Maritime Law Enforcement in Japan

Home , Japan Coast Guard, Law enforcement in Japan

korean journal of international and comparative law 6 (2018) 117–133 brill.com/kjic

Chie Kojima Professor of International Law, Faculty of Law, Musashino University, Tokyo, Japan [email protected]

Abstract

This paper discusses the roles and functions of the Japan Coast Guard and Japan Maritime Self-Defense Force in maritime law enforcement. It analyzes practices of Japan’s maritime law enforcement in the prevention and punishment of piracy and armed robbery against ships, illegal, unreported and unregulated fishing, marine pollution, illegal immigration, and drug trafficking. It also examines cases of collaboration among different agencies at the domestic, regional and international levels.

Keywords maritime law enforcement – Japan – United Nations Convention on the Law of the Sea – piracy – iuu fishing – marine pollution – illegal immigration – drug trafficking

1 Introduction

The role of the coast guard has become increasingly important in safeguarding peace, good order and security of coastal States from maritime security threats such as illegal fishing, marine pollution, smuggling of goods and persons, illicit trafficking of drugs, piracy and armed robbery against ships. These threats are of transnational character: they involve foreign vessels and occur over the border of territorial seas of coastal States and the high seas. Accordingly, the 1982 United Nations Convention on the Law of the Sea (unclos)1 not only allows coastal States to have enforcement jurisdiction in the territorial sea and

1 United Nations Convention on the Law of the Sea, adopted on December 10, 1982, entered into force on November 16, 1994, 1833 unts 3 [unclos].

© koninklijke brill nv, leiden, 2018 | doi:10.1163/22134484-12340109Downloaded from Brill.com09/27/2021 01:40:29PM via free access 118 Kojima contiguous zone, but also stipulates that a warship and military aircraft as well as “any other duly authorized ships or aircraft clearly marked and identifiable as being on government service”2 can have a right to visit a foreign ship on the high seas which is involved in piracy, slave trade, unauthorized broadcasting, a ship without nationality, and a ship flying a false foreign flag or refusing to show its flag. In Japan, the Japan Coast Guard (jcg) takes the primary responsibility in maritime law enforcement, which is complemented by the Japan Maritime Self-Defense Force (jmsdf). This paper first introduces the roles and functions of jcg and jmsdf in maritime law enforcement as well as their legal bases. Second, it analyses practices of maritime law enforcement conducted by these organizations in the prevention and punishment of piracy and armed robbery against ships, illegal, unreported and unregulated fishing, marine pollution, illegal immigration, and drug trafficking. Lastly, it explores domestic, regional and international cooperation, namely collaborations between jcg and jmsdf and regional agreements establishing inter-agency cooperation in strengthening law enforcement capacities of States.

2 Roles and Functions of Japanese Maritime Law Enforcement Organizations

2.1 The Japan Coast Guard (jcg) jcg was established in 1948 in order to engage in law enforcement activities at sea. After World War ii, Japan encountered problems of illegal transport of goods and illegal entry of people. Hence, Japan established offices to control these problems based on a memoranda on the suppression of illegal entry into Japan concluded with the Allied Forces.3 Due to the necessity to control and administer matters concerning maritime safety and security in a uniform way, Japan enacted the Japan Coast Guard Act4 (hereinafter referred to as “jcg Act”), which established jcg in the present form. The roles and functions of jcg are modeled after those of the United States Coast Guard.

2 unclos Art. 110(5). 3 scapin-1015: Suppression of Illegal Entry into Japan 1946/06/12; see R. Murakami & M. Mori, ‘Kaijōhoanchō-hō no seiritsu to gaikokuhōsei no keijyu’ [Enactment of the Japan Coast Guard Act and Reception of Foreign Legislation], in S. Yamamoto (Ed.), Kaijōhoanhōsei: Kaiyōhō to kokunaihō no kōsaku [Maritime Safety Legislation: Intersection of the Law of the Sea and Domestic Law], 26 (Sanseidō, 2009). 4 Act No. 28 of 27 April 1948 [jcg Act].

