Making Waves: Chinese Response to the South China Sea Case

Court Judgment Goes Against China

On July 12, the Permanent Court of Arbitration ruled in favor of the Philippines in the case it brought against Chinese actions in the South China Sea. The court, based in The Hague, the Netherlands, judged that China’s territorial claims to almost all of this region were in contravention of the United Nations Convention on the Law of the Sea.

The court stated that there was no legal basis for China to claim historic rights to resources in sea areas falling within the “nine-dash line,” and strongly criticized its construction of artificial islands.

Diversion Tactics

T

he Chinese government’s South China Sea activities have been denounced by the international community. Foreseeing that the PCA would take an unfavorable view of its position, China indicated beforehand that it would not accept the court’s judgment, but still monitored the situation extremely closely for several months. While it was waiting for the verdict, it began to escalate its activities in both the East and South China Seas in June, including repeatedly sending naval vessels into Japanese and nearby waters.

First, on June 7 a Chinese J-10 fighter plane made an unsafe intercept of an American RC-135 reconnaissance plane over international waters in the East China Sea. In the early hours of June 9, a frigate became the first Chinese naval vessel to sail into the contiguous zone adjoining Japanese territorial sea around the Senkaku Islands in Okinawa Prefecture. Then, on June 15, a Chinese reconnaissance vessel entered Japanese territorial waters at Tokara Strait near the island of Kuchinoerabujima in Kagoshima Prefecture. It was sighted again the following day, passing through the contiguous zone near the island of Kitadaitōjima in Okinawa Prefecture.

The Chinese government’s probable aim was to use every method it could to distract the world’s attention from the South China Sea decision. It insists that it has “core interests” in both seas, and appears to be seeking a reassessment of its claims in the East China Sea from the international community.

From a clear-headed perspective, China gains nothing by raising tensions with Japan. Despite the continuing strains in the East China Sea, Sino-Japanese political relations have seen gradual improvement since their recent low point in 2012. At the end of April this year, Kishida Fumio made the first visit to China by a Japanese foreign minister in four and a half years, and there are ongoing discussions regarding a future summit meeting between the countries’ leaders. Nonetheless, Beijing made the decision to foment trouble in the East China Sea.

Ongoing global interest in the South China Sea has overshadowed events in the East China Sea for the past 18 months or so. Given the size of Chinese, American, and Japanese military forces in the region, however, a potential crisis would do much more to stoke international tensions than disputes in the South China Sea. It is likely that China has been counting on drawing interest to the East China Sea with low-level provocations.

Danger of Further Incidents

The June 9 incursion of a Chinese frigate near the Senkaku Islands immediately followed passage by Russian destroyers through the waters. Although one interpretation suggested in Japan was that the Chinese ship was merely observing the Russian vessels and the Self-Defense Forces ship that was tracking them, this is unconvincing. In fact, Beijing planned for the Chinese frigate to pass through not the Japanese territorial waters closest to the islands, but rather through the contiguous zone lying outside those waters.

Under the UN Convention on the Law of the Sea, all ships, including military vessels, enjoy the right of innocent passage through territorial seas. Even so, it would be remarkable for Chinese warships to enter the waters of the Senkaku Islands when they are the subject of a territorial dispute. Depending on the situation, it might become subject to defensive response from SDF vessels.(*1) By contrast, the contiguous zone is legally considered international waters. Armed vessels can freely enter without any repercussions under international law.

China took the extraordinary decision to “make waves” by sailing a frigate through the contiguous zone in the East China Sea without provoking a definitive military confrontation. The ship left these waters just one hour after Vice-Minister for Foreign Affairs Saiki Akitaka summoned Chinese Ambassador Cheng Yonghua at two in the morning to lodge a formal protest. The rapid response strongly suggests a deliberate act orchestrated by the state rather than independent naval action.

Even if this incident does not indicate a direct intention to invade Japanese territory in the Senkaku Islands, there is no room for complacency regarding further similar or more serious actions involving Chinese military vessels. Particularly in the weeks following the PCA decision, it is highly likely that comparable incidents will take place in the seas and skies surrounding Japanese territory.

China’s “International Strait” Claim

On June 15, a Chinese reconnaissance vessel sailed through Tokara Strait near Kagoshima Prefecture. It was apparently gathering information about Japanese, American, and Indian ships taking part in the Malabar joint naval exercise held on June 10–17. There was a clear intention to avoid confrontation with the SDF because the Chinese ship was unarmed.

