Preserving Order in Japan’s EEZ: Toward a New Paradigm of Maritime Security

A Surprising Incursion by Chinese Poaching Vessels

With Japan-China ties badly frayed by tensions over the Senkaku Islands and historical controversies rooted in nationalism, a new flashpoint emerged last fall from a largely unexpected quarter. This latest threat to healthy bilateral relations was an epidemic of coral poaching by Chinese ships within Japan’s exclusive economic zone around the Ogasawara Islands, roughly 1,000 kilometers south of Tokyo.

Instances of Chinese or Taiwanese ships poaching coral in Japanese waters have occurred sporadically in the past, but 2014 witnessed an explosion in the number of poaching vessels entering the EEZ. According to information provided by the Japan Coast Guard, the number rose from 17 in mid-September to 40 in early October, then soared to more than 200 by late October. For the next few weeks—excluding a few days during which an approaching typhoon temporarily cleared the area—about 200 Chinese poaching ships swarmed about the Ogasawara Islands. By November 27, they had all withdrawn from the area, according to media reports.

It was a tense month and a half for the Ogasawara islanders and the nation as a whole. Although the Japanese government did its best to cope by sending surveillance and policing vessels from the Fisheries Agencies and elsewhere to assist the Japan Coast Guard’s patrol ships, the sheer number of Chinese boats, combined with the challenge of apprehending fishers in the act, made it impossible to interdict the poachers in a timely fashion.

Background and Response by the Chinese Government

Coral is a valued commodity in China, and the demand for red coral in particular has risen sharply in recent years. The extraordinary popularity of Japanese red coral on the Chinese market and the high prices it commands have received considerable attention in the Japanese media. In January 2014, a Nagasaki district court handed down a suspended prison sentence to a Chinese fishing boat captain arrested the previous December on charges of poaching coral off the Gotō Islands of Nagasaki Prefecture, noting that “[Some] in China, attracted by the rarity value of legally protected coral, hoped to exploit it for economic gain.” The case reflected the organized incursion of Chinese fishing vessels into the waters around the Miyako Islands of Okinawa Prefecture, the Gotō Islands, and the Ogasawara Islands in search of the contraband Japanese red coral that is commanding such high prices in China.

Plundering the Region’s Natural Treasures

Red coral is protected by national law in China, much like the giant panda and the crested ibis. Recognizing the status of red coral as an endangered species, the Chinese government has a natural responsibility to strictly limit its harvest by Chinese fishers, cracking down on poachers on the high seas and in the EEZ of other countries just as it does in China’s waters. Yet the Chinese government’s response to the recent poaching in Japan’s EEZ has been half-hearted in the extreme. While promising to crack down, it appears to have taken no effective measures to address the illegal activity. Nor did the China Coast Guard take substantive action to restrain the poachers.

According to most reports, about a third of the Chinese vessels involved were from Fujian Province, while the remainder were from Zhejiang. These are the very coastal provinces in which President Xi Jinping rose up through the party ranks, serving 17 years in Fujian and 5 years in Zhejiang. Given his strong connections to the region, it seems obvious that Xi could have prevented the poaching ships from setting sail if he had been concerned about the state of Japan-China relations and serious about preventing further deterioration.

Inasmuch as the victim was Japan, however, one cannot but suspect that the Chinese poachers had the tacit approval of the Communist Party, the government, and the China Coast Guard to keep up their illegal activities until such a time as the Japanese government raised a major fuss or succeeded in cracking down by itself. The best one can say is that Beijing showed itself largely indifferent to the possibility of a further escalation in bilateral tensions over the issue.

The Japanese government, for its part, did make an effort to monitor and crack down on the Chinese poachers by dispatching Coast Guard patrol ships and other vessels to the area. However, given the Coast Guard’s commitments elsewhere, it was unable to deploy more than a handful of boats to deal with some 200 hundred fishing vessels, and the Chinese poachers were able to avoid apprehension simply by suspending their illegal activity the moment a patrol boat came into sight. Given these constraints, as well as the difficulty of identifying the exact limits of the no-fishing zone, the best the Coast Guard could do was charge a handful of poachers with evading boarding and inspection or ignoring an order to stop under the provisions of the Fisheries Act.

This situation fueled very natural feelings of helplessness and resentment among the Japanese citizenry. Yet under current Japanese law, our officials were doing all that they were able to do. It should be added that the Japanese government’s determination to respond in a cool and measured manner so as to avoid further enflaming bilateral tensions presented the world with a striking and favorable contrast to Beijing’s laissez-faire policy.

