudō No Hōteki Shosō (Osaka University Press, 2016). “Tankers Are Attacked in Mideast, and U.S. Says Video Shows Iran Was Involved,’ ” New York Times, June 13, 2019.

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Kokuka Courageous, registered in Panama and operated by a Japanese corporation. The other was the Front Altair, registered in the Marshall Islands and owned by a Norwegian company. The United States claimed that Iran was responsible for the attack, which Iran denied.50 The United States formed a coalition to monitor the area and requested Japan to join.51 Japan declined the demand out of consideration of the relations with Iran. However, the Cabinet decided to deploy the jsmdf to the region.52 The mission was the “research and study necessary for the execution of affairs” as the sdf Act provided.53 Its mandate was limited to collect information regarding the safety of the navigation in the region to protect Japan-​related vessels.54 The Defence Minister would issue a Maritime Security Operation order when it was necessary. The operation area was limited to the high seas and the eez s of the Gulf of Oman, the northern Arabian Sea, and the Gulf of Aden east of the Bab el-​Mandeb. The jsmdf is not to enter the territorial waters of the Hormuz Strait, which belongs to the territory of Iran and Oman. The area of the operation is remote from Iran, so that the actual deterrence effect is not evident. However, the fact that the Cabinet decided its deployment in a short period of time showed the stronger leadership of the administrative branch. It is noted that the jmsdf began to conduct military operations in the South China Sea, both by itself and with the United States and other close countries, since the late 2010s. In September 2018, the jmsdf’s submarine Kuroshio and the destroyers undertook the anti-​submarine exercise in the South China Sea.55 China has protested against the series of exercises as they were provocative and harm the regional stability. While it is not comparable with the US’s Freedom of Navigation Operations, because it does not go into the territorial

50 51

52 53 54 55

“U.S. Presents Evidence to Tie Tehran to Explosions,” New York Times, June 20, 2019, A10. The United States led the formation of the International Maritime Security Construct to monitor the Persian Gulf, Gulf of Oman, Gulf of Aden and Red Sea to ensure the safety of their vessels. It was formed on September 16, 2019 among Albania, Saudi Arabia, Bahrain, Lithuania, the United Arab Emirates, the United Kingdom and the United States (Australia was originally a member but concluded its contribution in December 2020). Cabinet Decision, December 27, 2019. The decision to make it accountable was made by the Cabinet, although the sdf Act only requires the approval of the Ministry of Defense. The government explains that the dispatch is made to collect information whether there is a need for operations under sdf Act, including a Maritime Security Operation. Question Statement, Sakurai Shu, 201th Diet, hr, No. 9, January 31, 2020. Motegi Toshimitsu, Minister of Foreign Affairs, 200th Diet, hr, Committee on National Security, No. 9 at 4, January 17, 2020. mod, White Paper (2020), 78.

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sea of any foreign country, it is the Japanese way to send the message that the area is open to the international community. 2

Unexpected Encounters at Sea

When sovereign vessels of two states in a strained relationship meet on the high seas, both states must manage the situation so as not to escalate the tension. The protection of maritime safety and security requires international cooperation in the case of unexpected encounters at sea. unclos obliges states to ensure safety of their ships at sea in general terms.56 The International Regulations for Preventing Collisions at Sea (colreg) provides the “rules of the road” at sea.57 It provides ships’ obligation to avoid collision when circumstances so require58 and to take appropriate measures to avoid collisions including to take a safe distance.59 It applies to “all vessels,” including naval vessels, and in “all waters” connected with the high seas and waters navigable by seagoing vessels. Provocative actions and harassments by sovereign vessels may violate rules under colreg. The South China Sea Arbitration Award of 2016 held that China’s law enforcement activities created serious risk of collision and danger to Philippine vessels and personnel, and therefore, China violated unclos.60 In order to ensure safety in such a situation, states have concluded agreements on maritime confidence-​building measures in the form of a code of conduct. The United States and ussr concluded their first Incidents on and over the High Seas Agreement (incsea) in 1972.61 So did Japan with the ussr in 1993.62 The 2000s saw an increase in similar agreements, which mainly impose due diligence obligations. The Codes for Unplanned Encounters at

56

unclos, Article 94(3). See Yurika Ishii, “Maritime Confidence-​Building Measures and the Code of Conduct at Sea,” in unclos: Solutions for Managing the Maritime Global Commons, ed. Alok Bansal, Deeksha Goel, and Siddharth Singh (Pentagon Press llp, 2021), 177–​94. 57 Convention on the International Regulations for Preventing Collisions at Sea, adopted on 20 October 1972, entered into force on 15 July 1977, 1050 unts 16. 58 Ibid., Rule 6. 59 Ibid., Rule 8. 60 South China Sea Arbitration, para. 1109. It held that Article 94 of the Convention incorporates the colregs into the duties of flag States. Ibid., para. 1090. 61 May 25, 1972, 23 ust 1168. 62 Japan=​ u ssr, November 12, 1993.

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Sea (cues),63 adopted at the Western Pacific Naval Symposium in 2014, are considered landmark instruments. They enjoy a wide range of participation, including by China.64 Japan is also a member of this group. However, cues has its limits. The content of cues largely overlaps with colreg. It is legally non-​ binding, and it frequently uses “should” or “may,” which are themselves weak wordings. Furthermore, it does not cover the operations of the coast guards. Japan has been in much need of establishing such confidence-​building measures with China and the rok. A couple of incidents took place in the East China Sea where the sdf encountered China and the rok’s provocative actions. On January 30, 2013, Chinese plan Jiangye ii frigate Lianyungang spotted radar waves through its fire-​control radar against jmsdf’s Murasame destroyer Yudachi. A lock-​on using fire-​control radar is a hostile act because it is one step before actual firing. The Japanese government strongly criticized China, stating such action was a violation of international law. Chinese senior officials later admitted that they had irradiated an offensive fire-​control radar at the discretion of the frigate’s commander. However, China did not officially apologize for the action. Furthermore, on December 20, 2018, an rok Navy destroyer, Gwanggaeto the Great, ddh-​9 71, directed its fire-​control radar against a jmsdf patrol aircraft Kawasaki P-​1 off the coast of the Noto Peninsula.65 Japan protested to the rok, which denied the allegation. The rok argued back that jmsdf’s aircraft threatened the navy which was rescuing a distressed dprk fishing boat. On June 8, 2018, Japan and China launched the Maritime and Air Communication Mechanism after 11 years of negotiation.66 The two parties agreed to hold annual meetings between defense authorities, to establish a hotline and to decide on the means of communication. There is no equivalent mechanism at sea between Japan and the rok, although they have a communication route regarding the air. In summary, it is against unclos and, depending on the situation, colreg to take measures that would put both sides in jeopardy. It requires political will on both sides to avoid any incident caused by reckless actions taken by 63 64

65 66

The Codes for Unplanned Encounters at Sea, April 22, 2014, at http://​news.usni.org/​2014/​ 06/​17/​docum​ent-​cond​uct-​unplan​ned-​enc​ount​ers-​sea. The 20-​member states are Australia, Brunei, Cambodia, Canada, Chile, France, Indonesia, Japan, the rok, Malaysia, New Zealand, Papua New Guinea, Peru, the Philippines, Russia, Tonga, Thailand, Singapore, the USA and Vietnam. There are three observer states, Bangladesh, India and Mexico. mod, “Regarding the incident of an rok naval vessel directing its fire-​control radar at an msdf patrol aircraft,” https://​www.mod.go.jp/​en/​d_​act/​radar/​index.html. Nihon Keizai Shinbun, May 9, 2018.

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the personnel. Further coordination, including the ones among coast guards, is required for the purpose of escalation management. 3

Anti-​Piracy Operations

3.1 The Development of International Anti-​Piracy Cooperation International cooperation for anti-​piracy operations formed an important part of Japan’s efforts to secure sea lanes of communication. When the number of piracy acts and armed robberies at sea increased in the Malacca Strait in the late 1990s, Japan coordinated the coastal states, particularly Indonesia and Malaysia, and provided capacity building.67 Japan took the lead in establishing the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) in 2004.68 This instrument aimed to promote international cooperation by setting up an information-​sharing center69 and providing technical and financial assistance among the states parties. To this date, Indonesia and Malaysia have not ratified the ReCAAP because they do not wish to undertake treaty obligations in their territorial seas, yet they attend the Annual Meetings of the ReCAAP isc Governing Council as observers and cooperate with the shipping industries. When the Horn of Africa’s situation got worse in the late 2000s, international society created several coalitions to combat the piracies and armed robberies. Japan took an active role in this process.70 When United States and the European Union took an active role in establishing the Combined Maritime Force, the jmsdf participated in this coalition.71 67

68 69 70 71

For details, see Yurika Ishii, “International Cooperation on The Repression of Piracy and Armed Robbery at Sea under the UNCLOS,” Journal of East Asia and International Law 7, no. 2 (2014): 335–​50. The Alondra Rainbow incident, where pirates attacked a Panaman vessel owned by a Japanese corporation on October 22, 1999, was one of the incidents that pushed the Japanese government to promote the international cooperation on this issue. See Susumu Takai, “Suppression of Modern Piracy and The Role of The Navy,” nids Security Report 4 (2003): 38-​58, 43. Regional Cooperation Agreement on combating piracy and armed robbery against ships in Asia, adopted on November 11, 2004, entered into force on September 4, 2006, 2398 unts 199. The Information Sharing Center (isc) was established in Singapore on November 29, 2006. The UN Security Council issued resolutions calling for international cooperation to combat piracy in the area. un sc Res. 1816; un sc Res. 1846. For the domestic process in Japan that advocated for a Japanese role in this naval coalition, see Sheila A. Smith, Japan Rearmed : The Politics of Military Power, 82.

