Kakehashi Trip Report #2: Law Professors Share Perspectives on Law on Punishment of and Measures against Acts of Piracy (Law No. 55 of 2009)

Through the Kakehashi Project, I had the opportunity to meet with Professor Kazuhiro Nakatani and Dr. Yurika Ishii at the University of Tokyo to discuss the Law on Punishment of and Measures against Acts of Piracy (Law No. 55 of 2009). Our conversation centered on how Law No. 55 of 2009 significantly altered Japan’s approach to international piracy. Much of our focus centered on Articles 2 and 6.

With respect to Article 2, we discussed how Law No. 55 of 2009 placed clear limits on the ontological question “What is piracy?” In explicitly defining the term (e.g., the specific acts), the law set forth a domestic legal basis under which Japanese Coast Guard vessels could employ self-defense measures consistent with international law. It was pointed out that the language used significantly expanded the set of acts that could be interpreted as piracy under Japanese law, especially Article 2 (vi) which defined “operating a ship and approaching in close proximity of, beleaguering, or obstructing the passage of another ship in navigation for the purpose of committing the acts of piracy” as an act of piracy.

With respect to Article 6, we discussed how Law No. 55 of 2009 provided the legal authorization needed for the Japanese Coast Guard to employ force when conducting counter-piracy operations. By explicitly authorizing the use of force for a wide range of actions, Article 6 provided powers to the Japanese government that were not granted under existing legislation. This included scenarios that would not otherwise fall under the “imminent threat” limitations that preconditioned use of force under the constitution and pre-existing self-defense laws.

After discussing the specifics of the law, our conversation turned to the factors that made it possible for the law to be passed in the first place. According to Professor Nakatani, the U.N. Security Council (UNSC) Resolution in June of 2008 was a major driver. However, he cautioned against labeling it a causal factor. From his perspective, the material damage to Japanese affiliated shipping interests imparted by Somali-based pirates was sufficient to justify the passage of the law.

Of course, this presents an interesting counter-factual scenario. Would Japan have passed Law No. 55 of 2009 if the UNSC had not passed the 2008 and 2009 resolutions on Somali piracy? It is difficult to answer this question and our conversation certainly did not provide resolution of that question. But, the professors did point out that Japanese policymakers were aware that someone had to do something with or without the UNSC resolution. Whether that something would have been the Japanese Coast Guard action authorized under Law No. 55 of 2009 remains an open question.

One of the final topics discussed was how the link between terrorism and piracy impacted the lawmaking process with respect to Law No. 55 of 2009. According to Professor Nakatani, it was suspected that Somali piracy was connected to terrorists in Somalia throughout the lawmaking process. This raised an important question for lawmakers: “Should the perpetrators of piracy be considered private citizens or state actors?” Of course, this had major implications for how the Japanese Coast Guard could respond. Yet, it had not been a major topic of discussion prior to 2009 because Japan had not sought to take a direct role in conducting counter-piracy operations. The decision to do so necessitated consideration of this issue.

This is the second in a series of reports related to the Japan Foundation’s Kakehashi Visit for Young Public Intellectuals from January 12-22, 2014. The author represented SOAS, University of London and the Federation of American Scientists as part of the Pacific Forum CSIS Young Leaders delegation.