China-Japan trawler incident: Japan’s unwise — and borderline illegal — detention of the Chinese skipper

Author: Sourabh Gupta, Samuels International

In the inflamed commentary that has followed the Chinese skipper’s collision with Japanese coast guard vessels in the East China Sea, there has perhaps been no more flawed a characterisation than portrayal of the incident exclusively through the lens of territoriality. In fact, considering the location of the clash — in coastal waters abutting the disputed Senkaku Islands — and the prior existence of mutually agreed disciplines (Sino-Japanese Fisheries Agreement of 1997) that seek to functionally quarantine Senkaku-related bilateral fisheries disputes from the charged accompanying issue of territorial title, portrayals of the incident have ranged from the naïve to the disingenuous.

This failure of analysis has not been limited exclusively to Western observers. Rather, the lens of territoriality — and its violation — has been the central theme of the Japanese mainstream media’s (mis)characterisation of the incident. In its editorial of September 26, the Yomiuri bluntly drew attention both to the ‘inherent’ Japanese territoriality of the Senkakus — and, thereupon, the problem of ‘illegal’ Chinese fishing in Japan’s territorial waters. In a similar — albeit more elevated — vein, the Asahi noted that Japan, as a society governed by the rule of law, was duty-bound to investigate an incident of malicious conduct that happened to transpire in its territorial waters. Nary a word of the Sino-Japanese Fisheries Agreement merited mention in either editorial.

The bilateral fisheries agreement goes to the heart of the legalities of the current quarrel as well as provides a mechanism for its resolution.

A bilateral fisheries issue, not a territorial issue

As per the Japan-China Fishery Agreement of 1997, which entered into force in 2000, the waters of the East China Sea are divided into four jurisdictional zones: (a) undisputed territorial seas; (b) exclusive fishing zones within each country’s EEZ; (c) a shared, intermediate fishery zone within the EEZ’s that straddles a hypothetical median line; and (d) high seas. While the principle of coastal-state jurisdiction applies in the former two zones, the principle of flag-state jurisdiction applies in the latter two. Crucially, for purposes of the disputed Senkaku Islands, with an enlightened view to immunise bilateral commercial fishery rights and related issues from sovereignty-related contestations, the territorial waters adjacent to the islands were excluded from the application of the fisheries agreement. Instead, the extant fisheries dispensation (the 1975 Japan-China Fishery Agreement), which deemed the areas around the Senkakus as part of the high seas, was allowed to prevail.

As such, not only are Chinese vessels — as per mutually agreed legal principle and fact — allowed to operate along the Senkaku’s coastline, subject to regulatory limitations no doubt imposed by a standing bilateral Fishery Joint Commission, but, more crucially, such vessels are also deemed to be plying the high seas and hence subject to flag-state jurisdiction — in this case’s China’s. UNCLOS‘s general provisions relating to high seas jurisdiction could not be clearer in this regard: in the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility … no arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State (Article 97). For the record, even infractions within the shared fishery zone that lead to arrest, as per the 1997 bilateral fisheries accord, are to result in prompt release of detained captain and crew following posting of appropriate bond or other security. Domestic investigation and trial is to be abjured in all circumstances by the coastal state.

Bearing this background in mind, it is hard to square the Kan government’s domestic actions with its bilateral commitments in this trawler incident. Not only were the legalities of the 1997 fisheries accord in regards to effective high seas jurisdiction violated by Tokyo but the broader, commonly agreed principle of shrewdly building separation between territorial and fisheries issues in the East China Sea too was unilaterally re-interpreted.  And indeed while Tokyo does possess an inalienable right to assert extra-territorial jurisdiction on the high seas under certain internationally recognised principles, to do so in this immediate case relating to territory widely considered in the region to be in dispute is politically injudicious to say the least.

Rather, the appropriate course of action should have been prompt deportation of the Chinese skipper and crew, an insistence on the former’s trial in a Chinese tribunal, a sharing of the investigative evidence, and a holding of the communist government’s feet-to-the-fire to obtain an adequate conviction. A sitting thereafter of the bilateral Fishery Joint Commission to scope out further binding disciplines in territorially-contested East China Sea waters would also be in order. To conflate and ratchet up a fisheries–related quarrel into a full-blown territoriality and sovereignty struggle however suggests an entirely opposite course of action. Given that the East China Sea is sought to be the locus of future joint marine scientific research and sea-bed resource development projects, each without prejudice to both countries’ respective positions on territorial and law of the seas issues, the Kan government’s actions bode poorly for the immediate future.

