On Territorial Defense

―Policing Sea Area under Japanese Jurisdiction―

 

by Tadahiko  FURUSAWA

Member of Research Committee, DRC

 

Preface

The frameworks for the global contribution and the support to U.S. for the regional stabilization, such as PKO and the Guideline have already been built-up, but unfortunately, the legislation directly related to the security of our own country such as defense of our territory or national emergency has been left behind for almost half a century. Originally, the Constitution of Japan should define the position of the Japan Self-Defense Forces as the basis of the establishment of the security of our country in national emergency as well as in peace time. But, as long as the revision of Constitution and the basic legislation of security are not expected to come into force in the immediate future, the completion of legislation of the national emergency will define the national position of the Japan Self-Defense Forces and their defense capability, as well as positively contribute to the morale of the Self-Defense Officials, together with the promotion of national understanding of the Self-Defense Forces. Since 1977, legislation of national emergency has been studied, but it has been simply based on a viewpoint of securing easy operational activities of the Self-Defense Forces. Meanwhile, as the controversies become deeper, they have shifted to the viewpoints of protection of Japanese people from terrorists’ attacks and  armed guerrilla’s activities and, also, of SDFs’ swift performance of their missions for the above tasks. But, currently, the study is only focused on the viewpoint of the defense operations. We may encounter an unstable situation between the peacetime and the national emergency. Needless to say, it is  great importance that we have to deter the instability, the threats to our territory,　people’s lives and property, and the violation of sovereignty in our territory. From the above viewpoint it is also important that we should specifically define the place of our territorial defense.  While the prompt legislation of national emergency is required, it is also to be expected that the issue of territorial defense should attract the deeper interest of the nation.

 

1. Threats to Our Territory

 

(1) Chinese Advances to Ocean

In order to forecast the Chinese threatening advances to the Ocean around Japan, especially, the East China Sea, mentioned hereunder are the historical records of their advances to the South China Sea. Since 70’s they have constantly attained success in their advances to the South China Sea on the basis of their long range strategy.  The Paracel Islands and the Spratly Islands were occupied in the following steps:

STEP 1: Step of claim of occupation. They claimed the Oceanic interests in these islands with their declaration of its occupation and drew their own territorial sea line in the South China Sea, enacting their Law of Territorial Sea.

STEP 2: Step of establishing of facts. They showed their presence in the area by repeated military maneuverings and trainings, oceanographic surveys, and fishing operations. Also, while under their “defense of territory” by their naval vessels they had their civilians land the Islands, had their joint operations by the military and the civilians, carried out oil exploration and setting-up of the oil rigs, they dared  gradually to build up the clear established facts.

STEP 3: Step of virtual control. With assured construction of military facilities and stationing of military forces on the Islands, they rejected the protests from foreign countries as interferences to internal affairs. They showed clearly their virtual control of those Islands to the world by permitting their civilians to stay there for the development and the drilling of the resources

 

Then, they started their advances to the East China Sea in the 80’s, and followed the same steps as those for the South China Sea. Their steps are currently in the process of STEP 2, steadily accumulating the results of the established facts.

STEP 1: Despite the absence of historical and scientific bases of their territory, they declared their occupation of Senkaku Islands and drew their territorial line between the Senkaku Islands and the Miyakojima Island based on their Law of Territorial Sea. In face of Japanese protest against China, claiming the middle between Japan and China, Mr. Deng Xiaoping claimed the extension of continental shelf. He finally proposed to put the issue on the shelf for the time being, to have it settled through the talks by the next generations of the both countries. Thus, he tried to make the issue remain in obscurity.    

STEP 2: They are trying to build-up the established facts by accumulating their military and non-military presences. Their activities for exploration of resources and oceanographic survey are getting more active year by year. Their activities are sometimes extending beyond the middle line between Japan and China or extending further to the straits or the littoral areas which is closely related to the security of our country.

Hereafter, we are afraid that they will continue the oil exploration and the oceanographic survey and research by their naval vessels at Japanese side of the middle line. Moreover, they will have their civilians or disguised civilians land the Senkaku Islands, continueing to the construction of some structures and stationing of military personnel. With these established facts built up, there is a possibility that they will try to ensure their virtual control of the Islands.