Rights and Duties of Coastal States in the EEZ

The exclusive economic zone is a sea zone provided for by the United Nations Convention on the Law of the Sea, or UNCLOS. When a coastal state establishes an EEZ under the provisions of UNCLOS, all marine and seabed resources within the zone, which can extend up to 200 nautical miles (about 360 kilometers) from the coast, belong to that coastal state, and other countries are prohibited from exploiting or using those resources without express permission.

UNCLOS does not prohibit foreign ships from entering the EEZ; to the contrary, it guarantees the “right of innocent passage”—that is, navigation that is not prejudicial to the peace or security of the coastal state—through coastal waters. However, it does grant the coastal state economic sovereignty over the EEZ. This means that other states must receive permission from the coastal state to engage in such economic or economically related activities as fishing, fishery surveys, resource exploration, or scientific research. With respect to these activities, or any others that bear on the economic sovereignty of the coastal state, foreign ships must comply with the domestic laws of the coastal state within the EEZ and can be punished for violating those laws.

In keeping with the provisions of UNCLOS, Japan established its own EEZ through the Act on Exclusive Economic Zone and Continental Shelf. Known as the EEZ Act, the law gives Japan legal jurisdiction over the following activities within the EEZ.

1. Exploration and exploitation of natural resources; establishment and use of artificial islands, installations, and structures; protection and preservation of the marine environment; and marine scientific research.
2. Any activity (other than those listed in 1 above) pertaining to exploration or exploitation for economic purposes.
3. Excavation or drilling of the continental shelf.
4. The execution by Japanese civil servants of duties pertaining to the items enumerated above and any actions that impede those duties.

Through this law, the Japanese government clearly established its economic sovereignty within the EEZ and its right to prevent and punish violations of that sovereignty by foreign ships through the application and enforcement of the relevant Japanese statutes.

The establishment of an EEZ is the right of every coastal state, and any coastal nation that establishes an EEZ has a duty to consistently enforce relevant and appropriate domestic laws within its EEZ. By the very act of establishing an EEZ, a coastal nation is committing itself to helping maintain order at sea by reconciling the rights of coastal nations to engage in the kind of economic maritime activity that has expanded so rapidly in recent years with the basic principles of freedom of use and freedom of navigation that are at the heart of traditional international maritime law. What this means is that a country cannot simply establish an EEZ and then do nothing to protect it. It is under obligation to apply and enforce appropriate domestic laws in a manner compatible with the letter and spirit of UNCLOS, neither grossly overstepping nor grossly neglecting its jurisdiction. If coastal states were simply to assert their right to an EEZ without enforcing the appropriate laws fairly and justly, they would be putting at risk the very international order that the UN convention was designed to maintain.

Dealing with China’s Double Standard

When it comes to the principles of economic sovereignty and jurisdiction over coastal waters, China is guilty of an egregious double standard. On the one hand, it has grossly violated the spirit of UNCLOS and traditional maritime law with its excessive claims to EEZ rights within the South China Sea. On the other hand, it has been passive and negligent in the extreme when it comes to cracking down on Chinese poachers operating within Japan’s EEZ.

Under the circumstances, the Japanese government must be commended for its measured response. While taking the utmost care—to the point of walking on eggs—to avoid further inflaming Japan-China tensions, it did its utmost to beef up surveillance and policing by Coast Guard ships and other vessels in a manner consistent with the spirit of UNCLOS. The Coast Guard, which has been forced to invest a huge portion of its resources in security operations in the East China Sea around the Senkaku Islands, had to overcome major physical and psychological difficulties to cope with this new problem, but in the end it rose to the challenge. Nonetheless, the incident threw into high relief the challenges Japan faces in cracking down on poaching in the EEZ under the Fisheries Act and other individual domestic laws, which in essence require that the poachers be caught in flagrante delicto in order to be prosecuted or expelled from the EEZ.

According to some media sources, moreover, the Coast Guard made a conscious decision to place priority on keeping illegal fishers out of the EEZ rather than prosecuting them in consideration of the sheer expense and trouble involved in arresting, indicting, and trying such a large numbers of poachers. If these reports are based in fact, such a policy is inexcusable. It is the duty of coastal states under UNCLOS to enforce the law, and this duty must be scrupulously carried out, regardless of circumstances.

The Need for Comprehensive Legislation

In order to mount an organized, institutional response to such incursions, Japan urgently needs to supplement the various individual laws currently on the books with comprehensive, integrated legislation restricting the economic activities of foreign vessels within the EEZ, whether through amendment of the aforementioned EEZ Act or through enactment of a new law. The need for a better legal framework goes far beyond the protection of red coral. Given recent findings, it appears highly probable that the seabed within our EEZ contains substantial reserves of potentially valuable resources, including manganese nodules and methane hydrate. Comprehensive legislation is absolutely vital if Japan is to manage these resources appropriately in the years to come. Indeed, if we fail to take such measures and continue to respond to each challenge on a limited, ad hoc basis, we will eventually compromise the national interest.

