APAN

Vol.3 No.2
Fall 2019ISSN 2433-4456

REVIEW

Territory and Maritime Issues in
East Asia and their Origins
The South China Sea Arbitration and Beyond:
China’s Approach to the Law of the Sea andthe Rule of Law
Paul Reichler

China’s “Territorial Sovereignty” and Its Origins
Takashi Okamoto

Debates Concerning the Incorporation ofPeripheral Islands into the Territory of Japan
Takai Susumu

Territorial and Maritime Issues in East Asia andInternational Law
Hironobu Sakai

The Use of Force in Maritime Security andthe Use of Arms in Law Enforcement under
the Current Wide Understanding of Maritime Security
Atsuko Kanehara

Relations between Japan and India in
the Indo-Pacific Age―Transcending the Quad Framework―
Takenori Horimoto
THE J A P A N
I NS T I T UTE O F
IN T E R NA TI O NA L
A F FA I R S

Evolving Security Alignments of the Indo-Pacific:
The US Alliances, the Shanghai Cooperation
Organisation, and ASEAN
Thomas S. Wilkins

China Maritime Strategy Since 2018:
Tactical Appeasement or Strategic Evolution?
Valérie Niquet

The Japan Institute of International Affairs (JIIA), founded in 1959, is an independent nonpartisan
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research programs, the institute promotes dialogues and joint studies with other institutions
and experts at home and abroad, and makes foreign policy proposals to the government, anddisseminates information on international relations to the public. The institute, together with alarge network of affiliated scholars, aims to serve as an indispensable resource on international
affairs in a complex world.

Publisher : Kenichiro Sasae, President, JIIA
Editor in Chief : Daisuke Nakano, Director of Research Coordination, JIIAThe opinions expressed in the articles in Japan Review do not necessarily reflect the opinions
or positions of the Japan Institute of International Affairs. No article or any part thereof may be
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ISSN 2433-4456

Published by the Japan Institute of International Affairs
Designed and Printed in Japan by Taiheisha.Ltd

APAN

Vol.3 No.2
Fall 2019

REVIEW

Territory and Maritime Issues in East Asiaand their Origins
1 The South China Sea Arbitration and Beyond: China’s Approach to the Law of
the Sea and the Rule of Law�������������������������04

Paul Reichler
Paul Reichler “is one of the worldʼs most respected and experienced practitioners of Public
International Law, specializing for more than 25 years in the representation of Sovereign Statesin disputes with other States. He belongs to a select group of elite lawyers with extensive
experience litigating on behalf of Sovereign States before the International Court of Justicein The Hague, and the International Tribunal on the Law of the Sea in Hamburg,” (Chambers
Global 2010). Among many other clients and cases, he was Counsel and Advocate for Nicaragua
in the historic case of Nicaragua v. United States of America (1984–1986), regarding theillegal use of force in international relations, for Uruguay in the case of Argentina v. Uruguay(2006–2010), concerning international environmental protection and sustainable development,
and for the Philippines in Philippines v. China (2013–2016) over maritime jurisdiction andentitlements in the South China Sea, and for Mauritius (2017–2019) in advisory proceedings on
decolonization of the Chagos Archipelago. He is currently counsel in five ongoing ICJ cases,
including counsel for The Gambia against Myanmar over Myanmarʼs genocide against the
Rohingya people; for Guyana against Venezuela to preserve Guyanaʼs territorial integrity; for
Somalia against Kenya to delimit the maritime boundary in the Indian Ocean; and two cases
for Nicaragua against Colombia under the Law of the Sea Convention. He also represents
Mauritius against Maldives in a case before the International Tribunal for the Law of the Sea.

2 China’s “Territorial Sovereignty” and Its Origins ��������������13

Takashi Okamoto
Takashi Okamoto is Professor at Kyoto Prefectural University. After graduating Kobe
University in 1988, Takashi Okamoto studied as graduate student of Doctor Course of the
Graduate School of Letters, Kyoto University, and obtained the PhD. degree in 1996. His
career includes such assignments as Lecturer of the Faculty of Education, Associate Professorof the Faculty of Education and Culture, Miyazaki University, and Associate Professor of
the Department of Historical Studies, Kyoto Prefectural University. He assumed the present
position in April 2016. His noted works are Zokkoku to Zishu no aida (Between Dependency andSovereignty), the University of Nagoya Press, 2004, and Chugoku no Tanjo (The Birth of China),
the University of Nagoya Press, 2017, etc.
1

3 Debates Concerning the Incorporation of Peripheral Islands into the Territoryof Japan �����������������������������������20

Takai Susumu
Takai Susumu is an emeritus president of the Japan Society of Defense law, a president of the
Security Strategy Research Institute of Japan and a special research fellow at the Sasakawa
Peace Foundation. He graduated from a postgraduate school of Aoyama Gakuin University andstarted his carrier as a research fellow of international law at the National Institute for Defense
Studies, NIDS. He was a guest professor of Aoyama Gakuin University. He retired from NIDS
when he was a director of the library and archives.

4 Territorial and Maritime Issues in East Asia and International Law ����28

Hironobu Sakai
Hironobu Sakai has been Professor of International Law at Graduate School of Law, Kyoto
University, since April 2005. He earned his B.A. in 1987 and LL.M. in 1989 from Kyoto
University. He was Professor of International Law, Kobe University (2002–2005), Special
Researcher, the Japanese Embassy in the Netherlands (2000–2002), PSIO Fellow, Graduate
Institute of International Studies, Geneva (1996–1998), Associate Professor, Kobe University(1993–2002), Research Assistant, Kyoto University (1992–1993). His main areas of study are:
International Peace and Security, Peacekeeping Operation, International Adjudication and soon. He was born in Obihiro, Hokkaido, in 1963.

5 T he Use of Force in Maritime Security and the Use of Arms in Law Enforcement
under the Current Wide Understanding of Maritime Security ��������35
Atsuko Kanehara
Atsuko Kanehara is Professor of Public International Law at Sophia University. Member ofGoverning Board of IMO International Maritime Law Institute. Councilor of Advisory Council
for the National Headquarters for Ocean Policy of Japan, appointed by Prime Minister. Memberof the Board of the Bar Exam of Japan, appointed by Minister of Justice (2006–2015). Advocate
for the Government of Japan in “Southern Bluefin Tuna” Cases (Australia and NZ v. Japan).
Counsel for the Government of Japan in “Whaling in the Antarctic” Case. She delivered a
special course of lectures at The Hague Academy of International Law in 2017.

6 Relations between Japan and India in the Indo-Pacific Age―Transcending the
Quad Framework― �����������������������������54

Takenori Horimoto
Takenori Horimoto (Ph.D.) is currently Visiting Professor of Gifu Women ʼs University and
Senior Fellow of Center for Contemporary Indian Studies of JIA after serving as Professorof Shobi Univ Graduate School, Project Professor of Kyoto University Graduate School,
Visiting Professor of Open University of Japan and Takushoku University Graduate School.
Study committees, groups, and projects on contemporary India and South Asia organized byministries such as Ministries of Foreign Affairs, Finance, and Economy, Trade and Industry,
think tanks and universities in the past and presently. Deli Univ MA (Pol. Sc).
Specializing in Contemporary Asian Politics with special emphasis on India-US/ India-China
relations. Single authored & co-edited 14 books: India-Japan Relations in Emerging Asia,
Manohar, 2013, Japanese books of Toward the World’s Third Major Power: India’s Pursuit ofStrategic Autonomy, Iwanami Shoten, 2015, Deepening Democracy, University of Tokyo Press(UTP), 2015 and Introduction to Contemporary Japan-India Relations, UTP, 2017. Commentatorof NHK (Japanʼs BBC) TV programs on Asian issues more than 40 times. The number oflectures delivered has been 280 times. At the moment, preparing two new books: edited and2single authored on India.

7 E volving Security Alignments of the Indo-Pacific: The US Alliances, theShanghai Cooperation Organisation, and ASEAN ��������������71

Thomas S. Wilkins
Dr. Thomas S. Wilkins is currently a Senior Fellow at the Japan Institute for International
Affairs in Tokyo. He is normally based as a Senior Lecturer in International Security at the
University of Sydney, Australia. He specializes in security issues in the Asia Pacific region andhas published on this subject in journals such as Review of International Studies, International
Relations of the Asia Pacific and the Australian Journal of International Affairs, among others.

8 C hina Maritime Strategy Since 2018: Tactical Appeasement or Strategic
Evolution? ����������������������������������81

Valérie Niquet
Valérie Niquet, Ph.D. (Sorbonne University) is Head of the Asia department at FRS (Fondation
pour la recherche stratégique), senior fellow at the Japan Institute for International Affairs(JIIA) and a lecturer at Keio University (Tokyo) on Sino-Japanese relations. She has publishedextensively on Strategic issues in Asia, japanʼs foreign policy as well as the evolutions of theChinese political system. Valérie Niquet is also a consultant for the French ministry of Foreign
Affairs Center prospective and strategy (CAPS). Her latest publications include La puissancechinoise en 100 questions, Tallandier, 2017. Her latest media contributions include AFP, Le
Monde, The Diplomat, the Japan Times as well as Radio programs such as Radio France
Internationale, France Culture or the Voice of America. Valérie Niquet is Chevalier de lʼordre
national du mérite.

3

The South China Sea Arbitration and Beyond: China’s Approach to the Law of the Sea and the Rule of Law

The South China Sea Arbitration and Beyond: China’s
Approach to the Law of the Sea and the Rule of Law*
Paul Reichler**
Abstract
Within the South China Sea Arbitration, there were a number of significant issues. Amongthem, the author sees that the two issues stand out above the others. One is Chinaʼs claim
to the waters and seabed of the South China Sea based on its so-called nine-dash line andthe other is the maritime entitlements of the islands in the South China Sea̶particularly
those of the Spratly Islands. The author discusses what these issues meant, tying it into
the developments between China and the Philippines in the South China Sea since the
Arbitral Award and how it has affected the attitudes and actions of other South China Sea
coastal States. Comparing Chinaʼs approach to its neighbors in the South China Sea with
its approach to its neighbors to the East̶South Korea and Japan̶in regard to maritime
issues, the author also points out that China does not eschew international law in setting out
its maritime boundary claims. To the contrary, it attempts to justify its far-reaching claimson the basis of international law, specifically, UNCLOS and customary international law.
It allows China to present itself to the outside world as respectful of the rule of law. Being
seen as law-abiding enhances their reputation and their “soft” power, that is, their ability
to influence the conduct of other States. The author concludes that these disputes can,and will, only be resolved by agreements between or among China and the various otherprotagonists although it will take time and will not be easy.

1. The Chagos Archipelago CaseG

ood afternoon, everyone. The topic that I have been asked to speak about is, “The South
China Sea Arbitration and Beyond: Chinaʼs Approach to the Law of the Sea,” and I will
come to that in a moment. Before I address that topic, I was asked by the organizers
if I would make a few remarks about the International Court of Justice(ICJ)ʼs recent
advisory opinion issued on 25 February 2019, in the case involving the Chagos Archipelago. I had
the honor of being counsel to Mauritius in that case, and I was present during the reading of theadvisory opinion.
Briefly, the case involved the decolonization of Mauritius. In 1965, prior to the granting of
independence of Mauritius by the British, the British themselves divided the colony of Mauritius,
keeping for themselves a portion of that colony, specifically, the Chagos Archipelago, and creatinga new colony, which they called the British Indian Ocean Territory. They did that for the purposeof leasing the main island, Diego Garcia, to the United States for use as a military base.
*This is an edited transcript of a keynote speech made by the author at the symposium “Territory andMaritime Issues in East Asia and their Origins,” hosted by JIIA, Doshisha University Center for Study ofSouth China Sea, and Faculty of Law Doshisha University on March 2, 2019.

** Paul Reichler, Esq. is Partner at Foley Hoag LLP and Lead Counsel for the Philippines in the South
China Sea Arbitration Case.

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Japan Review Vol.3 No.2 Fall 2019

Paul Reichler

In 1968, Mauritius was granted independence, but without the Chagos Archipelago. As asovereign state, Mauritius never stopped demanding the return of that piece of its territory, which
had been severed from it by the British prior to the granting of independence.
Because the British have reser vations to their acceptance of ICJ jurisdiction, it was notpossible for Mauritius to bring a contentious case against the United Kingdom; however, after
many years of presenting the issue before the General Assembly of the United Nations, in 2017
the General Assembly adopted a resolution by an overwhelming vote to submit the matter to theInternational Court of Justice in the form of a request for an advisory opinion, and specifically, theGeneral Assembly asked the Court to answer two questions.
One, given that the Chagos Archipelago was severed from Mauritius prior to independence
and remained under British rule, was the decolonization of Mauritius ever lawfully completed?
And two, what are the consequences, the legal consequences today, of the continued colonialadministration of the Chagos Archipelago?
The court answered both questions, and because these were advisory proceedings, every
State that is a member of the United Nations had an opportunity to participate if it chose to do so.
Some 30 States did, either through written submissions or at the oral hearings. The vast majority
spoke in support of Mauritiusʼ position.
In response to the first question, the Court determined that the decolonization of Mauritius
was not lawfully completed. This was because it was unlawful in 1965 for the British todismember the colonial territory and to establish a new colony since, as of 1965, internationallaw had already crystallized into a rule, a customary rule, requiring the decolonization of subject
peoples, of non-self-governing peoples, in accordance with the freely exercised self-determinationof those peoples; and the United Kingdom had failed to respect the right of self-determinationof the people of Mauritius when it severed the Chagos Archipelago and excluded it from thedecolonization of Mauritius.
In fact, the United Kingdom not only retained control of that part of Mauritius, but forcibly
removed the native population of these islands, against their will, leaving their possessions
behind, and deposited them in Mauritius and the Seychelles. It was, as the Court found, ahorrendous violation of their human rights.
In response to the second question, in regard to the legal consequence of the United
Kingdomʼs failure to lawfully complete the decolonization of Mauritius, the Court ruled that the
U.K.ʼs ongoing colonial administration of the Chagos Archipelago is an internationally wrongfulact, which is continuing in nature, and that the U.K. is obligated, under international law, toterminate that administration as rapidly as possible.
The Court also ruled that, because self-determination and decolonization are principles so
fundamental to international law that they have erga omnes application, other Member States of
the United Nations must cooperate in bringing about the decolonization of Mauritius, and must
not contribute to or support the continued colonial administration by the British.
Now, this is an advisory opinion, so it is not a legally binding judgment of the Court; however,
it is an authoritative determination of the legal status of the Chagos Archipelago, and theobligations of the United Kingdom under customar y international law, issued by the highest
judicial authority in the international legal system. Hopefully, the British, who have always
professed their commitment to the rule of law, will comply with their legal obligation to complete
the decolonization of the Chagos Archipelago by terminating their colonial administration as
rapidly as possible.
Mauritius, meanwhile, will return to the United Nations General Assembly, now that the Court
answered the General Assemblyʼs questions, for a further resolution implementing the Courtʼsrulings.
I will now turn to my main topic, the “South China Sea Arbitration and Beyond,” and discuss,
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The South China Sea Arbitration and Beyond: China’s Approach to the Law of the Sea and the Rule of Law

in this context, what appears to be Chinaʼs approach to the law of the sea.

2. A Review of China’s Maritime Claims in the South China Sea and the Arbitral
Tribunal’s Award
The award is over 400 pages, so naturally I can only summarize it. I did give a presentation on theaward in some detail at a JIIA symposium in Tokyo two years ago, and my presentation has been
published by JIIA, and is available to any of you who might be interested.1 There were a numberof significant issues in that case. Today, I will focus on the two issues that, in my judgment, standout above the others.
The first of these issues is Chinaʼ s claim to the waters and seabed of the South China
Sea based on its so-called nine-dash line. China claims not only sovereign rights, but actual
sovereignty over all of the waters and seabed within the limits of this nine-dash line. If you haveseen it depicted on a map, you know how exaggerated a claim this is. The South China Sea isshaped like a bucket with the top being the mainland coast of southern China. The nine-dash line
is like the tongue of a cow, which reaches down from the top of the bucket almost entirely to thebottom. It extends more than 600 miles from the Chinese mainland coast, and comes very close
to the Philippines, Malaysia, Brunei, Indonesia and Vietnam, within 35 to 50 miles of their coasts.
Chinaʼs claim, therefore, overlaps and purportedly negates the vast majority of their 200-mile
maritime entitlements under the United Nations Convention on the Law of the Sea (UNCLOS), towhich China and all of the other States are parties.

3. UNCLOS and Historic Rights to Maritime Areas
China makes this extremely exaggerated claim based on its alleged historic rights, and it claims
that its historic rights supersede the legal rights of its neighbors under UNCLOS. The tribunal
decided that this is a completely untenable claim, which has no basis in international law. The
tribunal decided this unanimously. It held that when the States Parties adopted UNCLOS in 1982,
they specifically rejected the idea that any previously claimed historic rights in areas beyond the
12-mile territorial sea would survive the Convention. The new regimes for the exclusive economic
zone and continental shelf out to 200 miles, beyond the 12-mile territorial sea, were adopted withthe express intention of voiding and replacing any previously existing claims, based on historicor economic rights, to areas then considered “high seas.” Thus, China could not lawfully claim
to have historic rights in areas beyond 12 miles from its coasts, although it could claim, like anyother coastal State under UNCLOS, an exclusive economic zone and continental shelf extending
up to 200 miles, but no farther.
The tribunal further found, also unanimously, that even under customary international law,prior to UNCLOS, China could not make a credible claim of historic rights to any part of theSouth China Sea far removed from its coasts. Under customar y international law, a claim ofhistoric rights to an area must be based on continuous administration of the area, under claimof title, over a long period of time, to which other States acquiesce. The tribunal ruled that there
was no evidence to support Chinaʼs historic rights claim. Indeed, up until the end of World War II,
China had never even made a claim to any part of the sea south of the Paracel Islands, let alone
exercised continuous administration over it, or enjoyed the acquiescence of any other State to its
dominion.
Historically, there were long periods, sometimes lasting centuries, when China itself, underthe emperors, forbade Chinese vessels from navigation in the South China Sea, in an effort to1

The lecture made by the author has been published on the website of Japan Information Center, JIIA.
For details see Paul Reichler, “The Rule of Law and the Path to a Just and Lasting Peace in the South
China Sea,” Japan Review Vol.1 No.2, https://www.jiia-jic.jp/en/japanreview/pdf/JapanReview_Vol1_
No2_Winter_2017.pdf

6Japan Review Vol.3 No.2 Fall 2019

Paul Reichler

close China off from the influence of the European colonial powers. So, the idea of any continuous
administration under claim of title over a prolonged period of time, let alone with acquiescence ofneighboring States, just had no evidence whatsoever to support it.
Of course, UNCLOS replaced customary international law in regard to maritime rights in theSouth China Sea. But even under customary law, the arbitral tribunal found, Chinaʼs nine-dashline claim was groundless.

4. Islands and Maritime Entitlements
The other major issue decided by the tribunal, in my judgment, concerned the maritime
entitlements of the islands in the South China Sea, and particularly those of the Spratly Islands.
It was Chinaʼs position that it was sovereign over all of the Spratly Islands, that they constituted
an archipelago, and thus straight lines could be drawn connecting the outermost features, fromwhich maritime entitlements up to 200 miles would extend.
The tribunal unanimously rejected Chinaʼs thesis. First, it decided that it did not need todetermine which State was sovereign over these disputed islands, because maritime entitlements
do not depend on who is sovereign; they depend on the nature of the particular insular feature
under Article 121 of UNCLOS.
The tribunal found that the Spratly Islands are not entitled to archipelagic status, because,
under UNCLOS, which replaced customary international law, archipelagic status is conferred
only on an “archipelagic State,” which is defined in the Convention as a State whose maritime
areas exceed its land territory by a ratio of up to 9:1. In comparing land to maritime area, theentire continental, as well as insular, landmass of the State must be taken into account. It is
impossible to claim archipelagic status solely for a group of outer islands, like the Spratlys,
without including Chinaʼs entire landmass. When that is included, the land territory exceeds themaritime areas, and archipelagic status is unavailable.
The tribunal then considered whether the individual islands were entitled, under UNCLOS,
to 200-mile maritime areas, or whether their entitlements were limited to only a 12-mile territorial
sea. In doing so, it was called upon to interpret Article 121(3) of UNCLOS, which denies any
maritime area beyond 12 miles to any island that constitutes a mere “rock,” which is defined as an
insular feature that is not capable of sustaining human habitation or economic life of its own. The
tribunal carefully analyzed all of the largest islands in the Spratly Group, especially the largest,
Itu Aba, which is claimed by China, the Philippines and Vietnam, and is actually occupied by
Taiwanese government forces. It ruled that neither Itu Aba nor any other Spratly feature naturally
provided the essential elements for sustaining human life, that they were therefore “rocks” under
the Convention, and lacked any maritime entitlements beyond 12 miles.
As a result, the tribunal found, China was limited in its maritime entitlements in the South
China Sea to a 200-mile exclusive economic zone and continental shelf, measured from its
mainland coast, and a 12-mile territorial sea from any island in the Spratlys over which it may besovereign.
When one overlays the picture of Chinaʼs entitlements onto the 200-mile entitlements from thecoasts of the Philippines, Malaysia, Indonesia and Vietnam in particular, one finds that Chinaʼsentitlements do not, in fact, overlap much of the entitlements of the other States; that is, all of
the other States are entitled to enjoy almost the entirety of their 200-mile entitlements under
UNCLOS, free of any lawful Chinese claim.

5. China’s Rejection of the Award
China, as we know, has formally rejected the findings of the tribunal, and its award. It decided
not to participate in the proceedings, and it tried mightily to discredit them. It has denounced thearbitrators individually, and it has gone to great lengths to publish and promote criticism of their
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Japan Review Vol.3 No.2 Fall 2019

The South China Sea Arbitration and Beyond: China’s Approach to the Law of the Sea and the Rule of Law

award. But, significantly, while it has denounced the award, it has not withdrawn from UNCLOS.
Indeed, it has tried to defend its claims by arguing that they are consistent with UNCLOS, andthat the tribunal made an erroneous interpretation of the Convention.
I think this is very significant, for reasons that I will come to. But, first, let us look at what
China is now arguing. On historic rights, they argue that the Convention does not replace historicrights that existed under customary international law within the regime of the exclusive economic
zone and continental shelf, but that historic rights and the new regimes exist side by side. China
may be the only State in the world that advances this interpretation of the Convention, which thearbitral tribunal flatly rejected. But I think it is significant that China continues to argue that its
claims fall within UNCLOS, thus reinforcing its adherence to the Convention.
On islands, too, China continues to argue that its claims are consistent with UNCLOS:
specifically, that the Spratlys constitute an outlying archipelago of China, and their archipelagic
status is well-founded under customary international law. Again, the five arbitrators all rejected
this claim, as would most, if not all, experts on UNCLOS. But it is not insignificant that China
is attempting to defend its claims not by rejecting UNCLOS but by insisting that they are
permissible under the Convention. I will offer my thoughts on why China takes this approach in
the final section of my presentation.

6. Developments between China and the Philippines in the South China Sea
Since the Arbitral Award
Let me now review what has happened between China and the Philippines since the issuance of
the arbitral award in July of 2016.
First, as you know, there was a change in government of the Philippines just prior to theissuance of the award, and they adopted a different policy toward China. They made a decisionthat they would not, indeed they could not, abandon the award or the benefits that theyobtained under it. But they decided not to insist on compliance directly to the Chinese. Instead,they adopted a policy of friendliness toward China, and they have reaped significant Chinese
investment and increased trade in return.
Second, the Chinese have allowed Philippine fishermen to return to fish at ScarboroughShoal, which China had blocked since 2012. This was one of the reasons the Philippines brought
its case against China. The arbitral tribunal ruled that Chinaʼs prevention of Philippine fishingactivity at Scarborough Shoal was a violation of the fishermenʼs historic fishing rights, and thatthey should be allowed to return to fish there. In this sense, China is now complying with one ofits obligations under the award.
Third, China has engaged with the Philippines about joint development of the resources
at Reed Bank, a maritime area that lies between the Spratly Islands that China claims and thePhilippine coast at Palawan. The seabed in that area is believed likely to hold huge petroleum
deposits. Prior to and during the arbitration, China threatened and used force to keep thePhilippines from exploring in this area, which is 100 miles off the Philippine coast and plainly
within the Philippine continental shelf and exclusive economic zone. As a result of Chinaʼs recent
approach, the two States are in discussion about joint development. Although no agreement has
yet been reached, it may well be that the Philippines gets to enjoy the resources of its continental
shelf in collaboration with China.

7. Attitudes and Actions of Other South China Sea Coastal States
The attitudes and actions of other South China Sea coastal States after the issuance of the award
are also significant.
Of course, the award is binding only between China and the Philippines; however, some of
the tribunalʼs findings―including the invalidity of Chinaʼs nine-dash line and its incompatibility
8Japan Review Vol.3 No.2 Fall 2019

Paul Reichlerwith UNCLOS, and the ruling that none of the Spratly Islands generates an entitlement beyond
its 12-mile territorial sea―are as beneficial to Vietnam, Malaysia and Indonesia as they are to thePhilippines.
Despite its rejection of the award, China has been careful to avoid confrontations with theother South China Sea States. It does not appear to have engaged in any further drilling or
exploration for oil within 200 miles of their coasts; nor has it attempted to prevent fishermen fromthose States from fishing within these limits.
Moreover, China has not undertaken any action to challenge their hold on the islands in the
Spratly group that they already occupy. To be sure, China has consolidated its hold on the islandsin this group that it already occupied prior to the arbitration. It has ominously built militar yfacilities on them, which some States regard as a threat to peace and security, but it has not
attempted to dispossess Vietnam, Malaysia, or the Philippines of any of the islands that they hold.
So, it seems that China has been a bit more cautious, and not especially aggressive, vis-à-vis theother States in the wake of the arbitral award.
The other States have been cautious, as well. Vietnam, Malaysia and Indonesia, in particular,
have interests similar to those of the Philippines, and they have made very clear their refusal toaccept the nine-dash line and Chinaʼs exaggerated claims. Similarly, they reject Chinaʼs claimsof exaggerated entitlements from small islands. But they have not been particularly effective inchallenging China, because they have acted individually rather than collectively. The decision of
the Philippines, shortly after the issuance of the arbitral award, to deal with China bilaterally―adecision that China encouraged and welcomed―made collective action less feasible. ASEAN has
not been effective in mounting a collective approach, because it acts by consensus and includes
some States that are subservient to Chinaʼs interests. Only an alliance between the Philippines,
Vietnam, Malaysia and Indonesia would have a chance of winning concessions from China.
There is strength in numbers, and an alliance of these States could bring greater pressure on
China to accommodate their lawful and legitimate interests, if they act together. But this will not
happen as long as the Philippines, under President Duterte, remains committed to its go-it-alone
approach vis-à-vis China. This approach is, of course, welcomed by China, which prefers dealing
with each of the South China Sea States on a bilateral basis, which allows China to take greater
advantage of its superior power.

8. UNCLOS and China’s Claims in Regard to Maritime Delimitation with SouthKorea

It is interesting to compare Chinaʼs approach to its neighbors in the South China Sea with its
approach to its neighbors to the East, namely South Korea and Japan, in regard to maritime
issues.
China and South Korea face each other across the Yellow Sea, where the boundary has not
yet been delimited. There have been sporadic attempts to initiate negotiations. Chinaʼs approachhas been that before the parties can agree on a maritime boundary, they should agree on theequitable principles that will govern the delimitation of the boundary.
This contrasts with the approach to delimitation taken by the ICJ, ITLOS and UNCLOS arbitral
tribunals. UNCLOS itself prescribes that boundary delimitation in the exclusive economic zone
and continental shelf should be based on equity, and international tribunals have adopted a clear
methodology for achieving that objective via a three-stage process: first, drawing an equidistanceline or a median line, then assessing whether there are relevant geographic circumstances whichmake the equidistance line inequitable, in which case an adjustment would be made to it, and thentest to make sure the line does not result in a disproportionate division of the disputed maritime
area between the two parties.
But China resists the standard “equidistance” approach to boundary delimitation. Instead, it
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The South China Sea Arbitration and Beyond: China’s Approach to the Law of the Sea and the Rule of Law

has proposed to South Korea that, instead of drawing a median line (and adjusting it as needed),
the boundary in the continental shelf should reflect the fact that the vast majority of the seabed in
the Yellow Sea, the sediments, originate in China and are carried to the Sea by Chinese rivers; onthis basis, China claims that it is entitled to the vast majority of the continental shelf between the
two States.
This is an interesting theory, and it is not bad science. But it is bad law. Boundary delimitationin the continental shelf does not depend on the source of the sediments that comprise it. In fact,
this theory was addressed, and rejected, by ITLOS in the delimitation case between Bangladesh
and Myanmar. Bangladesh argued for a greater share of the continental shelf in the Bay of Bengal
because most of the sediments were deposited by the major river systems―the Ganges andthe Brahmaputra―that traversed Bangladesh. Not a single one of the 23 judges on that tribunal(including two ad hoc judges) agreed that this was a relevant factor in the delimitation of thecontinental shelf. Instead, the tribunal applied the standard three-step process.
The point here is that China does not eschew the law. It attempts to justify its claim on thebasis of a legal theory that it considers consistent with UNCLOS, or with customary internationallaw, but which plainly is not. This is similar to Chinaʼs invocation of the nine-dash line in the South
China Sea, and Chinaʼs argument that it is consistent with UNCLOS and customary internationallaw.

9. UNCLOS and China’s Claims in Regard to Maritime Delimitation with Japan

We can see the same patterns in Chinaʼs approach to maritime delimitation with Japan.
Japan, by virtue of its legislation, claims that the boundary shall be determined by agreement,
but in the absence of agreement it shall be a median or equidistance line. This is consistent
with UNCLOS. Because the distance between that partiesʼ coasts is less than 400 miles, theirrespective 200-mile entitlements to an exclusive economic zone and continental shelf overlap.
In such circumstances, UNCLOS and the case law interpreting it require that the boundar y
be delimited by a median line, with appropriate adjustments to accommodate any relevant
geographical factors that might exist (if any).
China, however, rejects that approach. This is what their Ministry of Foreign Affairs wrote
in 2015: “China claims that the 200-mile exclusive economic zone and Chinaʼs continental shelfin the East China Sea prolongs naturally to the Okinawa Trough.” Now this of course is a very
serious issue for Japan. China rejects equidistance in favor of geological continuity. It claims thatits maritime entitlements extend beyond the median line with Japan, and even beyond 200 miles
from its own coast, all the way to the geological breach in the seabed known as the Okinawa
Trough, which is much closer to Japan than to China.
There are two serious problems with Chinaʼs approach. First, the EEZ is unrelated to theseabed; it consists only of the waters above the seabed, and UNCLOS does not permit it to extend
beyond 200 miles in any circumstances. China appears to be confusing, perhaps deliberately, theEEZ and the continental shelf.
Second, in regard to the continental shelf, China invokes Article 76(1) of UNCLOS, which
entitles each coastal State to a shelf extending up to 200 miles from its coast, or, in some cases,
longer, if there is a natural prolongation. However, even if the Chinese shelf naturally extends
beyond 200 miles, there is a dif ference between “ entitlement ” and “ delimitation. ” China ʼ s“entitlement” might be more extensive than Japanʼs 200 mile “entitlement,” but the extension
completely overlaps with Japanʼs “entitlement.” Where there are overlapping entitlements, adelimitation is required. And, as the ICJ and other international tribunals have consistently ruled,delimitation begins with a median or equidistance line. It does not follow the geological featuresof the seabed.

10Japan Review Vol.3 No.2 Fall 2019

Paul Reichler

10. Obser vations on China’s Commitment to UNCLOS and the Rule of Law
Of course, we are not here to delimit the maritime boundary between China and Japan. Our
purpose is to discern and understand Chinaʼs maritime claims and their purported justifications.
And what we see in the East China Sea is consistent with the pattern obser ved in regard to
Chinaʼs approaches in the South China Sea and the Yellow Sea. Here again, China does noteschew international law in setting out its maritime boundary claims. To the contrary, it attempts
to justify its far-reaching claims on the basis of international law, specifically, UNCLOS andcustomary international law. This allows China to present itself to the outside world as respectfulof the rule of law.
Many experts thought that China would withdraw from the Convention after the July 2016
arbitral award. But it did not. China remains a party to UNCLOS and it continues to profess its
commitment to UNCLOS. It even claims to be complying with the Convention. This is helpful,and it is an important starting point for thinking about solutions to some of these problems, evenif we regard Chinaʼs legal interpretations as self-serving and implausible.