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However, Japan did not have the domestic law to suppress piracy when a foreigner committed it against a foreign ship, as the following section explains. Because of the need to eradicate violence in the sea lanes, Japan initially issued the Maritime Security Operation order to dispatch the jmsdf to the Gulf of Aden. In 2009, the jmsdf participated in Combined Task Force 151, a multinational task force.72 Its mission was to prevent and suppress piracy and armed robbery at sea. Japan has further participated in international forums such as the International Maritime Organization and the Contact Group on Piracy off the Coast of Somalia. Japan in 2009 also agreed with Djibouti to locate sdf’s reconnaissance aircraft to support its surface ships on the mission in Djibouti.73 Japan concluded such arrangements in the past when it dispatched the sdf to the pko s, Zaire, Iraq, and Kuwait for humanitarian assistance. Yet, this is the first agreement to station the sdf in a foreign territory for the purpose of maritime security.74 3.2 Act on Punishment of and Measures against Piracy of 2009 Japan enacted Act on Punishment of and Measures against Piracy (Anti-​Piracy Act)75 in 2009. This Act provides criminal jurisdiction over an act of piracy where both the offender and victim vessel are non-​Japanese.76 It is the only Japanese law which provides universal jurisdiction. Japan’s penal code recognizes criminal jurisdiction based on territoriality,77 flag state,78 active personality,79 passive personality,80 and protective principles,81 among others.82 The 72

The United States led the mission and other countries joined in the efforts, including Canada, Denmark, France, the rok, the Netherlands, Pakistan, Singapore, Thailand, and the United Kingdom. 73 Arrangement between Japan and Djibouti regarding the Status of Self Defense Force in Djibouti, signed on April 3, 2009, entered into force on April 3, 2009, mofa Notification, No. 223. 74 For the potential problem that the lack of military law would cause when the sdf was stationed in a foreign territory, see Chapter 1, Section 4. 75 Act No.55 of 2009. For an unofficial English translation, see Japan Yearbook of International Law Editorial Board, “Act on Punishment of and Measures against Acts of Piracy,” Japanese Yearbook of International Law 53 (2010): 838–​43. For the structure of the Act, see Kanehara, “Japanese Legal Regime Combatting Piracy: The Act on Punishment of and Measures Agaisnt Act of Piracy.” 76 Act No. 55 of 2009, Article 2. 77 Penal Code, Act No.45 of 1907, Article 1(1). 78 Ibid, Article 1(2). 79 Ibid, Article 3. 80 Ibid, Article 3-​2. 81 Ibid, Article 2. 82 Ibid, Article 4-​2.

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Anti-​Piracy Act was necessary because, while Japan, an island country with few natural resources, relies heavily on maritime commerce, more than 90 percent of the vessels used for such transactions are registered in foreign states.83 The only case where this Act applied is the M/​V Guanabara case. On March 5, 2011, four Somali men boarded on the high seas the Bahamian oil tanker operated by a Japanese maritime commerce company. They attempted to hijack the vessel to extort a ransom, but they failed to take over control of the vessel. The next day, the US navy seized the attackers and transferred them to the jcg officer on the jmsdf naval vessel on the high seas. The alleged offenders were then taken to Japan. All of them were prosecuted before the Tokyo District Court. The Court found them guilty of having attempted to commit an act of piracy as co-​perpetrators.84 They appealed but their appeals were dismissed by the Tokyo High Court. One of the defendants appealed the judgment, yet the Supreme Court dismissed the claim.85 The significance of the case was that it clarified the meaning of the second sentence of unclos Article 105. The first sentence of this Article provides that on the high seas every state may exercise its enforcement jurisdiction to “seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates” and “arrest the persons and seize the property on board.” Hence, this first sentence provides for universal enforcement jurisdiction. The second sentence of the same article merely provides that the “courts of the State which carried out the seizure” may exercise their adjudicative jurisdiction to “decide upon the penalties to be imposed” and to “determine the action to be taken concerning the ships, aircraft or property, subject to the rights of third parties acting in good faith.” According to the defendants, this second sentence of unclos Article 105 does not provide adjudicative jurisdiction to a state other than the seizing state. The Court gave its interpretation of jurisdiction over acts of piracy under international law, stating that since ancient times piracy has been considered hostis humani generis, which threatens maritime transportation’s general safety. Under the universality principle, it is recognized that every state may

83 See Chapter 8. 84 Judgment of February 1, 2013, Tokyo District Court, unpublished. The court applied the Anti-​Piracy Act, arts 3(2) and (1), citing Article 2(1), and the Penal Code, Article 60, which provides the following on co-​principals: “Two or more persons who commit a crime in joint action are all principals.” See Kawano, “The First Experience of Prosecution under the Japamese Anti-​Piracy Act of 2009.” 85 Judgment of March 18, 2014, Tokyo High Court, 66(4) Kōsai Hanrei Shū 6, reprinted in Hanrei Taimuzu 1407: 234.

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exercise its jurisdiction to address acts of piracy.86 The Court then recognized that Article 105 does not “oblige” but instead “permits” states to exercise their jurisdiction against piracy.87 In particular, it noted that every state’s jurisdiction concerning piracy is not newly established under unclos. Instead, it has been recognized under customary international law since “ancient times.”88 Therefore, the claim put forth by the defendants was not consistent with this history and the object and purpose of the provision.89 In its substance, Article 105 provides that the seizing state may exercise jurisdiction, preferably against non-​seizing states, which include states that have a stake in the case, on the premise that every state may exercise jurisdiction, and to ensure fair and prompt adjudication and to safeguard the human rights of alleged pirates, as the seizing state has detained the suspects and retains the evidence.90

Conclusion

Japanese sea lane defense has been shaped by the tension between economic necessity, the United States’ demands to contribute to regional security, and the unstable relations with the strait states. Since the 1960s, the Japanese government has pushed for a more secure regime for the safe and connected sloc s. Yet, the domestic reluctance to dispatch the sdf abroad was for a long time at the center of the discourse. This vision gradually changed in the 1980s when Japan began to pay its fair share in securing its maritime commerce. After the Cold War, Japan led new frameworks to ensure a free and open naval domain. In addition, because of the globalization of the maritime security threat –​the increase in piracy and terrorism –​Japan contributed to establishing international cooperation regimes, including ReCAAP and anti-​piracy cooperation regimes against Somali pirates. These are the efforts made in the demands of internationalism. 86 Ibid., 7. 87 Ibid. 88 Ibid. 89 Ibid. 90 Ibid. See Ishii, “M/​V Guanabara: Japan’s First Trial on Piracy Under the Anti-​Piracy Act,” 45.

­c hapter 8

The Use of Civilian Assets for National Security Management

Introduction

It is common for a government to use civilian assets for national security management. The Japanese government charters, operates, or otherwise commands a civilian vessel to transport goods and persons to preserve national security. The vessel’s status depends on the contract, and it could become a government ship, or it could remain a private vessel. In addition, the government may issue a navigation order (kōkai meirei) under the Marine Transportation Act in an exceptional situation.1 This chapter examines the legality and the policy of such measures. 1

Historical Backgrounds

It is appropriate to start with the historical backgrounds. The Japanese mariners greatly suffered from the 1930s to the end of World War ii for the government’s failure to use civilian vessels to pursue the war. It formed the transporters’ distrust of the government. Japanese shipping industries had started to flourish since the 1890s.2 After its victory in the Sino-​Japanese War of 1894 to 1895, the Japanese navy went through technological and strategic development. The government undertook the construction of new fleets, partly funded by China’s indemnity in settlement of the war.3 Against the background of worsening Russo-​Japanese relations, in January 1903 the Minister of the Navy started to reorganize the combined fleets. As part of the project, the government incorporated 30 civilian vessels into the navy and furnished them as military vessels, such as

1 Marine Transportation Act, Act No. 187 of 1949. 2 The Japan Shipping Association was established in 1892, then as the Union of Japanese Shipping Industries. It played a central role in promoting maritime communication. 3 David C. Evans and Mark R Peattie, Kaigun: Strategy, Tactics and Technology in the Imperial Japanese Navy 1887–​1941, (Naval Institute Press, 2012), 57.