In addition to reinforcing the legislative basis for protecting the EEZ, we desperately need to augment the operational capabilities of the Japan Coast Guard. It is time to formulate comprehensive maritime policy measures geared to the current situation in the East China Sea as well as to the threats to economic sovereignty discussed above.

In addition, even though the government responded to the recent incursion by Chinese ships as a poaching incident, we must bear in mind the possibility that some of those vessels were sent to gather intelligence and take all possible measures to guard against electronic and radio eavesdropping in our coastal waters. In addition to cracking down on poachers, we need to beef up the Self-Defense Forces’ efforts in the gathering of electronic information and other intelligence. Good information is critical to an effective response in situations like the recent spike in poaching around the Ogasawaras, and is a basic building block of national security and maritime law enforcement.

Toward a New Integrated Paradigm

The Coast Guard led Japan’s response to the recent incident, and it will continue to play this role in similar situations going forward. But the time has come to begin exploring a new paradigm for marshaling Japan’s combined maritime capability.

I am not suggesting, as some have recently, that Japan should consider mobilizing its Maritime Self-Defense Force for such contingencies, taking advantage of provisions of the Self-Defense Forces Act that permit the prime minister to authorize the deployment of the SDF when there is a special need to protect Japanese life or property or to maintain law and order. Rather, I propose a permanent joint program that integrates the capabilities of our maritime law enforcement and security forces.

A good example of such a program elsewhere is the US effort targeting illicit drug trafficking in coastal waters along the Central American isthmus. The US Naval Forces Southern Command/US 4th Fleet participates in this mission in addition to conventional security operations. Although the mission is technically law enforcement, which differs from the use of military force, the US 4th Fleet is permitted to deploy destroyers and aircraft to supplement the resources of the US Coast Guard, which are insufficient for the task. Both participate in the Joint Interagency Task Force (JIATF), a multiagency program targeting aerial and maritime traffic attempting to bring drugs into the United States.

Given the prevalence of anti-American sentiment in Central America, there initially was concern within the United States that joint counterdrug operations by US Coast Guard patrols and naval vessels and aircraft in the region would draw an uneasy response, but today the JIATF is highly regarded for its track record in interdicting drug traffickers.

A comparable program conducted jointly by the Japan Coast Guard and the Maritime Self-Defense Force as part of their permanent mission would be an effective way of beefing up Japan’s warning and surveillance of foreign vessels operating in our vast EEZ. (The Senkakus would be excluded due to overt tensions existing in waters around the islands from the presence of both Japanese and Chinese Coast Guard vessels. The exceedingly sensitive nature of this situation makes the deployment of the JMSDF, even for enforcing maritime law, impossible.) It would contribute greatly to the policing of the EEZ at a time when the Japan Coast Guard is stretched thin owing to the necessity of concentrating its patrol vessels and aircraft around the Senkaku Islands. This would constitute an important contribution to the preservation of the international maritime order.

Like the Japan Self-Defense Forces, the US military must abide by strict constraints on its involvement in nonmilitary missions. Nonetheless, the JIATF is sanctioned as a legitimate exception to these constraints, and today the activities of the 4th Fleet in the waters off Central America are viewed as a crucial component of the US counterdrug program in the region. The time has come for Japan to follow suit and consider a new paradigm that makes integrated use of our full range of maritime capabilities for a more flexible response. Needless to say, such a shift will be impossible without substantial legal changes and other institutional measures.

A Need for Swift Action

The recent proliferation of Chinese poaching ships in the waters off the Ogasawara Islands calls to mind an incident in April 1978, during negotiations for the Treaty of Peace and Friendship Between Japan and the People’s Republic of China, when more than 100 Chinese fishing vessels entered Japan’s territorial waters around the Senkaku Islands. The recent situation—involving not the territorial sea but the EEZ, which did not exist in 1978—highlights legal and operational anachronisms that hinder the ability of the Maritime Self-Defense Force and the Japan Coast Guard to effectively defend Japan’s economic interests in the EEZ as well as its sovereignty over the territorial sea.

In short, the poaching incident exposed serious systemic weaknesses in Japan’s capabilities as an independent state, and although the immediate crisis subsided in late November with the withdrawal of the Chinese vessels, the need for a swift government response has not receded. If we sit back and do nothing, the next crisis may present a far more serious threat than illegal fishing.

(Originally published in Japanese on December 17, 2014. Banner photo: The Japan Coast Guard investigates a suspected Chinese poaching vessel in the waters around the Ogasawara Islands on November 23, 2014. © Japan Coast Guard/Jiji.)