11. UNCLOS and Disputed Islands in the South China Sea, East China Sea andSea of Japan: Is There a Path to Settlement?
Why does China remain a party to UNCLOS and present itself as law-abiding and respectful of
the rule of law? It must be because China considers that its national interest is best served thisway. Why might this be so? Because China, like other States, recognizes the value of “soft” power,that is, the influence that is generated by the reputation the State establishes in the international
community, through its behavior. No one needs an explanation of how “hard” power―including
military and economic might―generates influence. “Soft” power, by contrast, is more subtle andless easy to appreciate or measure. But there is no question that it exists, and that it is important
to States. This is demonstrated in many ways. One is the way States invariably attempt to justify
their actions as lawful. Even obviously aggressive behavior is almost always defended by theperpetrator as consistent with international law. Why do States go to this trouble?
Because they know that being seen as law-abiding enhances their reputation and their“soft” power, that is, their ability to influence the conduct of other States. China, as its behavior
demonstrates, understands this.
The question is: does Chinaʼs interest in being seen as law-abiding create opportunities forpeaceful and equitable settlement of its disputes with neighboring States in the South China Sea,
the Yellow Sea or the East China Sea? And what forms could a dispute settlement process take?
We can probably rule out international arbitration, at least for the foreseeable future. China
rejects it. It wonʼt participate. So the arbitration provisions of UNCLOS would not be helpful toother States that have disputes with China. Although it would still be possible to instigate anarbitration against China, and even to obtain an award, the knowledge that China wonʼt participate
and will inevitably refuse to accept the award diminishes the value of such an approach. So what
can else be done?
The Convention also provides for compulsory conciliation. This is a less confrontational or
adversarial approach, more akin to mediation than litigation. It actually succeeded between TimorLeste and Australia, the only States ever to employ it, and it produced an agreement. Is it possiblethat China would accept conciliation if it were instigated by Vietnam, for example, or Indonesia(or South Korea or Japan)? What makes conciliation potentially attractive is that the result iseither an agreement between the parties, or a recommendation by the conciliators; it does notproduce a binding judgment, or compel any State to accept a solution it finds objectionable.
Even if the current position of China is to reject all forms of third-party dispute settlement, it
might find, eventually, that a mediated settlement negotiation process (which is what conciliation
fundamentally is), might be preferable to a permanent stalemate and a frozen conflict.
11
Japan Review Vol.3 No.2 Fall 2019

The South China Sea Arbitration and Beyond: China’s Approach to the Law of the Sea and the Rule of Law

Another possibility for addressing Chinaʼs “unique” interpretations of UNCLOS, would be toseek an advisory opinion from the ICJ or ITLOS. This would not be a contentious proceeding
and would not require Chinaʼs consent. It is more difficult to seek an opinion from the ICJ, which
requires a resolution of the U.N. General Assembly requesting one. ITLOS merely requires arequest from any international organization whose charter authorizes it to make such a request,
including a newly-formed organization that is created for that purpose. ITLOS also has theadvantage of including a Chinese judge (as well as judges from Japan, South Korea and Thailand).
Opinions might be sought on the following questions: Did historic rights claims to areas beyond
12 miles sur vive the Convention and the regime of the EEZ and the continental shelf? Whatelements are required to support a claim of historic rights under customary international law?
May a continental state that claims a few offshore islands consider itself an archipelagic state
under UNCLOS? Does the origin of sediments that comprise the continental shelf constitutea relevant factor in the delimitation of the boundary in the shelf? Does natural prolongation of
a Stateʼs shelf take precedence over a median line in delimitation of the boundary in the shelf?
These are questions quite suitable for an advisor y opinion, and the opinion(s) given, which
would be likely to undercut Chinaʼs legal arguments, might help achieve progress in negotiating
settlements of the various disputes.
In the end, these disputes can, and will, only be resolved by agreements between or among
China and the various other protagonists. This will take time, and it will not be easy. It will takepersistence on the part of Chinaʼs neighbors, and most likely their cooperation and coordination
with one another. And it will also require a change in Chinaʼs attitude, and a conclusion on Chinaʼspart that its national interest can be better served by reaching equitable accommodations with its
neighbors, in ways that respect their rights under UNCLOS as well as Chinaʼs, and demonstrate
the commitment of all to the rule of law, than by permanent stalemate and interminable conflict,with the attendant risk of escalation and descent into violence.

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Japan Review Vol.3 No.2 Fall 2019

Takashi Okamoto

China’s “Territorial Sovereignty” and Its Origins*
Takashi Okamoto**

Abstract
The roots of the Chinese concept of “territorial sovereignty” can be traced back to theconcepts for tributaries or dependencies: shudi and fanbu. Moreover, these concepts canalso be replaced by the word fanshu. Since the word fanshu was also used for lost shuguo,
such as Korea, Vietnam, and Ryukyu, the fear of losing territory came to be embedded in
the Chinese psyche from early on. Territory is a concept that implies sovereignty. This is
in line with conventional theory. However, the notion that territorial sovereignty is always
at risk of being lost, must always be protected, and must never be yielded comes across as
a very Chinese way of thinking. The historical process by which territory was lost can besaid to have been imprinted in the Chinese understanding of the legal concept of “territorial
sovereignty.” Since this is the starting point of some of the demands and claims of modern
China, we might suspect that the roots of certain ongoing disputes can also be traced to thishistorical background.

P

aul Reichler, the lead counsel for the Philippines in its arbitration case with Beijing overclaims in the South China Sea, has said it should be possible to have a dialogue with
China using a common language and the language of law. Put differently, this means that
we are currently not speaking the same language and that we are not having a dialogue
with China. While what China says and what the West and Japan say might appear to be the sameon the surface, their messages have entirely different content.
My mission as a historian specializing in China is to look to the past and analyze why andwhere this situation came about. I will focus on the notion of “territorial sovereignty” as a typicalexample of terms and concepts that have different meanings, depending on the user. The term
“territorial sovereignty” gained currency in China no more than about a century ago. The concept
did not exist prior to that, and it may not have been required by the order of things. I would liketo start by discussing this background.

1. The Qing’s World Order and the Fanshu Concept

What was Chinaʼs world order prior to the 20th century? I have tried to give an explanation by
way of an illustration. There is no limit to how much detail I can get into about the Qingʼs worldorder, so I will break it down into four broad categories.

*

This article is based on a presentation made by the author at the symposium “Territory and Maritime
Issues in East Asia and their Origins” held by JIIA, Doshisha University Center for Study of South China
Sea and Faculty of Law Doshisha University on March 2, 2019.

** Takashi Okamoto is Professor at Kyoto Prefectural University.

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Japan Review Vol.3 No.2 Fall 2019

What was China’s world order prior to the 20th century? I have tried to give an
by wayandof ItsanOrigins
illustration. There is no limit to how much detail I can get into
China’sexplanation“Territorial Sovereignty”
about the Qing’s world order, so I will break it down into four broad categories.

hushi (互市): linked by trade
E.g.: Western powers, Japanshuguo (屬國): tributaries
E.g.：Korea, Ryukyu, Vietnam

fanbu (藩部)
E.g.：Tibet, Mongolia, Xinjiangzhi- sheng (直省): provinces
China proper

Fig. 1 Four Categories in the Qing’s World Order
Fig. 1 Four Categories in the Qing’s World OrderFirst, we have countries linked by trade relations, or hushi, represented by the green
early 19C
late 19C – 20C
arrows in Fig. 1. The areas marked with solid lines were tributaries, meaning countries
Korea
Korea
taking part in tributary
relations,and were referred to as shuguo in the Chinese
RyukyuRyukyuterminology of thattime. These were countries such as Korea, Ryukyu, and Vietnam.
Holland
Then there wereVietnam
the fanbu, areasVietnam
in the northwest indicated with broken lines. The
TributarySiam
Siamshuguo ( 屬國 )was so-called“Loss”fanbu were
Tibet,
Mongolia, and present-day Xinjiang. Finally, there
Chinachaogong( 朝貢)
Portugal
proper, in the southeast of the map, which was where the Han Chinese lived. The term
Sulu
Sulu
for this area wasBurmazhi-sheng.
Burma
The Qing’s relationships
can beLaos
classified in four categories based on original sources
Laos

Xinjiang
Xinjiangfrom that time, andbe summarizedin Table 1. And Fig. 1. is the map on which the
Territory
shudi ( 屬地 )
Tibet
Tibet
relationships
lingtu ( 領土 )fanbu
( 藩部 ) have been diagrammed.
Mongolia
Mongolia
Western countries and Japan had hushi relationships with the Qing. This means that
RussiaRussiathere were no formal relationsPortugal
between governments, just local trade. These
relationships generally
treaty-based ties, beginning in the second half ofFrance changed into
FranceTreatyDiplomacy
Great
Great
theTradenineteenth century.
These countries
entered into Relations
diplomatic relationships
withhushi ( 互市 )Britain
Britain
China at a relatively early stage.
Holland
Japan
Japan
2
1

Table 1 Transformation of the Qing’s World Order Except China Proper

1

Table prepared by the author based on Okamoto Takashi, Chugoku no tanjo [The Birth of China](University of Nagoya Press, 2017), p. 413, Table 5.

14
Japan Review Vol.3 No.2 Fall 2019

Takashi Okamoto

First, we have countries linked by trade relations, or hushi, represented by the green arrows
in Fig. 1. The areas marked with light blue lines were tributaries, meaning countries taking partin tributary relations, and were referred to as shuguo in the Chinese terminology of that time.
These were countries such as Korea, Ryukyu, and Vietnam. Then there were the fanbu, areasin the northwest indicated with blue lines. The fanbu were Tibet, Mongolia, and present-day
Xinjiang. Finally, there was so-called China proper, in the southeast of the map, which was where
the Han Chinese lived. The term for this area was zhi-sheng.
The Qingʼs relationships can be classified in four categories based on original sources fromthat time, and be summarized in Table 1. And Fig. 1 is the map on which the relationships havebeen diagrammed.
Western countries and Japan had hushi relationships with the Qing. This means that there
were no formal relations between governments, just local trade. These relationships generally
changed into treaty-based ties, beginning in the second half of the nineteenth century. These
countries entered into diplomatic relationships with China at a relatively early stage.
What can we say about the other categories of shuguo and fanbu, which are marked in blue on
the map? This question has to do with the concept of “territorial sovereignty.”
First, we have the expression shuguo. Shuguo refers to countries surrounding China that gave
tribute to the Qing. We talk about shuguo (tributary) and shangguo (superior country) because
when countries offer tribute to the Chinese emperor, this creates a hierarchical relationship ofsovereign and subject. Since tribute and the sovereign-subject hierarchy were based on Confucianconcepts and rituals, such relations were formed with neighbors that understood the Chinese
language and Confucianism.
Conversely, other countries could not enter into shuguo or tributar y relations. While acountry such as Japan ended up in the hushi category rather than shuguo because of historicalcircumstances, it would not be an exaggeration to say that ultimately this was because Japan did
not understand Chinese and Confucianism.
Likewise, fanbu was another categor y where Chinese and Confucianism did not apply.
Fanbu specifically referred to Mongolia, Tibet, and Xinjiang. They were similar in that theygeographically belonged to an inland world of steppes, did not use Chinese as their language, anddid not follow Confucianism. Xinjiang was Muslim and Turkic, while Mongolia and Tibet adheredto Tibetan Buddhism. They differed quite markedly from the countries in the other categories interms of social organization, manners, and customs.
This is why I differentiate between shuguo and fanbu here. Yet, looking at Chinese sourcesfrom the time, the two are often jointly referred to as fanshu, which is a relatively uncommon
Chinese word.

2. From Fanbu to Shudi

Map 1 on Fig. 2 shows the situation on the Korean peninsula following the First Sino-Japanese
War. After this conflict, as was stipulated in the first article of the Treaty of Shimonoseki, Korea
became “independent” as the Great Korean Empire. That is, Korea ceased to be a Chinese shuguo.
Many sources at that time described Koreaʼs “independence” as the termination of Koreaʼs status
as a Chinese shuguo and fanshu.

15Japan Review Vol.3 No.2 Fall 2019

Japanese War. After this conflict, as was stipulated in the first article of the Treaty of
Shimonoseki, Korea became “independent” as the Great Korean Empire. That is, Korea
ceased to be a Chinese shuguo. Many sources at that time described Korea’s
China’s “Territorial Sovereignty” and Its Origins“independence” as the termination of Korea’s status as a Chinese shuguo and fanshu.

Map 1
Da Qing niansan sheng yudi
quantu [Complete map of the 23
provinces of the Great Qing ]

Map 2

Map 3

2
Fig. Fig.
2 “Loss”(Dependencies)
Riseof “Sovereignty”
2
Shuguo (Dependencies)
and and
Rise of“Sovereignty”
2 “Loss”ofofShuguo

Meanwhile, sources of the time commonly treated shuguo and fanbu as being more or lessshuguoand fanbu
as being
sources ofterms.
the timecommonly
treatedequalMeanwhile,and interchangeable
Even
though the
Koreanpeninsulaand Tibet
weremoregoverned
completely differently, they were frequently referred to using the same terms and Chinese words.
2 (MapRetrieved
from the Libraryof Congress;(Map2) Adapted
from
Not
only 1)was
Korea sometimes
called fanshu
like Tibet
and
Mongolia,
but “Guafen”
Tibet andmap
Mongolia
inOkamotoTakashi,
Zoho:
Chugoku“Han-Nichi”
noGenryu[Enlargededition:The
were also called shuguo by some sources.
originsof anti-Japanese
in allChina] (Chikuma
Gakugei2019),
247;end of theVietnam,
Ryukyu, andsentiment
Korea hadceasedbeing shuguo
of Bunko,
the Qingby theXinmincongbao[
Renewing
thepeople],no.
1(1902):
cover.
(Map
3)
nineteenth centur y. It goes without saying that this was because they were annexed by theWestern powers and Japan. This is why the word
4 “loss” has been used in Table 1. The loss of the
shuguo became a major issue.
In 1897, Korea became the last shuguo to lose its ties with the Qing. At around the sametime, the Western powers began to obtain rights in China in a process called “the scramble forconcessions,” which lasted until the end of the nineteenth century. The Chinese at the time called
this process guafen, meaning a melon being taken apart and eaten, which is illustrated in Fig. 2–
Map 2. Qing and Chinese officials of this time and beyond became extremely worried about thepotential partitioning of China.
The Qing became obsessed with the idea that while the shuguo were lost, they had to retain
the remaining fanbu or they would have a real crisis on their hands.
Even before this, from the 1880s into the 1890s, Tibet, Mongolia, and Xinjiang―which had
been referred to as fanbu―increasingly came to be referred to as “colonies,” especially by lateQing era Chinese diplomats stationed in the West, as well as by Han Chinese who had absorbed
Western scholarship and concepts.
This identification of fanbu as colonies seems to have started with the translation of Westernterms, such as “colony” and “colonial office,” into Chinese. The opposite, of Chinese terms being
used for Western concepts, also started to happen, so fanbu finally came to be seen as dependent
as colonies, regardless of the actual facts. These dependencies or colonies came to be called shudi
in contemporary Chinese.
Yet looking at the word shudi, the Chinese characters representing this word are similar tothe previously mentioned shuguo. The characters and meaning also have things in common with2

(Map 1) Retrieved from the Library of Congress; (Map 2) Adapted from “Guafen” map in Okamoto
Takashi, Zoho: Chugoku “Han-Nichi” no Genryu [Enlarged edition: The origins of anti-Japanesesentiment in China] (Chikuma Gakugei Bunko, 2019), p. 247; (Map 3) Xinmin congbao [Renewing thepeople], no. 1 (1902): cover.

16
Japan Review Vol.3 No.2 Fall 2019

Takashi Okamoto

fanshu, so when seen from the perspective of other countries, such as the Western powers andJapan, it appeared as if the shudi were no different from shuguo, and that the areas remained
the same as before. In fact, the English translation for all of these words were the same:“dependencies.”

3. “Territorial Sovereignty”

During the final years of the nineteenth century and into the twentieth century, China ʼs senseof crisis with regard to the countryʼs partitioning by the Western powers reached its climax.
Especially in the early twentieth century, the areas that were fanbu were caught between Russia
in the north and British India in the south. The fanbu became a site of competition among theimperialist powers in the so-called Great Game. The Chinese devoted greater efforts to keepthese areas inside China and prevent the fanbu from being taken by other countries.
We should pay special attention to 1905. Even before that year, calls for China to become ahomogenous nation-state and to be unified, as if all of the Qingʼs territory was homogeneousand painted in one color, as shown in Map 3, had become extremely frequent among the Han
Chinese. We might perhaps call this the start of nationalism. This was the result of going throughthe process depicted in Maps 1 to 3 of Fig. 2, during the decade after the Treaty of Shimonoseki
in 1895.
At a time when such nationalism was growing, how could Tibet, Mongolia, and Xinjiang,
called shudi or fanbu, be defined? It was then that the concept of “sovereignty” first appeared in
Chinese political discourse. Other countries had previously used the term “suzerainty” in place of“sovereignty.”
Suzerainty is an unclear and ambiguous concept, but it was likely its ambiguity that gave it
its versatility. All of the Qingʼs shudi, shuguo, and fanbu were given the same English designationof “dependency.” The meaning was simply that these areas were dependent, regardless of theactual facts, and this dependency was coupled with the concept of suzerainty. It must have been aconvenient term for indicating a hierarchical relationship without having to consider the facts ofthe matter.
Yet at this late hour, leaving Tibet and Mongolia as they were risked having them suffer thesame fate as the shuguo―Ryukyu, Vietnam, Burma, and Korea―which had also been perceived
as dependencies. Han Chinese elites and officials came to fear not only the separation of theseareas from China and their loss, but also that this might trigger the guafen of China proper.
Suzerainty became insufficient as a safeguard, so the Chinese started invoking the concept ofsovereignty instead.
If so, fanbu, fanshu, and shudi also became unusable terms since they were coupled withthe concept of suzerainty. The Chinese needed a new lexical concept that could be paired withsovereignty and could replace shudi, but what could it be?
The answer was lingtu, the Chinese translation of “territory.” The word “territory” in Chinese
was likely a legal concept that was formulated based on the Japanese ryochi, but the concept
started to be used in China as well. The emergence of the concept of sovereignty neatly coincidedwith the rise of nationalism in China.
The concept of territory became widely known and established in 1911–1912, that is, during
the 1911 Revolution, when the Qing Dynasty gave way to the Republic of China. The Provisional
Constitution of the Republic of China states, “The territory of the Republic of China shall consistof twenty-two xing-sheng [provinces], Inner Mongolia, Outer Mongolia, Tibet, and Qinghai,”
explicitly using the word “territory” and defining its extent. As part of this political transition, theconcepts of “territory” and “sovereignty” in China came to be established with meanings similar
to their modern-day usages.

17Japan Review Vol.3 No.2 Fall 2019

Republic of China shall consist of twenty-two xing-sheng [provinces], Inner Mongolia,
Outer Mongolia, Tibet, and Qinghai,” explicitly using the word “territory” and defining
its extent. As part of this political transition, the concepts of “territory” and “sovereignty”

China’s “Territorial Sovereignty” and Its Origins

in China came to be established with meanings similar to their modern-day usages.

more dependence

Sovereignty

Shudi
Fanbu
th

18 C.

lingtu(territory)(colony)

Fan

th

Shu

20 C.

Shuguo (vassal）
Fanshu（dependency）
less dependence

loss
Suzerainty

3
3
Fig. Fig.
3 Concepty”:fromfrom
Fanshu/Shudi
to Lingtu
Fanshu/Shudi
to Lingtu
3 Conceptofof“Territor“Territory”:

Conclusion: The Origins and Development of “Territorial Sovereignty”

Conclusion: The Origins and Development of “Territorial Sovereignty”
The roots of the Chinese concept of “territorial sovereignty” can be traced back to the concepts
The rootsor
ofdependencies:
the Chinese conceptof “territorial
sovereignty”
be tracedto thefor tributaries
shudi andfanbu. Moreover,these canconcepts
can back
also bereplacedbyconcepts
the wordfor
fanshu.
Since theword fanshu wasalsoandused
for lost
shuguo, such
Korea, Vietnam,
tributaries
or dependencies:
shudi
fanbu
. Moreover,theseasconcepts
canand Ryukyu, the fear of losing territory came to be embedded in the Chinese psyche from early
also be replaced by the word fanshu. Since the word fanshu was also used for lost shuguo,
on.
such
as Korea,
and implies
Ryukyu,sovereignty.
the fear of losing
territory
to be embedded
Territory is a Vietnam,
concept that
This isin line camewith conventional
theor y.
However,the notion
thatfrom
territorial
sovereignty is always at risk of being lost, must always bein the Chinese
psycheearly on.
protected,
and
must
never
be
yieldedcomes
across asa verywayof thinking.theory.
Territory is a concept that implies
sovereignty.
This
is inChineseline withconventional
The concept of “territory” in Chinese language started out as a designation specifically for
However, the notion that territorial sovereignty is always at risk of being lost, must
Tibet and Mongolia, but it then became a concept applicable to other places because they werealways fanbu
be protected,
and must never be yielded comes across as a very Chinese way oforiginallyand fanshu.
thinking.
The concept of “territory” in Chinese language started out as a designation specificallyfor Tibet and Mongolia, but it then became a concept applicable to other places because
they were originally fanbu and fanshu.

3Chart prepared by the author based on Okamoto, Chugoku no tanjo, 424, Figure 7.
73Chart prepared by the author based on Okamoto, Chugoku no tanjo, p. 424, Figure 7.

18
Japan Review Vol.3 No.2 Fall 2019

Takashi OkamotoFig. 4 Chinese Nation in the Republican Era4
Fig. 4 is a map used in China during the Republican period. Chinaʼs territory at the time isindicated in orange. There were nonetheless some maps in circulation that showed, inside adotted line, lost territory that had to be recovered.
The historical process by which territory was lost can be said to have been imprinted in the
Chinese understanding of the legal concept of “territorial sovereignty.” Since this is the starting
point of some of the demands and claims of modern China, we might suspect that the roots ofcertain ongoing disputes can also be traced to this historical background.

4

Prepared by the author based on “Zhonghua guochi tu” [Map of Chinese national humiliation], Zuixin
Zhongguo ditu [Most recent maps of China] (Dongfang yudi xueshe, 1938).

19
Japan Review Vol.3 No.2 Fall 2019

Debates Concerning the Incorporation of Peripheral Islands into the Territory of Japan

Debates Concerning the Incorporation of Peripheral Islands
into the Territory of Japan*
Takai Susumu**
Abstract
Japan introduced international law when Japan ended the seclusion policy of the Edo
period and started to interact with Western countries. Japan took measures to possessand establish title to peripheral islands on the basis of international law. The process bywhich peripheral islands in the Pacific, the Sea of Japan, the East China Sea, and the Sea of
Okhotsk were incorporated into Japanese territory will be examined, and the objections ofneighboring countries to some of these acquisitions will be discussed.

IntroductionDelimitation of the scope of a state ʼ s territor y, as well as the acquisition and lossof territories are fundamentally made on the basis of international law. Since thecountr y ʼ s opening to the global community in the mid-19th centur y, Japan has
respected the principles of international law. Measures to incorporate islands near
Japan into the countryʼs territory were progressively implemented, based on the law of nations.
However, disagreements over Japanʼs sovereignty over Takeshima, the Senkaku Islands, and theNorthern Territories have been voiced by neighboring countries since the signing of the San
Francisco Peace Treaty after World War II.
There are four types of territorial acquisition, according to the traditional precepts ofinternational law. The first two are accretion and occupation, where territories are seized bya unilateral act of a state. In accretion, a state unilaterally acts to acquire territor y by taking
advantage of natural phenomena. A well-known example of accretion is New Nishinoshima Island,
which is an island that became Japanese by appearing next to Old Nishinoshima Island in the
countryʼs territorial waters, through the natural phenomenon of an underwater volcanic eruption.
In the case of islands on the high seas created by underwater eruptions, the new island becomes
an unoccupied territory that belongs to no state, and can be possessed by the first state to lay
claim to it.
The other type of acquisition involving unilateral acts of a state is known as occupation.
Strictly speaking, there is a separate type of occupation known as prescription, but I will only
explain occupation as it relates to Japanese island territories. Occupation is a unilateral act of astate whereby land categorized as terra nullius―meaning “nobodyʼs land”―is incorporated into
the stateʼs territory. To be recognized under international law, the occupation must be of land thatis recognized as belonging to nobody. It does not matter if the land is already inhabited. Simply
discovering the territory is not recognized as an act of occupation, and effective control must be
This article is based on a presentation made by the author at the symposium “Territory and Maritime
Issues in East Asia and their Origins” held by JIIA, Doshisha University Center for Study of South China
Sea and Faculty of Law Doshisha University on March 2, 2019.
** Takai Susumu is a Special Research Fellow at the Sasakawa Peace Foundation.

*

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Takai Susumu

exercised over the territory so as to make clear the stateʼs intention to take possession of it.
There are also two types of territorial acquisition that are based on a mutual agreement
between states: incorporation and cession. Incorporation signifies the transfer of a territory in its
entirety to a foreign state on the basis of a mutually agreed treaty. A famous example is the JapanKorea Treaty of 1910, by which the state on the Korean peninsula was recognized as Japanese
territory through a treaty that was agreed upon by the Korean and Japanese governments.
Cession is an act of territorial acquisition recognized in international law whereby part of aterritory is transferred to another state, again by a mutual pact. This can be further divided into
peacetime and wartime cession. Peacetime cession refers to the expansion of a state throughthe purchase or exchange of territory. In Japanʼs case, we have the 1875 Treaty of St. Petersburg
by which Japan exchanged Karafuto (Sakhalin) Island for the Russian territory of the ChishimaIslands (Kuril Islands).
Wartime cession refers to a mutual agreement on the transfer of territory in a peace treaty
that ends a war. To legally terminate hostilities, a peace treaty that incorporates stipulations on
territory must be signed. An example of this is the 1895 Treaty of Shimonoseki. As a result of theFirst Sino-Japanese War, the Qing territory of Taiwan was ceded to Japan and made a Japanese
territory. The 1905 Treaty of Portsmouth was signed after the Russo-Japanese War, by whichsouthern Sakhalin Island was transferred to Japan from Russia as a wartime cession of land thatwas valid according to international law.
The map shows the scope of Japanʼs territories. As Japan is surrounded by sea, the extent of
its territory on land is small. However, its exclusive economic zones (EEZ) is the 11th biggest in

Scope of the Peripheral Islands Territory of Japan(source: Ministr y of Foreign Affairs of Japan, https://www.mofa.go.jp/
territory/index.html)
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Debates Concerning the Incorporation of Peripheral Islands into the Territory of Japanthe world. The existence of the Ogasawara Islands is why international law recognizes a vast EEZ
for Japan. The EEZ is likely to become an economically promising area because of the wealth ofunderwater resources that have been discovered in the zone.

1. Acquisition of Island Territories in the Pacific by Occupation
The Ogasawara Islands
The Ogasawara Islands are island territor y under the jurisdiction of Tokyo Metropolisthat includes the Ogasawara Islands, the Volcano Islands, Okinotorishima Island, andMinamitorishima Island. According to the official website of Ogasawara Village, the Ogasawara
Islands were so named because Ogasawara Sadayori landed on one of its islands and put up awooden marker in 1593. He then reported what he had done to the Tokugawa Shogunate. The
islands remained unoccupied and uninhabited for some time after this, but a great number ofships started coming here in the 1800s. Two Americans, a British person, an Italian, and a Danesettled here with some Kanakas from Hawaii in 1830. Commodore Matthew Perry of the U.S.
Navy also landed here in 1853. It appears that many ships in distress drifted here around 1830, sothat the islands became inhabited by people of different nationalities.
From the 1860s, Japanese people started colonizing and settling the islands in earnest, using
the Ogasawara Islands as a waystation to the South Sea Islands. The Edo shogunate sent aninspection team to set up a provisional government office in 1862, and accepted immigrants
from Hachijojima Island. Difficulties in the colonization process led all of the Japanese to be
evacuated the following year. In 1876, the Japanese government enacted regulations that were to
be enforced on the Ogasawara Islands, set up a government office on the islands, and notified theambassadors of foreign countries in Tokyo that the Ogasawaras would be placed under Japanesejurisdiction.
Germany, France, the Netherlands, and Spain replied that they would abide by Japanʼ sdecision. The U.S. and Britain objected on grounds that their citizens had extraterritorial rights.
Following exchanges of letters between the Japanese government and the two countries, they
acknowledged the Japanese measures. The Ogasawara Islands became Japanese territor ythrough occupation, on the basis of other countriesʼ explicit or implicit acknowledgement ofJapanʼs announcement that it was taking possession of the islands.

The Volcano Islands (Iwojima Island)
The Volcano Islands, also known as Iwojima Island, were known to Europeans since the 17th
century and were left as an unoccupied territory possessed by no country. In 1889, Tanaka Eijiro
and more than a dozen other settlers landed on the islands to fish and carry out sulfur mining.
The cultivation of crops such as sugar cane, coca, and lemons later became the islandsʼ mainindustry. In 1891, the Tokyo prefectural government requested the national government to makeexplicit its jurisdiction over the Volcano Islands to manage the Japanese who were there.
The central government named by imperial decree the three islands belonging to the Volcano
Island chain Kitaiwo Island, Iwo Island, and Minamiiwo Island. The islands were placed under thejurisdiction of the Ogasawara Island government of Tokyo Prefecture by a decision of the cabinetthat was made public. There were no objections to the Japanese governmentʼs decision fromother countries, so Japan acquired the three islands through occupation.
The number of permanent residents of the Volcano Islands subsequently rose to about 1,000.
The outbreak of World War II led to the evacuation of the residents to mainland Japan in 1944.
There exists a Japanese Maritime Self-Defense Force base on Iwojima Island, but none of theformer residents have returned.

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Okinotorishima Island
Twenty to thirty years ago, Okinotorishima Island used to be a much larger rock than it is today,
but it has shrunk to become a small rock due to seawater erosion. Okinotorishima Island as
identified as an islet called Parece Vela on sea charts from the 17th century, but was left as an
uninhabited island in no countryʼs possession. The Japanese government deemed OkinotorishimaIsland an unoccupied territory in July 1931 and placed it under the jurisdiction of Ogasawara
Subprefecture by a notice from the Ministry of Home Affairs. There were no objections to theJapanese government ʼs act from other countries, so Japan acquired Okinotorishima Island
through occupation.
Seawater erosion caused Kitakojima Island and Higashikojima Island to become
Okinotorishima Islandʼs only reefs that were sticking out of the water at high tide. To preventthe submerging of the reefs, the government conducted conservation work on two occasions
between 1987 and 1993.

Minamitorishima Island

Minamitorishima Island is located far from the Japanese archipelago and is Japanʼs easternmost
island territory. In the 1860s, not only exploration ships but also whalers appeared in the waters
around Minamitorishima Island, and a great number of ships recorded the existence of theuninhabited island that came to be called Minamitorishima Island.
Mizutani Shinroku, who drifted to Minamitorishima Island during a storm in 1896, saw
that it was rich in resources, and so led 23 people from the Ogasawara Islands to settle on
Minamitorishima Island and carry out business activities. As Mizutani made a request to lease
the island from the Japanese government in 1898, the government decided to take possessionof Minamitorishima Island and incorporated the island into Japanese territory by a notice from
Tokyo Prefecture in July 1898. Japan took possession of Minamitorishima Island by occupation.
In 1902, Mizutani founded Mizutani Village, where about 60 Japanese settled and conductedactivities such as collecting guano, carr ying out taxidermy, and canning food. The island
currently has no civilian residents. When Commodore Perr y of the U.S. Navy came to the
Ogasawara Islands, he recommended to his government that the U.S. should take possession of
Minamitorishima Island. Since the U.S. government had no interest in Minamitorishima Island, it
did not challenge Japanʼs territorial rights.

