Armed Intervention by Japan over the Diaoyu Islands: Intentions and Legal Constraints

Liu Jiangyong

I.Implications of the Japanese Prime Minister’s Statement on“Sending Troops”to the Diaoyu Islands

During the plenary session of Japanese House of Representatives on July 27, 2012, Japanese Prime Minister Yoshihiko Noda stated that if violations by other countries occur in“Japanese territory and territorial waters”including the Diaoyu Islands,Japan will consider dispatching Self-Defense Forces (SDF) when necessary. This is the first time that Noda mentioned“sending SDF”since he proposed on July 7, 2012 that the Japanese government“purchase”the Diaoyu Islands. In response,Chinese Foreign Ministry spokesman Hong Lei said that China expressed“serious concern and strong dissatisfaction”over the“extremely irresponsible remarks by the Japanese side on the Diaoyu Islands issue.”

Also on July 27, Japan’s Defense Minister Satoshi Morimoto told reporters that“if the Coast Guard and the police can not cope with the situation, there is a legal ground for SDF’s action”.On the same day, Chief Cabinet Secretary Osamu Fujimura said that the use of SDF was just a theoretical possibility.Fujimura’s comment was, on the one hand, meant to whitewash Noda’s statement on“sending troops”and, on the other hand,tantamount to admitting that Noda did make such a statement.

Noda’s statement echoed the Defense of Japan 2012, a Japanese white paper released in late July 2012. In the section titled Response to Attacks on Japan’s Offshore Islands, the white paper said:“If signs of attack are detected in advance,operations will be conducted to prevent invasion of the enemy forces, and when no signs of aggression are detected in advance and islands are occupied, operations will be conducted to defeat the enemy.”The white paper also said that“when implementing such operations, it is important to establish air-defense preparedness in the airspace of islands, including cruise missile response, and to secure air superiority, command of the sea.”The White Paper also mentioned for the first time China’s“various domestic problems”and made the complexity of China’s party-military relations as a“topic for Japan’s crisis management.”In response, the spokesman of Chinese Defense Ministry said that the Japanese side was deliberately peddling the“China military threat theory”and interfering in China’s internal affairs and the Chinese side had thereby expressed its firm opposition and made solemn representations with the Japanese side.

As early as before the conclusion of the China-Japan Treaty of Peace and Friendship in 1978, some Japanese leaders had referred to“sending troops”over the Diaoyu Islands. In April 1978, more than 100 Chinese fishing boats entered the waters of the Diaoyu Islands. The then-ruling Liberal Democratic Party had a General Council meeting to discuss counter-measures,and the defense minister and some other officials had asked for the use of SDF. But the then LDP Secretary General Masayoshi Ohira made it clear that“since force cannot be used to resolve the issue, then let’s better resort to calm, active diplomatic means”. Later, the Takeo Fukuda Cabinet reached a tacit political understanding with the Chinese side to shelve their disputes and conclude the Sino-Japanese Peace and Friendship Treaty. At that time, the United States needed the strategic support from Japan and China in its fight against the Soviet Union’s challenge to U.S. global dominance, and thus hoped to see the conclusion of the Sino-Japanese Peace Treaty and an expedited process of the establishment of diplomatic relations between China and the U.S. And Japan planned to import fossil energy from China, export complete sets of equipment to China,explore the Chinese market, and join hands with China against the Soviet threat.

In 1996, Japan ratified the United Nations Convention on the Law of the Sea and used the Diaoyu Islands as a“base point”for Japan’s claim of a 200 nautical miles of exclusive economic zone. Thus Japan fell back to the Eisaku Sato Cabinet’s position on the Diaoyu Islands issue before the normalization of diplomatic relations between the two countries: denying the existence of a territorial dispute over the Diaoyu Islands. Then,logically, Sino-Japanese relations began to deteriorate due to the Diaoyu Islands issue.

The current balance of power between China and Japan and the domestic politics and international environment of the two countries are dramatically different from those 40 years ago.China overtook Japan as the world’s second-biggest economy in 2010. China has become Japan’s competitor in demand and import of international energy resources, prompting more talk of the so-called“China threat”theory in Japan. With the U.S.pivot to Asia, the U.S. and Japan have begun to increasingly use each other as a balance against China. There was a major readjustment in Japan’s policy toward China during the Yukio Hatoyama administration in 2010, with a main indicator being the introduction of the Japanese National Defense Program Outline at the end of 2010. There has also been a big change in Japan’s attitudes and practices concerning the Diaoyu Islands issue.

