A SUBMERGED HAN-CLASS NUCLEAR-POWERED SUBMARINE of the Chinese People’s Liberation Army Navy (PLAN) entered Japanese territorial waters during the early morning hours of November 10, 2004, and passed submerged at about one hundred meters as it “wandered” in Japanese territorial waters for about two hours before exiting into international waters.1 Moving from south to north, the submarine passed through the Ishigaki Strait, which separates the islands of Ishigaki and Miyako at the southwestern edge of Japan’s Sakishima island chain.2 The submarine was on its return to Meigezhuang Naval Base near Qingdao from its operating area in the Philippine Sea.
While the submarine was still operating well south of Japanese waters, the Japanese Maritime Self-Defense Force (JMSDF) was perhaps tipped to the presence of the submarine from U.S. Navy intelligence sources, and the JMSDF began passive tracking of the submarine and monitoring of its activities.3 The Japanese continued to monitor the Han passively as it operated in international waters south of Ishigaki Island, but when the submarine turned north toward Japanese territorial waters, Japanese aircraft began using active sonar—which uses echoes from an emitted signal to provide trackers with a more precise location of their target submarine, and which is accepted among submariners as a warning signal.4 The submarine chose to ignore the warning and kept on its northward path through the strait.
As a result of the submarine’s incursion, the JMSDF was put on an unusually high-level alert by order of the defense agency director, General Yoshinori Ono, for only the second time since the end of World War II.5 The JMSDF maintained track of the Han as it passed through the Strait and, once the alert order was issued, began more aggressive tracking of the Han in international waters until the submarine passed well beyond the Japanese coastline.6 During this period the JMSDF tracked the submarine for more than two days with P-3C patrol planes, AWACS aircraft, and ASW-capable destroyers and SH-60J helicopters.7
The intriguing aspect of this incident is not that the Chinese chose to send a submarine through the Ishigaki Strait—for many reasons, maritime states with submarine fleets occasionally send their submarines on underwater excursions into another country’s territorial waters.8 Nor perhaps, in a region increasingly tense over economic rights, maritime boundaries, and political maneuvering, should Japan’s assertive response have come as much of a surprise to anyone. What makes the Han’s incursion especially interesting are the international law implications of the submarine’s submerged passage through Japanese territorial waters and the strategic insights that attend them.
The Southwest Ryukyu Islands are Japan’s westernmost outpost, strategically located to protect Japan’s maritime economic interests in the East China Sea from Chinese encroachment. The islands of Ishigaki and Miyako lie at approximately 24°30´ north latitude between approximately 124° and 125° east longitude (see Chart 1). They are relatively small islands, situated approximately one hundred nautical miles off the northeast coast of Taiwan and twelve hundred nautical miles southwest of Tokyo, with a combined land mass of less than three hundred square miles.
The water between the islands is bisected by tiny Tarama Island, which lies 18.2 nautical miles from Ishigaki Island and almost exactly 24 nautical miles from Miyako Island, in waters in which small coral islands and reefs abound.9 It was through a relatively deep-water trench of Japanese waters that lies between Ishigaki and Tarama that the Han passed.
Under the United Nations Convention on the Law of the Sea (UNCLOS), coastal states have the right to establish sovereignty over adjacent waters out to a maximum of twelve nautical miles from the nation’s coastline, including the coastline of offshore islands. These enclosed waters are known as the coastal state’s territorial sea.10 In 1996, the Japanese Government enacted a Territorial Sea Law that established its claim of sovereignty to the twelve-nautical-mile band of coastal waters around most of its shore line—including the Ishigaki, Tarama, and Miyako Islands—but claimed a lesser breadth for strategic reasons in five other key straits.11
Chart 1.The southwestern Ryukyu Islands, depicted inside the circle, are a gateway to and from the resource-rich contested waters of the East China Sea. Source: U.S. Defense Mapping Agency WOPGN522.
