Monday, September 13, 2010

Diplomatic Process Enters Home Stretch on Chinese Fishing Boat and Crew

“State Councillor Dai Bingguo Urgently Summons Japanese Ambassador to China regarding Japan’s Illegal Seizure of Chinese Fishing Boat in the Waters around Diaoyu Islands” was the September 12 headline news item on the Chinese Foreign Ministry Website. Let me try my hand at a translation of the rest of the Chinese MOFA post:
In the pre-dawn hours of September 12*, State Councillor Dai Bingguo urgently summoned Uichiro Niwa, Japanese Ambassador to China, regarding the illegal seizure of a Chinese fishing boat and its crew in the waters around the Diaoyu Islands, gravely expressed the Chinese government’s serious concern and stringent position, and urged the Japanese side not to misjudge the situation but to make a wise political decision and immediately return the Chinese fishermen and fishing boat.

Ambassador Niwa stated that he would take this Chinese position and report it immediately and accurately to his home government**.
On one hand, the Chinese message contained nothing new: there were no or-else threats, and the Chinese challenge of the legality of the “seizure” was included in the post but not in Dao’s comments. On the other hand, a past-midnight summons to an ambassador plenipotentiary seemed pretty heavyhanded. And with the extraordinary State Councillor card now on the table, the only recourse left to the Chinese authorities would be a Wen (but heavens not Hu)-to-Kan hotline call.

The events of today (September 13) show that the fix indeed was in. The crew (but not the captain) returned to China on an aircraft chartered by the Chinese side and flight arrangements obviously expedited, perfectly legal and according to Japanese criminal procedure law; the Japanese authorities expressed their displeasure at the insult of the late-night summons; and the Chinese MOFA spokeswoman—why do I think that we have heard the last of the State Councillor?—demanded the release of the captain. The Japanese legal process will most likely grind on. How about a plea of guilty from the Chinese captain including an expression of remorse—to be retracted immediately on his return to China?—for not showing proper civility to the Japanese authorities while avoiding any explicit recognition of Japanese sovereignty over the Senkakus, a request from the Public Prosecutors Office for a suspended sentence expeditiously granted by the bench, and deportation as soon as the deadline for appeals passes?

A question lingers in my mind though. I might be imagining things, but these maritime incidents seem to be occurring just as the DPJ is having problems managing the Japan-Us relationship. It’s as if they were designed to drive Japan back into Uncle Sam’s arms when the DPJ leadership might—just might—have been inclined to turn more decisively towards China’s way. I would not have these thoughts but for parallel reports of the verbal altercation between Japanese and Chinese research vessels this side of the EEZ median line (this Sankei report predictably being the most alarmist among them). If there’s a fatal accident, or an exchange of fire between a Chinese research/observation vessel and a Japanese Coast Guard vessel, all bets are off.
* The first online MSM report in Japan came from ASAHI, with a 3:48AM byline (most likely following an immediate briefing for the Japanese media by the Ambassador or his spokesman), so it was more of a post-midnight summons. More significant, of course, is that this fourth summons came from the State Councillor in charge of foreign policy.

** If anyone is wondering, Ambassador Niwa talked back to the State Councillor to the effect that Japan remained unchanged in its position regarding the legal status of the Senkakus and that it would properly deal with the incident according to Japanese law, according to the Japanese media—which fact, if true, the Chinese MOFA chose to ignore in its press release.

This AP wire had the most useful factual account of the facts as of this posting. I want to flag that.


Sun Bin said...

FYI, Chinese MOFA does have the official English version in its website. (should save you some time in translation :) )

They say "in the small hours" -- which means after midnight, i presume.

but the 'latest news' shifts down with time.
State Councilor Dai Bingguo Urgently Summons Japanese Ambassador to China over the Illegal Detaining of the Chinese Fishing Boat and Fishermen in the Waters of Diaoyu Islands


In the small hours on September 12, State Councilor Dai Bingguo urgently summoned Japanese Ambassador to China Uichiro Niwa over the illegal detaining of the Chinese fishing boat and its crew in the waters of Diaoyu Islands. Dai solemnly expressed the Chinese government's grave concerns and just position. He urged Japan not to make a wrong judgment on the situation and urged it to make a wise political resolution and immediately release the fishermen and return the boat.

The Japanese ambassador expressed that he would promptly report the Chinese position to his government.