2. Acquisition of Island Territories in the Sea of Japan and the East China Sea
Takeshima
Takeshima in the Sea of Japan consists of the two islets Ojima Island and Mejima Island.
Takeshima has been well known to Japanese people since the Edo period, when it was called
Matsushima Island. West of Matsushima Island is Ulleungdo, which was then called Takeshima,and many records show that the Murakawa family and the Otani family of Tottori Domain made afortune by developing the island after obtaining permits to travel there from the Edo shogunate.
Matsushima Island was used as a place to disembark and rest on route to Ulleungdo.
The Korean government subsequently asked, via its Communication Envoys, the Edo
shogunate to prohibit travel to Ulleungdo so that no Japanese could go there and develop theisland. The shogunate was also informed of Koreaʼs empty-island policy that kept Koreans fromsettling on Ulleungdo. The shogunate had adopted a seclusion policy, so it accepted the Koreanrequest and prohibited Japanese from traveling to Ulleungdo. However, Matsushima Island was
not subject to this travel ban.
A British ship “discovered” a non-existent island to the west of Ulleungdo in the latter halfof the 18th century using unsophisticated surveying technology. The phantom island ended up
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Debates Concerning the Incorporation of Peripheral Islands into the Territory of Japan

being marked on sea charts, leading to Western maps including three islands in the area: the nonexistent island, Ulleungdo, and Matsushima Island. When Western maps were imported to Japanin the latter half of the 19th century, the non-existent island came to be called by the name ofTakeshima and Ulleungdo started to be called by the name of Matsushima Island, which caused
confusion.
In response to a request to lease Matsushima Island from Nakai Yozaburo in 1905, theJapanese cabinet decided in January 1905 that the Matsushima Island of the Edo period should
be renamed Takeshima because Ulleungdo was called Matsushima Island by Japanese people atthat time. The cabinet also decided that Takeshima should be listed in the register of state-owned
land and placed under the jurisdiction of Shimane Prefecture. Nakai Yozaburo leased Takeshimafrom the government for 30 years and conducted activities such as gathering abalone and hunting
sea otters.
With the outbreak of World War II, people stopped fishing around Takeshima. After the end of
the war, in 1952, the South Korean president unilaterally proclaimed a maritime zone over which
South Korea exercised sovereignty, arguing that Takeshima, or Dokdo in Korean name, was
Korean territory.
The Japanese government protested the Korean moves. South Korea ignored the protest
and illegally occupied Takeshima by force in 1954, and the island remains under South Korean
occupation.

The Senkaku Islands
The Senkaku Islands in the East China Sea are a group of islands. Around 1885, the Japanese
government ordered the navy to begin surveying the Senkaku Islands, and civilian exploration
teams also landed on the Senkakus. When a man named Koga Tatsushiro asked to lease theSenkaku Islands in 1894, the government formally incorporated them into Japanese territory byoccupation of terra nullius through a cabinet decision handed down in January 1895. This wasdone after it was verified that the islands were not under the control of the Qing dynasty or any
other country. Koga and about 200 other people engaged in activities such as harvesting yakogai
seashells, processing bonito, and catching albatross for their down. Following the 30-year lease
period, the Senkaku Islands were sold to Koga Tatsushiroʼs son, Zenji, and became private land.
After World War II, the Senkaku Islands were placed under U.S. administration together with
Okinawa in accordance with the San Francisco Peace Treaty. China protested against the UnitedStates action arguing that Okinawa, a part of the Japanese territories should not be administeredby the United States. However, when the existence of oil deposits in the waters around the
Senkaku Islands became known in 1969, China began asserting in 1970 that the islands were
Chinese territor y. The islands were returned to Japan in accordance with the 1972 Okinawa
Reversion Agreement.

3. Acquisition of Island Territories in the Sea of Okhotsk through MutualConsent
The Northern Territories
The status of the Islands and Sakhalin Island in the Sea of Okhotsk has been determined throughthe mutual agreement of Japan and Russia. Japan and Russia signed the 1855 Treaty of Commerceand Navigation, which drew up an international border between Urup Island and Iturup Island.
The Russian czar believed his nationʼs territory extended to the southern tip of Urup Island. So
the 1855 treaty had the effect of confirming an existing border rather than drawing up a new
boundary.
The treaty did not draw up a border for Karafuto (Sakhalin) Island, and left the island under
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Takai Susumu

joint Russo-Japanese control. The two nations later concluded the Treaty of St. Petersburg in
1875, which made the Kurils a Japanese territory and Sakhalin Island a Russian territory. Eachstateʼs territorial rights over the respective islands took shape through territorial exchanges,
which were mutually agreed acts of the cessation of land in peacetime.
In 1905, the two countries concluded the Treaty of Portsmouth, which brought an end to the
Russo-Japanese War. Japan acquired Sakhalin Island south of the 50th parallel through a mutuallyagreed act of cessation following the end of hostilities.
At around the end of World War II, about 400,000 Japanese lived on Sakhalin Island and about
17,000 on the Kuril Islands. The islanders enjoyed prosperous livelihoods. With the defeat ofJapan in 1945, the Soviet Union advanced south along the islands from the Kamchatka Peninsula
to Urup Island to disarm the troops stationed in the Japanese territor y of the Kuril Islands.
Meanwhile, troops were dispatched from Vladivostok to disarm Japanese soldiers on the HabomaiIslands, Shikotan Island, Kunashir Island, and Iturup Island. Subsequently, the inhabitants ofthe four islands were forcefully deported to Hakodate in Hokkaido via Sakhalin Island. After theJapanese departure, Russians settled on the islands, and remain to this day.

4. Japan’s Island Territories according to the San Francisco Peace Treaty

After Japanʼs defeat in World War II, the scope of the nationʼs territories was defined by the
San Francisco Peace Treaty. With Japanʼs acceptance of the Alliesʼ Potsdam Declaration, whichstated the conditions for ending the war, World War II came to a close. The Potsdam Declaration
declared that Japanʼs sovereignty and extent of its territories should be decided by the Allies,
but at the same time, it stated that the Cairo Declaration would be upheld. The Cairo Declaration
proclaimed that the Allies did not fight Japan with the aim of expanding their own territories, andthat they would make Japan relinquish what it had obtained through “violence and greed.” The
Allies drew up the territorial clauses of the 1951 Peace Treaty on the basis of preceding texts.
The territorial clauses in Article 2 of the San Francisco Peace Treaty stipulated that Japan
should recognize Korean independence and renounce all right, title, and claim to Korea;
renounce all right, title, and claim to Taiwan and the Pescadores; and renounce the Kuril Islands
and southern Sakhalin Island.

5. The Territorial Clauses in the San Francisco Peace Treaty and the Objections
against Them
The Ogasawara Islands

The Alliesʼ decision on the extent of Japanese claims to territorial sovereignty was made clear
in the San Francisco Peace Treaty. Article 3 of the treaty stipulates that the Ogasawara Islandsin the Pacific should be placed under a trusteeship, with the U.S. as the sole administrator. The
Ogasawara Reversion Agreement was concluded between Japan and the U.S. in 1968, and theIslands were returned to Japan. The Ogasawaras marked the 50th anniversary of their reversion
to Japan in 2018.

Takeshima
South Korea objected to how the San Francisco Peace Treaty treated Takeshima. Its argument
was that Takeshima, or Dokdo in Korean name, has been a Korean territor y since ancient
times, and that it was part of Korean territory that was renounced by Japan in the San Francisco
Peace Treaty. We should note here that South Korea was not a signatory to the treaty. It waslater revealed that during the drafting of the agreement, a Korean ambassador to the U.S.
had requested the United States to explicitly stipulate to include Dokdo as part of the Korean
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Debates Concerning the Incorporation of Peripheral Islands into the Territory of Japanpeninsula that was to be renounced by Japan, but this request was rejected.
As part of their occupation policy, the Allies defined what came to be known as the MacArthurLine. The demarcation of the line was based on SCAPIN (Supreme Commander for the AlliedPowers Instruction Note) 677 and 1033, which serve to narrow the Japanese scope of activities.
South Korea asserted that the Allies had acknowledged Takeshima as South Korean territory
because it was on the South Korean side of the MacArthur Line. SCAPIN 677 and 1033 statedthat the line had been temporarily set up as part of occupation policy, and specified that the line
was not to be construed as being a final territorial determination, but South Korea ignored thesecaveats.
South Korea issued a proclamation on its maritime sovereignty in January 1952, just before
the San Francisco Peace Treaty came into effect. This proclamation asserted that Dokdo, called
Takeshima by Japan, was South Korean territory. The declaration drew up what was called theSyngman Rhee Line along the MacArthur Line, which was set to disappear once the occupationof Japan ended.
Japanese fishing boats started operating in the waters around Takeshima after World War II,
but were seized by South Korean patrol ships one after the other. Japan strongly protested theseizures of Japanese fishing boats and asserted that Takeshima was Japanese territory, whilestrongly objecting to the South Korean Syngman Rhee Line. South Korean maritime police
forcefully occupied Takeshima by force in 1954, and they remain to this day.

The Senkaku Islands
The Senkaku Islands were placed under U.S. trusteeship together with Okinawa in accordancewith Article 3 of the San Francisco Peace Treaty, and it was returned to Japan in 1972 under the
stipulations of the Okinawa Reversion Agreement. However, China asserts that the Senkaku
Islands were discovered by China and so was part of Taiwan, which was renounced by Japanaccording to Article 2 of the San Francisco Peace Treaty.
In 2012, China announced that the Senkaku Islands are core interest. The core interests
asserted by China are Chinese territories that are to be reclaimed, even if militar y force isrequired. Taiwan, Tibet, Xinjiang, and the South China Sea were identified as core interests
in 2009. However, with the expansion of the core interests to include the Senkaku Islands in
2012, China set up the East China Sea Air Defense Identification Zone in the airspace above theSenkakus, announcing that all civil aircraft passing through the zone would be required to fulfill
certain obligations.
The Japanese government purchased the privately owned Senkakus and made them stateowned in 2012. China strongly opposed what it perceived as a Japanese attempt to claim Chinese
territory, and sent ships to patrol the waters around the islands and started to claim that they
were policing fishing activities. Japan argued that it had simply bought the Senkaku Islands
from private sector owners, but China continued to argue that Japan had stolen and nationalized
Chinese territory. The situation remains deadlocked today.

The Northern Territories
The Soviet Union refused to sign the San Francisco Peace Treaty on grounds that the Northern
Territories that were to be renounced by Japan, according to Article 2 (c) of the treaty, were nottransferred to the Soviet Union. The Soviet Unionʼs intention to acquire the Northern Territories
as spoils of war through cessation did not work out. The three Allied leaders―British Prime
Minister Churchill, U.S. President Roosevelt, and Soviet Premier Stalin―had signed the Yalta
Agreement in February 1945. The agreement promised that the Kuril Islands would be handed
over to the Soviet Union and that the USSR would regain control over Sakhalin Island after WorldWar II. The Soviet Union asserted that the Northern Territories were a part of the Kuril Islands
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Takai Susumu

and were Soviet because of the stipulations of the Yalta Agreement. The status of the Territories
remains unchanged as of this day.
The Soviet Union and Japan subsequently agreed to a declaration that would end the state ofwar between the two states. Moscow aimed to end the war and secure the peace as quickly as
possible, while Tokyo sought the swift return of Japanese soldiers interned in Siberia. The result
was the Soviet-Japanese Joint Declaration of 1956. In this declaration, the Soviet Union promised
to transfer the Habomai Islands and Shikotan Island to Japan as an expression of the goodwill of
its people. After the conclusion of the Treaty of Mutual Cooperation and Security between the U.S.
and Japan in 1960, the Soviet Union made the removal of U.S. military bases in Japan a condition
for the return of Habomai Islands and Shikotan Island.
Prime Minister Shinzo Abe and President Vladimir Putin are engaged in diplomaticnegotiations about the conclusion of a definitive peace treaty, taking into consideration that it isunprecedented to not have concluded such a treaty more than 70 years after the end of hostilities.
Questions such as whether a peace treaty can even be concluded, whether the treaty will haveclauses providing for the return of Habomai Islands and Shikotan Island, and whether the treaty
will touch upon the return of Kunashir Island and Iturup Island are attracting attention.
As we have seen, Japan has come to possess island territories in accordance with internationallaw. Japanʼs peripheral islands such as the Ogasawara Islands in the Pacific Ocean, the Senkaku
Islands in the East China Sea, and Takeshima in the Sea of Japan have been incorporated into
the countryʼs territory after title was obtained through occupation under international law. The
Northern Territories in the Sea of Okhotsk have been incorporated into Japanese territory bymutually agreed treaties. However, Russia and Japan have different interpretations of thesetreaties.

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Territorial and Maritime Issues in East Asia and International Law

Territorial and Maritime Issues in East Asia andInternational Law*
Hironobu Sakai**
Abstract
International law legally governs territorial and maritime issues, and contributes to thepeaceful settlement of such disputes. Those involving Japan in East Asia are no exceptions.
In territorial issues, State parties to the disputes usually claim sovereignty over territories
based on territorial title and the interpretation and application of the relevant treaties
under international law. The mechanisms such as international adjudication, as well as
the procedures to operate them, have been established so as to obtain legal solutions toterritorial disputes. For maritime issues, the United Nations Convention on the Law of
the Sea (UNCLOS), or other bilateral and multinational treaties, including those signed
by Japan, China and South Korea, set out legal principles on the delimitation of maritime
boundaries and rules on the development and management of fishing resources and mineral
resources. International law provides codes of conduct and legal standards for dispute
resolution among sovereign States, and contributes to the prevention and the peacefulsettlement of disputes. Nevertheless, the roles of international law in the settlement ofdisputes are limited to the legal realm, thus having perspectives other than international law
is important for a holistic resolution to disputes.

IntroductionIn this article, I will identify the relevant rules of international law to territorial and maritime
issues in East Asia, and discuss the roles of international law in the peaceful settlement of
the disputes.
First, it is to be assured that the rules of international law for territorial issues are
dif ferent from those for maritime issues. While in the territorial issues, sovereignty overterritories and the delimitation of borders are typically the main areas of concern, and therules of international law which governs such issues are required, the freedom of navigation,
the preser vation and development of biological and mineral resources, and the delimitationof maritime boundaries are some of the typical subjects in the maritime issues. Treaties andcustomary international law give further clarity to and confirm the contents of the relevant rules
through the decisions by international courts and tribunals as well as state practice.
International law has substantive rules that regulate territorial and maritime issues, and also
provides mechanisms and procedures for resolving disputes between States concerned. It is to bealso paid attention to the procedural aspects of international law.

This article is based on a presentation made by the author at the symposium “Territory and Maritime
Issues in East Asia and their Origins” held by JIIA, Doshisha University Center for Study of South China
Sea and Faculty of Law Doshisha University on March 2, 2019.
** Hironobu Sakai is Professor of International Law at Kyoto University Graduate School of Law.

*

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Hironobu Sakai

I. Territorial issues and international law
1. Territorial title
International law on territorial issues traditionally has been considered to be the standards that
determine which countr y has sovereignty over certain territories. The concept of territorial
title is important to claim the sovereignty over the territory in question and to resolve territorial
disputes. Title refers to the facts that are reasons or grounds for effective sovereignty overterritories, and is generally considered to be obtained through the following means: occupation,accretion, cession, and prescription. Discovery and subjugation also used to be means of gaining
title to land.
States involved in disputes sometimes claim historical title based on historical facts. In theSouth China Sea arbitration case between the Philippines and China, Chinaʼs claims were basedon historical facts and not historical title. China uses different terms carefully, dependent upon
the context.
What is known as “ effective occupation”― which technically does not ser ve as title― isparticularly emphasized in international judicial and arbitral cases. The concept has originatedin the arbitral award of the Island of Palmas case in 1928, a dispute between the Netherlands andthe United States about the sovereignty over the Island of Palmas off the coast of the Philippines.
The Tribunal also pointed out “the continuous and peaceful display of territorial sovereignty” assignificant. The international courts and tribunals have attached importance to these concepts interritorial disputes.
In a territorial dispute, the parties to the dispute claim sovereignty based on titles, but quite
often neither of party has full title to the territory. If a party has full title to territory, a disputeshould not occur in the first place. If a dispute does occur, the territorial titles of the parties will
be compared to determine which of the titles is more convincing. If none of them are convincing,what is ultimately emphasized in international adjudication is which party has demonstrated “thecontinuous and peaceful display of territorial sovereignty” mentioned above. Effectivité, a modernday terms of this “continuous and peaceful display of territorial sovereignty,” becomes paramountin international adjudication.

2. Territorial disputes and international law(1) Characteristics of international adjudication
If a territorial dispute arises, there will be negotiations between the States involved. Those
States also may make use of third-party bodies, such as the International Court of Justice (ICJ)and international arbitral tribunals. Referring a dispute to international adjudication requires
agreement among the States involved. The States have the freedom to choose the procedures forresolving disputes, and international courts and tribunals have jurisdiction only if they obtain theconsent to their jurisdiction from all of the States that are involved. Moreover, the international
community has no means to enforce judicial decisions or arbitral awards. Ultimately, the final
settlement of disputes depends on agreement among the States involved.
(2) Procedural rules for territorial disputes
For the procedural aspects of the judicial or arbitral process, the principle of intertemporal law
and the concept of critical date may play a major role to resolve disputes in international law.
Intertemporal law is a principle that a judicial fact must be appreciated in the light of law
contemporary with it. The Award in the Island of Palmas case made a distinction between thecreation of rights from the existence of rights, so that the act creative of a right might be subject
to the law in force at the time the rights arise, and that the right and its continued manifestation
shall follow the conditions required by the evolution of law.
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Territorial and Maritime Issues in East Asia and International Law

The critical date refers to the time when a dispute occurred or when sovereignty overa territor y appeared to be definitively determined. In the Minquiers and Ecrehos case, inwhich sovereignty over the islands was claimed by the United Kingdom and France, the ICJ
decided in its 1953 judgment that in principle, only facts before the critical date were taken into
consideration. Nevertheless, it is also pointed out in other judicial judgments that facts andactions after the critical date might be considered, depending on the peculiarities of the case.

3. Territorial issues in East Asia
Let us now outline territorial issues in East Asia, focusing on the ones Japan is involved in.
(1) Takeshima
The dispute over Takeshima between Japan and South Korea arose in 1952 when South Korea
issued a declaration concerning maritime sovereignty, by which it announced the establishmentof the Syngman Rhee Line delimiting its territorial waters, and Japan protested the declaration.
If the critical date is defined as the date when a dispute occurred, or when sovereignty over aterritory appeared to be determined, 1952 is the critical date for the Takeshima dispute.
What are the arguments put forward by Japan and South Korea? Japan says it has possessed
Takeshima since before Japanʼs encounter with the West in the 19th centur y. Japan further
argues that in 1905, it took steps to incorporate the islands into its territory and gave notice ofthe measures officially. Contrary to the claims by Japan, South Korea maintains that there isno dispute between the two countries. It argues that it had sovereignty over the Dokdo Islands(the name of the islands in Korea) before 1905, when Japan says it made the islands a part of its
territory. South Korea further argues that Dokdo is included in the territories over which Japanabandoned its sovereignty under the San Francisco Peace Treaty.
If it is proved that the establishment of the Syngman Rhee Line was a challenge to Japanʼssovereignty over Takeshima, no subsequent actions will affect the legal assessment of Takeshima
by strictly applying the critical date to the legal situation, and a decision favorable to Japan may behanded down by arbitrating bodies.
(2) The Senkaku Islands
Japan argues that it incorporated the Senkaku Islands into its territor y through an order of
its cabinet in 1895. However, in 1971, Taiwan and the Peopleʼs Republic of China officially andrespectively claimed sovereignty over the Senkaku Islands. China drew up its law on territorial
waters in 1992, by which it defined its territorial waters to include the Diaoyu Islands (theChinese name for the islands) so as to make the islands Chinese territory.
Japan has consistently maintained its stance that there is no dispute over the Senkaku Islands.
The legal grounds for Japanʼs claim of sovereignty over the Senkakus are that the islands were
uninhabited and were incorporated into Japanese territory by way of occupation because they
were previously terra nullius, and that it has effectively exerted control over the islands sincethen. China claims that the Diaoyu Islands have historically been part of China, and that theislands are Chinese territory because they are part of Taiwan, which Japan abandoned under theterms of the San Francisco Peace Treaty.
The Senkaku Islands are currently under effective control of Japan. If we consider that thecritical date for the Senkakus is 1971, when China lodged its protest, Japanʼs effective occupationof the Senkaku Islands will be admitted as evidence that confirms the legal situation of the islands
before the critical date. Japanʼs territorial rights over the Senkakus are likely to be confirmed bythird-party organizations. The Senkaku Islands issue is actually about the resources in nearby
waters, and is related to the maritime issues in East Asia that will be discussed later.

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Hironobu Sakai(3) Japanʼs Northern Territories
Japan and Russia have signed numerous agreements on the territorial issues between the two
States, including those in the eras of Russian Empire and the Soviet Union. The interpretations of
those treaties play a significant role to solve the territorial issues between them.
Article 2 (c) of the San Francisco Peace Treaty stipulates that Japan “renounces all right, title
and claim” to the Kuril Islands. Japan argues that the geographical scope of the Kuril Islands
that it has renounced consists of Urup Island and the islands to the north of Urup. Under
this interpretation, Etorofu Island and the islands to the south of Etorofu are Japanʼs inherent
territory under the 1855 Treaty of Commerce, Navigation and Delimitation signed by Japan andRussia. Japan claims territorial rights to Etorofu Island and the islands to the south of Etorofu.
In this argument, the geographical scope of the Kuril Islands becomes an issue. Russia argues
that the Soviet Union acquired sovereignty over the Four Northern Islands following Japan ʼsunconditional surrender after the Second World War and the Soviet Unionʼs occupation of theKuril Islands. The 1956 Japan-Soviet Joint Declaration calls for the Habomai and Shikotan Islands
to be handed over to Japan after a peace treaty is concluded. We await progress in negotiations
between Japan and Russia.

II. Maritime issues and international law
1. Development of the law of the sea(1) Post–World War II treaties and agreements
The law of the sea has a long history, and in particular, following World War II, it saw remarkabledevelopment. In 1945, U.S. President Harr y S. Truman claimed the right to develop mineral
resources in the coastal waters of the United States, and advocated the conservation of fisheries
resources in its coastal waters. Trumanʼs actions triggered the adoption of the 1958 Geneva
Conventions on the Law of the Sea. Subsequently, an attempt was made to expand the 1958
Geneva Conventions on the Law of the Sea to create a new treaty appropriate for the times. In
1982, the United Nations Convention on the Law of the Sea (UNCLOS), often referred to as the“Constitution of the Sea,” was adopted after negotiations that ran for ten years. UNCLOS covers
all areas that are governed by the law of the sea. It provides the basis for the present legal orderin the oceans, and has provisions on the expansion of the jurisdiction of coastal States, including
the establishment of continental shelves and exclusive economic zones (EEZs). UNCLOS
further establishes a new regime for the seabed that considers the interests of the international
community. In exchange for the expansion of the rights of coastal States and the creation ofinternational systems of control, systems that are favorable to maritime powers, including a
regime for regulating transit passage through international straits, have been introduced.
The important thing is that a diverse range of treaties of a universal character, as well as
regional agreements, have been created under the auspices of UNCLOS in response to specificissues such as fisheries and the marine environment. A network of those treaties constitutes thepresent legal order in the oceans.
(2) Characteristics of the current regimes on the Law of the Sea
It is safe to say that in the development of the current regimes on the Law of the Sea, the focus
has been placed on managing marine resources. There are three characteristics of the present
legal order in the oceans. First, the sea is divided into multiple zones, and each zone is subject
to the provisions of international law. In the past, the legal order in the oceans was divided into
two spatial categories: territorial waters that are regarded as belonging to a coastal State, and thehigh seas, which do not belong to any particular country. At present, the legal order in the oceans
is multi-pronged: EEZs, continental shelves, and the deep seabed, in addition to territorial waters
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Territorial and Maritime Issues in East Asia and International Law

and the high seas.
Second, the jurisdiction of a coastal State has functionally differentiated in degree, depending
upon the type of maritime zone. In territorial waters, the jurisdiction of a coastal State is allencompassing. In EEZs and on continental shelves, the jurisdiction of a coastal State is limited tofisheries and mineral resources issues respectively.
Third, the present legal order in the oceans and the rules of the Law of the Sea are considered
to be the result of the reconciliation of the interests of coastal States and the ones of sea power
States. Thus, U.S. warships attempt freely to navigate the South China Sea and other areas toreaffirm the interests of sea power States with respect to coastal States.
(3) The delimitation of maritime boundaries and the evolution of case law
Resource management and allocation issues have given rise to questions of maritime delimitation,
on which international law has established certain relevant rules through state practice and caselaw.
The 1958 Convention on the Continental Shelf stipulated that in cases where the same
continental shelf is adjacent to the territories of two or more adjacent States, the boundary shallbe determined by applying the principle of equidistance. Meanwhile, the ICJʼs judgment on
the North Sea Continental Shelf cases in 1969 took into consideration the arguments of West
Germany, which would have been adversely affected by the strict application of the principleof equidistance. This decision emphasized the natural prolongation of the continental shelf andaffirmed the application of equitable principles, under which the continental shelf should be
divided equitably among the States concerned.
In 1982, it was provided under UNCLOS that agreement among States should be soughtto achieve equitable solutions on questions of maritime delimitation. Subsequent cases saw
clashes between two competing rules; the “equidistance-special circumstances rule” based onequidistance and median lines, with adjustments to be made for special circumstances, and the“equitable principles-relevant circumstances rule” to take into account relevant circumstances
so as to bring about an equitable result. Ultimately, the two rules were combined, and in the ICJ
judgment on the Maritime Delimitation in the Black Sea case in 2009, a three-stage approach was
adopted. In this approach, first, a tentative equidistance line is drawn. Second, the line is thenadjusted so that it will lead to an equitable result. Finally, the proposed solution is examined todetermine if there is any marked disproportionality between the length of the partiesʼ relevant
coasts and the maritime zones that will belong to them. The three-stage approach is used inmaritime delimitation cases handled by the International Tribunal on the Law of the Sea and incases that are referred to arbitration since then.

2. Maritime issues in East Asia
(1) Fisheries issues
After a period of worsening relations following the establishment of the Syngman Rhee Line,
Japan and South Korea signed a fisheries agreement in 1965, which allows each country to create
an exclusive fishery zone up to 12 nautical miles from its shores. In accordance with the newlegal order in the oceans following the adoption of UNCLOS, a new Japan-South Korea Fisheries
Agreement was signed in 1998, which is valid up to the present.
Japan and China signed a fisheries agreement in 1975 following the normalization of
diplomatic relations in 1972. An updated Japan-China Fisheries Agreement that complied with
UNCLOS was signed in 1997. Under the agreement, the two countries established provisional
maritime zones and have been taking steps to conserve and manage living marine resources.
The relationship between Japan and Taiwan is interesting. Since they have no diplomatic
relations, they cannot enter into any treaties. In 2013, the Japan-Taiwan Fisheries Agreement was
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Hironobu Sakai

concluded between private entities close to each government, under which maritime zones havebeen established off their coasts.
(2) Continental shelf
The mineral resources of continental shelves are also developed and managed under agreements
between States concerned. Japan and South Korea signed an agreement on the continental
shelf in 1974 and established a joint development zone to the south of the Korean peninsula.
The continental shelf in the East China Sea between Japan and China is problematic. The parts
claimed by Japan and China overlap. Japan argues that an equidistance line should be drawn,
while China claims that its sovereignty extends to the Okinawa Trough, based on the principle ofthe natural prolongation of the continental shelf. As discussed earlier, a three-stage approach has
been adopted in recent maritime delimitation cases, and going by this approach, the continental
shelf that China claims may be too large.
(3) Extended continental shelves
According to the definition of the continental shelf in UNCLOS, a coastal State can extend its
sovereign continental shelf beyond 200 nautical miles from the baseline if certain conditions
are met. To establish an extended continental shelf beyond 200 nautical miles, the coastal Stateneeds to submit an application with the required data to the Commission on the Limits of theContinental Shelf (CLCS)―an organ provided for in UNCLOS.
Japan submitted in 2008 its claim of an extended continental shelf spanning seven maritime
zones, including around Okinotorishima. China and South Korea objected to the claim, sayingthat Okinotorishima is not an island and should not have any continental shelf and nor EEZ. In
2012, the CLCS made a recommendation to Japan that admitted the nationʼs claim of an extended
continental shelf, except for a zone to the south of Okinotorishima. The issue of an extended
continental shelf is closely related to the legal status of Okinotorishima.
(4) The definition of an island: Is Okinotorishima an island or a rock?
Okinotorishima is an island at the southernmost tip of Japan. It is about 1,700 kilometers southof Tokyo and is made up of coral reefs. Its circumference is 10 kilometers. It is 4.5 kilometers
long from east to west and as much as 1.7 kilometers long from north to south. Two tracts of land
appear above sea level at full tide.
Japan argues that Okinotorishima is internationally recognized as an island, and that it is an
island according to the definition in UNCLOS. China and South Korea argue that Okinotorishima
does not fall into the category of islands according to the UNCLOS definition.
This issue is related to the interpretation of Article 121 of UNCLOS, which is also one of thesubjects in the South China Sea arbitration case between the Philippines and China. The salientfeature of the interpretation of Article 121 in the arbitral award is the following: the tribunal
did not attempt to define what was a rock, and its award considered the purpose of EEZs wheninterpreting Article 121, while omitting considerations about state practice. The effects of thearbitral award on future state practice may become an issue. The award may also affect whether
Okinotorishima should be considered an island or a rock.

Conclusions
There are four conclusions we can draw from this discussion. First, international law regulates
both territorial and maritime issues. Second, the roles of international law in territorial andmaritime issues are to provide codes of conduct to sovereign States and other entities so
as to encourage them to behave according to rules, and to provide standards for resolving
disputes that may arise. Third, tasked with such roles, international law brings stability to the33
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Territorial and Maritime Issues in East Asia and International Law

international community and to regional communities, which will in turn be reflected in thefurther development of international law. Fourth, international law touches only on the legal
aspects of disputes. Thus, for a holistic resolution to disputes, we need various other standards
and perspectives in addition to international law.

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Atsuko Kanehara

The Use of Force in Maritime Security and the Use of Arms in
Law Enforcement under the Current Wide Understanding ofMaritime Security
Atsuko Kanehara*
Abstract
This paper examines maritime security, by reconsidering the distinctions between theuse of force prohibited by international law and the use of arms in law enforcement. The
difference between the use of force prohibited by law and the use of arms accompanying
law enforcement is difficult but extremely important, due to current strong tendency tounderstand maritime security widely. With a presupposition that the nature of acts or
measures, in principle, decides the nature of the use of force or arms used in the acts or
measures, first, this paper reviews the discussion regarding the concept of “the use of force”
under Article 2, Paragraph 4 of the UN Charter. Then, the relevant jurisprudence will be
introduced, followed by an examination of use of arms that is not prohibited by internationallaw. Consulting the relevant provisions under UNCLOS, it can be said that there exists two
types of the use of weapons; “the use of force” defined by and prohibited by internationallaw, and “the use of arms” defined and permitted by international law that provides for law
enforcement at sea. Examining the wide understanding of maritime security within the
recent scholarly writings and Japanese legislative acts, this paper finds the distinctions
between the security or militar y acts and law enforcement flexible. Law enforcement
measures at sea will be undoubtedly expected to fulfil more functions than ever in order
to avoid the escalation of the situations concerned. Thus, this paper emphasizes thatthe critical point is not to allow such use of weapons to seriously undermine the solidly
established principle of the prohibition of the use of force.

