10 Years after the Nationalization of the Senkaku Islands

In order to peacefully and stably manage the Senkaku Islands, Japan nationalized the previously privately-owned Senkaku Islands of Uotsuri, Kitakojima, and Minamikojima in a Cabinet decision on September 11, 2012. Chinese incursions into territorial waters have become more frequent since then, doubling over the past decade, and Chinese public vessels are entering the contiguous zones almost daily. With the Coast Guard Law that went into effect on February 1, 2021, it’s expected that the Chinese Coast Guard will be equipped with larger and more arms, but Japan must continue to guard the territorial waters around the Senkaku Islands in a calm and resolute manner without misjudging the seriousness of China's intentions.

Normalization of Chinese Intrusions into Territorial Waters

In order to peacefully and stably manage the Senkaku Islands, Japan nationalized the previously privately-owned Senkaku Islands of Uotsuri, Kitakojima, and Minamikojima in a Cabinet decision on September 11, 2012. China denounced the nationalization of the islands as a change of the status quo by Japan. In response, China sent six government vessels into Japan's territorial waters on September 14, 2012. For the year, Chinese public vessels entered the contiguous zone on 91 days and made territorial incursions on 23 days. In 2021, when the Coast Guard Law was enacted, China Coast Guard (CCG) vessels entered the contiguous zone on 332 days and made territorial intrusions on 40 days. Over the past decade, territorial sea intrusions have almost doubled, and Chinese public vessels enter the contiguous zone almost daily. The Chinese Ministry of National Defense made a provocative statement on March 1, 2021, regarding China's intrusion into the territorial waters around the Senkaku Islands, saying that it is legitimate and legal for Chinese government vessels to carry out law enforcement activities in their own territorial waters, and that the Chinese government would continue its normalization of the activities.
Indeed, intrusions into Japan's territorial sea by CCG vessels have become a regular occurrence. As of the end of October 2022, CCG vessels had already entered the waters on 29 days—not significantly changed from 2021. However, there have been other changes. Recently, there has been an increase in cases where CCG vessels during their incursions into Japanese territorial waters made pursuit of Japanese fishing boats. In an incident on May 8, 2020, two CCG vessels pursued a Japanese fishing boat in the Japanese territorial waters around the Senkaku Islands. In response to the Japanese government's protests that the pursuit constituted a violation of sovereignty, the Chinese government stated that as the Japanese fishing boat was illegally operating within China's territorial waters they were requesting them to cease. At the same time, the Government of China also demanded that there be no recurrence of obstructive actions by the Japan Coast Guard. From August 2020, the CCG is said to have changed its policy, to pursue Japanese fishing boats in the Japanese territorial waters around the Senkaku Islands as a matter of principle whenever they are spotted. If a case arises where the CCG arrests and detains a Japanese fishing boat for what it calls illegal operations within China's territorial waters, Japan's exclusive governance over the Senkaku Islands will be significantly shaken.

The Birth of a Dual-Function Coast Guard

In 2013, China established the China Coast Guard (CCG) Bureau, which combined the five previously separate maritime law enforcement agencies known as the Five Dragons: the China Coast Guard, the China Maritime Patrol, the China Marine Surveillance, the Fisheries Law Enforcement Command, and the General Administration of Customs. In 2018, this Coast Guard was reorganized into the People’s Armed Police Force Coast Guard Corps, coming under the command of the People's Armed Police Force. Like the People's Liberation Army, the CCG has been transformed into a military organization under the unified command of the Communist Party of China Central Committee and the Central Military Commission.
It is not uncommon for military organizations to be responsible for maritime law enforcement, so in itself this is not problematic. Looking around the world, the British Navy carries out maritime police duties. While the United States has established a coast guard to handle maritime law enforcement, under US federal law, it is considered the fifth military service after the Army, Navy, Air Force, and Marine Corps. China's Coast Guard Law, that went into effect on February 1, 2021, stipulates that "the Coast Guard Bureau shall carry out defense operations and other tasks under relevant laws and regulations such as the Law of the People's Republic of China on National Defense, the Law of the People's Republic of China on the People's Armed Police, military regulations, and the orders of the Central Military Commission" (Article 83). In other words, the CCG has become an organization with dual functions: the function of a navy conducting defense operations in its jurisdictional waters (military activities) and the function of a maritime law enforcement agency (law enforcement activities). In light of the newly assigned defense mission, the organization's military aspect is expected to be strengthened, with an increase in the size and armament of its equipment.

