JAPAN ANTI-PIRACY UPDATE: LEGAL WRANGLING,

C O N F I D E N T I A L SECTION 01 OF 04 TOKYO 003535 SIPDIS STATE PM FOR AMBASSADOR MULL STATE PM/PPA FOR GLANCY, HOPKINS, FOSTER, AND O'KEEFE STATE PM/ISO FOR FREDERICK STATE EEB/TRA FOR JOHN BYERLY AND STEPHEN MILLER STATE FOR OES/OA ELIZABETH PHELPS E.O. 12958: DECL: 12/30/2018 TAGS: EFIS ELTN EWWT JA MOPS PBTS PGOV PHSA PINR PREL, PTER, SENV SUBJECT: JAPAN ANTI-PIRACY UPDATE: LEGAL WRANGLING, CONSIDERING EARLY DISPATCH REF: TOKYO 3405 Classified By: CHARGE D'AFFAIRES a.i. JAMES ZUMWALT, REASONS 1.4(B) and (D). -------------- Summary -------------- ¶1. (C) Piracy issues in the Horn of Africa (HOA) remain a topic of extensive interest in Japan, both in the media and among contacts in the Japanese government. Calls from major publications for Japan to "do something" have grown louder in recent weeks, driven in part by China's December 26 dispatch of naval vessels to take part in pirate interdiction in waters off of Somalia. Japanese government interlocutors say they are working on a new law to authorize the Japan Maritime Self-Defense Forces (JMSDF) increased operational flexibility, and add that plans are being evaluated to dispatch the JMSDF under current, albeit more limiting, legislation. Consideration is being given to both surface vessels and patrol aircraft. Legal experts acknowledge the challenges they are likely to face from opposition voices in the Diet, particularly with regard to rules of engagement and use of force, but are pushing ahead with a bill that could hopefully be enacted by late spring or early summer 2009. End Summary. -------------- Two Stage Response? -------------- ¶2. (C) With multiple daily articles tracking Japanese government debate, and editorials in conservative publications encouraging an immediate dispatch of the JMSDF to protect Japanese assets and citizens, media coverage of Horn of Africa piracy issues continues to be extensive. As reported reftel, Japan is working on draft legislation that, if passed, would enable the JMSDF to dispatch to waters off Somalia to protect shipping vessels, both Japanese and foreign, from pirate attacks. This general law is expected to be submitted to the Diet sometime in early 2009, with passage potentially in late spring or early summer. ¶3. (C) In the meantime, however, the Japanese government is urgently reviewing options for dispatching the JMSDF under existing legislation. Article 82 of the Self-Defense Forces Law authorizes the Minister of Defense, under direction from the Prime Minister, to order the JMSDF to "protect lives and property or maintain order at sea" when there is a "particular need" to do so. Post contacts emphasize, however, that this protection authority only applies to TOKYO 00003535 002 OF 004 Japanese citizens and assets that are under threat. ¶4. (C) Ministry of Defense (MOD) and Ministry of Foreign Affairs (MOFA) officials say that the JMSDF is "eager" to deploy to the region now, despite the limitations that would be imposed on their actions. MOFA National Security Policy Division Principal Deputy Director Shingo Miyamoto said the Japanese government is feeling significant pressure to take action sooner rather than later, driven in no small part by the recent dispatch by China of surface vessels to the HOA region. ¶5. (C) Prime Minister Aso has ordered Defense Minister Hamada to study specific measures that the JMSDF could undertake immediately. Several senior Japanese government interlocutors have suggested the possibility of deploying P-3Cs and are interested in finding locations in the HOA region from which they could operate, possibly in Oman or Djibouti. Officials in both MOFA and MOD tell the Embassy that a P-3C deployment would be more palatable from a domestic political perspective as it avoids the potential rules of engagement and collective security complications of a surface vessel dispatch. Japanese officials note, however, that making Status of Forces Agreement (SOFA) and related basing arrangements could slow such a dispatch. -------------- New Legislation - Currently Coordinating -------------- ¶6. (C) Toshiyuki Iwado, Cabinet Counsellor in the Cabinet Secretariat's Headquarters for Ocean Policy, told the Embassy it is essential for Japan to draft a new law that not only expands the flexibility of the JMSDF, but one that clearly defines pirate activities. Iwado, whose team is coordinating the creation of the new legislation, said his goal is to make sure that what gets sent forward to the Diet will get past the scrutiny of opposition party members who have expressed resistance to a dispatch. Japan does not currently have a domestic law specifically outlawing piracy, but the law which the Japanese government is drafting will be based on the rights defined in Article 105 of the UN Convention on the Law of the Sea (UNCLOS). ¶7. (C) Iwado said his team was working toward submitting the draft legislation for Cabinet approval in January 2009, but admitted that due to interagency coordination challenges this might slip to mid-late February. With this time frame for submission, he speculated the earliest the law could be enacted would be May or early June 2009. Iwado said there is a general appreciation within both the Liberal Democratic Party (LDP) and Democratic Party of Japan (DPJ) that Japan TOKYO 00003535 003 OF 004 needs to be involved in countering piracy. He noted, however, that coming to bipartisan agreement on rules of engagement and use of force, particularly with regard to interdicting pirates on behalf of third country-flagged vessels and nationals, will likely be a significant challenge. The DPJ in particular, he added, contains many different points of view on the details. ¶8. (C) Iwado said he is working to create a law that would authorize maximum JMSDF action against pirates worldwide, not only in the HOA region. He stressed, however, that the Diet will not tolerate a general law that does not also define as piracy actions by environmentalist groups such as Sea Shepherd. Iwado anticipated this being a "real headache" during Diet deliberations. He recognized Japan's handling of this aspect will be closely watched abroad. -------------- JCG "Just a Law Enforcement Agency" -------------- ¶9. (C) As other contacts have indicated (ref),Japan Coast Guard (JCG) Captain Hide Nanao, Director of the JCG's International Affairs and Crisis Management Division, told Embassy Tokyo recently the JCG is ready and willing to dispatch to the HOA region. Nanao repeated, however, that the JCG simply does not have the surface ship assets capable of deploying at such a great distance from Japan nor the flexibility to deploy significant resources abroad given the JCG's responsibilities in Japan's territorial waters and EEZ. (Note: As reported reftel, we suspect the resistance shown by the JCG may, in part at least, be an attempt to secure greater resources. End note.) ¶10. (C) Nanao said, however, that the JCG is studying how it could potentially contribute. While emphasizing that the JCG is "just a law enforcement agency," he noted the JCG's experience in boarding of suspect vessels and in interdicting the flow of illegal weapons and drugs. Nanao said JCG officers could potentially deploy with the JMSDF to assist in the arrest and detention of pirates, but added the JCG and JMSDF currently do not train together. He asserted that even beginning training activities would first require the law to be passed. For this reason, the two forces would need "several months" of training to prepare, even after passage of authorizing legislation. -------------- Comment -------------- ¶11. (C) Japan is well aware that it is the only member of the TOKYO 00003535 004 OF 004 G-7 that has yet to take concrete action in addressing HOA piracy problems. The Japanese government remains engaged in the discussion over what to do over anti-piracy and we expect it to be an active participant in the forthcoming contact group meeting(s). In addition, Japan feels even more pressure now to "do something" given China's recent dispatch of its own surface vessels. Although there are indications of some Japanese government resistance to rapid action by the JMSDF, even from within MOD, the majority of our interlocutors want to contribute now. ZUMWALT