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004500419_010

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cruisers and hospital ships.4 Such practice continued pushed the industry to grow in the 1920s.5 From the latter half of the 1920s, the Japanese navy started to expand to counter the United Kingdom’s and the United States’ naval superiority. These two countries tried to curb Japan’s attempt through the Washington and London Conferences. Because of the disarmament treaties and financial limits, the Japanese navy subsidized the private sector to build ships that could be converted into warships when necessary. The first project was to sponsor the vessel construction that continued from 1932 to 1936.6 In 1937, the government started a project, which was specifically intended to transform a private ship into a warship.7 In 1938, when the Sino-​Japanese War escalated, the Diet passed the National General Mobilization Law.8 This instrument allowed the government to control human resources and materials to maximize national power for national defense purposes during wartime.9 It also authorized the government to confiscate necessary materials and to force civilians to engage in duties for the war effort besides military service. A criminal sanction was to be imposed on citizens who refused to obey this order.10 The National Conscription Order followed in 1939.11 It was an order to implement Article 4 of the National General Mobilization Law, which authorized the government to force nationals to work, and Article 6, which stipulated the use and the working conditions of the laborer. In accordance with this order, the government started to take over merchant and fishing vessels to transport military and civil goods. In 1941 the Vessels Protection Act was enacted.12 The Act authorized the Navy to protect vessels in time of war or a similar emergency from enemy attack and other military harm threatening navigation. It allowed the military to command the owners and captains of vessels regarding the protection of

4 5 6 7 8 9 10 11 12

Senji Nisshi [Diaries at War] (1), December 28, 1903 (on file with the National Institute for Defense Studies), Ref. No. C09050281400, at 5. These measures were based on Order on the Special Fleet Units, Internal Order No. 116 of 1919. Cabinet Office, Bureau of the Economic Planning, Daiichiji Taisengo Saikin ni Itarumadeno Kaiun Hojo Seisaku [The Subsidiary Policy of the Marine Commerce after the World War I](1950), 257–​261. The main condition for the subsidies is that the boat is equipped with a hatch in a particular position which satisfied the specific size and strength requirements. National General Mobilization Law, Act No. 55 of 1938. Ibid, Article 1. Ibid, Articles 30-​45. Imperial Order No. 451 of 1939. Vessels Protection Act, Act No. 74 of 1941.

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their equipment and the training of their crews.13 If the owner and the captain disobeyed the order, they were criminally sanctioned.14 The Act aimed to put civilian vessels under the military’s control and, contrary to its name, it eventually put the vessels in jeopardy. It was not until November 1943 that the military established the maritime protection headquarters to protect civilian vessels. In 1942, the Imperial Order of War Time Control of Maritime Transportation was issued.15 It implemented the National General Mobilization Law and, specifically, allowed the government to control and conscript vessels. It also established the Association of the Control of Vessels, an organization in charge of such control measures. This Order allowed the military to enlist the crews and reserve personnel of the conscripted vessels. Even when the navigation was to be conducted in dangerous areas, the Order entitled the military to issue a forcible order against the crews. It was the final step in controlling Japanese maritime transportation. However, because the merchant crews were poorly trained, the loss of civilian vessels was devastating. More than 7,000 vessels sank, 60,000 crew and fishermen lost their lives, and more than 15,000 boats16 in total were damaged.17 Against this background, there remains distrust among the private sector against the government. 2

Chartering a Civilian Vessel in Time of Emergency

2.1 The Gulf War and the Use of Civilian Vessels and Aircraft After the Cold War ended, the government’s use of the civilian sector for public projects restarted. If done in a peacetime, this action would not raise serious

13 14 15

Ibid, Article 2. Ibid, Articles 5 & 6. Order of War Time Control of Maritime Transportation (Senji Kaiun Kanri Rei), Imperial Order No. 235 of 1942. 16 These vessels included ones used not only for military practice but also daily transportation. 17 Cabinet Office, Daiichiji Taisengo Saikin ni Itraumadeno Kaiun Hojo Seisaku (Japanese) (1949), 250. The death rate of the civilian crews was approximately 43 percent, as opposed to 16 percent of the Navy crews. More than half of the vessels (56.5 percent) were sunk by submarine attack, while other causes were air strike (30.8 percent), mines (6.7 percent), and distress (4.9 percent). 473,800 members lost their lives. Kaijo Rodo Kyokai, Nihon Shosentai Senji Sonan Shi [The History of the Disaster of the Merchant Fleets at the Time of War] (Seizan-​do, 2007), 10. See also Kouichi Akatsuka, “Dainiji Sekai Taisen Ikono Kokusai Funso to Nihon Kankei Senpaku (Japanese),” Nihon Kaiyo Seisaku Gakkaishi 9 (2019): 66–​81.

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issues. However, the problem arises when such use exposes the civilian vessels to a security risk. The first occasion after World War ii in which the government chartered a civilian vessel was the Gulf War. Iraq invaded Kuwait on August 2, 1990, and the war led by the Coalition of Will started on January 17, 1991. Japan was under pressure from the United States to support its ally. Besides the financial contribution, which was not appreciated by the recipient governments, the Japanese government also helped them with transportation. At that time, the special measures law for dispatching the sdf had not passed the Diet. Therefore, the government consulted with civilians and, based on the informed consensus, it chartered two Japanese merchant freighters, the Key Splendor and the Hirato Maru. The captains and all of the crews were Japanese.18 Then the government agreed with the United States to use these vessels to transport necessary materials. In the Diet, the mofa explained that Japan and the United States had agreed that the vessels would operate under five conditions.19 First, the vessels should not transport any arms, ammunition, or military personnel. Second, the contents of the cargo should be revealed to the Japanese government. Third, the transportation of the vessels should be done under the control of the Japanese government, and the vessels should only be controlled by Japanese personnel. Fourth, Japanese government officials should be present at the starting point and the ending point of the operation to secure the smooth loading and unloading of the cargo, when necessary. Lastly, the governments of Japan and the US should consult closely about the safety of the crewmembers. When it was questioned whether such cooperation went against Article 9 of the Constitution, the Cabinet Legislative Bureau staff explained that the use of force this provision prohibited was an organizational and physical exercise of power. That financial contribution was not included in that concept in 18

19

Nakayama and Susumu Hashimoto, “Wangan Senso Deha Chuto Kokensen to Shite Nihon Shosen Ga Busshi Yuso [In the Gulf War, Japanese Commercial Vessels Transported the Materials as Contributing Ship to the Middle East],” Kaiin, 2002, 74. In an interview, the Key Splendor’s captain, Mr. Hashimoto, mentioned that the All Japan Seamen’s Union had negotiated with mofa and then the Ministry of Transportation. Since the company in which Mr. Hashimoto worked was not a big corporation, their union-​backed navigation was reassuring for the crews. Matsuura Koichiro, mofa, Director, 120th Diet, hr, Budget Committee, No. 3 at 10, December 13, 1990. Besides sending these civilian ships, the Japanese government also chartered airplanes. In December 1990, the Diet reported that since September 21, there had been 24 flights between the United States and Saudi Arabia and five flights between Japan and Saudi Arabia.

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general.20 Also, the transportation that the government had agreed upon was not an action that could be integrated into the use of force by the US and other forces.21 The government, thus, confirmed that such cooperation in transportation was within its mandate. However, after the Gulf War was concluded, it was questioned in the Diet whether these five requirements had been fulfilled. It was mentioned that the freighters carried military materials, although they were not weapons per se. The Key Splendor left Yokohama on October 12 and headed to Dammam in Saudi Arabia while carrying 3,000 tons of deck equipment for helicopters that could be used in the desert.22 Dhahran Airfield, the Royal Saudi Air Force Air Base, is located approximately 30 km from Dammam, and the 101st United States Air Force helicopter squadrons were deployed at that airbase. It was reasonably alleged that this deck equipment was used for the squadrons. The vessel then left Dammam on November 11, went through the Suez Canal, and entered Bayonne, New York, on December 9. Then it loaded 176 trailers and traveled back to Dammam on December 21. When the ship came close to Muscat, Oman, the news came in that the Coalition Forces had started air strikes on Iraq. Instead of unloading the trailers at Muscat and carrying them on land, the United States directed the vessel to Dammam. It entered the port on January 22 and discharged the cargo. The vessel left Dammam on January 24, stayed in Muscat from January 26 to February 13, and then headed to Japan. The Hirato Maru, which stopped at Hueneme Port in the United States and then headed toward Saudi Arabia, was reported to be carrying tents for an open battle and welding equipment, heat protectors and water.23 Moreover, it was reported that the vessels were not under the sole control of the Japanese government. The ports that these two ships stopped at were military ports strictly controlled by the United State. While it was explained in the Diet that Japanese consular representatives were there at the cargo’s loading, the United States managed the operation.24

20

Ōmori Seisuke, Legislative Office of Cabinet Office, 118th Diet, hr, Cabinet Committee, No. 13 at 11, August 31, 1990. 21 Ibid. 22 Kusakawa Shozō, Member, 120th Diet, hr, Budget Committee, No. 3, December 13, 1990. 23 Ibid. 24 Nakayama and Hashimoto, “Wangan Senso Deha Chuto Kokensen to Shite Nihon Shosen Ga Busshi Yuso [In the Gulf War, Japanese Commercial Vessels Transported the Materials as Contributing Ship to the Middle East],” 76.

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Therefore, although they were under a neutral flag, if they were seen as having carried military materials for the United States and acted under its direction, these vessels could have been regarded as a military target. Merchant vessels flying the flag of neutral states may be attacked if they make an effective contribution to the enemy’s military action by carrying military materials and it is not feasible for the attacking forces to first place passengers and crew in a place of safety.25 In addition, even if the Key Splendor remained neutral, it was put in a physically dangerous position because the vessel had to sail close to missiles. The government also explained that when it asked the civilians to cooperate, it did not expect them to go to areas where battle was raging or where the probability of battle was high.26 In particular, the Japanese government explained in the Diet that the vessels would not cross into a dangerous zone. The Key Splendor crossed the line of 52’ west longitude to carry the goods to Saudi Arabia based on the crews’ consensus.27 While the United States provided gas masks and medicines for an emergency at the captain’s request, it could not afford to escort the vessel or to provide tug boats. When the vessel entered Dammam, Iraq launched missiles twice, and a pac-​3 countered the missiles. The master later wrote that he was grateful that all of the crew were Japanese, so that they could agree on the voyage.28 This logic that because the ship is not supposed to go into dangerous areas there is no need to be concerned has a striking resemblance with the explanation regarding logistical support in an Important Influence Situation. The government maintains that support will “never” involve entering an actual conflict zone. In fact, that there is always a possibility that the ship will enter a dangerous zone in an armed conflict. The government did not discuss this issue, and there has been little open debate on this issue.