In return for the expansion of sovereign control over waters that were formerly open to use by all states, UNCLOS provides seagoing states with certain rights of access. For instance, ships have the right of “innocent passage” through territorial seas. Innocent passage is generally the continuous and expeditious traversing through another state’s territorial waters, for the purpose of passage, in a manner that is not prejudicial to the peace, good order, or security of the coastal state.12 These broad terms are, of course, subject to significant variations of interpretation from one coastal state to the next, but UNCLOS does provide some specificity: without the permission of the coastal state, collection of intelligence and conducting research or survey activities are express violations of innocent passage.13 Additionally, submarines exercising innocent passage are required to navigate on the surface and to show their flag.14
Another navigation regime, known as “transit passage,” applies where opposing coastlines are situated twenty-four nautical miles apart or less. In these waters, known as international straits, the territorial sea claims of the coastal state or states overlap or abut to “close off” the strait of water between them, such that no corridor of international waters with high-seas freedoms remains between the opposing coasts. In these international straits, unlike in other territorial waters, all ships have the right to continuous and expeditious transit in the normal mode of operation. The normal mode of operation provides ships with much broader operating rights than in innocent passage and includes the right of submarines to pass through the strait submerged.15 Transit passage applies in these straits as long as the strait connects two areas of high-seas freedoms, as is the case with the waters of the Ishigaki Strait between Ishigaki and Tarama Islands.16
In addition to the requirement that the strait connect two areas of high-seas freedoms, some states—Japan is one of them—apply an additional requirement before acknowledging a right of transit passage, including the right of submarines to pass through the strait submerged.17 The Japanese look to UNCLOS language that specifies that transit passage “applies to straits which are used for international navigation,”18 and recognize a right of transit passage only in those straits actually used for international navigation,19 rather than in all straits capable of use for international navigation. This distinction is critical to understanding the assertive nature of the Japanese response to the presence of a submerged Chinese submarine in the Ishigaki Strait. The Japanese view is that a route of similar convenience in international waters applies to the west, between Ishigaki and Taiwan, making international transit through Japanese waters unnecessary and thereby nullifying the route between Ishigaki and Miyako as an international strait with rights of submerged passage for submarines.
The only definitive international law guidance concerning the rights of passage in an international strait is the 1949 Corfu Channel Case20 involving a dispute between the United Kingdom and Albania over the right of British war ships to pass unhindered through the narrow waters between the Island of Corfu and the Albanian coastline. The case was heard before the International Court of Justice (ICJ), which determined that Albania could not hinder the passage of the British war ships through the Corfu channel because the strait’s “geographical situation as connecting two parts of the high seas and the fact of its being used for international navigation,” provided ships the right of passage as a matter of customary international law.21
In developing its policy concerning transit passage, the Japanese government relied on the language “used for international navigation” found in both the Corfu Channel case and in UNCLOS, and reasoned that only if the strait is routinely used for international navigation should the transit passage regime apply. The ICJ considered and specifically rejected an argument similar to Japan’s position. Albania argued that for the right of unimpeded passage to apply, the strait must be “a necessary route between two parts of the high seas”; however, it was sufficient for the Court that the Corfu channel was merely “a useful route for international maritime traffic.”22 As might be expected, even the meaning of “useful route” is open to debate and interpretation. Maritime powers generally favor a broad interpretation of the term useful route and apply a right of transit passage to any qualifying strait capable of navigation by any international shipping—merchant or military—since the widest possible freedom of action is in the interest of such maritime powers. Contrarily, coastal nations with a sense of vulnerability from the sea naturally favor a much more restrictive view of the term useful route and acknowledge transit passage rights only in the relatively few world straits through which international shipping is routine and no other route of similar convenience is available, such as the straits of Gibraltar and Hormuz.
Perhaps not surprisingly, Japan, as an island state that has fought at sea with three major powers over the last century, advocates for the more restrictive application of the right of transit passage. As evidence of Japan’s attempt to avoid a robust international right to transit passage between its islands, when the Japanese Government extended sovereignty over its coastal waters it took great pains to avoid creating international straits in areas where transit passage would apply under either definition. In the five international straits clearly affected by even the restrictive approach—the Tsushima Strait (in the waters between the Southern Island of Kyushu and the Korean peninsula, depicted in Chart 2), the Osumi Strait (between Kyushu and smaller islands off the coast), the La Perouse or Soya Strait (the northernmost strait between Hokkaido and Russia’s Sakhalin peninsula), and the Tsugaru Strait (between Hokkaido and Honshu)—Japan limited its territorial sea claims to less than twelve nautical miles in order to leave a band of international waters with high seas freedoms sufficient for ships to pass without having to rely on a right of transit passage.23
Accordingly, from Japan’s perspective, the Chinese Han-class submarine in submerged passage in the waters between Ishigaki-Shima and Tarama-Jima was in violation of Japan’s sovereignty because it had no right to claim transit passage through those waters, which, though clearly capable of supporting international navigation, are not normally used for such purpose.
