Statement on a Bill for Anti-Piracy Missions
On March 13, 2009, the Cabinet adopted a bill concerning the punishment of piracy and anti-piracy missions and sent it to the 171st regular session of the Diet on the same day. The Lower House passed the bill on April 23. The bill establishes the criminality of piracy acts and authorizes the Japan Coast Guard (JCG) to take countermeasures against piracy acts. It also enables the Japan Self-Defense Forces (SDF) to perform anti-piracy missions by orders of the Minister of Defense with approval of the Prime Minister. Furthermore, it permits the SDF officials and the JCG officials to use weapons to fire upon pirate boats to stop them.
This bill enlarges the area where the SDF is authorized to perform its activities to international waters, which greatly exceeds the scope of its objectives to maintain public order in territorial waters (Paragraph 1 of Article 3 of the Self-Defense Forces Act). Furthermore, the bill allows the SDF to take countermeasures against piracy acts to protect not only Japanese ships but all ships, including foreign ships. Additionally, the SDF could be dispatched overseas permanently. This expansion of the SDF diminishes the restrictions on its overseas activities and could conflict with Article 9 of the Constitution. We should recall that Article 9 of the Constitution was founded on the ultimate sacrifice of precious lives during the last World War. Basically, anti-piracy missions should be performed by law enforcement agencies and the SDF's engagement in such missions is questionable. Anti-piracy missions should be carried out by the JCG which is authorized to enforce law.
Moreover, the JFBA is concerned that giving the SDF authorization to fire upon pirate boats to stop them is beyond the scope of authority given by Article 7 of the Police Official Duties Execution Act to use weapons and could lead to the threat or use of force which is prohibited by Article 9 of the Constitution.
In addition, the SDF may take action against pirates at the decision of the Ministry of Defense and the Prime Minister and need only report to the Diet after the action has been taken (Article 7 of the bill). This presents an immense problem with the democratic control of the SDF through the Diet.
Piracy is a serious international problem, and it is clear that international cooperation is crucial in order to solve the problem as can be seen by the resolutions of the Security Council of the United Nations (UN) dealing with the problems off the coast of Somalia. However, Japan should take nonmilitary approaches based on the spirit of enduring peace declared by the Constitution in order to contribute toward fundamental solutions to the problems. Such approaches could include humanitarian and economical support and assistance to improve security forces of countries along the coast where piracy takes place, taking into account the needs of relevant countries. The obligation for cooperation imposed by the UN Convention on the Law of the Sea and UN resolutions to prevent piracy acts remains within the constitution and law of each State Party.
Therefore, the JFBA opposes enacting a law concerning the punishment of piracy and ant-piracy missions.
Japan Federation of Bar Associations
May 7, 2009