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Japan’s rights and wrongs in the ‘fishing boat’ incident

by Mark J. Valencia

HONOLULU — Japan’s violent pursuit of a suspected North Korean boat in the East China Sea has prompted both domestic and international controversy. Domestic opposition critics are questioning Japan’s right to use force on the “high seas” and are using this incident to argue against expanding Japan’s military activities. Prime Minister Junchiro Koizumi may use this incident to justify his plans to strengthen the military and its authority. He also wants to pass a law allowing such suspect foreign ships in Japan’s 200-mile exclusive economic zone to be arrested and, if they resist, to be fired upon. A law allowing such actions in Japan’s 12-mile territorial sea was passed last November.

The limits on the use of force in such situations are vague and there are precedents for such extreme measures. For example, Russian patrol boats and aircraft frequently fire on vessels illegally fishing in its claimed waters. However, Japan’s promulgation and “blanket” implementation of such a law for its EEZ could lead to incidents with Russia, South Korea and China.

Japan has frequently detained South Korean boats allegedly fishing illegally in its EEZ, and in late September a Japan Coast Guard vessel even rammed and sank one such boat. Moreover, Japan has an ongoing dispute with China concerning Chinese scientific research and even alleged “spy” vessels operating in Japan’s claimed EEZ. The domestic legal sanctioning of the tactics used in this incident could also amount to a new interpretation of international law that maritime powers, including the United States, may well oppose.

A U.S. satellite first spotted the alleged North Korean vessel within Japan’s claimed EEZ on Dec. 18 in the vicinity of Amami-Oshima island. Japan Coast Guard vessels began pursuing the ship in Japan’s claimed EEZ. During the six-hour pursuit, they fired more than 500 rounds. Four coast guard vessels finally surrounded it in China’s EEZ, i.e., beyond the line Japan recognizes as the “provisional” boundary. The crew of the suspect ship then fired back, the coast guard vessels retaliated, and, after an explosion, the suspect ship sank, with the loss of all 15 hands.

North Korea has denied any link to the ship, while calling the incident “brutal piracy and unpardonable terrorism.” Despite the extreme rhetoric and what one may think of North Korea, the incident does raise a number of questions of international law. Japan and China are parties to the 1982 Convention on the Law of the Sea. According to that convention, a nation can board, inspect and arrest a foreign ship in its EEZ to ensure compliance with its laws and regulations. And under that convention, Japan has the right of hot pursuit if it suspects a vessel has violated its relevant EEZ laws. Moreover, the suspect vessel failed to stop for inspection as ordered. And Koizumi conferred with officials in Beijing before ordering the coast guard to halt the vessel. So far so good.

But there is no Japanese domestic law allowing such use of force in its EEZ. Only warning shots are permitted. According to the recent Saiga decision by the International Tribunal on the Law of the Sea, “the use of force must be avoided as far as possible, and where it is unavoidable, it must not go beyond what is reasonable and necessary under the circumstances.”

Considerations of humanity must apply and all efforts must be made to ensure life is not endangered. If the vessel were of almost any nationality other than North Korean, firing directly at it and endangering its crew would most likely be considered an overreaction and an excessive use of force by the international community.

Further, this incident occurred partially in disputed waters, and the ship, when initially fired upon, was thought to be from the other claimant, China. Even the possibility that it was a Chinese vessel should have dictated moderation in Japan’s response. Thus it would seem that this use of force, particularly in another country’s claimed EEZ, was out of proportion to the alleged offense.

Japan may, however, argue that it was an act of self-defense in response to an “attack.” But its coast guard vessels were the pursuers and fired first, so it is difficult for Japan to argue “self-defense.” And Japan is not at ‘war’ with North Korea. Nevertheless, given the current international concern with terrorism, proving the vessel was a North Korean ship which was attempting to land or retrieve men or material in Japan might bolster a self-defense argument.

What then should Japan have done? It might have been more prudent to first observe the vessel surreptitiously to determine exactly what it was, whose it was, and what it was up to. This information would have determined which agency should respond. If the vessel entered Japan’s territorial sea, and its presence was deemed to be noninnocent, then its arrest with the use of necessary force would have been appropriate. If it did not enter the territorial sea, a better approach might have been to make the vessel aware it was being observed. If it was a spy ship, it would most likely have left the area. If it was fishing illegally then it would have been subject to arrest by the coast guard with an appropriate amount of force, if necessary. If possible, warning shots and, if necessary, ramming, are preferable to firing directly at an illegal fishing vessel.

There are many “spy” vessels from China, North Korea and Russia operating in waters around Japan and the potential for further incidents is high. What should Japan do? First, it needs to upgrade its detection and response capabilities and to review the relative responsibilities, coordination, and communication procedures between its Maritime Self-Defense Force and the coast guard. Second, Japan might declare that it will treat in similar fashion all suspected North Korean spy boats or boats that fail to identify themselves. But most important, Japan immediately must negotiate provisional boundaries with its neighbors or at least arrangements for responding to such situations.

However, it should proceed cautiously with legislation authorizing the use of force against “spy” vessels in its EEZ. Maritime powers like the U.S. would be wary of any agreement or interpretation that would diminish the freedom of navigation in the EEZ. Indeed, when a U.S. spy plane collided with a Chinese jet fighter over China’s EEZ last April, the U.S. argued that such flights in the EEZ are permitted under the regime of “freedom of the high seas.” So as not to undermine this principle, the U.S. has negotiated bilateral agreements with countries or, alternatively, seeks prior permission from the flag state to stop suspect foreign vessels on the “high seas.”

Moreover, the U.S. frequently sends spy satellites and planes over North Korea and shares the information obtained with Japan. Japan would therefore be in the awkward position of arguing that it is all right for a country to use spy satellites and planes to gather intelligence over another country’s EEZ, territorial sea or even its land area, but it is not acceptable for a country that has no such assets to attempt to do so in an EEZ the old-fashioned way.

One lesson to be learned from this incident is that there is a gray area surrounding navigation rights, military activities and the use of force in the EEZ. A solution must be found that puts North Korea on notice that force will be used against suspected “terrorist” vessels, but which does not undermine the principle of freedom of navigation in the EEZ. Indeed, to prevent serious spill-over effects, the rights and wrongs of such operations need to be negotiated between Northeast Asian countries — and perhaps the U.S. — the sooner the better.