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Article 1 of the jcg Act stipulates that it establishes jcg for the purpose of protecting life and property and for preventing, detecting and suppress- ing violations of law at sea. Tasks of jcg are to ensure safety and order at sea by performing the duties concerning enforcement of laws and regulations at sea, maritime search and rescue, prevention of maritime pollution, prevention and suppression of crimes at sea, detection and arrest of criminals at sea, regulation of vessels’ traffic at sea, services concerning hydrography and aids to navigation, other services for ensuring maritime safety and the services concerning matters incident thereto.5 With regard to crimes committed at sea, Coast Guard officers and assistant Coast Guard personnel perform the duties of judicial police officials as provided by the Code of Criminal Procedure.6 It is construed that a jcg officer can act as a judicial police official against all criminal suspects including those who violated administrative laws and regulations.7 In order to achieve these tasks, jcg officers may direct the shipmaster or any other person commanding a vessel instead of the shipmaster to produce the ship’s official papers which are to be kept aboard under law and order; stop, visit and inspect the vessel for the purpose of ascertaining her identity, port of registry, name of the shipmaster, last port or place of departure, port or place of destination, nature of her cargo, or whether she is loaded or not, and all other particulars about vessels, cargo and navigation which are deemed important.8 jcg officers may also question the crew and passengers on matters necessary for the performance of his duties.9 jcg officers may also take coercive measures in emergency cases where they witness a crime being committed at sea, when human life or body is likely to be endangered, or when property is likely to be seriously damaged in a dan- gerous situation such as natural disaster, collapse of a structure or explosion of an explosive. Those measures include stopping a vessel, moving a vessel to a designated place, allowing, restricting or prohibiting the disembarkation of persons on board a vessel, allowing, restricting, or prohibiting the discharge of the cargo, restricting or prohibiting traffic, and stopping any act that is likely to endanger human life or body, or seriously damage property at sea.10

5 jcg Act, Art. 2(1). An unofficial translation of the jcg Act is available on the website of the Nippon Foundation, available at https://nippon.zaidan.info/seikabutsu/2001/00500/ contents/00021.htm. 6 jcg Act, Art. 31. Art. 39(3) of the Code of Criminal Procedure, Act No. 131 of 1948, defines judicial police official as “both a judicial police officer and a judicial constable”. 7 Murakami & Mori, supra note 3 at 29. 8 jcg Act, Art. 17(1). 9 Ibid. 10 Ibid. Art. 18.

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With regard to the use of force, Article 20 of the jcg Act stipulates that, when it is necessary to stop the passage of a foreign vessel navigating in the territorial sea, the jcg officers may use arms by applying mutatis mutandis Article 7 of the Police Duties Execution Act.11 Article 7 reads:

In the event that there are reasonable grounds to deem it necessary for the apprehension of a criminal or the prevention of a criminal’s escape, for self-protection or the protection of others, or for suppression of resis- tance to the execution of his or her official duty, a police official may use a weapon within the limits judged reasonably necessary in the situation.

The 2001 revision of the Japan Coast Guard Act added paragraph 2 to Article 20 that allows jcg officers to use arms directly against foreign vessels when they refuse to stop and resist inspection. To rely on this clause, jcg must demonstrate: (1) the passage of the foreign vessel in question in the internal waters and territorial sea of Japan is not innocent in accordance with Article 19 of unclos (2) there is a probability that the same act will be repeated in the future if the navigation in question is left uncontrolled (3) there is a reasonable doubt that the navigation in question is related to the preparation necessary to commit a serious crime on the territory of Japan,12 and (4) navigation must be temporarily suspended to allow the Coast Guard inspection in order to prevent the execution of a serious crime.

2.2 The Maritime Self-Defense Force (jmsdf) jmsdf exists for the purpose of protecting peace and independence of Japan, maintaining security, and when necessary, maintaining good order of the country.13 Under the Japan Self-Defense Force Act (hereinafter referred to as “sdf Act”), jmsdf may take necessary measures at sea when there is a special need to protect life or property and to maintain security at sea. In addition to the sdf Act, individual laws such as the 2009 Act on the Penalization of Acts of

11 Act No. 136 of 12 July 1948. 12 A serious crime means a crime which amounts to death penalty, life imprisonment, or imprisonment of more than 3 years. 13 Act No. 165 of 1954 [sdf Act], Art. 3(1).

