APAN

Vol.5 2022
ISSN 2433-4456

REVIEW

Japan-India at 70: The Early Origins ofa Relationship that Defines Asia’s Future
Monika Chansoria

Reconsideration of the Distinction between
the Use of Arms in Law Enforcement andthe Use of Force Prohibited by International Law―With an Analysis of the Inherent Significance ofThis Issue to Japan―
Atsuko Kanehara

Japan’s responsibility in the international community:
Reflections on the Asia-Pacific War, 1931–1945
Kitaoka Shinichi

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

The Franco-German reconciliation model
does not correspond to the challenges of
the Japan-PRC relationship
Valérie Niquet

The Japan Institute of International Affairs (JIIA), founded in 1959, is an independent nonpartisan
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Publisher : Kenichiro Sasae, President, JIIA
Editor in Chief : Masao Kochi, Director, Japan Information Center, JIIAThe opinions expressed in the articles in Japan Review do not necessarily reflect the opinions
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ISSN 2433-4456

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APAN

Vol.5 2022

REVIEW

1 Japan-India at 70: The Early Origins of a Relationship that Defines Asia’s
Future ������������������������������������03

Monika Chansoria
Dr. Monika Chansoria is a Tokyo-based Senior Fellow at the Japan Institute of International
Af fairs (JIIA) since 2017. Previously, Dr. Chansoria has held many senior researchappointments, including, at the Fondation Maison des Sciences de lʼHomme (FMSH, Paris);at the Cooperative Monitoring Centre, Sandia National Laboratories (Albuquerque, U.S.); and,at the Hokkaido University (Sapporo, Japan). She has solely authored five books on Asiaʼssecurity affairs, including China, Japan, and Senkaku Islands: Conflict in the East China Sea
Amid an American Shadow (Routledge © 2018) and Nuclear China: A Veiled Secret (© 2014)
among others. Dr. Chansoria is also a Senior Contributing Author & Analyst at Japan Forward
Inc., Tokyo, where she writes a regular column on Asiaʼs geopolitics and history.

2 R econsideration of the Distinction between the Use of Arms in Law
Enforcement and the Use of Force Prohibited by International Law―With an
Analysis of the Inherent Significance of This Issue to Japan― �������13

Atsuko Kanehara
Professor of International Law at Sophia University. Former President of the Japanese Societyof International Law. Member of the Governing Board of IMO International Maritime Law
Institute. Advocate for the Government of Japan in “Southern Bluefin Tuna” Cases. Counsel
for the Government of Japan in “Whaling in the Antarctic” Case. Policy Adviser for the Japan
Coast Guard. Member of the Committee on Submarine Cables and Pipelines under theInternational Law Association. Councilor for the Sasakawa Peace Foundation, Trustee for
Nippon Communications Foundation.
She delivered a course of lectures at The Hague Academy of International Law in 2017.

1

3 Japan’s responsibility in the international community: Reflections on the AsiaPacific War, 1931–1945����������������������������49

Kitaoka Shinichi
Dr. Kitaoka Shinichi is Emeritus Professor of the University of Tokyo, specializing inmodern Japanese politics and diplomacy, and Special Advisor to the President of the Japan
International Cooperation Agency (JICA). His career includes President of JICA, President of
the International University of Japan, Japanʼs ambassador to the United Nations, and Professorof the University of Tokyo. He served on a variety of government panels, including as deputy
chair of the Advisory Panel on the History of the 20th Century and on Japanʼs Role and theWorld Order in the 21st Century in 2015. He has numerous books and articles including The
Political History of Modern Japan: Foreign Relations and Domestic Politics (Routledge, 2018). He
received many honors and awards including the Medal with Purple Ribbon in 2011.

4 T he Franco-German reconciliation model does not correspond to thechallenges of the Japan-PRC relationship ������������������56

Valérie Niquet
Valérie Niquet, Ph.D. (Sorbonne University) is Head of the Asia department at FRS (Fondation
pour la recherche stratégique), and senior fellow at the Japan Institute of International Affairs(JIIA). She was a a lecturer at Keio University (Tokyo) on Sino-Japanese relations from 2014 to
2021. She has published extensively on strategic issues in Asia, Japanʼs foreign policy as well as
the evolutions of the Chinese political system. Valérie Niquet is also a consultant for the French
ministry of Foreign Affairs Center for prospective and strategy (CAPS). Her latest publications
include Le Japon en 100 questions, Tallandier, 2021 and Taiwan face à la Chine, Tallandier,2022. 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 ofAmerica. Valérie Niquet is Chevaier de lʼordre national du mérite.

2

Monika Chansoria

Japan-India at 70:
The Early Origins of a Relationship that Defines Asia’s Future
Monika Chansoria*
Abstract
This paper tracks the trajectory of Japanʼs relations with India from the time when the latterremained peripheral as far as Tokyoʼs postwar “Asia vision” was concerned. From being
part of the “other Asia” for Japan, India has come a long way in figuring more prominently
in Japanese foreign policy thinking, formulation, and posture, be it economic, political,
or strategic. This paper chronicles the journey of Indo-Japan ties since their nascent
beginnings in history and outlines the conceptual underpinnings of this equation as politicalrealism which prioritizes national interest and security. Indiaʼs presence in Japanʼs economic
diplomacy and technological aid and assistance schematic capitalizes on strategic necessities
as the sub-continent exhibits its competitive and conflictual sides correspondingly,
especially in terms of the struggle for regional significance and power. In the past 70 years,
Tokyoʼs relationship with New Delhi has traveled a distance whereby it is no longer possible
to separate economics from politics (seikei bunri). Today, Japanʼs comprehensive security(sogo anzen hosho) strategy seeks to revolve more acutely around active politico-diplomatic
involvement, for which its policy interests and approaches, traditionally limited to East
Asia and Southeast Asia prior to the Cold War, have increasingly shifted towards the Indian
Ocean region, of which India remains the nucleus.

T

he year 2022 is momentous for Indo-Japanese relations as the two countries markthe 70th anniversary of establishing diplomatic relations. Indeed, it has been a sevendecade long journey of significant milestones and shared visions for the future. The
foundation of the contemporary Indo-Japan Special Strategic and Global Partnership
was laid by Japanese PM Yoshiro Mori when he visited India in 2000 and established the Global
Partnership in the 21st Century with Indian PM Atal Behari Vajpayee. Subsequently, Vajpayeeʼs
successor Manmohan Singh paid an official visit to Japan in 2006, during which the India-Japan
Strategic and Global Partnership was inked. The Indo-Japanese relationship remains firmly rooted
in history with common values being its mainspring for advancing shared strategic objectives andprogress for the benefit of the entire Indo-Pacific region.

The Historical Connect and Context of Japan’s Ties with India
When India declared its independence from British colonial rule and governance in August 1947,
Japan was among the first nations to recognize Indiaʼs sovereignty. India, on its part, declined
attending the San Francisco Peace Conference in 1951, arguing against the limitations being
placed on Japanʼs sovereignty. New Delhi also pointed out that the United States was failing togive due recognition to the wishes of the Japanese people. Instead, India chose to enter a bilateralpeace treaty with Japan in 1952, as part of which the former waived all reparation claims against*

Dr. Monika Chansoria is a Senior Fellow at The Japan Institute of International Affairs (JIIA) in Tokyo,
and a Senior Contributing Author on Asiaʼs geopolitics for the JAPAN Forward Association, Inc., Tokyo.

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Japan-India at 70: The Early Origins of a Relationship that Defines Asia’s Future

Japan. Moreover, India also became among the first Asian nations to establish diplomatic ties with
Tokyo in 1952.
It was in that same decade that Japanese PM Nobusuke Kishi visited India in 1957. Kishi,
who ser ved in office from Januar y 1957 to July 1960, became the first-ever Japanese PM tovisit New Delhi and it was following this visit that he launched Japanʼs first postwar overseas
Official Development Assistance (ODA) to India with the grant of international yen loans thatTokyo began providing in 1958. Japan also began providing loans to India in 1958, the firstJapanese yen loan aid extended by the Japanese government. While development assistanceand aid ideally should be separated from foreign policy objectives, the former tends to focus on
the security concerns of developed nations in the politically fragile regions where aid is to be
granted. Specifically, the geostrategic importance and vulnerabilities of South Asia make it almost
impossible for a donor countr y to keep politics out of its development aid agenda to further
the politico-diplomatic goals of the donor, along with ensuring the developmental objectives ofrecipient nations.1
Since then, Japan has gone on to become India ʼ s largest bilateral lender and largest
humanitarian assistance provider, both directly and indirectly, through multilateral agencies. 2
The Japan International Cooperation Agency (JICA)̶the primary governmental agency thatcoordinates and delivers the bulk of Japanʼs ODA to developing countries̶views the stability
and development of India and South Asia as critical since it is a strategic region linking ASEAN
with the Middle East and Africa. Developing economic foundations and improving connectivity,
especially in India, Bangladesh, and Sri Lanka, in line with relevant intergovernmental jointstatements, JICA is implementing programs and projects that contribute to developing transport
infrastructure (railways, roads, and ports) that are essential elements for sustainable regional
growth.
In a display of decades-old personal ties with India, when Japan ʼs longest-ser ving prime
minister Shinzo Abe visited India in 2017, he recalled his familyʼs links with Indiaʼs first prime
minister Jawaharlal Nehru. “ My grandfather, Prime Minister Kishi, loved India. He wasintroduced personally by Prime Minister Nehru to the Indian people. Like my grandfather, I also
hope to have strong ties with the Indian people.” Abe said while addressing an audience as large
as the one that greeted his grandfather. During Prime Minister Kishiʼs 1957 visit to India, PM
Nehru introduced his guest in a public rally saying, “This is the prime minister of Japan, a country
I hold in greatest esteem.”3 “My grandfather visited India in the 1950s and, as you know, we were[then] still recovering from the defeat in the war,” said Abe, indicating that Nehruʼs gesture hadcreated a personal connect between the two prime ministers of postwar India and Japan. Earlier
as well, Abe recalled during his 2011 visit, “As a young boy seated on his knee, I would hear
grandfather telling me that PM Nehru introduced him to the biggest audience he had ever seen
in his lifetime̶that of a hundred thousand people.”4
The South Asian sub-continent remained peripheral as far as Japanʼs postwar “Asia vision”
1

For details on the subject see, A. Estache, “Emerging Infrastructure Policy Issues in Developing
Countries: A Survey of the Recent Economic Literature,” Background Paper, Meeting of the POVNETInfrastructure Working Group, October 2004; also see, S. Jones, “Contribution of Infrastructure
to Growth and Poverty Reduction in East Asia and the Pacific,” Background Paper, Oxford Policy
Management, October 2004; and see, Stephen Jones, “Infrastructure Challenges in East and SouthAsia,” IDS Bulletin, vol. 37, no. 3, May 2006, Institute of Development Studies, p. 29.

2

Sunil Chacko, “Japanese Investment to India: Possibilities and Constraints,” The Sunday Guardian, May
2, 2020.

3“Shinzo Abe recalls grandfatherʼs ties with Nehru,” The Hindu, September 15, 2017, available at https://www.thehindu.com/news/national/abe-recalls-grandfathers-ties-with-nehru/article19685815.ece

4

Ibid.

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Monika Chansoria

was concerned, especially in comparison to its far profounder engagement with East Asia andSoutheast Asia. During that period, South Asia professedly was the “other Asia” for Japan. In
Japanʼs foreign policy strategy after World War II, Southeast Asia was considered to include South
Asia. The mid-1960s marked the beginning of an era in which South Asia inclusive of India wasomitted from what Japan considered as Asia.5 Besides, Indiaʼs pursuit of an insular economic
system during that period was much in contrast to Japanʼs open market economy, which stymied
the development of close bilateral economic ties. A systemic dissection of the Asian continent into
its many sub-regions revealed that Japanʼs presence and influence in South Asia, be it economic,
political, or strategic, came nowhere close to the effect it wielded in the other sub-regions
mentioned above. Despite its dense population of 1.97 billion, which constitutes 24.9 percentof the globeʼs humanity, South Asiaʼs widespread poverty, limited industrialization, and inwardlooking economic policies placed limits on Japanʼs economic and diplomatic penetration of theregion.6 Furthermore, Japanʼs limited influence in South Asia was also reflected in the inadequate
coverage given the sub-region in books, special editions of academic journals, and magazines that
dealt with Japanʼs relations within Asia. For instance, a 1996 Far Eastern Economic Review article
on the changing role of Japanese sogo shosha (Japanʼs prominent companies involved in trade andbusiness) in Asia did not even mention South Asia.7
The three areas which remained particularly underdeveloped in Japan-South Asia ties wereaid, trade, and investment-commercial ties. South Asia and the South Pacific constituted two subregions where Japan was not involved in any striking conflicts, so both remained of lesser geoeconomic status. Foreign policymaking in Japan leans principally towards responding to external
developments and gravity. Since the start of the postwar period, Japan and South Asian nations
were best defined as distantly estranged Asian neighbors with a conventional view that Japancame to act under external determinant factors (gaiatsu). It remained the case that gaiatsu did,at times, play a critical role in bringing key Japanese foreign policy initiatives to fruition.8 Tokyoʼspostwar foreign policy between 1952 and 1973 followed a “separation of economics and politics”(seikei bunri) strategy, whereby it avoided involvement in almost all international issues. This
phase abruptly ended in late 1973, however, with the Organization of the Petroleum ExportingCountriesʼ (OPECʼs) quadrupling of oil prices and the oil embargo by the Arab states. It was here
when Japan arrived at comprehending that it was no longer possible to separate economics frompolitics, a consequence of which was its “comprehensive security” (sogo anzen hosho) strategy
entailing active diplomatic involvement.9
Rising from the aftermath of 1945, Tokyo ʼ s exponential growth miracle rendered it an
economic superpower enabling it to master a neo-mercantilist strategy that lasted from 1973 until
1990. The period saw Japanʼs foreign economic presence throughout the Third World (includingSouth Asia) expand rapidly as Tokyo confronted a range of issues in its quest for diversified
5

Hiroshi Sato, “New Relationship between Japan and India in the Postwar Period,” in Toshio Yamazaki
and Mitsuru Takahashi, eds., A History of India-Japan Relations, (Institute of Developing Economies,
1993) p. 165.

6

William R. Nester, Japan and the Third World: Patterns, Power, Prospects, (New York: St. Martinʼs Press,
1992) pp. 271–274, as cited in, Monika Chansoria, “Japanʼs Relations with South Asia,” in Šumit Ganguly
and Frank OʼDonnell (eds.) Routledge Handbook of the International Relations of South Asia, (London:
Routledge, 2022).

7“Tokyoʼs Deal Makers,” Far Eastern Economic Review, Februar y 1, 1996, cited in Purnendra Jain,“Japanʼs Relations with South Asia,” Asian Survey, vol. 37, no. 4, April 1997, (as cited in Chansoria, n. 6.)

8

Tanaka Akihiko, “Domestic Politics and Foreign Policy,” in Inoguchi Takashi and Purnendra Jain, eds.,
Japanese Foreign Policy Today: A Reader (New York: Palgrave Macmillan, 2000), as cited in Chansoria, n.
6.

9Nester, n. 6, p. 15, (as cited in Chansoria, n. 6.)

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Japan Review Vol.5 2022

Japan-India at 70: The Early Origins of a Relationship that Defines Asia’s Futuresources of markets, raw materials, cheap labor, and energy.10 The first signs of change in thissituation emerged in the 1980s when Prime Minister Indira Gandhi, who had visited Japanearlier in 1969, made another visit in 1982.11 This was followed by Prime Minister Yasuhiro
Nakasoneʼs visit to India in 1984. This was the first visit in 23 years by a Japanese PM since
Hayato Ikeda had traveled to India in 1961. Nakasoneʼs trip was regarded as the starting point
for Japan-India relations and marked the revival of sustained political contacts.12 Japanʼs policy
toward the Third World became a foundational strategy through which Tokyo employed foreign
aid as a diplomatic tool to spread its influence across the Third World, including South Asia.
Interestingly, in February 1989 Thailandʼs Prime Minister Chatichai Choonhavan commented,
13“The world economic war is over; Japan has won.” That notwithstanding, Japanese investments
in South Asia were minuscule between 1979 and 1986, which could be gauged from the fact thatit constituted less than 0.1 percent of its total foreign investments globally during the period, andless than 0.5 percent of its total investments in Asia.14 Japanʼs interest in South Asia [particularly
India] grew very gradually post-1991 following several high-profile investment missions, including
one by officials from the Federation of Economic Organizations (Keidanren) and a first-ever visit
from Ministey of International Trade and Industry (MITI) in 1995.15

Japan-India Relations Post–Cold War
It was the end of the Cold War that provided the real impetus for a further development of JapanIndia relations. Japan-India relations after World War II can be broadly divided chronologicallyinto two phases: the first phase lasting until the end of the 1980s and the second phase beginningin the 1990s.16 The decade of the 1990s saw relations between the global economic power (Japan)
and South Asia (particularly India) improve dramatically.17 The primary factors behind this wereJapanʼs ambition to re-emerge as an international actor with former premier Yasuhiro Nakasoneʼs
repeated call for the “internationalization of Japan.” His successor Noboru Takeshita, too, echoed
the view that Japan needed to revive and widen the ambit of its ties with other nations, and not
singularly deal with the West, which included the US. This approach seemingly stemmed fromthe friction that Japan was experiencing with Washington and Europe over matters pertaining totrade, tariffs, and investments that were seen as a serious challenge to Japanʼs economic growth.
In its search for newer markets and partners, South Asia as a region emerged as a naturalcontender with its enormous size and potential.
A highly symbolic tour of South Asia (India, Bangladesh, Pakistan, and Sri Lanka) was
undertaken by Prime Minister Toshiki Kaifu in April–May 1990. This visit resulted in India
developing a more positive understanding of Japan. Successive Japanese PMs from Nakasone to
Toshiki Kaifu, who undertook a defining visit to South Asia in April 1990, reinforced the thought
10

Ibid., p. 18.

11

Takenori Horimoto, “Japan-India Rapprochement and Its Future Issues,” cited in Japan’s Diplomacy
Series, Toward the World’s Third Great Power: India’s Pursuit of Strategic Autonomy, (Iwanami Shoten
Publishers, 2015).

12

Sato, n. 5, p. 176.

13

Bruce Koppel and Michael Plummer, “Japan Ascendancy as a Foreign-Aid Power,” Asian Survey, vol. 29,
no. 11, 1989, (as cited in Chansoria, n. 6.)

14

Ibid., pp. 271–274.

15

Jain, n. 7.

16

Horimoto, n. 11

17

Badar Alam Iqbal, “Indo-Japanese Economic Relations in the 1990s,” India Quarterly, vol. 52, no. 1/2(January-June 1996); also see, Rajesh Mehta, “Indo-Japanese Trade: Recent Trends,” RIS Discussion
Papers, no. 12, May 2001, (as cited in Chansoria, n. 6.)

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Japan Review Vol.5 2022

Monika Chansoriathat “ peace and stability in Asia is a matter of great concern to Japan the development of thisregion inhabited by one fifth of all mankind, is in itself one of the major interests of the wholeworld ”18 Kaifu also made a keynote speech at the Indian Parliament covering Japanʼs Asia
policy19 and stressed that Japan would seek to deepen engagement on issues without limitingthese to agenda items on bilateral or Asian issues alone.20 It was for these reasons that, despite
the fact that Japanese premiers had previously visited the region in 1957, 1961, and 1984, thevisit of Prime Minister Kaifu to four South Asian countries in 1990, namely, India, Bangladesh,Pakistan, and Sri Lanka, became a landmark in the history of Japan–South Asia ties. By meansof this visit, Japan sought to convey that, having achieved “Asian economic powerhouse” status,
Tokyoʼs policy interests and approach, traditionally limited to East and Southeast Asia, wereincreasingly making a shift towards South Asia.
Subsequently, in 1991, Japan provided an emergency foreign exchange loan to India, giventhat the Gulf crisis and other factors had caused Indiaʼs foreign exchange reserves to plummet
to US $1.1 billion.21 Of all the countries asked by India for emergency assistance, only Japan
responded. Indian experts in Japan-India economic relations lauded Japanʼs emergency support.22
The emergency assistance was also a manifestation of Japanʼs proactive India policy. The speakerof Japanʼs Lower House, Yoshio Sakurauchi (1990–1993), responded to Ministr y of Foreign
Affairsʼ call for assistance to India with a view of placing greater priority on Asian diplomacy.
Sakurauchi later served as chairman of the Japan-India Association for many years (1997–2002)
and poured considerable effort into improving Japan-India relations based on India ʼs risingstrategic importance. Indiaʼs objective, on the other hand, was to garner more direct investment
from Japan as part of its economic liberalization policy launched in 1991. Alongside this economic
liberalization, India also announced its “Look East” foreign policy initiative in 1993, and had highexpectations from Japan vis-à-vis investment, trade, and technology.
The sub-continent was increasingly assuming greater significance for Japanʼs economic andpolitical interests, which stemmed from the fact that 70 percent of its oil imports from the Middle
East came via sea crossing the Indian Ocean. It was thus in Japanʼs interest that regional security
and stability be maintained by means of providing economic/development assistance. By thistime, Japan had already established its credentials in so far as investment and aid across theThird World was concerned. South Asia, for its part too, was seeking Japanʼs technological andeconomic development assistance as well as its foreign aid, which was the largest in absolute
dollar terms. Being a net creditor nation soon led to Japan becoming the leading single donor
to the development of this region.23 There came about a seeming convergence of Japanʼs overall
regional politico-economic strategies with South Asia per se in that the region (especially andmost notably India) was pursuing an economic liberalization and deregulation agenda.
Further, India in particular (and South Asia as a whole) began deriving benefits from Japanʼseconomic and technological assistance and acknowledged the imperatives of its economic
interdependence with Tokyo in view of the prevailing global economic realities. Economic
18

Speech by PM Toshiki Kaifu, Japan and South Asia: In Pursuit of Dialogue and Cooperation for Peaceand Prosperity (Parliament House, New Delhi) April 30, 1990.

19“Japanʼs Kaifu Starts South Asian Visit,” Los Angeles Times Archives, April 29, 1990, https://www.
latimes.com/archives/la-xpm-1990-04-29-mn-530-story.html

20

Speech by Kaifu, n. 18.

21

Makoto Kojima, “An Analysis of the Indian Economy,” KOMEI, May 1993, pp. 199–200.

22

Srabani Roy Choudhur y, “India-Japan Economic Par tnership: Scope and Prospect,” in Takenori
Horimoto and Lalima Varma, eds., India-Japan Relations in Emerging Asia, (Manohar Publishers &Distributors, 2013) p. 223.

23

Saburo Okita, “Japanʼs Quiet Strength,” Foreign Policy, no. 75, Summer 1989, (as cited in Chansoria, n. 6.)

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Japan Review Vol.5 2022

Japan-India at 70: The Early Origins of a Relationship that Defines Asia’s Futureassistance was an area where responsibility was24 and continues to be shared widely by various
ministries in Japan. The formation of the basic policy of ODA is made by the coordinated effortsof Japanʼs Ministry of Foreign Affairs (MOFA), Ministry of Finance, Ministry of Economy, Tradeand Industry (METI) and Economic Planning Agency (EPA). The influence of METI remains
the most pronounced among these in terms of yen loans, with MOFA playing a decisive role indetermining grant aid. MOFA divided Japanʼs aid policy regime into four25 different stages: firstly,a system development period (1954–76); secondly, a system expansion period (1977–91); thirdly,
a policy and philosophy enhancement period (1992–2002); and finally, a period for meeting thechallenges of a new era (2003 onward). Notably, the ODA Charter of 1992 stipulates few principles
for such political use.26 In the case of South Asia, official aid has been a more dominating featureof relations with Japan, given that the latter remains a top aid donor to most of the sub-continentʼsnations.
Despite the gradually ascending and reassuring graph of regional ties illustrated above, theend of the decade of the 1990s witnessed a steep decline and acrimony in Japanʼs ties with India
and Pakistan in particular following the nuclear tests conducted by both nations in May 1998 that
led to the nuclearization of the sub-continent. Given Japanʼs commitment to the Nuclear NonProliferation Treaty, its censure came in the form of an immediate freeze on all grant aid andsubsequently on new yen loans.27 In addition, Japan became the first Organization for Economic
Cooperation and Development (OECD) nation to impose a range of economic sanctions on both
India and Pakistan.28
Subsequently, the period 2000–2010 began witnessing a gradual thawing of ties between
Japan and India, with the two having traveled a long distance together since the mid-1960s whenSouth Asia (including India) was omitted from what Japan considered “Asia.” This embraceseemingly mirrors the regional and global geopolitics and geostrategies at play that had been
impacted by the strategic shifts in policy thinking and approaches occurring within Asia. Japanand India by now shared similar perceptions of the evolving environment in the region and theworld at large; recognized their common commitment to democracy, human rights, and the ruleof law for promoting stability and development in Asia and beyond; acknowledged their common
interest in the safety of sea lines of communications; committed to jointly fight against terrorism
and recognized each otherʼs counter-terrorism efforts; and sought to establish a “Strategic andGlobal Partnership” driven by converging long-term political, economic and strategic interests,
aspirations and concerns.29

Theoretical and Conceptual Basis of Indo-Japanese Dynamics

Indiaʼs evolution as a playing field in the Asian geostrategic landscape has transited multiple
phases. Beginning essentially as a reluctant player who achieved independence from many
decades of British colonial rule following the end of World War II, it emerged as a nation right inthe middle of the Indian Ocean̶a lifeline water body connecting the Far East with the Atlantic.
24

Purnendra Jain, “Japan and South Asia: Between Cooperation and Confrontation,” in Inoguchi Takashi
et al., n. 8, (as cited in Chansoria, n. 6.)