For this reason, even though China still adheres to a policy of seeking peace and friendship with Japan and the principle of“shelving territorial disputes while engaging in joint development,”the Japanese government insists on stating that the Diaoyu Islands are“inherent Japanese territory,”denying that the Sino-Japanese territorial dispute over the Diaoyu Islands exists and there has been a tacit political understanding between the two sides to shelve the dispute, and refusing to engage in joint development of oil and gas resources in the waters of the Diaoyu Islands. Such a position of Japan inevitably leads to a vicious circle over the Diaoyu Islands issue and Sino-Japanese relations. Noda’s comment on“sending troops”is just an inevitable result of this political process.

At this stage, Noda’s comment on“sending troops”over the Diaoyu Islands issue shows that Japan may resort to the use of force in the future, but the comment does not mean that Japan would choose to attack China by using the so-called defense of the Diaoyu Islands as an excuse. Japanese SDF is not yet ready for a showdown with China over the Diaoyu Islands. The Japanese National Defense Program Outline of 2010 dictated that Japan shift the focus of its defense to the southwestern islands and strengthen the dynamic combat capabilities, but it will take at least three more years to implement Japan’s fiveyear medium-term defense equipment acquisition plan. Japan’s pre-emptive use of force in the Diaoyu Islands waters will also be constrained by its domestic political and legal factors. According to the provisions of Article 82 of the Japanese Self-Defense Forces Law, the minister of defense can order the use of SDF ships for the protection of life and property and maintenance of law and order on the sea. Therefore, even if Japan dispatches SDF, the troops will be limited to policing on the sea and land,unless being attacked.Japan may have made the following decisions: After the Japanese government“purchased”the Diaoyu Islands, the Japan Coast Guard, backed by the MSDF, will force an eviction of Chinese vessels entering the“territorial waters”of the Diaoyu Islands or Chinese nationals landing on the island. If the Coast Guard force is insufficient, the MSDF will be deployed to provide assistance to the Coast Guard and maintain close communication, coordination and cooperation with the United States. Japan attempts to rely on the Japan-U.S. alliance and military deterrence in its strategic contest with China on the issue of the Diaoyu Islands. At the same time, Japan has also been actively involved in the South China Sea issue, providing support to the Philippines and Vietnam in the hope of creating a strategic situation where China would be flanked on the East China Sea and South China Sea. The immediate goal of Japan in so doing is to establish and consolidate the so-called“actual control”of the Diaoyu Islands; and Japan’s strategic purpose is to balance China’s development and growth. These purposes of Japan hit it off with the U.S. Asia-Pacific strategy.

II.the Making of Japan’s Policy of Armed Intervention over the Diaoyu Islands

Japan began to develop the“southwest islands defense program”for SDF when Junichiro Koizumi became Japanese Prime Minister. In 2002, Japan established an“offshore islands defense force”which has worked with the U.S. Marine Corps to hold joint exercises on“islands defense,”with a focus on training for amphibious fighting, offshore islands combat and reconnaissance. In 2007, during the administration of Shinzo Abe, Japan’s Defense Agency was upgraded to a ministry of defense with an increased influence on foreign policy decisions.Since the Democratic Party of Japan came into power in September 2009, there have been flip-flops in Japan’s domestic and foreign policy from Hatoyama Yukio to Naoto Kan to Yoshihiko Noda.

1. The formulation of Japan’sNational Defense Program Outline 2010

Japan’s National Defense Program Outline released at the end of 2010 further identified the basic principle of Japan’s armed intervention over the Diaoyu Islands. Prior to the introduction of the outline, the Association of the New Era Security and Defense Forces, Prime Minister Naoto Kan’s advisory body, completed a brainstorming report on July 25, 2010,recommending the fundamentals and basic framework for the new National Defense Program Outline. In mid-September of the same year, after the collision incident involving a Chinese fishing boat and Japanese Coast Guard ships in the waters of the Diaoyu Islands, the Japanese government was finalizing the National Defense Program Outline, while responding to the incident, and therefore the outline inevitably reflected the views and proposals of the hardliners in the ruling party,hawkish officials in the SDF, as well as government-related scholars.

As disclosed by the then Japanese Defense Minister Toshimi Kitazawa, a small number of politicians within the Democratic Party played a leading role in the formation of the National Defense Program Outline 2010. Specifically, Kitazawa himself, then Foreign Minister Seiji Maehara, Chief Cabinet Secretary Yoshito Sengoku, and Finance Minister Yoshihiko Noda discussed the draft outline nearly 20 times before its finalization.