IntroductionThis paper will deal with the issue of maritime security. The focus is mainly placed upon
the two recent discussions in the law of the sea: first, a wide understanding of maritime
security;1 second, the relationship between the use of force prohibited by internationallaw and the use of arms accompanying law enforcement measures.2*
1

2

Atsuko Kanehara is Professor of Public International Law at Sophia University.
Typical examples are as follows. D. Guilfoyle, “Maritime Law Enforcement Operations and Intelligencein an Age of Maritime Security,” International Law Studies, U. S. Naval War College, 93 (2017), 298
et seq.; N. Klein, Maritime Security and the Law of the Sea, (Oxford: Oxford University Press, 2011)
A. Kanehara, “Japanʼs Ocean Policy and Free and Open Indo-Pacific Strategy,” Lectures Delivered 25
through 29 of September, 2018, in India, Bangladesh, and Sri Lanka, https://www.in.emb-japan.go.jp/
itpr_en/00_000740.html; https://www.bd.emb-japan.go.jp/itpr_en/PR20180927.html; https://www.
lk.emb-japan.go.jp/itpr_en/00_000678.html, visited 10 April, 2019.
Other works will be introduced at appropriate places in this paper.
There are many works on this issue. See, for instance, T. Ruys, “The Meaning of ʻForceʼ and theBoundaries of the Jus Ad Bellum: Are ʻMinimalʼ Uses of Force Excluded from UN Charter Article 2

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The Use of Force in Maritime Security and the Use of Arms in Law Enforcement under the Current Wide Understanding ofMaritime Security

These two issues are closely related to each other in the following way. The possible
distinction has been considered by scholars between the use of force prohibited by internationallaw and the use of arms3 that is not prohibited by international law.4 As for the latter, mainly theuse of arms for the purpose of effective law enforcement measures is principally presupposed.5
Under this state of discussion, due to the current strong tendency to understand maritime
security widely, the distinction is more and more difficult to make but extremely important.
Thus, in this paper, the possible distinction will be reconsidered between the use of force
prohibited by international law and the use of arms permitted by international law under the widereformulation of the concept of maritime security.
To make the arguments in this paper precise, an explanation of the presupposition adopted bythis author is needed.
Theoretically, there exist two issues to be examined: first, the nature of the acts or measures6that are either military acts7 or law enforcement measures in conjunction with which force orarms are used; and second, the nature of the use of force or arms in conjunction with those acts or
measures. It is very difficult to answer whether there may be any difference between the natureof the acts or measures, on the one hand, and the nature of the use of force or arms in conjunction
with those acts or measures, on the other hand. To put this differently, it is questioned whether
the nature of the acts or measures necessarily determines the nature of the use of force or arms
accompanying those acts or measures.
A case is imagined in which, while the acts or measures have the nature of law enforcement,
the use of arms in the situations holds the nature of the use of force that is likely accompanying
military acts, and that is prohibited by international law.8 Vice versa, it might be possible that,(4)?,” American Journal of International Law, 18 (2014), 159–210; T. Ruys and S. Verhoeven, “Attacks
by Private Actors and the Right of Self-Defense,” Journal of Conflict & Security Law, 10 (2005), 193–206;
P. J. Kwast, “Maritime Law Enforcement and the Use of Force: Reflections on the Categorisation ofForcible Action at Sea in the Light of the Guyana/Suriname Award,” Journal of Conflict & Security Law,
13 (2008), 49–91; O. Corten, The Law against War: The Prohibition on the Use of Force in Contemporary
International Law (Oxford: Hart Publishing, 2010); R. McLaughlin, “Authorizations for Maritime Law
Enforcement Operations,” International Review of the Red Cross, 98 (2) (2016), 465–490; K. Morikawa,“Kokusai Heiwakyoryoku Gaiko no Ichi Danmen―Kaijo Soshikodo he no Sanka/Kyoryoku wo Meguru
Hoteki Shomondai [An Aspect of Diplomacy for International Cooperation and International Peace―
Legal Issues with Respect to Participation in and Cooperation for Maritime Interdiction Operations],”
Nihongaiko to Kokusaikankei [Japanʼs Diplomacy and International Relations], (Tokyo: Naigai Shuppan,
2009), 243–282; by the same author, “Gurei Zone Jitai Taisho no Shatei to Sono Hoteki Seishitsu [Copingwith Grey Zones and Its Legal Implications],” Kokusai Mondai [International Affairs], No. 648 (2016),
29–38; by the same author, “Kaijo Hoshikko ni Tomonau ʻuse of forceʼ no Gainen [The Concept of the
Use of Force in Conjunction with Law Enforcement],” in Kokusaiho no Dainamizumu [Dynamism inInternational Law], in Memory of Professor Akira Kotera, (Tokyo: Yuhikaku, 2019), 651–677.
3

Later in this Introduction, the terminology of “the use of force” and “the use of arms” will be defined.
“The use of weapons” means physical uses of weapons.

4See, Ruys, op. cit., supra n. 2, 171–188 and the citations thereto.

5

For instance, see, Kwast, op. cit., supra n. 2.

6

The context in which the acts or measures are conducted or taken may be called “situations.” To avoid
confusion, solely at appropriate places, the term “situations” will be used.

7

Typically the acts or measures are considered in which the use of force under Article 2, Paragraph 4 of
the UN Charter is expected.

8

In particular, when the scale of the use of weapons decides the nature of it, namely whether the use offorce prohibited by international law, or the use of arms in conjunction with law enforcement measures,
the nature of the acts or measures as law enforcement does not necessarily determine the nature of
the use of weapons as the use of arms accompanying the law enforcement measures. This is because
the use of weapons in connection with law enforcement measures could be defined as the use of force

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Atsuko Kanehara

while the acts are regarded as military acts, the use of weapons in connection with the acts isregarded as the use of weapons that has a different nature from the use of force that is expectedin military acts, and that is prohibited by international law, unless justified as an exercise of theright of self-defense.
While this question will be succinctly touched upon at an appropriate place, “in principle,”9this author presupposes that the nature of the acts or measures decides the nature of the use offorce or arms in the acts or measures.10 The use of arms in the context of law enforcement has
the nature of the use of arms accompanying the law enforcement measures concerned. The useof force in conjunction with military acts bears the nature of the use of force that is assumed
typically by Article 2, Paragraph 4 of the UN Charter with possible justification as an exercise of
the right of self-defense against violent aggression.11
By adopting this presupposition, two arguments will be clearly formulated. One is theargument on the nature of the acts or measures and the use of force or arms in conjunction withthe acts or measures. The other is the argument on the logic according to which the distinction ismade between military acts and law enforcement measures, on the one hand, and the use of force,in military acts and the use of arms accompanying law enforcement measures, on the other hand.
Under this presupposition, in order to determine the nature of the use of force or arms in acts
or measures, the decision of the nature of the acts or measures becomes critically important. The
nature of the acts or measures, either military acts or law enforcement measures, in principle,
defines the nature of the use of force or arms in the acts or measures concerned.12
It is precisely in this context that the discussion of the definition of law enforcement13
demonstrates its significance. If acts or measures are regarded as those of law enforcement inaccordance with the definition, the use of weapons in the acts or measures, in principle, has thenature of the use of arms accompanying law enforcement measures. Certainly, the same holds
true with military acts and the use of force in connection with military acts.
According to this line of argument, the structure of this paper is as follows.
First, the discussion will be reviewed regarding the concept of “the use of force,” particularly,
the meaning of “force ” under Article 2, Paragraph 4 of the UN Charter. For instance, it isquestioned whether “the use of force” at a minor scale should be prohibited by the provision.
There may be some uses of “force” that do not fall within the pur view of the provision and,
therefore, that are not prohibited by the provision.14
prohibited by international law rather than the use of arms accompanying law enforcement measures,
if the scale of the use of weapons reaches some designated scale. As explained later, this paper does nottake such a position.
9

The qualification of “in principle” means that the consideration of the relevant factors in deciding in eachcase the nature of the use of force or the use of arms is not excluded.

10

As seen later, the theoretical distinction between the two issues is helpful also in analyzing the relevant
jurisprudence.

11

Kwast seems to take the same position as that of the presupposition set by this paper, although she does
not clearly recognize the distinction between the two issues: the nature of the acts or measures, and thenature of the use of force or arms in connection with the acts or measures concerned. Kwast, op. cit.,
supra n. 2, 62.

12While this paper focuses on the use of arms in conjunction with law enforcement measures, certainly,
this holds true with military acts and the use of force in the military acts.

13

The definition of law enforcement will be examined later in this paper with its inherent importance inaccordance with the line of argument adopted by this paper.

14

Actually, the discussion of the use of force prohibited by international law and that permitted byinternational law has been frequently conducted as the issue of the meaning of “force,” the use ofwhich is prohibited by Article 2, Paragraph 4 of the UN Charter. In other words, in the discussion, the37Japan Review Vol.3 No.2 Fall 2019

The Use of Force in Maritime Security and the Use of Arms in Law Enforcement under the Current Wide Understanding ofMaritime Security

To make the examination simple, the focus will be placed on the use of force, and the issue of
threat by the force will be set aside for the time being.
Ar ticle 2, Paragraph 4 of the UN Char ter is firmly recognized as reflecting customar yinternational law. For this reason, the distinction between the provision and customar yinternational law does not maintain very much meaning.15 Therefore, in this paper, the expression
will be used, such as the use of force prohibited by “ international law, ” as far as it is notinappropriate.
Second, the relevant jurisprudence will be briefly introduced with respect to the distinction
between the use of force prohibited by international law and the use of arms accompanying law
enforcement measures taken at sea. The cases are the M/V Saiga Case (No. 2), the Fisheries
Jurisdiction Case, and the Guyana and Suriname Case.16 They are all cases in the field of the lawof the sea.
Third, the use of weapons that is not prohibited by international law will be focused on. The
examination is conducted as that of the nature of the acts or measures in which weapons areused, as, according to the presupposition set by this paper, the nature of the acts or measures,in principle, determines the nature of the use of force or arms in conjunction with the acts or
measures concerned. International law “positively” permits a certain category of the use of force
or arms. It is different from admitting some room for the use of force or arms as being only
“negatively” reflecting the non-prohibition by international law. It is necessary to legally define
the nature of such use of force or arms.
For the analysis of the definition or the legal nature of the use of force or arms, a useful
method is to consult the relevant provisions of international law. As this paper focuses on the
distinction between the use of force prohibited by international law, and the use of arms for the
purpose of effective law enforcement, principally the provisions regarding law enforcement at sea
are relevant. Looked at from this perspective, the United Nations Convention on the Law of the
Sea (UNCLOS) contains several important provisions.17
By consulting the relevant provisions under UNCLOS, it will become possible to define theuse of arms accompanying law enforcement measures. As a result, there exist two types: “the useof force” defined and prohibited by international law, and the use of arms defined and permitted
by international law that provides for law enforcement at sea. Such definitions set forth the logic
or the legal frameworks under which the distinction is made between “the use of force” and “theuse of arms.”18
definition and nature have not been sufficiently discussed with regard to the use of weapons that is notprohibited or even permitted by international law. This point will be explained later.
15

Here is not the place to examine the difference between Article 2, Paragraph 4 of the UN Charterand customary international law in detail as was questioned in the Nicaragua Case. Case Concerning
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Judgment of 27 June 1986, ICJ Reports 1986, para. 191.

16

There are other incidents in which the use of weapons raised the issue of its legality, such as the S. S.
“I’m Alone” Case and “The Red Crusader” Case. As for the dealing with of these cases in the M/V Saiga
Case (No. 2), see, Kwast, op. cit., supra n. 2, 56–57. The M/V Saiga (No. 2), (Saint Vincent and the
Grenadines v. Guinea), the International Tribunal for the Law of the Sea, Judgment (Merits) of 1 July
1999, International Legal Materials, 38 (1999), 1323. The citations for the Fisheries Jurisdiction Caseand the Guyana and Suriname Case will be introduced at appropriate places.

17

There are other provisions that touch upon law enforcement at sea, such as those in the four 1958
Geneva Conventions on the Law of the Sea. Many of them are incorporated into UNCLOS, at least interms of their substance, and they have come to gain the status of customary international law. Thus,
the examination of the relevant provisions of UNCLOS may hold true with the customary international
law that deals with the same matters.

18

The logic or legal frameworks for making the distinction between the use of force prohibited by

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Atsuko Kanehara

Fourth, the wide understanding of maritime security will be confirmed within the recent
scholarly writings and Japanese legislative acts. In this context, succinct examination is necessary
regarding the concept of so-called “grey zones.”19
Fifth, this paper will reconsider the distinction between the use of force prohibited byinternational law and the use of arms accompanying law enforcement measures under the wide
understanding of maritime security.
As for the terminology, the following clarification is necessary to avoid confusion.
First, the term “ law enforcement ” is used rather than the special parlance to describe
measures taken at sea.20
Second, the expression “situations” will be used in a limited manner. There are “militar ysituations” when the use of force prohibited by international law is expected in military acts.21
The situations in which law enforcement measures are to be taken are called “law enforcement
situations.” The nature of “situations” is always the same as that of the acts or measures to be
conducted or taken in the situations.22
Fourth, different from the physical expression of a use of weapons, according to the relevantinternational law rules, “the use of force” and “the use of arms” obtain legal connotations.23
When the use of weapons is discussed under the framework of the relevant international law thatprohibits the use of force, the established expression “the use of force” will be used. The use offorce connotes a legal meaning as a legal term.24 This is because the term of “the use of force”
or simply “force” is made part of Article 2, Paragraph 4 of the UN Charter and the customaryinternational law that prohibits the use of force.
In the same way as the phrase “the use of force” acquires its legal connotation, after the
relevant international law rules are identified that decide law enforcement, the use of arms
exercised in law enforcement measures defined by the international law rules will gain the legal
connotation.25
In order to avoid redundant repetition, when no confusion is expected, “the use of force”
is used as meaning the use of force prohibited by international law, and “the use of arms” asmeaning the use of arms accompanying (or, in conjunction with, and in connection with, etc.), lawinternational law and the use of arms in conjunction with law enforcement measures would be blurredin facing the wide understanding of maritime security and the argument on the so-called “grey zones.”
This critical point will be elaborated upon later in this paper, when it considers the possible impact by
the wide understanding of maritime security on the distinction between the use of force prohibited byinternational law, and the use of arms accompanying law enforcement measures.
19

The term “grey zones” has different meanings. In this paper, the term “grey zones” particularly meansthat which exists between military acts and law enforcement measures.

20

There is special parlance in the law of the sea, such as the right to approach, the right to recognize
the nationality of vessels, and the right to visit (boarding inspection). This paper uses the generic andgeneral term “law enforcement.”21

To describe such situations, aggression, invasion into territories of foreign States, and the right of selfdefense are the typical terms to use. However, it is not always easy to make the distinction between
concrete acts and the context in which acts are conducted. Therefore, the distinction between “acts or
measures” and “situations” indispensably becomes a relative one.

22

Although it is not clearly demonstrated, Kwast seems to take the same position as that of this paper.
Kwast, op. cit., supra n. 2, 63.

23“Forcible acts” and violence also mean acts with weapons. This paper will use the physical expression ofa use of weapons.

24

As discussed next, “force” becomes a legal term to be defined by international law, which principally
Article 2, Paragraph 2 of the UN Charter represents.

25

With this explanation, hereinafter, the phrase “the use of arms” will be used in this sense.

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enforcement measures.

1．The Discussion of the Use of Force That is Prohibited by International Law(1) The force under Article 2, Paragraph 4 of the UN Charter
As a starting point to examine the distinction between the use of force in military acts and theuse of arms accompanying law enforcement measures, a review of the discussion of the meaningof “force” is useful. While the discussion regarding the “force” under Article 2, Paragraph 4 of
the UN Charter does not clearly demonstrate the recognition of the two issues, namely, thatof the nature of military acts and that of the nature of the use of force in military acts, it seems
to be a discussion on military use of force in military acts.26 Bearing this in mind, the following
confirmation of the relevant discussion suffices here.
Regarding the “force” under Article 2, Paragraph 4 of the UN Charter, there are two opposite
opinions.27 One admits room mainly for the use of force at a small scale under the provision.28 The
other denies such room.29 The reason for the denial of the room mainly for the use of force at asmall scale is to avoid the abuse of such room and lack of established international practice.30
According to the widely recognized interpretation of the provision, economic coercion andthe use of arms or weapons between parties not in their international relations are not the use offorce prohibited by the provision.31(2) The use of force that is not prohibited by international law
The position that there is room for the use of force at a small scale under Article 2, Paragraph 4of the UN Charter introduces the following examples: the abduction of Mr. Eichmann from theterritory of Argentina; violations of territorial airspace by military aircraft; targeted killing ofsuspects of terrorism in the territory of a foreign country.32
With respect to these examples, the opposite position argues that the lack of mention by otherStates of the use of force prohibited by international law on the occasions of these cases does notguarantee the establishment of international practice to admit the room for such use of force.
Here is not the place to make a thorough examination of these arguments. It is not easy
to derive a definite conclusion as to whether Article 2, Paragraph 4 of the UN Charter is “allinclusive” or not. For the discussion in this paper, the recognition of the following two points issignificant.
First, there is not generally an agreed position with respect to the meaning of force under
Article 2, Paragraph 4 of the UN Charter. Second, if the existence of the use of force (a physicaluse of weapons) that is admitted by the provision is presupposed, an explanation of the nature of26

The presupposition set in the Introduction requires the distinction between the two issues. In this lineof argument, in the following Sections (2.–) law enforcement and the use of arms in conjunction withlaw enforcement measures will be dealt with.

27

Ruys, op. cit., supra n. 2, 1 and citations thereto.

28

A typical work is that of Corten, Corten op. cit., supra n. 2, 55 and 77. Other examples of the use of force
that may be permitted under Article 2, Paragraph 4 of the UN Charter, ibid., 55 and 85.

29

When room is discussed for some type of “force”, the term “force” connotes a physical use of weaponsrathar than “the use of force” as legal expression.

30

Ruys, op. cit., supra n. 2, 1, 163–171. In addition, according to Ruys, in a State-to-State context, evenconfrontation at a small scale comes within the ambit of the jus ad bellum. Ibid., 171–187.

31

These points are confirmed by Ruys, ibid., 63.

32

See the examples given by Ruys with reference to the threshold set by Corten to determine the use offorce prohibited by Article 2, Paragraph 4 of the UN Charter, ibid., 167–179.

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such use of force or a definition of it will be required.
Very importantly, these two points lead to an approach that is separate from the definitionof the use of force under Article 2, Paragraph 2 of the UN Charter. As a sort of “other side of
the coin” argument, while the precise definition of the use of force is difficult, the definition or
the nature of the use of force (a physical use of weapons) that is not prohibited or is allowed byinternational law can be sought.33
Mainly, a use of weapons that is allowed by international law is discussed in conjunction withlaw enforcement measures.34 In order to begin the consideration, succinct analysis of the relevant
jurisprudence is helpful.

2. The Jurisprudence That Admits Some Distinction between the Use of Force
Prohibited by International Law and the Use of Arms Accompanying Law
Enforcement Measures(1) The M/V Saiga Case (No.2)35

The judgment rendered by the International Tribunal for the Law of the Sea (ITLOS) reads:
In considering the force used by Guinea in the arrest of the Saiga, the Tribunal must take into
account the circumstances of the arrest in the context of the applicable rules of internationallaw. Although the Convention does not contain express provisions on the use of force in thearrest of ships, international law, which is applicable by virtue of article 293 of the Convention,requires that the use of force must be avoided as far as possible and, where force is unavoidable,
it must not go beyond what is reasonable and necessary in the circumstances. Considerationsof humanity must apply in the law of the sea, as they do in other areas of international law.
These principles have been followed over the years in law enforcement operations at sea(emphasis added).36(2) The Fisheries Jurisdiction Case37
In the judgment the International Court of Justice (ICJ) said at paras. 81–84:
81. The Court notes that, following the adoption of Bill C-29, the Coastal Fisheries Protection
Act authorized protection officers to board and inspect any fishing vessel in the NAFO
Regulatory Area and “in the manner and to the extent prescribed by the regulations, use
force that is intended or is likely to disable a foreign fishing vessel,” if the officer “believes
on reasonable grounds that the force is necessary for the purpose of arresting” the master orcrew (Section 8.1) (emphasis added)....
82. The Coastal Fisheries Protection Regulations Amendment of May 1994 specifies in further
detail that force may be used by a protection officer under Section 8.1 of the Act only when
he is satisfied that boarding cannot be achieved by “less violent means reasonable in thecircumstances” and.... These limitations also bring the authorized use of force within the
category familiar in connection with enforcement of conservation measures (emphasis added).
84. For all of these reasons the Court finds that the use of force authorized by the Canadian33

A similar position is taken by Morikawa, op. cit., supra n. 2 (Kaijo Hoshikko ), 661.

34

Ibid.; Kwast, op. cit., supra n. 2; K. Zou, “Maritime Enforcement of United Nations Security Council
Resolutions: Use of Force and Coercive Measures,” International Journal of Marine and Coastal Law, 26(2011), 235–261.

35

Op. cit., supra n. 16.

36

Ibid., paras. 155–156, and 159.

37

The Fisheries Jurisdiction (Spain v. Canada), Judgment (Jurisdiction) of 4 December 1998, ICJ Reports
1998, 432.

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legislation and regulations falls within the ambit of what is commonly understood as enforcementof conservation and management measures and thus falls under the provisions of paragraph 2(d) of Canadaʼs declaration. This is so notwithstanding that the reservation does not in terms
mention the use of force. Boarding, inspection, arrest and minimum use of force for those
purposes are all contained within the concept of enforcement of conservation and management
measures according to a “natural and reasonable” interpretation of this concept (emphasis
added).38(3) The Guyana and Suriname Case39
The award given by the arbitral tribunal reads:
The Tribunal accepts the argument that in international law force may be used in law
enforcement activities provided that such force is unavoidable, reasonable and necessar y.
However in the circumstances of the present case, this Tribunal is of the view that the action
mounted by Suriname on 3 June 2000 seemed more akin to a threat of military action rather
than a mere law enforcement activity (emphasis added).40(4) The recognition of the categor y of the use of arms in connection to law
enforcement measures
In the jurisprudence introduced here, it is clearly confirmed that it has recognized the categoryof the use of arms accompanying law enforcement measures. It seems that this recognition isbased upon the nature of the acts or measures in which the arms were used. Nonetheless, as
is elaborated upon later, the courts and the tribunal did not clearly demonstrate the two issues,
namely the issue of the nature of the acts or measures, and the issue of the nature of the use of
weapons in the context of the acts or measures concerned.
With this reservation, the indication derived from the jurisprudence will be further examinedlater.

(5) The issue of the jurisdiction of the ITLOS and the arbitral tribunals
established under Annex VII to UNCLOS41
As a closely related issue to the examination thus far, there is the issue of the jurisdiction of the
ITLOS and the arbitral tribunals established under Annex VII to UNCLOS. Also, the issue of theapplicable laws is practically connected in the jurisprudence to the issue of jurisdiction.42 Thisissue is not necessarily directly related to the examination of this paper. However, it is helpful toconsider it to analyze the jurisprudence.
The ITLOS and the arbitral tribunals have jurisdiction over disputes concerning theinterpretation or application of UNCLOS.43 According to Article 293 of UNCLOS the court and38

Ibid., paras. 81–84.

39

In the Matter of an Arbitration between Guyana and Suriname, in the Award of 17 September 2007.

40

Ibid., para. 445.

41This issue does not apply to the ICJ, in considering that it has “general” jurisdiction without limitation
depending on the subject matters.

42

It is not to mention that the issue of jurisdiction and that of applicable law are theoretically different
from each other. Nonetheless, they are, in reality, in the jurisprudence related to each other, or, it might
be said that they are wrongfully connected to each other.

43

Article 288, Paragraph 1 reads:
A court or tribunal referred to in article 287 shall have jurisdiction over any dispute concerning
the interpretation or application of this Convention which is submitted to it in accordance with this
Part.

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tribunals shall apply international law that is not incompatible with UNCLOS.44 Therefore, thecourt and tribunals apply not only UNCLOS but also international law with respect to the use offorce, principally, Article 2, Paragraph 4 of the UN Charter. As a result, if the cases before thecourt and tribunals involve the use of force and/or the use of arms according to the terminologyof this paper, the court and tribunals consider it in accordance with the relevant international law
including international law rules other than UNCLOS.
However, applicable laws should not in any sense widen the jurisdiction of the court andtribunals.45 Therefore, even if the cases before them involve the use of force and/or the use ofarms, they may not decide the arguable violations of the prohibition of the use of force as such.46
As far as it is inseparably related to the subject of the dispute concerned, which should be a
dispute on the interpretation or application of UNCLOS, they inevitably decide the issue.
When the jurisprudence is analyzed later in this paper, it is necessary to bear in mind this limitof the jurisdiction of the ITLOS and the arbitral tribunals. As far as they adhere to the limit of theirjurisdiction, the judgments and awards rendered by the ITLOS and the arbitral tribunals decide
the issue of the use of arms in conjunction with law enforcement measures taken at sea. This is
not the case with respect to the use of force prohibited by international law. It is not expectedthat sufficient suggestions will be derived from them regarding the use of force prohibited byinternational law, since the issue is out of their jurisdiction.47

3. The Use of Arms Accompanying Law Enforcement Measures(1) An attempt to define the use of weapons that is not prohibited oris per mitted by inter national law as the use of ar ms accompanying law
enforcement measures

As confirmed above, it is difficult to find the precise meaning of “force” that is prohibited byinternational law. Authorities are not in accord in this regard.48 As an outcome of this stateof discussion, it is difficult to identify the category of the use of “force” or “arms” that is notprohibited or permitted by international law.
Then, as a different approach, by departing from the particular framework of arguments
for the use of force prohibited by international law, mainly, by Article 2, Paragraph 4 of the UN
Charter, a new line of argument may arise. Because the use of weapons that is not prohibitedor permitted by international law, in many cases, accompanies law enforcement measures,49 a
44Article 293, Paragraph 1 reads:
A court or tribunal having jurisdiction under this section shall apply this Convention and otherrules of international law not incompatible with this Convention.

45

As for this issue, see, for instance, P. Tzeng, “Jurisdiction and Applicable Law under UNCLOS,” Yale Law
Journal, 126 (2016), 242–260. The issue has been addressed in the jurisprudence mainly with respect tothe relationship between UNCLOS and the international law that prohibits the use of force.

46

In comparison, as issues of interpretation or application of the relevant provisions of UNCLOS, the court
and tribunals may have jurisdiction to decide the legality of the use of arms in conjunction with law
enforcement measures, depending on the interpretation of the provisions concerned.

47

This does not mean that there are no examples in which the court or arbitral tribunals overstepped thelimit of their jurisdiction so as to decide, at least in some sense, the issue of the use of force, as such.
This paper will not go into the issue, and here it suffices to point out that problem.

48

Section 1.

49

Strictly speaking, there may be dif ferences between the use of arms that is not prohibited byinternational law, and the use of arms that is permitted by international law. With this reservation, fromnow on, for convenience, the expression “the use of arms that is permitted (allowed) by internationallaw” will be adopted in order to mean both, unless confusion occurs.

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reasonable way to define the use of weapons is by looking for the definition or justification of it in
the relevant international laws with respect to law enforcement measures to be taken at sea.
The presupposition of this paper is that the nature of the acts or measures, in principle,
decides the nature of the use of force, or the use of arms in conjunction with the acts or measuresconcerned. Therefore, to identify the nature of the use of arms accompanying law enforcement
measures as such, it is required to determine the acts or measures in which the arms are used as
those of a law enforcement nature.
Authorities have discussed the definition of “law enforcement.”50 In line with the arguments ofthis paper, with its presupposition, the significance of the arguments regarding the definition oflaw enforcement resides precisely here. It bears the inherent weight of the presupposition set bythis paper, as the definition of law enforcement defines the nature of the acts or measures, and, inprinciple, the nature of the use of arms in conjunction with law enforcement measures, as well.

(2) The relevant provisions regarding law enforcement

Let us look at UNCLOS and confirm the relevant provisions with respect to law enforcement.51
There sporadically exist such provisions under UNCLOS. They give the designated States therights and also therefore the justification to take enforcement measures at sea.52
There are provisions to authorize the designated States to exercise enforcement jurisdiction.53
They are, for example, Article 2, which prescribes sovereignty of coastal States of territorial sea,
and Articles 25, which allows them to take measures against non-innocent passage. Regarding
exclusive economic zones (EEZ), Article 73 allows coastal States to take enforcement measuresin order to ensure the compliance of vessels with fishery regulations.54 Looking at the high seas,
Article 94 defines the flag State jurisdiction and Article 109 confers enforcement jurisdiction
regarding unauthorized broadcasting on the designated States. In a more general manner, Article
110 forms an exception for the flag State principle on the high seas and it distributes enforcement
jurisdiction to the designated States with respect to the limited number of acts on the high seas.
Article 111, which deals with hot pursuit, also sets forth an exception for the flag State principle
on the high seas. In the field of marine environmental protection, too, Part XII of UNCLOS has
Section 6, which deals with enforcement measures for that purpose.
Among these provisions, some of them have acquired the status of customary internationallaw rules.
In the end, it can be safely said that these provisions of UNCLOS and customary internationallaw rules provide for the rights and therefore also the justification to take law enforcement
50

Kwast, op. cit., supra n. 2, 53–57; Morikawa, op. cit., supra n. 2 (Kaijo Hoshikko....), 655–659.

51

It is not to mention that many provisions under UNCLOS regarding law enforcement at sea succeeded
those of the four 1958 Geneva Conventions on the Law of the Sea, and they may have the statusof customar y international law. Therefore, the significance of the examination of the provisions of
UNCLOS does not confine itself to the examination of solely the provisions of UNCLOS. It may havefurther general implications.

52

Kwast also takes the same position as that of this paper in examining the rights and jurisdiction of States
under the law of the sea. Kwast, op. cit., supra n. 2, 53–55.

53

As for a general review of UNCLOS in relation to its authorizations of law enforcement measures, see,R. McLaughlin, “Authorizations for Maritime Law Enforcement Operations,” International Review of the
Red Cross, 98 (2) (2016), 465–490.

54

While the coastal State of the EEZ has sovereign rights and jurisdiction on the matters other than theconservation and management of fishery resources, except for the jurisdiction under Article 73 and thejurisdiction on the marine environmental protection (the Part XII of UNCLOS), explicit provisions for
enforcement jurisdiction do not exist in UNCLOS.

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measures at sea on various occasions.55 At the same time, according to the presupposition set
by this paper, it should be emphasized that the rights and the justification defining the acts or
measures, as their reflection, give the most important indication as to the definition or natureof the use of weapons in conjunction with the acts or measures. Such evaluation with respect tothe nature of both the acts or measures, on the one hand, and the use of weapons accompanying
them, on the other hand, ultimately depends on the interpretation of the provisions of UNCLOS
and the relevant international law rules.56
As presupposed above, the nature of the acts or measures as law enforcement, in principle,57
decides the nature of the use of weapons accompanying the acts or measures as the use of arms
in conjunction with law enforcement measures. Even with the confirmation of this point, still thepossibility is not totally denied, under certain conditions, that the use of arms would become theuse of force which is expected in the context of “military acts or measures” depending on theconsideration of factors inherent to the case concerned.58
It is totally natural to permit the designated States that are given enforcement jurisdiction
to take forcible measures in order to make the enforcement measures effective. In this regard,
the hot pursuit regime59 itself finds its justification in the effective realization of the enforcement
measures taken by coastal States of the territorial sea, on the one hand, and by the coastal Statesof the EEZs or continental shelf under certain conditions, on the other hand.
In other words, such use of weapons as that accompanying law enforcement measures taken
at sea is allowed by international law. It is not because it does not fall within the purview of Article
2, Paragraph 4, but because such use of weapons is realized in conjunction with law enforcementthat is defined by the relevant international law rules. It has its own nature and definition,
separate from the permissible use of “force” under Article 2, Paragraph 4 of the UN Charter, or
under customary international law, which reflects the prohibition of the use of force.60
Taking this basic stance, the next question to be considered is whether solely the relevantinternational law that deals with law enforcement may decide the nature of the use of weapons
as the use of arms accompanying law enforcement measures taken at sea, even if it sets forth theprincipal indication for the decision. There might be other elements or factors to be considered55

After careful consideration of the possible categorization of law enforcement and similar measures thatare indicated by several authorities, Morikawa, bearing in mind the enforcement jurisdiction of States
under the law of the sea, concluded that for the purpose of the examination of the use of weapons, awide understanding of law enforcement is appropriate. Morikawa, op. cit., supra n. 2 (Kaijo Hoshikko ),655–659.

56

This paper will not enter the issue of such interpretation. It suffices here to confirm that the legal workof the interpretation of UNCLOS and the relevant international law rules may identify law enforcement
measures.

57

As for the significance of this qualification “in principle,” see, supra n. 9.

58This paper does not take the position that the physical scale of violence critically decides the natureof a use of weapons: whether it is the use of force in military acts or measures, or the use of arms
accompanying law enforcement measures. Nonetheless, the possibility is not denied that various factors
need to be considered in order to ultimately decide the nature of a use of weapons. The point is, themost important and reliable indication is given by the relevant international law that deals with therights and therefore also the justification to take law enforcement measures at sea. This paper takes thisposition.

59

Article 111, Paragraph 1 and Paragraph 2 provide for the rights of hot pursuit of the coastal States of theterritorial sea, and the EEZs and continental shelf.

60

In other words, this is the way to determine, in a positive manner, the nature of the use of weapons
accompanying the enforcement measures taken at sea by referring to the relevant international law. It isdifferent from the determination, in a negative manner, of such use of weapons as that not prohibited byinternational law.

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in finally making that distinction in each case.61 The consideration of this question will follow thenext examination of the relevant jurisprudence.