25

Japan Ministr y of Foreign Af fairs on ODA, available at https://www.mofa.go.jp/policy/oda/
cooperation/anniv50/pamphlet/index.html

26

Tanaka Akihiko, n. 8, (as cited in Chansoria, n. 6.)

27“Nuclear Anxiety: The Allies; Japan Freezes Some Grants; Other Nations Seem Doubtful,” The New YorkTimes, May 14, 1998.

28

Tanaka Akihiko, n. 8, (as cited in Chansoria, n. 6.)

29“Joint Declaration on Security Cooperation between India and Japan,” Ministry of External Affairs,India, October 22, 2008.

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Monika Chansoria

This added to New Delhiʼs significance in a remodeled multipolar regional architecture with ablend of foreign policy approaches and strategies cited in the context of historical and current
influences and motivations. The conceptual underpinnings of this finds roots in realism (politicalrealism to be more precise) that prioritizes national interest and security. The notion is often
tantamount with power politics to a large extent, including extended variables such as the drivefor regional status, ambitions, and applied strategies including economic statecraft. 30 In therealist paradigm, security is primarily based on the principle of balance of power, as state-centric
approaches are placed in the traditional realist framework of security that essentially centeraround the concept of power. Indiaʼs, and for that matter South Asiaʼs, political realism exhibits
its competitive and conflictual sides equally, especially in terms of the struggle for regionalsignificance and power.31
While great powers often produce theories of international relations (IR), in the case of Japanand from a Japanese perspective, being embedded in a global governance system governed by the
US has inhibited theoretical advancement.32 This, combined with the relatively strong tradition ofdescriptive work, has tended to discourage the development of a Japanese IR theory.33 For Japan,
its style and form of integration holds three distinctive features that have developed step by stepon a domestic, regional, and global scale. Japanʼs approach to IR theories, among other planes,
needs to be identified and understood through the prism of identity as a key concept.
Nishida Kitaro has attempted to address the issue of Japanese identity in IR as Japan juggles
to fit in a space that lies somewhere between the East and the West. Nishida as an innate
constructivist makes identity the thrust of his philosophy.34 The constructivist analysis of IR
states that the notion of identity is ideational, shaped by complex factors such as history, wayof life, values, and interests. This seems to be particularly useful for analysis in East Asia as it
affects policy decisions, particularly in the case study of Japan. The latter seeks to approachregional politics and statecraft through regional economic integration. When combined withsustainable development, this places regional integration theories higher than state sovereignty
as economist Hirano Yoshitaro has argued.35 There are two competing ideological factors atwork in Japanʼs approach to the regional economic integration theory. The first is the desire forhistorical rapprochement with Japanʼs neighbors in Asia based on the postwar Franco-German
model. The other factor is a new nationalism in Japan, designated as the desire for greater“assertiveness” in foreign (especially Asian) affairs. This includes the desire for a stronger Asianrole in world affairs (if not Japanese dominance of that role). In the short term, Asian economic
30

Roger D. Spegele, Political Realism in International Theor y, (Victoria: Cambridge University
Press,1996); for related reading on the subject see, R. Harrison Wagner, War and the State: The Theoryof International Politics, (The University of Michigan Press, 2007), (as cited in Chansoria, n. 6.)31

The theoretical roots of South Asia as a sub-region in terms of its strategic thinking and orientation
can be traced back in history to the end of fourth century BCE, when the Indian treatise Arthashastra(meaning the “Science of Material Gain” or the “Science of Polity”)̶a voluminous seminal masterpiece
written in Sanskrit, delineating theories of statecraft, diplomacy, strategy, and prerequisites of politics
and power̶was penned by Kautilya. Arthashastra became a trailblazing document that contains arealist vision of politics. It is considered unique and defining in Indian literature (and erstwhile unitedSouth Asia) owing to the forthright advocacy of its cardinal virtue, realpolitik.

32

Inoguchi Takashi, “Why are there no non-Western theories of international relations? The caseof Japan,” in Barr y Buzan and Amitav Achar ya, eds., Non-Western International Relations Theory:
Perspectives on and beyond Asia, (Oxon: Routledge, 2010), (as cited in Chansoria, n. 6.)

33

Ibid.

34

Kitaro Nishida, Intelligibility and the Philosophy of Nothingness: Three Philosophical Essays, (International
Philosophical Research Association of Japan, and East-West Center Press, Honolulu, 1958).

35

Inoguchi Takashi, n. 32.

9Japan Review Vol.5 2022

Japan-India at 70: The Early Origins of a Relationship that Defines Asia’s Future

integration appears to have served both ideologies.36 It required Asian neighbors to put their past
relationships with Japan behind them in significant ways, it reoriented Japanese policy initiatives
towards Asia (away from the United States), and finally it placed Japan in the position of being avital player in the region.37
The classical theories on regionalism have focused on regional integration processes
explained via geostrategic rationality, realism, and economic interdependence, and throughtraditional material factors such as security, economic flows, and geostrategic choices. 38
Substantively, Japanʼs international relations have evolved to a stage of developing its own
Japan-centric world order, where Japan was envisaged as part of Asia but somewhat separate
from Asia.39 Based on these concepts and theories, wherein identity, norms, and interaction of
personalities remain vital components, the evolving equation and geostrategic dynamics between
Japan and India were evaluated, amidst contesting systemic conditions and statesʼ priorities, toshape a future geopolitical and economic order of Asia that could well be a new prospective dawnof an alternative regional Asian dynamic.

Japan’s Free and Open Indo-Pacific Framework:
Influence of the 1655 Text “Majma-ul-Bahrain” (Confluence of the Two Seas)
Originally a geographic concept comprising the Indian Ocean and Pacific Ocean that shaped
linkages between the United States and East Asia, a free and open Indo-Pacific maritime zone
has evolved into a geostrategic concept and strategy. When stretched beyond the Indian Ocean,it paved the way for what more commonly came to be known by the new framework of the“Indo-Pacific”. At its heart, a strategic system can be understood as a set of geopolitical power
relationships among nations where major changes in one part of the system affect what happensin the other parts.40
The US policy pronouncements of “ pivot ” and later “ rebalance ” in Asia were almost
concurrently followed by PM Shinzo Abeʼs proposed Indo-Pacific concept and strategic framework
in 2012. When Abe penned his book Utsukushii kuni e (Towards a Beautiful Country) in 2006,
he publicly advocated the concept of a “broader Asia” consisting of nations in the Pacific andIndian Oceans. Abe appeared to have anticipated Asiaʼs geostrategic future exclusively throughthe prism of political realism, and rightly so.41 The concept of a “broader Asia” appears to havetranscended geographical boundaries, with the Pacific and Indian Oceansʼ mergence becoming
far more pronounced and evident than ever. To catch up with the reality of broader Asia, the Abeadministration rehabilitated its focus on South Asia in general, and India in particular, within theambit of Japanʼs Free and Open Indo-Pacific Strategy launched and pushed during the second
tenure of the Abe administration in December 2012. Abeʼs bid to forge this vision, in fact, began
during his first term as Japanʼs PM, when he addressed the Indian Parliament in August 2007.
36

Adam S. Posen, “Japanʼs Distraction by Regional Economic Integration,” State Depar tment INR
Roundtable on Northeast Asian Regional Economic Integration, Peterson Institute for International
Economics, June 2002.

37

Ibid.

38

Sergio Caballero Santos, “Regional Integration Theories: The Suitability of a Constructivist Approach,”
Paper 383, Session on Globalization and Governance, IPSA-Chile, July 2009.

39

Inoguchi Takashi in Buzan, et al., n. 32, (as cited in Chansoria, n. 6.)

40

Rory Medcalf, “The Evolving Security Order in the Indo-Pacific,” in David Brewster, ed., Indo-Pacific
Maritime Security: Challenges and Cooperation, (National Security College, Crawford School of Public
Policy, Australian National University, July 2016); also see, Rory Medcalf, “The Indo-Pacific: Whatʼs in a
Name?” The American Interest, vol. 9, no. 2, Nov/Dec 2013, pp. 58–66.

41

Monika Chansoria, “Modi-Abe Personality Impacts Foreign Policy,” The Sunday Guardian, September
20, 2014.

10Japan Review Vol.5 2022

Monika Chansoria

During this visit, he famously cited and quoted Majma-ul-Bahrain (Confluence of the Two Seas
published in 1655), a work authored by Mughal prince Dara Shikoh. This book is said to havebeen the inspiration, foundation, and title of Abeʼs vision to nurture an open and transparent IndoPacific maritime zone as part of a broader Asia.42
Analyzing these past decades of Asian politics and policies brings to the fore cer tain
momentous developments that have redefined Asian geopolitics, expectedly impacting South
Asia and the Indian Ocean Region (IOR). By 2030, Asia will contribute most of the global
growth,43 thus underscoring its importance and that of the Indo-Pacific. These security realities
have driven Japanʼs policies and approaches on operating in the IOR as they underwent a majortransformation. The first signal of this was the lifting of the ban on overseas deployments toenable its Self-Defense Forces to dispatch armed troops to Iraq in 1992.44 From that period, thetransition and evolution has reached a point when today, notably, nearly 40 percent of all Japanʼs
Self-Defense Forcesʼ missions have occurred in the IOR, and nearly half of Japanese ODA goes to
IOR countries.45

Conclusion

Japanʼs engagement with India symbolizes acknowledgment of the economic and strategic
dependence of developments across a much wider maritime region, at the heart of which lies
the Indian Ocean. The Indo-Pacific concept has been embraced, with many nations enunciating
their strategies and outlook for the region, as witnessed by the creation of partnerships andmechanisms as the opportunities, concerns, and stakes of these nations intersect with those ofsouthern Asia.46
Since the time India along with other sub-regions came up on Japanʼs foreign policy radar,it started becoming increasingly clear that Tokyoʼs “Third World policy” would serve as a vital
component of its overall comprehensive security thinking and approach.47 Despite the significanceof Japanese aid to India and South Asia, the rationales and results of development cooperation
activities that Japan has executed in the region remain underexplored. 48 It would further bereasonable to argue that, in formulating its foreign policy for India, Japan will likely position itself
in favor of closely engaging with India to achieve strategic deliverables. There is a concurrenceof thought in Tokyo that, in a world where it is no longer possible to separate economics frompolitics (seikei bunri), Japanʼs new comprehensive security (sogo anzen hosho) strategy should
revolve more acutely around active politico-diplomatic involvement. Tokyoʼs policy interests
and approach, traditionally limited to East Asia and Southeast Asia prior to the Cold War, haveincreasingly shifted towards the Indian Ocean region, with India still at its nucleus. Completing
70 years of bilateral relations, the India-Japan Special Strategic and Global Partnership remains
42

Ibid.

43

Praneeth Yendamuri and Zara Ingilizian, “In 2020 Asia Will Have the Worldʼs Largest GDP. Hereʼs What
That Means,” World Economic Forum, December 20, 2019, available at https://www.weforum.org/
agenda/2019/12/asia-economic-growth/

44

John Hartle, “The Normalization of Japanese Policy in the Indian Ocean Region,” Policy Report, Analysis
and Policy Observatory, Australiaʼs Global Interests, June 21, 2018, (as cited in Chansoria, n. 6.)45Peter Wyckoff, “Making Waves: Japan and the Indian Ocean Region,” Commentary, The Stimson Center,May 1, 2017.

46

For further reference and reading on this view, see remarks by V. Muraleedharan, Minister of State forExternal Affairs, International Workshop on “Quad in the Indo-Pacific,” MEA, New Delhi, April 29, 2021.

47

Nester, n. 6, p. 279, (as cited in Chansoria, n. 6.)

48

Sojin Shin, “Japanʼs Foreign Aid to South Asia: Addressing a Strategic Need,” NUS-ISAS Working Paper,
no. 318, March 8, 2019, (as cited in Chansoria, n. 6.)

11
Japan Review Vol.5 2022

Japan-India at 70: The Early Origins of a Relationship that Defines Asia’s Futurefirmly rooted in history with common values being the mainspring for advancing shared strategic
objectives and progress for the benefit of the entire Indo-Pacific region.

12
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Atsuko Kanehara

Reconsideration of the Distinction between the Use of Armsin Law Enforcement and the Use of Force Prohibitedby International Law―With an Analysis of the Inherent Significance ofThis Issue to Japan―
Atsuko Kanehara*
Abstract
This article examines the distinction between the use of arms in law enforcement and theuse of force prohibited by international law with some analysis thereof having inherent
significance to Japan in its particular context in the East China Sea. Following on from theprevious work by this author, entitled “The Use of Force in Maritime Security and the Useof Arms in Law Enforcement under the Current Wide Understanding of Maritime Security,”
published in this Journal, reconsideration of the distinction is strongly required. This isbecause the already wide understanding of maritime security is expanding even further.
As a result, two kinds of distinctions tend to be blurred, namely, the distinction between
security or military acts and law enforcement, on the one hand, and also, the distinction
between the use of arms in law enforcement and the use of force prohibited by internationallaw, on the other hand. This is typically the case with Japan, which has been facing, as aninherent circumstance, the continued tension in the East China Sea.
The structure of this article is as follows. After clarification of the terminology of thisauthor, the Introduction will provide, in the particular circumstance surrounding Japan,
concrete reflection of the issue of the two distinctions mentioned here. Then, Section I will,based upon said previous work by this author, succinctly confirm the presupposition thatthe nature of acts or measures, in principle, decides the nature of the use of force or arms
accompanying said acts or measures. Some complementary arguments will follow. Section
II will consider several issues arising from the presupposition that this article maintains.
Within the framework of the analysis thus provided, Section III will explore how to provea use of weapons as a use of arms in law enforcement. For this purpose, this article will
examine the relevant jurisprudence, mainly focusing on those recently entertained rather
than those traditionally discussed, and will list up as many critical factors as possible thatneed to be carefully considered, together with their possible categorization. In Section IV
and Section V, as an examination of a special issue, some analysis will follow regarding law
enforcement measures with weapons implemented by Japan to cope with Chinese vessels in
the East China Sea. Finally, some conclusion will be given.

* Atsuko Kanehara is Professor of Public International Law at Sophia University.
** All URLs were last accessed on the 24th of December 2022.

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Reconsideration of the Distinction between the Use of Arms in Law Enforcement
and the Use of Force Prohibited by International Law—With an Analysis of the Inherent Significance of This Issue to Japan—

Introduction

A

1. Terminology
t the beginning of this examination, some explanation of the terminology is necessary
to avoid any confusion. Different from the expression “the physical use of weapons,”1
according to the relevant international law rules, “the use of force” and “the use ofarms” have legal connotations. The expression “the use of force” is used as a legal
term to connote a legal meaning. This is because the term “the use of force” or simply “force” ispart of Article 2, Paragraph 4 of the United Nations Charter (UN Charter), and the rule in thisprovision has been established as a customary international law rule.
In the same way, the term “the use of arms,” as exercised in law enforcement measuresthat could be defined by international law rules, may gain a legal connotation.2 There is specialparlance in regard to the law of the sea, such as the right to approach, the right to recognize thenationality of a vessel, and the right to visit (boarding inspection). In place of them, this article
uses the generic and general term “law enforcement.”
When appropriate and necessary, the expression “situation” will be used in the manner defined
as follows. “Situations” refer to various sorts of scenes or stages in law enforcement measures andmilitary acts. There is a “self-defense situation,” where military acts are expected with the use offorce prohibited by international law.3 The situation in which law enforcement measures are to betaken is called a “law enforcement situation.” The nature of a particular situation is presupposed
to be the same as that of the acts or measures to be conducted or taken in said situation.4 It is notalways easy to make the distinction between concrete acts and the context thereof, namely, the“situation” in which the acts are conducted. Therefore, the distinction between “acts or measures”
and the “situation” inevitably becomes a relative one.
In order to avoid redundant repetition, when no confusion is expected, in this article, “theuse of force” means the use of force prohibited by international law unless being justified
principally as an exercise of the right of self-defense, and “the use of arms” means the use of arms
accompanying (or, in conjunction with, and in connection with, etc.) law enforcement measures.
With this terminology, then, the remaining par t of the Introduction will explain thecircumstance inherent to Japan. In doing so, given the wide understanding of maritime security,
the concrete definition of the issues of the two kinds of distinctions mentioned above will beclarified, and its significance will be proven.

2. Concrete Definition of the Two Issues of the Two Kinds of Distinctions under
the Wide Understanding of Maritime Security
It is well recognized that the idea of maritime security has expanded to include combat,
in addition to militar y threats, various threats including terrorism, weapon proliferation,1“Forcible acts” and violence also mean acts with weapons. This paper will use the expression “thephysical use of weapons” or simply “the use of weapons.”2

A clear and established definition of law enforcement is difficult to find under international law. This
article will take up this issue later.

3“Aggression,” “invasion into territories of foreign States,” and “the right of self-defense” are the typicalterms used to describe such a situation. Under the law of armed conflict, a certain circumstance isdefined as an armed conflict. In that case, the circumstance is legally defined as an armed conflict, andthere is no need for the term “situation.”

4

While it is not clearly demonstrated, one author seems to take the same position as that of thisarticle: Patricia Jimenez Kwast, “Maritime Law Enforcement and the Use of Force: Reflections on theCategorisation of Forcible Action at Sea in the Light of the Guyana/Suriname Award,” Journal of Conflict& Security Law, 13 (2008), 63.

14Japan Review Vol.5 2022

Atsuko Kaneharatransnational crimes, piracy, environmental/resource destruction and illegal seaborne migration,and so on.5 There would be no argument that this tendency has developed further, considering
the fact that recently, there have been international conflicts regarding the seizure of foreign
vessels,6 and serious incidents such as illegal, unreported and unregulated (IUU) fishing, marine
environmental harm, and piracy and armed robbery. So, it may be useful here to (re-)examine
the significance of the wide understanding of maritime security. This point can be explained in acontext particular to Japan.
First of all, in 2018, Japan enacted the Third Basic Plan on Ocean Policy (Basic Plan)7 andadopted as its main pillar the idea of comprehensive maritime security.8 The reason for the
adoption of such an idea as comprehensive maritime security is set forth as follows.9
Substantively speaking, various ocean policies are closely related to each other, and theyshould form an essential part of the comprehensive policy of maritime security.10 In addition,
as a background unique to Japan, the idea of comprehensive maritime security was and stillis expected to push for ward the procedural development of the organizational structure of
the bureaucracy for both drafting and realizing Japanʼs ocean policy. In order to enact suchcomprehensive ocean policies, an integrated structure of ocean policy-making should beestablished that is apart from the traditional vertically segmented organizational structure of thebureaucracy in Japan.11
Regarding the content of comprehensive maritime security, the Basic Plan contains two
categories of policies for maritime security: policies for maritime security, and policies forming
the foundation for contributing to maritime security.12 The former, in addition to self-defense
measures, consists of measures such as those for maintaining the peace and order of the oceansby law enforcement, the realization of the safety of marine traffic, and coping with ocean-oriented
5

Typical examples are as follows. Douglas Guilfoyle, “Maritime Law Enforcement Operations andIntelligence in an Age of Maritime Security,” International Law Studies, U.S. Naval War College, 93(2017), 298 et seq.; Natalie Klein, Maritime Security and the Law of the Sea, (Oxford University Press,2011); Atsuko 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.embjapan.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; Atsuko Kanehara, “The Use of Force inMaritime Security and the Use of Arms in Law Enforcement under the Current Wide Understandingof Maritime Security,” Japan Review, 3 (2), Fall (2019), https://www.jiia-jic.jp/en/japanreview/pdf/
JapanReview_Vol3_No2_05_Kanehara.pdf (hereinafter referred to as “Maritime Security”).

6This article will subsequently examine the recent jurisprudence in which the seizure of Ukraine military
vessels by the Russian authorities raised the issue of the distinction between the use of arms in law
enforcement and the use of force accompanying military activities.

7

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

8

Atsuko Kanehara, “Dai Sanki Kaiyo Kihon Keikaku ga Egaku Anzenhosho no Sugata [Maritime Security
That the Third Basic Plan on Ocean Policy Provides for],” Komei 152 (2018), 22–28.

9“Maritime Security,” 50–51.

10Prior to the Basic Plan, in 2007, Japan enacted the Basic Act on Ocean Policy. A provisional English
translation is available at, https://www.cao8.go.jp/ocean/policies/law/pdf/law_je.pdf.

11Regarding the particular significance of the idea of comprehensive maritime security from the viewpointof Japanʼs organizational structure for ocean policy-making, see the lectures by the author, supra n. 5.

12The policies for combatting illegal acts at sea, such as IUU fishing, terrorism, environmental
destruction, and seaborne natural disaster, are not necessarily based upon the “common” interests ofinternational society. Sovereign States recognize these illegal acts as maritime threats to their “individual”
interests.

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Reconsideration of the Distinction between the Use of Arms in Law Enforcement
and the Use of Force Prohibited by International Law—With an Analysis of the Inherent Significance of This Issue to Japan—

natural disasters.13 The latter is divided into two types of measures: measures forming the basisof maritime security and measures that support it in a complementary manner.14 Such content issufficient proof of the wide coverage of comprehensive maritime security.
The Basic Plan actually includes not only the typical issue of the use of force against military
threats, but also the issue of law enforcement to combat illegal acts committed at sea, suchas piracy, terrorism, illegal migration, IUU fishing, etc.15 From the perspective of this article,
the point is that both sets of policies, for coping with military threats and with illegal acts, areincluded together in the policies on maritime security. This fact reflects Japanʼs position that selfdefense and law enforcement are connected to each other in a unique manner.16 Beyond that, theactual circumstance surrounding Japan in the East China Sea inevitably causes the two issues tobe more closely connected. This forms the second point of the circumstance inherent to Japan.
Second, Japan has been facing, for more than a decade, the seriously tense circumstancecaused by China in the East China Sea.17 The principal background for it is the difference of
opinions between the two countries regarding the territorial sovereignty of the Senkaku Islands.18
To demonstrate its territorial sovereignty over the islands, China has persistently dispatched its
vessels, such as government vessels, military ships, and fishing boats, to the contiguous zone andthe territorial sea of Japan surrounding the Senkaku Islands.19
To cope with the tense circumstance, the Japan Coast Guard (JCG) has unceasingly beenon duty guarding the territorial sea of the Senkaku Islands. This is due to Japanʼs position thatthe tense circumstance should, at least, be primarily coped with by police measures or by law
enforcement measures taken by the JCG. Avoidance of escalation forms the main reason forthat position.20 In actuality, however, it is likely that the circumstance will easily grow to thepoint of creating a militar y threat to Japan, one that could not effectively be handled by the
JCG. The Japan Maritime Self-Defense Force (JMSDF), meanwhile, is in charge of maritime
self-defense. When it is necessar y and the legal requirements under the domestic laws are
satisfied, the JMSDF should take action at the scene. In this regard, under Japanese law, thedistinction between law enforcement measures and self-defense ones must be rigidly maintained.
In particular, under Article 25 of the Coast Guard Law (CGL), 21 the JCG is never considered
13

The Basic Plan, 24–26.

14

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

15

According to the International Maritime Organization, with regard to the distinction between maritime
safety and maritime security, the latter is related to protection against unlawful and deliberate acts, ascited by Klein, op. cit., supra n. 5, 8, n. 23.

16

This article will elaborate on this point later when it examines Japanʼs position when coping with
Chinese warships and government ships that enjoy immunity.

