Kakehashi Trip Report #5: JSA Perspective on Japanese Law No. 55 of 2009

By February 24, 2014

As part of my Kakehashi Project independent research day, I had the opportunity to meet with the Japanese Shipowners Association (JSA). In 2006, JSA took notice of the growing maritime security threat posed by Somali-based pirates to international commercial maritime shipping. However, the issue was not top of mind in Japan, even among the major lines. It simply wasn’t a priority. And, many Japanese felt that it was not the responsibility of the Government of Japan (GoJ) to intervene in such matters overseas.

However, JSA did not endorse this line of thinking. Even in 2006, JSA felt that the GoJ had the responsibility to protect Japanese flagged vessels. JSA viewed “the protection of Japanese life and property” as a basic sovereign responsibility. However, JSA recognized that the GoJ had “limited powers” to fulfill those responsibilities outside of Japanese territorial waters. This was a consequence of the severe political and legal limitation placed on the military in the aftermath of the Second World War. If the GoJ were to act without explicit legal authorizations, JSA felt that there would be serious disagreement within Japanese society over whether such actions were allowed under the Constitution. JSA therefore realized that Japan needed new legislation to tackle the problem. But, they were not going to push for such legislation unless there was a clear and present need, which did not appear to be the case at that time.

In 2007 and 2008, that changed. The number of serious attacks off the coast of Somalia continued to rise, including high-profile hijackings of Japanese associated vessels. Soon, JSA was being asked by its members to “push the government to do something.” In April of 2008, the JSA President responded by sending a demanding letter to the Japanese Minister of Land, Infrastructure, Transport and TourismMinister of Finance, and Minister of Defense  asking for new legislation to tackle maritime piracy. To be clear, the JSA did not ask for legislation to authorize the deployment of the Japanese Maritime Self-Defence Forces (JMSDF). That would have been unthinkable given Japanese political sensitivities about the Japanese navy since World War II. Instead, the JSA took the indirect approach of asking for something to be done; deferring the decision about what that something entailed to the GoJ. However, given the perceived seriousness of the threat to Japanese associated ships and seafarers, the JSA “hoped the government would pass legislation to deploy the (JMSDF)” as a result of their request.

While its members played a pivot role in pushing the JSA to take action, they were not the only factor behind the JSA’s decision to send the demanding letter to the Ministers. As a member of the International Chamber of Shipping (ICS) and through its London Office, JSA was privy to international discussions on the issue of Somali maritime piracy within ICS, at the International Maritime Organization (IMO), and at the United Nations (UN). JSA “followed the decisions of the ICS” on the issue; believing it was important to align with the other major shipping associations on the issue. JSA recognized from those decisions that there was an international movement to respond to the Somali maritime piracy issue with force. And, they agreed with the growing international consensus, later embodied in the June 2008 UN Security Council (UNSC) Resolution, that every country with the military capacity to do so had the responsibility to deploy to the coast of Somalia to protect commercial seafarers regardless of nationality. These developments reinforced JSA’s decision to take action.

However, JSA never believed that the GoJ was ever legally obligated to deploy Japanese military assets to combat piracy under international law. JSA maintained that the decision to do so remained a sovereign one that had to be based upon Japanese laws and supported by the Japanese people. While international consensus on the need to take military action provided strong arguments, the JSA never supported any notion that either the UNSC Resolutions or other international agreements required Japan to pass Law No. 55 of 2009 and deploy the military. JSA held that the decision to deploy the military always remained a decision for the Japanese people to make. And in Japan, like most other democracies, that decision was delegated to the parliament. It was only their passage of Law No. 55 of 2009 that gave the GoJ the political, legal, and moral authority to deploy the military to combat Somali maritime piracy. It was only through the law that those actions would have been accepted by the Japanese people.

When Law No. 55 of 2009 passed, JSA immediately noticed a change – “a turning point” – in how the industry engaged with the GoJ. Prior to the law, the primary channel between the industry and the GoJ was through the MLIT. However, once the JMSDF joined the escort missions, a new channel was opened with the Ministry of Defence (MoD). Over time, this channel has only strengthened and deeper cooperation has followed.

In retrospect, the JSA believes Law No. 55 of 2009 was the right move for Japan. And, they also support the 2013″The Act on Special Measures Concerning the Guarding of Japanese Ships in Pirate-infested Waters.” While JSA would have preferred a non-military solution, JSA believes that the military response remains the only way to successfully mitigate the threat posed by Somali maritime pirates to Japanese national interests. This belief reinforces their support for Japan’s continued engagement in counter-piracy operations off the coast of Somalia, including Japan’s recent decision to join Combined Task Force 151.

This is the fifth 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.

Categories: Japan, Somalia