Sun Bin said...

btw, in chinese 凌晨 means the time period between midnight and pre-dawn.
though literally it means pre-dawn.

Sun Bin said...

1. i think your suggestion is impossible for the chinese side to swallow. a more practical solution, will be to let the captain to go home for his grandma's funeral tomorrow on a small bail -- an amount commensurate to a China fisherman's income. and let him forfeit the bail subsequently.
this should be an easy way out for both sides, but the window of opportunity is very narrow, after tomorrow morning he would not be able to catch the funeral and it will be hard to find another excuse.

2. In view of the DPJ election, and with the reasonable expectation that China should understand it is hard for either candidate to take risk in answering to China either way prior to the election, Dai's summon should be viewed as most certainly an act for domestic consumption.
Now that the election is over, and Kan won handsomely, it is a good opportunity for him to take what I said in (1) above and move ahead.

If that is what happened, China should reciprocate by resuming the East Sea talk.

Jun Okumura said...

Sun Bin:

Thanks for the translation, and the clarification on凌晨.

Your suggestion does come across as the grown-up’s solution. Well, you guys do have a few thousand years on us. However, I’m not sure that the Chinese side has any interest in resuming talks on the gas fields any time soon. Domestically, it’s no-win situation. As a former bureaucrat myself, I suspect that they would just as soon kick the issue down the road, hoping that something better will turn up, like maybe a promotion or a transfer, so it’ll become someone else’s problem. Of course they may take their jobs more seriously than I ever did.

Sun Bin said...

conspiracy theory on both sides after this sankei report.

your view?

中国漁船衝突 米、尖閣は日米安保の対象 組織的な事件と警戒 (1/2ページ)
2010.9.16 23:04






Jun Okumura said...

Sun Bin:

Before I tell you what I make of this conspiracy theory, let me explain what I make of the report. Sankei always does its best to put China in the worst light possible, and this report stretches the facts more than usual. Note that it is the “日米関係筋,” i.e. a “source involved in Japan-US relations”—who could be Yoshihisa Komori for all I know—who is claiming that the US government believes that the incident is part of a Chinese plan. The State Department spokesman said no such thing, as is evident even from the selective quote in the report. The reporter has woven the two together so that this distinction is obscured, but it becomes clear if you read the text carefully. Case against Sankei closed.

As for the conspiracy theory itself, based on what I know, I think that it is far more likely that the Chinese fishing boat was just one of many in the adjacent seas and that it decided to augment its catch and slipped into the Senkaku territorial waters, which is explicitly beyond the scope of the Japan-China Fishing Agreement (a fact whose significance many commentators overlook). I’m sure that it happens not infrequently, because the territorial waters must be tempting—think, the lush wildlife in the Korean DMZ—given the inevitable overfishing in the adjacent EEZ, where the two nations exercise jurisdiction only over their respective national fishing boats. This time, it got caught and bumped the Japanese Coast Guard vessels in territorial waters, which is a crime under Japanese Criminal Code.

It’s not just Chinese fishermen who do this, either. From time to time, Japanese fishing boats get caught by the Russian authorities in the waters off the Northern Territories. It’s the same thing. It’s too tempting, especially when the difference is between a poor catch and a full one.

Thus, barring evidence to the contrary, it’s much easier to explain this incident as an accident, something the Chinese authorities stumbled into—in contrast to the incidents involving Chinese survey vessels and PLA vessels and helicopters, which are clearly of a deliberate nature. I suspect that the observation vessel that the Chinese authorities dispatched has a dual objective: to show the flag, and to make sure that Chinese fishing boats don’t get cute again.

Sun Bin said...

thanks for sharing your view.

1. FYI the conspiracy theory on the Chinese side says the the Rice Country (US) planted this disputed area to create tension between the 2 east asian countries, like the UK did in the South Asian subcontinent 60 years ago. -- that is after taking what Sankei reported as 'the truth'.

2. Can you find examples of Japanese fishermen prosecuted by Russians over the Northern Territories? this can help to demonstrate to the Chinese that it is not something 'more assertive' from the japanese side.

on this side of the sea they view the prosecution as one step up (they viewed it as intentional), since in the past fishermen were usually just chased away. dispute is accepted, but enforcing via the court is something PRC cannot accept, i guess.
also, it sounds strange (even to me) that a small fishing boat would want to bump into a much larger vessel, and again. it sounds more likely that it tried to get away but the Japanese vessels were blocking his way out.
-- but this may be irrelevant now, since PRC detest that fact that it was brought to the court.

