Japan and China’s latest spat over the Senkakus

Author: Sourabh Gupta, Samuels International

September 2012 was supposed to be the landmark 40th anniversary of the normalisation of Japan–China relations. Matters haven’t quite turned out that way.

In the wake of the purchase of three of five Senkaku islets by the Noda government from its private (Japanese) owner, seemingly orchestrated nation-wide protests and wanton damage of Japanese-owned property has taken place on the mainland. The 81st anniversary of the 9/18 Manchurian Incident has lent a keener edge to the protests and destruction.

Yet observers are wrong to infer that the fragile Japan–China relationship has once again hit rock bottom, as was the case post-September 2010 when a Chinese fishing trawler recklessly and intentionally rammed a pair of Japanese Coast Guard vessels in Senkaku territorial waters. And they are doubly wrong to infer that the two countries stand just a miscalculation away from the possible outbreak of hostilities.

Both countries’ foreign ministries have managed the current spat with admirable restraint, exercising a judicious mix of assertion and restraint within a firmly established diplomatic ceiling.

In 2010, the newly formed Naoto Kan government disregarded three decades of Senkakus-related precedent as well as the considerable ambiguity within its bilateral fishing accord with China and unilaterally altered the status quo by prosecuting, rather than deporting, the offending Chinese trawler captain. Seventeen days into the captain’s arrest on charges of obstructing officials from conducting their law enforcement duties, Prime Minister Kan, under extreme political and economic pressure from Beijing, summarily deported him back to China. In absentia, the wheels of the Japanese justice system continued to spin until earlier this May when an Okinawan judge threw out the indictment brought against the deported captain on the farcical basis that it had failed to be served to him directly.

By contrast, when a bunch of China and Hong Kong-based activists evaded warnings and landed on the islands this August, the Noda government promptly transferred them to immigration bureau officials for deportation. The Koizumi government had dealt similarly with an attempted-prior intrusion in 2003 in the aftermath of its own leasing agreement of the aforesaid three islets.

With a view to reassuring his Chinese counterpart that the recent nationalisation of the islands would amount to the least possible alteration of the status quo on the ground, Foreign Minister Gemba overrode Prime Minister Noda in internal deliberations and ensured that no reinforcement of effective control or minimally material construction or repair on the islets would be permitted to proceed. Eight islet-use plans ranging from the maintenance of the existing dispensation on the islets (Plan A) to stationing of Self-Defense Force personnel there (Plan H) had been on the drawing board; the least objectionable of the options, Plan A, was selected by the Noda government as the one that was chosen.

Plan A might yet come a cropper if the opposition LDP assumes the reins of power, as anticipated, in the forthcoming elections. Perennial China-provocateur Shintaro Ishihara harboured designs of transferring the US$18 million pot of voluntary donations, raised by his Tokyo Metropolitan government to purchase the islets (pre-empted by the central government’s purchase), to a more amenable LDP-headed government led perhaps by his son Nobuteru. His premise that a right-leaning central government would be more willing to disturb the status quo and with the transferred funds construct a facility on the islet to shelter fishing boats and host supporting personnel remains to be tested. That, however, is a crisis for another day.

It is incorrect to lay the blame for instigating the current flare-up in Japan–China tensions solely on the shoulders of Mr. Ishihara. His incendiary April 2012 island purchase proposal was not the match that lit this fire. That was lit, lightly albeit, by the Noda government in January 2012 with its announced intention to complete — as per the December 2009 basic policy on remote islands and ocean management — the naming of all of Japan’s uninhabited remote islands, including four of the Senkakus group, by March 2012. The release of the Japanese names in early-March drew a restrained protest from Foreign Minister Yang as well as the first (of four) instances of jurisdictional assertion by Chinese fisheries patrol vessels this year within the twelve nautical mile territorial sea limit of the Senkakus.

Having been forewarned calmly by the Chinese foreign ministry in March itself, both governments were in a position to limit the fallout from Ishihara’s incendiary proposal as well as manage the subsequent chain of events, including the trawler captain’s acquittal in May and the island landings in August. By contrast, the sudden and extreme indiscretion of a private Chinese citizen in September 2010 had caught Beijing napping, and encouraged a newly elevated DPJ prime minister to mistakenly believe at the time that his surge in popularity could compel China to acquiesce to his firm handling of the matter.

For the future, a disturbing jurisdictional element to emerge from the current flare-up is Beijing’s intention to officially revise and extend its continental shelf claim submission in the East China Sea to purportedly include the waters around the Senkakus. Although the U.N. Commission on the Limits of the Continental Shelf (CLCS) will in all likelihood ask China to revise its claim, the submission itself would be bad form.

Countries typically incorporate such disputed areas within the ambit of their domestic territorial jurisdiction. Hitherto, they have generally refrained from claiming baselines for disputed territories over which they do not exercise effective control in their international legal submissions. The allegedly new Chinese claim would set a poor precedent. It might also invite equally inflammatory revised submissions from countries with similarly overlapping claims, which are under effective Chinese control (such as Vietnam vis-à-vis the Paracel islands in the South China Sea).

Tokyo’s enthusiasm, meanwhile, to champion codes of maritime conduct in disputed waters in the South China Sea and joint development of sea-bed resources in disputed, and undisputed, Chinese waters, yet refrain from application of such codes and such joint development, pending delimitation, in disputed East China Sea and Senkaku waters, is not helpful either.

There are unmistakable signs from Beijing of an impending abatement in current tensions. As of 19 September, protests in front of the Japanese Embassy in the capital have been prohibited. Yet the shockingly uncivil protests and property damage of the past few days also point to the potentially swift scale of deterioration in bilateral ties should the Senkakus issue be handled carelessly. Conservative forces in Tokyo bent on disturbing the status-quo have been put on notice.

Sourabh Gupta is Senior Research Associate at Samuels International Associates, Washington, DC. He is an EAF Distinguished Fellow for 2012.