Japan Institute for National Fundamentals

2nd Urgent Recommendation from JINF on N. Korea’s Nuke Test
June 15, 2009

The United Nations Security Council (UNSC) has adopted a new resolution to impose sanctions on North Korea for its nuclear test on May 25. Originally Japan and the United States called for a stronger resolution featuring mandatory cargo inspections. Even if such resolution had been adopted, Japan could not have taken part in mandatory inspections, as explained below, in its surrounding waters such as the Sea of Japan while leaving other U.N. members including the United States to take risks accompanying the inspections. In that case, Japan should have come under harsh criticism from the international community.

For this reason, JINF urgently recommends Japan to take the following actions:

1. Overhaul defense laws to provide for the necessary domestic legislation for effective cargo inspections

Japan has created a law named the “Act on Ship Inspection Operations in Situations in Areas Surrounding Japan” as its legal base for cargo inspections by the Self-Defense Forces (SDF). But such inspections are linked to “situations in areas surrounding Japan” as indicated by the name of the law. Unless the “situations in areas surrounding Japan” are declared, the SDF cannot conduct ship inspections under the law.
　The ruling and opposition camps are considering amending the law to enable the SDF to conduct ship inspections in other situations as well. But it may be impossible to take effective actions under such limited amendment.

This is because the “ship inspection operations” under Article 5 of the act begin with “monitoring of a ship’s passage” and cover “approaching, chasing and accompanying the ship concerned and waiting for it in its way as far as necessary.” As for “boarding to inspect and verify” as the core of ship inspection operations, the act requires the SDF “to request the captain or the person who controls the ship concerned (hereinafter referred to as ‘the captain or the like’) for stopping the ship and to get on board for inspection and verification of documents and cargoes on approval by the captain or the like.”

The provision means that the SDF can inspect only ships whose captains or the like approve their ships’ stoppage and inspection as requested by the SDF. What can the SDF do against ships whose captains or the like reject such SDF requests? The law only provides that the SDF should “persuade the captain or the like to accept such requests.” In other words, the SDF would be able to do nothing more than persuasion.

The law also provides that SDF inspectors may use weapons only “when they have due reasons to identify the need for using weapons to defend themselves or their colleagues engaged in inspection operations.” In addition, the act provides that SDF inspectors “shall not harm any people” for other reasons than their legitimate self-defense or averting present danger under the Penal Code.

Under the law, SDF inspectors are barred from issuing stoppage orders or fire warning shots at the ship concerned. No effective measures can be taken under such limitation.

The Proliferation Security Initiative (PSI) now exists as an international effort for cargo inspection operations. More than 80 countries have endorsed the principles and objectives of the PSI and virtually participated and cooperated in the operations. The Japanese government has claimed that it has “proactively participated in the PSI operations” by hosting such programs as the second PSI Maritime Interdiction Exercise.

In fact, however, Japan’s participation in PSI operations is far from proactive. This is because Japan has participated primarily in “tabletop and command post exercises” rather than actual drills hosted by other countries. Japanese participants in actual drills in the past have been limited to Japan Coast Guard patrol boats and special teams from the National Police Agency, the Tokyo Metropolitan Police Department and customs service. Regarding the Ministry of Defense and the SDF, the Ministry’s white paper “Defense of Japan 2008” says, “in addition to dispatching Ministry of Defense personnel including SDF personnel to a variety of meetings, Japan dispatched observers to PSI interdiction exercises conducted overseas, and gathered related information.” Other PSI exercises for Japan’s participation as cited by the annual defense white paper are limited to a panel exhibition called “exhibition training.” Have such realities meet the white paper’s conclusion that the SDF has “played a proactive role on its own initiative in a number of joint exercises?”

The white paper also says: “Through these proactive efforts, for example in the case of PSI maritime interdiction activities, the relevant information obtained through information gathering activities (such as surveillance by ships of the MSDF and by aircraft of the MSDF and ASDF) is provided to relevant organizations and countries. Furthermore, it is thought that the MSDF will be able to carry out effective boarding and on-the-spot inspections of suspicious ships, with the cooperation of the Japan Coast Guard in the event that maritime security operations are ordered.”