17

As a detailed explanation for this tense situation, see Atsuko Kanehara, “International Law as a Tool
to Combat China,” Japan Review, 4 (1), Summer (2020), https://www.jiia-jic.jp/en/japanreview/
pdf/04JapanReview_4-1_summer_Kanehara.pdf, 1-3; Atsuko Kanehara, “Refining Japanʼs Integrative
Position on the Territorial Sovereignty of the Senkaku Islands,” International Law Studies, 97 (2021),
https://digital-commons.usnwc.edu/cgi/viewcontent.cgi?ar ticle=2990&context=ils, 1954–1957(hereinafter referred to as “Japanʼs Integrative Position”).

18

As Japanʼs official position does not admit the existence of a dispute, this article does not use the word
“dispute.” See “Japanʼs Integrative Position,” 1591, 1610–1612.

19

A statistical analysis is provided and continuously updated by the Japan Coast Guard, https://www.
kaiho.mlit.go.jp/mission/senkaku/senkaku.html.

20

Kanehara, supra n. 17, 19.

21

An unof ficial English translation of the CGL is available at https://nippon.zaidan.info/
seikabutsu/2001/00500/contents/00021.htm.

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Atsuko Kanehara

a militar y organ.22 In addition, the JMSDF takes not only defense measures but also police
measures under Article 82 of the Self-Defense Force Law.23 The use of weapons by both the JCG
and the JMSDF, as far as it is for police measures, is restricted as such by Article 7, Paragraph 1of the Police Duties Execution Law.24
Irrespective of the legal and theoretical distinction between the two issues, law enforcement
and self-defense, the reality is that, very naturally and unavoidably, the two issues co-exist andare almost inseparable in the same circumstance. As a result, it becomes very difficult to makethe distinction between the use of arms in law enforcement and the use of force prohibited byinternational law. In other words, if Japan, under its laws,25 tries to strictly maintain the distinction
between the law enforcement measures and self-defense measures, and also between the use of
weapons accompanying each of these two measures, and if Japan insists on the distinction not
only domestically but also internationally, too, it bears the heavy burden of proving, by itself, thenature of the use of weapons, whether it is the use of arms in law enforcement or the use of force
in self-defense.
Such a reality has been further strengthened by Chinaʼs recent enaction of its Coast Guard
Law (CCGL) in 2021.26 Article 83 reads:
Coast guard organizations perform defense operations and other tasks in accordance with the“National Defense Law of the Peopleʼs Republic of China”, the “Peopleʼs Armed Police Law of
the Peopleʼs Republic of China” and other relevant laws, military regulations and orders of theCentral Military Commission.
This provision enables Chinese law enforcement vessels which are dispatched to Japan ʼ s
22Article 25 of the CGL reads:
Nothing contained in this Law shall be construed to permit the Japan Coast Guard or its personnel
to be trained or organized as a military establishment to function as such.

23

This is called a “maritime police operation.” Regarding maritime police operations, see Koichi
Morikawa, “Kaijo Keibi Kodo no Kokusaiho Jo no Konkyo ni Tsuiteno Ichi Kosatsu―Kaijo Jieitai no
Chuto Chiiki Haken wo Meguru Giron wo Tegakarini―[An Analysis of the Maritime Police Operation
under International Law―with the Example of the Discussion on Japanʼs Dispatch of the JMSDF to theMiddle Eastern Region],” in Masaharu Yanagihara, Koichi Morikawa, Atsuko Kanehara, Taro Hamada
eds., Gurobaru Keizai to Kokusaiho Chitsujo, Mamiya Isamu Sensei Tsuito Kinen [International Law
Order and the Global Economy, Memory of Professor Isamu Mamiya], (Shinzansha, 2021), 33 et seq.

24

The provision reads:
In the event that there is probable cause to deem it necessary for the arrest of a criminal or theprevention of a criminalʼs escape, for self-protection or the protection of others, or for suppressionof resistance to the performance of public duty, a police official may use a weapon within the limits
judged reasonably necessary in the situation;
Provided, however, that the police official must not inflict injury upon any person except in a casefalling under Article 36 (Self-Defense) of the Penal Code (Act No. 45, 1907) or Article 37 (Avertingpresent Danger) of the same Act, or a case falling under one of the following items:
An unofficial English translation is available at: https://www.japaneselawtranslation.go.jp/ja/laws/
view/4043/tb. As for4 Article 25 of the CGL, see supra n. 22.

25

Article 9 of the Constitution of Japan and Article 25 of the CGL form the principal part of the relevant
laws. Article 9 of the Constitution of Japan reads:
Aspiring sincerely to an international peace based on justice and order, the Japanese people forever
renounce war as a sovereign right of the nation and the threat or use of force as means of settlinginternational disputes.
An official English translation is available at: https://japan.kantei.go.jp/constitution_and_government/
frame_01/html.

26

An unofficial English translation of the CCGL is available at the U.S. Air University web site: https://www.airuniversity.af.edu/Portals/10/CASI/documents/Translations/2021-02-11%20China_Coast_
Guard_Law_FINAL_English_Changes%20from%20draft.pdf.

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Reconsideration of the Distinction between the Use of Arms in Law Enforcement
and the Use of Force Prohibited by International Law—With an Analysis of the Inherent Significance of This Issue to Japan—

territorial sea surrounding the Senkaku Islands to easily change their function from law
enforcement to self-defense. 27 In the circumstance of these sea areas, from the practicalperspective of an effective response by Japan, the distinction between law enforcement and selfdefense would become significantly fruitless.28
In addition, relating to the distinction between the use of arms and the use of force, while a
detailed examination will be given later, here, it is useful to point out the special issue that Japan
has been facing. For more than a decade, China has periodically sent its government vessels andmilitary ships to Japanʼs territorial sea surrounding the Senkaku Islands.29 They enjoy immunity
under Article 32 of the United Nations Convention on the Law of the Sea (UNCLOS). The JCG
has been incessantly watching Japanʼs territorial sea around the Senkaku Islands, and copingwith Chinese government vessels and military ships on the spot. It is always performing a law
enforcement function, and coast-guarding is an exercise of Japanʼs sovereignty over the islands
with the territorial sea thereof according to the law of the sea, namely, Article 2 of UNCLOS.
If Japan takes coercive measures that are beyond a request to leave under Article 30 of
UNCLOS,30 in some cases even using weapons, many authorities indicate that the stage wouldchange from one under the law of the sea to one regulated by the law relating to the use of force.31
Therefore, here, also, the issue becomes complicated with respect to the distinction between theuse of arms in law enforcement and the use of force prohibited by international law.
Thus far, focusing on the inherent circumstance which Japan has been facing, in a concretemanner, the Introduction has clarified the wide understanding of maritime security. In thatcircumstance, the distinction between the use of arms in law enforcement and the use of force
prohibited by international law can be easily blurred in reality. Japan needs to effectively copewith the circumstance by taking law enforcement measures and self-defense measures with thelegal justification under both its domestic laws and international law.32
Next, Section I will formulate a theoretical framework under which the distinction between
the use of arms in law enforcement and the use of force prohibited by international law isappropriately discussed.
This author has already proposed a theoretical framework in that sense.33 Here, after
confirmation of the framework, some complementary explanation will be provided.

I. A Theoretical Framework for the Analysis of the Distinction between the Useof Arms in Law Enforcement and the Use of Force Prohibited by International
Law
1. Formulation of the Issues to Be Discussed
The distinction between the use of arms and the use of force has begun to attract attention in
27

As to other criticism against the CCGL, see “Japanʼs Integrative Position,” 1625–1626.

28

Regarding the impact of the CCGL on Japan, see Atsuko Kanehara, “The Impact on Japanʼs Coast Guard
and Maritime Security Caused by Chinaʼs Coast Guard Law of 2021,” Japanese Yearbook of InternationalLaw, Vol. 65 (2022), forthcoming.

29

See “Japanʼs Integrative Position,” 1594–1595.

30

Here, the issues of the interpretation of the relevant provisions of UNCLOS and their relationship toeach other, such as Article 30 and Article 32, are not touched upon. This article will do so succinctly
later.

31

The relevant works will be introduced later as appropriate.

32

Sections IV and V will thoroughly examine this point, particularly from the perspective of international
law.

33

“Maritime Security,” 40–49.

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relatively recent days. As for early examples of such jurisprudence, there are the 1998 Fisheries
Jurisdiction Case (jurisdiction)34 entertained by the International Court of Justice (ICJ), and the1999 M/V Saiga Case (No. 2)35 dealt with by the International Tribunal for the Law of the Sea(ITLOS).36 In these cases, with regard to the use of weapons by the law enforcement organsof the defendant, its nature was discussed, that is to say the nature of the use of arms in law
enforcement, not the use of force that falls under Article 2, Paragraph 4 of the UN Charter.
A thorough examination of the relevant jurisprudence will be conducted later, in Section III.
Prior to that, to provide an example of the formulation of the issues to be dealt with in this article,
the following remarks by the court and the tribunal are helpful.
In the Fisheries Case, the ICJ said:
84. For all of these reasons the Court finds that the use of force37 authorized by the Canadianlegislation 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 reser vation does not interms mention the use of force. Boarding, inspection, arrest and minimum use of force forthose purposes are all contained within the concept of enforcement of conser vation andmanagement measures according to a “natural and reasonable” interpretation of this concept(emphasis added).38
In the Saiga Case, ITLOS said:39
155. In considering the force used by Guinea in the arrest of the Saiga, the Tribunal musttake into account the circumstances of the arrest in the context of the applicable rules ofinternational law. Although the Convention does not contain express provisions on the use offorce in the arrest of ships, international law, which is applicable by virtue of article 293 of theConvention, 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.
Considerations of humanity must apply in the law of the sea, as they do in other areas ofinternational law.
156. These principles have been followed over the years in law enforcement operations at sea(emphasis added).
By carefully reading these remarks, there appear two issues: first, the nature of themeasures,40 and second, the nature of the use of weapons (in the expression by the court and thetribunal, “use of force”). In these cases, the nature of the measures is law enforcement, and thenature of the use of weapons is, too, the nature of the use of arms in law enforcement according to
the terminology of this article.41 Beyond that, in these remarks of the jurisprudence, it is difficult
34

Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment of 4 December 1998, I.C.J.
Reports 1998, 432 (hereinafter referred to as “the Fisheries Jurisdiction Case”).

35

The M/V “Saiga” (No.2) Case (Saint Vincent and The Grenadines v. Guinea), Judgment of 1. July, 1999,
https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_2/published/C2-J-1_Jul_99.pdf(hereinafter referred to as “the Saiga Case”).

36

Other cases will be introduced later, in Section III, 2.

37

The ICJ and ITLOS may use the expression “use of force” as meaning the physical use of weapons
without necessarily connoting a legal nature. It is important to interpret the judgments depending on
the context of whether or not the expression means the use of force as that falling under Article 2,
Paragraph 4 of the UN Charter.

38

The Fisheries Jurisdiction Case, para. 84.

39

The Saiga Case, paras. 155–156.

40

Hereinafter, where appropriate, to avoid redundancy, “measures” will mean both measures and acts.

41

The court and the tribunal do not make clear these two issues.

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to find a useful theoretical framework for the analysis of this article regarding the distinction
between the use of arms and the use of force. For such an analysis in particular, a theoreticalframework should be required to regulate the relationship between the two issues, namely, theissue of the nature of the measures and the nature of the use of weapons in the measures.

2. Presupposition on the Relationship between the Nature of the Measures andThat of the Use of Weapons: The Presupposition Confirmed
Above all, as to the theoretical framework, this author does not take the position of a sort of caseby-case approach of making distinction between the use of arms and the use of force.42
A case is imagined in which, while measures have the nature of law enforcement, the use of
weapons holds the nature of the use of force that is likely to accompany military measures, and istherefore prohibited by international law. Vice versa, it might be possible that, while the measures
are regarded as military ones, the use of weapons in connection with them is regarded as the useof weapons that has a different nature from the use of force that is prohibited by international law,unless justified mainly as an exercise of the right of self-defense. These possibilities do, in reality,
exist.
Then, simply reflecting such possibilities in a theoretical framework would produce four
patterns of the use of weapons and the measures that the use of weapons accompanies: firstand second, when the nature of the measures is law enforcement, the use of weapons has either
the nature of the use of arms or the use of force; and third and fourth, when the nature of themeasures is self-defense,43 the use of weapons has either the nature of the use of arms or theuse of force. Such a framework may be called a theoretical framework based upon a case-bycase approach in the sense that there is no qualification with respect to the relationship between
the nature of the use of weapons and the nature of the measures that the use of weapons
accompanies. It admits no relationship between the nature of the measures, on the one hand, andthe nature of the use of weapons that accompanies them, on the other hand. Different from this, amore qualified approach is to set the presupposition that this author has proposed in her previous
work.
As a way to relate or not to relate the two issues to each other, logically speaking, there are
two possibilities. First, the nature of the measures decides the nature of the use of weapons,
and second, the nature of each issue is not related to the other. The second means a theoreticalframework based on a case-by-case approach, as explained here.44 It may not be reasonable to42

Regarding a case-by-case approach, see “Maritime Security,” 49–50.

43

In comparison to the expression “law enforcement,” it is difficult to find an established expression todescribe the nature of the measures that the use of force is likely to accompany. “Measures of selfdefense” is most likely presupposed. Another candidate is “measures for security.” However, as theconcept of maritime security has been expanding, “security” might cause confusion. Thus, without
excluding other possibilities, when it is appropriate, this article will use, to express the nature of suchmeasures, “measures for self-defense.”

44

There may be two different case-by-case approaches: the first type is under some defined framework forthe consideration of factors, and the second type is a simple one without any reference to a framework.
See “Maritime Security,” 49–50. When the “framework” is substantial, the first type comes close to thepresupposition that will be set forth below.

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think that the nature of the use of weapons decides the nature of the measures.45 This author,
by taking the first possibility, has proposed46 the presupposition that “in principle,” the nature of
the measures decides the nature of the use of force or arms in the measures. The qualification of“in principle” signifies that the consideration of the relevant factors in each case is not excluded
for deciding the nature of the use of force or the use of arms.47 In other words, by considering
the particular factors in individual cases, the nature of the measures and the nature of the useof weapons could be different from each other. With such a qualification, it is appropriate tomaintain this presupposition for the following reasons.
First, the case-by-case approach might cause chaos not only for the theoretical analysis, butalso for the actual operation at the scene. Theoretically, it would be solely descriptive, listing up
all possible patterns of the nature of the measures and that of the use of weapons, without any
analysis. Practically, it is almost impossible for the subjective entity exercising the use of weapons
to think through, on site, all possibilities for the nature of its use of weapons. The fundamental
purpose of the examination of this issue is above all to prevent violations of international law,which prohibits the use of force and regulates the use of weapons depending on its nature. Thus,
to provide a theoretical framework with some guidelines is appropriate and useful mainly forthe subjective entities exercising the use of weapons, rather than for providing a comprehensive
catalogue of the nature of the measures and the nature of the use of weapons.
Second, the presupposition can retain a level of flexibility with the qualification “in principle.”
This flexibility may replace, at least, to a certain degree, the significance that is expected for thecase-by-case approach. Therefore, while maintaining the aforementioned presupposition, next,
this article will examine various works on the meaning of the use of weapons.

3. Discussion of the “Force” under Article 2, Paragraph 4 of the UN Charter
While the issue of the distinction between the use of arms and the use of force has attracted
attention in relatively recent days, discussion of “force” has a longer history.48 Since the drafting

45

The subjective entity implementing the measures uses weapons provably with its own judgment thatthe use of weapons has the same nature as that of the measure, while such a subjective judgment is notnecessarily convincing nor objectively correct. On the contrary, apart from the nature of the measuresin which the use of weapons accompanies, the use of weapons itself does not bear the intent or judgment
as to its nature of the subjective entity who uses the weapons. Therefore, it is not reasonable to thinkthat the nature of the use of weapons may decide the nature of the measure that the use of weapons
accompanies. There may be a position that the nature of the use of weapons is determined based upon
its scale, but it might determine the nature of the use of weapons, not the nature of the measures.

46“Maritime Security,” 34–37.

47

Tom Ruys, “The Meaning of ʻForceʼ and the Boundaries of the Jus Ad Bellum: Are ʻMinimalʼ Uses ofForce Excluded from UN Charter Article 2(4)?,” American Journal of International Law, 108 (2014),
207.

48

Here the issue of the threat of force and that of economic coercion are not touched upon.

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process of the UN Charter, a significant number of works have been produced on this issue,49 andthe ICJ, in the 1986 Nicaragua Case (merits),50 declared an important definition of “armed attack,”
setting a substantial limitation on the exercise of the right of self-defense.51
In the works on this issue, generally speaking, there are two opposite opinions. One interprets
the prohibition of the use of force by Article 2, Paragraph 4 as all-inclusive. The other admits atype of use of weapons that the provision does not prohibit. It provides room mainly for the useof weapons at a small scale under the provision.52 In addition, it is said that in a State-to-State
context, even confrontation at a small scale comes within the ambit of the jus ad bellum. 53 An
interesting position from the perspective of this article is that Article 2, Paragraph 4, as an allinclusive provision, applies to the use of weapons at sea, even that accompanying law enforcementwith legal grounds.54
Here it is not necessar y to look into the detail of the discussion. The point is that there
is not a generally agreed opinion on the meaning of “force.” Furthermore, the reason for thedenial of the existence of the room mainly for the use of weapons at a small scale is to avoid theabuse of such room, and the lack of established international practice.55 This would seriously
deprive the prohibition, by international law, of the use of force of its significance. Therefore, as
49See, for instance, Ruys, op. cit., supra n. 47, 159–210; Tom Ruys and Sten Verhoeven, “Attacks by Private
Actors and the Right of Self-Defense,” Journal of Conflict & Security Law, 10 (2005), 193–206; Olivier
Corten, The Law against War: The Prohibition on the Use of Force in Contemporary International Law(Oxford: Hart Publishing, 2010); Rob McLaughlin, “Authorizations for Maritime Law Enforcement
Operations,” International Review of the Red Cross, 98 (2) (2016), 465–490; Koichi 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], (Naigai Shuppan, 2009),
243–282; by the same author, “Gurei Zon Jitai Taisho no Shatei to Sono Hoteki Seishitsu [Coping with
Grey Zones and Its Legal Implications],” Kokusai Mondai [International Affairs], 648 (2016), 29–38;
by the same author, “Kaijo Hoshikko ni Tomonau ʻUse of Forceʼ no Gainen [The Concept of the Useof Force in Conjunction with Law Enforcement],” in Kokusaiho no Dainamizumu [Dynamism inInternational Law], in Memory of Professor Akira Kotera, (Yuhikaku, 2019), 651–677; Kwast, op. cit.,
supra n. 4, 49–91.

50

Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. UnitedStates of America), Judgment of 27 June 1986, ICJ Repor ts 1986 (hereinafter referred to as “theNicaragua Case (merits)”).

51

Ibid., para. 191.

52

Regarding these positions, see “Maritime Security,” 40 and the footnotes thereto. Corten, op. cit.,
supra, n. 49, 55 and 77. Other examples of the use of weapons that may be permitted under Article 2,
Paragraph 4 of the UN Charter, ibid., 55 and 85, 163–171. The position that there is room for the use offorce at a small scale under Article 2, Paragraph 4 of the UN Charter introduces the following examples:
the abduction of Mr. Eichmann from the territory of Argentina; violations of territorial airspace bymilitary aircraft; targeted killing of suspects of terrorism in the territory of a foreign country. Ruys, op.
cit., supra n. 47, 167–179.

53

Including other examples of the small scale of the use of weapons, Ruys, op. cit., supra n. 47, 171–187.
As examined above, Japan has been coping with Chinese government vessels and warships thatare periodically entering Japanʼs territorial sea surrounding the Senkaku Islands. As far as coercive
measures are necessary to effectively cope with the circumstance and actually taken by the JCG, thispoint has a critical meaning, as it is in the context of a State-to-State confrontation. This issue will beconsidered later in Section IV and Section V.

54

Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea, (Cambridge University Press, 2009),
272–277: Morikawa, op. cit., supra n. 49 (Kaijo Hoshikko Katsudo), 659–661.

55

Ruys, op. cit., supra n. 47, 1, 163–171.

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far as effective law enforcement requires, on some occasions, the use of weapons,56 the criticalimportance resides in the prevention of the aforementioned abuse. For that purpose, the useof arms in law enforcement should be clearly defined so as to establish its legal justification
backed up by international practice.57 To achieve that goal, as in Section III, clarification of themeaning of law enforcement and identification of factors that reflect law enforcement become theindispensable starting point.
Before moving onto such an examination, some consideration of the issues regarding thepresupposition of the theoretical framework is useful. One is the issue related to the flexibility inthe distinction between the use of arms and the use of force. In particular, focus will be placed on
the impact of the wide understanding of maritime security on said flexibility. The other issue isthe legal effect of the distinction. Concretely speaking, this is the issue of the legal consequenceof the cases in which the actual use of weapons violates the relevant international law rules
regulating it. If the use of weapons in law enforcement breaches the international rules that
regulate them, would the nature of the use of weapons as “the use of arms in law enforcement”
change? These two issues will be dealt with in Section II in this order.

II. Issues Arising from the Theoretical Framework Thus Set For th for an
Examination of the Relationship between the Nature of the Measures and the
Nature of the Use of Weapons Accompanying Them
1. Flexibility in the Distinction between the Use of Arms and the Use of Force:
The Qualification “in Principle”
The presupposition of this article is that the nature of the measures, in principle, decides thenature of the use of weapons that accompanies them. The qualification “in principle” allows thispresupposition to be disproved in some cases.58 Generally speaking, individual cases should haveparticular circumstances and factors that should be considered when deciding the nature of themeasures and that of the use of weapons accompanying them.59 There might be examples inwhich the nature of the measures and the nature of the use of weapons are not identical, even if
only as exceptions.
In this regard, the wide understanding of maritime security likely has a significant impact.60
There has been a firm tendency to understand maritime security in a wide way, 61 whereby“maritime security is understood by the measures combatting not only traditional military threats,
but also terrorism, weapons proliferation, transnational crimes, piracy, environmental/resource
56

In the two cases introduced above, the court and the tribunal admitted the use of weapons in law
enforcement.

57

The main purpose of this article is to provide a way to identify the use of arms in law enforcement so
as to enable States to prove its use of weapons as such. At the same time, doing so enables, at least to acertain degree, the prevention of the abuse of weapons that eludes prohibition by Article 2, Paragraph 4of the UN Charter.

58

This does not necessarily entail admitting a case-by-case approach for the decision concerned. However,as mentioned above (supra n. 44), if a case-by-case approach is realized under some defined framework
for consideration of the relevant factors, it could not be denied that such a case-by-case approach would
come close to the presupposition of this article.

59

The factors are, for example, the scale of the violence on both the side of the wrongdoers and entities of
the use of weapons, the nature of the wrongdoers involved, the political intents of the wrongdoers, andthe legal interests being infringed upon by the violence of the wrongdoers. Ruys, op. cit., supra n. 47,
207.

60

“Maritime Security,” 50–51.

61

A typical example is Guilfoyle, op. cit., supra n. 5. As for other authorities, see supra n. 5.

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destruction, and illegal seaborne migration.”62 Another authority explains a unique reason for
the recent wide understanding of maritime security.63 According to this position, not only theexclusive interests of sovereign States but also the inclusive interests (common interests) of
the world define a wide array of threats such that maritime security is understood widely asthat combatting the variety of threats to these interests.64 As maritime security is acquiring awider meaning so as to include all measures for combatting such various incidents, self-defense
measures and law enforcement ones have inevitably come to be closely related to each other andeven intertwined.
In recent cases, as will be analyzed later, both ITLOS and the arbitral tribunal declared thatthe distinction between military measures65 and law enforcement measures has been blurred.66
This tendency likely also reflects the wide understanding of maritime security.
The tribunals made their decisions with respect to the nature of the measures and the use of
weapons accompanying them by considering those implementing the measures (navy or coast
guard, and militar y vessels or other government vessels), the characterization of the organs
involved (military or law enforcement organs), the series of facts constituting the context of theevent concerned, and the dominant factors in the aforementioned context.67 Such decisions areones based upon an objective evaluation.68 In the litigations, “objective” evaluation connotes anevaluation based upon facts and one that is made by the authoritative third parties independent of
the subjective evaluation by the parties to the disputes.
As the distinction between the natures of the measures, namely those for law enforcement
and those for self-defense, becomes flexible, so too does the distinction between the natures of
the use of weapons, namely those constituting the use of arms and those constituting the use offorce. This might be said to be the logical result of applying the presupposition that the nature of
the measures decides, in principle, the nature of the use of weapons. On the other side of a coin,
there could be a case in which even the qualification “in principle” would lose its significance,
and a definite relationship between the principle and an exception to it could not be identified.
If so, the nature of the measures and the nature of the use of weapons would be determined
independently, which means a case-by-case approach in deciding the nature of the measures and62

Guilfoyle, op. cit., supra n. 5, 299.