The United States does not accept the Japanese perspective that there are only five potential international straits through Japanese territorial waters. As a state with extensive maritime interests, and for which access to the world’s oceans is critical to maintaining its national security, the United States has long interpreted UNCLOS and the Corfu Channel Case to mean that transit passage applies in all straits susceptible of international navigation.24 This is a crucial distinction, in that under the U.S. definition every strait that is enclosed in territorial waters, but which connects two areas of high-seas freedoms, is fair game for transit passage of U.S. merchants and warships in the normal mode of operation—including submerged submarines. This vastly increases access to and through the world’s littorals when compared with the restrictive Japanese views.
Like Japan, the PRC has long held the position that transit passage rights apply in only a very few international straits worldwide. This view is expressed in its PLA publication on international law for military officers, which says that the category of “straits for international navigation” is very narrow and only includes “those that straddle important international sea lanes” and which, through historical use or as evidenced by international treaties, have “important implications for the national interests of certain countries.”25 Indeed, the language in which this section of PRC military guidance is written, while acknowledging that some straits are “open to international navigation,” glosses over the UNCLOS right of transit passage and instead emphasizes the importance of coastal state sovereignty and jurisdiction over the waters in an international strait.26
Chart 2.The Japanese claimed less than the full twelve nautical mile territorial sea around Tsushima Island in order to channel international traffic in a high seas corridor. Source: Limits in the Seas, no. 120, Straight Baseline and Territorial Sea Claims: Japan. United States Department of State, Bureau of Oceans and International Environmental and Scientific Affairs (1998).
Despite China’s steady rise as a maritime power with substantial commercial and military interests at sea, during and after the diplomatic furor over the discovery of the submerged Han in Japanese waters the PRC remained officially wedded to its traditional restrictive right of transit passage. In response to the Japanese demands for a Chinese apology for the presence of the Han sub, the PRC officially “regretted” the intrusion, rather than moving its stance toward a broader right of transit passage.
If the PRC never intended to take this opportunity to shift its official position on the right of transit passage, why would the Chinese PLA Navy send an easily detected submarine through waters where, by its own doctrine and policy it acknowledges the submarine had no right to be? Han-class submarines are known to be fairly noisy and therefore easily detected, and this one passed through Japanese waters at the relatively shallow depth of less than one hundred meters.27 Additionally, with PRC president Hu Jintao and Japanese prime minister Junichiro Koizumi scheduled to meet for a one-on-one side-summit at the Asia-Pacific Economic Cooperation Forum in Chile just days after the incident, why provoke the Japanese during the important weeks before the meetings?28 Several possibilities suggest themselves—all of them instructive of the strategic implications of China’s rise as a naval power.
The Incursion May Indeed Have Been Unauthorized or Due to a “Technical Reason”
The official explanation for the incident was that the submarine was returning from a routine patrol and blundered through the strait because of poor navigation stemming from a “technical reason.” The explanation of navigational error, although officially accepted by Japan in order to diffuse political tensions, is implausible on its face. A glance at any chart of these waters makes clear that for the Han to pass through the Ishigaki Strait, it would have to have been fully seventy-five to one hundred nautical miles off a course that would have made its intended northern passage either between the islands of Taiwan and Ishigaki, or in the corridor of international waters southwest of Okinawa. On the contrary, the JMSDF track of the Han indicated that it passed through the strait cleanly, without noticeable navigational difficulty, and the submarine appeared as though it was piloted by someone familiar with the waters in that area.29
Additionally, all submarines operating in littoral waters use fathometers to measure depth. In this area there are ample underwater indications that, if the submarine were seriously off course, would alert the submarine commander to the danger. The applicable navigation chart, for instance, shows that the distance between the two-thousand-and-one-thousand-fathom-depth curves in the region of the strait is substantially shorter than in other waters through which the submarine might have intended to pass—the distance between curves is approximately ten nautical miles in the vicinity of the strait, as opposed to nearly fifty nautical miles elsewhere (see Chart 3). This unexpectedly rapid loss of water depth would have alerted the commander to course concerns and of possible grounding among the islands and their many coral reefs.30 Had the submarine had actual concerns about its location or ability to navigate safely, it would have made a wide course correction well out to sea—certainly before it crossed the one thousand fathom curve just off Ishigaki Island. Clearly, the PRC story about navigational error and technical difficulties was a face-saving cover. Other more likely reasons for the submarine’s decision to make passage through the Ishigaki Strait—and the Japanese response—have both legal and strategic significance.