This indicates that what the SDF can do is limited to the provision of the “relevant information” to “relevant organizations and countries.” Unless “maritime security operations are ordered,” the SDF may be barred from carrying out “effective boarding and on-the-spot inspections of suspicious ships.”

“Effective boarding and on-the-spot inspections of suspicious ships” could be based on maritime security operations that have already been ordered for the SDF to address pirates. But maritime security operations are interpreted as excluding the use of weapons for protecting foreign ships. Effective measures would be difficult to take within the scope of the maritime security operations.

Japan should fundamentally overhaul its defense laws to resolve the above problems in the following way:

2. Straighten out the interpretation of the Constitution regarding the collective self-defense right

The above problems have emerged as the government has interpreted Article 9 of the Constitution as banning the exercise of the collective self-defense right. The government has banned stoppage orders and warning shots in ship inspection operations because these measures are expected to lead to the exercise of the collective self-defense right. Under the constraint, the SDF’s PSI operations are limited to the provision of information and participation in exhibition training.

The Unites States and other relevant foreign countries interpret PSI including its exercises as military operations. Unless the above interpretation of the Constitution is modified, the Maritime SDF cannot participate effectively in PSI operations. Some people are exploring cooperation using Japan Coast Guard patrol boats, but this measure also will fail to secure Japan’s effective participation in PSI operations. In fact, the Japan Coast Guard Law provides that “any provision in this law shall not be interpreted as allowing the Japan Coast Guard and its officials to be organized, trained or function as military forces (Article 25).” The Japan Coast Guard, like the SDF, is barred from participating in military exercises, let alone military operations.

3. Switch from the “positive list” to the “negative list” for defense laws

Under international customary law, warships have been given the right of “boarding.” The right is also provided for by Article 22 of the Convention on the High Seas and Article 110 of the United Nations Convention on the Law of the Sea. Nevertheless, Japan has failed to provide for the necessary legislation for implementing rights and obligations under international law. This is the reason Japan has had no choice but to order maritime security operations in addressing pirates.

Legal systems of many countries allow military forces to base their operations directly on international law. Those countries use so-called “negative list” to restrict actions of military forces. This means that military forces are allowed in principle to freely conduct operations other than those banned by international law including the International Humanitarian Law. As a matter of course, military forces are bound by orders and regulations of their respective governments. But they can engage in necessary operations even if there are no domestic laws which specifically allow such operations. This is because military forces may extend their operations into enemy territories or, even if they are in their own countries, they may operate in the absence of government functions because of enemy invasion.

In Japan, however, the SDF that should be defined as military forces under international law is governed by laws originating from the Police Act. This is partly because the SDF was inaugurated first as the National Police Reserve. Therefore the SDF cannot engage in operations other than those specified in the “positive list” (governing laws). The SDF may be able to engage in various operations purporting to be as “education and training” or “surveys and research required for implementation of duties” (Article 4, Ministry of Defense Establishment Law) if they are not accompanied by the use of force or the use of weapons. But the SDF cannot use weapons or take other effective measures without laws which specifically allow it to. Japan is the only country where such legal constraints are put on military forces.

This is the reason Japan had no choice but to create special measures laws for the SDF’s refueling operations in the Indian Ocean and its dispatch to Iraq. Unless new special measures laws are developed or existing laws are amended, the SDF cannot conduct new operations. Every time a new situation emerges, Japan must consume much time on developing law for actions to address the situation. This can prevent Japan from making prompt, effective contributions.

This is the problem facing Japan now. Accumulation of stopgap measures can hurt Japan’s national interests.

Japan should learn lessons from the present situation and switch from the “positive list” to the “negative list” for defense laws.
　

JAPAN INSTITUTE FOR NATIONAL FUNDAMENTALS
Yoshiko Sakurai
Tadae Takubo
Masato Ushio
Koichi Endo
Yujiro Oiwa
Yoichi Shimada
Katsuhiko Takaike
Yasushi Tomiyama
Tsutomu Nishioka