Monday, September 20, 2010

Chinese Authorities Escalate and My Dialogue with Sun Bin Continues

The Chinese government made front-page headline news in Japan as it upped the ante on the Japanese government’s refusal to give up the fishing boat captain without a trial, announcing its unilateral suspension of ministerial-level exchanges, suspension of bilateral consultations on increasing airline routes between Japan and China, and postponement of the Japan-China Comprehensive Conference concerning Coal. It has already postponed scheduled high-level talks on the joint development of the East China gas fields and the dispatch of a National People’s Congress delegation.

By going public with these measures and accompanying them with belligerent language, the Chinese government is making it even more impractical politically for the Japanese government to coax the Public Prosecutors Office to give up the fishing boat captain without taking the criminal case to court, as it is in the PPO’s discretion to do (somewhat adulterated by a legal amendment that allows the Committee of Inquest for Prosecution the authority to force prosecution against the PPO’s will, but this is irrelevant for all practical purposes in this case).

The saving grace here is that the Chinese side is not taking any action to challenge the effective control itself of the territorial waters by the Japanese government. It actually appears to be keeping Chinese vessels from launching expeditions to the Senkakus. Also significantly, as Sun Bin notes in our ongoing dialogue, criminal prosecution sets precedence of a legal shading, an undesirable development from the Chinese perspective, at least in the court of public opinion.


Sun Bin said...

(also re: your reply in your previous post)

this is getting out of control (for both governments). the PRC had no choice but to act when Zhan was detained for another 10 days.

the best window for a settlement would have been the 'bail' solution i suggested earlier but there is no good excuse now. (the mid-autumn festival, maybe. but people in japan would question this as kowtowing, because mid-autumn is a much clumsier excuse than his grandma's funeral)

one question though. had Zhan been just another japanese citizen, wouldn't he also be entitled to a bail? (agree to a bail is probably considered part of the legal precedence from the PRC govt. but Zhan can do this by himself so the PRC govt can still deny it has consented to this)

the PRC had been very consistent in 'not challenging the status quo'. the problem in this case is that they consider the Japanese were trying to change the status quo, by making a legal precedence.

Jun Okumura said...

Sun Bin: I try to avoid predicting the past if I can, but I do think that there was a reasonable chance that the captain would have been released if the post-apprehension process had unfolded differently. Although MLIT Minister Seiji Maehara, who had jurisdiction over the Coast Guard, is a defense hawk who does not hesitate to name China as a security threat, once back in Okinawa, the issue passed into the hands of the Public Prosecutors Office, over which Justice Minister Keiko Chiba, noticeably to the pacifist left within the broadly center-left DPJ, exercised mostly nominal jurisdiction. MOFA Minister Katsuya Okada has generally tacked to a pro-Asia, pro-China line. Given the more leftist background of Prime Minister Naoto Kan and Chief Cabinet Secretary Yoshito Sengoku, it was not inconceivable that the Kan administration could have convinced the PPO to exercise its discretionary powers and forgo prosecuting the case. The public prosecutors are mindful of the social and political context of the cases that they handle and are not closed to consultations with other branches of government. (On the other hand, don’t believe in those conspiracy theories claiming that they are part of a government-wide conspiracy to uphold the supremacy of the bureaucracy.)

However, the Chinese moved aggressively and very publicly. The repeated summons to Ambassador Uichiro Niwa (one of them coming in the dead of night) were particularly poorly received and considered by many here as insulting. The Chinese authorities also took unilateral retaliatory actions as the Japanese side was considering its response, and remained relentless even after the ship and the rest of the crew was released to the Chinese side. With these events playing out publicly, there was no way that even the Asahi could call for the captain’s release.

What I find somewhat surprising is that the Chinese authorities handled it so poorly. After all, this is exactly the kind of behavior that would guarantee failure if the shoe had been on the other foot. More specifically, I wonder why they did not try to figure out what they could extract from their Japanese counterparts before they launched a full-fledged assault. As it were, they pushed their opponents in front of their tribesmen to the wall and the opponents pushed back.