63

Klein, op. cit., supra n. 5, 1–10.

64

Ibid., 8.

65This article uses the term “measures for self-defense,” supra n. 43. The expression “military” usedhere is according to the parlance of ITLOS. That is also the parlance of UNCLOS, as its Article 298,
Paragraph 1 (b) contains the expression “military activities.”

66

Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine v. Russian Federation),
Request for the Prescription of Provisional Measures, Order of 25 May, 2019, https://www.itlos.org/
fileadmini/itlos/documents/cases/26/published/C26_Order_2019025.pdf, (hereinafter referred
to as “the Detention Case”), para. 64. The arbitral tribunal, too, expressed a similar thought. In the
Matter of an Arbitration before an Arbitral Tribunal Constituted under Annex VII to the 1982 United
Nations Convention on the Law of the Sea, between Ukraine and the Russian Federation, in respectof the Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov and Kerch Strait, Award
Concerning the Preliminary Objections of the Russian Federation, 21 February 2020, https://pcacases.
com/web/sendAttach/9272, (hereinafter referred to as “the Coastal State Rights Case”), paras. 333–
335.

67

For a detailed examination of the cases, see Section, III 2.

68

For a detailed examination of the cases, see Section, III 2.

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Atsuko Kaneharathat of the use of weapons.69

2. Legal Consequences of Violations of the Legal Standards to Be Applied to the
Use of Arms and the Use of Force70
This article focuses upon the distinction between the use of arms and the use of force. It does
not deal with the legal standards regulating the use of arms or the use of force, nor the issue ofthe legal consequences of violations of these international legal standards.71 Solely in relation to
the unavoidable flexibility in the distinction mentioned here, and the furtherance of the flexibility
that is expected due to the continued expansion of the already wide understanding of maritime
security, the following remarks may be useful.
One authority suggests that in the case of violations of the international law rules that regulate
the use of arms or the use of force, the facts of the violations thereof do not impact on the natureof the use of arms or the use of force.72 This means that even if the use of arms in law enforcement
breaches the legal standards of unavoidability, reasonableness, and necessity, it would not bear,as a result of the violation, the nature of the use of force prohibited by international law. The legal
consequence of such violations is the incurrence of State responsibility for the reason of violatinginternational law, namely, international wrongful acts.73 In the same way, a case can be assumed
in which the use of force, as an exercise of the right of self-defense, violates internationalrules such as proportionality and necessity. However, it is unreasonable and unthinkable thatsuch a use of force would change into a use of arms that accompanies law enforcement. Thisis because the discussion here is conducted under the fundamental prohibition of the use offorce by international law. For admitting a legal use of weapons, room is sought for a use of
weapons in law enforcement with carefully preventing the abuse of the room. If the use of force,as the right of self-defense that violates the international regulation would change to the use ofarms in law enforcement, this would really cause an abuse of the room. Thus, the issue to be
assumed is whether the use of arms in law enforcement, if it breaches the rules that govern it,such as unavoidability, reasonableness, and necessity, becomes the use of force prohibited byinternational law.
The position that violations of the relevant international law rules would not bring about achange in the nature of the use of arms to that of the use of force would likely be approved if
it is based upon the presupposition of this article, namely, the presupposition that the natureof the measures, in principle, decides the nature of the use of weapons. According to said
presupposition, without special circumstances that justify an exception to the “principle,” thenature of the use of arms would not change, even when it breaches the legal regulations thatgovern it. Only in cases in which a violation of the relevant international law rules on the useof arms sets forth “special circumstances” to justify the “exception” would that ver y breachchange the nature of the use of arms from the use of arms in law enforcement to the use of force
prohibited by international law. However, it is not necessary to admit such a result, as from the69

This author has previously emphasized a “simple” case-by-case approach. This does not have any
referential legal frameworks under which the determination is given regarding the natures of themeasures and the use of weapons. In comparison, there could be a case-by-case approach that is
conducted under some defined reference framework, such as the relevant legal provisions that regulate
law enforcement measures and self-defense measures. See “Maritime Security,” 49–50. The difference
between the two case-by-case approaches might be a matter of the degree of flexibility in deciding thenatures of the measures and the use of weapons. See also supra n. 44.

70“Maritime Security,” 47–49.

71

As for this issue, see “Maritime Security,” 48–49.

72

Ruys, op. cit., supra n. 47, 202.

73

Articles on State Responsibility, Article 2.

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perspective of the remedy for injuries, the incurrence of State responsibility for the violation of
the international rules would suffice as the legal consequence of the violation of the relevantinternational law rules.
Rather, the necessity of such an exception to the “principle” according to which the use ofarms in law enforcement becomes the use of force prohibited by international law should be
examined with a consideration of the object and purpose of the strict position that the prohibitionof the use of force by Article 2, Paragraph 4 of the UN Charter is “all inclusive.”74 This position
denies the existence of any room for the use of weapons in order to prevent the abuse of suchroom.75 The importance of the prevention of such abuses could also be approved by the otherposition that the provision admits some use of weapons. Therefore, whether there do exist
special circumstances that form an exception to the “principle” and whether the use of arms inlaw enforcement changes to the use of force prohibited by international law should be decided inorder to avoid these abuses.
Beyond this general remark, it could be difficult to identify all concrete cases in which
violations of the international law rules would change the nature of the use of weapons fromthe use of arms in law enforcement to the use of force prohibited by international law. Rather, it
would be helpful to provide, as comprehensively as possible, the factors to be examined in orderto determine the use of arms in law enforcement. Under the clear tendency toward the wide
understanding of maritime security and, as its result, the increased flexibility in the distinction
between the use of arms and the use of force,76 clarification of those factors as comprehensively
as possible is strongly needed both for theories and practice. Thus, as the main part of thisarticle, Section III will conduct such an examination.

III. Identification and Proof of the Use of Arms in Law Enforcement
1. A n Attempt to Define the Use of Weapons That Is Not Prohibited or Is
Permitted by International Law as the Use of Arms Accompanying Law
Enforcement Measures

As examined above, it is not easy to identify the precise meaning of “force” that is prohibitedby international law. Authorities are not in accord in this regard.77 The serious concern of thoseauthorities taking the strict position that Article 2, Paragraph 4 of the UN Charter prohibits theuse of force in an all-inclusive manner is the abuse of the room that would otherwise be affordedby the provision. If one seriously considers this concern, it becomes necessar y to clarify asmuch as possible what the use of arms in law enforcement is, as it is indispensable for effective
law enforcement. In this regard, the use of weapons for effective law enforcement is commonly
admitted.78
Then, as a useful approach, by departing from the particular framework of arguments for theuse of force prohibited by international law, mainly Article 2, Paragraph 4 of the UN Charter, a
74

See Section I, 3.

75

Regarding the positions by the relevant authorities, see Section I.

76

In this regard, when the flexibility of the distinction between the use of arms and the use of force
significantly increases, such increased flexibility might require continuous reconsideration of the issue
discussed here.

77

See Section I, 3.

78

Strictly speaking, there may be dif ferences between the use of arms that is not prohibited byinternational law and the use of arms permitted by international law. With this reservation, hereinafter,such a phrase as “the use of arms that is permitted (allowed) by international law” will be used to meanboth, if there is not expected to be any confusion.

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new line of argument may arise. A reasonable way to define the use of weapons is by looking forthe definition or justification thereof. In addition to the relevant international laws with respect
to law enforcement measures to be taken at sea, various candidates will be taken up as many as
possible.79 This is the way to determine, in a “positive” manner, the nature of the use of weapons
accompanying the law enforcement measures taken at sea based upon the relevant internationallaw. It is different from the determination, in a “negative” manner, of such use of weapons as thatis not prohibited by international law.
The presupposition of this paper is that the nature of the measures, in principle, decides thenature of the use of weapons. Therefore, to identify the nature of the use of arms accompanying
law enforcement measures as law enforcement, it is necessary to determine that the measures forwhich the arms are used are those of a law enforcement nature. As the qualification “in principle”
indicates, there are exceptions to the “principle” that the nature of the measures decides thenature of the use of weapons. Two logical possibilities are: first, while the nature of the measuresis law enforcement, the use of weapons accompanying them has the nature of the use of force;second, while the nature of the measures is self-defense, the use of weapons has the nature of theuse of arms in law enforcement. It is so difficult to determine in an abstract way such exceptions
as causing the difference between the nature of the measures and the nature of the use of
weapons accompanying them. Accordingly, it is not possible to provide a complete analysis ofevery pattern of the use of weapons under that presupposition of this article.
In place of such a complete analysis, the following part of this Section will rather conduct thethorough examination of the use of arms in law enforcement. Considering the prohibition of theuse of the force by the fundamental international law, and as far as the use of weapons should beallowed for effective law enforcement, as the room that escapes from the prohibition, preventionof any abuse of the room is critical. By providing the solid understanding of the use of arms
with rich proof thereof, the thorough examination of the use of arms should contribute to themaintenance of the fundamental restriction of the force of international law.
Several authorities and the jurisprudence have discussed the definition of “law enforcement.”80
Nonetheless, a precise definition has not been firmly established. Therefore, it is helpful toconsult the relevant provisions of UNCLOS that are interpreted as both overtly and covertly
dealing with law enforcement.81 This author has already conducted such an examination82 andwill not repeat this here. It can be safely said that the provisions of UNCLOS and customary
79

This is the method that this author has taken in her previous work, “Maritime Security,” 43–44.

80See, for instance, Rekizo Murakami and Masato Mori, “Kaijo Hoancho Ho no Seiritsu to Gaikoku Hoseino Keiju―Kosutogado Ron [The Establishment of Japanʼs Coast Guard Law and Succession of Foreign
Laws―Coast Guard―],” in Soji Yamamoto ed., Kaijo Hoan Hosei–Kaiyo Ho to Kokunai Ho no Kosaku[Laws on Coast Guard―Interplay between the Law of the Sea and Domestic Law], (Sanseido, 2009), 30–
31; see also infra n. 83; Kwast op. cit., supra n. 4, 53–57. Regarding the relationship between maritime
law enforcement and other related concepts, see Craig H. Allen, “Limits on the Use of Force in Maritime
Operations in Support of WMD Counter-Proliferation Initiatives,” International Law Studies, 81 (2006),
77 et seq.; Nils Melzer and Gloria Gaggioli Gasteyger, “Conceptual Distinction and Overlaps between
Law Enforcement and the Conduct of Hostilities,” in Terry D. Gill and Dieter Fleck eds., The Handbookof the International Law of Military Operations, 2nd ed., (Oxford University Press, 2015), Chapter 4.

81

That is not to mention that many provisions under UNCLOS regarding law enforcement succeeded
those of the four 1958 Geneva Conventions on the Law of the Sea, and they may have the status ofcustomary international law. It has been pointed out that due to the sensitive nature of the mattersconcerned, except for Article 73 on exclusive economic zones, UNCLOS has provisions that merely
assume or imply law enforcement with respect to territorial seas, archipelagic waters and contiguous
zones; see Ivan Shearer, “The Development of International Law with Respect to the Law Enforcement
Roles of Navies and Coast Guards in Peacetime, International Law Studies, 71 (1998), 435.

82

“Maritime Security,” 44–45.

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Reconsideration of the Distinction between the Use of Arms in Law Enforcement
and the Use of Force Prohibited by International Law—With an Analysis of the Inherent Significance of This Issue to Japan—

international law rules provide for the rights and therefore also the justification to take law
enforcement measures.83 The point is that the relevant international law rules on law enforcement
set forth the strong evidence that measures taken in accordance with them have the nature oflaw enforcement.84 In the remaining part of this Section, after a succinct analysis of the recent
jurisprudence, other factors to be considered in order to determine the nature of the measures
will be proposed.

2. Recent Jurisprudence Regarding the Distinction between Law Enforcement
Measures and Militar y Measures(1)Traditional and Preceding Jurisprudence
In terms of traditional cases that can be interpreted as touching upon the issue of the use of
weapons in the context of law enforcement, there are the Iʼm Alone Case,85 the Red Crusader
Case,86 the Fisheries Jurisdiction Case,87 the Saiga Case,88 and the Guyana and Suriname Case.89
This author has already examined some of them elsewhere,90 and this article introduced therelevant parts of the Fisheries Jurisdiction Case and the Saiga Case above.91 Therefore, here, it
may suffice to solely provide some complementary remarks.
Based upon the jurisprudence, the authorities are mostly in accord that the rules on the useof weapons in law enforcement92 are those of “unavoidability,” “proportionality,”93 and “necessity.”94
The ICJ admits the use of weapons in law enforcement in the Fisheries Jurisdiction Case. It reads:(I)f the officer “believes on reasonable grounds that the force is necessary for the purpose ofarresting” the master or crew (Section 8.1). Such provisions are of a character and type to be83

After careful consideration of the possible categorization of law enforcement and similar measures thathave been indicated by several authorities, Morikawa, bearing in mind the enforcement jurisdictionof States under the law of the sea, concluded that for the purpose of the examination of the use of
weapons, a wide understanding of law enforcement is appropriate. Morikawa, op. cit., supra n. 49 (Kaijo
Hoshikko), 655–659.

84

As for a general review of UNCLOS in relation to its authorizations of law enforcement measures, see
McLaughlin, op. cit., supra n. 49, 465–490.

85

The Iʼm Alone Case, Report of International Arbitral Awards, 3 (1935), 1609. For a detailed analysis of
this case, see Gerald. G. Fitzmaurice, “The case of the Iʼm Alone,” British Year Book of InternationalLaw, 17 (1936), 82–111.

86

The Red Crusader Case, International Law Reports, 35 (1962), 499.

87

Supra n. 34.

88

Supra n. 35.

89

In the Matter of an Arbitration between Guyana and Suriname in the Award of 17 September 2007,https://pcacases.come/web/sendattach/902/.

90“Maritime Security,” 41–43.

91

See Section I, 1.

92

Precisely speaking, none of the cases clearly define the circumstance as that of law enforcement before
the court and tribunals. Nevertheless, it is useful, here, to confirm the rules that can be derived fromthe decisions and judgments.

93

One authority opines that no use of weapons (according to him, the expression is “force”) beyond
proportionality could ever be one of last resort. Guilfoyle, op. cit., supra n. 54, 280–281.

94

Regarding the arbitral decision in the Iʼm Alone Case, it is said that intentional bombardment andsinking are not allowed in cases of usual crimes, and that this would become the use of force as selfdefense, not law enforcement. Here, the scale and/or intent of the bombardment and sinking may befactors that could change the nature of the use of weapons from that of law enforcement to that of selfdefense.

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found in legislation of various nations dealing with fisheries conservation and management, as
well as in Article 22 (1) (f) of the United Nations Agreement on Straddling Stocks of 1995.95
The ICJ confirmed the practice of not only domestic laws but also the UN Agreement on
Straddling Stocks, Article 22, Paragraph 1 whereby the use of weapons (according to the ICJ, theexpression is “force”) is allowed if it is necessary for the purpose of arrest based upon reasonablegrounds.
This evaluation by the authorities of the jurisprudence reflects their recognition of the law
enforcement measures and the category of the use of arms in law enforcement, while all the court
and tribunals did not necessarily determine it.
The circumstances in which weapons were used were different in each case. In this regard,
the Guyana and Suriname Case is of interest. In this case, while it is not crystal clear, the arbitral
tribunal seems to define the military action as being wider than law enforcement, and so theformer includes the latter.96 This seems to be similar to the interpretation of Article 2, Paragraph
4 of the UN Charter that the prohibition of the use of force is all-inclusive, as far as both do not
admit a special category of the use of weapons for the purpose of law enforcement. Here, it isenough to confirm that the arbitral tribunal and the ICJ permit the use of weapons for the purposeof law enforcement, under certain conditions.
(2)Recent Jurisprudence① The Ukraine Naval Vessels Detention Case (Provisional Measures and Preliminary Objections)
In the Detention Case,97 the interpretation of “military activities” in Article 298, Paragraph 1 (b)of UNCLOS was discussed.98 The crux of the discussion is centered on whether the disputeconcerns military activities or not. If the answer is yes, ITLOS cannot have jurisdiction over it.99
After its confirmation of the positions of the parties,100 ITLOS rendered its decision, the gist ofwhich is as follows.
First, the entity engaging in the acts, whether military vessels or law enforcement vessels,
does not decide the nature of the measures, although this is a factor to be considered. The
traditional distinction between naval vessels and law enforcement vessels in terms of their95

Supra n. 34, para. 81.

96

Guilfoyle, op. cit., supra n. 54, 275.

97

Supra n. 66.

98

Article 298, Paragraph 1 (b) reads:
disputes concerning military activities, including military activities by government vessels andaircraft engaged in non-commercial service, and disputes concerning law enforcement activities inregard to the exercise of sovereign rights or jurisdiction excluded from the jurisdiction of a court or
tribunal under article 297, paragraph 2 or 3;
The key part is the expression “sovereign rights or jurisdiction.” Precisely speaking, these terms do not
apply to territorial seas, as the coastal States of territorial seas have sovereignty, not “sovereign rights”
or “jurisdiction.” As a logical conclusion, this exception under Article 298, Paragraph 1 (b) does not
apply to any activities taking place in territorial seas. See F. David Froman, “Uncharted Waters: Noninnocent Passage of Warships in the Territorial Sea,” San Diego Law Review, 21 (1984), 671–672. In thejurisprudence, maybe due to the special circumstance regarding Crimea, the tribunals did not touchupon this issue.

99

Supra n. 66, para. 50.

100

Ibid., paras. 51–53 (Russia), paras. 54–62 (Ukraine).

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roles has become considerably blurred.101 Second, the distinction between militar y and law
enforcement activities must be based primarily on an objective evaluation of the nature of
the activities in question, taking into account the relevant circumstances in each case. 102
Such an “objective ” evaluation is in contrast to the “subjective ” claim by the parties to thedispute.103 Therefore, it is understood that “objective” may have two significances: an objective
evaluation should be based upon the facts; and the evaluation should be conducted by neutral
and authoritative third parties, which means the tribunal. Third, the series of events need to
be examined, and consideration is necessar y as to whether the specific acts such as arrestand detention in the case concerned took place in the context of a military operation or a law
enforcement operation.104 The context may consist of a series of events, and the usage, by thetribunal, of “context” is similar to this authorʼs usage of “situations,” as explained above.105
In addition, the tribunal considered the particular circumstances of the case concerned: thepassage of the Ukrainian naval vessels through the Kerch Strait;106 the core of the dispute was thepartiesʼ differing interpretation of the regime of passage through the Kerch Strait;107 the force108
was used by the Russian federation in the process of arrest, and the context of the use of force
has particular relevance.109
As its conclusion, the tribunal decided that the sequence of events constituted the context of alaw enforcement operation rather than a military operation, and that Article 298, Paragraph 1 (b)of UNCLOS does not apply.110
Thus, the tribunal determined the nature of the use of weapons by Russia by considering
the sequence of events or the context, which is, according to this author, the situation. By thisauthorʼs terminology, the nature of situations is the same as the nature of measures. The tribunalʼsterminology of the “context” seems to be the same as this authorʼs terminology of the “situations.”
The tribunal does not clarify the following two issues: the issue of the nature of the measures andthat of the nature of the use of weapons. Nonetheless, the tribunalʼs position is the same as that101

Ibid., para. 64. The same position is heard by authorities such as David H. Anderson; see “Some Aspectsof the Use of Force in Maritime Law Enforcement,” in Nerina Boschiero, Tullio Scovazzi, Cesare Pitea,
and Chiara Ragni eds., International Courts and the Development of International Law―Essays in
Honour of Tullio Treves, (Springer, 2012), 141. It has even been pointed out that the distinction between
warships and merchant vessels has been called into question, see Vaughan Lowe, “Ships,” in ibid., 297.
Furthermore, to cope with piracy, for the purpose of vessel protection, armed military personnel are on
board merchant vessels; see Valeria Eboli and Jean Paul Pierini, “Coastal State Jurisdiction over Vessel
Protection Detachments and Immunity Issues: The Enrica Lexie case,” Military Law and Law of War
Review, 51 (1) (2012), 118–122. See also Wolff Heintschel von Heinegg, “The Difficulties of Conflict
Classification at Sea: Distinguishing Incidents at Sea from Hostilities,” International Review of the Red
Cross 98 (2) (2016), 449–453.

102

Supra n. 66, para. 66.

103

Ibid., para. 65.

104

Ibid., para. 67.

105

For the terminology used in this article, see the Introduction, 1.

106Supra n. 66, para. 68. According to the tribunal, it is difficult to state that the passage of naval ships per
se amounts to a military activity.

107

Ibid., paras. 71–72.

108

The tribunal uses the term “force.” Here it means the physical use of weapons according to theterminology of this author.

109

Supra n. 66, para. 73.

110

Ibid., paras. 74–75. In addition, the tribunal mentioned that the subsequent proceedings and charges
against the servicemen further support the law enforcement nature of the activities of Russia. Ibid.,para. 76.

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Atsuko Kaneharaof this author, in that the nature of the measures, in principle, decides the nature of the use of
weapons, if the tribunal admits the possibility that the nature of the context and the nature of theuse of weapons may be different depending on the individual factors of each case, although thiswould be exceptional. At least in some sense, the tribunalʼs thorough consideration of the three
special factors111 to the dispute might endorse such a possibility. Such thorough consideration of
inherent factors to the case concerned might bring about the conclusion that the nature of themeasures in the given context and the nature of the use of weapons are different from each other.
Regarding the later decision by the tribunal at the preliminary objections stage of this case,112
the following points deser ve attention. First, the tribunal emphasized the importance of therelevant circumstances in each case for the objective evaluation of the nature of the activities
concerned.113 Different from Ukraineʼs position,114 the tribunal denied the “either-or” proposition
regarding the distinction between military activities and law enforcement ones. According to thetribunal, activities that initially have a law enforcement character may become activities with amilitary character, and vice versa.115 After thorough consideration of the material facts, which thetribunal divided into three phases, regarding the second phase, it left its decision as to whether or
not there were military activities to the merits stage.116② The Coastal State Rights Case (Preliminary Objections)
The same parties opposed each other in an arbitration case, the Coastal State Rights Case(preliminary objections).117 In this case, too, “military activities” under Article 298, Paragraph 1 (b)were discussed. The gist of the decision is as follows.
First, the tribunal did not place weight on the entity that engaged in the activities of concern.
It said that military activities need not necessarily be carried out by military vessels and aircraft,
but can, instead, equally be performed by “government vessels and aircraft engaged in noncommercial ser vice.”118 Second, while it is a factor to be considered, the mere involvement
or presence of a military vessel is not sufficient to trigger the military activities exception of
Article 298, Paragraph 1 (b).119 The tribunal said that this is the meaning of Paragraph 1158 of
the decision rendered by the arbitral tribunal on the South China Sea Dispute (merits).120 Third,
there is no consistent State practice as to the scope of activities to be regarded as being exercised111

Ibid., paras.68–75.

112

In the Matter of an Arbitration before an Arbitral Tribunal Constituted under Annex VII to the 1982
United Nations Convention on the Law of the Sea, between Ukraine and the Russian Federation, in
respect of a Dispute Concerning the Detention of Ukrainian Naval Vessels and Servicemen, Awardon the Preliminary Objections of the Russian Federation, 27 June, 2022, https://pcacases.com/web/
sendAttach/38096.

113

Ibid., para. 109.

114

Ibid., para. 89.

115

Ibid., para. 121.

116

Ibid., para. 125.

117

Supra n. 66.

118

Ibid., para. 333.

119

Ibid., para. 334.

120

In the Matter of the South China Sea Arbitration, an Arbitral Tribunal Constituted under Annex VII to
the 1982 United Nations Convention on the Law of the Sea between the Republic of the Philippines andthe Peopleʼs Republic of China, Award of 12 July, 2016, https://pcacases.com/web/sendAttach/2086,(hereinafter referred to as “the South China Sea Dispute”). This paragraph was invoked by Russia,
supra n. 66, para. 308.

