Japan has protested the passage of a Chinese ship through Japan’s territorial waters.
The [Chinese] Shupang-class survey ship was sighted sailing northeast through Japan’s contiguous zone west of Gaja Island and entered Japan’s territorial waters southwest of Kuchinoerabu Island at 12:10 a.m. local time on Wednesday. The ship departed Japan’s territorial waters after three hours of operating near Yakushima Island and sailed southeast. According to Japanese officials, the transit was the fourth intrusion of a foreign warship this year, marking a record high.
Japan has lodged a diplomatic protest over the incident.[1]
The only problem is that passage is legal according to international treaty as specified in the United Nations Convention on the Law of the Sea (UNCLOS) to which Japan is a signatory, having ratified the treaty 20-Jun-1996.
The right of innocent passage is described in the UNCLOS agreement in Part 2, Section 3., Articles 17-32. It describes the right of another country’s ship to pass through the territorial waters of a signatory under certain conditions and with certain constraints on what kind of actions the passing ship can engage in during the passage.
Whether the Chinese ship obeyed all the restrictions was not publicly disclosed by Japan. I suspect the Chinese ship did obey the requirements or else Japan would, presumably, have loudly proclaimed the violations. If the Chinese ship met the passage requirements then Japan has no legal basis for protest.
The larger point is that the right of innocent passage does exist and Japan agreed to the legal process. If Japan didn’t want foreign ships in its waters, it shouldn’t have signed the treaty. The lesson is, be careful what you sign.
This is a variation of, be careful what you wish for. There are always unforeseen consequences. So many treaties the US signs seem to limit us more than the other party.
On a related note, the US has never ratified the UNCLOS treaty and is not bound by it although we tend to observe its requirements.
On a further related note, despite being a signatory, China has violated the UNCLOS treaty in multiple instances and in multiple ways, the most famous of which is ignoring an UNCLOS tribunal ruling, in a dispute between China and the Philippines, that ruled in favor of Philippines and found Chinese actions and claims in the South China Sea to be unfounded and illegal.
This should serve as a warning to the US not to ratify the treaty since China does not feel bound to obey it. Ratification would serve only to limit the US while China freely ignores the treaty.
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[1]USNI News website, “Tokyo Protests Chinese Surveillance Ship Transit in Territorial Waters, Japan Prepares for Fleet Review”, Dzirhan Mahadzir, 4-Nov-2022,
From what I understand it's legal for any warship to transit through Japan's main islands.
ReplyDeleteThat was stated in the post. The passage is bound by certain limitations and constraints.
DeleteDo these same limitations apply to US warships transiting the straits of Hormuz via Iran's territorial waters?
Delete"Do these same limitations apply to US warships transiting the straits of Hormuz via Iran's territorial waters?"
DeleteTransits of straits where ownership is split between multiple adjoining countries is governed by other laws and regulations (Part III of UNCLOS, if I recall).
As a SIGINT ship, it almost certainly violated UNCLOS Article 19 Sec. 2(c) and/or 2(j) and thus did not qualify for innocent passage. However, these violations are inherently un-provable by Japan outside of implausible circumstances (eg. the captain of the Chinese ship broadcasting on guard frequency, "Hey we just collected a bunch of SIGINT while we passed through your territorial waters!" the moment they leave the contiguous zone). I suspect this is why the Japanese response was rather muted.
ReplyDeleteCompare this to the Soviet responses to the times when US warships correctly performed innocent passage through Soviet territorial waters in the 1980s. My recollection is that ramming was the main thrust of their approach. There were many, many defects with the Soviet system, but this wasn't one of them.
"it almost certainly violated UNCLOS"
DeleteThat is unfounded speculation. It may or may not be correct but it is unfounded, to be clear. If they used active electronic surveillance beyond navigation radar, they would have been in violation. Passive signal gathering would, of course, be unprovable.
It's well-founded speculation that an intel/research ship conducted either intel or research in violation of 2(c) or 2(j), and it's beneath the usual quality of this blog to pretend that this is unfounded. It would be unfounded speculation if I hazarded a guess that it had launched or recovered small UAVs in violation of 2(e) or 2(f).
DeleteAs I noted in my prior post, the only reason the Japanese response was so muted is because the violation cannot be proven, despite the fact that the Japanese and the Chinese and everyone else in the world understand what happened. This is the real problem with this section of UNCLOS - not that the Japanese somehow didn't understand that innocent passage was allowed when they signed on the dotted line, but rather that the letter of the treaty is written such a way that some violations are inherently impossible to prove under normal circumstances, making those sections unenforceable.
'Well founded' means very nearly proven and this is not the case. It may be - and is - quite plausible and believable but it is nowhere near proven. This blog strives for accuracy and, in this case, a claim of well founded is not accurate.
DeleteI don't have any doubt whatsoever that the Chinese conducted passive intel gathering but I can't say that's well founded.
The preceding distinction has no practical relevance. The larger point, as highlighted in the post, is that one must be very wary of entering into treaties.
So is there a military installation or anything worth gathering intel from on Yakushima Island??? Or is this a benign territorial incursion??
DeleteI don't know, off hand, where all Japan's military installations are but, regardless, there are always plenty of aircraft flying nearby, ships in the general vicinity, etc. There's always something worth observing and collecting data on.