As for bail, the Japanese criminal justice system has historically relied on told-to, certified confessions secured before indictment. Therefore, pre-trial arrest and detention has been used rather freely—in my view contravening the original spirit of the post-WW II Criminal Procedure Code from its very beginning—and the courts have generally tended to acquiesce to the prosecutors’ requests to deny early bail and extend detention. (Repeated arrests and detentions under lesser charges were not unheard of when I was studying law, but I have no idea if the situation has changed on this count over the years.) Note in any case that going free on bail alone would be insufficient for the captain to be allowed to leave Japan. A decision by the PPO not to prosecute would be necessary. (end of part 1)

Jun Okumura said...

As for the matter of precedent, I think that the most important precedent is “possession” in the form of the Japanese Coast Guard patrolling the territorial waters. The patrol would have become meaningless, though, if the fishing boat and its entire crew were not apprehended under circumstances. If you can allegedly ram a Coast Guard vessel (let’s wait for the movie, but in the meantime, there’s no way to go but to proceed on the basis of the allegations) and suffer no consequences whatsoever, then the entire Chinese fishing fleet could converge on those waters and the Japanese authorities could do nothing about it. Once the incident occurred, an arrest was inevitable. It flows from the uncontested and (from the Japanese perspective) legal day-to-day exercise of Japanese administrative authority—which was obstructed by the captain’s actions. It sets a precedent in the sense that it had never happened before, but then the incident itself had never occurred before to the best of our knowledge. You could say that the Chinese fishing boat had changed the status quo and an adjustment to the new circumstances by both sides, still under way, followed. Prosecution is not inevitable and is by force of logic likewise unprecedented, but it’s still a natural extension of the day-to-day exercise of administrative authority. Of course those are a lawyer’s arguments. The impact of the image of the Japanese courts coming down on the captain within the context of China’s political circumstances cannot be denied. (end of comment)

get facebook fans said...

great story. i like history and all that it's about past!

Aceface said...


Joe said...

I've been following this news story in Japanese media only intermittently, but something caught me as as a bit ... "strange," for lack of a better word, in expression. Specifically, that this territorial dispute with China is not, in fact a "territorial dispute (領土問題)."

Would I be correct in assuming this is because labeling it a dispute would somehow imply that China's claim has some validity, and that furthermore some compromise is necessary?

I can understand the Japanese position, but if this is not a dispute, then what is it? China braying into the wind? How is this conflict/argument/ruffling-of-feathers/twisted-knickers expressed in Japanese?

Jun Okumura said...

Joe: Issue? What issue? That is any government’s boilerplate response when there’s a territorial dispute accompanied by political tension, it has possession, and there’s no chance of direct military conflict any time soon, isn’t it? (Remember the rabid ROK response whenever someone or somewhat over here dares to intimate that Japan has a standing claim on Takeshima/Dokto?) China’s astonishingly aggressive behavior is actually not out of line for someone holding the weak hand, if my poker and i-go experiences are any guide.

Let me add a few words to my previous retrocast. My current assessment is that the Japanese/Chinese diplomatic authorities miscalculated, leading to the release of the crew and boat before a firm deal had been struck. Let’s see what happens to the Chinese Ambassador in Tokyo in the next 12 months.

Aceface: As for Kristof’s op-ed, good luck to him convincing the two sides (China in particular) to go to the UN courts. And no, I wouldn’t take legal advice from him (or myself, if you need to know, though I too went to law school so many years ago), would you? He says he’s followed this case for many years, but so have Gregory Clark and a lot of rightwing Japanese talking heads. K means well, but so does J and his 2,000 year old mom.

get facebook fans: Yes, the best history is past history; you’re never wrong, whereas the future has a nasty habit of biting you in the ass.

PaxAmericana said...


You state that Okada had a pro-Asia, and even pro-China tack. I was under the impression that he had a poor relationship with the Chinese diplomatic delegation. Is this incorrect? Is it possible that part of this escalation is due to a fairly poor relationship in the diplomatic world?

Jun Okumura said...

Pure speculation on my part, Paxy, but I think that it’s possible that there was a misunderstanding that a deal was in place when the Japanese authorities quickly released the boat and its crew minus the captain. Miscommunication, mind you, not a poor relationship, at least according to my guess.

As for Okada, my impression is that he has been favorable to China on hot-button history issues—except on the Senkaku Islands, which is not yet history.