For years the U.S. has been aware that the PLAN has been exploring various undersea routes through which to move its submarines into the central Pacific in the event of conflict over Taiwan.31 By some reports, recent relaxations in trade and technology restrictions have allowed China to purchase advanced oceanographic mapping systems that allow it to make sophisticated maps of the ocean floor. These maps could be very useful to the PRC submarine force in the event of war over the status of Taiwan. Additionally, the maps could be useful in exploring the seabed for suitable locations to drill and explore for gas and oil. On these bases, some have suggested that the Han’s passage was the latest excursion in a sustained effort to map the sea floor in the East China Sea and the approaches to it. Bolstering this perspective is the fact that after the submarine left Japanese territorial waters, the submarine was tracked passing through a disputed area of the East China Sea in which China has an ongoing gas-exploration project that Japan considers an affront to its own claims.
Chart 3.The waters to the east and west of the Ishigaki Strait have dramatically different depth curves than the Strait itself, which would have alerted a submarine commander that he was off course. Source: U.S. Defense Mapping Agency INT509.
If it is the case that the submarine was mapping Japanese territorial waters without Japan’s permission or performing economic research in a disputed area, the PRC has some explaining to do. UNCLOS provides that “coastal states, in the exercise of their sovereignty, have the exclusive right to regulate, authorize and conduct marine scientific research in their territorial sea.”32 Furthermore, UNCLOS provides that “during transit passage, foreign ships . . . may not carry out any research or survey activities” without the prior consent of the coastal State, including hydrographic surveys.33
UNCLOS takes an equally stern stance regarding such activities during either innocent passage or transit passage. Concerning innocent passage, UNCLOS provides that “passage of a foreign ship shall be considered prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any act aimed at collecting information to the prejudice of the defense of the coastal State or the carrying out of research or survey activities.”34 UNCLOS also applies this prohibition to territorial waters covered by international straits by stating that “any activity which is not an exercise of the right of transit passage through a strait remains subject to the other applicable provisions of the Convention.”35
Indeed, China itself gets rather prickly over just this issue—even in waters well away from its territorial sea. In March 2000 and again in September 2002, PLAN warships directed the USNS Bowditch—an unarmed oceanographic research vessel manned by twenty-five civilians—to exit an area of international waters well outside Chinese territorial waters in the Yellow Sea in which the Bowditch was performing hydrographic-performance acoustic data tests.36 Such tests are performed using sonarlike equipment to determine the salinity, temperature, existence of currents, and other water characteristics that affect the movement of sound under the surface. The collected data is useful in tracking submarines, but is just as useful to submarines intent on avoiding detection. The waters in which the tests were being performed were within the PRC exclusive economic zone, but international law provides all states the right to exercise high-seas freedoms including conducting scientific research such as hydrographic surveys.37 China’s Foreign Ministry spokeswoman at the time refused to specify her country’s specific basis for requiring Bowditch to depart, and cited only her state’s “relevant rights” in the exclusive economic zone as a basis for the PLAN’s actions.38 Thus, comparing the two incidents, if indeed the Han’s passage through the Ishigaki Strait was for the purpose of collecting hydrographic or intelligence data, then China’s decision to send a submarine submerged through Japan’s territorial waters was especially surprising, inasmuch as it performed in the territorial waters of Japan activities that by its own interpretation of international maritime law it would not countenance much further from its own shores in its exclusive economic zone.
International law does not leave states without legitimate remedies for true violations. UNCLOS provides that a coastal state has the right to “take the necessary steps in its territorial sea to prevent passage which is not innocent.”39 It also states that coastal states that discover warships in noncompliance with coastal state laws and regulations concerning passage through the territorial sea can request that the ship come into compliance and, if the ship does not, the coastal state may require it to leave the territorial sea immediately.40 Additionally, the right of diplomatic protest preserves the coastal state’s position on the state of the law. These remedies must of course be interpreted in light of the coastal state’s right to use force in self-defense in response to an armed attack, but the clear intent of UNCLOS and international law is to avoid escalatory actions by coastal states toward non-hostile warships in their waters.
Put in this light, the submerged passage of the Han through the Ishigaki Strait, where it stood a reasonable chance of being detected by the Japanese, was counterproductive to the PRC’s efforts to establish that a coastal state has relevant rights it may enforce by excluding others from information-gathering off its coasts. Additionally, since state practice is a primary source of international law, if China’s purpose for the Han was to gather intelligence about the waters and sea bed in the Ishigaki Strait, then its own naval practices have defeated China’s larger strategic purpose of advancing and shaping the law in favor of coastal state control over coastal waters.