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by “military” vessels, aircrafts, and personnel.121 Use of “physical force” is not enough to conclude
that an activity is military in nature. The broader context in which the alleged event took placeshould be considered.122 Fourth, the mere involvement of military vessels or personnel in an
activity does not ipso facto render the activity military in nature.123
These points almost echo those determined by ITLOS in the Detention Case. In addition, thefollowing point deserves attention. The tribunal said that law enforcement forces, for example,
are generally authorized to use physical force without their activities being considered military
for that reason.124 The tribunal clearly admits the use of weapons in law enforcement. While it is
not entirely clear, the position of the tribunal seems to be different from that taken by the tribunal
in the Guyana and Suriname Case. As confirmed above, in the latter, the tribunal seems to define
military action as being wider than law enforcement, and so the former includes the latter. This
seems to be similar to the interpretation of Article 2, Paragraph 4 of the UN Charter that theprohibition of the use of force is all-inclusive, as far as both do not admit a special category of
the use of weapons for the purpose of law enforcement.125 Separately, while some uncertainty
remains, the tribunal in the Coastal State Rights Case instead admits a different category of theuse of weapons from the use of force under Article 2, Paragraph 4 of the UN Charter, and the useof weapons in law enforcement and the use of force prohibited by international law form different
categories from each other.
In the Coastal State Rights Case, the tribunal considered the “law enforcement activities”
exception under Article 298, Paragraph 1 (b) of UNCLOS.126 By taking the position that the status
and the sovereign rights should be established beforehand for the purpose of the applicationof the “law enforcement activities” exception, the tribunal rejected Russiaʼs objection.127 This isbecause the sovereignty over Crimea and the status of the sea area concerned as an exclusive
economic zone cannot be determined.128
Two points should be well considered before deriving general conclusions from thejurisprudence. First, the examination of Article 298, Paragraph 1 (b) of UNCLOS above all
relates to the issue of judicial and arbitral jurisdiction.129 Therefore, for instance, the issue of theinterpretation of “concerning” not “arising from” in the provision does not have a direct relation to121

Supra n. 66, para. 335.

122

Ibid., para. 336. The tribunal considered the broader context in which the alleged event took place,and determined that the use of physical force alleged by Ukraine does not turn the dispute into one
concerning military activities.

123

Ibid., para. 340.

124

Ibid, para. 336.

125

Supra n. 54.

126

Supra n. 66, paras. 353–358.

127

In this regard, Ukraine states that when a State is alleged to have violated UNCLOS in respect ofanother Stateʼs exclusive economic zone, the “law enforcement exception” does not apply; ibid., para.
349. It relies on the rulings on the South China Sea Dispute and the Arctic Sunrise Arbitration (TheNetherlands v. The Russian Federation). Infra n. 138.

128

Supra n. 66, paras. 356–358.

129

It is interesting to consider what the impact of the CCGL is, which placed Chinese coast guard vessels
under military control. Are the activities by Chinese coast guard vessels easily admitted as “militaryactivities” under Article 298, Paragraph 1 (b) of UNCLOS? In this regard, one authority points out that
the CCGL makes it difficult for rival claimants to overcome Chinaʼs militar y activities exception in
respect of future UNCLOS dispute settlement proceedings; see Alex P. Dela Cruz, “Marching towards
Exception: The Chinese Coast Guard Law and the Military Activities Exception Clause of the Law of the
Sea Convention,” The Journal of Territorial and Maritime Studies, SUMMER/FALL 2021, Vol. 8, 5 and
17.

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the issues that this article is examining. Second, from a broader perspective, in the backgroundof the jurisprudence, there is more or less motivation of either widening or reducing judicial or
arbitral jurisdiction. Third, that is not to mention that each case has its own inherent facts.
With serious reser vation on these points, par ticularly from the analysis of the recent
jurisprudence, nonetheless, we can derive useful guidance to treat the issues that this article isexamining.
From the jurisprudence, it can be safely said that the tribunals recognize the use of weapons
for the purpose of law enforcement. It is not clear whether such use of weapons forms an
exception to the prohibition of the use of force under Article 2, Paragraph 4 of the UN Charterwith the same rule of customary international law. The use of arms in law enforcement may set
forth a different and sort of parallel category to the category of the use of force that comes under
Article 2, Paragraph 4 of the UN Charter with the same customar y international law. In thisregard, some differences can be found between the explanation by the tribunal in the Guyana
and Suriname Case and that by the tribunal in the Coastal State Rights Case. For the definite
establishment of the use of arms in law enforcement, it would be more appropriate to admit aninherent category of the use of arms in law enforcement and to refine the international regulation
thereon.130
The jurisprudence makes the distinction between the use of weapons in law enforcement andthat in a military act. Nonetheless, it is not certain whether the tribunals understand this as two
issues: the nature of the measures, and the nature of the use of weapons. Regarding the possibilityof the difference between the nature of the measures and the nature of the use of weapons, isthere a use of weapons accompanying law enforcement measures that is characterized as the useof force that Article 2, Paragraph 4 assumes? Vice versa, is there a use of weapons accompanying
self-defense measures that is characterized as the use of arms in law enforcement?
This article sets the presupposition that the nature of the measures, in principle, decides thenature of the use of weapons. In what case would the qualification “in principle” be applied so as
to admit an exception to the presupposition? It is difficult to answer this question in an abstract
way. In individual cases, some factors might justify the exception. The jurisprudence declared
the existence of flexibility in the distinction between law enforcement activities and militar y
activities.131 In addition, the tribunals took a position of conducting thorough consideration of thematerial facts, particularly in the Detention Case. In its preliminary objection stage, the tribunal
even left its decision as to whether or not there were military activities to the merits finding.
Considering these stances of the tribunals, they might admit the potential for the occurrenceof a dif ference between the nature of the measures and the nature of the use of weapons
accompanying them, depending on the individual factors in each case.
With respect to “military activities,” whereas the tribunals have a tendency to take a restrictive
position on admitting the “military activities exception” under Article 298, Paragraph 1 (b) of
UNCLOS, in contrast to this, there is a position of defining military vessels widely.132 According
to this position, the existence of militar y vessels is admitted even if they are not militarily
equipped, not conducting military activities,133 nor even carrying members of the navy or marines

130

This is the “positive” position that this author has taken in examining the legal status of the use of
weapons for the purpose of law enforcement. See “Maritime Security,” 43–44.

131

See the analysis of the two cases above.

132

Article 29 of UNCLOS provides for a definition of military vessels.

133

This position is suggested by Lori Fisler Damrosch, “Military Activities in the UNCLOS Compulsory
Dispute Settlement System: Implications of the South China Sea Arbitration for U.S. Ratification of
UNCLOS,” AJIL Unbound, 110 (2016), 275.

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on board.134 As far as the jurisprudence examined above considers the entity implementing
the measures and the use of weapons accompanying them, the wide understanding of military
vessels may have some impact on the determination of “military activities.” Such a wide definitionof military vessels may relate to the interpretation of “non-innocent” passage of foreign vessels interritorial seas by this kind of vessels.135 Here, it suffices solely to point this out.
Thus far, from the jurisprudence, some guidance has been derived to make the distinction
between the use of arms in law enforcement and the use of force prohibited by international law
unless justified mainly as self-defense. Based upon the above examination, the next part of thisSection will look for possible tools to prove the nature of the use of arms in law enforcement.
There are various tools for this, such as rules, rights, factors, and so on. A certain categorization
will be provided, albeit a tentative one.

3. Possible Tools for Proving the Nature of the Use of Arms in Law Enforcement(1) Provisions on Law Enforcement under UNCLOS and Other Relevant Treaties
As explained above, this author has examined the relevant provisions of mainly UNCLOS andthe relevant treaties on law enforcement at sea elsewhere.136 In addition to said examination, thefollowing complementary consideration deserves attention.
First, UNCLOS and other treaties do not always have adequate provisions on law enforcement.
Some provisions implicitly designate law enforcement, such as Article 2, Article 25, and Article
111 of UNCLOS. In addition, while Article 73 prescribes law enforcement on the conservationand management of living resources,137 regarding structures138 and marine scientific research in
exclusive economic zones, UNCLOS does not clearly provide for law enforcement. Consideringsuch facts, it is critical to precisely interpret all provisions that possibly set forth justification
for law enforcement. Second, international law has not firmly established the definition oflaw enforcement, and similar activities may have the same function as law enforcement. One
example is Article 21, Paragraph 1 of the 1995 Fisheries Stock Agreement, which provides formeasures similar to but different from those of law enforcement at sea.139 Third, even the various
authoritiesʼ opinions are not in accord in relation to rights or right holders of law enforcementin cases of, for example, marine scientific research140 and any uses of oceans in the disputed sea

134

Bernard H. Oxman, “The Regime of Warships under the United Nations Convention on the Law of theSea,” Virginia Journal of International Law, 24 (1984), 813.

135

See Article 19 of UNCLOS. In particular, Paragraph 1 may be interpreted as meaning that “noninnocence” is established based upon the kind of foreign vessels in question.

136“Maritime Security,” 44–46.

137

Coastal States of exclusive economic zones have jurisdiction on the protection and preservation of themarine environment, and Part XII of UNCLOS provides for precisely the distribution of the jurisdictionof law enforcement depending on sources of pollution and the sea areas where pollution occurs.

138

In this regard, while Russia took law enforcement measures against the foreign vessel in the safety zone,
the tribunal in the Arctic Sunrise Case (merits) did not take up the issue of the right of law enforcementwith respect to structures of coastal States of exclusive economic zones; see In the Matter of the Arctic
Sunrise Arbitration before an Arbitral Tribunal Constituted under Annex VII to the 1982 United Nations
Convention on the Law of the Sea (The Kingdom of the Netherlands and The Russian Federation)Award on Merits, 14 August 2015, paras. 242 et seq., https://pcacases.com/web/sendAttach/1438.

139

Morikawa, op. cit., supra n. 49 (Kaijo Hoshikko), 657.

140

Alfred H. A. Soons, “Law Enforcement in the Ocean̶An Overview,” WMU Journal of Maritime Affairs,
3 (2004), 5.

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areas.141 Therefore, in the following examination, a broad and thorough search of the possible
tools is surely the most appropriate way of finding proof of the use of arms in law enforcement.142(2) The Legal Nature of the Sea Areas Concerned and Rights in Relation Thereto
Several authorities have opined that the legal nature of the sea areas concerned and the coastal
Stateʼs rights may provide, at least, the factors to be considered in order to prove that the natureof the measures and the use of arms accompanying them are law enforcement.143 In addition to
the provisions of UNCLOS and other treaties144 that expressly and implicitly admit the right totake law enforcement measures to coastal States, sovereignty over territorial seas,145 sovereign
rights and jurisdiction over exclusive economic zones146 may form the ground for law enforcementby coastal States.147 In this regard, the difference of the object and purpose of these rights and thelegal status of the sea areas should be carefully considered.
Coastal States exercise sovereignty over territorial seas and internal waters to protect theirpeace, good order and security.148 By contrast, coastal States of exclusive economic zones exercise
sovereign rights and jurisdiction. Exclusive economic zones are not high seas nor territorialseas, either.149 When Article 25 and Article 30 regarding territorial seas apply mutatis mutandis to
exclusive economic zones, depending on the territorial sea or exclusive economic zone, different
considerations are needed regarding the relationship between the rights of the coastal States, on
the one hand, and the right of navigation of foreign vessels150 and the immunity that they enjoy,151
141

Ibid. That is not to mention that Article 74, Paragraph 3 and Article 83, Paragraph 3 provide for the
obligations of the State concerned with respect to maritime delimitation for exclusive economic zones
and the continental shelf. However, these provisions do not make clear which of the States concerned
has the right of law enforcement on which use of oceans and the seabed, and to which States the State
concerned owes the obligations: the other party to the dispute on delimitation, third States, or both.
See Atsuko Kanehara, “Marine Scientific Research Conducted in Disputed Sea Areas Including Seabed
Where Delimitation Is Not Agreed̶An Analysis from General and Particular Perspectives of the East
China Sea,” in Keyuan Zou and Anastasia Telesetsky eds., Marine Scientific Research, New Marine
Technologies and the Law of the Sea, (Brill/Nijhoff, 2021), 206–223.

142

Regarding the competence of law enforcement, a special case is the Iʼm Alone Case. In this case, it was
the license or faculty to take measures provided for by the Convention concluded between the U.S. andthe UK; see Fitzmaurice, op. cit., supra n. 85, 96.

143

Mainly in relation to exclusive economic zones; Rob McLaughlin, “Coastal State Use of Force in theEEZ under the Law of the Sea Convention 1982,” University of Tasmania Law Review, (1999), 13–19.

144

Certainly, customary international law rules should never be excluded.

145

While UNCLOS does not have explicit provisions on this, there is no argument that coastal States havesovereignty over internal waters.

146

In reality, law enforcement on the continental shelf is, from a physical standpoint, difficult to assume.

147

McLaughlin, op. cit., supra n. 143, 13–19.

148

Regarding territorial seas, Article 19, Paragraph 1 of UNCLOS clearly provides for them.

149

Rüdiger Wolfrum “Restricting the Use of the Sea to Peaceful Purposes: Demilitarization in Being?,”German Yearbook of International Law, 24 (1981), 237; A. V. Lowe, “Some Legal Problems Arising fromthe Use of the Seas for Military Purposes,” Marine Policy, 10 (3) (1986), 178.

150

For territorial seas, it is the right of innocent passage, and for exclusive economic zones, it is the
freedom of navigation. On the high seas and in exclusive economic zones, regarding the legal interestson the side of the vessels targeted by the law enforcement, stateless ships would raise particularissues. See Allyson Bennett, “That Sinking Feeling: Stateless Ships, Universal Jurisdiction, and theDrug Trafficking Vessel Interdiction Act,” Yale Journal of International Law, 37 (2) (2012), 433–462;
Ted L. McDorman, “Stateless Fishing Vessels, International Law and the U.N. High Seas Fisheries
Conference,” Journal of Maritime Law and Commerce, 25 (4) (1994), 531–556.

151

Lowe, op. cit., supra n. 149, 180–181.

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Reconsideration of the Distinction between the Use of Arms in Law Enforcement
and the Use of Force Prohibited by International Law—With an Analysis of the Inherent Significance of This Issue to Japan—

on the other hand.
Coastal States of exclusive economic zones exercise their sovereign rights and jurisdiction
for their own interests and/or the common interests of international society. For instance,
while coastal States of exclusive economic zones have jurisdiction over marine environmental
protection, such protection is not only in the interest of the coastal State but also that ofinternational society. With respect to the sovereign right over the fishery resources of exclusive
economic zones, ITLOS implicated that it should be exercised for the common interest ofinternational society in its advisory opinion on the request for an advisory opinion submitted by
the SRFC.152 The following points reflect such a position by ITLOS. ITLOS emphasizes not thesovereign “right” of coastal States for the purpose of exploring and exploiting, conserving andmanaging the natural resources, but their responsibility for it.153 Furthermore, it declared that theconservation and management of fishery resources form part of the marine environment.154
These examinations are based upon the ocean zone system under the law of the sea that
forms the legal bases of the rights and jurisdictions of coastal States. There are even cases thatdepart from the ocean zone system.
First, when law enforcement is internationally authorized by, for instance, the resolutions of
the UN Security Council, the “law” may become international law, rather than the domestic lawsof the States taking the enforcement measures concerned.155 With international authorization,even in foreign territorial seas where such law enforcement is conducted, the legal status of theterritorial seas will change to international sea areas rather than the territorial seas of coastal
States.156 Second, when the coastal States of internal waters are allowed to take enforcement
measures against foreign vessels beyond internal waters, their justification would not consist of
the legal status of sea areas based upon the ocean zone system.157 In addition, law enforcement
according to Article 111 of UNCLOS in the high seas and foreign exclusive economic zones is an
exercise of the right of the coastal State of a territorial sea, contiguous zone, exclusive economic
zone, and continental shelf, depending on the place where the violations of the domestic lawsof the coastal State occur. The pursuit regime itself depar ts from the ocean zone system.
Third, in respect to the same right of coastal States and the rights of coastal States on the same
matter (ocean use), the legal interests to be protected by these rights are various. For instance,
regarding submarine cables and pipelines, the relevant interests may be natural resources and/or security.158 Thus, when justifying the law enforcement by coastal States, the rights of coastal
States may form the justification, but, in addition to that, the legal interests to be protected by thelaw enforcement may further substantiate the justification.
As to the legal interests of coastal States, when the security of coastal States is concerned, this152

Request for an Advisor y Opinion Submitted by the Sub-Regional Fisheries Commission (SRFC)
Advisory Opinion of 2 April 2015, https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.21/
advisory_opinion_published/2015_21-adop.E.pdf.

153

Ibid., para. 104.

154

Ibid., para. 120.

155

McLaughlin, op. cit., supra n. 49, 481.

156

Regarding this issue, see, for instance, Rob McLaughlin, “United Nations Mandated Naval Interdiction
Operations in the Territorial Sea?” International and Comparative Law Quarterly, 51 (2002, April),
264–267; by the same author, “The Continuing Conundrum of the Somali Territorial Sea and Exclusive
Economic Zone,” International Journal of Marine and Coastal Law, 30 (2015), 305 et seq.; Martin D.
Fink, “UN-Mandated Maritime Arms Embargo Operations in Operation Unified Protector,” Military Law
and The Law of War Review, 50 (2011), 245–258.

157

Regarding the cases of internationally authorized operations, see, for instance, ibid., 248–249.

158

As a similar consideration, see Lowe, op. cit., supra n. 149, 179–180.

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Atsuko Kanehararaises the issue of the relationship between the right of self-defense under Article 51 of the UN
Charter and general international law, on the one hand, and the right of coastal States under thelaw of the sea, on the other hand. This will be examined later, particularly in relation to coastal
Statesʼ measures against foreign vessels that enjoy immunity.159(3) Factors to Be Considered as the Proof of the Nature of the Use of Arms in Law Enforcement
Different from legal rights and the legal status of sea areas, there are factors that are useful for
proving the nature of the use of arms in law enforcement. A number of authorities have suggested
various factors. They are the same, to a significant degree, as the factors that several authorities
have discussed for deciding the precise coverage of the prohibition of the use of force under
Article 2, Paragraph 4 of UN Charter.160① Actors
Actors are, in two ways, a factor to be considered: as actors of law enforcement and as the target
thereof. They may be both vessels and individuals. In dealing with law enforcement at sea, it is
not unreasonable to focus upon vessels.161
Regarding actors of law enforcement and the use of weapons concerned, one authority opinesthat without authorization, any boarding measures (by any actors) against foreign vessels mean
the threat of force (under Article 2, Paragraph 4 of the UN Charter). This could be justified
principally as an exercise of the right of self-defense.162 This position is understandable if it isbased upon the rigid interpretation of Article 2, Paragraph 4 of the UN Charter such that theprovision applies to law enforcement at sea.163 As explained above,164 this article does not takesuch a position. Rather this article is of the position that this provision does not prohibit any use
of weapons in an all-inclusive manner, and that it allows some room for the legal use of weapons.
Nevertheless, seriously taking into consideration the concern over the potential abuse of suchroom, as claimed by the aforementioned rigid interpretation, this article seeks to clarify the useof arms in law enforcement as much as possible, and to propose any possible tools for thoroughly
proving the nature of the use of arms in law enforcement.
Regarding actors that are the target of the law enforcement, these are commercial vessels,
warships and other government ships operated for non-commercial purposes.165 Later, Section IV
and Section V will conduct a special examination of the issue of vessels that enjoy immunity.

159

Section IV and Section V.

160

The factors are, for instance, the scale of the violence on both the side of the wrongdoers and thosesubjected to the use of weapons, the nature of the wrongdoers involved, the political intent of thewrongdoers, and the legal interests being infringed by the violence of the wrongdoers; see “Maritime
Security,” 49 and the footnote thereto.

161

Depending on domestic laws, ships and/or individuals are the targets of law enforcement.

162

Guilfoyle, op. cit., supra n. 54, 293.

163

See supra n. 54.

164

Section I, 3.

165

If the actors are militia, it may raise an inherent question. While this article does not go into detailon this question, see, for instance, Andrew Erickson and Conor Kennedy, “Countering Chinaʼs Third
Sea Force: Unmask Maritime Militia before Theyʼre Used Again,” The National Interest, 6 July 2016,
https://nationalinterest.org/feature/countering-chinas-third-sea-force-unmask-maritime-militia16860?page=0%2C1; James Kraska, “Chinaʼs Maritime Militia Vessels May Be Militar y Objectives
During Armed Conflict,” July 07, 2020, The Diplomat https://thediplomat.com/2020/07/chinasmaritime-militia-vessels-may-be-military-objectives-during-armed-conflict/.

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Reconsideration of the Distinction between the Use of Arms in Law Enforcement
and the Use of Force Prohibited by International Law—With an Analysis of the Inherent Significance of This Issue to Japan—② Character of the Actors
Frequently, when warships are involved either as actors of law enforcement or as the targets oflaw enforcement, the question arises as to whether the character of the actors, or the characterof the organs to which they belong, decides the nature of the measures and the nature of the useof weapons accompanying them. In this regard, as confirmed above, the recent jurisprudence
denies that the involvement of warships or military vessels alone determines that the measuresand the use of weapons are military in nature, although it admits that character is a factor to beconsidered.166
This issue relates to the definition of warships. 167 ITLOS did not have the oppor tunity
to consider Article 298, Paragraph 1 (b) of UNCLOS in the ARA Libertad Case (provisional
measures),168 which dealt with a case in which Argentinian naval vessels entered Ghanaian waters
on a training mission. Whether the naval vessels per se enjoy immunity can be questioned.169 One
authority opined that warships enjoy immunity, even if they are not militarily equipped, and even
if they are not conducting military activities.170 As explained above, this position may have an
impact on the determination of “military activities,” as far as the tribunals consider the entity with
its character implementing the measures and the use of weapons accompanying them.171
It is indispensable to remember that the jurisprudence examined above entertained the cases
before them in the special context of the alleged application of the “military activities” exception
for the compulsory jurisdiction under UNCLOS. It considered this issue as an interpretation of
Article 298, Paragraph 1 (b).172 Different to that, this article is searching for any tools for proving
the use of arms in law enforcement. For that purpose, it is important to take note of the wide
definition of warships with their military nature. This means that, depending on individual cases,
law enforcement conducted by warships without military equipment and without members of thenavy or marines on board may be alleged to be military activities and the use of force.173③ Factors that Decide the Nature of Situations
This article adopts the terminology “situations,” the nature of which is the same as that of themeasures involved. Therefore, in some sense, in a circular manner, self-defense situations arethose under which the use of force takes place,174 and law enforcement situations are those underwhich law enforcement measures are taken.175 A number of authorities have suggested various
factors that indicate the nature of situations.
These are the interests that the measures are aimed at protecting, such as safety, the good
166

The Detention Case (provisional measures), supra n. 66, para. 64. The Coastal State Rights Case, supra n.
66, para. 334.

167

Article 29 of UNCLOS provides for this.

168

The “ARA Libertad” Case (Argentina v. Ghana), (provisional measures), Order of 15 December 2012,https://www.itlos.org/fileadmin/itlos/documents/cases/case_no.20/published/C20_Order_151212.
pdf (hereinafter referred to as “the ARA Libertad Case”).

169

Damrosch, op. cit., supra n. 133.

170

Oxman, op. cit., supra n. 134.

171

This Section, 2.

172

Supra n. 98.

173

One authority has pointed out the lack of law enforcement vessels in many countries, and that, thus,
military vessels are used for law enforcement; see Kwast, op. cit., supra n. 4, 63–64.

174

Also, they may be described as situations under which Article 2, Paragraph 4 and/or Article 51 of the
UN Charter apply.

175

Also, they may be described as situations under which the law enforcement provisions of UNCLOS,
such as Articles 25, 73, and 110 apply.

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Atsuko Kaneharaorder of oceans, national security, conser vation and management of natural resources, andmarine environmental protection. Not only the national interests of the law enforcement States,
but also the common interests of international society are to be protected by law enforcement
measures that are taken in accordance with, for instance, the resolutions of the UN Security
Council. There could be a case in which the UN Security Council decides and even changes
the nature of situations by the collective intention of international society.176 Such indications ofcertain interests are very similar to those that are reflected by the rights and the legal status of
the sea areas as tools for proving the use of arms in law enforcement.177
Those interests may, to a certain degree, provide indications for identifying the character of aparticular situation. Nonetheless, as the aforesaid jurisprudence suggests, thorough considerationof the facts and factors in each case is critical for finally determining the nature of situations,and, thus, the nature of the measures and the nature of the use of weapons accompanying them.
In this regard, the use of the expression “violent acts at sea” reflects the same line of thinking
as this. “Violence” can have a wide meaning, spanning a violent act in committing a crime at sea
and the use of force, and it may change from one to the other with there even being violence inbetween.178
Thus far, this Section has examined the jurisprudence and various tools for proving the useof arms in law enforcement. The next Sections will analyze, as a special issue, the legal nature of
the measures and the use of weapons accompanying them to be taken by coastal States in theirterritorial seas against foreign vessels that enjoy immunity. This is an issue that may relate to therelationship between the jus ad bellum and the law of the sea. In addition, this issue has troubled
Japan for a long time as it has faced Chinese government vessels and warships that periodicallyenter Japan ʼ s territorial sea surrounding the Senkaku Islands. 179 After a succinct generalexamination, a particular consideration of Japanʼs case will follow.