As explained above, Chinese occupation of the oceanic area around their mainland extends to the whole area of the Yellow Sea, the East China Sea and the South China Sea. Using their long-term political, military and economic strategies instead of military actions, they exercise their influences over Japan, Taiwan, Korea and South East Asian countries try to establish a new China-International Order by endangering the sea-lanes of those countries, aiming at their vulnerabilities and unguarded points. The structure of both their accumulation of established facts and their virtual control of those Islands with their military power in the background is just like the tough Chinese way of living, in which they stop the flood of the automobiles in every lanes in the busy streets in Peking when they cross it. They push forward with their tough diplomatic strategy, taking advantage of the loopholes of International Law, in pursuit of the formation of self-centered “New International Order”.　The strategy constitutes the threat of “territorial erosion ” type which is characterized by a Chinese proverb “Soft land, Digging deep” which means “Tough toward the weak, soft toward the strong”.

(2) Illegal Invasion by North Korea

The North Korean threats to Japan have becoming clear by the incidents like the suspicions boats’ appearances off Noto Peninsular in 1999 and off Amami Ohshima in 2001. They are characterized by the terrorist and guerrilla operations, abductions of Japanese civilians, smuggling of narcotics and agents etc. without any description of means, time and rationality to maintain Kim Jong Il’s Administration and their military power structure. Well-trained and loyal agents on the heavily armed, disguised spy ships work in close cooperation with those who are already located in Japan. They dare to unexpectedly enforce their surprise invasion upon Japanese territory to push on with  subversive activities against the security and order of our country.　They are the threats of “territorial disturbance”

(3) Diversification of Threats to Japanese territory

The threats from China and North Korea are classified into two types, namely“territorial erosion” and “territorial disturbance” as above mentioned. Their characteristics are: �@ Invasion activities based on the defects of Japanese legislation as well as the defects of the security control system of the government, the restriction of military activities and the vulnerabilities of JSDF, and the trend of mass media and public opinions �A Intentional and grave violations of territory with the military organization in the background �B Surprise violations �C Swift actions, heavily armed and highly-trained agents with advanced technologies and well-disguised violating activities etc.

Meanwhile, the US takes a non-involvement stance on territorial conflicts on small islands and small regional disputes. Therefore, keeping an alliance with US, Japan should be firmly determined to have a complete system to defend its own territory, sovereignty and national interests by its own power.

 

2. Concept of Territorial Defense

There is no specific definition of the territorial defense , but its general interpretation is an exercise of the right of self-defense against imminent violations like terrorists’ activities intended for indiscriminate murders and subversions by armed agents/spy ships and disguised spy ships(suspicious boats). National defense means the protection of people’s lives and properties as well as the sovereignty and national interests. The territory means the area to which national sovereignty extends. Therefore, generally, a nation takes military actions to exercise “territorial self-defense operations” against military or quasi-military violation of its territory. Meantime, a nation takes police actions and is entitled to exercise “operations for maintenance of order” against the criminal acts such as smuggling, poaching and illegal entry. Territorial Defense covers from the protection of sovereignty in the land territory and territorial sea to the protection of the administrative interests in the exclusive economic zone, and can be interpreted to include the high seas as far as the right of hot pursuit in the international law extends.

 

3. Territorial Defense in International Law and Major Countries

 

(1) Territorial Defense in International Law

International Customary Law and International Civil Aviation Treaty recognize the total and exclusive sovereignty over the land territory and the territorial airspace. An entry into the land territory and the  territorial air- space requires a strict check and a permission. It is normal that countermeasures are taken against the violation of territorial airspace.

In the meantime, the vessels of any nationality have  the right of innocent  passage through the territorial sea so long as it is not prejudicial to the peace, good order or security of the coastal State. So, the action against the violation of territorial sea is　not so strict as against airspace and land. But, the Article 19 of UN Convention on the Law of the Sea enumerates 12 items of activities for the passage which is not innocent. Also, recognizing a right of the legislation of domestic laws relating to the innocent passage as a right of the coastal State, UN Convention provides “The coastal State may take the necessary steps in its territorial sea to prevent passage which is not innocent.”