25

International Institute of Humanitarian Law, San Remo Manual on International Law Applicable to Armed Conflicts at Sea Rule 67(f).The rule provides that “[u]‌nless circumstances do not permit, they are to be given a warning, so that they can re-​route, off-​load, or take other precautions.” 26 Matsuura Koichirō, Director, mofa, 120th Diet, hr, Budget Committee, No. 3 at 10, December 13, 1990. 27 Nakayama and Hashimoto, “Wangan Senso Deha Chuto Kokensen to Shite Nihon Shosen Ga Busshi Yuso [In the Gulf War, Japanese Commercial Vessels Transported the Materials as Contributing Ship to the Middle East],” 76. 28 Ibid.

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2.2 The mod’s Chartering of Nacchan World and Hakuou In 2013, the Abe Administration published a National Security Strategy Report for the first time.29 It specified that the dprk’s development of ballistic missiles and nuclear weapons would pose a grave threat to the entire international community.30 It also mentioned that Chinese activities may threaten other states’ use of the global commons.31 Against this background, in 2015 the government contracted with an operation company to charter the high-​speed craft Nacchan World and Hakuō . The main reason for this project was a financial one. The government considered that it would be less expensive to conclude this contract than to construct a new Ōsumi-​class tank landing ship. The agreement was based on the Act on Promotion of Private Finance Initiative (pfi Act), which allows the public sector to use private social infrastructure.32 Both vessels were large-​sized ferries that halted their commercial operations. Nacchan World, operated by Tsugaru Kaikyō Ferry in Hakodate, Hokkaidō, started sailing in 2008. The cost of its construction was 9 billion yen. However, because of the rise in fuel cost, it stopped its scheduled transportation in six months, and after 2012 it halted its operation altogether. Similarly, Hakuō, operated by Shin Nihonkai Ferry, started its process in 1996, and it was the fastest ferry in Japan at that time. It routinely connected Hokkaidō and Fukui and could carry 500 passengers and 200 vehicles. However, it halted its operation in 2012, also for financial reasons. The use of these vessels benefits private parties as well. To enable the sdf to operate these vessels, Kosoku Marine Transport was established as a particular purpose company according to the pfi method.33 The mod concluded the contract with this company. In peacetime, the company could operate the two ferries for profit-​generating projects, drills, and disaster relief missions involving the sdf.34 In a case of emergency, the mod would use them to carry sdf troops and weapons. Once they were involved in

29 30 31 32 33 34

Cabinet Office, National Security Strategy, December 17, 2013. English Translation is available at http://​japan.kan​tei.go.jp/​96_​abe/​docume​nts/​2013/​_​_​i​csFi​les/​afi​eldf​ile/​2013/​12/​17/​ NSS.pdf. Ibid., 7. Ibid., 8. Act on Promotion of Private Finance Initiatives, Act No. 117 of 1999. The company representing the corporation is Sojitsu. The other companies include Libera, Tsugaru Kaikyo Ferry, Toyo Marine Service, Nihon Tsuun, Shin Nihonkai Ferry, jmt, and Yutaka Shipping. At the time of Kumamoto earthquake in April 2016, the Hakuou carried the Ground Unit of the sdf from Hokkaidō to Kumamoto.

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a national emergency, the vessels were part of the sdf’s operation. The operation started for the Nacchan World in October 2016 and for the Hakuo Ferry in April 2017. The use of these vessels was not without its problems from a strategic point of view. While they have sufficient transportation capability, they are not designed for military operations, nor are they prepared for physical attack. The plan may be to use them before any actual conflict begins, but this strategy is not suitable for any imminent security threat. A vulnerability may emerge through the use of non-military vessels. Another issue was the sdf’s use of a reserve system to secure boat operators for the task since few crews had a license to operate large commercial vessels.35 The mod planned to use private mariners who were qualified as reserve sdf personnel to participate in ship operations in time of emergency.36 They can act as sdf personnel once they are dispatched at the time of a defense operation or a natural disaster. A Ministry official explained that Kosoku Marine Transport hired ship operators who were likely to volunteer as reserve officers, even though the company was requested not to force its employees to apply for sdf reserve positions. The mariners’ union criticized the reserve system’s introduction because it reminded it of World War ii’s bitter experiences.37 While the government is asking the shipping companies to encourage their employees to apply for the reserve system, it also tries to ensure that they will not be in a disadvantageous position by declining the application.38 The Vessels at a Time of Natural Disaster and a National Security Emergency The civilian vessels may be necessary to treat the wounded and sick in a case of emergency. Currently, the sdf does not possess any hospital ship that satisfies 2.3

35

“Ferry company launched under Defense Ministry plan to use private ships in emergencies [Yuji Yuso, Minkan no Niseki Kakuho, Sen’in Yobijieikan-​ka],” Mainichi Shinbun, March 17, 2016. 36 The reserve system for training civilians and registering them as reserved personnel. Within the reserve positions, there are a rapid-​reaction reserve component (Sokuō Yobi Jieikan) and a general reserve component (Ippann Yobi Jieikan). The mariners are expected to take the latter path so that they may be entitled to act as sdf personnel at a time of national security emergency. 37 “Conscription de facto,” Mariner’s Union Opposes to the Plan [“Jijitsu-​jo no Choyo,” Kaiin Kumiai ga Hanpatsu],” Mainichi Shinbun, January 29, 2016. 38 Ibid.

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the conditions the Second Geneva Convention of 1949 (gcii) poses.39 The Japanese government first considered a multi-​purpose hospital ship in the Gulf War, when the jmsdf operated abroad for the first time, but it did not. Yet, such ships’ necessity became apparent after the Great East Japan Earthquake on March 11, 2011, when the tsunami destroyed medical facilities on land. The government started to discuss such vessels’ availability, and the final report was published in 2013.40 One of the issues was a financial one.41 The report pointed out that the pfi and Public-​Private Partnership schemes would not be helpful because of the vessel’s exceptional character.42 Under these schemes, the government could charter a vessel that the private sector possessed, construct a vessel, let the private sector operate it, or share the construction cost and the vessel’s property rights with the private sector. However, to make immediate use of the vessel in time of emergency, the report recommended that the government control its operation. If that was not possible, it recommended chartering a civilian tourist ship, loading a medical module, or using the existing vessels of the sdf and jcg. In 2014, Tsugaru Kaikyo Ferry announced that it had constructed three mega-​ size ferries –​the Blue Dolphin, the Blue Mermaid, and the Blue Happiness –​capable of conducting humanitarian assistance operations in time of natural disaster or emergency. The ferries contain hospital rooms so that doctors may provide adequate aid to the wounded and elevators to carry large stretchers. They also have generators so that they can charge electric automobiles. Typically, they are used as ferries to connect Aomori and Hakodate. In 2014, the Blue Mermaid participated in a Disaster Medical Assistance Team training session, demonstrating its capability.

39

40 41 42

Convention (ii) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Articles 34 and 35. As of 2020, only China (No. 866 Peace Ark), the Russian Federation (Irtysh, Svir, and Yenisey) and the US (usns Comfort and usns Mercy) have military hospital ships. For the current situation concerning the hospital ships, see icrc, Commentary of Convention (ii) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Comment on Article 22, para. 609 (2017, Online Edition). Cabinet Office, Saigaiji Tamokutekisen (Byoinsen) ni kansuru Chosa, Kento Hokokusho [Report of the Investigation and Examination with regards to Multi-​Purpose Ships (Hospital Ships)] (March, 2013). Ibid., at 39, 41. It was estimated to cost 30–​35 billion yen (approximately 276 -​322 million US dollars) to construct a polyclinic hospital ship. Its maintenance fee would be 2 billion yen (about 18 million US dollars) a year. Ibid., 57.

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In March 2014, mlit Maritime Bureau published the Final Report regarding the Usage of Vessels at a Time of Massive Disaster.43 It proposed that the government conclude pre-​arrangement agreements with the service providers, and at a time of crisis, the mlit would request them to transport the necessary materials. 3

Navigation Order under the Marine Transportation Act

The Marine Transportation Act was enacted in 1949 to maintain maritime transportation to protect marine transportation users’ interests and encourage its development.44 The Navigation Order authorizes the government to force Japanese vessels to sail from one point to another. Seafarers’ Law Article 26(1) provides that the mlit may order a ship operator to sail when necessary for disaster relief or the maintenance of public safety and when there are no qualified persons to sail voluntarily. Article 26(2) says that the Minister will ensure the safety of the vessel and the seafarer engaged in the navigation. The Minister should secure the safety of the voyage, and when such safety is not possible, the government will not issue the Navigation Order. A Navigation Order is also issued when Japanese nationals have to return to Japan.45 Initially, a Navigation Order was only issued for navigating between ports in Japan. However, in 2012, international navigation came to be included despite sailors’ opposition. The Navigation Order has as yet never been published. The employer’s due regard obligation for employers was strengthened when the Marine Transportation Act was amended in 2012. For crew members to enter into an employment contract, the vessel’s employer must clarify the wage, working hours, and other labor conditions.46 The employer is obliged to explain that the navigation is under the Navigation Order,47 because navigation under the order is substantially different from normal commercial navigation. A person who does not obey a Navigation Order can be imprisoned for six months and fined.48 43 44 45 46 47 48

mlit, Daikibo Saigaijino Senpakuno Katsuyo to ni Kansuru Chosa Kentokai, Saishu Hokoku [Final Report with regards to the Usage of the Vessels at the Time of Massive Disaster] (March, 2014). Act No. 187 of 1949. Act on the Navigation Order for the Transportation of Japanese Collectively Returning from Foreign Countries, Act No. 35 of 1947, last amended Act No. 160 of 1999. Act No. 100 of 1947, Article 32. Ibid., Amended Act, Article 32(2). Ibid., Article 49.