IV. Measures by Coastal States against Foreign Vessels That Enjoy Immunity:
General Examination of the Issue Concerned
As for the immunity of government vessels and warships in foreign territorial seas, Article 32 of
UNCLOS reads:
With such exceptions as are contained in subsection A and in articles 30 and 31, nothing inthis Convention affects the immunities of warships and other government ships operated for
non-commercial purposes.
Thus, warships and government ships operated for non-commercial purposes (hereinafter

176

Regarding piracy and international terrorism, setting aside the issue whether the common interest of
the international society and/or the national interest of the victim States are in danger, the traditional
idea is to combat them through a law enforcement function. However, depending on the scale andseriousness of the circumstances, the UN Security Council has determined certain situations in whichinternational peace and security are threatened. On this issue, see Tullio Treves, “Piracy, Law of theSea, and Use of Force: Developments off the Coast of Somalia,” The European Journal of InternationalLaw, 20 (2) (2009), 400–401.

177

See this Section III, 3. (2).

178

Koichi Morikawa “Kaijo Boryoku Koi [Violent Act at Sea],” in Soji Yamamoto ed., Kaijo Hoan Hosei–
Kaiyo Ho to Kokunai Ho no Kosaku [Laws on Coast Guard̶Interplay between the Law of the Sea andDomestic Law], (Sanseido, 2009), 294.

179

See the Introduction, 2.

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Reconsideration of the Distinction between the Use of Arms in Law Enforcement
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referred to as “government ships”) enjoy immunity.180 The phrase “With such exceptions as
are contained in subsection A and in articles 30 and 31,” has raised complicated interpretativeand even confusing issues regarding the coverage of the immunity. Here, the purpose is not toconsider in detail such interpretative issues, while some will be examined. Rather, it will be simply
presupposed that warships and government ships enjoy immunity under Article 32.181 Measuresby coastal States of territorial seas may have different implications and impacts on the targets,
depending on whether they are warships and government ships.182
Article 30 of UNCLOS reads:
If any warship does not comply with the laws and regulations of the coastal State concerning
passage through the territorial sea and disregards any request for compliance therewith
which is made to it, the coastal State may require it to leave the territorial sea immediately.183
As far as warships hold immunity, when they violate the laws and regulations of the coastal Stateof a territorial sea, the latter can solely require them to leave the territorial sea.184 As far as thislimits the measures that coastal States are allowed to take, it can be said that Article 25185 does
not apply to warships, or that “the necessary steps” under Article 25, Paragraph 1 are confined
to asking the warships to leave the territorial sea. This is one of the interpretative issues that thephrase “Wits such exceptions as are contained in subsection A and in article 30 and 31” of Article
32 may raise. While under Article 30, there is no mention of government ships, this restriction on
the measures that the coastal State may take should be the same as in cases of warships.186
When warships are not violating the laws and regulations of the coastal State of a territorial180

As an examination of the significance of the immunity of warships, see Ingrid Delupis, “Foreign
Warships and Immunity for Espionage,” The American Journal of International Law, 78 (1) (1984),
53–57. Another authority discusses how the immunity of warships is derived from law enforcement
jurisdiction but not from prescriptive jurisdiction; see Isabelle Pingel, “Lʼimmunité des navires deguerre,” in La mer et son droit, Mélanges of ferts à Laurent Lucchini et Jean-Pierre Quéneudec, (A.
Pedone, 2003), 296, footnote, n. 29.

181

Regarding Article 32 in the context of the ARA Libertad Case, see Massimo Lando, “State Jurisdiction
and Immunity of Warships in the ARA Libertad case,” Japanese Yearbook of International Law, 58 (2015),
348–353.

182

As for consideration of this issue in a detailed manner, see Naoya Okuwaki, “Ryokai ni Okeru Gaikoku
Kosen ni Taisuru Shikko Sochi [Law Enforcement against Foreign Government Vessels],” in Kaiyo
Keneki no Kakuho ni Kakaru Kokusai Hunso Jirei Kenkyu (Dai 2 Go) [Case Studies on Maintenanceof National Interest at Sea (No. 2)], (Kaijo Hoan Kyokai, 2010), 1–4. As confirmed in the Introduction,
under Article 83 of the CCGL, Chinese coast guard ships perform defense operations. In this sense,
when coping with Chinese vessels, the distinction between warships and government ships may lose
its significance. For instance, in predicting the impact of measures taken by Japan with the use of
weapons, the issue whether they are against Chinese warships or government ships is not substantiallysignificant. Whichever the target of the measures may be, a serious and tense circumstance will inevitably
occur.

183

While this article will not elaborate on the issue, Article 236 of UNCLOS provides for the immunityfrom law enforcement measures for protecting the marine environment. See Oxman, op. cit., supra n.
134, 819-820. Regarding the use of weapons in law enforcement for marine environmental protection,
see Jinxing Ma and Shiyan Sun, “Restrictions on the Use of Force at Sea: An Environmental Protection
Perspective,” International Review of the Red Cross: War and Security at Sea, 98 (2) (2016), 515–541.

184

Some States have detailed rules for this requirement of leaving; see Tian Shichen, “The Legal Status of
Foreign Warships in Territorial Seas,” China Oceans Law Review, 2007 (2), 365–366.

185

Paragraph 1 of Article 25 reads:
The coastal State may take the necessary steps in its territorial sea to prevent passage which is not
innocent.

186

Regarding the possible different treatments of warships and government ships, see Okuwaki, op. cit.,
supra n. 182, 2–3.

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Atsuko Kaneharasea, there is a case in which their activities are prejudicial187 to the peace, good order or securityof the coastal State.188 In such a case, what measures could the coastal State take?189 Would Article
25 that allows coastal States to take “necessary steps” apply without the restriction being set forth
by Article 30? A literal interpretation of Article 30 would allow such an interpretation, whereby
Article 30 applies solely to the case in which foreign warships violate laws and regulations.
However, the issue regarding the relationship between the immunity of the warship and thecoastal Stateʼs right to take the necessary steps remains. Is it possible for the coastal State to takemeasures beyond asking the warship to leave, without infringing upon its immunity? Even if theanswer is positive, this would inevitably lead to heightened and aggravated tension between theStates concerned.190
As far as the immunity means immunity from any exercise of law enforcement measures,
irrespective of the degree of its coerciveness, even asking a warship to leave might be an
infringement of its immunity. If so, Article 30 is interpreted, as an exception, as allowing thecoastal State to ask the warship to leave, even though this is an infringement of its immunity. Herecomes the issue of the interpretation of Article 32, in respect to its phrase “With such exceptions
as are contained in subsection A and in articles 30 and 31. ” Without going into the detailed
examination, solely the confirmation of the following points is useful. On the one hand, the coastal
State may take the measures under Article 30 as an exception of the immunity. In other words,
the measures under Article 30 do violate the immunity, but the coastal State is allowed to takethem as an exception. On the other hand, it could be said that the measures under Article 30 do
not violate the immunity due to their non-coercive nature.
Even according to the interpretation of immunity in the strongest way, against a warshipthat does not violate the laws and regulations of the coastal State, as is the case that Article 30
assumes, but whose acts191 are prejudicial to the peace, good order, or security of the coastal
State, the coastal State could, at most, ask the warship to leave the territorial sea. Article 30 might
apply, in some sense, mutatis mutandis, to such a case. If a request to leave does not violate theimmunity, there would be no problem of the violation of the immunity by such a request. Then,
can the coastal State take more coercive measures?
From this articleʼs perspective, the point is not the coverage or applicability of the immunity,
but the nature of the use of weapons accompanying the measures, if the measures of the coastal
State infringe upon the immunity of warships. In other words, the question is whether there is any
justification for the coercive measures even with the use of weapons and, therefore, whether thenature of the measures can remain that of law enforcement, with the nature of the use of weapons
187

The existence, itself, of warships may be prejudicial. This is the traditional issue regarding the meaningof “non-innocence,” and the issue of the relationship between Paragraphs 1 and 2 of Article 19 of
UNCLOS. However, all ships have the right of innocent passage under Article 17 of UNCLOS, andaccording to several authorities, “non-innocence” should be determined by the concrete activities underParagraph 2 of Article 19, not by the kinds of vessels involved. This article will not go into the details of
this. Here, it is enough to confirm that the activities of warships can be presupposed to be prejudicial tothe peace, good order or security of the coastal State.

188

As for a detailed analysis of this issue, see Froman, op. cit., supra n. 98, 660–665.

189

Regarding this point, see Francesco Francioni, “Use of Force, Military Activities, and the New Lawof the Sea,” in A. Cassese ed., The Current Legal Regulation of the Use of Force, (Martinus Nijhoff
Publishers, 1986), 264.

190

As will be examined later, if the use of weapons accompanies the measures by the coastal State, thenature of the use of weapons should be considered in such a tense circumstance.

191

Depending on the interpretation of Article 19, Paragraph 1, and of the relationship between Article 19,
Paragraph 1 and Paragraph 2, the presence or existence of foreign warships may be prejudicial to thepeace, good order, or security of the coastal State.

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being the use of arms in law enforcement. It is not to mention, however, that the possibility of
the worst-case scenario is not denied, which means the change of the situation from that of law
enforcement to that of self-defense.
As for the justification for the use of weapons in law enforcement, in such a case, the balanceof interest is to be considered.192 On the side of the warship, an infringement of its immunity
would breach its dignity and sovereignty.193 On the side of the coastal State, the activities of thewarship, which are prejudicial to the peace, good order or security, would infringe upon thoseinterests and the coastal Stateʼs sovereignty over the territorial sea and cause potential harm to
its security.194 If the coastal State is not allowed to take any enforcement measures against thewarship other than a request to leave from its territorial sea, these interests and sovereignty
would be infringed upon. In addition, even if the warship should be allowed to maintain its
immunity, there still remains the issue of the potential abuse of its immunity.195
In contrast, as a dif ferent position, in such a case, the immunity could be denied. The
sovereign immunity is based upon the most fundamental principle of respect for sovereignty
under international law. In the case concerned, the activities of the warship are prejudicial to thepeace, good order, or security of the coastal State, which means posing a risk to its sovereignty.
When the coastal Stateʼs sovereignty is in danger of or in fact being infringed upon, it is notreasonable for it to be imposed with respecting the immunity of the warship. The sovereigntyof the warship and that of the coastal State are evenly at stake. Considering this, it is not fair torequire the coastal State to respect the immunity of the warship, and accordingly the sovereigntyof the warship.196
The same could be said for cases in which the warship violates the laws and regulations of thecoastal State and at the same time poses a risk to the peace, good order, or security of the coastal
State, thus, a risk to its sovereignty.197 In such cases, beyond the restriction under Article 30, thecoastal State should be allowed to take measures to protect its sovereignty.
192

It is necessary to precisely examine immunity at sea under the law of the sea, and that under generalinternational law. Furthermore, immunity at sea may have different meanings depending on thesea areas concerned, as the interests of the States that take law enforcement measures may change
depending on the sea area concerned, such as their territorial seas, exclusive economic zones, or highseas. Therefore, Article 32, on the one hand, and Articles 95 and 96, on the other hand, require different
considerations when examining the interests at stake of the States concerned. For such an analysis, seeFrancioni, op. cit., supra n. 189, 362–373.

193

In the Detention Case (provisional measures), ITLOS, referring to the ARA Libertad Case, said:“(A) warship, as defined by article 29 of the Convention, ʻis an expression of the sovereignty of theState whose flag it fliesʼ. This reality is reflected in the immunity it enjoys under the Convention andgeneral international law. The Tribunal notes that any action affecting the immunity of warships iscapable of causing serious harm to the dignity and sovereignty of a State and has the potential toundermine its national security.”	Ibid., para. 110. It deserves attention that the tribunal mentions both immunity under UNCLOS andthat under general international law. It might recognize the difference between the immunity under
UNCLOS and that under general international law.

194

Regarding the interests of the coastal States of territorial seas, see Soji Yamamoto, “Mugai Tsuko ni
Ataranai Ryokai Shinpan [Invasion of Territorial Seas by Non-Innocent Passage],” in Wagakuni no Shin
Kaiyochitsujo [New Maritime Order of Japan], (Kaijo Hoan Kyokai, 1990), 72–76.

195

Roma Sadurska, “Foreign Submarines in Swedish Waters: The Erosion of an International Norm,” Yale
Journal of International Law, 10 (1984), 55.

196“Japanʼs Integrative Position,” 1626–1630.

197

As for a similar position, see Soji Yamamoto, “Mugai Tsuko Ken to Engankoku no Kankatsuken
Koshi no Genkai [Innocent Passage and the Limits on the Exercise of the Coastal State Jurisdiction],”Wagakuni no Shin Kaiyochitsujo [New Maritime Order of Japan], 2 (Kaijo Hoan Kyokai, 1989), 84.

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Then, the critical remaining issue is whether such measures of the coastal State, even withthe use of weapons, could retain the nature of law enforcement, and whether the use of weapons
could also retain the nature of the use of arms in law enforcement.
In this regard, a number of authorities mention the right of self-defense, particularly in
relation to the use of weapons accompanying the measures that are assumed, here, to be taken
by coastal States.198 As a similar issue, authorities refer to non-innocent passage of a foreign
submarine in territorial sea,199 and an onboard measure by a State against foreign government
vessels and warships suspected of engaging in piracy in exclusive economic zones.200 In addition,
the following question is raised: When a warship conducts marine research but it is not “marine
scientific research” that falls under UNCLOS,201 what is the nature of the measures that can betaken against it by the coastal State of the exclusive economic zone?202
In a comparative analysis of these various facts and cases, not to mention a thoroughexamination thereof, not only the interests at stake of the States concerned, but also thefollowing points should be carefully considered in a detailed manner. These are the scale of thecoerciveness of the measures and that of the use of weapons accompanying them on the side of
the coastal State that takes the measures and, on the side of the warships, the persistent nature of
the violations of the laws and regulations of the coastal State,203 and the continuous existence of
the warship in the territorial sea irrespective of the request for it to leave.204
Thus, several authorities have discussed the right of self-defense of the coastal State205that takes measures with the use of weapons against warships and government ships enjoying
immunity.206 Is such a use of weapons solely characterized as an exercise of the right of self-

198

As for discussing such an issue, see the following authorities: Oxman, op. cit., supra n. 134, 815; Delupis,
op. cit., supra n. 180, 72; Lowe, op. cit., supra n. 149, 176 and 180. As for a prudent position on this point,
see Okuwaki, op. cit., supra n. 182, 6.

199

Sadurska, op. cit., supra n. 195, 34–38.

200

Oxman, op. cit., supra n. 134, 824.

201

It is problematic that UNCLOS does not give any clear definition of “marine scientific research.”

202

Oxman, op. cit., supra n. 134, 846. A hypothetical case is mentioned in which activities that are disguised
as “marine scientific research” could be conducted by Chinese government vessels and said research
activities may mean preparation for a war, which would infringe upon the territorial integrity of Japan;
see Okuwaki, op. cit., supra n. 182, 10.

203

R. R. Churchill and A. V. Lowe, The Law of the Sea, 3rd ed., (Juris Publishing, Manchester University
Press, 1999), 99; McLaughlin, op. cit., supra n. 143, 19; Sadurska, op. cit., supra n. 195, 55.

204

In that case, the warship should lose its immunity; see Akira Mayama, “Ryokai ni Aru Gaikoku Gunkan
ni Taisuru Kyoryokuteki Sochi ni Kansuru Oboegaki [Memorandum on Forcible Measures against
Foreign Warships in Territorial Sea],” Kokusai Anzenhosho [International Security], 35 (1) (2007),
46. Mayama examines the coercive measures against warships as those holding the nature of law
enforcement, ibid., 47.

205

In addition to the authorities cited at supra n. 198 above, see Shearer, op. cit., supra n. 81, 441.

206

In a different context, the use of force is discussed in cases in which there are threats from theglobal commons, Stuart Kaye, “Threats from the Global Commons: Problems of Jurisdiction and
Enforcement,” Melbourne Journal of International Law, 8 (1) (2007), 185 et seq.

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defense? 207 Is there a dif ferent possibility to explain such a use of weapons? 208 It may beunreasonable to require the coastal State to satisfy the requirements for an exercise of the right ofself-defense.209 Herein lies the issue of the relationship between the law of the sea and the law of
the use of force.210 It is far beyond this articleʼs examination to thoroughly discuss such a difficult
issue.211 However, the following points could be mentioned.212
If such a use of weapons is an exercise of the right of self-defense, it needs to satisfy therequirements for exercising said right.213 Rather, as an issue under the law of the sea, such a useof weapons could be characterized in a different manner from the right of self-defense under
the jus ad bellum. It could be defined as a sort of right of coastal States to take law enforcement
measures with a use of weapons for protecting their sovereignty, peace, good order, or security
in relation to their territorial seas. Such a right of coastal States does not necessarily go beyond
the sphere of the law of the sea, but is instead under it, or it might be called the right existing inbetween or in the gap between the law of the sea and the jus ad bellum.214 Furthermore, persistentviolations of the laws and regulations of coastal States and repeated disregard for requests toleave on the side of warships and government ships are not only infringements of these values of
the coastal States, but also challenges against the regime itself of the territorial sea as a core pillarof the law of the sea, as well as territorial sovereignty as a core pillar of international law.215
If one takes this position that admits certain justification for such a use of weapons, thecritical issue is how to prevent the abuse of such a right to use weapons in order to maintain theimportant significance of the prohibition of the use of force, which has fundamental value forinternational law. Providing a direct and perfect solution to this issue would be tremendously
dif ficult. There are standards for evaluating the legality of the way to use of arms in law
enforcement, such as the standards of reasonableness, necessity, and proportionality thatinternational practice, including the jurisprudence, has established. These standards regulate
the way to use weapons, and they do not provide direct justification for the use of weapons
207

One authority sets forth the categorization of the laws applicable to the use of force depending on thelegal basis for actions in the limited context of interception under the Proliferation Security Initiative;
see Craig, op. cit., supra n. 80, 96–110.

208

Regarding the Pueblo incident and similar ones, see George H. Aldrich, “Questions of International Law
Raised by the Seizure of the U.S.S. Pueblo,” Proceedings of the American Society of International Law at
Its Annual Meeting (1921–1969), 63 (1969), 2–6; Francioni, op. cit., supra n.189, 365–366; Sadurska, op.
cit., supra n. 195, 34–38.

209

Regarding this point, see Mayama, op. cit., supra n. 204, 48–50; Delupis, op. cit., supra n. 180, 72;
Froman, op. cit., supra n. 98, 674 and 683; Francioni, op. cit., supra n. 189, 364.

210

This article does not touch upon the legal standards that regulate the way to use of weapons either as
law enforcement or self-defense. The latter belongs to jus in bello. Thus, here, this law can be said to be
jus ad bellum.

211

For instance, see Lowe, op. cit., supra n. 149; Wolfrum op. cit., supra n. 149.

212

As a related issue, there is discussion of whether the use of weapons against a commercial ship without
legal justification or without proportionality, would become the use of force against the flag State of thetarget ship; see Wolff Heintschel von Heinegg, op. cit., supra n. 101, 460–426.

213

The ICJ dealt with the requirements for the exercise of the right of collective self-defense in the
Nicaragua Case (merits), supra n. 50, para. 232. This ar ticle will not go into the details of therequirements to be satisfied for an exercise of the right of self-defense, both under Article 51 of the UN
Charter and under general international law.

214

Francioni, op. cit., supra n. 189, 363–367; Dale G. Stephens, “The Impact of the 1982 Law of the Sea
Convention on the Conduct of Peacetime Naval/Military Operations,” in Donald R. Rothwell ed., Law of
the Sea, (Edward Elgar Publishing Limited, 2013), 294–296.

215“Japanʼs Integrative Position,” 1624.

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itself. Nonetheless, it could be reasonably expected that they should have a certain degree ofsignificance for preventing the abuse of such a right to use weapons exercised by coastal States
in taking measures against warships and government ships that enjoy immunity.216 In addition,
based upon a comparative analysis of similar facts and cases that have been already suggested byvarious authorities as seen above, and by balancing the interests at stake of the States concerned
and thoroughly considering the various facts in each case, it could be possible to determine thelegality of such a use of weapons. These existing standards and possibly the accumulation of
actual practice could be expected to discharge the function of preventing the abuse of such a useof weapons.
This ar ticle is examining the law enforcement measures and the use of arms in law
enforcement. From this perspective, here, it has sought for the justification for a use of weapons,as that accompany law enforcement measures, against foreign warships and government vesselsthat infringe the sovereignty and security of the coastal State. It is not to mention that as theworst-case scenario, the situation would change from that of law enforcement to that of selfdefense, and in that case, the coastal State would exercise the right of self-defense.
The next and last Section will succinctly introduce Japanʼs position in relation to this issue.

V. Japan’s Position with Respect to Measures to Be Taken against Warships andGovernment Ships That Enjoy Immunity217
The Introduction of this article succinctly explained the circumstance in which Japan has been
facing Chinaʼs warships and government ships in Japanʼs territorial sea surrounding the Senkaku
Islands.218
For more than a decade, China has periodically sent its government vessels and warships toJapanʼs territorial sea surrounding the Senkaku Islands.219 These vessels enjoy immunity under
Article 32 of UNCLOS. As examined above, if Japan takes coercive measures, in some cases evenusing weapons,220 authorities indicate that the scenario would change from one under the lawof the sea to one to be regulated by the law on the international peace and security. Based upon
the analysis in the previous section, various considerations are needed to legally evaluate such a
possible use of weapons.
What has China conducted in Japanʼs territorial sea surrounding the Senkaku islands? China
has, as a matter of fact, frequently dispatched its coast guard vessels and military ships to thesesea areas.221 There, China has taken law enforcement measures against Chinese fishing boats andeven against Japanese fishing boats.222 This is based upon its understanding that the sea areas
216

Stephens, op. cit., supra n. 214, 309; Francioni, op. cit., supra n. 189, 363–365.

217

This author has already introduced Japanʼs position elsewhere, in a full manner, and the gist of it will begiven in the coming Section. See also Kanehara, op. cit., supra n. 28.

218

As for coast guarding of Japanʼs territorial sea, see Atsuko Kanehara, “Ryokai Keibi ni Kakaru Ho Seibino Teigen [A Proposal on Indispensable Legislative Measures for Coast Guarding of Japanʼs Territorial
Sea],” Sophia Law Review, 65 (4) (2022), 11–57.

219

See “Japanʼs Integrative Position,” 1594–1595.

220

Some measures, such as shouldering, do not necessarily accompany the use of weapons but are
coercive.

221

For an overview of the situation, see Ministry of Foreign Affairs of Japan, Status of Activities by Chinese
Government Vessels and Chinese Fishing Vessels in Waters Surrounding the Senkaku Islands (26 August2016), https://www.mofa.go.jp/files/000180283.pdf.

222

Jun Kitamura, “Tracking Japanese Fishing Boats off the Coast of the Senkaku Islands, Making a New
Established Fact that China has Struck,” The Asahi Shimbun Globe, 18 June 2020, https://globe.asahi.
com/article/13461863.