The actions of the Chinese ship could be seen as a legitimate exercise of the right to innocent passage through another country’s waters under international law. However, although China accepts such movement through its own territorial seas, it insists on prior notice. Its failure to give notice to Japan displays a clear contradiction with its own policy.

Instead, it tried to justify its actions in a different way. It claimed that the Tokara Strait between the East China Sea and the Pacific Ocean fell into the category of “straits used for international navigation.” On this basis, it insisted that there was no need to give notice in exercising the universal right of transit passage to sail through the strait.

This Chinese claim is simply an expedient justification for its freely passing through foreign territorial waters without giving prior notice. Japan, however, does not accept that the Tokara Strait is an “international strait.” On the other hand, it defines the Ōsumi Strait in Japanese territorial waters off Kagoshima Prefecture as a “designated sea area,” reducing the standard claim of 12 nautical miles of waters to just three. This means that the center of the strait is international waters, allowing for free movement by all sea and air traffic. This secures a greater level of freedom than an international strait’s universal right of transit passage. Accordingly, there is no need to make the nearby Tokara Strait an international strait. Until now, Chinese warships have passed through the Ōsumi Strait when traveling around Japan. There is also a section of international waters in the center of the strait between Amami Ōshima and Yokoatejima, the southernmost island in the Tokara group, which is a commonly used route for many ships.

If Japan were to accept, tacitly or openly, China’s claim that the Tokara Strait can be used for international navigation, it would enable similar claims for all Japanese straits with a width of 24 nautical miles or less. Abuse of the universal right of transit, such as the underwater passage of Chinese submarines to the Pacific Ocean, would be a worst-case scenario for the security of Japan and the Asia-Pacific region as a whole.

Threat to Japanese Security

Japan cannot possibly accept Chinese claims regarding the Tokara Strait. However, the Japanese government’s response to the June incursion did not send a firm message by clearly denying them.

There is an immediate need for Japan to make its stance explicit. This includes denying that the Tokara Strait is an international strait, rejecting China’s claim to the universal right of transit as a unilateral interpretation of international law, stating that further such claims are a challenge to Japanese sovereignty and interests, and taking appropriate measures against similar actions in future. In particular, there should be standard maritime security measures in place for dealing with underwater transit by submarines.

Japan also has the option of rapidly carrying out similar actions to those of the Chinese vessel. Specifically, an SDF ship could pass through the Chinese contiguous zone or treat a strait within Chinese territory as open to international navigation. This would not be a simple case of tit for tat, but a way of testing rights under international law; these kinds of activities are often performed by navies. Often such rights do not have a wide established range if no action is taken. Rules under international law only actually become fixed when countries periodically test the extent of their rights.

In Japan, there is a strong psychological resistance to having the SDF perform such actions at a time of peace. In advocating the rule of law, however, as a prominent member of the international community, there is a natural requirement to resolutely do so when necessary.

This would plainly be an action to corroborate international law, rather than a military challenge. Not doing so, conversely, would be a gradual and tacit acceptance of Chinese claims. The “universal right of transit” strategy shakes Japanese security to the core, and it is hard not to feel some fear at China’s cunning, hard-headed tactics.

A further point I noticed while writing this article is that many important straits, including that between Amami Ōshima and Yokoatejima, do not have official names. This makes it difficult even to specify locations when representing Japan’s position to other countries. The government has started naming all unnamed islands within Japan, but it must do the same for straits.

Japan’s Responsibility to Control Its Territory

Following the PCA judgment, it is highly likely that China will step up its activities in the East China Sea to go beyond simply diverting attention from what happening in the South China Sea. The Nansei (Ryūkyū) Islands, including the Senkaku Islands, are of strategic importance to China, and Japan’s security depends on ensuring their protection. The islands and surrounding sea are important to Pacific access for the Chinese navy and air force and are also the key to China’s anti-access/area denial approach, which seeks to block US military influence in Asia. But this is Japanese territory. Maintaining control is Japan’s responsibility as an independent country and is vital for the stable and flexible operation of the Japan-US Alliance in ensuring the security of the Asia-Pacific region.

From this perspective, as well as resolutely denying Chinese claims regarding international navigation in straits, Japan must directly confront China in stating that its actions in the East China Sea are not legitimate under international law. The Japanese government should also work quickly and surely to boost SDF defensive capabilities and preparedness, along with systems for cooperation with US forces, with an eye on the similar or more serious incidents that are likely in the future.

(Originally written in Japanese and published on July 15, 2016. Banner photo: A Chinese Jiangkai I frigate; the same class of ship passed through the contiguous zone near the Senkaku Islands on June 9, 2016. Photo from the Ministry of Defense Joint Staff website.)