(3) The jurisprudence and the relevant international law in respect to the
distinction between the use of force and the use of arms
The jurisprudence is not sufficiently helpful to find the standard according to which the use offorce and the use of arms are distinguished from each other.62 The reason is as follows.
In the M/V Saiga Case (No. 2), the Fisheries Jurisdiction Case, and the Guyana and Suriname
Case, the courts and the tribunal really made the distinction between the use of force under
Article 2, Paragraph 4 of the UN Charter, and the use of arms accompanying law enforcement
measures.63
However, unfortunately, they do not argue the two issues with a definite distinction between
them. Namely, one is the issue of the nature and/or definition of the measures64 that were taken
against foreign vessels in the incidents before the courts and the tribunal, and the other is theissue of the nature and/or definition of the use of weapons in conjunction with the measures.
The courts and the tribunal do not make clear their stance as to the relationship between
the two issues.65 Therefore, even if the jurisprudence makes a distinction between the use offorce prohibited by Article 2, Paragraph 4 of the UN Charter and the use of weapons against
foreign vessels in the cases concerned, it is not crystal clear whether the distinction is madeas that between the militar y measures under the provisions of the UN Charter, and the law
enforcement measures under, for instance, the provisions of UNCLOS, or as that between theuse of force prohibited by the provision of the UN Charter, and the use of arms accompanying
the law enforcement measures under the provisions of UNCLOS.66 Considering this, from thejurisprudence, it is not possible to find a precise indication regarding the way the use of force andthe use of arms are distinguished from each other.67
In relation to the standpoint of this paper, rather, the following two points in the jurisprudence
should be recognized. They firmly support the standpoint of this paper.
First, the fact that the jurisprudence does not clearly demonstrate a distinction between thenature of the acts or measures, and the nature of the use of weapons, means and so supports
the presupposition of this paper that, in principle, the nature of the acts or measures decides thenature of the use of weapons in conjunction with the acts or measures.
Second, the jurisprudence defines the use of weapons in the incidents before the courts
61

As explained later, the weight or the significance of these international law rules would change under
the current wide understanding of maritime security.

62

Regarding the distinction made by the ICJ in the Nicaragua Case between an armed attack and lessgrave use of force, and its significance in the Guyana and Suriname Case, see, Kwast, op. cit., supra n. 2,
60–61.

63

For the relevant parts of the decisions and the award, see, supra n. 35–40.

64

From a wider perspective, in place of “acts or measures” they are called “military situations,” and “lawenforcement situations.”

65

In this paper, it is presupposed that the nature of the acts or measures, in principle, decides the natureof the use of force, or the use of arms, in conjunction with the acts or measures.

66

As is pointed out next, a possible understanding of such a position taken by the jurisprudence is that it
regards the two issues as the same, namely, the issue of the nature of the acts or measures, and that of
the nature of the use of weapons.

67

In other words, while the jurisprudence has made the distinction between the use of force under Article
2, Paragraph 4 of the UN Charter, and the use of arms accompanying law enforcement measures, it is
not perfectly clear whether the distinction is with respect to (the nature of) the acts or measures, orwith respect to (the nature of) the use of force or arms.

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and tribunal as the use of arms accompanying the law enforcement measures by consulting therelevant international law68 and the domestic laws.69 It does not confine itself to the explanationthat the use of armed force in the incidents before the courts and tribunal does not fall under thepurview of Article 2, Paragraph 4 of the UN Charter. The importance of which is emphasized
above,70 departing from a sort of negative argument that the provision of the UN Charter does
not prohibit certain use of weapons, setting a new positive argument is indispensable for gaining
the nature and/or definition of the acts or measures, and that of the use of weapons in connection
with the acts or measures.71
Then, given by the jurisprudence the distinction between the militar y acts and the law
enforcement measures, and between the use of force in military measures and the use of arms inlaw enforcement measures, what are the standards that decide the legality of the use of arms inconjunction with law enforcement measures to be taken at sea?

(4) Standards that decide the legality of the use of arms accompanying law
enforcement measures taken at sea
The relevant parts of the judgments and award read:
The M/V Saiga Case[T]hat the use of force must be avoided as far as possible and, where force is unavoidable, it
must not go beyond what is reasonable and necessary in the circumstances.72
The Fisheries Jurisdiction Case“in the manner and to the extent prescribed by the regulations, use force that is intended or
is likely to disable a foreign fishing vessel,” if the officer “believes on reasonable grounds thatthe force is necessary for the purpose of arresting.”73
The Guyana and Suriname Casesuch force is unavoidable, reasonable and necessary.74
Among treaties, the 1995 Fish Stocks Agreement reads:
avoid the use of force except when and to the degree necessary to ensure the safety of
the inspectors and where the inspectors are obstructed in the execution of their duties. The
degree of force used shall not exceed that reasonably required in the circumstances.75
The 2005 SUA Protocol provides for:Any use of force pursuant to this article shall not exceed the minimum degree of force which
is necessary and reasonable in the circumstances.76
68

In the M/V Saiga Case (No. 2) the ITLOS mentioned “applicable rule of international law” and“considerations of humanity (para. 155),” op. cit., supra n. 16. In the Guyana and Suriname Case, thetribunal referred to “(in) international law (force may be used in law enforcement activities) (para.
445),” op. cit., supra n. 39.

69

In the Fisheries Jurisdiction Case the ICJ referred to Canadian domestic laws (paras. 81–82), op. cit.,
supra n. 37.

70

Section 1 (1) and Section 3 (1).

71

A similar position is demonstrated by Morikawa, op. cit., supra n. 2 (Kaijo Hoshikko ), 661. As anotherway of approaching the issue of the use of arms accompanying law enforcement, under the frameworkof UN Security Council resolutions, Zou categorizes and examines law enforcement measures to betaken at sea and the legality of the use of arms accompanying them. Zou, op. cit., supra n. 34.

72

Op. cit., supra n. 16, para. 155.

73

Op. cit., supra n. 37, para. 81.

74

Op. cit., supra n. 39, para. 445.

75

Article 22, Paragraph 1 (f).

76

Article 8 bis, (9).

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From the jurisprudence and the treaties, as the standards that decide the legality of the useof arms, the following key concepts can be confirmed. They are: reasonability, necessity, andproportionality.77
These factors, particularly necessity and proportionality, are also the factors to be considered
in order to decide the legality of the exercise of the right of self-defense. Here, it is not necessary
to go into the detail of the standards according to which the use of arms or the exercise of theright of self-defense should be realized.
It is frequently pointed out that in cases of the right of self-defense, the extermination or
annihilation of hostile entities is necessary and allowed. It is also assessed as being proportionate.
In comparison, in cases of the use of arms accompanying law enforcement measures, it is not
usual to exterminate or annihilate the target of the law enforcement measures concerned. Thisis because, most importantly, the purpose of law enforcement is to ensure the observation of thelaw, and not to exterminate the target. This is also because the scale of violence, the legal interest
to be infringed upon by the wrongful violence, and the involvement of subjects78 are usuallydifferent between the exercise of the right of self-defense, and the use of arms in conjunction
with law enforcement measures. In an extreme case, the use of arms by law enforcement entities
reaching the largest scale so as to exterminate the target is not totally excluded.79 Such an
extreme use of arms has room to be permitted as being in accordance with the proportionality
principle.

(5) The legal consequences of the illegal use of ar ms accompanying law
enforcement measures
The distinction between the use of force prohibited by international law and the use of arms
accompanying law enforcement measures is also reflected in the legal consequences of the illegal
use of force, namely and mainly, the use of force that cannot be justified as an exercise of theright of self-defense, on the one hand, and the use of arms that is contrary to the standards thatare confirmed here, on the other hand.
In cases of the use of force that is not justified as an exercise of the right of self-defense, thelegal consequence is as follows. Such use of force will be reacted to by its target State with theuse of force. Such reaction has the possibility to be justified as self-defense or countermeasures.
In addition, the issue of State responsibility also arises, in cases of the use of force that is notjustified as an exercise of the right of self-defense.
In comparison, in cases of the use of arms accompanying law enforcement measures thatis contrary to standards such as reasonability, necessity, and proportionality, the issue of State
responsibility is raised. There is no room for the issue of the use of force in military acts or an
exercise of the right of self-defense to be involved.80
This illegal situation is totally the same as the situation, for instance, when a State takes
law enforcement measures wrongfully at sea; it needs to take State responsibility for the illegal
77

As for other guidelines for the use of arms in conjunction with law enforcement, see, the Code of
Conduct for Law Enforcement Officials, UN Doc, A/34/169, Article 3, and the UN Basic Principles on
the Use of Force and Firearms by Law Enforcement Officials, Principle 5. As for the examination ofthese provisions, see, Zou, op. cit., supra n. 34, 250–251.

78

These are among the factors to be considered in order to finally decide the nature of a use of weapons,
whether it is the use of force prohibited by international law, or the use of arms accompanying law
enforcement measures.

79

In cases of law enforcement measures, targets to be annihilated should be strictly limited to thewrongdoers and wrongdoing vessels. Dif ferent from this, in cases of self-defense, according toproportionality, potential combatants could be exterminated.

80

Ruys, op. cit., supra n. 2, 202.

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measure.81 There are cases in which a State takes law enforcement measures against a foreign
vessel at sea without legal justification that is given by UNCLOS. In addition, while a coastal Stateof a territorial sea has the right to protective measures against non-innocent passage of a foreign
vessel, if based upon wrongful judgment on non-innocence it intercepts a foreign vessel actuallyconducting innocent passage, the coastal State should take State responsibility toward the flag
State of the foreign vessel.
In sum, the critical point is as follows. If a State uses arms in conjunction with law enforcement
measures, and if it is a violation of the standards, it is not categorized by the violation as such,as the use of force that is prohibited by international law.82 Here, the difference between the useof force and the use of arms according to the terminology of this paper is kept by the difference
between the legal consequences of the use of force prohibited by international law, on the one
hand, and those of the use of arms contrary to the standards, on the other hand.
Thus far, examinations have been conducted with the presupposition that the nature of theacts or measures, in principle, decides the nature of the use of weapons in connection with theacts or measures. The remaining task is to consider whether flexible consideration of several
factors is needed to finally determine the nature of the use of weapons on a case-by-case basis.

(6) A case-by-case approach to determine the nature of the use of weapons
It is argued that various factors are to be considered in order to finally decide the nature of theuse of weapons.83 These factors include the scale of violence84 on both the wrongdoer side and thesubjects of the use of weapons,85 the nature of the wrongdoer involved, the political intents of thewrongdoers, and the legal interests to be infringed upon by the violence of the wrongdoers.86
Considering the various cases in which the use of arms accompanying law enforcement
measures is realized, the significance of such a flexible approach with the examination ofvarious factors is not denied. Therefore, the presupposition set by this paper initially needs thequalification “in principle.” The nature of the acts or measures, “in principle,” determines thenature of the use of force or arms in connection with the acts or measures. By considering thefactors, there might be cases in which there is a difference between the nature of the acts or
measures and the nature of weapons used in those acts or measures, namely the use of force or
the use of arms.
81

There are the relevant provisions under UNCLOS, such as Article 110, paragraph 3, Article 111,
Paragraph 8, Article 231, and, as a general provision, there is Article 304.

82

The State that uses arms in conjunction with law enforcement measures needs to prove that the use ofarms has that nature. As seen later, the burden of proof would be heavier with the impact caused by thecurrent wide understanding of maritime security.

83

Ruys, op. cit., supra n. 2, 207.

84

In the arguments regarding the meaning of “force” under Article 2, Paragraph 4 of the UN Charter, oneof main factors is the scale of violence. Ruys, op. cit., supra n. 2, 167, and 191; Corten, op. cit., supra n. 2,
55 and 85.

85

UNCLOS itself provides that military vessels may take law enforcement measures. These include theprovisions of Article 110 and Article 111, Paragraph 5. The lack of law enforcement vessels in many
countries substantiates the significance of these provisions. Kwast, op. cit., supra n. 2, 63–64.

86

If the subjects involved in the incident concerned are States, and if the legal interest to be infringed
upon is a Stateʼs interest, such as territorial integrity, the facts do not necessarily decide the nature of
the use of weapons as the use of force. Chinese public vessels that were recently incorporated into themilitary sector frequently enter the Japanese territorial sea surrounding the Senkaku Islands. Japanʼssovereignty or territorial sovereignty could be violated. Nonetheless, the Japan Coast Guard has copedwith such situations by taking law enforcement measures. The fact that the measures are taken by theJapan Coast Guard takes on critical importance, considering that law enforcement measures rather thanmilitary measures have been taken so as to avoid unnecessary escalation of the situations concerned.

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The Use of Force in Maritime Security and the Use of Arms in Law Enforcement under the Current Wide Understanding ofMaritime Security

The critical point to be emphasized is that this case-by-case evaluation is conductedunder the legal frameworks that provide the nature of both military acts or measures and law
enforcement measures, on the one hand, and the use of force in military acts or the use of armsin law enforcement measures, on the other hand. Therefore, the case-by-case approach is not a
simple one to be conducted without any referential legal frameworks. Under the relevant legal
frameworks, with the interpretation of the relevant provisions, the case-by-case approach, as apractical one, leads to a possible distinction between the use of force and the use of arms withallowance of flexible consideration of individual and concrete situations of the incident concerned.
This point would be changed by the impact that is caused by the recent wide understanding ofmaritime security.

4. The Recent Wide Understanding of Maritime Security(1) The recent wide understanding of maritime security

There is a firm tendency to understand maritime security in a wide way.87 According to this,“maritime security is understood by the measures combatting military threat, terrorism, weapons
proliferation, transnational crime, piracy, environmental/resource destruction, and illegal
seaborne migration.”88 Another authority explains the reason for the recent wide understandingof maritime security.89 According to this, not only sovereign Statesʼ exclusive interests but also
the inclusive interests (common interests) of the world define a wide array of threats suchthat maritime security is understood widely as that combatting the variety of threats.90 The UN
Secretary-General demonstrates a similar position by counting seven threats to maritime security:
piracy, terrorist acts, illicit trafficking of narcotic drugs and psychotropic substances, smuggling
and trafficking of persons by sea, IUU fishing, and damage to the marine environment.91
As a State practice, Japan recently, on the 15th of May 2018, adopted the Third Basic Plan on
Ocean Policy92 that provides for a wide range of policies and measures as those for maritime
security.93 It contains two categories of policies for maritime security: policies for maritime
security, and policies forming the foundations for contributing to maritime security.94 The former
consists of measures such as those for maintaining the peace and order of the oceans by law
enforcement, realization of the safety of marine traffic, and coping with ocean-oriented natural
disasters.95 The latter is divided into two types of measures: measures forming the basis of87

A typical example is Guilfoyle, op. cit., supra n. 1.

88

Ibid., 299.

89

Klein, op. cit., supra n. 1, 1–10.

90

Ibid., 8.

91

UNGA, “Oceans and the Law of the Sea: Report of the Secretary-General” UN Doc A/63/63, cited by
Klein, ibid., 10.

92

As a Cabinet Decision, the Japanese government enacted the Third Basic Plan on Ocean Policy (BasicPlan) on 15 May 2018. A provisional translation is available at https://www8.cao.go.jp/ocean/english/
plan/pdf/plan03_e.pdf, visited 10 April, 2019.

93This is referred to as “comprehensive maritime security.”94

In comparison with Kleinʼs position, the policies for combatting illegal acts at sea, such as IUU fishing,terrorism, environmental destruction and seaborne natural disaster, are not necessarily based upon“common” interests of international society. Sovereign States recognize these illegal acts as maritime
threats to their “individual” (or according to Kleinʼs terminology, “exclusive”) interests.

95

Basic Plan, 24–26.

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maritime security,96 and measures that support maritime security in a complementary manner.97
This wide understanding of maritime security includes not only the typical issue of the useof force against military threats, but also the issue of law enforcement to combat international
wrongful acts committed at sea, such as piracy, terrorism, illegal migrants, and IUU fishing,etc.98 It strongly urges the reconsideration of two demarcations: first, the demarcation between
the natures of the acts or measures in which weapons are used is required to be reconsidered.
There are military acts or measures, and law enforcement measures. Second, reconsideration is
also needed regarding the demarcation between the prohibited use of force and the use of arms
accompanying law enforcement measures.99
In the Introduction, the presupposition was set that the nature of the acts or measures,in principle, decides the nature of the use of weapons in acts or measures.100 Therefore, it isappropriate to examine the impact of the wide understanding of maritime security from theviewpoint of the nature of the acts or measures, namely, militar y acts and law enforcement
measures.

(2) The arguments on so-called “grey zones”

The concept of grey zones has not acquired a precise definition among authorities.101 It may
designate various situations.102 However, it can be safely said that this concept has as its main
purpose the clarification of the existence of a grey zone103 in-between militar y acts and law
enforcement measures. As this paper deals with the distinction between the use of force
prohibited by international law and the use of arms accompanying law enforcement measures,
it is regarded as a term to describe the grey zone between military acts and law enforcement

96

Ibid., 26–27. Among them, weight is placed on the following two policies: the establishment of thestructure for maritime domain awareness (MDA) and the preservation and management of remoteislands that form national borders.

97

These are measures for economic security and protection of the marine environment. Basic Plan, 28.

98

According to the International Maritime Organization, with the distinction between maritime safety andmaritime security, the latter is related to protection against unlawful and deliberate acts, cited by Klein,
op. cit., supra n. 1, 8, n. 23.

99

Principally, self-defense sets forth the legality of the use of force to combat the violation of international
law that prohibits the use of force, such as aggression and violent invasion of foreign territories. The
legality of the use of arms in conjunction with law enforcement measures is evaluated in accordancewith the standards that were confirmed above.

100

Regarding the room for a case-by-case approach, see, Section 3 (6).

101

Regarding the concept of grey zones in Japanese acts, see, Morikawa, op. cit., supra n. 2 (Gurei ).

102

In the Cabinet Decision of 1 July 2014, Japan explained “grey zones.” According to this, the grey zones
are: first, a situation where an infringement from the outside that does not amount to an armed attack
occurs in areas surrounding remote islands, etc., and police forces are not present nearby or police
agencies cannot respond immediately (including situations in which police agencies cannot respondbecause of the weapons possessed by the armed groups, etc.); second, a situation where an attack occurs
against the units of the United States armed forces currently engaged in activities which contribute to
the defense of Japan and such a situation escalates into an armed attack depending on its circumstances.
A provisional translation is available at http://japan.kantei.go.jp/96-abe/decisions/2014/_icsFiles/
afieldfile/2014/07/03/anpohosei_eng.pdf, visited 10 April, 2019. As for an examination of Japanʼsunderstanding of “grey zones,” see, Morikawa, op. cit., supra n. 2 (Gurei ), 29–30.

103

In discussing grey zones, in some cases, a wider concept of “situation” may be used in place of acts or
measures. Concerning the term situations, see, Introduction.

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The Use of Force in Maritime Security and the Use of Arms in Law Enforcement under the Current Wide Understanding ofMaritime Security

measures, and so the use of force and the use of arms, as well.104
Without entering the details of the arguments on “grey zones,” here, it suffices to point out
only one thing. The presupposition set by this paper is that the nature of the acts or measures, inprinciple, decides the nature of the use of weapons in the acts or measures. Accordingly, the useof weapons in military measures in many cases has the nature of the use of force, irrespectiveof its possible legality as an exercise of the right of self-defense. The use of weapons in law
enforcement measures in many cases has the nature of arms accompanying law enforcement
measures.
If there is a zone that cannot be defined either as military acts or law enforcement measures,and it is a type of a grey zone, there would also be a grey zone in-between the use of force inmilitary acts and the use of arms in law enforcement measures. Furthermore, the concept ofa grey zone might make the presupposition itself even insignificant. The nature of the acts or
measures would not decide the nature of the use of weapons in the acts or measures, even with
the qualification of “in principle.” There would be the possibility of the use of weapons in military
measures, which is different from the use of force, and the possibility of the use of weapons in law
enforcement measures which is prohibited by international law.105
Bearing this in mind, next, the possible impact will be considered by the wide understandingof maritime security upon the logic according to which the distinction between the use of force
prohibited by international law, and the use of arms accompanying law enforcement measures.

(3) The logic to make the distinction between the use of force prohibited byinternational law and the use of arms accompanying law enforcement measures
The logic to make the distinction resides in applying the legal frameworks that define and deal
with militar y acts and law enforcement, on the one hand, and the use of force or the use ofarms on the other hand. In order to confirm the existence of the legal frameworks, the relevantinternational law rules need to be referred to. They are, for instance, Article 2, Paragraph 4 of the
UN Charter, and the relevant provisions of UNCLOS.
It is true that if a flexible and case-by-case analysis has room to be applied, it is necessary toconsider various factors in individual and concrete situations in order to make the final distinction
between the use of force and the use of arms.106 These factors include the scale of violence on
both sides of wrongdoers and entities using weapons, the nature of the subjects involved in thesituation, the legal interests to be infringed upon by the violence of wrongdoers, and the politicalintents of wrongdoers. The critical point to be precisely reaffirmed is that such a case-by-caseapproach is applied under or within the legal frameworks that are confirmed here. Therefore,
the case-by-case approach does not mean a simple consideration of various factors without any
reference to legal frameworks that definitely set certain and substantial guidelines and limits tothe consideration.
In a sharp contrast to this, if the wide understanding of maritime security made the distinction
between military acts and law enforcement measures meaningless, the result is as follows. It
would render the legal frameworks applied for the distinction between the two acts or measuresand two kinds of the use of weapons in conjunction with each act or measure less significant oreven insignificant. Therefore, the distinction between the use of force prohibited by international
104

As for the similar position, see, Y. Nishimura, “Kaiyo Anzenhosho to Kokusaiho [Maritime Security
and International Law],” Mamoru Umi, Tsunagu Umi, Megumu Umi―Kaiyo Anzenhosho no Shokadai
to Nihon no Taiou [Protecting Oceans, Connecting Oceans, and Producing Oceans―Maritime Security
Agendas and Japanʼs Efforts], (Nihon Kokusai Mondai Kenkyusho, 2012), 91–104.

105

The same outcome may take place by adopting the case-by-case approach explained above.

106

According to the terminology of this paper, the use of force means that which is prohibited byinternational law, and the use of arms means that which accompanies law enforcement measures.

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law, and the use of arms accompanying law enforcement measures would be made by applying “asimple case-by-case approach.” Without the legal frameworks to be referred to, and without any
guidelines and limits to the consideration of various factors in individual and concrete situations,based upon the consideration of various factors, the distinction between the use of force andthe use of arms would be argued for and justified. It would necessarily be a very difficult task toaccomplish.

5. Concluding Remarks
The use of arms in conjunction with law enforcement measures is necessar y to make themeasures effective. At the same time, the legal regulation of such use of arms inevitably becomesa decisive agenda for international law.
The wide understanding of maritime security includes in it law enforcement such that thedistinction between the military acts and law enforcement measures will be flexible. Under suchcircumstances, rather than military acts, law enforcement measures at sea will be undoubtedly
expected to fulfil more functions than ever in order to avoid the escalation of the situations
concerned.107 Thus, the critical point is not to allow such use of arms to seriously undermine thesolidly established principle of the prohibition of the use of force.
For that purpose, this paper attempted to set forth the basis for the inherent argument for
the legal regulation of the use of arms in conjunction with law enforcement measures. With therecognition of the two issues, namely, the issue of the nature of the acts or measures, and that of
the nature of use of force or arms in the acts or measures, it carefully evaluated the developmentof the relevant international law and the jurisprudence. It also considered the impact by the wide
understanding of maritime security upon the framework of the argument for the legal regulationof the use of arms accompanying law enforcement measures.
On the one hand, in order to justify the use of arms accompanying law enforcement measures,
sovereign States must convincingly prove that they have taken law enforcement measures withthe use of arms for making them effective. It will be a heavy burden on them. On the other hand,international law is still strongly required to further develop sufficient regulation on the use ofarms in conjunction with law enforcement measures.108

107

Basic Plan, 25; Kwast, op. cit., supra n. 2, 52.

108

As one development in this direction, Morikawa attempts to identify the weight of various factors to beconsidered in determining the nature of the use of armed force depending on the types of incidents.
Morikawa, op. cit., supra n. 2 (Kaijo Hoshikko ), 664–672.

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Relations between Japan and India in the Indo-Pacific Age —Transcending the Quad Framework—

Relations between Japan and India in the Indo-Pacific Age―Transcending the Quad Framework―*
Takenori Horimoto**
Abstract
Japanese people apparently share an affinity with India for several reasons, one being its
history as the cradle of Buddhism. Based on this affinity, Japan-India relations grew steadilycloser and stronger through the Meiji era and thereafter. This trend grew even more
pronounced in the post–Cold War period. If the 1990s marked a preparatory phase, thenthe 2000s were a transitional phase while the 2010s have brought a huge leap forward. Oneof the more prominent trends through the 2010s was that bilateral relations evolved from apurely bilateral relationship and assumed importance within a broader, multilateral context.
The combination of the relative decline of US power and the rapid ascension of China andIndia is among the factors that contributed to such transformation. The emergence of the
Indo-Pacific as a cross-regional concept may be cited as yet another factor and one thatinterlinks with these trends.
In this paper, I present a general review of Japan-India relations in recent years together
with an analysis and study of trends of countries concerned on the concept of the IndoPacific, Indiaʼs striving for major-power status, and the quadrilateral framework between
Japan, the US, India, and Australia (“the Quad”). To summarize my conclusions here,
although the future direction of Japan-India ties will undoubtedly develop through their
responses to China, it is also necessar y to creatively build a for ward-looking regionalframework while keeping future developments in mind beyond the Quad.

IntroductionJapanese people apparently share an affinity with India for several reasons, one being its
history as the cradle of Buddhism. In October 2017, the Kabukiza Theater in Tokyo gave a
performance of the War Chronicles of Mahabharata, one of the worldʼs three greatest epics
and a tale that provides a glimpse into views on human nature and the universe that differ
from those in the West. That could be why the theater tickets were sold out for consecutive days.
Based on this affinity, Japan-India relations grew steadily closer and stronger through the
Meiji era and thereafter.1 This trend grew even more pronounced in the post–Cold War period. If
the 1990s marked an preparatory phase, then the 2000s were a transitional phase while the 2010s
have brought a huge leap forward. One of the more prominent trends through the 2010s was thatbilateral relations evolved from a purely bilateral relationship and assumed importance within abroader, multilateral context. The combination of the relative decline of US power and the rapid* This essay was originally published on Kokusai Mondai [International Affairs], No.669, March 2018.
** Takenori Horimoto (Ph.D.) is currently Visiting Professor of Gifu Womenʼs University and Senior
Fellow of Center for Contemporar y Indian Studies of JIA after ser ving as Professor of Shobi Univ
Graduate School, Project Professor of Kyoto University Graduate School, Visiting Professor of Open
University of Japan and Takushoku University Graduate School.

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ascension of China and India is among the factors that contributed to such transformation. The
emergence of the Indo-Pacific as a cross-regional concept may be cited as yet another factor and
one that interlinks with these trends.
In this paper, I present a general review of Japan-India relations in recent years2 together withan analysis and study of trends of countries concerned on the concept of the Indo-Pacific, Indiaʼs
striving for major-power status, and the quadrilateral framework between Japan, the US, India,
and Australia (“the Quad”). To summarize my conclusions here, although the future direction ofJapan-India ties will undoubtedly develop through their responses to China, it is also necessary
to creatively build a forward-looking regional framework while keeping future developments inmind beyond the Quad.

1. The transitional phase in Japan-India relations: Factors fueling closer ties
since the 2000s
Although Japan-India relations had steadily improved following the Cold War, they suffered anabrupt setback when India conducted a series of nuclear tests in 1998.3 As a country that had
centered its foreign policy on the abolition of nuclear weapons, Japan was unable to show any
tolerance for these new nuclear tests. This period may be described as a preparator y phaseduring which the two countries sought to re-establish their bilateral relationship.

1.1 The advancement of economic ties between Japan and India
It was the 2000s and thereafter when the two countries clearly improved the bilateral relations.
From a birds-eye perspective, their bilateral economic ties were the first driving force of thatdevelopment. The Indian economy demonstrated steady gains backed by liberalization policies
implemented since 1991, and eventually achieved average annual growth of 7.4 percent4 throughthe first decade of the 21st century. In 1993, India unveiled its Look East policy5 and on that basis
began working to cultivate stronger economic ties with the countries of East and Southeast Asia.
By contrast, Japan in the early 2000s found itself confronted by the necessity of averting
certain “China risks.” More specifically, by 2004 the scale of bilateral trade between Japan and
China had reached 22 trillion yen, surpassing the 20 trillion yen in trade between Japan and theUnited States, thus making China Japanʼs largest trading partner. However, around this same
period, a series of large-scale anti-Japanese demonstrations and riots broke out across China.
As one outcome, India began to appear ideal as a new market for Japan. In 2003, India displaced
China as the largest recipient of yen loans. Official development assistance (ODA) functioned as a6“connector” to strengthened Japan-India ties.

1.2 Improved ties between India and the US
The second factor behind better Japan-India relations was the improvement of India-US relations.
Over approximately seven decades following the Independence in 1947, Indiaʼs foreign policy had
been characterized by a history of trial-and-error in how to position the US in its foreign policy
and how to cultivate ties with it on that basis.7 In fact, it would not be an overstatement to describe
Indiaʼs foreign policy through that period in terms of the history of its relationship with the US.
Although India-US ties began improving in the 1990s, they suffered a setback following Indiaʼsnuclear tests in 1998. Then US President Bill Clintonʼs visit to India in March 2000, the first-evervisit by a US President since Carterʼs 22 years earlier, impetus for improved relations emerged
and continued to grow after the George W. Bush administration came to power in 2001.
As a country that had made the Japan-US alliance the backbone of its own foreign policy,
Japan viewed the advancement of Indiaʼs relationship with the US as an opportunity to improve its
relations with India. During the Cold War era, India pursued a foreign policy stance centered on
nonalignment together with the continuation of its alliance with the Soviet Union, and thus had
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Relations between Japan and India in the Indo-Pacific Age —Transcending the Quad Framework—

little if any latitude for improved relations with the US. At that time, Delhiʼs limited relations with
Washington exerted a negative impact on its relations with Tokyo. During a stay in New Delhi in
November 2017, I was told by an Indian expert of international politics that “following the Second
World War, Japanese foreign policy has been interlocked with the Japan-US alliance; during theCold War, it was anti-communist, but since the end of the Cold War, it has been anti-China.” That
perspective may carry an element of truth. In any case, we cannot deny the fact that Japan-India
ties have advanced in tandem with the improvement in India-US relations.
Up until the 1990s, Indiaʼs foreign policy frequently reflected a pro-Soviet, and later, proRussian, stance, but under went changes that eventually gave it an increasingly pro-US
complexion over time. For example, Rajesh Rajagopalan professor of Jawaharlal Nehre University
in international politics known for past skepticism regarding closer India-US ties, asserts that
establishing stronger relations with the US is currently the only effective strategic option
available to India that will help it protect its interests and ensure its security.8

2. China’s expansion into the Indo-Pacific and Japan-India relations
2.1 China’s expansion into the Indo-Pacific
China counts as a third factor that has fostered closer ties between Japan and India. To put this
into better perspective, China since the 2000s has developed into a major economic and military
power and pursued an assertive foreign policy. These trends have had the effect of encouraging
closer Japan-India ties, which in turn have been reinforced by the Indo-Pacific as a geopoliticalarea.
To elaborate, the Asia-Pacific or Asia as a whole were for an a pretty long period theprincipal regions of interest to Japanese foreign policy.9 However, in the mid-2000s China began
implementing an Indian Ocean sea lane strategy that others have labeled the “String of Pearls”
strategy.10 Further, in 2010 it surpassed Japan to become the worldʼs second-largest economy interms of gross domestic product (GDP) and pursued aggressive maritime military policies inthe East and South China Seas. Not only that, but beginning in 2013 it also began expanding its
Belt and Road Initiative (BRI). BRI comprises a series of port and harbor infrastructure projects
across the Indian Ocean rim including includes the China-Pakistan Economic Corridor (CPEC)
project.
Consequently, it was not possible for India to view China ʼs activities in the international
arena as someone elseʼs problem. Sushma Swaraj was the Minister of External Affairs for thegovernment of Prime Minister Narendra Modi assumed office in May 2014. At a conference ofheads of Indian diplomatic missions abroad that assembled in August that year, she called forthe implementation of measures in line with the Act East policy that would move India frommerely “looking” to “acting”. After the Modi government came into power, the Indo-Pacific foundincreasingly frequent use within in the Indian strategic community as a policy-based regional
concept; furthermore, this concept carries certain strategic implications.