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An important precedent is the Chiyoda Maru case of 1968, which reached the Supreme Court.49 In 1952, the Syngman Rhee Line was declared, and the rok government warned that if Japanese vessels entered the area, they would be attacked. In 1956, the US requested the Nippon Telegraph and Telephone Public Corporation (ntt), a telecommunications corporation, to fix the submarine cable in the Tsushima Strait between Busan and Tsushima, on the Korean side of the Syngman Rhee Line. ntt was established as a government-​ owned entity in 1952. It was privatized in 1985. It ordered Chiyoda Maru, its cable-​laying barge, to conduct the operation. However, the company’s union strongly opposed the demand, and one of its branches prohibited the vessel from leaving. In response, ntt fired three executive officers of that branch since they had violated Article 17 of the Public Corporations and National Enterprise Labor Relations Act,50 which prohibited strikes by employees of public corporations. When the legality of their firing was disputed, the Supreme Court declared that the dismissals had been unjust. It first affirmed a real danger within the area, and that the parties were fully aware of this risk. The US Navy would escort the voyage, but the Court stated that the action was not sufficient. The dangers caused by military activities could not be avoided, even if both the employers and employees took all the reasonable efforts. Even if the possibility of danger was not necessarily large, crews could not be forced to conduct an operation that would jeopardize their lives. Therefore, the firing of the employees was unacceptable and unreasonable because it went beyond the corporation’s discretions. This court decision set a precedent that allows crewmembers to refuse to sail a vessel, even if under the Navigation Order. However, under current law, no safeguard provision prevents employers from punishing their employees who refuse to sail. 4

Securing the Japanese Flags

Finally, it is necessary to overview the government’s effort to secure the Japanese flags. In order to secure the maritime commerce, it is significant to secure private vessels registered to Japan. However, its number significantly decreased after the 1970s. While there was a time when 1,580 vessels used for international navigation were registered to Japan in 1972, the number dropped

49 50

Supreme Court, Third Small Chamber, December 24, 1968, Minshu 22(13): 3050. Public Corporation and National Enterprise Labor Relations Act, Act No. 83 of 1949.

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to 98 in 2008, which meant that less than 4 percent of vessels were registered to Japan. Most of these were registered to flags of registry, such as Panama, Liberia, Singapore, Hong Kong, the Marshall Islands, and the Bahamas. This imbalance in registration was recognized to be an impediment for Japan’s national security. In 2007, milt published a report that claims that at least 450 ships registered to Japan, along with 5,500 Japanese crews, would be necessary if, in a national crisis, Japan had to survive for a year with only Japanese vessels.51 In 2008, the Japanese government started tonnage-​based standardized taxation in order to incentivize Japanese corporations to register their vessels to Japan. With this taxation, the operator of vessels for international navigation is required to submit a plan to secure Japanese vessels and Japanese crew. Once the milt accepts the plan, the operator can choose deemed profit taxation instead of regular corporation tax, corporation residence tax, and corporation operation tax. The intention of the plan is to double the number of foreign navigation vessels that are registered to Japan, as well as to recruit and train one crewmember per vessel, and secure four crews per vessel at all times. The number of the crews should not reduce during the enforcement of the plan. One of the major incidents which reminded policy makers of the importance of Japanese flags was the East Japan Great Earthquake on March 11, 2011. The disaster destroyed major ports in the north east of Japan. It also caused the partial nuclear meltdown of the Fukushima Daiichi Nuclear Power Plant, along with the explosion caused by hydrogen gas. Because of this disaster and the danger of nuclear leakage, a number of maritime transportation companies avoided stopping at ports in the Keihin area.52 The United States, Panama, Liberia, Germany, and France recommended avoiding navigation in the area a certain distance from the Fukushima First Nuclear Plant because the increasing radiation was concerning.53 On other occasions, ships cancelled drop-​offs at Fukuoka Port, which is more than 1,000 km away from Fukushima. In addition, port officials in Xiamen, China, detected radiation on a large container ship belonging to a Japanese shipping operator and quarantined the vessel.54

51

milt, Antei teki na Kokusai kaijo yuso no Kakuho no tameno Kaiji Seisakuno Arikata ni tsuite [On the Maritime Policy for Securing Stable International Transportation] (Japanese) (December, 2007), 7. 52 Japan Shipping Association, Shipping Now (2015) 25. 53 Keith Bradsher, “Global Supply Lines at Risk as Shipping Lines Shun Japan,” New York Times, March 25, 2011. 54 Ibid.

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This incident prompted the government to increase the Japanese registered vessels. In December 2012, the amended Marine Transportation Act Article 39-5 established a new system to allow foreign vessels that Japanese owners owned to be registered to Japan as “quasi-​Japanese vessel[s]‌.” A quasi-​Japanese vessel is one that is permitted by the Minister to be registered to Japan to obtain a Japanese flag in case of emergency. This allows for a de facto tax reduction for Japanese owners by imposing a size-​based business tax. At the same time, this vessel will be subject to an order by the government in the emergent situation to take part in transportation to and from Japan. In addition, another amendment of the same law in April 2017 allows the owner of a quasi-​Japanese vessel to undergo a simpler procedure for registering the vessel than a foreign subsidiary of a Japanese legal person can. It is expected that the Japanese government will secure and expand the vessels and the crews so that they will be used in case of emergency.

Conclusion

The connection between the Japanese maritime security and the civilian asset is not always apparent. However, the government has used the private vessels for the purpose of the cooperation with the United States. Furthermore, it tried to secure the maritime assets in case of emergency after the Tōhoku Earthquake in 2011. It has also taken policies to encourage Japanese operators to register their assets to Japan. It is required that the government does not put civilian assets and mariners in jeopardy, and therefore, the clarification of the rules is essential.

Conclusions This volume started by criticizing the unilateral pacifism embedded in Japanese national security law. Japan, the geopolitical lynchpin in the East Asian region, has limited the mandates and functions of the jcg and the sdf that counters security threats. Regional stability backed by the United States has long left Japanese policy makers and academics indifferent to the dynamism of the security environment, even after the rise of new maritime powers. Furthermore, the anti-​war sentiment and a belief in the uniqueness of Constitution Article 9 made realistic and proactive debates on national security difficult. The government lacked a long-​term strategy and instead took a responsive approach. However, when Japan enacted its implementing laws of the law of the sea conventions, particularly unclos, the government had to take various security considerations into account. By examining the history, legislation, and policies on Japanese maritime security, this book has made the case that this unilateral pacifism partially defined Japanese laws regarding its rights and obligations in territorial sea, eez and continental shelf as well as on the high seas. In this process, it has shown how the various national security issues in different domains –​law of the sea, police power in law enforcement, and jus ad bellum –​come to coexist with one another over time. While this concluding chapter does not intend to summarize all the details explored in the main text, the following three points are illustrative. The first concerns national defense. When it comes to protecting Japanese territorial sea and air, Japan has relied on the police function of the sdf and the jcg to maintain public order. Under international law, whether and to what extent a military or a police organization may take coercive measures against foreign sovereign vessels or aircrafts in such a situation is subject to debate. The logic employed by the Japanese government has been that it is entitled to take measures to thwart danger, as a part of its territorial sovereignty, as long as they are compatible with international law, including the principle of sovereign immunity. Notwithstanding its justification based on the territorial sovereignty, Japan’s domestic laws, which authorize the jcg and the jmsdf to secure the maritime domain, have developed in a restrictive and responsive manner. The jcg’s use of weapons against delinquent vessels is subject to rigorous restrictions as is the jmsdf’s authority to deal with national security threats.1 As a result, there remain cases where these organizations may not be able to take effective measures to counter maritime threats. For instance, there is a gap between the 1 Chapter 1, Section 3. jcg Act Article 20(2).