It is conceivable that the Chinese directed the submarine’s submerged passage through Japanese waters as an intentional provocation to demonstrate to Japan and the United States the extent of the PRC’s sea power and blue-water operations capability, and possibly to test the military response capabilities of the Japanese.41 To the United States, China’s message has consistently been to refrain from military support for Taiwan.42 To Japan, China’s message may be related to maritime boundary and resource disputes, making the Han incident one among a string of such messages over the past few years designed to demonstrate China’s growing naval power. For instance, China increased its fleet activity significantly in the international waters within the Japanese EEZ in the East China Sea in the year before the Han incident—the submarine’s passage through that area was reportedly the thirty-fourth such instance in 2004, up from only seven in 2003.43 This increase could be attributed to a number of factors, including the need for new and deeper operations areas as the PRC submarine fleet’s deep-water capabilities improve,44 but the most plausible explanation is that China is using its navy to demonstrate its power to resolve disputes in its favor if neighbors or competitors should consider resorting to the use of force.
One of the reasons China may have taken this particular opportunity to demonstrate its naval capabilities is to strengthen its negotiating position in the disputed economic zones in the East China Sea. The Han incursion occurred amid tense disagreement between China and Japan over the PRC’s gas exploration projects in the East China Sea inside an area that Japan claims is its exclusive economic zone.45 As noted above, the submarine was tracked moving through the waters near those same PRC off-shore gas projects that are the subject of the controversy.46 Japan protests the gas exploration because it claims that wells so near the boundary will inevitably take natural gas from the Japanese side of the border as well. In the days just after the Han’s passage through this disputed region, Japan’s trade minister openly questioned whether the presence of the submarine in those waters was meant by the PRC to send a not-so-veiled signal.47 This is entirely plausible, since these waters continue to be the source of open threats by the Chinese against any Japanese interference. As recently as September 2005, for instance, a group of five PLAN ships were spotted operating for the first time in the area of the Chun Xiao gas field in the disputed area of the exclusive economic zones between China and Japan.48 In order to make sure the message was clearly understood, one of the Chinese ships swiveled and aimed its 100mm bow gun at a JMSDF P-3 patrol plane patrolling the region in international airspace.49 Such acts of intimidation are meant to reinforce China’s claim to the resources under the entire continental shelf, and to encourage Japan not to interfere with operation of the Chinese gas field, which is located only about two kilometers from the Japanese-claimed EEZ boundary.
In preparation for the possibility that it may have to militarily defend its claims against Japan, it is possible that the PLAN sent the Han through sensitive Japanese waters in order to test the JMSDF antisubmarine warfare (ASW) response capabilities, an activity that states which view themselves as peer competitors or even as potential adversaries routinely conduct.50 The slow speed and erratic course of the submarine as it passed through Japanese waters north of the Strait certainly suggest that it was testing the patrol and tracking capabilities of the JMSDF.51 These mildly provocative naval operations were routine during the Cold War,52 and China and Japan have recently accused each other of operating with a “Cold War mentality” based on the postures taken in recent national security strategy documents.53
That said, as with its stance against research and intelligence-gathering activities without consent, the PRC has expressed a clear and consistent policy that innocent passage within the territorial waters of a coastal state is not a matter of right for warships. Under Article 6 of the Territorial Waters and Adjoining Areas Act of the People’s Republic of China, the Chinese government authorized merchant vessels the right of innocent passage through Chinese waters without prior permission, but specifically required that foreign military vessels seek permission of the Chinese government before entering its territorial waters.54 Thus, in addition to weakening Chinese ability to limit research and intelligence gathering off its coasts, the passage of the Han through the Ishigaki Strait without Japan’s consent also undermined China’s efforts to shape international law in favor of coastal state control over the movement of war ships off its coasts.
In light of the political tensions in the East China Sea, and China’s strict stance regarding passage by warships into its own territorial waters, the Japanese obviously followed the Han’s path with particular interest. In fact, some sources reported the PRC submarine was initially detected leaving its home port, either by a U.S. satellite or through Taiwanese intelligence channels, then tracked by a U.S. submarine and U.S. Navy P-3C patrol planes as it operated off Guam.55 The submarine continued to be tracked for more than four days as it operated south of the Ryukyus near the politically sensitive Japanese Okinotori Island and the Japanese stepped up monitoring activities as the submarine passed through its territorial waters in the ocean trench between Ishigaki and Miyako on its return trip.56
This is of particular interest to the U.S. and Japan because the Han’s noisy movement through waters east of Taiwan and the Japanese island chain is an open demonstration that the PLAN is able to operate outside what it calls the “first defensive island chain” into the waters of the outer defensive perimeter, or approaching the “second island chain.” These island chains are perceived as defensive spheres that the PRC intends to use to achieve sea supremacy and to deny the United States and allies freedom of action should armed conflict over Taiwan result.57
Indeed, over the past few years the PRC has systematically consolidated its position relative to Taiwan—both militarily and politically. Politically, the PRC has worked persistently to prevent international diplomatic recognition of Taiwan by offering economic incentives to underdeveloped states. Additionally, in March 2005 at the annual People’s Congress, the PRC leadership pushed through “legislation” aimed at Taiwan that specifies that political separation is unlawful and may be responded to with the use of armed force.58 Militarily, there is a noticeable trend of gradually increasing numbers of PLAN missions into waters disputed by China and Japan in the East China Sea, and now into Japanese waters themselves. These mounting military activities may be an effort by the PLAN to dissuade intervention in a cross-strait scenario, and the most recent incursion may well have been an intentional signal that China’s navy has both the technology and operational ability to disrupt any efforts the United States and Japan might be inclined to undertake on Taiwan’s behalf.