Looking ahead

For Tokyo, and the young DPJ government in particular, its commitment to maritime regime building in East Asia bears questioning — particularly if that regime is sought to be jettisoned at the first instance of tension. For unofficial Washington, meantime, its almost-Wilhelmine haste to ascertain the US-Japan security arrangements’ Article V triggers vis-à-vis the Senkakus bespeaks an appetite not wholly consonant with its claimed desire for the pacific resolution of disputes.

Yet some of the most searching questions remain at the Chinese end — its tendency to couch intended communication within pro forma language; its habit of officially talking (and behaving) in non-diplomatic tones with democracies; its penchant for holding sensitive issues hostage to the state of overall bilateral relations; and its unhelpful inclination to use open territorial issues as expedient pressure points to signal disaffection. By this last count, it would be fair to assume in the weeks and perhaps months ahead, an additional degree of PLAN traffic and activity nearabouts the East China Sea median line. That Beijing, further, tends to interpret — and police — its EEZ perimeter expansively, beyond the median line during periods of tension, and in the process drive away approaching Japanese survey vessels, is calculated to keep tensions on a boil and fray nerves regionally for a while.

Sourabh Gupta is a senior research associate at Samuels International Associates, Inc and a contributor to EAF.

11 Comments

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  • “Nary a word of the Sino-Japanese Fisheries Agreement merited mention in either editorial.”

    And correctly so; the Agreement covers EEZs but not the territorial waters, where the incident occurred.

  • Andrew

    Dear Author,

    I enjoyed reading your article. Could you provide the evidence of this sentence: “the extant fisheries dispensation (the 1975 Japan-China Fishery Agreement), which deemed the areas around the Senkakus as part of the high seas”? While I read the original document of the 1975 agreement, I could not find any sentence about the Senkakus. Instead the agreement dealt with only areas northward from 27 north latitude, which do not include the Senkakus.

    Look forward to your reply.

    Sincerely,
    Andrew

  • The agreement (1) doesn’t cover the Senkakus and (2) permits detention. Read the bolded portion carefully — the captain *has to post bond* before being released. Meaning that Japan can detain him even if the agreement applies — which it doesn’t anyway.

  • Edwin Chang

    Still, whoever the Japanese patrol boat captain (commander?) was, he should have followed the spirit of this agreement which to my understanding is to avoid arrests and therefore defuse international tensions. I can’t believe that this agreement does not cover the Diaoyus (the proper name for these islands) because their sovereignity and more importantly the use of the waters around these islands by Chinese and Taiwanese fishermen have been a bone of contention with Japan for over a century. For the Chinese to agree to this and NOT include the Diaoyus does not make any sense to me.

    I also don’t blame the Mainland Chinese government for being upset. The Japanese coast guard has a history of being extremely aggressive and they have before rammed Chinese, Taiwanese fishing boats and other ships of other nations and arrested the crews for essentially trespassing. If there are loopholes in the agreement that allow the Japanese to do this then I think the wise thing to do is to not exploit it and send the fishermen on their merry ways. After all, the Japanese have a very weak case for the islands.

  • Sourabh Gupta

    Thanks for the comments. Let me elaborate by laying out the table first:

    1997 Fisheries Agreement-related provisions cover both EEZ and territorial waters … but provisions were not extended to waters south of latitude 27*N, which includes the Senkaku/Diaoyu area. For waters south of 27*N, fishing practices inherited under 1955 bilateral (non-government) fisheries agreement and 1975 bilateral fisheries agreement were deemed to continue. While these agreements did not explicitly spell out exemptions, understandings in place effectively treated these waters to be part of high seas and did NOT prohibit fishing in these waters.

    As such, at no point of time have territorial waters around Senkakus/Diaoyus been legally removed/re-designated from its effective high seas designation, either unilaterally or bilaterally, for commercial fisheries purposes. Further, the Joint Fishery Commission (which I reference in the article) does have recommendatory powers (among others) to: “… consult on matters related to fishing conditions and reciprocal permits, matters relating to the water area south of 27*N and 125*30’E, and to make recommendations to governments of both parties.” That said however, and given Tokyo’s effective control over the Senkakus, understandings might have been arrived at under which Chinese fisheries vessels were to be governed by flag state laws so long as they stayed out of the 12 nm territorial sea of the Senkakus/Diaoyus.