© Koninklijke Brill NV, Leiden, 2022 | DOI:10.1163/9789004500419_011

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maximum authorization of the sdf under the Maritime Security Operation and the threshold of the Defense Operation.2 As a result, the jsmdf would be unable to react effectively to threats that did not meet the threshold of an armed attack. The latest legislation in 2015 did not fill this hole because it did not provide specific provision to deal with such a situation. In practice, both the jcg and the sdf spend enormous resources and efforts not to take coercive measures against foreign vessels and aircrafts. Their main strategy is to manage the crisis and to prevent the escalation by discouraging the opponents to take provocative actions. Such deterrence is, of course, backed by the sufficient military capability and the strong Japan-​U S alliance. However, the legal gap as described above means that the agencies bear the risk of being involved in the conflict without efficient means to counter the threats. A systematic and coherent security regime, instead of a patchwork of rules, is necessary to maintain the integrity of national security. The second point focuses on Japanese maritime claims. The government established the 12 nm territorial sea3 and the designated areas in the five main straits4 based on a careful balancing between Japan’s desire for broader freedom of the seas, the need to accommodate U ​ S forces, and neighboring states’ interests in natural resources. It also limited the scope of its domestic law’s application on the eez and the continental shelf to their median line, while maintaining the full 200 nm entitlement in terms of international law. It reflect Japan’s specific interests and considerations on the relations with its neighboring states. Japan does not claim any zone that is not justified under unclos. To this extent, it supports the comprehensiveness of this convention. However, the analysis of this book reveals that it did not accept this notion from the beginning. Its unique policies, such as establishing the designated areas in five straits and limiting its EEZ and the continental shelf to the median line in overlapping areas, were not to reflect the rules of the convention. In fact, several issues that require sufficient accountability remain. For instance, the Japanese government chose to cover the straits, other than the five major straits where it established high sea corridors, with the territorial sea, claiming that those areas are not used for international navigation.5 It would be no longer tenable for the government to claim that the international rules on the transit passage regime are “not clear.” Statistics should provide empirical support for this policy. In addition, it is time that Japan provided its position regarding the 2 3 4 5

Chapter 1, Section 2. Chapter 3, Section 1. Chapter 4, Section 1. Chapter 4, Section 2.

204 Conclusions overlapping eez and continental shelf on the Japanese side of the geographical equidistance line.6 Furthermore, Japan has not abandoned its interpretation at least in an official setting to read unclos Articles 121(1) and 121(3) separately.7 These standpoints would indicate that Japan did not fully support the collective exhaustiveness of the convention. The third point pertains to international cooperation for preserving maritime security. Japan’s defense of the sea lane is primarily based on the Japan-​U S alliance. However, in the post-​Cold War era, the Japanese government enacted policies that exemplify its proactive approach to cooperating with other countries for international security. Japan has undertaken efforts to establish confidence-​building measures with neighboring countries. It has also led anti-​piracy operations in, inter alia, Malacca Strait and the Horn of Africa states and provided capacity building measures to Southeast Asian states.8 Furthermore, Japan’s foip design will facilitate efficient international communication. These policies have primarily established new economic connections with South Asia and Middle Eastern countries and have strengthened maritime collaboration in the region. It is not that Japanese domestic laws and policies violate the UN Charter, unclos, and other relevant conventions to which Japan is a party and customary international law. However, its maritime securities policies do not fully represent collective interests of the international community and Japanese interests. This book attempted to identify gaps and ambiguities in contemporary challenges that require responses beyond what has been accepted in Japanese domestic law. For this reason, this book proposed an internationalist perspective. Internationalism could, on practical and systemic grounds, function only to a limited extent. However, without attempts to situate Japanese security law in an international context, Japanese security will remain insufficient in the maritime sphere. The development of the law of the sea after World War ii has played an important role in Japan’s improvement of its maritime security policy. The law of the sea, enshrined in unclos, is understood as serving a constitutional function. Its basis is not a quid pro quo bargain between coastal and user states. It has evolved to enable states to coexist and cooperate by enhancing inclusive interests. Its principles are to promote international communication and the sustainable and efficient use of the maritime domain. 6 Chapter 5, Section 1.1.3. 7 Chapter 5, Section 1.3.2. 8 sdf Act, Article 82-​2.

Conclusions

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The national security interests of each state may limit the constitutional function of the law of the sea. Maritime disputes usually involve conflicts over territorial titles, which is beyond the governance of the unclos, or undelimited areas. In the case of Japan, the major security threats today derive from undelimited regions in the East China Sea and the Sea of Japan and China’s contestation regarding the Senkaku Islands. Furthermore, in the Asian region, law enforcement agencies traditionally address security threats at sea. However, the law of the sea has carefully balanced the need for warships and coast guard vessels to defend the coastal states’ territory effectively and the demand for other vessels to traverse smoothly through foreign territorial seas and straits. A coastal state’s rights to protect exclusive interests persist, but only alongside other states’ rights and the common interests of the international community. Accountability on the maritime security is necessary to ensure the safety and security. A shift from unilateral pacifism to internationalism would be neither drastic nor simple. However, it is necessary to go through this path because international cooperation is indispensable to maintain free and open seas. The contribution of the present volume is to offer empirical basis to answer many questions that arises out of the dynamism of Japanese maritime security and law of the sea.

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Index

Treaties and Other International Arrangements

1855 Treaty of Commerce, Navigation and Delimitation, Japan-​Russia 102 1875 Treaty of Saint Petersburg, Japan-​Russia 103 1905 Treaty of Portsmouth, Japan-​Russia 103 1907 Hague Convention (v) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land 58 1907 Hague Convention (xiii) Respecting the Rights and Duties of Neutral Powers in Naval War 58 1907 Russo-​Japanese Convention, Japan-​Russia 103 1919 Convention on the Regulation of Aerial Navigation 156 1925 Convention on the Basic Principles of Mutual Relations, Japan-​the Soviet Union 104 1928 Convention Respecting the Regulation of the Liquor Traffic, Japan-​US 62 1941 Neutrality Pact, Japan-​Russia 148 1945 Charter of the United Nations (UNCharter)  Article 2(4) 18, 25, 31, 43, 44, 90, 91, 163 Article 51 43, 44, 45, 46, 168 1949 Geneva Convention (i) on Wounded and Sick in Armed Forces in the Field 56 1949 Geneva Convention (ii) on Wounded, Sick and Shipwrecked of Armed Forces at Sea 56, 197 1949 Geneva Convention (iii) on Prisoners of War 56, 58 1949 Geneva Convention (iv) on Civilians 56 1951 Security Treaty, Japan-​US 45, 158 1951 Treaty of Peace with Japan (San Francisco Peace Treaty) 1, 8, 15, 105, 137, 138, 149, 158 Article 2(c) 105 1952 Administrative Agreement under Article iii of the Security Treaty, Japan-​US 158

1953 Mutual Defense Treaty, rok-​u s 107 1954 Mutual Defense Assistance Agreement, Japan-​US 46 1956 Convention Concerning the High Seas Fisheries of the Northwest Pacific Ocean, Japan-​Soviet Union 149 1958 Convention on the Territorial Sea and the Contiguous Zone (Territorial Sea Convention) 64, 77, 80 Article 14(4) 73 Article 16(4) 93, 98, 107 1958 Convention on the Continental Shelf (Continental Shelf Convention) 150 Article 2(4) 116 1958 Convention on Fishing and Conservation of the Living Resources 116 1960 Treaty of Mutual Cooperation and Security, Japan-​US 82 1965 Agreement concerning Fishery Management, Japan-​r ok 139 1972 Incidents on and over the High Seas Agreement (incsea) 183 1972 International Regulations for Preventing Collisions at Sea (colreg) 183 1974 Joint Development Agreement of the Continental Shelf, Japan-​r ok 142 1974 Maritime Delimitation Agreement of the Continental Shelf, Japan-​ rok 114, 142 1975 Fishery Agreement, Japan-​r ok 143 1977 Additional Protocol (i) to the Geneva Conventions 56 Article 43(1) 58 1977 Additional Protocol (ii) to the Geneva Conventions 56 1982 United Nations Convention on the Law of the Sea (unclos)  Article 6 133 Article 7 69 Article 18(2) 71, 73 Article 19 31, 70

222 Index Article 19(1) 73 Article 19(2)(j) 73 Article 19(2)(l) 88 Article 20 84 Article 23 74 Article 25 70, 87 Article 25(1) 31, 85 Article 33 70 Article 37 98 Article 38 107, 111, 112 Article 56 124 Article 58 124 Article 58(1) 169 Article 58(2) 156 Article 58(3) 125 Article 73 121 Article 74(3) 123, 138 Article 76 147 Article 83(3) 123, 138, 148 Article 87 169 Article 87(1) 156 Article 96 90 Article 105 187 Article 111 70 Article 121 129, 134 Article 248 126

1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal  Article 6(1) 75 1995 United Nations Fish Stocks Agreements  Article 22(f) 27 1998 Statute of the International Criminal Court 57 2001 Framework of Mutual Prior Notification for Marine Research Activities, China-​Japan 127 2004 Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (recaap) 185 2005 Suppression of Unlawful Acts Against the Safety of Maritime Navigation, Protocol  Article 8–​5(10) 27 2008 Understanding of the Joint Development in the East China Sea, China-​Japan 147 2008 Understanding on the Development of the Shirakaba Oil and Gas Field, China-​Japan 147 2014 Codes for Unplanned Encounters at Sea (cues) 184

223

Index



Topics, Individuals, Domestic Legislations and Others

Editorial Notes 1. Japanese laws, policies and governmental organizations are listed in the items of “Japanese Cabinet Decisions,” “Japanese Constitution,” “Japanese Laws,” “Japanese Policies,” and “Japanese organizations.” Agencies independent from the government and organizations in the private sector are individually listed.  2. Country specific laws and policies are listed in the respective names of the countries.  3. Cases of international courts and tribunals are listed in the items of respective institutions, i.e., the International Court of Justice, International Tribunal for the Law of the Sea and Annex vii Arbitral Tribunals.  A ccg’s drone over Senkaku Islands (May 18, 2017) 164 Abe, Shinzō 5, 179, 195 Advisory Panel on Reconstruction of the Legal Basis for Security 39 Agano River 116 Air Defense Identification Zone (adiz) 155, 169 China 170 Japan 9, 35, 169 Air Defense System 159 Akatsuki Maru 76 Alaska 116 Amami Islands 136 Amami Ōshima 35, 109 Amami Ōshima Incident (December 22, 2001) 32, 35 Anholt 92 Annex vii Arbitral Tribunal  2007 Guyana v. Suriname 26, 148 2016 South China Sea 89, 130, 183 Anticipated Armed Attack Situation 18 anti-​military sentiment 5 anti-​piracy measures 36 Arafura Sea 115 Armed Attack Situation 18, 39 Asian-​African Legal Consultative Committee (aalcc) 66 Association of Southeast Asian Nations (asean) 96 Bab el Mandeb 96 Baijiating 147 ballistic missile defense (bmd) 165 Baltic Sea 93