Applying the Coast Guard Law to the "Waters under the Jurisdiction of the People's Republic of China"

The Coast Guard Law specifies the areas where the coast guard operates, stipulating that "the CCG Organization shall conduct law enforcement operations for the protection of maritime interests in the waters under the jurisdiction of the People's Republic of China (hereinafter referred to as 'waters under PRC jurisdiction') and in the airspace above the waters under PRC jurisdiction" (Article 3). Thus, using the concept of the "waters under the jurisdiction of the People's Republic of China" the law explicitly states that the CCG will carry out maritime rights protection and law enforcement operations in areas where jurisdiction cannot normally be exercised under the United Nations Convention on the Law of the Sea (for example, within the nine-dash line in the South China Sea). Notably, this law also stipulates that "the CCG Organization shall conduct law enforcement operations for the protection of maritime interests […] in the airspace above" these waters. While the airspace above territorial waters is indeed territorial airspace, and the exercise of jurisdiction by the coastal state over violations of its airspace is permitted under international law, the airspace above exclusive economic zones is recognized as having the same freedom of overflight as the high seas under Article 58(1) of the United Nations Convention on the Law of the Sea, and exercising jurisdiction over it would be a violation of the Convention.
Another point of interest is Article 22 of the Coast Guard Law, which deals with the use of weapons: "When the sovereignty, sovereign rights, and jurisdiction of the State are confronted with an imminent danger of unlawful infringement or unlawful violation by foreign organizations and individuals at sea, the CCG Organization shall have the right, in accordance with this Law and other laws or regulations, to take all necessary measures, including the use of weapons, to control the infringement and eliminate the danger at the scene". Since the “foreign organizations” in this Article refers to the situation in which national sovereignty is violated, it is understood to include foreign state organizations.
If Japan Coast Guard patrol vessels in the waters around the Senkaku Islands attempt to disrupt the pursuit of Japanese fishing boats by CCG vessels, it cannot be ruled out that the CCG may use weapons should they consider the JCG patrol vessel’s action as interference in the exercise of their duties, as it would fall under Article 46, paragraph 3: "In the event that CCG personnel encounter obstacles or obstructions in the course of carrying out their duties in accordance with the law". However, government vessels are exempt from enforcement jurisdiction, and if China were to use weapons against Japanese patrol vessels on the grounds of interference, it would violate international law. As for the use of weapons against civilian vessels such as fishing boats, the International Tribunal for the Law of the Sea (ITLOS) has indicated three requirements: (1) the use of force must be avoided as far as possible and, where force is unavoidable, (2) it must not go beyond what is reasonable and necessary in the circumstances, and (3) considerations of humanity must apply. Therefore, if CCG vessels take actions against Japanese fishing boats that differ from these requirements, it would violate international law.

Figure: Number of days confirmed within contiguous zone and number of territorial sea intrusions (edited based on "Japan Coast Guard Annual Report 2022")

China Aims to Reclaim Senkaku Islands

According to reports, Chinese President Xi Jinping stated at an informal military executive meeting in 2016 that securing the interests of the Senkaku Islands and the South China Sea was a "historic responsibility of our generation" and ordered the militarization of the South China Sea. About three and a half months after this statement, a Chinese military ship entered the contiguous zone around the Senkaku Islands for the first time.
On October 22, 2022, at the closing of the National Congress of the Chinese Communist Party, two establishments were added to the Party Constitution: the core position of Xi Jinping within the Chinese Communist Party Central Committee and the guiding role of Xi Jinping Thought on Socialism on Chinese Characteristics for the New Era. Xi Jinping's statements now carry more weight than ever before.
It is believed that China's national intent, which treats securing maritime interests in the South China Sea and the East China Sea as core interests, will not change in the foreseeable future. Japan's national security will face a severe crisis if the Senkaku Islands are taken by China and militarized like the South China Sea. Furthermore, fishermen in Okinawa would lose their fishing rights, and the rich marine resources around the Senkaku Islands would also be lost. Japan must not underestimate China's determination and must continue to guard its territorial waters with a calm and resolute attitude. (End)