2.2 A new phase in the strategic relationship between Japan and India
India demonstrated an awareness that resonates with the Indo-Pacific strategy crafted by Japanand began engaging in external actions on that basis. For that reason, it seems safe to conclude
that Japan and India are capable of pursuing joint actions involving the Indo-Pacific. In fact, since
the start of the 2000s, relations between the two countries have been accented by the launchof numerous regular meetings and the conclusion of various agreements. After Prime Minister
Junichiro Koizumi paid a state visit to India in 2005, the two countries began holding reciprocal
state visits by their prime ministers ever y two years. Additionally, in 2006 the Japan-India
relationship was elevated to a Global and Strategic Partnership. While these steps had several
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Takenori Horimoto

business and trade-related objectives, among them the implementation of a Comprehensive
Economic Partnership Agreement (CEPA) in 201111 and the holding of the first Cabinet-levelbusiness dialogue the following year, they were primarily concerned with strategic and securityoriented issues.12 To summarize, responding to an ascendant China was their main objective.
Sanjaya Baru, journalist, who served as media advisor to Prime Minister Manmohan Singh,
has noted that during the second term of India National Congress (INC) government led bySingh (2009 to 2014), its major diplomatic achievement was the closer bilateral relations between
India and Japan.13 Those accomplishments coincided with the birth of the second government of
Shinzo Abe (from 2012), who had championed treating the Indian and Pacific Oceans as a single
geopolitical unit.

3. The Indo-Pacific and India’s foreign policy foundations
3.1 India, a countr y striving for major-power status
The rise of the Bharatiya Janata Party (BJP) under the leadership of Prime Minister Modi also
factored significantly behind the increasingly close-knit ties between Japan and India. With
its victory in the 2014 general election, the BJP forced the INC out and assumed the reins ofgovernment. Backed by an aggressive Hindu nationalist platform, the BJP made the “Shreshtha
Bharat” initiative the centerpiece of its public commitment. In English, the Hindi “Shreshtha”
roughly translates as excellence (whereas “Bharat” refers to “India”).
In effect, the BJP demonstrated that it would seek to transform India into a major power. Thisobjective was further highlighted during a conference of Indian heads of diplomatic missions
abroad in New Delhi in February 2015, about nine months after the inauguration of the new Modi
government. Modi called on Indian ambassadors worldwide to help India move beyond purely
upholding the balance of power and instead assume a leading role in world affairs. The drive tofulfill this role was widely accepted as a natural extension of the BJPʼs “Shreshtha Bharat” election
pledge.
However, subsequent remarks made on July 20, 2015 by Foreign Secretary Subrahmanyam
Jaishankar had the effect of bringing Indiaʼs quest for major-power status squarely into the
public spotlight. In a lecture address delivered at the International Institute for Strategic Studies(IISS) in Singapore, the foreign secretary stated in a nutshell India aspires to become a leading
power rather than just a balancing power. A “leading power” can also be interpreted as meaning a“dominant state.” Here, it may be best understood simply as referring to a “major power” or “great
power.” Foreign Secretary Jaishankarʼs words essentially built on Modiʼs remarks and shed lighton their true meaning.
The declaration of intent to seek major-power status signified a crucial turning point in Indian
diplomacy. Although foreign policy under the INC government also revealed Indiaʼs interest in
becoming a leading power, it was distinguished by an emphasis on ensuring “strategic autonomy.”
The key points in Nonalignment 2.0,14 a semi-official policy paper released in 2012 by the Centre
for Policy Research, a private think tank, stood as a representative example of this stance.

3.2 The strategic framework for current Indian diplomacy
The strategic matrix shown in Table 1 images the structural compositions of Indian foreign policy
aiming to achieve major-power status, in other words, its foreign policy platform since the mid2010s. If summarized, the key point of Indian diplomacy as pursued by the Modi administration
can be categorized in three levels: global, regional (Indo-Pacific), and local (South Asia).
At the global level, India cooperates with China and Russia to foster the creation of amultipolar international order as the early stages of its quest for major-power status. As a parallel
endeavor, it also engages in efforts to boost its own national prosperity and military strength. At
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the regional (Indo-Pacific) level, however, it endeavors to develop a larger presence and evolve
into a maritime power and advance its Act East policies in the political and economic spheres
through cooperation with Japan, the United States, and Australia. Politics at the local level (SouthAsia) will comprise a subset of regional level and try to secure its hegemonistic position. At thisTable 1. India’s Strategic Foreign Policy Matrix
Goals ( 〇 ), Measures (–), Future Objectives (*)
Global level〇 Multipolarization of the international system (revisionist orientation),strengthening national wealth and military power– Cooperation with China and Russia (BRICS of Brazil, Russia, India, China
and South Africa summits, Shanghai Cooperation Organization [SCO],
Russia-India-China [RIC] foreign ministersʼ meetings)– Acquisition of permanent member status on UN Security Council– Military buildup (with sustained nuclear capability)– Development of diplomatic infrastructure (such as forming strategic
partnerships, etc.)* Achievement of major-power status with acquiring capacity for building
the international order

Regional level(Indo-Pacific,
etc.)[Asia & Western Pacific]〇 Strengthened presence and status as maritime power– Cooperation within Quadrilateral framework (Japan, US, Australia, India)(steps to counter China)– Advancement of political and economic now Act East policies,
cooperation with ASEAN economies, etc.
[Middle East, Indian Ocean]〇 Establishment of superiority– Actions to counter China-Pakistan axis including BRI– Promote regional cooperation in the Indian Ocean– Cooperation with countries in Middle East and East Africa (harnessing
Indian migrant resources and securing access to energy resources)* Major-power status in the Indo-Pacific(Additionally, since the mid-2010s India has been moving forward with its
International North-South Transport Corridor plan. The goal is to build amulti-modal cargo shipping network of sea-, rail-, and road-based corridors
connecting India [Mumbai], with Iran [Chabahar Port], Azerbaijan, andRussia.)Local level(South Asia)〇 Achivement of hegemonic status (with orientation toward statusquoism)– Steps to counter China-Pakistan axis
– Economic integration of South Asia
* Establishment of hegemony(Source) Takenori Horimoto, “Explaining Indiaʼs Foreign Policy: From Dream to Realization ofMajor Power,” International Relations of the Asia-Pacific, Vol. 17, Issue 3 (September2017)〈https://academic.oup.com/irap/article/doi/10.1093/irap/〉
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Takenori Horimotolevel, India is currently concentrating its efforts to counter China.15, 16 Due to this complexity ofdifferent sets of policies at different levels, from Japanʼs perspective, India appears to be pursuing
an inconsistent foreign policy that blends coordination with China and Russia on the one handwith cooperation with Japan and the US on the other.

4. The Quadrilateral framework (“the Quad”) in the Indo-Pacific
As long as the Indo-Pacific occupies a pivotal position in Chinese foreign policy, an atmosphereof serious apprehension will compel India to respond. That concern has been given symbolic
expression by the Indian Navy. A document on naval strategy (Ensuring Secure Seas: Indian
Maritime Security Strategy)17 released in 2015 was the first official publication to formally referto the Indo-Pacific, and as such, presented areas of interest broader in scope than a similar
document (Freedom to Use the Seas: India’s Maritime Strategy) released in 2007. That being thecase, one question is how India plans to engage with Japan, the US, and Australia. Although thatquestion was not covered in the 2015 document, Gurpreet S. Khurana, an expert on militaryaffairs in the Indo-Pacific has illustrated the issue in Fig. 1. In other words, to counter China in

Fig. 1. Maritime Areas of Interest to India

India

Western Paciﬁc

Area of primary interest

Indian Ocean

Area of secondary interest(Source) Gurpreet S. Khurana, “India ʼs Maritime Strategy: Context and Subtext, ” Maritime
Affairs: Journal of The National Maritime Foundation of India, April 19, 2017 (http://
www.tandfonline.com/doi/abs/10.1080/09733159.2017.1309747).
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the Indo-Pacific, military cooperation between Japan, the US, Australia, and India will be a must.
The Indo-Pacific is a pivotal part of Chinaʼs BRI and is also the most important oceanic region
to India (especially the Indian Ocean). As such, it is destined to become a theater for rivalry
between these two countries.18 India has achieved rapid gains in national power in recent years.
One example is its GDP, which in 2018 was ranked seventh-largest in the world, up from 12th in2006.19 Another example is defense spending, in which India was ranked fourth worldwide in 2018,
surpassing Japanʼs ninth-place ranking.20 Nonetheless, India still trails far behind China, which iscurrently ranked second in terms of both GDP and defense spending. Given these statistics, India
will face the necessity of joining hands with other countries. The quadrilateral framework (“theQuad”) and closer ties with Japan will be the principal countermeasures to that end.
This will not be the first time India has sought multilateral cooperation. It has continued topursue cooperation and diplomacy with other countries since gaining its independence in 1947. Asa country, India is usually associated with the nonaligned movement. While that impression is not
off the mark, it is only half the truth. The other half is that India has also pursued alliances andpartnerships with other countries. In effect, up through the 1960s, Indian diplomacy was shapedby a policy of nonalignment and oriented toward cooperation with other nonaligned countries.
Through the next two decades the 1970s and 1980s India aligned itself with the Soviet bloc.

4.1 The Quad in the mid-2000s

Moving from the preparatory phase in its foreign policy through the 1990s,21 India in the early
2000s once again turned to partnerships and diplomacy in response to the aggressive foreign
policy of a rapidly ascendant China. As one consequence, it was compelled to participate in the
Quad. From a different vantage point, at least in terms of countering Chinese policies throughthe 2000s and thereafter, Japan, the US, Australia, and India applied a mixture of engagement andhedging policies, albeit marked by varying degrees of intensity. The Quad framework itself was aclassic hedging policy.
In the mid-2000s, Japan, the US, and Australia began intensifying their efforts in engagementwith one another for the Quad framework with participation by India. During the Asia-Pacific
Economic Cooperation (APEC) leadersʼ summit that convened in Sydney in September 2007,
Japan, the US, and Australia held their first top-level trilateral meeting. Quoting a JapaneseForeign Ministry press officer in its September 7 edition, one Indian newspaper22 reported thatIndia had been asked to participate in the meeting as a country with a shared interest in theideals of liberalism and democracy. Japanʼs 2007 White Paper on Defense (July 2007) also citedstrengthened cooperation with Australia and India and called for policies that would help curb
the growing prominence of China and North Korea in the military dimension and ensure a morestable balance of security at the regional level through strengthened collaboration by Australia
and India on matters of security.
Additionally, in August 2007 the US Center for Strategic and International Studies (CSIS)
published The US-Japan-India Report in collaboration with the Japan Institute of International
Affairs and the Confederation of Indian Industry. Underlining the importance to the US, Japan,
and India of protecting their shared values and sustaining an open and stable international
system, this report recommended strengthened trilateral cooperation (along with Australia) in
the security, energy, environmental, and economic fields.23 Although described as something thatshould not be construed as “targeting China” per se, the plan nevertheless resembled aspects of
the Quad, which comprised hedging policies aimed at China.
As an outcome of this report, India decided to participate in the Quad. In September 2007,
five countries of the US, Japan, India, Australia, and Singapore conducted Malabar 07-2, a joint
naval exercise in Bay of Bengal. The scope of this exercise extended from the central region of
the Bay of Bengal to the vicinity of the Coco Islands in Myanmar territorial waters (where China
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was noted in India to have stationed meteorological monitoring facilities). Malabar 07-2 was alarge-scale undertaking that mobilized approx. 20,000 naval personnel, 28 ships, and 150 aircraft;
its implementation as a multilateral exercise was the key feature that distinguished it from past
Malabar exercises by India and the US.
The countries that participated in Malabar 07-2 insisted that the exercise was primarily aimed
at boosting the interoperability of their naval forces and stressed that it was not intended toestablish an “axis of democracy” in the Asia-Pacific to contain China.24 However, the Kyodo News
agency was arguably closer to the mark with its assessment that it was aimed at strengthening
cooperation by participating countries in protecting the sea lanes for oil tankers and other cargotraffic from the Indian Ocean into the Pacific. Kyodo reported that “such objectives also reflecta conscious interest in curbing efforts by China to provide aid to Indian Ocean basin countries
and expand its network for military cooperation and that Japan considers the exercises to be
an integral element of the Quadrilateral Security Dialogue between Japan, the US, India, andAustralia, as proposed by Prime Minister Shinzo Abe.”25
The Quad drew harsh criticism from China. Furthermore, following the political exit of its
main proponents, namely, US President George W. Bush, Japanese Prime Minister Shinzo Abe,and Australian Prime Minister John Howard, Howardʼs successor, Prime Minister Kevin Rudd
(December 2007 to June 2010), implemented policies that put stronger emphasis on ties with
China. Rudd also was not supportive of the Quad and thus terminated Australiaʼs involvement,leaving the Quad to die out spontaneously. However, the Quad lived on as a series of bilateralpolicy hedges against China: Specifically, these were the New Framework for the US-India
Defense Relationship (2005), the India-Australia Memorandum of Understanding on Defense(2006) and Joint Declaration on Security Cooperation (2009), and the Joint Declaration on
Security Cooperation between Japan and India (2008), for Japan, the first such arrangement witha country other than the US or Australia.
Although the Quad was shelved, Japanʼs gradually strengthening security ties with Australia
and India along with the Japan-US alliance nevertheless sent a signal that a new security order
was taking shape in Asia.26 In short, the Quad may be better understood in terms of its association
with the Indo-Pacific, a new regional designation that emerged in the 2000s.

4.2 Efforts to promote the Quad by Japan, the US, and Australia in the 2010s
With that historical backdrop, on November 12, 2017 senior officials for diplomatic authorities
in Japan, the US, Australia, and India met on the occasion of the ASEAN summit in Manila. They
“discussed measures to ensure a free and open international order based on the rule of law
in the Indo-Pacific” and “affirmed their commitment to continuing discussions and deepening
cooperation based on shared values and principles” (“Australia-Japan-India-US Consultations on
the Indo-Pacific,” a November 12, 2017 press release on the Japanese Ministry of Foreign Affairs
website).27
These four-way consultations by diplomatic authorities represented a substantive firststep toward implementation of the Free and Open Indo-Pacific Strategy championed by Prime
Minister Shinzo Abe at the Sixth Tokyo International Conference on African Development (TICAD
VI) that assembled in Kenya in August 2016.28 Japanese Minister for Foreign Affairs Taro Kono
proposed the creation of a new quadrilateral framework at the August 2017 gathering of foreign
ministers for the seventh Japan-US-Australia Trilateral Strategic Dialogue in Manila, and again
on the occasion of the Japan-US-India Trilateral Foreign Ministersʼ Meeting in New York.29 Kono
articulated his views on creating a summit-level quadrilateral strategic dialogue again on October25, 2017.30 During their November 2017 summit meeting in Japan, US President Donald Trump
and Prime Minister Abe were in agreement on the Indo-Pacific strategy.
This latest Quad proposal presents Japan in a cheerleading role and appears to have won
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support from the US for a transition from diplomacy centered around the US and China to a
new framework that allows them to use relationship with India as a diplomatic card. During the
Obama administration, the US advanced an Asia policy that paired the Trans-Pacific Partnership(TPP) in the economic and trade spheres with a policy of strategic rebalancing to the Indo-Pacificor Asia. However, under the “America First” policies of President Trump, the US withdrew fromthe TPP. As a consequence, during his November 2017 tour of Asia, President Trump arguably
had little choice other than to join the Indo-Pacific strategy championed by Japan. In Washington
on October 18, 2017, prior to the state visit to Asia, US Secretary of State Rex Tillerson clarified
his views regarding security cooperation by Japan, the US, India, and Australia.31
T. J. Pempel (University of California) has summarized the first year of Trumpʼs administration
as an exercise in “democratic destruction and Asian absenteeism.”32 Also, immediately prior to histour of Asia, Trump and his national security advisor, H.R. McMaster, reportedly began using theterm “Indo-Pacific” with increased frequency.33
In the National Security Strategy that it released in December 2017, the US government
revealed a sense of alarm toward China and Russia, and criticized China as a country that “seeks
to displace the United States in the Indo-Pacific region” and “expand the reaches of its state-driven
economic model.”34 It noted that the United States “welcomes Indiaʼs emergence as a leading
global power and stronger strategic and defense partner,” and added that it “will seek to increase
quadrilateral cooperation with Japan, Australia, and India.”35
However, not all changes to US policy on Asia are attributable to the arrival of President
Trump. On the importance of Japan and China to the US, Sheila Smith, a leading scholar in
the field of Japan studies, points out that building cooperative ties with China while avoiding
harm to the close relationship between Japan and the US is the biggest challenge that US
policymakers face.36 Given the implications of that perspective, the Quad is at present probably anappropriate framework for consultations at the diplomatic level. The American political scientist
John Mearsheimer notes that a behind-the-scenes approach that places most of the burden ofcontaining China on neighboring countries is the best strategy for the US as a country with a richhistory as an “offshore balancer.”37
New perspectives have also been tendered on the role of US Forces in Japan. For example,
Mikio Haruna, a journalist who has examined released US diplomatic documents with confidential
content, states that the reality of the Japan-US alliance, that is, the US forces stationed in Japan,
are not there to defend Japan but rather to provide for the strategic defense of South Korea,
Taiwan, and Southeast Asia, and concludes that military logistics are their main mission.38
Published in November 2017, Australiaʼ s 2017 Foreign Policy White Paper39 repeatedly
discusses the Indo-Pacific. In Chapter 3 (A stable and prosperous Indo-Pacific),40 the white paper
notes, “Our alliance with the United States is central to Australiaʼs security and sits at the core of
our strategic and defense planning.” On that understanding, it follows up by stressing the central
roles of the US and China in the Indo-Pacific and cites Japan, Indonesia, India, and South Korea
as partners in the Indo-Pacific region. Another white paper (Australia in the Asian Century) 41
released by the Australian government in 2012 only mentions the Indo-Pacific in three places.
Within the sphere of foreign trade, Australia is heavily dependent on China. In 2016, exports
to China were valued at US$94.0 billion, making China the top destination market for Australian
goods. (Japan was the second-largest market, valued at US$39.0 billion, while the US camein third place, at US$21.0 billion.) China was also the largest source of Australian imports, at
US$62.0 billion in value (followed by the US at US$44.0 billion and Japan in third place at US$23.0
billion).42 Moreover, Chinaʼs powers of influence over Australiaʼs internal affairs have grown
more serious in recent years.43 In effect, Australia has established economic ties with China thatcompare with its ties to ASEAN, a situation that in strategic terms has compromised its ability tocope even as a member of the Quad.
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4.3 Mixed views toward the Quad

Scholars in the US have expressed doubts about the reincarnation of the Quad as version 2.0.44
It is true that on his visit to India in September 2017, Prime Minister Abe coordinated views with
Prime Minister Modi on maritime security and agreed on the subject of curbing Chinaʼs advances
into the region. Despite reaching an agreement to “continue the discussions,” the November
2017 conference of diplomatic authorities for the four Quad countries did not set a clear timetable
for the next round. Further, participation in the discussions has been limited to officers at thebureau-head level. Presumably, India will hold the key that determines whether the meetings are
upgraded to the foreign-minister level. In effect, it is as if Japan, the US, Australia, and India do
not share equal levels of commitment to the Quad.
Comparable precedents exist. Prior to the start of these quadrilateral discussions, twotrilateral conferences had been held: one involving Japan, the US, and India, and the other
involving Japan, India, and Australia. The Conference involving Japan, the US, and India waslaunched in December 2011 after participation had been downgraded to the bureau-head levelfrom its initially planned foreign-minister level. This (bureau-head level) trilateral conference
convened eight times until its conclusion in 2016. The first foreign-minister level meeting washeld in 2015. In effect, India was integrated into the existing Japan-US framework. 45 The firstmeeting of the other trilateral conference with the participation of foreign secretaries from Japan,
Australia, and India was held in 2015 and concluded with its third meeting in 2017.
Indiaʼs China-oriented foreign policy was one reason that factored strongly behind its lack ofenthusiasm for the Quad. When the Modi government came into power, Sandy Gordon, an expert
on South Asia (Australian National University), predicted: “That realisation may not stop the Modi
government attempting to ʻplay both ends against the middle,ʼ especially since this approachhas been a classic feature of Indian foreign policy for many decades. Under this scenario, India
would seek the best deal it can from China, both economically and in terms of a possible border
settlement, while attempting to maintain its hedge against a possible difficult rise of China withpowers such as the US and Japan.”46
Former Indian Foreign Secretary Kanwal Sibal has suggested India need not choose between
either Japan or China as a partner; it can cooperate with Japan on China policy and in otherareas where they have a shared interest, and with China in areas that deliver mutual benefits.47
Furthermore, even if India saw value in working together with Japan and the US, it may havelacked motivation to team up with Australia.48
In its September 26, 2017 issue, the Japanese edition of Newsweek magazine ran a special
feature titled “Indo no kyozou” (“an Indian giant elephant”), which noted in effect, “while Japan
looks to India as a partner to help contain China,” India does not yet actually have enough power
to compete with China nor is it necessarily pro-West or anti-China. While India would prefer tofollow an independent approach to China, collaborating only with Japan will still not be sufficient.
That is presumably why it will be compelled to rely on the Quad framework as well.
As indicated earlier in Fig. 1, at the regional level, the Indian Ocean counts as the primary
battleground for Indian diplomacy at this time. China, moreover, will be Indiaʼs main counterpart
in that engagement. Given that India is pursuing a two-pronged policy49 of both engagement andhedging with respect to China, Quad discussions involving the diplomatic authorities are a viable
and realistic option for diplomacy at this stage.
On closer examination, India could utilize the Quad as a mechanism to curb Chinaʼs ambitions
and respond to its criticism of the Quad through exchanges at the working level, not at thehead-of-state or foreign-minister levels. Of course, as a formal participant in the summit-level
conferences of SCO and the BRICS (five emerging national economies) summits, India is also
prepared to seek elevated Quad status at any time. Moreover, the foreign ministers of Russia,
India, and China (RIC) have met regularly since 2002, and convened their 15th meeting in India
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Relations between Japan and India in the Indo-Pacific Age —Transcending the Quad Framework—in December 2017.
Moreover, India and China has established the meeting of the Special Representatives of thetwo countries in 2003 and its 22nd meeting between National Security Advisor Ajit Doval and StateCouncilor and Foreign Minister Wang Yi has held in December 2019. Also, Prime Minister Modi
emphasized “inclusive” nature of the Indo-Pacific at his keynote address at Shangri La Dialogue
in June 2018. He might have intended to tell China “Free and Open Indo-Pacific (FOIP)” to signify
its inclusive nature and not excluding China. Basically, India would like to keep stable relations
with China.
India has pursued a balancing act with China and Russia on the one hand and Japan andthe US on the other. From another angle, India may be viewed as a country that has engaged
in cooperation with Japan and the US in the Indian Ocean and with China and Russia on theEurasian continent. As one element of its continental strategy, India has been working to put
into motion its International North-South Transport Corridor plan, an undertaking that will
establish improved sea, rail, and road connections for cargo flows between India (Mumbai), Iran,
Azerbaijan, and Russia (Table 1).

4.4 China’s apprehensions about the Quad
China categorically rejected the Quad when it first materialized in 2007 and deemed themultilateral Japan-US-India, US-Australia-India, and Japan-US-Australia-India frameworks aspolicies aimed at encircling China.50 It has reacted to the latest incarnation of the Quad in muchthe same way. For example, Chinese experts have warned that the four-way dialogue signifies
an effort to contain China and that it will stymie regional development.51 Additionally, as analternative to rebalancing policies in the Asia-Pacific, the Indo-Pacific strategy has been viewed as
an undertaking with the objective of disrupting the BRI but that is destined to fail.52
The Quad, moreover, has been described as an Asian version of the North Atlantic Treaty
Organization (NATO).53 During a press conference on November 13, 2017, Geng Shuang, Deputy
Director of the Chinese Foreign Ministryʼs Information Department, hinted at Chinaʼs misgivings
about the Quad with his emphasis that it should be a framework that encourages cooperation by
all relevant countries, not a mechanism for exclusion.54 In fact, representatives of the Quad havebeen upgraded from the bureau-head level to foreign minister level for the first time in September
2019 at the New York meeting during the United Nations General Assembly.

5. Future prospects
Geopolitical developments in the Indo-Pacific have shifted the focus to the question of how todeal with China. China has rallied from a history of humiliation that stretches back to the Opium
Wars and now aspires to achieve the “Chinese dream” through a grand resurgence of the Chinese
people.55 In other words, one could argue that China is striving to wrest hegemonic dominance inthis region from the US and establish a China-centric international order. In a sense, it appears to
be in the process of acquiring the capacity to build a new international order and establish itself
as the rule-maker.
Since the start of the twenty-first century, the situation in the Indo-Pacific has been marked by
the growing national power of China and the relative decline of the US, which has been losing its
capacity to keep China in check.56
Under such development, as a strategic framework in the Indo-Pacific for Japan, the US,
Australia, and India, the Quad has been brought into existence to counter these trends. Neither
Japan nor India are capable of halting Chinaʼs growing influence on their own, nor can they relyon the US. They have no choice but to turn to “minilateral” cooperative mechanisms that occupy
an intermediate position somewhere between the bilateral and multilateral approaches. Unlike
Europe, Asia does not yet have any well-established economic or security frameworks. The
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implication is that the Quad will serve as an inescapable regional mechanism for the Regional
Comprehensive Economic Partnership (RCEP) for East Asia or the East Asian Community. Since
the RCEP is one of the main components of Japanʼs, Indo-Pacific policy along with the Quad,
Indiaʼs withrawal from it said in Novmber 2019 would be the big misculculation for Japan.
India has aspirations of major-power status. For now, however, strategies based on partnering
mechanisms are its only option. The Japan-US alliance was the single largest infrastructural
cornerstone of Japanʼs foreign policy. However, Japanʼs dependence on the US appears to besoftening. Given these conditions, ties between Japan and the India will continue to grow closer
and develop even further.57 The US cannot be described as an ally that Japan can always rely on
100 percent; India, however, is in a position to complement that relationship. India actually faces asimilar situation, itself. After the Cold War, Russia harnessed its semi-alliance functions to provide
backing for Indian efforts in diplomacy.
However, since the mid-2010s, Russiaʼs leanings toward China have grown more pronounced.
Moreover, ties between China and Pakistan have rapidly grown much closer as an outcomeof the CPEC project and also in reaction to the cooling trend in US-Pakistan ties. Given thesedevelopments, Japan is a welcome presence in Indiaʼs eyes.58
That said, as is commonly the case with close bilateral ties, the relationship between
Japan and India may be described as a marriage of convenience because Japan is pursuingpolicies to sustain the status quo while India has future aspirations of becoming a major power.
Consequently, one cannot discount the possibility of disparities arising between Japan and India
in terms of awareness or within the context of policy implementation. Although such disparities
have not seriously harmed their bilateral relations up to now, major problems could emerge in the
future.
The US, Japan, China, Australia, and Indonesia to say the least of India are all countries withsignificant powers of influence in the Indo-Pacific. Although their current administrations are
already positioned or seen likely to retain the reins of government. Modi government continues
in its second term by its ruling party, Bharatiya Janata Party has won the landslide victory in
April–May 2019 general election. Therefore, Indiaʼs Indo-Pacific policy is able to understand interms of its continuity.
Although not discussed in this paper, the Nor th Korea issue will be a major factor for
uncertainty in the Indo-Pacific. Relations between Japan and India in the Indo-Pacific will continue
to face these uncertainties as well as a set of unpredictable conditions in the years ahead.
A sense of mutual affinity is at the root of the relationship between Japan and India, andthat foundation is not going to be shaken. That said, Japan-India ties have transitioned from alimited bilateral relationship to a bilateral relationship with a cross-regional emphasis, and that
relationship can be expected to develop a more-realistic political and economic dimension. Japanneeds to move beyond the RCEP and TPP frameworks in the economic arena and the Quad in
the strategic arena and act as quickly as possible to build an inclusive multilateral framework
by expanding and strengthening the East Asian Community and welcomes the participation ofChina. Japan and India are both entering an era that will call on them to fulfill their commitments
to broader Asia and the global community.59 In the process, they will face the necessity oflooking beyond their mutually complementary bilateral relationship and recognizing it as a newinternational asset to the Indo-Pacific at large.60(January 13, 2018. Updated on February 27, 2020)

Notes

1. For fur ther details, see Takenori Horimoto, “ Japan and India – a review of histor y withthoughts on the future,” Chapter 4 in India, the Giant Elephant Going Global (in Japanese),
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Iwanami Shoten, 2007.
2. For recent trends in the Japan-India relationship, see Takenori Horimoto editor, Introduction
to Contemporary Japan-India Relations (in Japanese), University of Tokyo Press, 2017. This
contains an in-depth study of trends in three fields: politics, economics, and foreign policy.
3. Kazutoshi Tamari, “Turn to Cooperation on Nuclear Issues,” Chapter 10 in Horimoto, supra
Note 2.
4. Etsuro Ishigami and Takahiro Satou ed., Economic of Contemporary India and South Asia (inJapanese), Minerva Shobo, 2011, p. 23.
5. According to former Indian Foreign Secretary Salman Haidar, the “Look East policy” phrase
was first used by Prime Minister Narasimha Rao to add extra significance to his first state visit
to South Korea in 1993. (Salman Haidar, “Chapter 3. Look East,” in Amar Nath Ram, editor. Two
Decades of India’s Look East Policy, Manohar, 2012, p. 53）. Incidentally, “Look East” initially
had a strong economic-policy flavor but since the year 2000 it appears to have been converted
into a basic policy for East and Southeast Asia with security-oriented content. Note also that
Raja Mohan dates the first usage of the expression to 1992 based on a speech given by Prime
Minister Manmohan Singh (on March 18, 2006).（C. Raja Mohan, Samudra Manthan: SinoIndia Rivalry in the Indo-Pacific, Carnegie Endowment for International Peace, 2012, p. 94.)
6. Purnendra Jain, “Twin Peaks: Japanʼs Economic Aid to India in the 1950s and 2010s,” JICA-R1
Working Paper, No. 139（February 2017）, p. 21, JICA Research Institute.〈https://www.jica.
go.jp/jica-ri/ja/publication/workingpaper/l75nbg0000054l3s-att/JICA-RI_WP_No.139.pdf#sear
ch=%27Purnendra+Jain+JICA%27〉
7. Takenori Horimoto, India in transition to the third Major power (in Japanese), Iwanami Shoten,
2015, p. 36.
8. Rajesh Rajagopalan, India’s Strategic Choices: China and the Balance of Power in Asia, Carnegie
India, September 14, 2017.〈http://carnegieindia.org/2017/09/14/india-s-strategic-choiceschina-and-balance-of-power-in-asia-pub-73108〉
9. Purnendra Jain, “Japan-India Relations in a New Geo-strategic Environment of the Indo-PacificEra,” Chapter 11 in Horimoto, supra Note 2. Also, Purnendra Jain and Takenori Horimoto,“Japan and the Indo-Pacific,” in Priya Chacko editor, New Regional Geopolitics in the IndoPacific, Routledge, 2016.
10. “China builds up strategic sea lanes,” The Washington Times, Januar y 17, 2005.〈https://www.washingtontimes.com/news/2005/jan/17/20050117-115550-1929r/ 〉Kondapalli, anIndian expert on China, pointed out, “It is only since 2005 that China started considering
relations with India ʻstrategicʼ in nature.” (S. Kondapalli “Chinaʼs Foreign Policy and IndoJapan Relations,” in T. Horimoto and L. Varma (eds), India-Japan Relations in Emerging Asia,
Manohar, 2013, pp.63-91.) This is not a coincidence.
11. Makoto Kojima, “Emergence of Indian Economy and New Phase of Japan-India Relations,”
Chapter 9 in Horimoto, supra Note 2.