Bashi Channel 7 Belenko, Viktor Ivanovich 161 belligerent rights 54, 59 Bering Sea 149 Berth Strait 99 Bikini Atoll 78 Bornholm 92 Bristol Bay 116 Brown, Harold 176 Burns, Robert Whitney 160 Cabinet Decisions, Japan –​see Japanese Cabinet Decisions Cape Krilon 106 Caribbean Community (caricom) 76 ccg No. 1304 110 ccg No. 2506 110 Cheju Strait 106 China  Belt and Road Initiative, 2013 179 Central Military Commission (cmc) 89 Chinese Coast Guard (ccg) 37, 88 Chinese Coast Guard (ccg) Act 89 Article 21 90 Article 50 90 jurisdictional maritime area 89, 91 mid-​ocean archipelagic waters 89 National People’s Congress 89 Nine-​Dash Line 89 People’s Armed Police Force 89 People’s Liberation Army (pla) 35, 85 People’s Liberation Army Navy (plan) 37 People’s Liberation Army Air Force 155 State Oceanic Administration 164 State Oceanic Committee 88

224 Index China Fisheries Association 143 Chishima 63 Chiyoda Maru 199 Coalition of the Willing 181 Cold War 5 collective self-​defense 16, 43, 49 Combined Maritime Force 185 Commission on the Limits of the Continental Shelf (clcs) 122, 134, 147 Committee of Experts for the Progressive Codification of International Law 63 compartmentalization among agencies 4 Contact Group on Piracy off the Coast of Somalia 186 coral poaching 145 Cuban Missile Crisis 6, 174 Daigo Fukuryū Maru Incident (March 1, 1954) 78 Danjo Archipelago 127 Defense Operation 18, 49, 55, 57, 59, 90 defense sea area 103 Democratic Party, Japan 128 designated areas 67, 92, 98 designated remote island 137 Dulles, John Foster 105 East China Sea, continental shelf 147 exclusive zone 117 Fat Man (August 9, 1945) 78 Fehmarn Belt 92 First United Nations Conference on the Law of the Sea (unclos i) 64, 80 Ford, Gerald 175 foreign military supplies 53 Franco-​Prussian War, 1870–​1871 62 Free and Open Indo-Pacific Strategy (FOIPS) See Japanese Policies freedom of navigation 7 Front Altair 182 Fujiyama, Aiichiro 82 General Headquarters (ghq) 1, 15, 21Gibraltar Strait 111 Gillard, Julia 179 Ginko-​maru 67 Gotō Islands 115, 145

gray zone situation 38 Great East Japan Earthquake (March 11, 2011) 76, 197 Guam 7 Guidelines for Defense Cooperation, Japan-​ US, 1978 6 Guidelines for Defense Cooperation, Japan-​ US, 1997 7, 24, 51, 178 Guidelines for Defense Cooperation, Japan-​ US, 2015 7, 49, 179 Gulf War, 1991 2, 23, 192, 215 Gwanggaeto the Great, ddh-​97 184 Hague Rules of Aerial Warfare, 1923 157 Hakuō 195 Heiyō, therok’s protest (August 16, 2020) 123 Herter, Christian 82 Hirato Maru 192 historic bay 67 Hobson, Kenneth B. 160 Hormuz Strait 96 Horn of Africa 36 hospital ship 196 Imperial Order of War Time Control of Maritime Transportation 191 Important Influence Situation 51 individual self-​defense 15, 49, 168, 178 Informal Single Negotiating Text (isnt) 96 inspection 53 integration of use of force 52 Inter-​Governmental Maritime Consultative Organization (imco) 96 International Civil Aviation Convention, 1944 156 International Court of Justice (icj)  1949 Corfu Channel 98 1969 North Sea Continental Shelf 120 1986 Nicaragua v. The UnitedStates 44, 49 2004 Palestinian Wall 47 2012 Nicaragua v. Colombia 129 International Criminal Court (icc) 57 International Law Commission (ilc) 64 International Maritime Organization 186 International Peace Cooperation Operation 52 International Security Assistance Forces (isaf) 181

Index International Tribunal for the Law of the Sea (itlos)  1999 M/​V Saiga 28 2007 Hōshinmaru 152 2007 Tomimaru 152 2017 Ghana v. Côte d’Ivoire 147 internationalism 9, 12, 188 Iraq War, 2003 181 Ishigaki Island 85, 109, 127 Iwo Jima 136 Izu Shichishima 100 Japan Fisheries Association 66 Japan-​China Fisheries Council 143 Japan-​China Security Dialogue, 1999 127 Japanese Agency for Marine-​Earth Science and Technology (jamstec) 133 Japanese Business Federation 96 Japanese Cabinet Decisions  December 24, 1996 (Submerged Submarines) 35, 85 July 1, 2014 (Development of Seamless Security Legislation) 39 May 14, 2015 (Armed Groups’ Unlawful Landing of Remote Islands) 40 May 14, 2015 (Foreign Warships) 40, 87 May 14, 2015 (Japanese Private Vessels on the High Seas) 40 Japanese Constitution  Article 9 2, 14, 43, 162, 178, 192 Article 72 2, 16 Article 73(1) 2 Article 98(2) 70, 121 Japanese Laws  Act No 45 of 1907, Penal Code  Article 3 56 Act No. 74 of 1941, Vessels Protection Act 190 Act No. 5 of 1947, Cabinet Act  Article 6 16 Act No. 100 of 1947, Seafarers’ Law  Article 26 198 Act No. 136 of 1948, Police Duties Execution Act  Article 7 29, 33 Act No. 28 of 1948, Japan Coast Guard (jcg) Act  Article 18 71

225 Article 19 29 Article 20(1) 29, 30, 32 Article 20(2) 30, 72 Article 25 59 Act No. 70 of 1949, Mining Security Act 120 Act No. 83 of 1949, Public Corporations and National Enterprise Labor Relations Act  Article 17 199 Act No. 187 of 1949, Marine Transportation Act 189, 198 Act No. 267 of 1949, Fisheries Act 32 Act No. 289 of 1950, Mining Act 120 Act No. 162 of 1952, Law on the Development of Natural Resources of Oil and Gas 120 Act No. 226 of 1952, Law on the Maintenance of the Sea Lane to the Isolated Island 136 Act No. 231 of 1952, Aviation Act 161 Act No. 72 of 1953, Act on the Promotion of the Isolated Islands of 1953 136 Act No. 164 of 1954, Act for Establishment of the Defense Agency, 23  Article 4 181 Act No. 165 of 1954, Self-​Defense Forces (sdf) Act  Article 3 17 Article 7 17 Article 76 45 Article 76(1) 49 Article 76(1)(ii) 48 Article 80 59 Article 82 33, 37 Article 82–​3 167 Article 84 155, 162 Article 88 18 Article 88(1) 20 Article 88(2) 43 Article 93(1) 33 Article 93(2) 33 Article 93(3) 33 Article 95 23, 33, 40 Article 95–​2 25, 40 Act No. 166 of 1957, Act on the Regulation of Nuclear Source Material, Nuclear Fuel Material and Reactors 77

226 Index Japanese Laws (cont.) Act No. 60 of 1967, Act on Regulation of Fishing Operation by Foreign Nationals 65, 70 Act No. 136 of 1970, Act on the Prevention of Marine Pollution and Maritime Disaster 122 Act No. 30 of 1977, Act on the Territorial Sea 93, 99 Act No. 31 of 1977, Provisional Measures Law on the Fishery Zone 119, 125 Act No. 62 of 1977, Act on the Prevention of Collision 71 Act No. 93 of 1987, Act concerning the Deployment of International Emergency Assistance Unit of 1987 23 Act No. 79 of 1992, Act on Cooperation with United Nations Peacekeeping Operations and Other Operations (pko Act) 2, 19, 23 Act No. 73 of 1996, Law on Territorial Sea and Contiguous Zone 69, 100 Article 3 31 Act No. 74 of 1996, Law on the eez and the Continental Shelf 121 Act No. 76 of 1996, Law on the Exercise of Sovereign Rights over Fisheries and Other Activities in the eez 121 Act No. 77 of 1996, Law on the Preservation and Management of Ocean Living Resources 121 Act No. 60 of 1999, Act on the Situation in Areas Surrounding Japan /​Important Influence Situation Act 24, 51 Act No. 117 of 1999, Act on Promotion of Private Finance Initiative 195 Act No. 145 of 2000, Inspection of the Vessels in the Surrounding Situation Act 51 Act No. 79 of 2003, Armed Attack Situation Act 24, 45 Act No. 115 of 2004, Act on Penal Sanctions against Grave Breaches of the International Humanitarian Law 56 Act No. 116 of 2004, Act on the Restriction of Maritime Transportation of Foreign Military Supplies and Others in Armed Attack Situations 24, 53