Meanwhile, the interpretation of the innocent passage of warships varies depending on each country. Japan, the US and the UK insist on the innocent passage of warships from the standpoint of freedom of navigation and adopt the prior notice system for the navigation through the territorial sea. But, on the other hand, Russia and China, from the standpoint of denying the right of innocent passage of warships, adopt the prior permission system basing their claim on the 1958“Convention on the Territorial Sea and the Contiguous Zone” (The coastal State may have the power to permit the passage of warships through the territorial sea).  If any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and disregards any request for compliance with them, the Article 30 of UN Convention on the Law of the Sea provides only that “the coastal State may require it to leave the territorial sea immediately.” Further, in the territorial sea the submarines are required to navigate on the surface and to show their flag, but there is no provisions of this Convention for the action taken against it.    

(2) Territorial Defense in Major Countries

a. The US

In principle, the United States Coast Guard(USCG) take action against the violation of the territorial sea. In peacetime, USCG belong to the Department of Transportation, but legally they are placed as a part of the military forces and operate with the United States Navy as necessary. So, normally USN are not employed for coast guard activities. USCG and USN always keep close contact with each other, as they cooperate in the information exchange, joint military drills and exercises, and common equipment/ educational training. In view of the lesson learned from the 9.11 terrorists’ attacks last year, the Department of National Security was newly established to strengthen the system for homeland defenses and USCG is also incorporated in its system. The equipment for their activities is also reinforced in the same level as those for military forces to be improved for its police and defense operations in the wide maritime zone along the coast.

b. The U.K.

The Royal Navy is responsible for the defense of the maritime zone along the coast. The mission of the Coast Guard is limited only to the　monitoring and report of illegal invasions by unidentified vessels. Upon the Coast Guarad report on the invasion by those suspicious vessels, the Royal Navy goes into action. The Royal Navy, which has the police power based on “Merchant Ship Act” is authorized to arrest and prosecute the crew. Any vessel captured under the passage which is not innocent is brought to trial under the laws of UK, and in the event of information gathering activities, the “Secrets Protection Law” is applied as a spying activity. The advantages to leave the defense of territory under the exclusive control of the Royal Navy are that no redundant defense, the Navy’s full equipment and capabilities, and effective deterrent to the violators are expected.

c. The Republic of Korea

The Maritime Police Agency which belongs to the Maritime Fishery Department is in charge of territorial violation.  It takes actions based on the Law of Territorial Sea and Contiguous Zone concerning the passage which is not innocent. But, the military takes immediate actions against the North Korean armed agents and “suspicious boats” apparently to be armed spy ships. The Joint Chiefs of Staff command an operation upon the report of the suspicious ships. They prepare “Joint Defense Operations” based on the Joint Defense Law, so that the three Forces and the Maritime Police Agency may execute the operations together. The military dispatches naval vessels and aircraft to the site of suspicious or spy ships in an attempt to take the agents into custody and seize those vessels. When they disregard the order to stop or warning shoots in an attempt to flee, the military can immediately attack and sink them. As Korea does not really recognize North Korea as an independent nation, placing it as an anti-national group, they take a stand that the international laws and practices are not applicable to the actions against North Korean military vessels.

d. Russia

The Border Army, which belongs to the Border Army Bureau, under the direct control of Russian President is in charge of the violation of the territorial sea based on the Russian Border Law. When any vessel which violated the territorial sea disregards the order to stop, they fire three warning shoots around it after an advance warning by radio. When the violator tries to flee despite of the warning, they are authorized to shoot at the vessel’s hull. Authorization of use of weapons is left to the commander on the spot. They are a quasi-military body acting as the naval forces in an emergency, and have equipment and personnel in common with the navy.