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12. Horimoto, supra Note 7, p. 109 (Table 3-1).
13. Sanjaya Baru, The Accidental Prime Minister: The Making and Unmaking of Manmohan Singh,
Viking, 2014, p. 170.
14. NONALIGNMENT 2.0: A FOREIGN AND STRATEGIC POLICY FOR INDIA IN THE
TWENTY FIRST CENTURY, Centre for Policy Research. 〈 http://www.cprindia.org/
workingpapers/3844-nonalignment-20-foreign-and-strategic-policy-india-twenty-first-century〉
15. For details, see “Indian Diplomacy today–strategic Frameworks,” Chapter 1.3 in Horimoto,supra Note 7.
16. Takenori Horimoto, “Modiʼs Foreign Policy in the 3rd year” (in Japanese) in Contemporary
India Forum Quarterly Review, No. 30, Summer 2016.〈https://www.japan-india.com/forum/2
d0305059bb96690755a48af9f477b2490b75a18〉
17. https://www.indiannavy.nic.in/sites/default/files/Indian_Maritime_Security_Strategy_
Document_25Jan16.pdf# search=%27Ensuring+Secure+Seas%3A+India%E2%80%99s+Maritime+
Strategy%27
18. Emi Mifune, “CPEC and India in Chinese Belt & Road Initiative,” in Contemporary India
Forum Quarterly Review, No. 35, Autumn 2017.〈https://www.japan-india.com/forum/c7fa40e
344ca2e3fe672de88fd16e622ce84f61a〉
19. World Bank, World Development Indicators database, 2007 and 2018.
20. SIPRI Fact Sheet April 2019, p.2〈https://www.sipri.org/publications/2019/sipri-fact-sheets/
trends-world-military-expenditure-2018〉
21. Toru Ito, “Japanʼs Marginalization in Indiaʼs Foreign Policy,” Chapter 4 in Horimoto, supra
Note 2. Ito provides an astute analysis of the 1990s from a “lost decade” perspective.
22. The Economic Times, September 7, 2007.
23. Center for Strategic and International Studies, U.S.-JAPAN-INDIA REPORT, August 16. 2007.
24. Indian Express, September 4, 2007.
25. Kyodo News, September 4, 2007.
26. Interview with Professor P. (Canberra, Australia, September 13, 2012).
27. http://www.mofa.go.jp/mofaj/press/release/press4_005249.html
28. An address (on “Challenges and Prospects in the Indo-Pacific Region̶in the Context of the
India-Japan Relationship”) given in New Delhi on November 2, 2017 by Kenji Hiramatsu, theJapanese Ambassador to India, clearly lays out the views of the Japanese government.〈http://
www. in.emb-japan.go.jp/Japan-India-Relations/20171102_Hiramatsu_speech_USI.pdf〉

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29. “ Pursuing the ʻ Indo-Pacific Strategyʼ for a stronger par tnership between Japan-US andAustralia-India” (in Japanese), The Nihon Keizai Shimbun, November 5, 2017.
30. Nihon Keizai Shimbun article, October 26, 2017.
31. The Japan Times, October 20, 2017.
32. T. J. Pempel, “Trumpʼs democratic destruction and Asian absenteeism,” East Asia Forum,
December 30, 2017.〈 http://www.eastasiaforum.org/2017/12/30/trumps-democraticdestruction-and-asian-absenteeism/〉
33. The Japan Times, November 4, 2017.
34. The White House, National Security Strategy of the United States of America, December 2017, p.
25.
35. Ibid., p .46.
36. Sheila A. Smith, Intimate Rivals: Japanese Domestic Politics and A Rising China, Columbia
University Press, 2015, p. 260.
37. John J. Mearsheimer (Masashi Okuyama, translation), The Tragedy of Great Power Politics,
updated edition. Gogatsu Shobo, 2014, p. 511.
38. Mikio Haruna, Masked Japan-US Alliance–Truths Revealed in Declassified US DiplomaticDocuments (in Japanese), Bunshun Shinsho, 2015, p. 249.
39. Government of Australia, 2017 Foreign Policy White Paper, November 23, 2017.
40. Ibid., pp. 37–42.
41. http://www.defence.gov.au/whitepaper/2013/docs/australia_in_the_asian_century_white_
paper.pdf#search=%27Australia+in+the+Asian+Century%27
42. Government of Australia, op. cit., p. 50.
43. Joshua Kurlantzick, “Australia, New Zealand Face Chinaʼs Influence,” Asia Unbound, Council
on Foreign Relations, December 13, 2017.〈https://www.cfr.org/expert-brief/australia-newzealand-face-chinas-influence?sp_ mid=55564822&sp_rid=〉
44. Tanvi Madan, “Rise, Fall, and Rebirth of the ʻQuadʼ,” War on the Rocks, November 16, 2017.
〈https://warontherocks.com/2017/11/rise-fall-rebirth-quad/〉
45. Mari Izuyama, “India, Japan and Global/Regional Order Making,” Chapter 7 in Horimoto,supra Note 2, pp. 159–165.
46. Sandy Gordon, “Will China ʼwedgeʼ India and the US?,” South Asia Masala, June 5, 2014.
〈http://asiapacific.anu.edu.au/blogs/southasiamasala/2014/06/05/will-china-wedge-indiaand-the-us/〉
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Takenori Horimoto

47. Kanwal Sibal, “Balancing act: Strategic ties with both Japan, China possible,” The Hindustan
Times（paper edition）, September 3, 2014.
48. Takenori Horimoto, “Australiaʼs new Asian diplomacy–India and ASEAN” (in Japanese), in
Policy Proposal Research (March 2013), Institute of Developing Economies.〈http://www.ide.
go.jp/Japanese/Publish/Download/Seisaku/1303_horimoto.html〉
From the administration of Bob Hawke (1983–1991) up to Tony Abbott in 2014, Australianprime ministers made visits to India a total of seven times but Australia received no visits fromany Indian prime minister during that same time frame. Following the visit by Prime Minister
Abbott, Indian Prime Minister Modi made a visit to Australia in 2014, the first by an Indianhead of state in 28 years.
49. For fur ther details, see “ Ambivalent Relationship of India and China: Cooperation andCaution,” Chapter 3 in Horimoto, supra Note 7.
50. John Garver & Fei-Ling Wang, “Chinaʼs Anti-encirclement Struggle,” Asian Security, Vol. 6,
No. 3（2010）, p. 258.
51. Lian Degui, “Four-way talks meant to contain China miss regional development demand,”Global Times, October 31, 2017.〈http://www.globaltimes.cn/content/1072877.shtml〉
52. Liang Fang, “Indo-Pacific strategy will likely share the same fate as rebalance to Asia-Pacific,”
Global Times, December 3, 2017.〈http://www.globaltimes.cn/content/1078470.shtml〉
53. Li Yang, “Australia rejoining Quad will not advance regional prosperity, unity,” Global Times,
November 15, 2017.〈http://www.globaltimes.cn/content/1075382.shtml〉
54. Nihon Keizai Shimbun, November 14, 2017.
55. Emi Mifune, China’s diplomatic strategy and its underlying foundations (in Japanese),
Kodansha, 2016, p. 31.
56. Former Australian Prime Minister Kevin Rudd notes that President Donald Trumpʼs decision
to pull the US out of the Trans-Pacific Partnership, coupled with expanded economic inroads
by China into the region, have diluted Americaʼs economic presence in the eyes of most AsiaPacific countries.（Kevin Rudd, “The Trumping of Asia,” The Strategist, December 11, 2017.
〈https://www.aspistrategist.org. au/the-trumping-of-asia/〉）57. Satoru Nagao, “Japan-India relations, the start of a true alliance” (in Japanese), Nikkei Business
Online, October 13, 2017.〈http://business.nikkeibp.co.jp/atcl/opinion/15/261283/10120001
1/?P=2〉
58. Takenori Horimoto, “Indo-China Rivalry on Connectivity in South Asia” in Contemporary India
Forum Quarterly Review, No. 35, Autumn 2017.〈https://www.japan-india.com/files/view/articles_files_pdf_public/src/c7fa40e344ca2e3fe672de88fd16e622ce84f61a.pdf〉
59. Chiharu Takenaka, “Creative Possibility of Japan-India Relations in the Period of Global Power
Transition,” Chapter 13 in Horimoto, editor, Ibid., 2017.

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60. Takenori Horimoto, “Strategic Convergence of Japan-India Relations and Chinaʼs Emergence,”
Chapter 1 in Horimoto Takenori & Lalima Varma eds., India-Japan Relations in Emerging
Asia, Manohar, 2013, pp. 35–36.

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Thomas S. Wilkins

Evolving Security Alignments of the Indo-Pacific: The US
Alliances, the Shanghai Cooperation Organisation, and
ASEAN
Thomas S. Wilkins*
Abstract
Strategic analysts and scholars have consistently searched for the best macro-level
intellectual frameworks to capture the security dynamics of the complex Asia/IndoPacific region. Instead of following the common practice of cataloguing and appraising
the wide variety of institutions that comprise the regionʼs so-called “security architecture”(a problematic construct; as will be revealed), this article proposes that the structuraldynamics of the regionʼs security can be better apprehended through the specific concept of“alignment.” From this perspective it is argued that three relatively well-defined alignment“blocs”: the US alliance network, the Shanghai Cooperation Organization strategic
partnership network and the ASEAN security community serve to influence and structure
strategic interactions across the region. By examining the internal composition, purpose,and behaviors of these alignment groupings―and the challenges they each face―we cangain new insights into how the consequent regional security order is produced.

“Alignment” as an ordering principle for understanding the Indo-Pacificsecurity landscapeH

ow to gain analytical purchase on the “big picture” of the extraordinarily complex
security dynamics Indo-Pacific region is one of the greatest challenges faced bystrategic analysts. And while policy-makerʼs attention is understandably captured
by immediate events and pressing issues, this can sometimes come at the expenseof deeper reflection upon the underlying structural drivers of Indo-Pacific security dynamics.
Nevertheless, it is crucially important for long-term strategic planning purposes to delve into thedeeper security “structures” that animate state cooperation and conflict, and which consequently
define and shape the regionʼs security order. Studies with this aim in view usually tend to focus
upon the tangible institutions that constitute the regionʼs so-called “security architecture”; bywhich we mean the institutional security mechanisms that contribute toward security governance,or otherwise superintend individual or collective security to states.
The so-called “ noodle bowl ” of regional agreements, regimes, and institutions in the
Indo-Pacific encompasses ever ything from economic forums such as Asia-Pacific Economic
Cooperation(APEC), inter-regional meetings, such as the Asia-Europe Meeting (ASEM), andTrack II dialogues such as Council for Security Cooperation in the Asia Pacific (CSACP), andever ything in-between, making any attempt to impose some kind of schematic for properly
comprehending this security architecture a daunting task. But in addition to the insurmountablecomplexity of the problem, the “security architecture” notion fails to recognise the inherent
qualitative differentiation between its various constituents, usually lumping together multilateral*Thomas S. Wilkins is a Senior Fellow (non-resident) at the Japan Institute of International Affairs and a
Senior Lecturer in International Security at the University of Sydney, Australia.

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Evolving Security Alignments of the Indo-Pacific: The US Alliances, the Shanghai Cooperation Organisation, and ASEAN

security dialogue mechanisms, such as the ASEAN Regional Forum (ARF) or East Asia Summit(EAS), (often referred to as “talk shops”), with formal military alliance pacts that include joint
defence planning, such as the Japan-US Alliance, or ANZUS (Australia-New Zealand-US). These
examples should on no account be conflated, as the former contain an inclusive range of states,
often working at cross-purposes, whilst striving toward confidence building measures, whereas
the latter represent an exclusive alignment of states working toward mutually shared security anddefence objectives, including joint military planning.
In a bid to disaggregate these two “ unlike ” forms of security architecture, and basedon an extensive pan-regional study undertaken for the monograph Security in Asia Pacific:
The Dynamics of Alignment, this article introduces the notion of “security alignment” as analternative approach toward capturing the structural characteristics of the current Indo-Pacificsecurity environment.1 “Security alignment” refers to a genuine and committed effort by states
to coordinate their security strategies. It will invariably manifest itself in some identifiable
institutional form―whether this be a formal militar y alliance, or another form of exclusive
organization, (including some plurilateral security institutions with exclusive, rather than inclusive
membership). Indeed, while the alliance paradigm of alignment has traditionally been a dominantform, the phenomenon is not confined to these alone, and includes coalitions, ententes, strategic
partnerships and security communities, among others. Naturally, some forms of alignment will betighter and more developed than other looser arrangements: not all alignments take the form of“alliances” (but all alliances are alignments).
The key point is that alignment partners basically subscribe to a common set of security
objectives, coordinate their resources closely toward these, and do not admit “outsiders” to their
exclusive “club,” thus differentiating them from regionʼs multitude inclusive security dialogue
forums (though all alignments, including alliances, are institutionalised). Moreover, when aligned
states act together as holistic “units,” they are frequently in competitive tension with one anotherin terms of their respective security goals (though this does not preclude elements of cooperation,
including by individual member states). Using alignment as a reductionist perspective to allow
us to get behind the vast proliferation of regional institutions and diverse state actors promises tosimplify (reify) our understanding of the larger question of security structures in the Indo-Pacific.
Indeed, the phenomenon itself has traditionally been held as fundamental to the understanding
international politics by an array of seminal scholars in the International Relations discipline. As
prolific alliance scholar George Liska attests: “Alignments are always instrumental in structuring
the state system, sometimes transforming it.”2

The Indo-Pacific security structure: three power centers of alignment
On the basis of these criteria, the US hub-and-spoke (H&S) alliance system, the Shanghai
Cooperation Organisation (SCO) strategic partnership, and the ASEAN security community―
but not its extended organs, such as the ARF/EAS―generally fulfil these criteria of alignment(though some caveats appear). At their core, they are all largely exclusive organizations,and each acts as a vehicle to provide security for its membership through coordinated policy
objectives aimed at both internal and external security challenges, even if the institutional formof security cooperation ―alliance, strategic partnership, and security community, differs ineach case. These alignment groupings are different in their nature, purpose, design, internal
dynamics, and external orientations, as will be demonstrated below. Moreover, it is these threealignment groupings that characterise the structural security landscape of the Indo-Pacific1Thomas S. Wilkins, Security in Asia Pacific: The Dynamics of Alignment (Boulder: Lynne Rienner, 2019).

2

George Liska, Nations in Alliance: The Limits of Interdependence (Baltimore: Johns Hopkins University
Press, 1962), p. 12.

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region, with each holds a competing “vision” for the future of regional order. Thus, as exclusivealignments, each of the three stands out as a “pole” of power and attraction, putting forward theirown distinct visions of regional order and seeking adhesion to this among other external states.
On the one hand, we have the Washington-led H&S alignment of maritime liberal democracies in
the Pacific, backed by American military predominance. Standing in contrast to this is the SinoRussian authoritarian compact at the heart of the SCO, backed by Beijingʼs cascade of Eurasian
economic initiatives and institution building, alongside Moscowʼs superpower nuclear arsenal.
Juxtaposed with these two rivalrous blocs are the ASEAN countries seeking to retain their“centrality” in regional security discourses and governance through their expansive institutionaland normative framework (The “ASEAN way”). Together, these three alignments largely define
the security structure of the Indo-Pacific region.
Notably, as each alignment grouping seeks to expand its power and influence over theregional order it has developed “ networks” with external parties, extraneous to their core
membership, and even across other alignments, to further its aims. These networking attempts
could be conceived of as an “H&S plus,” “SCO-plus,” and “ASEAN-plus” configurations. With
these parameters in mind, let us now unpack each of the three alignment groupings that define
the overall structure of the Indo-Pacific security landscape: the US-alliance network, SCO
strategic partnership network, and ASEAN security community network in turn, to probe into
their background, nature, activities, and the challenges they each face going forward. (Notethat the analyses below are merely “snapshots” of these alignments, and the book Security in
Asia Pacific above, may be consulted for fully detailed accounts.) And while it should be notedthat “alliances” such as the US H&S system have typically taken center stage in both academic
and policy analyses, this article seeks to draw attention to the SCO and ASEAN as alternative,
specifically-“non-alliance,” pathways toward security alignment.

The US alliance network
The US hub-and-spokes system of alliances was developed at the time of the San Francisco Peace
Treaty in 1951, with the foundation of the Japan-US alliance and the ANZUS alliance, and USPhilippines Mutual Defence Treaty. This was later extended to alliance pacts with South Korea(1953), Thailand (1954), and Taiwan (1954: now defunct and replaced with Taiwan Relations Act(TRA)). It represents the strongest form of security alignment in the region, founded as it isupon a range of formal military security guarantees, including a commitment to joint defence. As
such, these security alignments closely conform to Robert Osgoodʼs definition of an alliance as“a formal agreement that pledges states to co-operate in using their military resources against
a specific state or states and usually obligates one or more of the signatories to use force, or toconsider (unilaterally or in consultation with allies) the use of force in specified circumstances.”3
As Victor Cha has written, at the inception of the H&S Washington preferred a series ofbilateral alliance pacts to a multilateral structure such as NATO, though this preference has now
been eroded as policy-makers have sought to reform the H&S system to meet new challenges
in the 21st Century.4 Today, the H&S alliances are being transformed in line with internal andexternal pressures. Nevertheless, cooperation between “core allies”―Japan and Australia―andthe US has been greatly augmented. Not only have Tokyo and Canberra individually deepened
their alliance relations with the US through deeper military integration and security cooperation
under the “Free and Open Indo-Pacific” (FOIP) vision, but they have also initiated direct bilateral
3

Robert Endicott Osgood, Alliances and American Foreign Policy (Baltimore: Johns Hopkins Press,
1968), p. 17.

4

Victor Cha, Powerplay: The Origins of the American Alliance System in Asia (Princeton: Princeton
University Press, 2016).

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Evolving Security Alignments of the Indo-Pacific: The US Alliances, the Shanghai Cooperation Organisation, and ASEAN

security cooperation by means of their own security alignment, (dubbed a “Special StrategicPartnership”).5 This process is further triangulated through the Trilateral Strategic Dialogue(TSD) process between the three allies, arguably adding up to a “virtual trilateral alliance.” In
addition to the strengthening and consolidation of the alliance “core,” the hub-and-spokes hastaken on a “networking” aspect. Washington has not only encouraged contacts between the“spokes”―such as Japan and Australia, and with elusive success; Korea and Japan―but new“strategic partners” have been sought as affiliates to the existing H&S network. Among thesepotential adherents to the US-alliance network is India, which has been brought into the “Quad”
process (and FOIP), but also key South East Asian (SEA) states such as Vietnam and Singapore.
With its origins as a set of formal military alliances, the US-alliance network, was originallydesigned to counter the Cold War threat emanating from the Communist bloc. With the collapseof the USSR in 1991 and the subsequent integration of the PRC into the capitalist world economy
since then, these alliances were adrift and “threatless” for most of the Post–Cold War period. New
life was breathed into the US-alliance network after the 2001 terrorist attacks as Asian allies were
co-opted by Washington to provide military support for the “war on terror.” By 2011, Washington
had begun to view its military interventions in the Middle East as costly diversion away from theevident locus of geopolitical power centering on the Indo-Pacific. The “pivot” (or “rebalance”)
policy of the Obama Administration sought to refocus attention back to this crucial region.6 This
policy shift was in response to increase Chinese assertiveness in the region, exemplified by
its rapid military modernisation and its assertiveness in the South China Sea (SCS). Now, theTrump-era National Security Strategy (2017) makes explicit the return of “great power rivalry”
with a risen China and a resurgent Russia, with an ever provocative nuclear-armed North Korea
in the background. The US has thus begun to push back more forcefully against these actors,
which have both shown a disregard for internal norms and law and seek to pressure the US and
its allies through an array of “disruptive” policies and “hybrid warfare” techniques.7 The original
raison d’être of the alliance system of balancing potential great power threats has apparently
resurfaced accompanied by talk of a “new Cold War.”
But the alliance has also concentrated upon renewing the normative legacy of the so-called “SanFrancisco system” that has always accompanied the actual military alliance dyads themselves.8
During the Cold War American military predominance, extended through its alliance network,
imposed peace and stability upon the region, allowing for East Asian states to focus upon rapid
economic advancement, as well as supplying a variety of “public goods” such as freedom of theseas. This US-imposed regional order served the security interests of allies, (and some nonallies), well until the beginning of the 21st Century. Yet, as this San Francisco system has beeneroded both by a relative decline in American power, it has been concomitantly challenged byever more disruptive activities by new regional challengers such as North Korea, China, andRussia. As such, renewed efforts are underway by the US and its allies to uphold the liberalprinciples of the de facto “Rules-based order” centered around the principles of free trade, open
markets, human rights (and support for democratisation). Such efforts have coalesced into theFree and Open Indo-Pacific vision that unites the core US allies, with India, and which welcomesany state that subscribes to its principles. The shared commitment to maintaining a rules5

Thomas Wilkins, “From Strategic Partnership to Strategic Alliance?: Australia-Japan Security Ties andthe Asia-Pacific”, Asia Policy 20 (2015), pp. 81–112.

6

Kurt M. Campbell, The Pivot: The Future of American Statecraft in Asia (New York: Twelve, 2016).

7

Thomas Wilkins, “Australia and Japan Facing ʻDisruptiveʼ Challenges to the Rules Based Order in the
Indo-Pacific,” Policy Brief, September 26, 2018.

8

Kimie Hara, The San Francisco System and Its Legacies: Continuation, Transformation and Historical
Reconciliation in the Asia-Pacific (New York: Routledge, 2015).

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Thomas S. Wilkins

based order based upon US regional primacy unites the US-alliance network in response to its
challengers that seek to act as “spoilers” of regional order, and revise the status quo throughcoercive and unilateral actions.
However, the US-alliance network faces challenges going for ward in upholding both its
primacy and its vision of regional order. Firstly, the US no longer enjoys undisputed economic or
military supremacy, especially in the Indo-Pacific. Moreover, the abrogation of the Trans-PacificPartnership (TPP) in 2017 and the failure to adequately replace the carefully crafted Pivot/
Rebalance strategy of the previous Administration with a tangible and cohesive regional strategy
has weakened the props of the US-led alignment. Instead we have an as yet ill-defined policy of“strategic competition.” Secondly, the Presidency of Donald Trump has rhetorically undercut US
commitment to its allies by questioning security guarantees and spreading accusations of freeriding among allies. This has greatly undermined US credibility among allies and foes alike.
Paradoxically, however, his demands for increased alliance contributions (in light of limited
American resources) may actually strengthen the aggregate capabilities at the heart of the USalliance network as allies increase their defence budgets and military acquisitions. Lastly, there
are signs of distancing at the periphery of the original H&S network. It is arguable that bothThailand and the Philippines are drifting away from Washington and seeking a closer relationshipwith the PRC, while New Zealand has been officially expelled from ANZUS, and South Korea tosome extent remains a moribund ally, trapped by its unavoidable focus upon the North Korean
threat. These relationships will require political investment and resources to renew to avoid thefurther slippage of these peripheral allies into Chinaʼs orbit.

The SCO strategic partnership network
The Shanghai Cooperation Organisation, spearheaded by Beijing, represents a newly emergent
security alignment in eastern Eurasia in implicit, if not direct, contention with the H&S network.
In partnership with Moscow, by means of the Sino-Russian Strategic Partnership, and with India
as the latest major power to accede to the organization (2017), the SCO now clearly represents
an alternate pole of power in the Indo-Pacific and potential challenger to the vision of regional
order championed by Washington and its allies. The SCO has its origins in the post–Cold War
rapprochement between erstwhile Communist allies, Russia and China, which was formalisedin its 1996 Strategic Partnership, and 2001 Treaty of Good neighbourliness and Cooperation.9
These two events occurred near-simultaneously with the foundation of the “Shanghai Five,” later
to become the SCO, to include the Central Asian states of Kazakhstan, Uzbekistan, Kyrgyzstan,
and Tajikistan, in an axis of authoritarian Eurasian states. It was initially created to resolve
border disputes and mitigate strategic competition between Beijing and Moscow in the Central
Asian region itself, but soon developed into a formal organization to address a range of joint
non-traditional security challenges, dubbed the “Three Evils” of terrorism, separatism andreligious extremism, faced by all parties. Alarmed by US military intervention in West Asia, theorganization soon took on anti-hegemonic tones, asserting that American/Western influence
was to be excluded from this region. It also began to serve as a platform for the championshipof a multipolar world order, and an antithesis of Western values, as represented by the maritime
democracies of the US-alliance network. Washington ʼ s request for SCO Obser ver status
was denied and the organization consolidated itself as an exclusive six-member plurilateralarrangement until 2017. At this point former Observer States India and Pakistan were admitted
9“Joint Declaration by the Peopleʼs Republic of China and the Russian Federation, Adopted at Beijing
on 25 April 1996,” 2 May 1996, United Nations General Assembly, A/51/127, https://undocs.org/
pdf?symbol=en/A/51/127; ʻTreaty of Good-Neighborliness and Friendly Cooperation Between the
Peopleʼs Republic of China and the Russian Federation,ʼ 24 July 2001, https://www.fmprc.gov.cn/mfa_
eng/wjdt_665385/2649_665393/t15771.shtml.

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to the club, thus significantly expanding the extent of its reach across the whole of eastern
Eurasia. In addition, Afghanistan, Belarus, Iran, and Mongolia currently hold Observer status,
whilst Armenia, Azerbaijan, Cambodia, Nepal, Sri Lanka, and Turkey, are Dialogue Partners,
thus indicating the “network” facet of the SCO alignment, and clearly demonstrating its powers of“attraction” for other regional states.
The eight full members with China and Russia (and now India) at its core, account for
approximately half the worldʼs population, about 80% of the Eurasian Landmass, a quarter ofworld GDP and around 20% of total world militar y expenditure. 10 The SCO bloc stretches
across the “Heartland” of the Eurasian continent, thus providing a geopolitical counterweightto the “Rimland” of US maritime allies. It is frequently mischaracterised as an “Asian NATO” or“alliance of the East,” but this fails to capture its novelty as an organization which superintends
a “web” of bilateral strategic partnerships between the members. And whilst it includes a highdegree of security cooperation on both traditional and non-traditional security threats, it does notentail a mutual defence pact (as per alliances). Thus, it conforms to the definition of a strategic
partnership as “a form of enhanced bilateral cooperation between two states (or other actors)
that brings them into closer alignment on security and economic issues in order to reduce
uncertainties and aggregate joint capabilities.”11 In addition to the web of strategic partnerships
upon which it rests, an intricate organizational apparatus has been fabricated, including a Heads
of State Council and a Heads of Government Council; the highest decision-making bodies, andtwo permanent organs; the Secretariat and the Regional Anti-Terrorist Structure (RATS). It
now operates across a range of diplomatic, security, economic, (including joint energy projects,
new financial architecture, and development funds), intelligence, cyber, and even social-cultural,
areas. It therefore represents a new and, in some ways, “hybrid” form of security alignment, quitedistinct from alliances.
Until the present, the organization has been dominated by China, with Russia as a nominal
co-equal leader (though the accession of India will potentially dilute this influence), and has
been seen by many analysts as the prototype of the kind of institutional apparatus that accuratelyreflects Chinese values and interests. According to Swagata Saha “China has been attempting
to shape a non-Western security grouping to counterbalance NATO and allow China more room
for militar y action in Asia.”12 Thus, the SCO in some ways ser ves as a backstop to Chinese
outward assertiveness directed toward its Asian neighbours (e.g. SCS, Taiwan, Japan), whilst
covering Russiaʼs aggression in Eastern Europe. Though the internal parties (excepting IndiaPakistan) have amicably resolved their border disputes, both China and Russia have territorial
disputes with their Asian neighbours (e.g. Northern Territories, SCS). And while the SCO
claims to prioritise non-traditional security issues (the “Three Evils”) it engages in high-intensity
warfighting exercises (“Peace Missions”) involving frontline military capabilities (with a degreeof inter-operability between members states forces, centered upon Russian weapon platforms,
or variants thereof). On the basis of such activities it aims to advance an alternative to Western
ideology, with Russia and China cooperating diplomatically (through the United Nations
Security Council (UNSC)) to advance a multipolar order and resist the liberal international orderrepresented by the US and its allies. Its internal system principle is based upon the “Shanghai
Spirit”―a set of internal norms that guide its interaction with external parties. According to
10World Bank, “Data-GDP (current US$) 2018,” https://data.worldbank.org; Stockholm International
Peace Research Institute, Military Expenditure Database 2018, https://www.sipri.org/databases/milex.

11

Thomas S. Wilkins, Security in Asia Pacific: The Dynamics of Alignment (Boulder: Lynne Rienner, 2019),
p. 125.

12

Swagata Saha, “The Future of the Shanghai Cooperation Organisation,” East Asia Forum, 17 October
2014.

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the SCO Charter, this encompasses: “mutual respect of sovereignty, independence, territorial
integrity of States and inviolability of State borders, non-aggression, non-interference in internalaffairs, non-use of force or threat of its use in international relations, seeking no unilateral military
superiority in adjacent areas.”13 Though it claims not to target any other country, in reality, thisrepresents an effort to challenge and revise the international order in line with the preferencesof the authoritarian powers, and to mask active efforts to destabilize the US rules-based order
above.
But despite its formidable potential, and clear representation as an alternative pole of power
to the US H&S network, the organization faces significant internal challenges. Firstly, the recent
expansion to include India (and Pakistan), weakens Beijingʼs heretofore dominant position asde facto leader of the SCO. Instead of a Sino-Russian leadership dyad at the core, now India will
make it a triad. And though New Delhi subscribes to certain aspects of the SCO worldview suchas multi-polarity, and shares notions of non-interference and the dangers of the “Three Evils”,
India is a democracy in many ways closer to Western traditions, and which, despite its now
misnomered “non-alignment” policy, is closely aligned with the extended US-alliance network as
well. Moreover, China and India (Arunachal Pradesh), as well as India and Pakistan (Kashmir),have territorial disputes, that could threaten the internal integrity of the SCO. Whether thiswill weaken the SCOʼs cohesion, and whether it will transform it into a less effective and unitedmultilateral security dialogue forum (“talk shop”), instead of a coherent alignment bloc, remains
to be seen. Secondly, the importation of the “Indo-Pak” problem―the fact that two members are
actually antagonists, rather than allied or aligned, threatens to undermine the internal securityof the SCO in potentially combustible ways. Lastly, Western analysts in particular have pointed
out that the Sino-Russian Strategic Partnership, heretofore the “engine” of the SCO is also riven
with contradictions, with Moscow fearing an increased Chinese strategic presence on its borders
and in Central Asia, and resentful of Chinese economic expansion, sometimes outside of the
SCO framework, such as the Belt and Road Initiative (BRI), which vies with the Russian-led
Eurasian Economic Union (EEU). This indicates that the alignment functions as much as a “pactof restraint”―preventing one another from aligning with the US, for example, than a genuine
confluence of long-term strategic interests, let alone, shared values.

The ASEAN security community network

In some ways caught in-between the Sino-US-led “blocs,” the ASEAN security community seeks
to drive internal (intramural) cooperation between South East Asian (SEA) states and safeguard
their mutual external interests through strength in numbers. ASEAN was initially formed as aregional intergovernmental organization in 1967 at the height of the Cold War, to protect itself
against outside interventions by the Communist powers (Vietnam, China) who threatened todestabilise newly independent but fragile post-colonial states faced with a multitude of internal
nation-building challenges. With the end of the Cold War tension in SEA, the organization
experienced a “second birth” with the accession of formerly antagonistic CLMV states in the
1990s (Cambodia, Laos, Myanmar, and Vietnam). Based upon the ASEAN Charter (2007) andunder the (current) banner of “ASEAN 2020” it aims at building an “ASEAN Community” based
upon a tripod of: Political-Security community (of most relevance here), Economic community,
and Socio-cultural community. Under this triad it engages in a range of intergovernmental
cooperation and facilitates economic (including an ASEAN Free Trade Area), political, security,
military, educational, and sociocultural integration activities. There is no simple definition of a“security community,” but Raimo Väyrynen defines it as “a collective arrangement in which its
members have reasons to trust that the use of military and economic coercion in their mutual
13

Shanghai Cooperation Organization, “Charter of the Shanghai Cooperation Organization,” p. 3.