Act No. 33 of 2007, Basic Act on Ocean Policy 136 Act No. 1 of 2008, Act on Special Measures concerning the Implementation of Replenishment Support Activities for Maritime Interdiction Operations against Terrorism 181 Act No. 64 of 2008, Law on Navigation of Foreign Ships in the Territorial Seas and Internal Waters 71 Act No. 55 of 2009, Act on Punishment of and Measures against Piracy 37, 186 Act No. 41 of 2010, Act on Facilitation of Law-​Water Line and Facilities for the Preservation and Promotion of the Use of Exclusive Economic Zone and Continental Shelf 136 Act No. 76 of 2015, Act to Amend a Part of the Self-​Defense Forces Act to Contribute to the Peace and Security of Japan and the International Society 25 Act No. 33 of 2016, Special Measures Law on Protection of the Remote Islands on Borders and the Maintenance of the Local Community within Certain Remote Islands 137 Article 132 165 Japanese Organizations  Coastal Safe Force 22 Defense Agency 23, 100 Fisheries Agency 65 Headquarters for Ocean Policy 128 Imperial Navy 21 Japan Air Self-​Defense Force (jasdf) 5 Japan Coast Guard (jcg) 22, 28 Japan Ground Self-​Defense Force (jgsdf) 5 Japan Maritime Self-​Defense Force ( jmsdf) 5 Joint Staff Control 5 Joint Staff Council 5 Ministry of Foreign Affairs (mofa) 53, 74, 103 Ministry of Land, Infrastructure, Transport and Tourism (mlit) 28 Ministry of Transportation 22 National Police Agency 17, 162

227

Index National Police Reserve 1, 20 National Safety Forces 21 National Security Council 5, 10 Navy Ministry 103 Nuclear Regulation Authority 77 Safety Security Force 23 Japanese Policies  1957 Basic Policy on National Defense 173 1961 Second National Defense Plan for 1962–​1966 173 1967 Third Defense Build-​up Plan for 1967–​1971 173 1967 Non-​Nuclear Principles 77, 94 1970 Fourth Defense Build-​up Plan 174 1976 National Defense Program Outlines 175, 178 1983 The 1,000 nm Sea-​Lane Defense Policy 7, 176 1995 National Defense Program Outlines 178 2004 National Defense Program 10 2010 National Defense Program Guidelines 178 2013 National Defense Program Guidelines 179 2013 Second Basic Ocean Policy Plan 128 2016 Free and Open Indo-​Pacific Strategy (foips) 179 2018 Third Basic Ocean Policy Plan 28 Japanese Proclamations of the Grand Council of State  August 29, 1870 62 July 28, 1870 62 Japan-​Sino Fishery Joint Committee 144 Kadena Air Base 159 Kamchatka Peninsula 66, 116 Kamen Opasnosti (Nijouiwa) 106 Kawasaki P-​1 184 Key Splendor 192 Kim, Dong-​Jo 138 Kim, Jong Il 166 Kim, Jong Un 50, 166 Kishi, Nobusuke 82, 96 Kisshin Maru No. 31 Incident (August 16, 2006) 151 Kokuka Courageous 182 Korean War, 1950–​1953 1, 20, 107, 169

Kosoku Marine Transport 195 Kunashiri Strait 100 Kurile Islands 8 Kuroshio 182 Laeso 92 law enforcement at sea 25 law of neutrality 53 League of Nations, Hague Codification Conference, 1930 63 Lianyungang 184 Liberal Democratic Party, Japan 5, 67, 128, 140 Little Boy (August 6, 1945) 78 London Conference, 1930 190 M/​V Guanabara 187 M/​V Saiga 28 MacArthur ii, Douglas 82 Malacca Strait 95, 96, 111, 185 Malacca Strait Council 96 marine data collection activities in eez 125 marine research 73 Maritime and Air Communication Mechanism 184 maritime law enforcement 25, 28 maritime police authority 86 Maritime Security Operation 33, 85, 112, 186 Marshall Islands 78 Matsumae, Misoo 160 Michael 63 MiG-​25 Incident (September 6, 1976) 161 Miki, Takeo 74, 78, 177 Minamitori Island 136, 137 Minjinyu 5179 Incident (September 7, 2010) 32, 73 minor self-​defense 46 Missile Defense Operation 168 Miyako Island 115, 145 Miyako Strait 109 Mizuki 32 Mori, Yoshirō 127 Nacchan World 195 Nakasone, Yasuhiro 174 Nakatani, Gen 110 Nansei Shotō 7 National General Mobilization Law 190

228 Index necessary minimum force 15 Nemuro Straits 105 neutrality 59 Nippon Foundation, Japan 96 Nixon, Richard 68, 95 Non-​Nuclear Principles –​ see Japanese Policies Norota, Hōsei 34 Northern Territories 8, 137, 150 Noto Peninsula incident (March 23, 1999) 31, 34, 38 Notsuke Suido 100 nuclear power plants 76 nuclear weapons 79, 82 Obuchi, Keizō 140, 156 odeco Nihon sa 120 Ogasawara Islands 7, 115, 145 Ōhira, Masayoshi 176 Ohno, Yoshinori 168 Oki 136 Okinawa Trough 141, 142 Okinoerabu Island 109, 164 Okinotori Island 32, 90, 114, 134, 136, 137 Ōmori four elements 52 Ōmori, Masasuke 52 Onodera, Itsunori 50 Operation Enduring Freedom-​ Maritime Interdiction Operation (oef-​m io) 181 Orange Ocean Incident (February 4, 1993) 30 Ōsumi Strait 92, 111 overlapping eez and continental shelf 122 Peace Line (Syngman Rhee Line) 138 Persian Gulf operation, 1991 180 Pinghu 147 preferential rights 117 Public Security Operation 17, 59 Quadrilateral Security Dialogue (quad) 179 Ravenna 63 Reagan, Ronald 176 renunciation of war 14 Republic of Korea  Peace Line, 1952 66

Submarine Mineral Resources Development Law, 1970 141 Rhee, Syngman 138 Rodong i 165 Rossia 62 Rudd, Kevin 179 Russo-​Japanese War, 1904–​1905 62, 103 Ryūkyū Islands 7, 114 Sakhalin Peninsula 105 Sasebo Prize Court 62 Satō, Eisaku 77, 79, 174 sea lanes of communication (sloc) 7, 94, 172 Sea of Okhotsk 149 seamless response 39 Second United Nations Conference on the Law of the Sea (unclos ii) 64 Security Consultative Committee 161 Senkaku Islands 8, 30, 37, 71, 88, 91, 137, 152, 164, 170, 218 Seto Naikai 67 Shikoku Basin Region (skb) 135 Shirakaba 146 Shirakaba Oil and Gas Field 147 Skagen 92 Somalia 36 Sound Channels 92 South China Sea 89, 115, 182 Southern Kyūshū -​Palau Ridge Region 134 Southwest Islands (Nansei shotō) 114 Soviet Union  Bulganin Line, 1956 66, 149 Sōya Strait 92, 102, 104 Suharto 96 Sukarno 96 Sunda Strait 96 Survival Threatening Situation 18, 48, 50 suspicious vessels (fushinsen) 30, 86 Suzuki, Zenkō 108, 176 Sweden  Ordinance Concerning Intervention by Swedish Defence Forces, 1982 87 Syoyō, therok’s protest (January 11, 2021) 123 Taepodong i 166 Takeshima 8, 137, 138, 140, 141

229

Index Takuyō, the rok’s protest (January 22, 2021) 123 Tamanoura 41 Tanaga Strait 111 Tarama Island 85, 109 Texada Incident (November 29, 1966) 67 Third United Nations Conference on the Law of the Sea (unclos iii) 65 Tianwaitian 147 Tokara Island 136 Tokara Strait 100, 110, 111 Tokunaga shogunate 61 Tokuno-​shima 164 tonnage-​based standardized taxation 200 Torres Strait 99 total allowable catch 121 Trilateral Strategic Dialogue (tsd) 179 Tsugaru Kaikyo Ferry 197 Tsugaru Strait 92 Tsushima 136 Tsushima East Channel 92 Tsushima West Channel 92, 106 Tu-​16J Incident (December 9, 1987) 164 Tung Sheng Chi No. 16 Incident(April 25, 2016) 32, 135 unexpected encounters at sea 183 unilateral pacifism 3, 60, 202 Unimak Strait 111 United Nations 64 United Nations Observation Group in Lebanon to monitor Lebanon 23 United Nations Seabed Committee 117

United States  Nixon Doctrine, 1969 6, 95, 174 New Pacific Doctrine, 1975 175 United States Coast Guard 137 United States Air Force 157 United States Navy 7 United States Navy Sea, Air, and Land Teams 35 use of force 18 use of weapons 19, 29, 90, 157, 162, 202 uss Houston 79 uss Ticonderoga 83 Vietnam War, 1955–​1975 6, 58, 95, 174 warships 74 Washington Conference, 1922 190 Weinberger, Casper 177 Wu, Dawei 109 Y-​Committee 22 Yokoate Island 109 Yonaguni Island 109, 170 Yonakuni 32 Yoron Island 109 Yoron Island Submarine Incident (August 21, 1980) 83 Yoshida Doctrine 6 Yoshida, Shigeru 6 Yudachi 184 Zhu, Rongji 127