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Piracy and Measures against Acts of Piracy (hereinafter referred to as “Piracy Act”)14 enable jmsdf to react against maritime security threats. Article 82 of the sdf Act stipulates that jmsdf may take necessary actions at sea when there is a necessity to protect life or property and to maintain security at sea. In such cases, jmsdf engages in law enforcement activities at sea in accordance with rules concerning coercive actions and the use of force under the jcg Act and the Police Duties Execution Act.15 The Piracy Act provides measures to be taken by the Self-Defense Forces of Japan against acts of piracy in emergency situations. Article 2 of the Act defines acts of piracy as offences committed for private ends by any person on board a ship (except warships and ships owned or operated by a State) on the high seas (including the eez) or in the territorial sea or internal waters of Japan. The offences under Article 2 comprise seizing another navigating ship, robbing property on board the ship, abducting persons on board the ship, demanding a third person to deliver property by taking hostages, and attempting to commit acts of piracy. Articles 3 and 4 of the Act penalize these offences: ranging from imprisonment of less than three years, life imprisonment to the death penalty. Under the Piracy Act, both jcg and jmsdf are authorized to use weapons if the person committing acts of piracy did not obey their orders and there is a reasonable reason to believe that no other means exists.16

2.3 Legislation Stipulating Enforcement Measures at Sea Not every Japanese law contains provisions related to law enforcement measures at sea, such as provisions on the inspection of a ship and measures to stop a ship. Examples of laws without provisions concerning enforcement measures include the Act on the Prevention of Collision at Sea17 and Maritime Traffic Safety Act.18 If relevant laws provide no specific enforcement measures, law enforcement procedures must be taken in accordance with a series of laws including the jcg Act, the sdf Act, and the Police Duties Execution Act. Japanese laws explicitly stipulating enforcement measures at sea include the Act on Navigation of Foreign Ships through the Territorial Sea and Internal Waters,19 Fisheries Act,20 and Act on the Exercise of the Sovereign Right for

14 Act No. 55 of 24 June 2009 [Piracy Act]. 15 sdf Act, Art. 93. 16 Piracy Act, Arts. 6 and 8. 17 Act No. 62 of 1 June 1977. 18 Act No. 115 of 3 July 1972. 19 Act No. 64 of 11 June 2008. 20 Act No. 267 of 15 December 1949.

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Fishery in the Exclusive Economic Zone.21 The Act on Navigation of Foreign Ships through the Territorial Sea and Internal Waters authorizes jcg officers to visit and inspect a foreign vessel and question the captain and crew of the vessel.22 The Fisheries Act stipulates that authorized fisheries supervising officers may act as law enforcement officers as provided under the Code of Criminal Procedure.23 The Act on the Exercise of the Sovereign Right for Fishery in the Exclusive Economic Zone provides that, in the event that a vessel is seized or the master of a vessel is arrested for a violation of the Act, a person who is acting as a judicial police officer must notify the master of the vessel of the procedure concerning prompt release following posting of a bond or certifying that a bond will be posted.24 The following section examines practices of maritime law enforcement based on these different laws.

3 Japan’s Maritime Law Enforcement Practices

Statistics indicate that jcg identified vessels involved in maritime crimes in 9,715 total cases in 2016.25 jcg conducted inspections on a total number of 29,986 Japanese vessels and 5,256 foreign vessels. 5,211 foreign vessels were inspected in Japan’s internal waters, 35 foreign vessels in the territorial sea, and 10 foreign vessels in the Exclusive Economic Zone (eez).26 The following sec- tions analyze Japan’s practices of maritime law enforcement in the prevention and punishment of piracy and armed robbery against ships, illegal, unreported and unregulated fishing, marine pollution, illegal immigration by sea, and drug trafficking by sea.

3.1 Piracy and Armed Robbery against Ships Since pirates attacked a chemical tanker owned by a Japanese company off the coast of Somalia on 28 October 2007, the Japanese government and relevant

21 Act. No. 76 of 14 June 1996. 22 Act on Navigation of Foreign Ships through the Territorial Sea and Internal Waters, Art. 6. 23 Fisheries Act, Art. 74(5). 24 Act on the Exercise of the Sovereign Right for Fishery in the Exclusive Economic Zone, Art. 24(1). 25 The 9,715 cases are divided in 5,056 cases for violations of maritime law, 2,483 cases for violations of fishery law, 8 cases for violations of immigration law, 89 cases for violations of arms/drug control law, 981 cases for violations of marine environmental law, 783 cases for violations of criminal law, and 315 cases for violations of other laws. Statistics on maritime crimes as intercepted by the Japanese Coast Guard, available at http:// www.kaiho.mlit.go.jp/doc/hakkou/toukei/toukei.html [available only in Japanese]. 26 Ibid.

