In the closing weeks of last year, the Japanese cabinet adopted the “National Security Strategy” (NSS), its basic policy on national security. Following the previous NSS in 2013, this new NSS established the goal for Japan of strengthening its defense capabilities and maintaining international order in light of the deteriorating regional security environment. While making a connection between these two goals, the new NSS attempted to “dramatically transform Japan’s national security policy after the end of WWII from the aspect of its execution.”
Establishing a new NSS is a critical step for Japan as its security environment worsens. Of particular concern is China’s actions around the Senkaku Islands in Okinawa Prefecture (the islands are claimed by China, which refers to them as the Diaoyu Islands). The new NSS states, “China’s current external stance, military activities, and other activities have become a matter of serious concern for Japan and the international community, and present an unprecedented and the greatest strategic challenge in ensuring the peace and security of Japan and the peace and stability of the international community as well as in strengthening the international order based on the rule of law.”
In recent years, it has become common for vessels belonging to the China Coast Guard (CCG) to intrude into the territorial waters around the Senkaku Islands, navigate through the contiguous zone, and approach or chase Japanese fishing boats. China is not only claiming territorial rights over the islands, but is also stepping up its activities in the surrounding waters.
In the future, there is a possibility that CCG crews might land on the Senkakus. And given the increase in the number of cases of CCG vessels approaching and chasing Japanese fishing boats, there is the possibility of CCG crews attempting to enforce Chinese domestic law on Japanese fishing boats.
The new NSS contains the phrase, “possessing defense capabilities, which enable Japan to firmly defend itself on its own.” Japan needs to move forward with preparations to respond to any situation that may arise in the Senkaku Islands on its own, appropriately and effectively.
So what will these preparations require? There are issues with Japan’s security that need to be quickly overcome, namely the response to so-called gray zone situations.
If China were to invade the Senkaku Islands using force, then Japan would respond with a defense operation based on Article 76 of the Self-Defense Forces (SDF) Law, in accordance with its right to self-defense under international law.
The problem arises if China were to land on the islands without the use of force. In this case, because of the way the Japanese government currently interprets the criteria for initiating a defense operation – specifically that it can only be commenced in response to an armed attack – Tokyo would have to respond with a law enforcement action.
That responsibility would rest with the Japan Coast Guard (JCG), Okinawa Prefectural Police, and other law enforcement agencies, which would seek to apprehend offenders, investigate potential crimes, and so on. In this case, a landing on the islands by Chinese authorities or soldiers would be considered a violation of the Immigration Control Act.
Japan is within its legal rights to respond to a situation involving an illegal landing on the Senkaku Islands by foreign authorities or soldiers with a law enforcement action, treating the landing as a violation of the Immigration Control Act. The question is just how effective this response would be, and whether it could be considered sufficient given the circumstances.
After all, this would not be a group of foreign activists, but foreign authorities or soldiers acting at the behest of a state. Even an attempt to land without the use of force would constitute a violation of Japan’s territorial integrity, a violation of its territorial sovereignty, and a violation of international law.
That is a situation that should be handled with a military operation conducted for the purpose of national security in response to the actions of a state, and not with a law enforcement action responding to the actions of individuals.
Law enforcement actions taken by the JCG and others for Japanese security should be given their proper position. Gray zone situations meanwhile need to dealt with seamlessly, appropriately and effectively.
Specifically, the Self-Defense Forces Law should be revised or new laws established. While the regulations on defense operations from Article 76-1 of the current SDF Law and their interpretations should be maintained, a “territorial integrity infringement elimination action” should be established as a new action for the Self-Defense Forces (SDF). This is to ensure that the SDF can stop any infringements of rights by foreign powers before they become a systematic and planned use of force by an outside power.
In its proposal in April 2022 for the revisions to the NSS revisions, the ruling Liberal Democratic Party of Japan asserted that it would urgently consider legislation and other measures to respond effectively to violations that do not amount to an armed attack. However, there was nothing corresponding to this in the new NSS. Indeed, there was no reference to legislation at all.
In relation to defense capabilities, the new NSS established the “will and ability to resolutely defend our nation.” With the establishment of the new NSS, even if Japan is has the will and the ability with increased defense spending and upgraded defense equipment, it may not be able to demonstrate them. Security-related legislation is meant to make explicit and put in concrete form the “will to resolutely defend our nation,” which will ensure that this leads to the “ability to resolutely defend our nation.” Only by solidifying this will, enhancing this ability, and connecting the two will the goal of “fundamentally reinforcing defense capabilities” actually be achieved.