2. Policy recommendations by Diet members of the Democratic Party of Japan against China on the Diaoyu Islands issue

On September 27, 2010, 12 members of the House of Representatives from the Democratic Party including Congressman Matsubara Keren signed a letter asking the Japanese government to“dispatch Self-Defense Forces to the Senkaku Islands for permanent station.”Their proposals include: (1) to hear directly from Japanese Ambassador to China Niwa on the real situation of China’s ban on the export of rare earth to Japan and acts against Japanese staff and enterprises in China; (2) to immediately release the video of the“illegal”conduct of the Chinese fishing boat against the Japanese Coast Guard so as to draw the attention of the international community including Southeast Asian countries; (3) to station permanent SDF on the“Senkaku Islands”and study the establishment of economic strongholds on the islands including transit bases for fisheries.

On the same day, 43 young Diet members including Former Parliamentary Secretary of Defense Akihisa Nagashima with the Democratic Party of Japan (DPJ) submitted to Chief Cabinet Secretary Yoshito Sengoku a report entitled“Recommendations to the Kan Administration on Upholding National Interests and Shifting Diplomatic Strategy.”They made the following specific proposals:

—Establishing an integrated security system. Japan should set up a strategic planning and implementation system on comprehensive security with the Prime Minister’s official residence as the center, covering five pillars of security: military,economy, resources and energy, food, and information. Japan should strengthen its own independent defense posture while deepening the Japan-U.S. alliance.

—Establishing a strategy of access to Russia, ASEAN, and Central Asia. Japan should avoid over-relying on China. At the same time, to hedge against China, Japan should conclude a peace treaty with Russia as soon as possible, develop Siberia,provide common assistance to Central Asia, and strengthen infrastructure building and direct investment in ASEAN countries to overtake China’s role as a“world factory.”

—Fundamentally reconsidering Japan’s relations with China and reexamining the specific meaning and content of the notion of“the Japan-China strategic and mutually beneficial relationship”.

—Diversifying Japan’s strategic resource supplies. Japan should strengthen the rare earth reserve system, and immediately sue China at the WTO when China imposes an embargo on rare earth export to Japan.

— Strengthening Japan’s defense system in the southwest.By revising the National Defense Program Outline, Japan should deepen consultations within the Japan-U.S. alliance, further enhance the defense posture of the southwestern islands with Okinawa at the core, and strengthen the Coast Guard’s maritime security system.

—Establishing an effective control of the Senkaku Islands(Diaoyu Islands). Japan should nationalize the islands by purchasing from the private owner of the islands and establish warning and surveillance radar facilities on the islands.

—Building a maritime order in the Western Pacific. Japan should begin to join hands with the United States, ASEAN,South Korea and Australia to establish an international pattern of marine order to ensure freedom of navigation from the East China Sea to the South China Sea.

— Establishing a Japan-China crisis management mechanism.Japan should establish a system to avoid maritime accidents and prevent dangers and this is conducive to the building of a management mechanism for the bilateral dialogue when the Japan-China relationship is in a crisis.

3. Policy recommendations against China on the Diaoyu Islands issue by senior officials of SDF

Gomi Mutsuyoshi, retired Vice Admiral of Japan’s Maritime Self-Defense Force, believed that it has been a basic principle of the United States over the last century to maintain American hegemony in the world and never allow a hegemon in Eurasia.“For the United States, China is much more formidable than any other big powers the United States had to deal with in the 20th century.”Therefore, in order to prevent China from becoming a hegemonic state, the key for the United States was to“closely cooperate with its allies and friendly countries.”To support the U.S. military, Japan should achieve the exercise of the right of collective self-defense by modifying the official interpretation of the Constitution of Japan. Japan should change its doctrine of“special defense”to“strategic defense”; modify Japan’s“three non-nuclear principles”, allowing Japan to“bring in American nuclear weapons”in stead of not manufacturing, not possessing and not bringing in nuclear weapons by Japan. The Japanese government should take over the Yasukuni shrine and“allow the self-defense officials killed in action to be honored at the Shrine.”Mutsuyoshi called for a Japan version of the“Taiwan Relations Act”and joint intervention over the Taiwan issue by Japan and the United States. He believed that“the sea lanes from the Middle East to the South China Sea are critical to Japan. If Taiwan, which is situated on the sea lanes, is to be annexed by China, then China would make Taiwan a forward base for its marine power to radiate to the South China Sea and the East China Sea. China’s expansion will certainly pose a major threat to Japan’s national security.”“Taiwan is so significant that it means life and death for Japan”;“Taiwan is the lifeline of Japan, and Taiwan and Japan are a community of destiny”. The above-mentioned comments are nothing different from those during Japan’s colonial rule over Taiwan.

