Japan Coast Guard vessels have repeatedly clashed with or chased off Chinese vessels from the waters around the Senkaku Islands in recent years. | JAPAN COAST GUARD / VIA REUTERS
Aside from that, there must have been an assumption behind the decision that if a situation escalates, military operations should be conducted exclusively by warships.
Japan strictly limits conditions for invoking the right of self-defense to cases of armed attack against the country in an organized and planned manner.
This creates a sizeable gap between law enforcement activities and defense operations, and although the government considered setting territorial security missions equivalent to the right of self-defense to fill the gap, it failed to come to a conclusion.
Instead, the government included in the basic policy measures to minimize breaks in activities by speeding up the reporting and issuing of orders.
However, it is clear that the policy will be insufficient to respond to actions by the China Coast Guard, and there is a high possibility that the China Coast Guard will complicate Japan’s maintenance of maritime order in gray zone situations.
The procedure for the China Coast Guard to move on to defense operations is not clear.
In the case of the U.S. Coast Guard, which is normally tasked with law enforcement activities, the law stipulates that a direction by Congress or the president is required for the agency to serve as part of the navy to defend against foreign threats.
But as for the China Coast Guard, there could be a case in which it is engaging in military operations before we know it.
Use of force
The use of force stipulated in the China coast guard law may also cause confusion.
The law stipulates that the China Coast Guard is authorized to “take all necessary measures, including weapons,” when national sovereignty, sovereign rights and jurisdictional rights are being illegally infringed by foreign organizations or individuals at sea.
Such a stipulation undoubtedly gives unlimited authority to China Coast Guard personnel, similar to the Self-Defense Forces law giving an SDF unit engaging in defense operations the authority to use force.
In a report on the work of the standing committee of the 13th National People’s Congress released in March, it is stated that the coast guard law was formulated “in order to implement Xi Jinping’s thinking on strengthening the military, and respond to the needs of national defense and military development in the new era.”
We can see from the report that China intends to build up the coast guard’s arms to meet the requirements for use of force, and this will inevitably complicate Japan’s response to gray zone situations, especially in regards to making judgments on the use of weapons.
So how should Japan respond to the new law and the China Coast Guard?
It is possible to assign the Maritime Self-Defense Force to a territorial defense mission.
But as the MSDF currently lacks vessels appropriate for such a mission, a large heavy-armed destroyer will have to be used from the initial stage, leading to the risk of unintentionally escalating the situation.
Moreover, under the current strategic environment in which China has an advantage over Japan in terms of the balance of sea power and China is expected to overwhelm the United States in the Pacific, Japan should above all else prioritize avoiding escalation.
Another idea is to analyze situations that can be assumed under the China coast guard law and have the Japan Coast Guard respond to them through law enforcement activities, while observing the limit permitted under the current law.
But as the situation intensifies, there are concerns that the Japan Coast Guard could be forced to operate beyond law enforcement to take military actions.
If the China Coast Guard develops to become China’s second navy, it will certainly be impossible for the Japan Coast Guard to respond only through law enforcement activities.
And if such a situation occurs when the Japan Coast Guard is conducting law enforcement activities, it will be difficult for the government to designate the case as an armed attack situation regardless of how the situation develops, possibly leading to a delay in requesting for action against an armed attack under Article 5 of the Japan-U.S. security treaty.
Therefore, in order to resolve the essential problem brought about by the China coast guard law, Japan must in any case fill the gap between law enforcement activities and defense operations.
First of all, Japan should work to narrow the gap by reviewing the conditions for exercising the right of self-defense in line with the 1986 decision by the International Court of Justice concerning military and paramilitary activities in and against Nicaragua, which held that a state can use force in self-defense when it has been a victim of “most grave forms of the use of force (i.e. those that constitute an armed attack).”
Next, it is necessary to give the Japan Coast Guard, which has functioned purely as a law enforcement agency for more than 70 years, a mission to protect national sovereignty — equivalent to the right of self-defense — so it can adapt itself to the newly emerged paradigm of maintaining maritime order.
In times of national crisis, it is natural for a nation to comprehensively utilize all the national functions and capabilities it owns, and the coast guard is not an exception.
The MSDF should engage in territorial defense in normal times using small, light-armed patrol vessels that will be newly introduced, so that it can back up the Japan Coast Guard together with destroyer units.
Moreover, in order to reduce uncertainties in information gathering in gray zones, it is necessary to construct a continuous wide-area surveillance system using surveillance satellites and unmanned aircraft.
The China Coast Guard is expected to serve as the main constituent of China’s future attempts to change the status quo.
But if Japan can implement such multilayered measures, it will be able to not only ensure maritime order but also respond proactively to contingencies.
Tomohisa Takei is a former chief of staff for the Maritime Self-Defense Force. Provided by independent think tank Asia Pacific Initiative, API Geoeconomic Briefing is a series that looks into geopolitical and economic trends in the post-COVID-19 world, with a particular focus on technology and innovation, global supply chains, international rule-making and climate change.