 

4. Basic Framework of Existing Law in Japan on Territorial Defense     

 

(1) Responsibility of Territorial Defense

There are no specific laws and regulations regarding the territorial defense  in Japan. Neither its definition nor its character is clear. Whether it is defense operations or police operations is not clear, either. Accordingly, it is unclear which government body shall take charge of overall commanding of the territorial defense. Formally, the territorial defense is a mission to be discussed within the framework of police operations. So, primarily, the Police Agency and the Coast Guard are in　charge of it, and the Self-Defense Forces do not have the mission under the existing law. If it is beyond the police power, the Self-Defense Forces shall take actions at a supporting position as “in case it is particularly required.” But, as a result of the recent revision of the Self-Defense Forces Law, a step is taken that self-defense ships are ordered into operations from the beginning for the emergency situation against suspected spy ships.

(2) Powers of Coast Guard Official in Territorial Defense

The Coast Guard officials shall have the powers �@ to execute and enforce each domestic law at sea as government officials in charge (Article 15 of the Maritime Safety Agency Law), �A of the administrative police to execute the maintenance of the public safety and order at sea (Articles 17 & 18 of same), and �B of the judicial police to investigate and arrest a criminal based on the Code of Criminal Procedure (Article 31 of same). “The Law concerning the Territorial Sea and Contiguous Zone”of our country has no provisions for innocent passage nor for　penalty.  Accordingly, though the Coast Guard officials are the judicial police officials, they can not exercise their judicial police powers against passage which is not innocent.　

The power of the Coast Guard officials is authoritative. They have the right of execution with strong order and immediate coercion, and are permitted to use weapons based on the Law concerning the Execution of Duties of Police Officials.

But, as the Article 25 of the Maritime Safety Agency Law says “Any provision of this Law shall not be interpreted to approve that the Coast Guard or its Officials may be organized, trained as a military force, or may execute the military functions and duties,” they perform their duties only as civilians, while they are not permitted to take actions for the defense of the nation as their duties. Accordingly, they are not permitted to be armed and to use force for military actions. In the events of the defense operations of Article 76 and the police operations order of Article 78 of the Self-Defense Forces Law, the Prime Minister may place the Coast Guard under the command of the Director General of the Defense Agency, but there remains a restriction that they are not permitted to take military actions along with the Self-Defense Forces.

(3) Powers of Self-Defense Offcials for Territorial Defense

The main operations of the Self-Defense Forces are based on Articles 78 and 81 Police Operations and Article 82 Maritime Security Operations. But their execution of power is limited only to those as police operations. Also, they can be engaged in information gathering for the possible violating acts before the police operations order is issued. In the event of the police operations, guard operations and maritime security operations, the Self-Defense Forces may use force within the limit as legitimately adjudged necessary for meeting the prevailing situation. Further, they are allowed to inflict an injury.

The maritime security operations to be ordered when it is particularly necessary for the maintenance of public peace and order, is positioned as the police operations at sea. The power of the Self-Defense Officials is limited to the administrative police power for the maintenance of order at sea among those of the Coast Guard Officials for the security operations of the territorial sea. while they do not have either the power for the execution of each domestic law or judicial police power for the search and arrest of the violator of each law. So, their power is limited only for the order to stop, the examination on board the ship and the interrogation of the crew based on Article 17 of the Maritime Safety Agency Law and the order to change ship’s course and the deterrence of crime based on Article 18 of same. So, from the standpoint of time and power the Self-Defense Forces are in a　supporting position. But a necessary step was taken in 1996 to issue the order of the Maritime Security Operations quickly to the submerged submarine in the territorial sea for which the Coast Guard itself found it difficult to take action. While the article 78 “Police Operations Order” was a regulation intended for the maintenance of internal peace and order such as indirect aggression or suppression of riot during the Cold War era, it is also applied for the violation activities of the armed agents. By the revision of the Self-Defense Forces Law the Self-Defense Officials may be engaged in information gathering activity during the Police Operation Alert Order before the Operation Order is issued. When the Prime Minister considers it necessary in the event of extreme emergency, he may issue the Police Operations Order without the consent of the Diet (the approval of the Diet is required within 20 days after its issuance) and they can take immediate actions. Though the above is the police operations in itself, it is ranked in a intermediate position, very close to the Article 76 “Defense Operations”. Therefore, it is ready to take actions against the emergencies such as subversive activities of the armed spy ships or agents close to the military activities, extending to the sea, coast or inland. If the situation develops further, it can be readily switched to the regular Defense Operations.

