JAPAN FACES NO LEGAL CONSTRAINTS TO ANTI-PIRACY

C O N F I D E N T I A L SECTION 01 OF 04 TOKYO 000072 C O R R E C T E D COPY - ADDED MCN'S 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 E.O. 12958: DECL: 01/13/2019 TAGS: ELTN EWWT MOPS PBTS PGOV PHSA PINR PREL PTER JA SUBJECT: JAPAN FACES NO LEGAL CONSTRAINTS TO ANTI-PIRACY DISPATCH: FOREIGN MINISTRY LEGAL ADVISOR REF: A. 8 JAN 2009 EMBASSY TOKYO DAILY ACTIVITY REPORT ¶B. 08 TOKYO 3405 ¶C. 08 TOKYO 3535 TOKYO 00000072 001.2 OF 004 Classified By: AMBASSADOR J. THOMAS SCHIEFFER, REASONS 1.4(B) and (D). ¶1. (C) Summary: Ministry of Foreign Affairs (MOFA) International Legal Affairs Bureau Director General Koji Tsuruoka told the DCM 8 January that Japan is working rapidly to determine how best to contribute in the near term to Horn of Africa (HOA) multi-lateral anti-piracy efforts. Tsuruoka also explained that the Japanese government is preparing new legislation should current law prove to be insufficient for Japan to participate effectively. Any resistance to an early dispatch of Japan Maritime Self-Defense Forces (JMSDF) assets is political, according to Tsuruoka, as there are no constitutional or collective self defense issues preventing it. Tsuruoka admitted, however, that current legislation only allows Japan to defend "Japanese interests" and may limit the scope of operations of its forces. Tsuruoka believes the JMSDF is most likely to lead the effort, given its relatively greater operational capability than the Japan Coast Guard (JCG). While Japan may face fewer legal obstacles than media reports and opponents of the dispatch may suggest, there are political and operational hurdles to clear before any proposed contribution becomes reality. End Summary. -------------- COMMENT: -------------- ¶2. (C) Tsuruoka makes a convincing legal case that Japan has the requisite legal authority to dispatch MSDF vessels to the Horn of Africa even without implementing legislation. Nevertheless, the speed with which Japan will be able to deploy assets to the Indian Ocean will be determined as much by political (Ref A) and operational (Ref C) factors as legal ones. The Prime Minister has given a clear direction to make a dispatch happen, but actual implementation has proven more complicated than he may have imagined. The latest wrinkle involves a debate within the Japanese government about whether the MSDF refueler assigned to support "counter-terrorism" operations under OEF can assist coalition ships engaged in the newly created anti-piracy combined task force (CTF-151). None of these hurdles are insurmountable, but as MOFA builds its legal case, the MSDF and JCG will need more time to iron out operational details and the ruling coalition to craft a political consensus. In the interim, there appears to be no reduction in political support for Japan taking part in the anti-piracy effort. End Comment. -------------- TOKYO 00000072 002.2 OF 004 Two Track Approach - Now and Later -------------- ¶3. (C) Tsuruoka told the DCM that the Japanese government is thoroughly considering what can be done under the current legal framework. He stressed that legal review of current legislation is ongoing and that while Japan understands the need to act as soon as possible, a particular deadline to completing its analysis did not exist. Tsuruoka said Japan is studying what additional legislation might be necessary above and beyond what the JMSDF is already enabled to do as the current law may not be "sufficiently broad" in light of existing threats. ¶4. (C) There is "plenty that could be done today," Tsuruoka stressed, emphasizing that Japan should take action sooner rather than later. While dealing with piracy is a learning process for Japan, he said the value of Japan contributing something and "bringing a presence" to the region was much higher than "debating the issue in government conference rooms." He did say, however, that in drafting of new anti-piracy legislation, Japan was facing challenges similar to other countries that did not specifically outlaw piracy. Tsuruoka highlighted that as with other nations affected by piracy, Japan was struggling with how best to contribute to international efforts as well as with which legal procedures to apply to pirates if they are captured. Tsuruoka said Japan would consult and coordinate with other countries as they create new legislation. -------------- No Constitutional Issues - They're Pirates! -------------- ¶5. (C) Tsuruoka dismissed Japanese media reports that a JMSDF anti-piracy dispatch and associated use of force raised serious consitutional questions. Simply because the aggressors in the matter are pirates, and therefore non-state actors, issues of the Japanese ban on collective self defense and the Article 9 prohibition on the use of force except in self-defense do not arise, Tsuruoka stressed. Actions taken against pirates are "not an act of war," Tsuruoka added, emphasizing that potential JMSDF anti-piracy actions would be for the purpose of law enforcement and securing the safety of Japanese interests from a "public enemy." He admitted, however, that it was not MOFA's responsibility to interpret the constitution, but that of the Cabinet Legislative Bureau. He said this constitutional interpretation was ongoing. ¶6. (C) While the debate in Japan continues over which force is the most appropriate to dispatch, once a legal decision has been made to send Japanese vessels Tsuruoka said the JMSDF was the most likely actor to operate so far away from TOKYO 00000072 003.2 OF 004 Japan. Tsuruoka noted that Prime Minister Aso could order the JMSDF to be dispatched with the law enforcement authority of the JCG, and that this would minimize concerns over the use of force or constitutionality. As the JCG's authority to arrest criminals was clearly defined in Japanese law, Tsuruoka said the JMSDF could be most effective operating under this legislation, at least for an initial dispatch. -------------- Whom, And What, To Protect -------------- ¶7. (C) Japanese media have raised questions in reporting on the HOA piracy problem as to exactly how much Japan could participate, once ships have been dispatched to the region. Japanese government interlocutors have also questioned (reftel) whether the JMSDF would be authorized, under current legislation to protect third country ships under pirate attacks. Noting that the main tasking of JMSDF vessels dispatched to HOA waters would be to protect Japanese interests, Tsuruoka said incidents where Japanese interests were less clear would have to be addressed on a case-by-case basis. He said that if a ship under attack was Japanese-flagged, Japanese-owned, or had Japanese citizens on board, there would be no legal issue with the JMSDF responding. (Note: Only a very small percentage of vessels that transit HOA waters are Japanese-flagged, but Japanese companies own over 2000 ships. End note.) In other instances, Tsuruoka pointed out, many vessels that pass through the HOA region are headed for Japan with Japanese-owned or Japanese-bound cargo, even though they may sail under a flag of convenience and with a non-Japanese crew. In instances such as these, Tsuruoka said Japan would have to evaluate a response if and when the situation arose. Describing it as a "learning process" for Japan, Tsuruoka said it would be impossible to "draw a line" as to what the JMSDF would and would not be able to protect until actual incidents occured. -------------- We're Working On It, Please Don't Push Us -------------- ¶8. (C) Japan clearly understands the need to contribute to the multi-lateral HOA anti-piracy effort and is working quickly to evaluate ways in which to participate, Tsuruoka said. He appreciated the fact that the U.S. has not "pushed" Japan on the issue, adding that it was better for Japanese counter piracy efforts to remain homegrown. He understood the urgency of the situation and said that at the appropriate time Japan would likely come to the U.S. and other countries for advice and assistance on the most appropriate ways to contribute. External pressure, in the current political TOKYO 00000072 004.2 OF 004 environment, would be counterproductive and could be used for political purposes by those in opposition parties who do not support Japan's anti-piracy countermeasures, according to Tsuruoka. SCHIEFFER