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.