In addition, Fumio Ota, former Director of Japan’s Defense Intelligence Headquarters and Defense attaché of the Japanese Embassy in the United States, and Professor Makoto Yoshida from the Defense University of Japan, Former Director of the Asia-Pacific Section of the Research Office of the Maritime Self-Defense Force Cadre School proposed that Japan should engage in smooth coordination and cooperation between different Ministries and agencies of the Japanese government, establish seamless links between the Coast Guard, the Maritime Self Defense Force, the police and the Japan Ground Self-Defense Force (GSDF) and develop interlinked rules of engagement.They also stressed that in order to prevent China’s North Sea Fleet from entering the Pacific Ocean, mines can be laid at the maritime hub of Japan’s southwestern islands where Chinese warships navigate.

III.Options for Japan’s Armed Intervention over the Diaoyu Islands

In December 2010, Japan’s new National Defense Program Outline further shifted its defense focus to the so-called“southwestern islands”so as to strengthen Japan’s sea and air power, warning and surveillance facilities, and mobile operations capabilities against China, and establish regular three-dimensional monitoring system from the space to the sea bed. Based on the outline, Japan introduced a Mid-term Defense Force Preparedness Plan (2011-2015) in December 2011. By 2016, Japan’s submarines will increase from 16 to 22; six Aegis destroyers will be equipped with ballistic missile defense systems (BMD); 260 fighters will be upgraded, with the introduction of 5th generation fighters such as the F-35s;coastal surveillance forces of the GSDF will be deployed to southwestern islands; optical instruments and radars will be used to monitor foreign vessels sailing in the East China Sea.

Since the collision incident in the waters of the Diaoyu Islands in September 2010, Japanese SDF has developed a series of options for armed intervention in the Diaoyu Islands.

Option 1: Garrison troops will be deployed to the Diaoyu Islands before the Chinese side takes action so as to prevent China in advance from occupying the islands.

Option 2: Vigilance in the adjacent waters of the Diaoyu Islands will be strengthened so that when China attempts to take actions such as landing on the islands, the Chinese side shall be given a warning while Japan lodges a protest through diplomatic channels with an aim to force China to suspend its operations.

Option 3: When China attempts to land on the islands, the Chinese side shall be given a warning while a protest is lodged through diplomatic channels; when the other side ignores the warning and continues to land on the islands, further repeatedly tough warnings and protests will be issued while diplomatic negotiations will be used without resort to force.However, in view of China’s positions and actions to date, it is hard to imagine that negotiations alone will be able to prevent occupation, because the other side may think that they are allowed to land on and occupy the islands. In this case, force will be used to reverse the situation.

Option 1 may lead to local conflicts between Japan and China. Japan must rely primarily on the strategic deterrence of the United States to contain China. Japanese Maritime Defense Force should be allowed to use unlimited force according to the international law against Chinese troops. The option for preemptive occupation should be carried out discreetly, and Japanese combat operations should be completed in a secret manner before the Chinese side takes countermeasures.

It is more difficult to implement Option 2 than Option 1. Even when the Chinese fishing boats land on the islands, they should be viewed as intelligence ships which would like to make fait accompli landing. If Japan’s Coast Guard ships can not cope with the resistance and risks, then SDF warships should be used.

Option 3 may lead to a larger war than the first and second options. All the southwestern islands, including Okinawa, might be attacked by Chinese missiles. If Japan becomes indecisive and lets the opportunity of a counterattack slip, China may gain effective control over the islands, and as a result, China is able to occupy the islands.

Based on the above-mentioned three options, it is safe to say that Japan believes that to be pre-emptive helps one gain the upper hand, but to be reactive makes one disadvantaged,while to maintain the status quo is most reliable. In the future,Japanese SDF may wait for opportunities to implement Option 1. They may take pre-emptive actions when they believe that the conflict is controllable as a result. They may choose to fulfill Option 2 so as to maintain the status quo in a quiet situation.They will try to avoid Option 3.

There is a division of labor between Japanese and American militaries: The U.S. military will engage in strategic operations such as nuclear deterrence, undertake to blockade the Straits,block the Chinese fleet, and attack their bases; Japanese SDF bears the responsibilities of direct defense of the islands, etc. The main tasks for the SDF include aerial and sea reconnaissance and warning and surveillance, mine sweeping and mine-laying,onshore guard of the islands, and the transport of troops, base management and air defense.