DeleteId think that "it's beneath the usual quality of this blog to pretend that this is unfounded." is a bit much when you use "well-founded" as an adjective for "speculation"... While by definition an intel gathering/research ship would be doing exactly that, short of logbook copies or Chinese sailors testifying to their activities, theres no facts to support the assumption, and youre right in that thats likely the reasoning for a less than robust protest. Like Lt Caffey said, " its not what you know, its what you can prove"...
ReplyDeleteYou know, after reading through the part of the UNCLOS agreement you cited I'm getting the idea that the wording of the agreement is pretty terrible for any naval power that utilizes naval movements for political posturing/intimidation (what I'd argue the USN has primarily been used for for at least the last decade).
ReplyDeleteThe two parts that I'm specifically interested in are in article 19 part 2, where it states that that:
(c) any act aimed at collecting information to the prejudice of the defense or security of the coastal State;
(d) any act of propaganda aimed at affecting the defense or security of the coastal State;
indicate that the passage of a formal ship "shall be considered to be prejudicial to the peace, good order or security of the coastal State".
Its definitely a good thing that the US hasn't ratified the agreement, because the wording is open ended enough that one could argue that almost any naval exercise, show the flag operation, or freedom of navigation cruise would be in violation of it.
"one could argue that almost any naval exercise, show the flag operation, or freedom of navigation cruise would be in violation of it."
DeleteUm ... no. You may be misunderstanding the articles. The constraints and limitations apply ONLY to the foreign, passing ship. Put simply, a passing ship cannot do anything other than pass as expeditiously as possible. Any other action is in violation of the innocent passage requirements.
Freedom of navigation is NOT innocent passage. FON is an exercise intended to demonstrate that a body of water is INTERNATIONAL WATER not the territory of any country. Thus, UNCLOS does not apply.
Show the flag missions are peaceful visits AT THE INVITATION OF THE HOST COUNTRY and, therefore, UNCLOS does not apply. A 'hostile' show the flag effort can only take place in international waters and, as such, are not covered by UNCLOS.
Naval exercises are conducted either in one's home waters or in international waters and, again, would not be covered by UNCLOS.
Hope this makes it clearer.
Ah, shit, yeah that was me being stupid. Sorry about that.
DeleteNo problem! :)
DeleteThing is innocent passage could be used for show the flag type missions. Eg imagine a a Russian vessel sailing within British territorial waters as its course means that cutting through British territorial waters is "expedient".
DeleteWhilst the ship might be adhering to "innocent passage rules" it mighty actually be a propaganda stunt by the Russians (eg "we sail so close in British territorial waters and they're too scared to touch us.").
And as we've just seen innocent passage doesn't preclude SIGINT or ELINT.
" innocent passage doesn't preclude SIGINT or ELINT."
DeleteIt absolutely precludes it. Violations, of course, are difficult to prove.
I'm following all the news about the USS Ford's two-month (was to be three-month) mini-deployment for hints about problems. This just in:
ReplyDeletehttps://www.stripes.com/branches/navy/2022-11-14/ford-navy-first-deployment-8047788.html
"On Sunday, storms and rough seas didn’t allow for flight operations that would have highlighted EMALS"
Hmm?
"Huffman characterized the system, once heavily criticized for its high cost and unreliability, as “absolutely performing where we need it to be.” But he also acknowledged that there is more work to do on EMALS,"
Not performing great, but "where it needs to be" and needs more work. Not sounding good.
Ah, the USN and contradictory statements, can you name a more prevalent duo?
DeleteWell, fortunately, there won't be any 'storms and rough seas' in combat so that's okay.
DeleteIt's the Atlantic Ocean in November. What kind of weather were we expecting? Are we only going to conduct wars in good weather from now on?
“absolutely performing where we need it to be.”
DeleteSo does that mean that it is regularly performing X amount of launches without a failure?? The required amount, one comparable to what we see in those ridiculously old-tech steam systems?? I havent seen any new numbers in a while about this. Why???
Comment at USNI News today.
DeleteGraeme Rymill Michael Hoskins, Privileged • 5 hours ago
A Naval News journalist, Xavier Vavasseur, reported on Twitter yesterday about his recent time on Ford. He was flown to the carrier by a C-2 Greyhound. The Advanced Arresting Gear had two of its three wires out of action. The weather was rough and it took 4 attempts to catch that single wire! Was this just a rare AAG failure or indicative of ongoing reliability problems?
Im gonna say ongoing problems... The AAG isnt any more reliable than EMALS...
DeleteThe problem with the "rules based order" is that loopholes will be present in those rules and bad guys will use those loopholes for maximum advantage.
ReplyDeleteRealistically under no circumstances should a foreign government owned vessel be able to sail in the territorial waters of another country without approval.
UNCLOS provides many benefits which Japan cannot reject:
ReplyDelete12 nm territorial water (instead of 3nm)
200 nm exclusive economic zone (EEZ)
US perhaps only one still not ratify this treaty. One major reason is not happy with 200 nm EEZ .
Uncle Sam relies on strong navy to reject will backfire.
"On a related note, the US has never ratified the UNCLOS treaty and is not bound by it although we tend to observe its requirements."
ReplyDeleteGood move.