Sun Bin said...

i have the impression that Japan had always said it will only detain the captain (from what i saw on TV reporting before the release).

they were only holding the rest of the crew and the boat to gather evidence.

so there is really no bargaining when the crew got released, when the interrogation was finished.

Sun Bin said...

there maybe some way out of this mess, after the opportunity of letting Zhan go on bail was missed twice.

it was reported that 4 japanese were detained in shijiazhuang, the capital of hebei province, for photographing some military area. now japan will be able to find a plausible excuse by trading the captain for these 4, hence saving face for both sides.

of course, a more long term solution may be something in line with the waseda professor said in asahi

some day in future, we hope, "the east asian counterparts" will have their own schengen agreement.

James said...

How would that save face for Japan? I doubt the Japanese public would be happy if their government agreed to that kind of a trade. The timing and the vague crime of "unauthorized videotaping" make those arrests seem like little more than an attempt by China to turn a few unsuspecting Japanese into hostages.

But hey, maybe I'm wrong: maybe those Japanese really did knowingly trespassed into a military area so that they could commit acts of espionage.

p.s. "get facebook fans" is a spam bot comment. Some sophisticated spamming software can scan pages for certain key words and then leave automated comments that are general enough to look like they are legitimate responses.

Sun Bin said...


maybe the news that comes today could explain to you about the 'save face'. -- yes, maybe you are right that they are indeed spies, though i tend think they are more likely to spy for something non-military if that is the case.

anyway, Kan government has taken great risk by backing down now. (vs just releasing with good will soon after he won the party election)
i hope PRC could reciprocate to help Kan win back some of the domestic votes.
e.g. at least quickly restart the East Sea talk.

Joe said...

Tin Foil Hat Time: So, are Kan and his cabinet really that stupid, or was this a nice little "screw you" gift from Okinawa to the DPJ because of Futenma? Or is there something I'm missing?

Sun Bin said...

I am just as surprised and suspect this feeds a "screw you" conspiracy this time -- but maybe from ozawa, or LDP, or other enemy of Kan.

Sun Bin said...

okumura san,

i would also like to confirm one thing, since legal issues is your expertise, and this is also related to some of your previous comments.

this is the way i understand judiciary independence. i.e. the executive or enforcement unit should never interfere with the judiciary (judge). in this particular case though, the decision is related to whether to bring the case to court or not, this (prosecutor) is totally within the power of the executive branch, i.e. under Mr Kan. Am I mistaken?

Since it has never been brought to the court yet, the judiciary system was never brought to question nor challenged. (this seems to be the reason japan has been giving the chinese -- at least this is how it was translated and reported in chinese media)

Sun Bin said...

you mentioned the fishery agreement earlier. can you elaborate a bit?

i come across this article in japan focus (and also linked to a WSJ interpretation) regarding the fishery agreement(s).

what is your view on his interpretation? (regarding the fishery agreement)

Jun Okumura said...

Whew, sorry for being away.

I would give the Japan Focus piece an F.

“However, the sea around the Senkakus, where the Coast Guard captured a Chinese boat is outside the provisional areas of the sea.”


“In other words there is no Japan-China fisheries agreement concerning the vicinity of the Senkaku Islands.”

Not so true. The current Treaty does cover their respective EEZs; it “merely” declines to define them. HAHA.

“The Senkaku territorial seas are beyond the scope of the Japan-China fisheries agreement, but there has been a diplomatic understanding since Deng Xiaoping, that China and Japan would not oppose each other over the Senkaku Islands. This time, however, Japan annulled the agreement and made a strong claim to territorial rights, involving arresting the Chinese fisherman on the basis of Japanese law. This surprised and angered the Chinese government.”

Even less true. Japan has always exercised effective control over the Islands.

The 1975 and 1997 Treaties both explicitly excluded territorial waters. Leaving aside the fruitless argument over whose claim has more legal force—Japan and China are not going to take it the International Tribunal, and I’m not sure Taiwan has legal standing—there is no disputing the fact that the Senkaku Islands have their own territorial waters. The Japanese government happens to exercise effective control over the Senkaku Islands and the Chinese authorities appear to have refrained from physically challenging that control even after they began laying claim to those islands in the early 1979s, or so I’m told. (I’ll leave it to experts to debate the significance of old Chinese maps.) The Chinese fishing boat allegedly bumped the Japanese Coast Guard vessel in those territorial waters.