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surrounding the islands concerned are its territorial sea.223 In addition, Chinese fishing vessels
also come to these sea areas. Their number has even reached a few hundreds.224 Furthermore, it
is said that these fishing vessels are, in some cases, also militia vessels.225
With respect to the interests at stake, Chinese warships and government ships (whereappropriate, they will be designated as “Chinese vessels”) enjoy immunity under Article 32 of
UNCLOS. On the one hand, if Japan takes measures against them beyond that which it is allowed
to take under Article 30, and, as long as Chinese vessels maintain said immunity, it would infringe
upon Chinaʼs sovereignty. On the other hand, the activities of the Chinese vessels have violated
Japanʼs sovereignty,226 as they have conducted law enforcement in Japanʼs territorial sea. The
huge number of Chinese fishing boats are said to be militia, in which case, Japanʼs peace andsecurity are seriously endangered.
Setting aside the issue of the compatibility of the activities of Chinese vessels with Japanʼs laws
and regulations, there is no doubt that they are prejudicial to the peace, good order or securityof Japan under Article 19, Paragraph 1 of UNCLOS. In addition, Chinese vessels have entered
Japanʼs territorial sea “periodically,”227 and their activities and disregard for Japanʼs requests toleave have been persistent.
Japan has thus far repeated its requirement that the Chinese vessels leave Japanʼs territorialsea.228 No further measures have been taken by the JCG. Japan made a cabinet decision on 14
May 2015229 to cope with foreign vessels conducting non-innocent passage in Japanʼs territorial sea
through maritime police operations by the JMSDF.230 Considering the interests at stake, as well as
the facts of the persistent nature of the activities of Chinese vessels and their persistent disregard
for Japanʼs request to leave according to Article 30 of UNCLOS, Japan could take more coercive
measures, even those with the use of weapons, depending on the concrete circumstances. As
Chinese vessels are seriously infringing upon Japanʼs sovereignty, the immunity of these vessels
could be denied. The principle of immunity is based upon respect for sovereignty. As long as
the Chinese vessels disregard, vis-à-vis Japan, this fundamental value of sovereignty underinternational law, immunity should not be conferred upon them.
223

China insists that Japanese fishing boats entered the territorial sea of the Diaoyu Islands; see Ministryof Foreign Affairs of the Peopleʼs Republic of China, Wang Yi Reiterates Stance on Diaoyu Islands (25Nov 2020), http://ch.china-embassy.gov.cn/ger/zgxw/202011/t20201127_3208257.htm. (“The fact
is that recently some Japanese fishing boats of unknown origin have repeatedly entered the sensitive
waters off the Diaoyu Islands, and China has to make necessar y response. On this issue, Chinaʼsposition is clear. The Chinese side will continue to firmly safeguard its sovereignty and at the same time
proposes three hopes.”)224

For instance, according to a report issued by the JCG, two hundred to three hundred Chinese fishingboats have entered the territorial sea surrounding the Senkaku Islands. See Ministry of Defense ofJapan, slideshow, “Chinaʼs Activities in the South China Sea,” (March 2021), https://www.mod.go.jp/
en/d_act/sec_env/pdf/ch_d-act_b_e_210421.pdf.

225

Regarding the serious issue that militia vessels would cause, see supra n. 165.

226

Kanehara, op. cit., supra n. 28.

227

See supra n. 19.

228

As for the possible impact of these measures on Japanʼs position that there is no dispute over the
territorial sovereignty of the Senkaku Islands between China and Japan, see “Japanʼs Integrative
Position,” 1616–1618, 1623–1624, 1629–1630.

229

https://www.cas.go.jp/jp/gaiyou/jimu/pdf/gaikokugunkantaisho/pdf (in Japanese).

230

See supra n. 23. Thus far, except for one example, no maritime police operation has been realized inaccordance with the decision. Regarding the functions of the navy and the coast guard in the U.S., see
Douglas Daniels, “How to Allocate Responsibilities between the Navy and Coast Guard in Maritime
Counterterrorism Operations,” University of Miami Law Review, 61 (2) (2007), 467–508.

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Atsuko KaneharaWith respect to the measures that Japan could take, Japanʼs position has been unclear. For
instance, Japanese authorities gave interesting remarks in the Diet. When the possible use of
weapons against foreign government vessels and warships was discussed, a question was asked
as to whether such a use of weapons would become harmful shooting, and if that were the case,whether such a use of weapons constitute a hostile act. Without mentioning the meaning of law
enforcement under domestic law and that under international law and the relationship between
the two, Mr. Masataka Okano, the then Director-General, International Legal Affairs Bureau,
Ministry of Foreign Affairs, answered:
From the perspective of international law, such an act is defined as law enforcement in Japanʼsterritorial sea.231
When it was asked whether law enforcement acts can cope with such a case of an infringementof Japanʼs sovereignty in which, for instance, the crew of the vessels of Chinaʼs Coast Guard landon the Senkaku Islands (in the Diet, such a case was previously recognized as an infringementof Japanʼs sovereignty by the Minister for Foreign Affairs), again, without any explanation of law
enforcement under domestic law and that under international law, Mr. Masataka Okano, the thenDirector-General, International Legal Affairs Bureau, Ministry of Foreign Affairs, said:
What is important here is whether Japan conducts activities in conformity with internationallaw. The basic point is that Japan conducts law enforcement activities that are permitted byinternational law (emphasis added).232
As mentioned above, this article is examining the law enforcement measures and the useof arms in law enforcement. Thoroughly under this framework of examination, it has soughtfor the justification for a use of weapons against foreign warships and government vessels that
infringe the sovereignty and security of the coastal State. In addition, at least, for the preventionof escalation, law enforcement measures are preferable to self-defense measures.233 Nonetheless,as the worst-case scenario, it could not be denied that the situation would change from that of law
enforcement to that of self-defense, and in that case, Japan, as the coastal State, would exercise
the right of self-defense. The remarks reproduced here mentioned law enforcement by Japan.
Nonetheless, there is no clarification of the reason why such a use of weapons in the context
concerned has the nature of the use of arms in law enforcement, not that of the use of force ofthe right of self-defense. More fundamentally, they do not indicate any understanding of theimportance and difficulty for Japan to maintain the nature of law enforcement of the measures
to be taken by it, in seriously considering the possible change of the situations from the law
enforcement to the self-defense that is, in reality, strongly expected.

Conclusion
This article re-considered the distinction between the use of arms in law enforcement and theuse of force prohibited by international law unless justified mainly by the right of self-defense.
Since this authorʼs previous work on this distinction, further re-examination has come to berequired. This is because the wide understanding of maritime security has been, in reality, firmly
established, thereby making it tremendously difficult to make said distinction.
Nonetheless, as long as the difference in the international rules is maintained, dependingon the two kinds of the use of weapons under international law, this distinction still very muchdeserves continuous analysis.
231

Minutes of the Committee on Foreign Affairs and Defense, House of Councillors, the 204 th Session, No. 7 (15April 2021), 8. For its English translation by this author, see Kanehara, op. cit., supra n. 28, [II-4-a].

232

Minutes of the Committee on Foreign Affairs and Defense, House of Councillors, the 204 th Session, No. 7 (15April 2021), 8–9. For its English translation by this author, see Kanehara, op. cit., supra n. 28, [II-4-b].

233

See supra n. 20.

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In addition, while this ar ticle left some issues for future works, the issue of the firm
establishment of the international regulation remains with respect to the use of arms in law
enforcement and the use of force prohibited by international law unless principally being justified
as an exercise of the right of self-defense.234 Furthermore, it would be indispensable to conduct a
more detailed examination regarding the relationship between the law of the sea regulating law
enforcement at sea, on the one hand, and the law on the international peace and security,235 on theother hand.
As a special issue, if a coastal State of a territorial sea takes coercive enforcement measures,
even with the use of weapons, against warships and government ships that are enjoying immunity,
several authorities have pointed out that the scenario would change from one under the law of thesea to one under the law on the international peace and security.
In this regard, as this article focused upon the use of arms in law enforcement, it examined
the justification for the use of weapons against foreign warships and government ships, as theuse of arms in law enforcement. It does not exclude the worst-case scenario of the change of thesituation from that of law enforcement to that of self-defense. However, without going into theself-defense situation, Japan, as the coastal State, should have possibility to legally use weapons as
the use of arms in law enforcement. This article sought for the justification for such a use of armsin law enforcement. For prevention of escalation also sets forth the justification for the forcible
enforcement measures. As indicated above in the previous Section IV, there should be othersimilar examples to this example of law enforcement with the use of weapons against foreign
vessels enjoying immunity. The accumulation of international practice and its theoretical analysis
are strongly expected. That will help to derive the international rules that regulate the use of
weapons in such incidents so as to avoid, as much as possible, the abuse of the use of weapons
under the fundamental principle of international law to prohibit the use of force.
This issue of law enforcement against foreign warships and government vessels has troubled
Japan almost every day in relation to China in the East China Sea. Under the particular legal
circumstance with Article 9 of the Constitution of Japan, and the strict distinction between law
enforcement and self-defense,236 how to most effectively protect its sovereignty and territorial
integrity has continued to be an urgent agenda for Japan to cope with.237 As introduced above,
judging from the discussion in the Diet, the official position of the Japanese government has
not been adequately determined, yet. The Japanese government needs to justify its measuresagainst Chinese warships and government ships, not only under its domestic laws but also underinternational law.
In this regard, the fact that the CCGL of 2021, under Article 83,238 enables Chinese coast guard
vessels to take defense measures, and the fact that the scenario of law enforcement under the lawof the sea can immediately change to that of jus ad bellum, are serious sources of concern. This isthe very reality that Japan has been facing.

234

See, for instance, Dieter Fleck, “Rules of Engagement for Maritime Forces and the Limitation of the Useof Force under the UN Charter,” German Yearbook of International law, 31 (1988), 165–186.

235

When focusing on the justification of such a use of force, it is an issue of jus ad bellum.

236

Thus, the issue of so-called “grey zones” is dealt with in this inherent framework of Japanʼs domestic
laws. As for the discussion on grey zones in Japan, see Koichi Morikawa, op. cit., supra n. 49 (Gurei
Zon) 29–38; “Maritime Security,” 51–52.

237

Kanehara, op. cit., supra n. 28, and 217.

238

See the Introduction, 2.

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Kitaoka Shinichi

Japan’s responsibility in the international community:
Reflections on the Asia-Pacific War, 1931–1945*,**
Kitaoka Shinichi***Without understanding and reflecting properly on the last war, Japan will never gain
the trust of the international community. At the same time, history also teaches
that Japan should make more of a contribution to international security.

In March 2015, I spoke at a symposium, where I said that Japan had clearly committed
aggression against other countries before and during World War II and called on Prime Minister
Abe Shinzō to acknowledge this fact by saying unambiguously that “ Japan had committed
aggression.” My remarks were widely reported in the press.
My comments came in for several criticisms. First, some people felt that as the acting
chairman of an advisory committee convened to consider Prime Minister Abeʼs statement on theanniversary of the end of World War II, it was inappropriate for me to make personal remarks ofthis kind. But the Advisory Panel on the History of the 20th Century and on Japanʼs Role and theWorld Order in the 21st Century, of which I am a member, was established on the occasion of theseventieth anniversary of the end of World War II as a forum for specialists to review the historyof the twentieth century and consider the international world order in the twenty-first century
from that perspective. The purpose of the panel was not to consider the Abe Statement directly. I
did not suggest that the word “aggression” should necessarily be included in the prime ministerʼsstatement. I merely said that I would like to see Mr. Abe speak clearly along these lines in one
setting or another. Mr. Abe has said: “I have never said that Japan has not committed aggression,and have never denied the fact of its colonial rule.” Rather than a vague expression like this, amore direct statement would be better received by the international community. My hope when I
spoke was that the prime minister would create an opportunity for a clear statement.

Correcting fallacious arguments on the “aggression” issue
More problematic is the kind of criticism that claims there is no agreed definition of the term
“aggression” in international law, and that the absence of such a definition would make it wrong
to argue that Japan carried out aggression. That this kind of faulty reasoning still crops up
repeatedly in the media is regrettable enough, but I was astonished to see this kind of argument
leveled at me by a respected historian like Itō Takashi, professor emeritus at the University ofTokyo. (For Itōʼs criticisms, see: “Kitaoka-kun no oungōru hatsugen o shikaru” [A Critique ofKitaokaʼs Own-Goal Comments], Rekishi-ts , May 2015.)
I fully understand that there are difficulties with the definition and legality of what constitutes
an act of “aggression” in international law. No universally agreed definition exists that can beused in all circumstances to decide immediately whether a given militar y action is an act of*The majority of Japanese historians now refer to the war from the Manchurian Incident through SinoJapanese War to the Pacific War as the Asia-Pacific War.

** This essay is a translation of an article published in Gaiko [Diplomacy], Vol. 32, July 2015. The
information in this essay is current as of July 2015.
*** Kitaoka Shinichi is Emeritus Professor of the University of Tokyo and Special Advisor to the President(former President) of the Japan International Cooperation Agency (JICA).

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aggression. If Hezbollah carries out a terrorist attack on Israel from Lebanon, for example, andIsrael responds with a counterattack, to what extent does this constitute self-defense and to what
extent should it be considered aggression against Lebanese territory? Questions like this do nothave quick-and-easy answers. Since in todayʼs world defining a military action as “aggression”
often means condemning it as illegal and imposing sanctions, these decisions call for care andprecision. Naturally, a certain amount of time is required.
Another factor is that it is the United Nations Security Council that is responsible for deciding
whether a given militar y action constitutes aggression, and whether to apply sanctions. Any
permanent member of the Council can block a motion and ensure that the military action inquestion is not described as an act of aggression. This means there is a degree of arbitrariness tothe definition and the decisions that flow from it. This much is certainly true.
But this does not imply that no such definition exists. And in any case, the argument thatthe lack of an effective definition in international law of “aggression” would rule the topic offlimits for academic discussion in histor y or political science is absurd. No strict definitions
exist for the terms “war” and “peace” either. Does that mean we cannot discuss these subjects?
Of course not. The Japanese word translated here as “aggression” is shinryaku. If we look thisup in two widely used Japanese-language dictionaries, we find the following definitions. In the
K jien, the word shinryaku is defined as: “Entering another country and seizing that countryʼs
territory and assets.” In the Daijirin, the same word is defined as follows: “When one country
uses military force to infringe on the sovereignty, territory, and political independence of anothercountr y.” Almost no scholar of histor y or political science would argue that definitions likethis are mistaken. Academic debate has proceeded for years along this kind of commonsense
understanding of the term.
The “aggression” debate often focuses on the Manchurian Incident and the expansion of theJapanese presence in Manchuria that followed. Japanʼs recognized interests at the time wererestricted to southern Manchuria and consisted of non-contiguous “dots and lines” centered on
the Kwantung Leased Territory and the South Manchuria Railway. Despite this, Japan ended up
controlling an area three times larger than mainland Japan, including the north of Manchuria
where Japan had no interests whatsoever. To insist despite these facts that this did not constitutean act of “aggression” is absurd. It was clearly an aggression by any definition under internationallaw.
If my critics contend that we should not use the term “aggression” because no clear anduncontroversial definition of the term exists, then how should we refer to the Soviet Unionʼs
incursions into Manchukuo in August 1945? Perhaps my critics believe that Hitler and Stalin
never carried out aggression either.
In the article I have mentioned, Professor Itō says he feels “betrayed,” since he says headvised me when I accepted the position as Japanese chairman for the Japan-China Joint History
Research Committee that the Chinese wanted to press the Japanese side to use the term
aggression (shinryaku), and that we should not submit to this demand at any cost. Professor Itō
accuses me of being a “kyokugaku asei no to.”1 I was taken aback by his use of such language,
which is more like a brazen insult than reasonable academic criticism. Even before the joint
history research project, my position has always been that Japanʼs military actions during andfollowing the Manchurian Incident constituted an act of aggression and led to an avoidable warthat caused the deaths of millions of people, including some three million Japanese people. I said
as much to Professor Itō and disagreed with his views when I accepted the position as chairman.

1“Kyokugaku asei no to” means someone who twists academic learning to win the favor of certain people.

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Kitaoka Shinichi

The political implications of the San Francisco Peace Treaty

Professor Itōʼs arguments are not the only erroneous ones I would like to respond to here.
Some people believe that recognizing Japan as an aggressor nation would make it impossible
for Japanese people to feel proud of their countryʼs history. But this term “aggressor nation” isnot one I have used. I merely say that Japan has committed aggression in the past. It is Professor
Itō who has decided for his own purposes to use the expression “aggressor nation.” In any case,almost every one of the worldʼs major powers has committed aggression at some stage in thepast. Merely admitting this fact does not make a country good or bad. Japan too has committed
aggression in the past, but of course this does not alter the fact that Japan today is an admirable
country in many respects.
Another view claims that if we admit that Japan committed aggression, this admission will be
used to castigate and berate Japan forever. In fact, the opposite is more likely to be true. Oncea countr y loses a war, international borders are redrawn, reparations are imposed, and war
crimes are punished. These processes bring war issues to a conclusion. There are deep-rooted
criticisms to be made of the Tokyo War Crimes Tribunals, for example. I also have reservations
about many aspects of these tribunals. But it was by accepting the findings of the tribunals thatthe conditions for peace were put in place, and Japan has not faced further accusations or beenrequired to shoulder additional responsibilities. Admitting the fact of committing aggression ispart of accepting this legal and political process. To argue that Japan did not commit aggression
is tantamount to challenge to the Tokyo Tribunals and the San Francisco Peace Treaty. The likely
result would be to bring to the surface a whole host of arguments relating to the war, including,but not limited to issues of reparations, compensation, and apologies. Prime Minister Abe saysthat he has no intention of disputing the terms of the Peace Treaty.
Some people argue that Japan had no bad intentions when it established Manchukuo, and thatJapan was responsible for good things too. But aggression is aggression, regardless of whether
it was done maliciously or whether the aggressor country did good things. To argue this way
is to fundamentally misunderstand the nature of the issue. It is not a question of feelings andintentions.
On a related note, some people argue that South Manchuria remained as Chinese territory
at the time only because Japan had been victorious in the Russo-Japanese War. If Japan had not
defeated Russia, Manchuria would have become Russian territory. This is probably true, but that
does not provide a case for claiming that the territory was Japanʼs to do with as it pleased. In theclosing years of the Edo shogunate, Russia tried to occupy the island of Tsushima by sending
its warship Posadnik, only for Britain to come to Japanʼs aid by chasing the Russians from theisland. Using this logic, these events would make Tsushima a British possession. It is a ludicrous
argument.
Some people also argue that the Japanese effectively had run Manchuria before Manchurian
Incident, but this gives too much credit to Japan. Around 200,000 Japanese had traveled toManchuria as settlers and developers before the Manchurian Incident, and most of these wererestricted to the Kwantung Leased Territory and areas along the South Manchuria Railway. By
comparison, there were more than 15 million Chinese in Manchuria. It was only after Manchukuo
was established that Japanese immigration increased substantially. Most of the Japanesearguments against the “aggression” position can only be described as immature and half-baked: adistorted mixture of emotional rhetoric and appeals to poorly understood points of law.

Why did the internationalist mood of the 1920s collapse?
For professional historians, the question of whether the Manchurian Incident was an act ofaggression is essentially settled. The questions we should be asking ourselves now, 70 years after
the end of the war, are these. Why did the Manchurian Incident happen? Why did it lead to war
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with the United States and Great Britain, despite numerous opportunities after the Incident tohalt the slide into war? What lessons can we learn from this history that will serve us well in thepresent?
The main significance of the Manchurian Incident in international political history is that itmarked a clear infringement of the Nine-Power Treaty (1922) and the General Treaty (1928) for
the Renunciation of War as an Instrument of National Policy (or the Kellogg-Briand Pact), andwas the initial blow stuck against the international order that had developed in the 1920s.
The 1920s were a relatively stable period compared to those that came before and after. It
was a decade in which, reflecting on the lessons of World War I, significant progress was made ininternational cooperation toward outlawing war and placing restraints on colonial policy. War was
officially outlawed with the Kellogg-Briand Pact of 1928, the spirit of which lives on in Article 9.1of the current Constitution of Japan. Changes also happened in attitudes to colonial rule. Although
the principle of national self-determination was initially limited to Europe, it inspired the MarchFirst Movement in Korea and the May Fourth Movement in China. India and African countries
also began to demand greater rights from their colonial rulers in return for the contributions they
had made to the war effort. These demands eventually persuaded the colonial powers to takesteps. The Nine-Power Treaty, signed at the Washington Naval Conference in 1922, included anagreement on the so-called Open Door Policy in China and guaranteed the territorial integrityof China. Even if these moves did not lead to independence, they represent clear evidence of a
new international mood to end any further attempts to expand colonial empires or spheres ofinfluence.
These developments also affected Japan. The Nine-Power Treaty and the Naval Limitation
Treaty signed at the Washington Naval Conference had an impact on the way in which Japan
administered its own colonies. Japan saw that it needed to move away from rule by the kempei
military police in Colonial Korea during the eras of Terauchi Masatake and Hasegawa Yoshimichi.
Accordingly, the government decided to give the post of Governor-General of Korea, which had
previously been reserved for a serving army general, to Saitō Makoto (in office 1919–27, 1929–31), who was then a naval reserve officer. When sending him off to his post, Saionji Kinmochi is
supposed to have exhorted him with the words, “Civilized politics, please, Your Excellency.”
The job of Governor-General of Taiwan went to the civilian Den Kenjirō (1919–23). Japan had
accepted the shift from a direct to a less heavy-handed style of colonial rule, and from military
expansion to a pursuit of economic interests. In Japan, cabinets dominated by political parties
became the norm, and internationally minded leaders with a focus on the economy, like Hara
Takashi and Shidehara Kijūrō, became increasingly influential.
So why did the internationally minded Washington Treaty system of the 1920s collapse?
Domestically, there was growing distrust of the political party cabinets that came to dominate
politics during the 1920s. The public became disillusioned by what it saw as the self-interested
squabbling and competition among political parties. Another factor was that the Diet was notsupreme under the Meiji Constitution. The armed forces maintained a large degree of autonomy,
and the political parties sowed the seeds for a situation in which powers outside the Diet held
substantial power, which was used by the Seiyūkai to criticize the Minseitō-led Hamaguchi
cabinet for its acceptance of the London treaty on arms limitations.
Internationally, the Great Depression clearly had a decisive impact. The Great Depression
caused a drastic fall in Japanese exports to the United States and led to the collapse of the tradebased development model. Even before this, the voting down of Japanʼs Racial Equality Proposal
at the Paris Peace Conference, and the enactment of the “Japanese Exclusion Act” banning
Japanese immigration to the United States also weakened the influence of the internationalists
and economic-minded factions.
Their influence faded amidst a growing lust for land in Manchuria, as the focus shifted
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Kitaoka Shinichifrom trade to acquiring new agricultural land. The threat to Japan ʼs interests in Manchuria
from an increasingly powerful Soviet Union led to a sense of crisis that was exacerbated by theradicalization of Chinese nationalism. These were the factors that led to the Manchurian Incident,a precipitous decision by Japanʼs Kwantung Army to seize Manchuria for Japan.
One other point I would make in this context is that between the Manchurian Incident andthe full-blown outbreak of war with China, there were still several opportunities to halt the
expansion of the fighting. After the Manchurian Incident, Finance Minister Takahashi Korekiyo
successfully got Japanʼs economy back on its feet again, and the Tanggu Truce brought a lull in
military hostilities in 1933. But Japan failed to use this respite to deescalate the situation. Instead,a series of foolish decisions, from the North China Buffer State Strategy of 1935 to the February
26 Incident of 1936, led to the full-fledged outbreak of the Sino-Japanese War in 1937.
It would have been possible to prevent war with the United States even after the submissionof the Hull Note on November 26, 1941. Japan could have used the Hull Note as a starting point
for negotiations on the lines behind which it would withdraw its troops. Although the UnitedStates would surely have insisted on a Japanese withdrawal from China, Japan could have made acase for the continued existence of Manchukuo. The Japanese cabinet might well have collapsed
during these negotiations, but that would have been infinitely preferable to war with the UnitedStates. Right up until the final moment there were opportunities to change national policy. It
is essential that we understand this fact correctly, as well as the circumstances that led to therepeated mistakes of those decisions (or lack of decisions) .