korean journal of international and comparativeDownloaded law from 6 (2018)Brill.com09/27/2021 117–133 01:40:29PM via free access Maritime Law Enforcement in Japan 123 agencies raised questions as to difficulties for jcg and jmsdf to react against Somali Piracy under the jcg Act and sdf Act. In 2009, Japan enacted the Piracy Act, which enabled jmsdf to take measures against piracy for a longer period than the enforcement action allowed under the sdf Act. The Piracy Act also enabled jmsdf to protect foreign vessels navigating on the high seas attacked by foreign pirates. This Act, however, does not allow jmsdf officers to act as judicial police officers; jcg officers are therefore on board jmsdf vessels in order to arrest suspects, investigate and collect evidence for the offences committed under the Piracy Act.27 Those violating the Act receive sentences ranging from imprisonment of less than three years, life imprisonment to the death penalty.28 Although the number of piracy attacks off the coast of Somalia and in the Gulf of Aden decreased significantly, two jmsdf vessels with eight jcg officers on board each vessel patrol the area and escort commercial vessels as of 2017. From the enactment of the Piracy Act to September 2017, jmsdf escorted 3,809 vessels in the areas of the Gulf of Aden and off the coast of Somalia – 18 vessel flying the flag of Japan, 674 vessels flying the flag of foreign States and operated by Japanese companies (only 49 vessels had Japanese crew on board), and 3,117 vessels flying the flag of foreign States and operated by foreign companies.29

3.2 Illegal, Unreported and Unregulated Fishing Illegal fishing by Japanese nationals continues to be one of the frequently controlled crimes. The number of illegal fishing cases controlled by jcg amounted to 2,448 in 2015. Such illegal fishing often takes place as an organized crime. The Fisheries Act criminalizes fishing without the right to fish by a prison sentence of not more than 3 years or fining of not more than 2,000,000 yen.30 As to illegal fishing by foreign fishing vessels, the Act on Regulation of Fishing Operation by Foreign Nationals31 prohibits foreign nationals and foreign corporations established by foreign laws from engaging in fishery, gathering and taking of aquatic plants and animals, and preparatory activities for

27 The Piracy Act stipulates that the offences comprise seizing another navigating ship, robbing property on board the ship, abducting persons on board the ship, demanding a third person to deliver property by taking hostages, and attempting to commit acts of piracy (Art. 2). 28 Piracy Act, Arts. 3 and 4. 29 Statistics are available at http://www.mod.go.jp/js/Activity/Anti-piracy/anti_activity_pb .htm [only in Japanese]. 30 Fisheries Act, Art. 138. 31 Act No. 60 of 14 July 1967.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 117–133 01:40:29PM via free access 124 Kojima fishing or exploration in the territorial sea of Japan.32 Fishery means gathering, taking or culture of aquatic plants and animals.33 Gathering and taking of aquatic plants and animals include search and collection of fish, preserva- tion or processing of catches, and transportation or supply of catches or their products to vessels.34 Transshipment of catches from a foreign fishing vessel to another foreign or Japanese vessel is prohibited in the territorial sea of Japan.35 Japanese vessels are prohibited from landing or transshipment of the catches, which are transshipped from foreign vessels outside the territorial waters of Japan, in the Japanese ports.36 jcg officers enforce the above Act at sea based on their authorities given under jcg Act. Under the Fisheries Act, fisheries supervisors or fisheries supervising officers, who are appointed by the Agriculture, Forestry and Fisheries Minister or Prefectural Governors, are also entitled to visit fishing grounds, boats, places of business, offices, and warehouses, to inspect the situations or documents, or to ask questions to the persons concerned.37 When specially designated, they can act as juridical police officers in accordance with the Code of Criminal Procedure.38 The Act on Regulation of Fishing Operation by Foreign Nationals penalizes those who fished in the territorial sea of Japan against its rules by a prison sentence of not more than 3 years or fining of not more than 30,000,000 yen, or both.39 Captains who engaged in the illegal transshipment of catches against the above rules can be punished by a prison sentence of not more than 3 years or fining of not more than 4,000,000 yen, or both.40 With regard to the Exclusive Economic Zone (eez), the 1996 Act on the Exercise of Sovereign Rights over Fishing and Other Activities in the Exclusive Economic Zone41 stipulates that foreign nationals are prohibited from engaging in the fishery or the harvest of aquatic animals and plants in the eez of Japan, unless they obtain the permission of the Minister of Agriculture, Forestry and Fisheries.42 Similarly, if foreign nationals intend to carry out the

