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Japan faces legal hurdles in anti-smuggling measures against North Korea

  • January 21, 2018
  • , Nikkei , p. 2
  • JMH Translation

Many countries are toughening their ship inspection as a measure against North Korea’s smuggling operations to evade UN Security Council sanctions. Taiwan, even though not a UN member, announced on Jan. 20 that it inspected a Taiwanese ship suspected of smuggling. While Japan is poised to keep up with such efforts, it faces formidable hurdles in actual ship inspection.

 

The 17 nations participating in the U.S.-led Proliferation Security Initiative (PSI) issued a declaration on strengthening ship inspection at sea on Jan. 12 and the 20-nation foreign ministerial held in Canada on Jan. 16 also affirmed the implementation of thorough inspections.

 

However, Japan’s hands are tied in its operations. What it is allowed to do depends on such factors as whether there is an armed conflict.

 

A government source explains that, “Unless there is an armed conflict or some other crisis on the Korean Peninsula, Japan’s operations will be limited to surveillance, monitoring and providing information to the U.S. forces.”

 

Despite Japan’s participation in the PSI, operations by the Maritime Self-Defense Force (MSDF) during peacetime are limited to surveillance and monitoring in international waters. The MSDF has been monitoring foreign vessels transferring refined oil products to North Korean ships in the Yellow Sea and the East China Sea since late last year. It provides information to the U.S. forces. When suspicious ships are spotted, the U.S. forces will have to implement interdiction.

 

Inspection of ships is only possible in a situation such as a contingency on the Korean Peninsula. Even in such a case, the recognition of a “situation with critical impact” or a situation threatening the peace and stability of the international community that requires “joint response for international peace” is necessary.

 

With recognition, it will be possible to ask to inspect the cargo and verify the destination of ships other than military vessels. The problem is the law requires the consent of the captain of the suspicious ship. Unless there is a life-threatening situation, the use of weapons is not allowed. A senior Defense Ministry official says that, “It is unrealistic to expect the captain of the suspicious ship to consent voluntarily to inspection.”

 

If the situation becomes more serious, it will be possible to stop ships for on-board inspection even without the captain’s consent. The MSDF issues an order for the suspicious ship to stop, and if it refuses to do so, the commander may order the use of weapons.

 

Internationally, forcible inspection is usually called “interdiction.” However, interdiction during a contingency may include the destruction of ships in some cases. If the SDF takes such action, this might amount to exercising the right of belligerency banned by Article 9 of the Constitution. Therefore, Japan stipulates separate conditions and goals for ship inspection and stopping ships for on-board inspection.

 

While stopping ships for on-board inspection has legal force, this can only take place in an officially recognized “survival-threatening situation” when Japan suffers an armed attack or when the U.S. or other closely-related countries are attacked and there is also imminent threat to Japan’s survival. The legal hurdle is even higher.

 

There is one exception during peacetime, i.e. when the suspicious ship is armed with powerful weapons and displays a clear intention to attack. Use of weapons in an on-board inspection will be allowed with an order from the defense minister to mobilize the SDF for maritime security actions. This is allowed for the MSDF units on an antipiracy mission in waters off Somalia in eastern Africa.

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