Given the international law and policy implications, it is intriguing that the PLAN’s activities in Japanese waters do not appear to be well coordinated with the Foreign Ministry, and by implication the Chinese Communist Party. The PRC’s delay in responding to Japan’s official queries about the identity of the submarine and the purpose of its passage is telling. After initially denying to Japan that it had any knowledge of the developing situation,59 the PRC government then remained silent about the incident for five days after reports of the submarine’s presence in Japanese territorial waters were made public.60 The PRC vice foreign minister eventually met with the Japanese ambassador and said the submarine was on “routine maneuvers” at the time of the incursion and that it had “accidentally strayed” into Japanese territorial waters and “expressed regret” over the incident, citing the cause as a “technical reason.”61 The five-day delay by the Chinese Foreign Ministry in providing an explanation of this event suggests that the Foreign Ministry was genuinely unaware of what the PLAN was doing and intimates that the PLAN leadership took the initiative to make an independent point to Japan (and possibly to other organs of the PRC government, as well).
The status and interpretation of the international right of transit passage under international maritime law remain unchanged as a result of the Han’s passage through the Ishigaki Strait. China and Japan still challenge the prevailing understanding that international straits include all “useful routes” for international navigation and each seeks to establish the position that only straits that are “necessary routes” for international navigation qualify as international straits. Additionally, neither country altered its view that transit passage applies only in all straits “routinely used for international navigation,” rather than all straits that are “susceptible of international navigation.” Only if China had followed the Han’s underwater passage through the Ishigaki Strait with a political assertion that the submarine had an international law right to do so would the passage have qualified as the sort of state conduct on which customary international law is based. But the landscape of international law has changed nonetheless.
The Chinese spent at least a decade prior to the 2004 incident attempting to build its case for increased coastal state jurisdiction and control over the maritime zones off its shores. By preventing Bowditch’s survey activities in their exclusive economic zone, for instance, the Chinese staked a position consistent with coastal state control. However, with one submarine’s submerged passage through a neighbor’s territorial waters in a manner that could not plausibly have been accidental, the Chinese undercut the legitimacy of their protectionist position on international law of the sea. This could have a profound effect on the development of maritime law as a whole, and at a minimum strengthens the hand of those states that accept minimum restrictions on the freedom of maritime navigation. Certainly, this incident will serve as a benchmark for the future when states seek to interpret acceptable practices in the coastal zones of other states in light of international maritime law. Thus, whether the Chinese sought to covertly map the seabed through the strait, or to demonstrate the PLAN’s modern sea power, or to test the Japanese antisubmarine detection and response capabilities, the Chinese may well have made a short term tactical gain, but dealt themselves a long-term strategic loss.
In sharp contrast, Japan quickly saw an opportunity and took advantage of it. The Japanese forced the Chinese to express public regret over the incident, and thereby strengthened their own strategic position that Chinese submarines have no right to pass submerged through those waters. By choosing to actively pursue the submarine, rather than relying only on the de-escalatory measures contemplated by UNCLOS, Japan also clearly signaled to China that it is willing to flex military muscles of its own.62 Thus, in the end, although international law remains mostly unchanged, Japan’s strategic position is strengthened because its government demonstrated the ability to quickly respond to an emergent crisis, to grasp the strategic opportunity, and to take bold action.
1. “Japan continues tracking mystery sub,” Japan Times, November 12, 2004; Kyodo World Service, “MSDF Ships Tracked Chinese Sub Cautiously Due to ‘Possibility’ of Attack,” November 20, 2004.
2. Melody Chen, “Japan and US ‘dissuade’ China,” Taipei Times, March 23, 2005, 2; Asian Political News, “China admits sub entered Japan waters, expresses regret,” November 24, 2004; “China sub tracked by U.S. off Guam before Japan intrusion,” Japan Times, November 17, 2004; “MSDF alert over mystery sub in waters off Okinawa,” Asahi Shimbun, November 11, 2004; “‘Intentional’ or ‘Navigational Error’?” Japanese Defense Monthly, February 1, 2005.