IV.Legal Constraints on Japan’s Armed Intervention over the Diaoyu Islands

Before assuming defense minister, Satoshi Morimoto stated in his book Japan and the Brink of Crisis that“no matter how the Japanese defense forces undergo modernization, they will be subject to strong legal and political constraints when they are put into use”, therefore,“in case the Coast Guard finds it difficult to cope with a situation in the territorial waters, the MSDF,even if dispatched to engage in maritime surveillance action,will still be confined to policing activities in terms of the use of weapons”. Suppose that Chinese ships fire live ammunition at Japanese Coast Guard patrol boats, then“Japanese legal measures to safeguard the use of the right of self-defense are insufficient”.“Self-Defense Forces will, at best, be permitted to fire warning shots as in a policing activity and it will be impossible to use weapons and force beyond policing power.”O(jiān)nly when the Maritime Self-Defense Force ships are under a direct attack, then can they“use weapons to defend weapons”.

Therefore, Morimoto advocated that“a new legal system should be developed so that there will be legal flexibility in the use of weapons in the event of an emergency situation in Japan’s surrounding areas. This will be an effective means to use SDF and improve the effectiveness of containment.”Some people in Japan have called for revision of Japan’s postwar Constitution so as to remove the constraints on the use of force. Morimoto also stressed that“barriers to the constitutional issue should be removed before the political and legal shackles are cleared”;that“the ultimate goal of the foreign affairs and security policy of Japan is to reassess the range of legislations on contingencies made under the existing guidelines and to further engage in new work through the new Japan-U.S. Joint Declaration.”But as the threshold for constitutional amendment is too high,efforts might be first made to introduce the Basic Law on Security, the Basic Law on National Crisis Management and the Basic Law on International Cooperation. At this stage, the domestic and international laws that Japan must abide by are a complete system, and the danger is that Japan is precisely breaking away from these legal systems. The comments by the Noda Cabinet on dispatching SDF to intervene by force over the Diaoyu Islands issue are just a case in point.

Article 9 of the Japanese Constitution prohibits an act of war by the state. The article clearly states that“aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.”Article 98 of the Constitution stipulates:“This Constitution shall be the supreme law of the nation and no law,ordinance, imperial rescript or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force or validity. The treaties concluded by Japan and established laws of nations shall be faithfully observed.

As a United Nations Member State, Japan must comply with the following international treaties and established international laws and regulations, otherwise, Japan violates not only international law but also their own national constitution.

First, the Charter of the United Nations which clearly stipulates that one of the purposes of the United Nations is“to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”

Second, the Treaty of Mutual Cooperation and Security between the United States and Japan which provides that“The Parties undertake, as set forth in the Charter of the United Nations, to settle any international disputes in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered and to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.”

Third, the Treaty of Peace and Friendship between Japan and the People’s Republic of China which stipulates that“The Contracting Parties confirm that, …they shall in their mutual relations settle all disputes by peaceful means and shall refrain from the use or threat of force.”

If Japan deploys military facilities on the Diaoyu Islands or dispatches SDF against China, the action will be tantamount to using the threat of force to resolve international disputes, in violation of the Sino-Japanese Treaty of Peace and Friendship as well as relevant articles in the Japan-U.S. Security Treaty and Japan’s own Constitution, and therefore will not have any legitimacy.

V. Conclusion

Currently, Japan and the United States have repeatedly stressed that Article V of the Japan-U.S. Security Treaty covers the Diaoyu Islands, which means that the U.S. military will come to Japan’s aid in the event of a conflict in the Diaoyu Islands.In fact, this is simply unreliable. Article V of the treaty says that“each Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes.”The statement means that only the territories under the administration of Japan will be subject to security guards by the United States. That is to say, two conditions must be met for the effectiveness of Article V: first, Japan has legitimate“administrative jurisdiction”;second, the territory belongs to Japan.

However, in June 1971, the U.S. government’s statement acknowledged the conflicting positions of China and Japan on the sovereignty of the“Senkaku Islands”(Diaoyu Islands).The United States said that it believed that the reversion of administration of these islands to Japan would not affect China’s fundamental claim. The United States said that it hopes that the parties concerned will resolve the dispute peacefully through negotiations. China resolutely opposed the illegal transfer of the administration of the Diaoyu Islands by the United States to Japan at the very beginning. Moreover, even the position of the United States has shown that administration is not equivalent to sovereignty. As the United States has never recognized that Japan has sovereignty over the Diaoyu Islands, it means that the United States has never recognized that the Diaoyu Islands are Japanese territory; therefore Article V of the U.S.-Japan Security Treaty does not apply to the Diaoyu Islands.

The year 2013 will mark the 35th anniversary of the conclusion of the China-Japan Peace and Friendship Treaty. The two countries should renew their commitments to the spirit of the Treaty and abide by its various principles and stipulations.Only in so doing, there will be hope for the China-Japan relationship.