Sun Bin said...
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Sun Bin said...

how does the Fishery Agreement work?

i.e. if the area is explicitly excluded in the agreement, that means 1) anyone can fish? or 2)no one can fish at all? or 3) nobody knows and everybody is right?

Jun Okumura said...

Sun Bin:

Here’s a recent case (last January) of illegal fishing by Japanese fishing boats explained by a Mainichi reporter and the legal questions surrounding it. Not an arrest, apparently, but the Russian authorities shot and hit a couple of Japanese boats, so it an even stronger unilateral exercise of de facto sovereignty. It’s to be expected perhaps. Poaching, much like overloading a long-haul truck, is very tempting, and offshore fishermen are already engaging in a high-risk, high-return occupation.

Someone is going to exercise the powers of a sovereign over disputed territory, otherwise it’ll be a mess, and that someone is going to be the party that has effective control, unless the other parties are prepared to go to war over it. That’s the case with the Northern Territories, Takeshima, the Senkakus, the Spratley Islands, etc. etc.

In this case, the Coast Guard had no choice because the fishing boat bumped the Coast Guard boats in territorial waters. I assume that the captain of the fishing boat was so careless that he let the Coast Guard ships come so close that his route of escape to the EEZ was closed. At that point, imagine yourself as the Coast Guard captain going back empty-handed and filing a report about the dent in his vessel that says he let the Chinese fishing boat go without a chase? He’d have to worry about early retirement, that’s for sure. And Seiji Maehara, the cabinet minister who carried the Coast Guard in his portfolio at the time (he’s not MOFA Minister), is a noted defense hawk who very well could have made other heads roll too. In any case, the Coast Guard claims that it has videotapes of the incident, so anyone who wants a definitive answer on issue should wait for that to be disclosed.

Under the Treaty, each side exercises control over its EEZ below the 27 degree line, but the Treaty does not even acknowledge the existence of a dispute, let alone draw a line. So, as a practical matter, each side exercises control over its own ships. But this begs the question: What happens if, say, a South Korean fishing boat begins poaching there? I don't know, maybe we cooperate and sink it together? Good theme for a JMSDA-PLA Navy joint exercise...

Sun Bin said...


you probably know this isn't a very convincing argument to external parties. we all know once it gets into the judiciary process it is hard to pull back. someone in the coast guard should have the discretion of whether turning to the court.

all these aside, given the current situation. i think the coast guard should release the video they have. they would have to provide it if they really going to go to court anyway.
also, someone in japan may want to show the kuriles cases via the media op-ed or something like that.

but you know, for some people putting to court is more serious that taking a life. because to them life is 1/billion while court could mean legal precedence.

Jun Okumura said...

Sun Bin:
I’m well aware that the public rarely cares about how mundanely the real world goes on about its business. Instead, it seeks explanations consisting of clear, willful and concerted actions. Thus all those conspiracy theories. As a former bureaucrat, I can say with confidence that the public vastly overestimates the ability of the government/governments to act secretly and in unison. It is simply not that smart, consisting as it does of fallible human beings just like the rest of society.

The mostly independent Public Prosecutors Office used to have full discretion in deciding whether or not to prosecute and still does for all practical purposes in this case. (I won’t go into the legal details here; take my word for it.) Theoretically, it is still possible that the PPO will decline to take it to court. However, this is not an insignificant case and does carry a potential jail sentence. Moreover, it has acquired too much public prominence, and the Chinese authorities have reacted too aggressively and publicly to give the Kan administration the political leeway to see if it can coax the PPO to give up the Chinese captain to be sent home without a trial. The Chinese authorities, with their emphasis on “face,” should be the first to realize that.

It is emerging in the Japanese media as well that Chinese fishing boats often enter the territorial waters of the Senkakus and Coast Guard vessels routinely chase them out, like a Wile E. Coyote and the Roadrunner routine. This time, the Chinese boat apparently failed to observe the unwritten rules, and the two nations are facing the consequences. The saving grace is that the Chinese government is not doing anything to challenge the effective control of the territorial waters, nor has it threatened any such thing.

I see your point about setting a legal precedent. All the more surprising, then, that the Chinese government has pushed its Japanese counterpart to the point where it has become extremely hard to pull back.

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