3. “Chinese sub tracked by U.S. off Guam before entering Japan waters,” Kyodo News, November 16, 2004; “‘Intentional’ or ‘Navigational Error’?” Japanese Defense Monthly, February 1, 2005.
4. “‘Intentional’ or ‘Navigational Error’?” Japanese Defense Monthly.
5. “China admits sub entered Japan waters, expresses regret,” Asian Political News, November 16, 2004; “Hosoda says Japan can’t identify sub because it ‘stays under water’,” Japan Today, November 11, 2004. The first time the Japanese raised the military alert level to its highest state occurred in 1999 when two North Korean vessels approached the Noto Peninsula in the Sea of Japan.
6. “‘Intentional’ or ‘Navigational Error’?” Japanese Defense Monthly.
7. “Hosoda says Japan can’t identify sub because it ‘stays under water’,” Japan Today; “Japan Demands Apology over Chinese Submarine Intrusion,” The Sydney Morning Herald, November 14, 2004; Yoso Furumoto, “Suspicious Submarine: Intrusion of Territorial Waters; JDA Sends AWACS to Surrounding Ocean; Watch Out for Chinese Fighter Jets,” Mainichi Shimbun, November 13, 2004.
8. See, for instance, the discussion surrounding the 1981 incursions of Soviet submarines into Swedish waters in W. Michael Reisman and Andrew R. Willard, eds., International Incidents: The Law that Counts in World Politics (Princeton, N.J.: Princeton University Press, 1988), 40–67.
9. This information is derived from the Defense Mapping Agency’s Tactical Pilotage Chart (TPC) H-12C, January 1996 edition. The distances referred to were measured by the author from the TPC H-12C.
10. United Nations Convention on the Law of the Sea, Article 3.
11. Law to Partially Amend the Law on the Territorial Sea (Law No. 73 of 1996), which entered into force on July 20, 1996.
12. United Nations Convention on the Law of the Sea, Articles 18, 19. Italics added.
13. UNCLOS, Article 19.
14. UNCLOS, Article 20.
15. UNCLOS, Articles 38, 39.
16. UNCLOS, Article 37.
17. Although UNCLOS does not further specify what the term “normal mode” means in reference to a submarine’s passage through an international strait, this issue was clarified in the 1995 San Remo Manual on International Law Applicable to Armed Conflicts at Sea, in which the Round Table of scholars and officials expressed general agreement that the right of transit passage for submarines included subsurface passage: 105.
18. UNCLOS, Article 37.
19. Nakamura Susumu, e-mail of 10 May 2004, on file with the author.
20. 1949 I.C.J. 4, reprinted in U.S. Naval War College, International Law Documents 1948–1949, Blue Book series, 1950, vol. 46, 108. This case involved two British ships that struck naval mines in the Corfu Channel 1946, leading to the deaths of forty-five British sailors. Albania was adjudged responsible for ensuring that its territorial waters in the strait were safe for international navigation.
21. 1949 I.C.J., 28.
22. Ibid.
23. United States Department of State, Bureau of Oceans and International Environmental and Scientific Affairs, “Limits in the Seas No. 120, Straight Baseline and Territorial Sea Claims: Japan,” April 30, 1998.
24. A. R. Thomas and James C. Duncan, eds., Annotated Supplement to the Commander’s Handbook on the Law of Naval Operations, U.S. Naval War College International Law Studies, Blue Book series, vol. 73, 122 n. 36, citing Grunawalt, “United States Policy on International Straits,” 18 Ocean Dev. & Int’l L. J. 445, 456 (1987).
25. Zhao Peiying, ed., Basis of International Law for Modern Soldiers (Beijing: PLA Press, 1996), 90.
26. Ibid., 90–91.
27. Lyle Goldstein and William Murray, “Undersea Dragons: China’s Maturing Submarine Force,” International Security 28, no. 4 (Spring 2004): 161–96.
28. Reiji Yoshida and Kanako Takahara, “China’s Sub Intrusion Sparks Tokyo Protest,” The Japan Times, November 13, 2004.
29. FBIS Report: “HK Phoenix TV Discusses PRC Submarine Intrusion, Japan’s Reaction,” Hong Kong Feng Huang Wei Shih Chung Wen Tai in Mandarin 0302 GMT 19 November 2004, FBIS# CPP20041122000100; Kyodo World Service, “MSDF Ships Tracked Chinese Sub Cautiously Due to ‘Possibility’ of Attack,” November 20, 2004; “What the PRC Submarine Force is Aiming For,” Japanese Defense Monthly, July 1, 2005.