    With this background, hence let me respond to some of the comments:

    Inherited bilateral fisheries practices, not the 1997 Fisheries Agreement, DO cover the claimed territorial waters where the incident occurred. And as the recommendatory powers assigned to the Joint Fisheries Committee suggest, waters south of 27*N is not entirely outside the purview of bilateral fisheries disciplines.

    Second, Tokyo is not in a position to de jure enclose waters that are contested. The 1997 agreement after all contains very clear language of coastal state jurisdiction over territorial seas … if Tokyo had wanted to include the Senkakus within that territorial sea jurisdiction for fisheries purposes, it would not have excluded the area south of 27*N from the 1997 Fisheries Agreement.

    Third, the very purposes of fisheries-related agreements and practices in the Senkaku/Diaoyu area was to strip it of its territorial/sovereignty connotations and allow for a mutually beneficial fishing order to take hold. Given Tokyo’s effective control over the islands, this was particularly in China’s (commercial) interest. Hence, even more than the Japanese, it was in the PRC’s interest to build separation between commercial and territorial aspects of this issue AND set the history-issue aside.

    And herein also lies Tokyo’s primary failing in this Incident: given the allegedly provocative actions of the Chinese skipper, Tokyo chose to tear the veil of ambiguity apart that has usefully governed fisheries-related practices nearabouts the Senkakus, and instead metamorphose a commercial incident into one laden with sensitivities of territory and sovereignty. Tokyo had more discreet options which would have been in keeping with the decades-long principle/spirit of bilateral fisheries practices, yet ostentatiously chose not to exercise them.

    Going forward, it would be useful for that Joint Fisheries Committee to sit down and develop more explicit disciplines for fishing activities in the Senkaku area. This time it was ‘just’ a boat ramming … what happens when there is loss of life on a fishing vessel following a shoot-around within the Senkaku 12 nm zone!

    Best, Sourabh

  • Law student

    First of all, 1975 agreement has expired by the date of effect of 1997 agreement.

    In addition, according to 1975 Fisheries Agreement: China-Japan, Article 1 stipulates

    ”1. The waters to which this Agreement is applied (hereinafter referred to as the “agreed-upon waters ” ) shall be waters in the Yellow and East China Seas, which are stipulated hereunder (with the exception of some territorial waters).
    (1) East of Straight, Line Linkinq Various long Points Mentioned Hereunder
    (i) The p a i n t at lat. 39″ 45′ N. and 124′ 9′ 12″ E.
    (ii) The point at 37′ 20′ N. and long 123′ 3′ E.
    (2) E a s t of S t r a i g h t Line Linking i n Regular Succession Various Points Mentioned Hereunder
    (i) The point a t lat. 37′ 20′ N. and long 123′ 3′ E.
    (ii) The point at L a t . 36″ 48′ 10” N. and long 122′ 44′ 30″ E.
    (iii) The point a t lat. 35″ 11′ N. and long 120′ 39′ E.
    (iv) The point at lat. 30′ 44′ N, and Long 123′ 25′ E.
    (v) The point, at lat. 29′ N. and long 122″ 45′ E.
    (vi) The point at lat. 27″ 30′ N. and long 121′ 30′ E.
    (vii) The point at Lat. 27′ N. and long 121′ 10′ E.
    ( 3 ) North of the line at Lat. 27′ N.

    2. Provisions of this Agreement shall not be regarded as provisions to injure the two signatory countries’ respective positions as to jurisdiction over the sea.”

    I would have to say, the article 1 indicates that the two countries still hold its jurisdiction over their own territorial sea then, not to mention areas southward from 27 north latitude (where the Senkakus is located). Otherwise, the two states have to stipulate explicitly since it is very unusual to renounce its jurisdiction over its territory and regard that as high sea.

    On top of that, Japan has officially incorporated the island into her governance in 1895, and for that reason, consistently has not acknowledged the existence of territorial dispute. This fact clearly shows that Japan has been fully convinced that she has inherent right for the island and do not intend to renounce the right by such treaty.

    Personally, I do not understand the author’s argument regarding 1975 agreement (in addition to the argument of 1997 agreement).