Lessons for the present

What lessons can todayʼs Japan learn from the history of the Manchurian Incident and the events
that followed? I believe the main lessons should be these: first, that the international community
must not allow any attempt to change the status quo by force. We must not remain silent in theface of what is happening in the South China Sea or Ukraine. Second, Japan should fully cooperate
in imposing sanctions on any country that carries out illegal actions. Japan has regularly madecontributions since the Gulf War in 1991, but these remain inadequate in some respects. It will beessential to ensure that the proposed security legislation is approved and comes into effect. Third,
we should learn from the way in which the world increasingly turned inward after the Great
Depression, as countries turned to policies that put their own national interests first. To prevent
this from happening again, the maintenance and further development of an open and liberal free
trade system will be essential. In the postwar era, Japan has benefited from these three points―
the renunciation of war, the strengthening of international systems, and the establishment of afree trade system―and has demonstrated some commitment toward these developments. But
there is room for Japan to be more active in this regard.
If I were to add one more thing, Japan should play an active role in eradicating the poverty thatis the root cause of conflicts. In the postwar era, Japan has supported the economic developmentof Asian countries, chiefly through Official Development Assistance. As a result, Southeast Asia,
which was as poor as Sub-Saharan African countries, has gradually become more prosperous.
And Japan has taken its own approach, which prioritizes economic stability. Japan does not
generally have a lot to say about political systems. Once economic stability is achieved, next
comes economic development. As a result of economic development, democratization occurs.
Japan has done well to encourage this kind of virtuous cycle.
For Western countries and the United Nations, human rights and political democratization
inevitably come first. The case of sanctions against Myanmar is one good example. In other cases,
UN peacekeeping missions might be sent into a conflict area, and elections might be held, butthat is often the end of it. Sometimes, however, elections lead to further confusion and unrest, and
it is after the elections that support is needed most.
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Japan’s responsibility in the international community: Reflections on the Asia-Pacific War, 1931–1945

Japan understands the conditions in developing countries as well as the universal values of theWest. At least since the Fukuda Doctrine, Japan has worked to support countries in Asia not froma position of superiority but as a partner. Henry Kissinger said that an economic power inevitably
becomes a political and a militar y power, but Japan has built a presence in the international
community in a different way. I think we should value this unique approach as one of theaccomplishments of the 70 years of the postwar era.
What then are the inadequacies in Japanʼs current policies? The biggest shortfall has to
do with Japanʼs international contributions in the area of security. Japan prides itself on beinga peace-loving nation that has renounced war and adopted a peace constitution. But for themost part, this consists merely of not doing anything bad. Even in the context of peacekeeping
operations, countries with fewer national resources than Japan―including Scandinavian countries
and Canada, among others―are more engaged in peacekeeping missions and have made larger
sacrifices than Japan, which by comparison is bearing an insufficient share of the burden.
Even in the context of the proposed national security legislation currently being debated in
the Diet, the arguments of the opposition parties tend to focus exclusively on the relationshipbetween the constitution and collective security, as well as checks on the use of force. There has
not been any deep discussion on the real issues.
If people contend that a single administration cannot be allowed to alter the interpretationof the constitution, does this imply that we should scrap the interpretation of 1954, which
determined that the constitution permitted the minimum and necessary forces for self-defense?
Should we return to the original interpretation of 1946, which held that Japan could not possess
any war capability whatsoever?
Okada Katsuya, President of the Democratic Party of Japan, has insisted that if US naval ships
operating alongside Japanese vessels came under attack, Japan would already be able to respondunder the existing right to individual self-defense if the attack took place in waters adjacent toJapan. But this interpretation deviates from the understanding on individual self-defense of the
Cabinet Legislation Bureau, which holds that Japan can use military force only if the country
itself comes under attack. He is criticizing attempts to change interpretations in one area, while
demanding separate changes in others. Surely double standards of this kind cannot be conducive
to constructive debate.
The biggest check on the use of force is civilian control. The essence of civilian control is
the support and trust placed by the people in civilians (politicians). In a democratic and pacifist
country like Japan, any ill-considered decision by politicians that led to the loss of lives might
easily lead to the government being voted out of office. This sense of trepidation is what acts
as the greatest check. In any case, I hope that there will be realistic discussions, based on thestarting point that the international situation is changing drastically from a national security
perspective.

The historian’s mission: Establishing the facts
Finally, I would like a few words about the state of historical research. Toward the end of 2014,
it was reported that the Japanese embassy in the United States asked for a correction when atextbook published by McGraw Hill claimed that Japan had forcibly recruited up to 200,000 young
women to serve in military brothels during the Asia-Pacific War. The publisher refused to makea correction, criticizing the request as “interference in academic freedom.” But is this really aquestion of academic freedom? Whatever the facts of the matter, 200,000 young women were notforcibly recruited.
Hata Ikuhiko and Ōnuma Yasuaki held a press conference to address the issue in Japan,
during which Professor Ōnuma said, “If someone pointed out a mistake in something I had
written, I would write that person a thank you letter.” This is an admirable attitude to take.
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Kitaoka Shinichi

The ideal stance, surely, would be to say: If you disagree, letʼs work on a joint research project
together. To date, historical research of this kind has already been carried out between Japanand China, as well as Japan and South Korea. If possible, I would like to see more collaborativeinternational research involving historians from the United States, Southeast Asia, Germany,
France, and other countries. The aim of research should not be to assign blame but to establish
the facts.

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The Franco-German reconciliation model does not correspond to the challenges of the Japan-PRC relationship

The Franco-German reconciliation model does not correspondto the challenges of the Japan-PRC relationship
Valérie Niquet*
Abstract
The Peopleʼs Republic of China (PRC) recurrently uses the argument of the Franco-German
model of reconciliation. Germanyʼs “moral” position is systematically opposed to that ofJapan, which is always denounced as the only party responsible for the lack of reconciliation
with China.
This analysis is often repeated without distance outside China. However, behind this
discourse, the reality is much more complex and the comparison of the two situations isparticularly hazardous. The real question is indeed that of strategic incentives, which, fromthe immediate aftermath of the Second World War to the present day, are divergent. This
paper will look into the complexities of the reconciliation process, beyond an idealized
Franco-German model.

T

he Peopleʼs Republic of China (PRC) recurrently uses the argument of the FrancoGerman model of reconciliation. Germanyʼs “moral” position is systematically opposedto that of Japan, which is always denounced as the only party responsible for the lackof reconciliation with China because̶according to Beijing̶it refuses to look backand apologize for its actions during the Second World War.
This analysis is often repeated without differentiation outside China, particularly in Westerncountries, both by non-specialist experts in Asia and by politicians. Thus, in his speech to theDiet during his visit to Japan in June 2013, President François Hollande of France was able to put
forward the example of Franco-German reconciliation, without contextualizing it or making a
distinction in the process between West Germany (formerly BRD) and East Germany (formerly
DDR).1
However, the reality behind this discourse is much more complex and the comparison of thetwo situations is particularly hazardous. The real question is indeed that of strategic incentives,
which, from the immediate aftermath of the Second World War to the present day, are divergent.
In the case of the Franco-German relationship, as we shall see, West Germany yesterday,
Germany today, and France were both parts of the same liberal democracies grouping. In thecase of the Sino-Japanese relationship, the Peopleʼs Republic of China and its Party-State systemhave not shared Japanʼs interests and strategic vision since 1949. The onus is therefore on a
China whose leaders have a direct interest in maintaining Japan in a state of subordination that
limits its re-emergence on the international scene as a “normal” power. It is in this context thatthe impossible reconciliation between Tokyo and Beijing must be analyzed, and the main factor
remains Chinaʼs willingness̶today non-existent̶to accept a true permanent reconciliation with*

Valérie Niquet, Ph.D. (Sorbonne University) is Head of the Asia department at FRS (Fondation pour larecherche stratégique), and senior fellow at the Japan Institute of International Affairs (JIIA).

1“Statement by Mr. François Hollande on Franco-Japanese relations, June 7, 2013,” speech delivered to
the Diet, Tokyo at https://www.vie-publique.fr/discours/188124-francois-hollande-07062013-relationsfranco-japonaises

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Valérie Niquet

Japan after 1945. Indeed, contrary to a commonly accepted position, it is not the capacity to lookback on a difficult history that precedes reconciliation but, as in the Franco-German or JapaneseAmerican case, the will to reconcile that constitutes the first condition. In the case of Germany,
France wanted this reconciliation for reasons that had little to do with the most recent past; all themore easily, no doubt, because France itself had difficulty, until the end of the 1970s, in coming
to terms with its own experience as a collaborationist state under the regime of Marshal Pétain
(1940–1944).

The Chinese position on taking Germany as a model

For Beijing, this constant reference to the Franco-German model and Germanyʼs just attitude
is a valuable foreign policy tool, mobilized against a Japan whose legitimacy today is no morequestioned in the whole of Asia except, for different reasons, in the PRC and the Republic ofKorea. In 2013, Chinaʼs ambassador to Germany published an op-ed in the Frankfurter Allgemeine
Zeitung denouncing Prime Minister Abe ʼ s visit to Yasukuni Shrine as a demonstration ofrevisionist nationalism as opposed to Germanyʼs ability to repent.2 China thus constantly uses theexample of Germany as opposed to that of Japan, which is always denounced as solely responsible
for the lack of “trust” and reconciliation between the two countries. 3 President Weizsäckerʼs
speech to the German Parliament on May 8, 1985, is often cited as a model of acknowledgmentof an inexcusable past.4 However, the incongruity of this rapprochement by a regime that has
made the expurgation of history and its most painful episodes a mode of social control is nevermentioned.5
Like historians, Chinese editorialists condemn Japan by using this misguided comparison
with Germany. For the Global Times, both Japan and Germany were defeated nations, but only
Germany was able to completely liquidate its past Nazi crimes. The author emphasizes the roleof the Franco-German axis as a factor of peace, prosperity, and stability in Europe, “an example
of resolving disputes through compromise and cooperation.” On the other hand, according tothis article, Japan has not learned the lessons of its war of aggression; Tokyo must learn from
Germany.6

Far from histor y: China’s geostrategic motivations
Several objectives explain this positioning of the PRC vis-à-vis Japan on questions of history. At
the bilateral level, there is a twofold objective of legitimizing the Communist Party within China
by constantly reactivating the memory of the war of resistance against Japan and by glorifying
the role of the Communist Party during the Second World War. On the international scene, the
PRC tries to deny Tokyo any legitimacy, particularly in its demand for reform of the UNSC. Asa defeated nation like Germany in 1945, Japan, in the eyes of the Chinese leadership, must be
maintained in this status. This is all the truer since the perception of the People ʼs Republic ofChina as a source of opportunity is deteriorating globally, including in Asia.
2

In Stanley Crossick, “Can China and Japan ever Forgive and Forget?” Politico, 09-11-2015.

3

Nicole Colin, Claire Demesmay, Franco-German Relations Seen from Abroad, Post-war Reconciliation inInternational Perspectives, (Springer, 2020).

4

Speech by Federal President Richard von Weizsäcker during the Ceremony Commemorating the40th Anniversary of the End of War in Europe and of National-Socialist Tyranny on 8 May 1985 at the
Bundestag.

5

In China, topics such as the Tiananmen Square massacre cannot be discussed and there is a crime of“historical nihilism” which condemns any criticism of the ruling Communist Party.

6

孙海潮 , “ 中日关系愈发的关系比较 ”(Comparison between Sino-Japanese relations and Franco-German
Relations), 环球网，30-04-2019.

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The Franco-German reconciliation model does not correspond to the challenges of the Japan-PRC relationship

Defending the Partyʼs image of dominance, especially against Japan during the Second World
War, is in effect contributing to the Partyʼs posture of power today. To control and rewrite thehistory of the anti-Japanese struggle before 1949 is also to mask by an abundance of discourseon this period the total absence of authorized critical discourse on the history of the post-1949
period, which was particularly painful and costly in human lives for the Chinese people. The
contemporary legitimacy of the Communist Partyʼs undivided power has been increasingly based
since the end of the 1980s on historical reconstruction.
This instrumentalization of history in China takes place at various levels, notably in the writingof school textbooks and in the commemoration and promotion of memorial sites, the list of which
has grown very recently.
In France, attempts by the Parliament to “guide” the history curriculum in 2006 sparked aheated debate that led to the withdrawal of the contested project. Contrarily, Yang Dongliang,
former head of the Ministry of Educationʼs expert committee on Japanese issues, believes that
7“all countries in the world encourage young people to study history to nourish their patriotism.”
These are two radically dif ferent conceptions of histor y education that demonstrate theideological gap that continues to exist with the Chinese system.
The rules governing the writing and selection of authorized textbooks in China, especiallyhistor y textbooks, are defined by the Communist Par ty authorities, who are exclusively
responsible for ideological control, and their implementation is entrusted to the PRCʼs Ministryof Education. The mission of the Ministry is thus officially “to analyze and present educational
materials used in elementary and secondary schools, to organize the review and approval of sucheducational materials.”8 In 1986, taking into account the policy of reform and the opening up of thecountry, the production of history textbooks was decentralized, but the requirement to respect
the principles defined above was maintained. The textbooks are no longer composed by a single
centralized commission but by provincial or municipal departments of education, by educational
institutions themselves, and by individual experts or scholars. The system of text review and postproofing by a “state textbook review and approval commission” has been maintained to take into
account “the ideological content, scientific spirit and suitability of the textbooks for the relevant
audience.” History, as it is taught to children and youth today, and more so under Xi Jinping, isthus an instrument of official control and mobilization in the hands of the Chinese powers-that-be.
A textbook used in secondary schools in accordance with official guidelines is particularly
illuminating in this respect.9 The chapter on “the war of resistance against Japan” highlights
several essential and recurrent points in the process of constructing an eternally guilty Japan.
The presentation intends to highlight the “immense heroism of the struggle against theJapanese aggression.”10 The chapter on the “heroic actions of the 8th Route Army (Communist
forces)” stresses the major and leading role of the Communist Party alone in the struggle andvictory over the “Japanese oppressor.” It is thus repeatedly noted that the Party was the driving
force of the struggle against Japan, that it constituted the main element, and above all that it7

Xinhua, 17-05-2005.

8

Samuel Guex, “Les manuels dʼhistoire chinois vus du Japon,” Ebisu, Année 2008, 39.

9 enmin jiaoyi chubanshi kecheng jiaocai yanjiusuo lishi kecheng jiaocai yanjiu kaifa zhongxin (History
R
Curriculum Materials Production and Study Center of the Institute of Curriculum Materials of Peopleʼs
Educational Publishing), Lishi (History), (Beijing: Renmin jiaoyi chubanshe, 2004).

10

Ibid.

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was by winning this victory thanks to the Communist Party that China took its place alongside
the great powers at the end of the conflict, conflating the Communist Party with the Republic ofChina. This was also the main theme of the 2015 parade organized for the first time to celebrate
the victory against Japan in China.
The chapter on the war of resistance against Japan also includes paragraphs, accompanied
by graphic photographs of war crimes, whose sources are never indicated.11 With such images,
forgiveness is impossible, and the aim seems to be to maintain in the youth an imprescriptible
feeling of hatred.
The aim is also to demonstrate, through these schoolbooks, the legitimacy of the leadershiprole of the Chinese Communist Party “which has awakened the country to the urgent need tobuild a united front of national unity.” The Chinese authorities thus proceeded to equate “China”
with the Communist Party, even though the role the latter played at the time was far from thecentrality it is given today in official mainland history.
This reconstruction of history, this insistence on highlighting the major, almost unique role
played by the Communist Party during the anti-Japanese war, is, in fact, all the more vital for thegovernment since, for the Communist apparatus that took refuge in Yanan in 1937, the priority
seems to have been, on the contrary, to conform to the strategic interests of the USSR in the
war against Japan and to give priority to the fight against the nationalist forces of the Republic ofChina.
Thus, to preserve the legitimacy of the Communist Party, historical “nihilism” is denounced;
the “justice” of past struggles must be prolonged in the present through a delegitimization of
todayʼs Japan, which implies the constant reminder of “past crimes” that prevent any long-termreconciliation whatever the number of excuses expressed by Tokyo.
The perpetuation of the past in the service of the interests of todayʼs Chinese regime is also
nourished by the multiplication of monuments and commemorations, all phenomena which are
relatively recent in scope. The three “stations” of Chinese martyrdom against Japan̶Shenyang,
the capital from 1931 of Manchukuo, a protectorate of Japan at the head of which the last emperor
Pu Yi had been installed; the Marco Polo Bridge, the site of the “incident” of July 7, 1937, whichmarked the beginning of the offensive by Japanese troops towards the south; and finally Nanjing,
the capital of the Chinese government abandoned by government troops after a siege of a few
weeks and also the site of the 1937 massacre̶have only relatively recently been provided withhuge museums. The “Memorial for the Patriotic Victims of Japanese Militarism” in Nanjing dates
from 1985 and was restored on a larger scale in 2005. The Marco Polo Bridge Museum wasconveniently built in 1989 as an instrument of national harmony after the events in Tiananmen
Square and renovated in 2005 to even greater dimensions, with the aim of “refreshing visitorsʼ
memories of the war” by highlighting “courage, heroism, resistance, patriotism and atrocities”
which should not be forgotten. As elsewhere in the museum, an engraved plaque placed at theentrance in August 2005 once again proclaims the leading role of the Communist Party in the warof resistance against Japan and the anti-fascist war.11
To maintain this memory and a sense of revenge, new websites were also created with theblessing of the authorities in a vast movement of “web nationalism.” With the same objective,
dozens of television programs, films and war series are constantly aired.
Japan cannot, therefore, cease to be confronted̶in the terms defined by China̶with its
history and no apology can be sincerely accepted despite Deng Xiaopingʼs 1979 call to look to the11This is also the case in museums where no source is indicated, fuelling Japanese critics who denounce
the fabrication of documents.

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The Franco-German reconciliation model does not correspond to the challenges of the Japan-PRC relationshipfuture. Japan is also asked to “translate its remorse into action so that the feelings of the Chinese
people will never again be violated” and “to adopt a conscientious and serious attitude towards
history.”

Denouncing a “Cold War mentality”
Behind this desire to maintain Japan in a status of illegitimacy also lies the Chinese ambition to
weaken the system of bilateral alliances around the United States in Asia, of which the Japan-US
alliance is the cornerstone. The PRC constantly denounces a system “inherited from the Cold
War” that could be replaced by a Chinese-centric regional system. Beijing therefore denounces
the “ Cold War mentality ” displayed by both the media and political circles in Japan when
discussing defense issues, which is always equated with a so-called rise in “militarism.” Similarly,
the greater interest shown in Japan in strategic issues since the beginning of the 2010s, which has
not disappeared with former Prime Minister Shinzo Abe, is also the subject of constant criticism
in the Peopleʼs Republic of China.

The Franco-German reconciliation: A counterexample
The process of reconciliation between France and Germany, far from being the model that
China puts for ward, appears on the contrar y as in a mirror, the reverse of the situation thatcharacterizes the relationship between Japan and China. The reconciliation between France andGermany after 1945 was only possible because of a dual will in Paris as well as in Berlin, despite aparticularly difficult history. Since the end of the 19th century, Germany had been considered by
France the “hereditary enemy” and, after Franceʼs defeat in 1871 ending the Franco-Prussian War
and leading to the loss of Alsace-Lorraine, it was the motive of all nationalist discourses in France.
This tension continued during the first half of the 20th century with the two world wars. However,after the German defeat in 1945, a complete reversal of this situation took place.
The movement in favor of reconciliation with Germany manifested itself early after theThird Reichʼs defeat in France. This movement, contrary to what one often hears, far preceded
the movements to re-evaluate history and responsibilities both in Germany and in France. It
is only from the 1970s onwards that, in both countries, real questioning of the compromises
and responsibilities during the Second World War occurred, notably in Germany with the
Vergangenheitbewältigung (Coping with the past) movement and in France with the shock
provoked by the publication of Robert O. Paxtonʼs book, La France de Vichy, in 1973.
Unlike the PRC, Gaullist France sought this Franco-German reconciliation. The first meeting
between General de Gaulle, who had just been appointed President of the Council on June 1,
1958, and Chancellor Adenauer, who initiated the process of Franco-German reconciliation,
took place on September 14, 1958, when the German chancellor was symbolically invited to La
Boisserie, General de Gaulleʼs private residence. The stated objective was to try to reverse thecourse of history, to reconcile the two peoples, and to combine their efforts and their capacities.
We find on both sides, and particularly on the French side, the same desire to establish direct
and preferential relations in all areas. This meeting marks the reconciliation between the twocountries and the beginning of a cooperation that led to the Elysée Treaty signed on January 22,
1963. When he went to Germany, where he gave ten speeches in German in September 1962, deGaulle did not insist on a necessary apology but a necessary reconciliation.

The weight of strategic interests
The situation between the PRC and Japan was also mirrored by the strategic stakes and the role of
the United States beyond the French desire for reconciliation. For President Truman and George
Marshall in the United States, it was a question of not repeating the errors of the Versailles Treaty(1919) and risk precipitating a move by the new “West Germany” into the communist camp while
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the Cold War was taking hold in Europe. France as well as the Federal Republic of Germany werepart of the same “camp” and this has been a crucial factor in the reconciliation between the twocountries. The Franco-German cooperation treaty, known as the Elysée Treaty, signed on January
22, 1963, provides for quarterly meetings between the ministers of defense, bi-monthly meetings
between the chiefs of staff, and consultations on all matters relating to defense and importantforeign policy issues “to reach a similar position” on East-West relations, European cooperation orNATO as well as on all armaments issues.12
At the level of civil society, exchanges were encouraged through the teaching of German in
French high schools, school trips, and later the creation of a Franco-German television channel,
Arte, in 1991.

The role of NATO and European construction
West Germany (Federal Republic of Germany), like France, was also a member of NATO, whichanchored their membership in the same alliance despite the Gaullist desire to preserve Franceʼs
strategic autonomy. The Federal Republic of Germany joined NATO on May 6, 1955, one year
after the Paris Agreement, which put an end to the occupation of Germany by the Allied powers.13
It is within this framework, and within that of the European construction, that all the debates on
the rearmament of Germany took place, contrary to the situation that prevails in Asia, where thePeopleʼs Republic of China and Japan are not part of the same bloc, neither during the time of theCold War nor since the fall of the USSR.
At the same time, the process of European construction, inaugurated in 1952 with theCommunauté européenne du charbon et de lʼacier (CECA) that had been proposed by Robert
Schuman to Konrad Adenauer as early as 1950, then followed by the Treaty of Rome (March 25,1957) that created the European Economic Community on January 1, 1958, bringing together
Belgium, Germany, France, Italy, Luxembourg, and the Netherlands, also facilitated the processof reconciliation between France and Germany. The objective at the European level was “toestablish a closer union” between the European peoples and to uphold, by the constitution of thisset of resources, the safeguarding of peace and freedom in the context of a world divided into two
blocs.
The Franco-German reconciliation and friendship is therefore taking place within theframework of multilateralism and European construction, which does not exist in Asia, where
the Peopleʼs Republic of China, like the Soviet Union of yesteryear, shares neither the values
nor the strategic objectives of Japan and its allies. On the other hand, despite these irreducible
differences, the choices made by Beijing at the end of the 1970s for economic reform and the
Sino-Soviet conflict were able to mask these fundamental differences and give the illusion of a
possible reconciliation, forgetting that, until the reunification of the two Germanys, East Germany,
which was part of the Warsaw Pact, had never been involved in this process.
On the other hand, the Treaty of Peace between Japan and the Republic of China (ROC)
signed in Taipei on April 28, 1952, can be compared to the reconciliation process between Franceand West Germany in the 1950s. The text of the treaty indicates “a mutual desire for goodneighborliness given their historical and cultural ties and geographical proximity.”14
When Japan decided to recognize the PRC in 1972 and then to sign the Treaty of Peace andFriendship in 1978, Beijing was very much in favor of this rapprochement, again for strategic
reasons, particularly in the face of the Soviet threat perceived as existential in Maoist China, butalso for economic reasons. Japan contributed massively to the economic development of the PRC
12https://www.france-allemagne.fr/Traite-de-l-Elysee-22-janvier-1963.html

13

Reunified Germany joined NATO on October 3, 1990.

14

http://www.taiwandocuments.org/taipei01.htm

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The Franco-German reconciliation model does not correspond to the challenges of the Japan-PRC relationshipby participating in the strategy of opening up launched by Deng Xiaoping. The PRC was thenlittle concerned with the past, officially refusing, as the Republic of China had done, to claim any
reparations.
Unlike the situation between France and Germany, though, any progress can only be regarded
as tactical by the Chinese regime and can be called into question according to Beijingʼs strategic
priorities. As such, any rapprochement can only be temporar y, depending on the priorities
defined by the regime in Beijing and not on a real desire to resolve the tensions inherited from
history as seen in Europe.
In this respect, the Franco-German reconciliation cannot serve as a model for a hypotheticalreconciliation between Japan and the Peopleʼs Republic of China. Japan must also agree to revisit
its histor y, notably by encouraging an education system that is conducive to a more criticalspirit, including on historical issues. It must develop an approach that takes into account allperspectives, as do the history books published in France and Germany, without seeking refuge
in a form of neo-nationalism that is ver y far from the orientation of the great contemporar y
democracies. However, the primary responsibility for the tensions that remain lies with China,
ruled by a regime for which history is not an object of study but an instrument, a weapon at theservice of its strategic interests and its survival.

62
Japan Review Vol.5 2022

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