30. “‘Intentional’ or ‘Navigational Error’?” Japanese Defense Monthly.
31. “China sub tracked by U.S. off Guam before Japan intrusion.” The Japan Times, November 17, 2004.
32. UNCLOS Article 245.
33. UNCLOS Article 40. See also Article 21(1)(g).
34. UNCLOS Article 19.
35. UNCLOS Article 38.
36. Mark Oliva, “Before EP-3, China Turned Away U.S. Research Ship in International Waters,” Stars and Stripes, May 20, 2001; Erik Eckholm, “China Complains about U.S. Surveillance Ship,” New York Times, September 27, 2002.
37. UNCLOS Articles 55, 58, and 87.
38. “Foreign Ministry Spokeswoman’s Press Conference on September 26, 2002,” at http://www.china-un.ch/eng/xwdt/t88395.htm.
39. UNCLOS Article 25(1).
40. UNCLOS Article 30.
41. “Chinese submarine intrusion considered an act of provocation,” Japan Times, Nao Shimoyachi, November 13, 2004.
42. Max Boot, “China’s Stealth War on the U.S.,” Los Angeles Times, July 20, 2005.
43. “A strategically important area for China,” The Asahi Shimbun, November 12, 2004.
44. Melody Chen, “Japan and US ‘dissuade’ China,” Taipei Times, March 23, 2005, 2.
45. Reiji Yoshida and Kanako Takahara, “China’s sub intrusion sparks Tokyo protest,” Japan Times, November 13, 2004.
46. Steve Herman, “Japan Says Mystery Sub in Its Waters Was Chinese,” Voice of America, November 12, 2004; Steve Herman, “Japanese Minister Links China’s Sub Intrusion to Gas Exploration,” Voice of America, November 14, 2004.
47. Steve Herman, “Japanese Minister Links China’s Sub Intrusion to Gas Exploration.”
48. Norimitsu Onishi and Howard W. French, “Japan’s Rivalry with China Is Stirring a Crowded Sea,” New York Times, September 11, 2005.
49. “Kyodo: Chinese Warship Pointed Gun at Japanese Patrol Plane in Sept,” Tokyo Kyodo World Service, October 1, 2005.
50. “HK Phoenix TV Discusses PRC Submarine Intrusion, Japan’s Reaction,” FBIS Report.
51. “Japan continues tracking mystery sub,” Japan Times, November 12, 2004; Nao Shimoyachi, “Chinese submarine intrusion considered an act of provocation,” Japan Times, November 13, 2004.
52. See, e.g., W. Michael Reisman and Andrew R. Willard, International Incidents: The Law That Counts in World Politics, (Princeton, N.J.: Princeton University Press, 1988), chapter 3, which discusses Soviet submarine incursions into Swedish waters in 1981 and 1982, and the response by the Swedish government.
53. “China Denies Knowledge of Suspect Submarine in Japan,” The Manila Times, November 12, 2004.
54. Zhao Peiying, ed., Basis of International Law for Modern Soldiers (Beijing: PLA Press, 1996), 87–88.
55. “China sub tracked by U.S. off Guam before Japan intrusion,” Japan Times, November 17, 2004; “Chinese sub tracked by U.S. off Guam before entering Japanese waters,” Kyodo News, November 16, 2004; Melody Chen, “Taiwan ‘regrets’ Japan’s stance on sub,” Taipei Times, November 27, 2004, 3.
56. Melody Chen, “Japan and US ‘Dissuade’ China,” Taipei Times, March 23, 2005, 2.
57. Ibid.
58. Alan A. Romberg, “Anti-Secession Bill Ups Cross-Strait Tensions,” Asia Times, March 4, 2005, http://www.atimes.com/atimes/China/GC04Ad03.html.
59. “China denies knowledge of suspect submarine in Japan,” The Manila Times, November 12, 2004.
60. “Japan Demands Apology over Chinese Submarine Intrusion,” The Sydney Morning Herald, November 14, 2004.
61. J. Sean Curtin, “Submarine Puts Japan-China Ties into a Dive,” Asia Times Online, November 17, 2004; unattributed article, “China Sub Tracked by U.S. off Guam before Japan Intrusion,” The Japan Times, November 17, 2004; unattributed article, “Defense Official Doubts China’s Explanation for Sub’s Intrusion,” Tokyo Nihon Keizai Shimbun, November 17, 2004.
62. “Japan’s New Defense Outline Raises Concerns about China,” Muzi News, November 16, 2004.