  • Law student

    For additional information, I found the Japanese Government official comment to the editor of WSJ.
    Clarifying the Senkaku Islands Dispute Sep. 21
    http://online.wsj.com/article/SB10001424052748704129204575505141368553952.html

    ‘First, the fisheries agreement between Japan and China does not permit “both sides’ fishermen to operate free of regulation around the islands.” Rather, the agreement is only applicable to the Exclusive Economic Zone. The Chinese boat clashed against Japanese patrol vessels within Japan’s territorial waters, in clear violation of relevant Japanese laws.’

  • Karthik Bala

    @ Edwin Chang

    How so? The Chinese claims were made nearly 30 years after the fact; it was a clear grab a territory for resources. There are Chinese government published maps that indicate the islands belong to Japan. Are you hanging your hat on the laughable “ancient historical fishing grounds” argument?

    Also, it’s the Chinese coast guard that’s historically aggressive. It’s fishermen are impelled to collide with Japanese patrol boats precisely to inflame tensions as happened recently.

  • WTF

    This is the first time I learned that there is a Japan-China Fishery Agreement of 1997 in existence with respect to the Diaoyutai islands in a Western media.

    Why?

  • The way I understand it, both sides are laying claim to the Senkaku/Diaoyu Islands out of nationalism and out of nationalism alone. The Japanese don’t want to give in to the Chinese. Similarly, the Chinese don’t want to give in to the Japanese. Compromises from either side are seen as a weakness in government, so both sides are reluctant to give way.

    As a result, you have the massive protests that we have seen since this issue flared up a month or so ago.

    From my point of view, there is no reason for the conflict to continue. Both parties are arguing over what literally is a chain of rocks. Yes, there are massive reserves of oil and natural gas under and near the island chain itself; enough natural gas to fuel Japan for 8 months and China for two years. And yes, there are fish to be had off the coast of these islands. Are both, however, worth sacrificing USD232 billion worth in bilateral trade for?

    I certainly don’t think so.

  • Sourabh Gupta

    On the issue of whether the Japanese fishing agreements mean that the territorial waters should actually be considered ‘high seas’, If one can show any piece of evidence that waters around Senkakus are de jure Japanese territorial waters for commercial fisheries purposes (or frankly otherwise too), I’d be glad to see it. That the Japanese have effective control and claim it to be so, doesn’t make it so … I don’t see people running around saying that because China has effective control over some South China Sea maritime territorial features and has a (expansive) claim attached to it, hence it automatically belongs to the Chinese. Ditto for Japan and the Senkakus.

    And frankly, insofar as the Senkakus is concerned, Japan does not even claim it to be so (territorial waters) for commercial fisheries purposes. What they instead do is exercise effective control over 12 nm zone abutting Senkakus (note: Chinese state vessels patrol up to the 12 nm contiguous zone beyond the immediate ‘territorial’ 12 nm zone) and have bilateral understandings with the Chinese with regard to fishing practices in the area. Those understandings might or might not allow Chinese trawlers in the immediate 12nm ‘territorial’ zone … there is some ambiguity on this point.

    Additionally, as to the claim that Japan has up to now allowed unrestricted fishing in the territorial waters around the Senkakus is also nonsense (the Coast Guard has long routinely forced Chinese and Taiwanese trawlers and recreational fishing boats out of the area, what is very clear is this: Neither the 1955, ’75 or ’97 fisheries agreements brings the immediate area under its jurisdiction, even as both parties have fished continuously in those waters … it is left to bilateral understandings … those understandings have left jurisdictional responsibilities to the flag – not coastal – state in case of fishing-related incidents – this, so that the issue of territoriality is divorced from commercial issues.

    As regards ‘high seas’ interpretation, waters that have not be legally enclosed by treaty, remain de jure as ‘high seas’. In NOT assigning legal title to such waters at any point of time (remember unilateral Japanese claim does not cut it) and thereafter dropping the area around the Senkakus from the domain of fisheries agreements (even as fishing was allowed in vicinity), the waters, strictly speaking, were treated effectively as ‘high seas’. Note too that I gave this ‘high seas’ interpretation only weight of borderline illegality. This was not my principal case. My principal case was that Japan, in this incident, unilaterally re-interpreted the PRINCIPLE of flag-state jurisdiction in deliberately ambiguous legal waters and elevated a commercial issue into a territorial-sovereignty one – notwithstanding previous understandings. The location of the incident, not its maliciousness, governs the jurisdictional right and wrongs in this case. Admittedly, the manner of my quoting of the various bilateral fisheries agreements though has served to confuse rather than clarify.