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Opinion: Japan needs legal basis to effectively counter China near Senkakus

  • March 18, 2021
  • , Nikkei , p. 4
  • JMH Translation

By Former Defense Secretary Shigeru Ishiba


(Interviewed by Hiroshi Minegishi)


It may be that China has been waiting for a time when it can get revenge for the humiliation it has endured since the Opium War of 1840. China’s actions toward Hong Kong are likely motivated by China’s Taiwan policy. China is serious about unifying with Taiwan, even if it requires armed conflict. We should be aware that that’s China’s goal in implementing the Hong Kong national security law and the Coast Guard Law.


China Coast Guard (CCG) vessels have effectively become part of the People’s Liberation Army; these vessels must be considered warships. China has introduced a vague concept of “jurisdictional waters,” and now it may proceed to unilaterally declare the waters near the Senkaku Islands “Chinese jurisdictional waters.” Japan, together with likeminded nations, should warn China that such an action would be in violation of international law, although that is unlikely to persuade China to change its course of action.


The Japan Coast Guard (JCG) would be the first to respond to incidents that involve the CCG. The mission of the Japan Coast Guard Law, however, doesn’t include the maintenance of security in Japan’s territorial waters. Any vessel that sails in another country’s territorial waters, causing harm or posing a threat, is in violation of that nation’s sovereignty. As such, there is a fundamental question whether these incidents should be addressed by the JCG under its patrolling authority.


To allow the JCG to respond to grey-zone security incidents, Japan should revise the Japan Coast Guard Law and eliminate Article 25, which stipulates that “no provisions in the law shall be interpreted to mean that the JCG and its members are to be organized, trained, or allowed to function as a military force.” The change would provide a legal basis for enhancing the capabilities of JCG ships to match those of warships by mounting them with more powerful weapons. If that measure turned out to be insufficient, Maritime Self-Defense Force (MSDF) vessels should be deployed.


In that case, the MSDF would take over the JCG’s patrolling authority. In order to facilitate a better response, the Self-Defense Forces Act should be revised as well.


As for firing at vessels (without legal consequences even if the firing were to cause damage), the government doesn’t have many options other than repeating its position that firing at vessels remains a possibility in the implementation of an operation. Based on the assumption that firing would be allowed in the case of a serious offense punishable by over three years of imprisonment, Japan should formulate rules beforehand on when and by whom the judgment [to fire] is made so that those involved in the incident don’t have to make the decision on the spot. The fact that the use of weapons is in accordance with international law and in line with international practice even under patrolling authority should be clearly stated in advance.


Japan and the U.S. have agreed that the Senkaku Islands are included in the scope of Article 5 of the Japan-U.S. Security Treaty. But even if a situation were to emerge that were beyond the JCG’s and the MSDF’s ability to resolve and Japan asked the U.S. to take action, the U.S. might not want to become involved. It is not hard to imagine a situation where China created a fait accompli, and the U.S. kept away. Japan as a sovereign nation should address incidents near the Senkakus. Formulating a seamless response, both in terms of legal provisions and in capabilities, would be a deterrence to China.


When taking action, China will bring the CCG under the command of the Chinese military to conduct an integrated operation. Japan should also create a framework for a combined operation involving both the JCG and the MSDF, instead of abruptly transferring the powers of the JCG to the MSDF. The two organizations should share rules on such details as who leads a joint operation, and they should facilitate tabletop and hands-on training exercises to avoid indecisiveness or staggered response in the event of an incident.


Ultimately the government must take full responsibility, because elected officials are the only ones who directly bear responsibility for the Japanese people. Thorough and detailed discussions are needed. (Slightly abridged)


Shigeru Ishiba joined The Mitsui Bank upon graduating from Keio University. Elected to the Lower House for the first time in 1986, he was the Director General of the now-defunct Defense Agency under the Koizumi administration and Defense Minister under the Fukuda administration. Ishiba also served as Secretary-General of the LDP. He has been elected 11 times from Tottori Prefecture’s electoral district no. 1.

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