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Protecting Japan’s right to freedom of navigation

by Mark J. Valencia

HONOLULU — Japan’s economic security depends on safe and secure passage of its oil imports and trade through the Malacca/Singapore Straits and the South China Sea. Yet a recent upsurge in piracy, “creeping” jurisdiction and possible conflict between rival claimants in the Spratly Islands threaten these sea lanes.

To combat piracy in these waters, it has been proposed that Japan lead the formation and coordination of a regional multinational anti-piracy force. But bitter memories in the region of Japan’s brutal wartime occupation and domestic resistance in Japan to an overseas military role are major obstacles to carrying out the proposal.

To avoid a dominant and objectionable presence, Japan has suggested that its participating ships be drawn from its civilian-controlled coast guard rather than from its navy. And Tokyo has invited other participants to join the force, including China, South Korea, Indonesia, Malaysia and Singapore.

But China rejected the idea out of hand, probably because it sees the Japanese proposal as an attempt to pre-empt China’s emergence as the dominant power in Asia. And two key straits states — Malaysia and Indonesia — are reluctant to allow foreign-armed vessels into their territorial waters. Moreover, Japan’s U.S.-imposed Constitution prevents its coast guard or naval vessels from using force to prevent piracy unless a Japanese ship is being attacked. This would make Japan’s role in any multilateral effort ineffective and its commitment to burden-sharing hollow.

China’s extensive and expanding claims in the South China Sea pose a more serious, long-term threat to safe and secure passage. Official Chinese maps display a boundary claim that encloses much of the South China Sea. In response to repeated U.S. inquires about such claims, Beijing has stated that it will not interfere with freedom of navigation. But it will not clarify exactly what it claims in the South China Sea and why.

U.S. naval strategists are concerned that some of China’s actions — like its occupation of Mischief Reef, which sits on a continental legally recognized as belonging to the Philippines, indicate it is asserting sovereignty over virtually the entire sea as “historic waters.” Freedom of navigation and overflight principles do not apply in historic waters.

Moreover, China has drawn enclosing baselines around the Paracel Islands in the northern part of the sea, thus removing the enclosed waters from the freedom of navigation regime. And it has indicated that it may do the same with the Spratly Islands to the south, which it contests in whole or on part with Vietnam, Taiwan, the Philippines, Malaysia and Brunei.

China also insists that foreign warships cannot enter its territorial waters without permission, including those extending from the enclosing baselines of the Paracel Islands. Setting an ominous precedent, China banned planes at particular heights from Oct. 1979 to Feb. 1980 over four “danger” zones south and east of Hainan island. This forced the temporary closure of a major air corridor.

Thus there is concern that Beijing could be intent on transferring large areas of the South China Sea from a regime in which warships and aircraft have immunity from its jurisdiction to one in which permission is required for entry.

Of course, China cannot now enforce such a regime, but when it is strong enough it may try to do so. Beijing is now taking steps to enhance its military capability to enforce its claims in the South China Sea. In April, China successfully carried out mid-flight refueling of fighter jets, thus expanding its ability to project power.

Moreover, aggressive actions by China in the Spratlys could produce local conflict. And if relations between China and Taiwan or China and Vietnam deteriorate there could be wider conflict in the South China Sea. This could force ship and cargo insurers to raise their rates, encouraging vessels to use alternative routes. These alternatives would add several days and millions of dollars to the cost of shipping, which would presumably be passed on to consumers.

Given these threats, Japan is considering ways to reassert its influence in the region. Tokyo may also see this an opportunity to delicately distinguish itself and its approach from that of the U.S. A broad strategy developed at Japan’s National Institute for Defense Studies envisages a Japan-led international Ocean Peacekeeping Force, which would be primarily concerned with activities that are necessary to fulfill obligations under the 1982 U.N. Convention on the Law of the Sea to maintain maritime order and prevent armed conflict at sea.

The force would conduct joint monitoring activities to protect the environment and resources in waters beyond state control, as well as combat illegal activities that span international maritime boundaries, including illegal fishing, illegal entry and piracy. It would have both benign military duties, such as search and rescue, and constabulary functions. There have been many examples of bilateral cooperation of this type but none on a multilateral basis.

This long-term vision has the peacekeeping force providing a framework for security cooperation between Japan, the U.S., China and Russia. Such an approach could help curb the pirate scourge in the region, and in the longer run greatly enhance both safety and the freedom of navigation regime in the South China Sea.