Now, why did the Japanese Coast Guard take the unprecedented measure of detaining the Chinese fishing boat and its crew and go on to arrest the captain? As I’ve explained elsewhere, because the Chinese fishing boat had allegedly committed the unprecedented act of ramming the Japanese Coast Guard vessel instead of leaving the territorial waters as requested. Japanese media reports say that there had been a significant buildup of Chinese vessels in the vicinity in recent times, many of them traipsing into territorial waters, which could be a sign that the status quo is becoming untenable, if only for economic reasons. Stay tuned.

As for the public prosecutors’ independence, this is established custom, not law. (The constitutional independence of the judiciary in Japan, as in most jurisdictions that I am aware of, means the independence of the courts.) Thus, the Minister of Justice theoretically could have ordered the PPO to refrain from prosecuting the captain of the fishing boat. I would bet the house that that did not happen, but I’m willing to bet a substantial amount of money—if that were legal in Japan :)—that important people in the Cabinet Office talked to important people in the PPO that led to the decision by the public prosecutors in Okinawa to release the captain.

And no, Joe, the Kan administration decided to cut losses/lost their nerve/came to its senses (your choice).

Incidentally, my current assessment—I’ve surprised myself here, actually—is that it is China that has lost more in terms of the geopolitics.

Please remind me if I’ve missed anything. My email address can be found on my profile.

Sun Bin said...

1. regarding how the collision occurred, i would really like to see the video. and i hope they do release the video(s) eventually.
you may have some insider insight to support your painting of what might have happened, but it is really hard to convince anyone outside japan that any sane captain would want to ram his own boat on purpose into something almost 3 times its length, and hence 20 times his tonnage (and with stronger built). i tend to think that he was trying to escape (being captured means fine and lost of money) while being encircled by JCG ships. but again, the video may help for judgment and i am really surprised why Kan refused to release the video.

the only explanation could be a drunk captain -- as seen in some japanese media, but JCG must have done the alcohol level test if that is the case.

2. i know japan has been patrolling 12-24 nautical miles of each islet. my question is, since there is no agreement in terms of fishing in the surrounding, does that make fishing outside of 24 nm a free zone?

Jun Okumura said...

Sun Bin:

I purposely used the word “allegedly,” which is why I ‘m also eagerly awaiting the video. I think that the Kan administration doesn’t want to take the heat for releasing the video because it doesn’t want to reignite the anger here and in China. So, it is letting the circumstances dictate its actions instead of the other way around.

Your guess is as good as mine with regard to the captain’s true intentions, and it’s certainly highly plausible, judging from the testimony of hit-and-run drivers after they have been apprehended. Your explanation of the fishing boat’s captain’s thoughts as he ran into the Japanese Coast guard vessel is highly plausible to say the least, in view of the behavior of our own domestic, landlocked hit-and-run drivers, DUI or not.

As for the Japanese Coast Guard, my understanding of international law is that it can huff and puff as much as it wants about the Chinese authorities’ actions in the 12-24 NM “adjacent waters (接続水域)?” but the Chinese fishing boats as well as MAF observation boats can hang out there as much as they like and the JCG can’t do anything about it. After all, they are purely international waters as far as navigation is concerned. We Japanese—the JMSDF!—can do the same off Chinese shores, but that’s an avenue that is unlikely to be pursued. Hopefully, we’re now in the dogs-growling-at-each-other-across-the-fence stage of mammalian altercations. This is not good for the management of that part of the global commons (including the rest of the respective EEZs), but nobody was thinking at the time about hundreds of Chinese fishing boats teeming in those waters with few if any constraints imposed by the Chinese authorities. What may have worked as late as the end of the 20th Centuries no longer works now.

gameplayer said...

As for the matter of precedent, I think that the most important precedent is “possession” in the form of the Japanese Coast Guard patrolling the territorial waters. The patrol would have become meaningless, though, if the fishing boat and its entire crew were not apprehended under MapleStory Mesoscircumstances. If you can allegedly ram a Coast Guard vessel (let’s wait for the movie, but in the meantime, there’s no way to go but to proceed on the basis of the allegations) and suffer no consequences whatsoever, then the entire Chinese fishing MapleStory Mesosfleet could converge on those waters and the Japanese authorities could do nothing about it.

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