As the Self-Defense Forces Law is based on the “defined enumeration principle”, the Self-Defense Forces may take actions for only what are enumerated in the Law, which means they are not authorized to do what are not provided in the Law. Therefore, without the orders of the Maritime Security Operations or the Police Operations, all they can do is just to watch and report to the security police authority, even if they witness the piracy or violation of the territorial sea.

 

5. Measures for Future

The defense of the territory is self-defense activities at the borders of our country with foreign countries, which give the influences more or less on the international relations in peacetime as well as national emergency. As mentioned above, our country’s present standpoint in this issue is obscure politically as well as legally, with its system also incomplete compared with other major countries, which leave us uneasiness from the viewpoint of the security system of our country. The following is my proposal of the measures to be considered for the territorial defense

�@　“Territorial defense ”should be added in the Article 3 of the Self-Defense Forces Law as another mission.

It is important that our country should clarify its policy for territorial defense  as a sovereign state, and also give the Self-Defense Forces the responsibility and the power to securely defend its sovereignty in our territory. With this provision of the Law we can define the role of the Self-Defense Forces in the security of our country in the geographic range of the land, territorial air space, territorial sea and the whole territory where our national sovereignty extends as well as in the time series from the peacetime to the national emergency. The intention of the armed spy ships and the agents is to cause subversive activities, which are not the armed aggression but close to the military activities. They would break out not only at sea, but at the coast or land at the same time. Therefore, we should take actions of the police operations against subversion of law and order as well as of the defense operations against the instrusion and disturbance from the outside.

The application of the provisions of the Law concerning the Execution of Duties of Police Officials and the Maritime Safety Agency Law has limitations to the legal enforcements and quick actions on the spot by the Self-Defense Forces. Therefore, the legislation of the law which enables them to take a strong action is required. It is of great significance in the operations of the territorial defense to clarify the executional powers of the Self-Defense Officials by the law.

According to the provision of the UN Convention on the Law of the Sea, on the high seas a warship may be boarded for a examination or seize a pirate ship. But, as there is no provision of the domestic law corresponding to the above in Japan, there is a restriction on the activities of the Self-Defense Forces.

�A Additional provisions in the Law of the Territorial Sea for a comprehensive clause for a passage which is not innocent and for its penalty

Because of the necessity to pursue a suspected spy ship merely against the violation of the Fisheries Act or Ships Law, it is required to establish a legal basis for a passage not innocent in the territorial sea of Japan. It is also important as an independent nation that a Spying Prevention Law (Secrecy Protection Law) be enacted, and the information gathering activities within the territory should be checked so that we can take coercive actions such as confirmation of the fact by an on-the-spot inspection, confiscation of the data, and deportation out of the country. Further, a Ocean Resources Protection Law is to be enacted, so that the Chinese oceanographic　survey and exploration activities in our territory in the East China Sea should be controlled. We can not achieve our purpose to exercise our national sovereignty right only by the deportation demand based on the application of the provision of the UN Convention on The Law of the Sea.

 �B The Article 25 of the Maritime Safety Agency Law shall be revised so that an effective system should be established to employ the resources such as equipment and personnel in the event of a national emergency in a close liaison with the Self-Defense Forces.

 �C The establishment of an information gathering system

There is no doubt that the information gathering activities for early warning is quite important effectively to defend the extensive territory.  You will require a reconnaissance satellite, a wide-area monitoring system, warships and aircraft with quick responding capabilities to the security information and a trained expert group. It is also necessary to establish a civilian self-defense system by arousing national concerns over various kinds of violations.

 

Conclusion

It is essential that the Self-Defense Officials who take actions at the front should be given a clear legal basis of the powers and the responsibilities for their actions. The territorial defense has various aspects and steps of actions. It is not always necessary to get the SDF involved from the start of the operations. But, it will be unreasonable not to get them involved in the national emergency which is beyond the control of the police forces or the Coast Guard. Legislation of the National Emergency will be the legal basis for the defense of the security and the peace of our nation and people. At the same time there is no doubt that the legislation relating to the territorial defense will give us the measures to prevent our national emergency or catch the news, in advance, of a surprise violation of the sovereignty of our country.      

 

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