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Evolving Security Alignments of the Indo-Pacific: The US Alliances, the Shanghai Cooperation Organisation, and ASEAN

relations is unlikely.”14 In other words, though they specifically eschew a collective defence pact
(as per alliance), they conceive of their security as being advanced collectively. This makes thisform of security alignment, quite distinguishable from the alliance paradigm.
Though ASEAN was primarily concerned with incubating intramural cooperation between
its membership until the 1990s, it henceforth took on an external orientation as a discerniblealignment of states, seeking to shape the wider regional security order in the Indo-Pacific. This
“network” building, (usually referred to as “ASEAN-plus”) is conducted by means of a wide arrayof multilateral institutions (i.e. security architecture) that engage with external parties, suchas the ASEAN Regional Forum, East Asian Summit, ASEAN+3, and ASEAN Defence Ministers
Meeting+ (ADMM+), plus the Regional Comprehensive Economic Partnership (RCEP). Throughthis extended network the ASEAN members themselves seek to “enmesh” other regional states,
especially the major powers, in their own normative framework (see below).
ASEAN is primarily a vehicle to safeguard the security interests of the small and mediumsized SEA member states both internally and externally, through intramural cooperation, andstrength in numbers, respectively. When combined they count a population of approximately 651
million and aggregated GDP of about $3trn and total military budget of $40bn.15 They employ
the organization and its extended institutional network as a “shield” against external interference
in SEA, and as a way of mediating tensions between SEA and external powers, including theformer two alignment blocs, with varying degrees of success. They also prioritise non-traditional
security issues such as transnational crime, unregulated population movements, environmental
disasters, infectious diseases, food security, transnational pollution, piracy, and terrorism. They
have championed a package of “norms,” in part an assertion of “Asian” versus “Western” values,
known as the “ASEAN Way.” This entails “the importance of neutrality; sovereignty and territorial
integrity; the peaceful settlement of disputes; informal, non-confrontational negotiations; and thepromotion of domestic stability and social harmony―which together underscore the importanceof state autonomy and non-interference in the affairs of other states.”16 And they have sought
to “export” these norms across the larger Indo-Pacific theatre by means of their ASEAN-plus
institutional architecture, including gaining external states adhesion to the Treaty of Amity andCooperation (TAC); a loose form of non-aggression pact. This attempt to “enmesh” external
parties in an ASEAN-led normative framework―lacking the militar y or economic weight tootherwise influence external states―has had some limited success in underwriting their claim to“ASEAN centrality” in regional security affairs.
But the ASEAN security community suffers from a range of limitations as a pole of alignment
in the Indo-Pacific. Firstly, it lacks the critical mass of power resources and capabilities to assert
its influence in the face of any opposition by the other alignment blocs, or individual powerfulstates. In particular, despite some aspirations to integrate SEAʼs defence industries, it has nocollective defence agreement or combined military capabilities, as in the H&S (and to a minor
degree, in the SCO). For this reason, it has devoted its security diplomacy toward normative
efforts at confidence-building and cooperation through the medium of ASEAN-plus institutions
as a means to shape regional order. Secondly, perhaps because of these issues, ASEAN (andits extended network) have come in for sustained criticism for a lack of effectiveness in the
security sphere. The ASEAN-plus institutions are not seen as efficient security providers by
14

Raimo Väyrynen, Stable Peace through Security Communities?: Steps towards Theory-Building (The Joan
B. Kroc Institute for International Peace Studies, 2000), p.166.

15

World Bank, “Data-GDP (current US$) 2018,” https://data.worldbank.org; Stockholm International
Peace Research Institute, Military Expenditure Database 2018, https://www.sipri.org/databases/milex.

16

Richard Stubbs, “The ASEAN Alternative? Ideas, Institutions and the Challenge to ʻGlobalʼ Governance,”
The Pacific Review 21, no. 4 (2008), p. 451.

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Thomas S. Wilkins

regional parties, including its members states, who retain national defence capabilities and a
gamut of security agreements with external powers, especially the US (some can be counted aspart of the original H&S, such as Thailand and the Philippines, as well as new strategic partners
in the extended network, such as Singapore and Vietnam, for example). ASEAN organs havenot successfully addressed even non-traditional security challenges in the region such as hazepollution, the refugee crisis in Myanmar, and human rights concerns, though they have hadgreater success on counter-terrorism, and anti-piracy operations. They have certainly failed todeal with traditional security disputes such as the SCS as a meaningful alignment of states. Lastly,
questions remain as to the sustained momentum of ASEAN toward its aspiration to become agenuine “Security Community,” both due to the stark diversity in political makeup and national
power between its members, and some minor territorial disputes between member states (e.g.
Preah Vihear temple, between Thailand and Cambodia). But external factors have placedpressure upon its proclaimed “neutrality” toward great power rivalry and territorial disputes in
the region. Examples of compromised neutrality include Cambodiaʼs scuttling of the 2016 ASEAN
Summit declaration regarding the SCS as a result of Chinese diplomatic pressure on Phnom
Penh.17 This cruelly exposed the divisions within the ASEAN membership and its inability to
act cohesively as a united front, thus calling into question the actual coherence of ASEAN as ameaningful security alignment.

Conclusion

It is conventional wisdom among analysts that the “noodle-bowl” of multilateral institutions ofvarious stripes have not been fully effective in addressing the pressing multifarious challenges theregion faces: great power rivalry, nuclear proliferation, maritime and territorial disputes (though
it may fare better at dealing with non-traditional security issues such as piracy, and trans-national
criminal organizations). Nor have sporadic efforts to build a “regional community” (sometimes
predicated upon institutional security architecture) fared any better. One thinks of the failed “EastAsian Community” of former Prime Minister Hatoyama Yukio, or the “Asia-Pacific Community” offormer Prime Minister Kevin Rudd, for example.
Thus, in place of these, this ar ticle has suggested that looking at the three principlealignment groupings in the region is an alternative to understanding how security in theregional is structured and operates to maintain regional order. The strong adherence of states
within these alignments to each of these groupings also testifies that they normally prioritise
their alignments as their most effective form of security provision in an uncertain and unstablesecurity environment. As this article has demonstrated, these new alignments can take theform of reconfigured alliances in the US case, or hybrid strategic partnership/plurilaterals,
like the SCO, or security communities, in the ASEAN case. In other words, security alignment
does not always and only occur through formal military alliances, but through alternative “nonalliance” means, such as the SCO and ASEAN. Additionally, the reach of these three alignment
groupings is extended, by their respective efforts to “network” beyond their core memberships.
For example: the American-led H&S system seeks to attract additional “strategic partners” (e.g.
Singapore, Vietnam, India), whilst the SCO includes a range of Observer and Dialogue Partners,and ASEAN heads a suite of “ASEAN plus” institutional offshoots (e.g. EAS, ARF etc.). It is also
important to recognise that alignments can vary in depth and cohesion over time, and can evolveand transform. Moreover alignments are not always “water-tight,” with some states participatingin multiple alignments (e.g. India is a member of the SCO and a Strategic Partner with the US/
Quad), thus complicating the situation. Also, interestingly the SCO and ASEAN also increasingly
17

Manuel Mogato, Michael Martina, Ben Blanchard, “ASEAN Deadlocked on South China Sea, Cambodia
Blocks Statement,” Reuters, 25 July 2016.

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Evolving Security Alignments of the Indo-Pacific: The US Alliances, the Shanghai Cooperation Organisation, and ASEAN

engage in cooperative activities, and partially share a similar worldview.18 A recognition ofimportance of the alignment phenomenon for understanding the security landscape of the IndoPacific, as well as an appreciation of the transforming nature of alignments themselves, gets us
closer to understanding the security structures upon which regional security order is ultimately
predicated.

18“Memorandum of Understanding Between the Secretariat of the Association of Southeast Asian Nations(ASEAN Secretariat) and the Secretariat of The Shanghai Cooperation Organization (SCO Secretariat),”
21 April 2005, https://asean.org/wp-content/uploads/images/ASEAN-SCO-MOU.pdf.

80Japan Review Vol.3 No.2 Fall 2019

Valérie Niquet

China Maritime Strategy Since 2018:
Tactical Appeasement or Strategic Evolution?
Valérie Niquet*
Abstract
Tensions in the South China Sea have not disappeared, although China did not take further
possession of disputed features since 2017. Actually, Chinaʼs position has not changed,
and the appeasement moves towards Japan, hoping for a decoupling between economic
and strategic issues, or towards Southeast Asian nations, are tactical moves. An attempt tolimit the negative consequences on Chinaʼs image and counter the formation of regionaland extra-regional coalitions. At the meantime, faced with recent developments, a debate
has emerged in China, between those who defend Xi Jinpingʼs assertive strategy, andthose who now consider that it has had negative consequences for China. The most likely
scenario in the short term is, therefore, that of stabilization with alternating periods oftensions and appeasement, depending on the reaction of Beijingʼs “adversaries,” first andforemost the United States, to Chinaʼs moves in the South and East China Seas. The risk ofa large-scale military confrontation is unlikely in the current state of the balance of power,
unless the United States chooses to favor an appeasement strategy with the PRC that could
be interpreted in Beijing as a show of weakness or disengagement. This potentially very
destabilizing possibility cannot be completely ruled out. However, by withdrawing fromthe South China Sea, the United States would run the risk of weakening its overall posture,
ultimately compromising its fundamental interests in an area of vital strategic and economic
importance.

The Peopleʼs Republic of China (PRC) did not reverse its territorial objectives in theSouth China Sea. It occupies the entire Paracel Archipelago and seven “features,” notrecognized as “islands,” in the Spratly Archipelago. In 2018, it continued filling andbuilding work on the rocks or banks that China controls.1 However, Beijing did notcarry out any new occupation and, at the 31st Association of Southeast Asian Nations (ASEAN)
Summit held in Manila in November 2017, it signed the Treaty of Friendship and Cooperation
with ASEAN. It also declared its readiness to resume negotiations on the implementation of a
Code of Conduct, initiated without significant real progress in 2013.2
In August 2018, a new proposal for the Code of Conduct, including the protection of themarine environment in the South China Sea, which has been severely degraded by China ʼs*Valérie Niquet is Senior Visiting Fellow at the Japan Institute of International Affairs and Head of the
Asia program at Foundation for Strategic Research.

1

In the Spratly Archipelago, the Peopleʼs Republic of China has occupied Cuarteron Reef, Fiery Cross
Reef, Gaven Reef, Hughes Reef, Johnson Reef, and Subi Reef since 1988 and Mischief Reef since 1995. It
controls access to Scarborough Shoal without having taken the step of a formal occupation, since 2012.
See https://amti.csis.org

2

Carlyle Thayer, “ASEAN, China and the Code of Conduct in the South China Sea,” SAIS Review ofInternational Affairs, n°2, 2013 https://www.researchgate.net/publication/265983542_ASEAN_China_
and_the_Code_of_Conduct_in_the_South_China_Sea

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China Maritime Strategy Since 2018: Tactical Appeasement or Strategic Evolution?

dredging operations was written. However, this draft had many shortcomings. It did not precisely
define the geographical scope of the South China Sea, severely limited the role of external parties,
and specified that the possible signing of a Code of Conduct did not question the territorial claimsof the parties involved.3
These developments, which seemed to play in favor of appeasement in the South China
Sea, are, in part, the positive consequences of the 2016 judgment of the Den Hague Court of
Arbitration, which rejected all Chinese claims in the South China Sea. Indeed, while refusing thevalidity of the Courtʼs conclusions, China chose to stabilize its positions in Southeast Asia, rather
than make further territorial progress. Beijing is also concerned about the strengthening of US
engagement in the South China Sea at a time of tensed relations with Washington. In that context,
Beijingʼs appeasement strategy―including with important neighboring countries such as Japan―
proposals for cooperation on a “maritime silk route,” or attempts to divide ASEAN are part of thesame agenda for the evolution of the PRCʼs regional strategy.
With the Philippines, despite ups and downs, the disputes are far from over. Since President
Duterte came to power in June 2016, Manila has agreed not to address the issue of the decisionof the Den Hague Arbitration Tribunal, which was in favor of the Philippinesʼ claim. President
Duterte implemented an appeasement strategy with China in exchange for pledges of economic
assistance and access to fisheries resources for Filipino fishermen in the areas claimed by the
PRC, including Scarborough Shoal.4 However, in 2019, incidents involving Chinese fishing boats,
coast-guards, or planes around territories claimed by the Philippines in the South China Sea did
not cease.5

China has not abandoned its ambitions in the South China Sea
While the PRC adopted a less offensive stance in 2017–2018, it has not abandoned its territorial
claims and strategy to control the South China Sea. China has thus continued to militarize all theterritories, sandbanks, or rocks it occupies with the construction of runways to accommodate its
strategic bombers, the deployment of anti-aircraft capabilities, observation equipment (radars),
and the construction of port infrastructure. 6 In May 2018, for the first time, the first H-6K
strategic bomber, capable of carrying nuclear warheads, operated from Woody Island, in the
Paracel Archipelago. In April of the same year, the first LSM and LAM missiles were deployed on
the backfilled rocks of Subi, Mischief, and Fiery Cross Reef.
This “operationalization” of Chinese controlled features in the Paracels and Spratlys gives
Beijing extended projection capacities, to the southern part of the South China Sea, up to theborders of Indonesia, and the South Pacific. It facilitates naval and air patrols and joint-forces
exercises in the area.
From a strategic point of view, the South China Sea could be transformed into a bastion
for the implementation of an anti-access (A2AD) strategy designed to increase China ʼs room
for maneuver in Asia against the United States. In the event of a real conflict, the defense ofislands far from the mainland, proves illusory. However, in peacetime, for “grey zone” operations
involving fishing flotillas and naval law enforcement coast-guards, Chinese “artificial anchors”
3

Carlyle Thayer, “A Closer Look at the ASEAN-China Single Draft South China Sea Code of Conduct,”
The Diplomat, 03-08-2018.

4

Aries A. Arugay, “The Philippines in 2017: Security Challenges in a Time of Conflict and Change,” on
http://www.nids.mod.go.jp

5

China is blockading Philippine boats from accessing Scarborough and Thomas Shoals. The latest
incident occurred in October 2019, prompting the Ministry of Defense to file a protest.

6

Kerry K. Gershaneck, “Chinaʼs Plan for Conquest of the South Pacific,” 07-09-2018 on http://asiatimes.
com

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Valérie Niquetin the area offer significant opportunities. The filling work and constructions to increase thesurface of Chinaʼs held features also make it possible―even if China acts outside any framework
recognized by international organizations like the United Nations Convention on the Law of the
Sea (UNCLOS)―for Beijing to try and enforce the principle of its sovereignty over the area.
According to the Global Times, a nationalist newspaper often used to unofficially express
opinions from the Chinese Communist Party (CCP) leadership, “China has every right to build
everything it believes necessary on its territory in the South China Sea to defend its interestsand security.”7 Beijing officially considers that the filling and militarization operations that werecarried out in 2017 and 2018 are both “reasonable” and legitimate, despite the commitments madeto its Southeast Asian neighbors to negotiate a draft Code of Conduct mentioning non-use offorce.8
Maritime expansion in the South China Sea is also a priority of President Xi Jinping ʼs more
assertive strategy. This was one of the first missions assigned to a “combat ready” Peopleʼs
Liberation Army (PLA), with the development of the Southern Command, which controls Taiwan
and the South China Sea.9 On October 1st 2019, for the 70th anniversary of the PRC, as in 2015
for the commemoration of the end of the war with Japan in 1945, the military parades focused on
missiles. These were the DF-21D, “aircraft killer” in 2015 and the DF-41 ICBM, with a claimed
capacity of multiple warheads, in 2019. Both are deterrent and part of a “communication” strategy
to delay US inter vention in case of a Chinese offensive, at the ser vice of the CCPʼs sur vival
strategy, in the South or East China Sea.
While China, since 2016, has been more cautious, this has not prevented the continuationof tensions in maritime areas wherever possible. This makes it more doubtful that a lasting
solution based on the joint development of resources, which has often been mentioned but neverimplemented, will be found either in the East or South China Sea. With the multiplication ofChinese presence and exercises in the area, involving navy and coast-guard vessels, incidents
have increased, involving regional and extra regional powers and the United States.
In September 2018, a collision was narrowly avoided with an American destroyer, involving
a Chinese coast-guard vessel.10 In June 2019, the Philippine Secretar y of National Defense
protested against the sinking of a Philippine fishing boat by a Chinese coast-guard vessel.11 In the
Taiwan Strait, in the Northern part of the South China Sea, Beijing is also attempting to challenge
the principle of freedom of navigation by intimidating vessels, including French vessels, that do
not respect the PRCʼs unilateral territorial claims.12 Around the Senkaku archipelago, Chinese
incursions never ceased, even if they became “routine,” mobilizing Japanese naval and air patrol
capacities.
Beijing has the largest coast-guard fleet in the world, with more than 200 vessels, including
several new large vessels over 1500 tons. Since December 2018, the coast-guard has also been

7

Zhuang Guotu, Xiamen University, in Zhao Yusha, “Land Reclamation to Expand in South China Sea
Islands,” Global Times, 05-02-2018.

8“China National Marine Data and Information Service Report” in “Chinese Report Says South China Sea
Islands Expanded ʻReasonably,ʼ ” Reuters, 25-12-2017.

9“ ʻPrepare for Warʼ, Xi Jinping Tells Military Region that Monitors South China Sea, Taiwan,” South
China Morning Post, 26-10-2018.

10https://gbtimes.com/naval-incident-between-chinese-and-us-destroyers-in-south-china-sea-causes-morefriction

11“South China Sea Collision Talk Threatens to Rock China Philippines Relations,” Associated Press, 12-062019.

12“Naval incident between France and China,” AFP, 25 April 2019.

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China Maritime Strategy Since 2018: Tactical Appeasement or Strategic Evolution?

placed under the direct authority of the Central Military Commission headed by Xi Jinping.13
An illustration of Beijingʼs “fuzzy” strategy, that restricts the use of PLA navy in order to remainin the framework of “civilian” law enforcement operations, and avoid being accused of “military
aggression.” From 2011 to 2017, 75% of the 53 major incidents that occurred in both the Southand East China Sea, involved coast-guard vessels.14

A constant strategic challenge for the countries of the region

All countries in the region are concerned by a strategic challenge that can be turned “on” or “off”
by the Chinese leadership according to their priorities. In spite of not being officially concernedby China ʼs territorial claims, Indonesia has reaf firmed its commitment to reinforcing theprotection of its maritime sovereignty, particularly concerning fishing rights and―potentially―hydrocarbon resources at the borders of its exclusive economic zone (EEZ). In 2017, Indonesia
published new maps renaming the South China Sea, where incursions of Chinese vessels had
increased, “North Natuna Sea,” to confirm its sovereignty over the region.15
For Malaysia, a party to territorial claims over part of the South China Sea, the issue isconsidered a major problem both by the political leadership and the armed forces. While Malaysia
used to favor a less confrontational posture with China, the new Malaysian authorities, since there-election of Prime Minister Mohamad Mahathir in 2018, have reiterated their opposition to theconcept of a “nine-dash line” claimed by Beijing. They also reasserted their commitment to thelaw of the sea based on UNCLOS and negotiated settlement involving all regional actors, without
use of force or coercion.16
Malaysia also denounces the incursions of Chinese civilian and militar y vessels. These
incursions were reported to have increased by 30% in 2017, to test the Malaysian authoritiesʼ
willingness to react. Since then, they did not cease, sometimes involving dozens of fishing boats.
For Malaysia, the issue of the South China Sea is all the more vital as it divides East Malaysia,
where the States of Sabah and Sarawak are located, and Peninsular Malaysia. China is trying tofavor a bilateral agreement, mobilizing, in particular, the attractiveness of its economic power asin the case of the Philippines, but mistrust persists.17 Far from accepting Chinaʼs offers, Prime
Minister Mahathir chose to renegotiate an infrastructure building agreement signed by his
predecessor.
For its part, the Philippines is still on the front line of confrontations with China in the South
China Sea, although President Duterteʼs election partially changed the situation in relation to
the PRC. The new President has chosen to appease Beijing and try to take advantage of Chinaʼseconomic opportunities. Since his election, there have been many high-level exchanges between
Beijing and Manila, including President Xi Jinpingʼs visit to the Philippines in 2018.
At the same time, the Philippine President, who claims that he cannot forcefully oppose
Chinese demands, particularly around Scarborough Shoal, is also seeking to maintain a balancewith other regional and extra-regional powers, including Australia and Japan. The latter has
provided the Philippines with reformed coast-guard patrol vessels as part of capacity building
cooperation with Manila. Similarly, the links between the Philippines and the United States have
13

Previously, the coast-guard was placed under the authority of the oceanographic safety authority.

14

https://amti.csis.org

15

Gilang Kembara, “Security Outlook of the Asia-Pacific Countries and its implication for the Defence
Sector in: Indonesia” on https://www.nids.mod.go.jp

16

Thomas Daniel, “Key Issues Impacting Malaysiaʼs Security Outlook” on https://www.nids.mod.go.jp

17

Bhavan Jaipragas, “Malaysia Looks to Chinese leadership, but not on South China Sea” on https://www.
scmp.com/week-asia/geopolitics/article/2168119/malaysia-looks-chinese-leadership-not-south-chinasea

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Valérie Niquet

not been severed. Strengthened since the election of Donald Trump, who does not stress the“human rights” issue, and the involvement of US forces in controlling radical Islamist insurgency
in Mindanao in 2017.18
Another frontline State, Vietnam, places sovereignty issues in the South China Sea against
China at the forefront of its strategic concerns. For Hanoi, the stakes are multidimensional,
involving issues of territorial sovereignty, including Beijing ʼs pressure to ban all drilling or
exploration in areas claimed by the PRC, and Beijing ʼs drilling operations in areas under its
control. In July 2017, Vietnam had to suspend its exploration operations in the Block 136-03
under pressure from China, and in 2019, China conducted its own exploratory operations in areas
claimed by Vietnam.
Beyond territorial issues, the question of the delimitation of EEZs, and free access topotential resources is also essential for a state like Vietnam. Finally, as the Den Hague Tribunal
has demonstrated, global legal issues concerning the law of the sea are also at stake. Like thePhilippines, in the face of coercive actions by the PRC, Vietnam is also pursuing an active policyof strategic balance towards the United States and Japan.19
The issue of EEZ delimitation and access to resources, be it oil, gas, or fishing, is also a major
issue, apart from the protection of territorial sovereignty for Japan. In the East China Sea, Chinaʼs
official claims on EEZ extend up to the shores of Okinawa, including the whole continental shelf.
Japan suspended its exploration activities in the East China Sea, despite Chinaʼs own drilling andaccess to resources across the dividing line between the two EEZs.

Did Chinese developments in the South and East China Seas change the statusquo?
China has mobilized a diversified range of instruments, involving coercion, economic cooperation,
diplomatic pressure and legal warfare, to change the status quo in the South and East China Seas.
If successful, that multilayered strategy could be applied to all areas where Beijing has claims notrecognized by international law. This could also potentially concern areas in the Arctic, where
China imposed its concept of “quasi-Arctic State.”
However, the PRC does not go beyond limits that could raise the risk of an externalinter vention. At the legal level, Beijing tried ― without success ― to impose a maximalist
interpretation of Article 58 of UNCLOS concerning the military activities by foreign vessels on
EEZs.20 China ratified UNCLOS in 1996, but with reservations on special economic zones and thecontinental shelf following its own “maritime law” adopted by the National Assembly in 1998.
At a more global level, Chinaʼs position on the implementation of UNCLOS sheds light on
how Beijing views the international system and the liberal order. While the PRC has signed andratified UNCLOS and does not seem ready to withdraw from it, compliance with the rules initiallyaccepted depends on a constantly shifting balance of power and the interests unilaterally definedby the Chinese authorities themselves.
Similarly, with even weaker legal foundations, China is tr ying to extend the concept of“historical rights” to impose recognition of its claims in the South and East China Seas. These
legal maneuvers are accompanied by filling and construction activities to support Chinese claims
and consolidate its presence. The objective is to impose a “fait accompli,” that could change theposition of Beijingʼs neighbors and the international community.
However, despite these efforts, that also attempt to impose the idea that Chinaʼs strategy and18

Aries A. Arugay, op.cit.

19

Tran Truong Thuy, “Tempering the South China Sea Slow Boil: Expanding Options for Evolving
Disputes,” https://www.nids.mod.go.jp

20

https://www.un.org/depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm

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China Maritime Strategy Since 2018: Tactical Appeasement or Strategic Evolution?

raise are ineluctable, Beijing has suffered several setbacks. The most important, both legally andin terms of image, is the judgment of the Den Hague Court of Arbitration in 2016. China used
its full economic weight to limit the severity of the EUʼs joint declaration, and the judgment does
not include any mandatory implementation clause. However, all China claims have been rejected
and, since then, while rejecting the very principle of the legitimacy of the Tribunal, Beijing has
limited its use of the concept of “nine-dash line.” Also, the decision was very positively received
in Southeast Asia and Japan, further highlighting the isolation of the PRC on the issue of theSouth China Sea. In Europe, if some countries played a role in toning down the EU declaration,
the image of the PRC has been degraded, and the EUʼs China strategy is far more cautious than it
used to be.21
Above all, the more aggressive strategy followed by Beijing since Xi Jinping came to power,
despite the economic opportunities offered by the BRI (Belt and Road Initiative) designed toregain the support of the countries in the region, has in turn triggered a backlash that aim, at
a minimum, to rebalance Chinese power. At the ASEAN level, regional initiatives have been
put in place, which, while not openly targeting Beijing for diplomatic reasons, take into accountChinese progresses in the region. In Indonesia, the document defining the countryʼs new ocean
policy emphasizes maritime defense, in response to new risks related to trafficking and theenvironment. The naval forces are expected to be significantly strengthened with the acquisitionof 90 new vessels, including 42 deep-sea patrol vessels and 12 submarines.22
The evolution is the same in Malaysia, reinforced by the return to power of Prime Minister
Mahathir, who has adopted a less conciliatory stance regarding China. Here too, new resources
to strengthen the capacity of the coast-guard are planned to deal with Chinese incursions.23
In June 2017, Indonesia, Malaysia, and the Philippines established trilateral maritime patrols
officially designed to combat piracy in the Sulawesi area, but which also aim to better control
the “maritime borders” of these three States, particularly in the face of incursions by fishingflotillas. Beijing officially protested on behalf of its “historic fishing rights” but could not stop theinitiative.24
In the East China Sea however, the ban on any landing or fishing around the Senkaku islands
implemented by the Japanese authorities for the sake of appeasement, the “routine” activities ofChinese vessels in or at the limit of territorial waters surrounding the islands, or the Japanese
decision not to pursue gas exploration activities, has sometimes been interpreted by Chinese
strategists as a success in imposing a de facto―if not de jure―change of status quo.

Towards the internationalization of the conflict
Above all, while the PRC hoped to be able to contain the management of tensions in theSouth and East China Seas at the bilateral level, more favorable to its interest because of theasymmetry of economic and military power with all its neighbors, we are witnessing an increased
internationalization of the conflict. The reactions, and the opposition to Chinaʼs actions and claims
extend well beyond the regional framework.
In the United States, President Donald Trump tends to advocate the defense of Americaninterests above all else (America First). However, after some considerations, he adopted a much
more hardline position both at the economic and strategic level. Beijing, contrar y to initial“hopes,” had failed to “deliver” both on trade and North Korea, which in part explains the Trumpadministrationʼs change of attitude regarding China.
21

https://ec.europa.eu/commission/news/eu-china-strategic-outlook-2019-mar-12_en

22

Gilang Kembara, op.cit.

23

Thomas Daniel, op. cit.

24

Idem.

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Valérie Niquet

The incident that occurred in September 2018 between a Chinese vessel and an American
destroyer, followed by other incidents in the South China sea involving the navy and air force,for tified American will to enforce their role as strategic stabilizer in the region, with theresumption of Freedom of Navigation Operations (FONOPs) in waters claimed by Beijing. In
May 2019, the United States sent twice destroyers within the 12 miles limit of Territories claimed
by Beijing, and overflights are increasing.25
In 2018, Washington also decided not to invite Chinese forces to participate in the joint “PacificRim” exercises that had been opened two years earlier as a sign of goodwill. The United States isalso pursuing a strategy of rapprochement with other States in the region facing Chinese actions,first and foremost, Vietnam and the Philippines. Moreover, while not directly linked to thisissue, US trade sanctions against the PRC also contributes to the strategy of pressure exerted on
Beijing.
This strategy is also implemented in coordination with its Japanese ally, which, since theadoption of new, more flexible military export rules in 2014, has been building the capacity ofVietnamʼs and the Philippinesʼ coast-guard fleet and participating in the training of Vietnamese
submariners. More concretely, the adoption of new defense laws in 2015 and 2016 allows, with theright of collective self-defense, the participation of self-defense forces in joint patrols, includingin the South China Sea. In the fall of 2018, Japan sent a submarine to the South China Sea for the
first time.26 In June 2019, an Izumo multi-purpose carrier, the largest ship in the Maritime SelfDefense Force (MSDF), participated in exercises with the United States in the South China Sea.
Japan shares with its neighbors in Southeast Asia the same concerns about Chinaʼs ambitionsin the East or the South China Sea. In 2018, Tokyo adopted new guidelines for defense capacity
development that strengthened its projection capabilities, including the use of Izumo helicopter
carriers as aircraft carriers under certain conditions, and the acquisition of longer-range (300 km)
ballistic missiles based in Okinawa to protect faraway islands.27 During the Shangri-La Dialogue
held in Singapore in 2019, Japan ʼs Defense Minister has been ver y firm on the issue of theSouth and East China Seas, recalling the conclusions of the Den Hague Tribunal. This position
coincides with the French one and is one of the foundations of Paris adhesion to the concept ofFree and Open Indo-Pacific (FOIP).
Though far geographically, the EU, where France plays a leading security role, has also seen
its stance towards China evolve in a less favorable direction. Chinese strategy in the South China
Sea has made a significant contribution to that evolution by challenging fundamental principles,
including the principle of peaceful conflict resolution, to which the EU is particularly committed.
The countries most involved in the region―first and foremost France, which has its territories
in the Indian Ocean and the Pacific―has direct sovereign interests in both oceans and regularly
navigates the South and East China Seas, have adopted a firm stance accompanied by concretemeasures.
In Singapore, in June 2019, the Minister of the Armed Forces, Florence Parly, recalled Franceʼscommitment to the principle of freedom of navigation and overflight wherever internationallaw permits. Similarly, President Macronʼs speech in Australia in 2017 and again in 2019, which
mentions Franceʼs active support to the principle of FOIP, is a direct response to Chinaʼs more
assertive maritime strategy. The same applies to the regular passage of French―with UK andEU observers onboard―and British vessels through the South China Sea, challenging warnings
25

Jesse Johnson, “US Sails Massive F-35-Laden Warship in Disputed South China Sea,” Japan Times, 0904-2019.

26

https://asia.nikkei.com/Opinion/Japan-versus-China-in-the-South-China-Sea

27

https://www.japantimes.co.jp/news/2018/12/17/national/new-defense-guidelines-prioritize-longrange-missiles-defense-japans-outlying-islands/#.XGbt-JNKjaY

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China Maritime Strategy Since 2018: Tactical Appeasement or Strategic Evolution?

from China in order to uphold the rules of freedom of navigations, including military ships, innon-territorial waters.

Conclusion
Tensions in the South China Sea have not disappeared, although China did not take further
possession of disputed features since 2017. Actually, Chinaʼs position has not changed, and theappeasement moves towards Japan, hoping for a decoupling between economic and strategic
issues, or towards Southeast Asian nations, are tactical moves. An attempt to limit the negative
consequences on China ʼs image and counter the formation of regional and extra-regional
coalitions.28
The fundamental causes of the tensions did not vanish. Concerning resources, beyond energy,
access to fishing grounds is becoming increasingly important and is the cause of a majority ofincidents with other countries.29 Beyond that, the question of power rivalry with the United States
is an essential factor. Despite uncertainties regarding US engagement in Asia, since Donald
Trump came to power, this factor had positive results in checking a more assertive Chinese
strategy, as the PRC constantly takes into account in its calculus the actual balance of power.
For Beijing, the unpredictability of the American President increases the risk of incidents
and requires greater caution. In terms of principles, the stakes for all powers outside the area
are too high in terms of freedom of navigation, respect for the rule of law and the defense of vital
economic interests, for the process of internationalization of the conflict to be checked.
Faced with these developments, a debate has also emerged in China, between those who
defend Xi Jinpingʼs assertive strategy, and those who now consider that it has had negative
consequences for China, confronted with multiple issues from US trade war to the situation in
Hong Kong, and with no means to achieve its ambitions if it faces stiff resistance, particularly
from the United States.
The most likely scenario in the short term is, therefore, that of stabilization with alternating
periods of tensions and appeasement, depending on the reaction of Beijingʼs “adversaries,” firstand foremost the United States, to Chinaʼs moves in the South and East China Seas. The riskof a large-scale military confrontation is unlikely in the current state of the balance of power,
unless the United States chooses to favor an appeasement strategy with the PRC that could beinterpreted in Beijing as a show of weakness or disengagement.
This potentially very destabilizing possibility cannot be completely ruled out. However, by
withdrawing from the South China Sea, the United States would run the risk of weakening its
overall posture, ultimately compromising its fundamental interests in an area of vital strategic andeconomic importance.

28

Monika Chansoria, “Regional Cooperative Security in the Indo-Pacific: Synergizing Consultative
Mechanisms across the Indian Ocean, East China Sea, South China Sea, and the Western Pacific” on
https://www.jiia-jic.jp/en/japanreview/pdf/JapanReview_Vol1_No2_03_Monika%20Chansoria.pdf

29

Incidents involving China occur in the South and East China Seas but also in the Pacific, off the coast of
Africa and Latin America.

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