32 Ibid. Art. 3. Legitimate foreign residents in Japan designated by the Minister of Agriculture, Forestry and Fisheries are excluded. 33 Ibid. Art. 2(2). 34 Ibid. Art. 2 (3). 35 Ibid. Art. 6(1) and (2). 36 Ibid. Art. 6(3). 37 Fisheries Act, Art. 74(3). 38 Ibid. Art. 74(5). 39 Act on Regulation of Fishing Operation by Foreign Nationals, Art. 8-2. 40 Ibid. Art. 9. 41 Act No. 76 of 14 June 1996. 42 Ibid. Art. 5.

korean journal of international and comparativeDownloaded law from 6 (2018)Brill.com09/27/2021 117–133 01:40:29PM via free access Maritime Law Enforcement in Japan 125 harvest of aquatic animals and plants in the eez of Japan for experiment and research, engage in acts that are incidental to the harvest or cultivation of aquatic animals and plants,43 or engage in a survey, they are required to obtain the authorization of the Minister of Agriculture, Forestry and Fisheries.44 jcg officers and fisheries supervisors who can act as juridical police officers enforce these rules in the eez based on the jcg Act and Fisheries Act respectively. In the Japanese eez, vessels from the neighboring States engage in fisheries with the permission from the Minister of Agriculture, Forestry and Fisheries. The areas of their operations are stipulated under the bilateral fisheries agreements with the Republic of Korea,45 People’s Republic of China,46 and Russian Federation47 respectively. The bilateral agreement with the Russian Federation (then ussr) establishes a committee which meets once a year and decides detailed conditions for fishing including catch quotas.48

3.3 Marine Pollution jcg patrols the coastal area in order to enforce relevant laws including the Act on the Prevention of Marine Pollution and Maritime Disaster49 (hereinafter referred to as the “Marine Pollution Act”), Waste Management and Public Cleansing Act,50 and Water Pollution Prevention Act.51 Since Japan has a large coastal area, jcg also calls for cooperation by volunteers and has set up a dial number for emergency notification from the citizens. According to the statistics provided by jcg,52 the number of cases of marine pollution was 437 in

43 The Act defines that acts that are incidental to the harvest or cultivation of aquatic animals and plants include the search for fish, collection of fish, storage or processing of fish catches, transport of fish catches or products made therefrom, supply to vessels and other similar acts. Ibid. Art. 2(2). 44 Ibid. Arts. 8, 9 and 10. 45 Agreement on Fisheries between Japan and the Republic of Korea, signed on 28 November 1998, entered into force on 22 January 1999. 46 Agreement on Fisheries between Japan and the People’s Republic of China, signed on 11 November 1997, entered into force on 1 June 2000. 47 Agreement between the Government of Japan and the Government of the Union of Soviet Socialist Republics on Mutual Relations in the Field of Fishing off the Sea Frontages of Both Countries, signed on 7 December 1984, entered into force on 14 December 1984, 1402 unts 273. 48 Ibid. Art. 6. 49 Act No. 136 of 25 December 1970 [Marine Pollution Act]. 50 Act No. 137 of 1970. An English translation is available at http://www.env.go.jp/en/laws/ recycle/01.pdf. 51 Act No. 138 of 25 December 1970. 52 The statistics are available at http://www.kaiho.mlit.go.jp/info/kouhou/h29/k20170215/ k170215-1.pdf [available only in Japanese].

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2016, which was divided in 67 percent of oil pollution, 25 percent of dumping, and others. Most cases occurred in the internal and territorial waters of Japan. Foreign vessels were involved in 12 out of 437 marine pollution cases. Although the Marine Pollution Act does not explicitly stipulate its scope of application, the 1996 Act on Exclusive Economic Zone and Continental Shelf 53 serves as the basis for the application of the Japanese laws concerning the protection of the marine environment in the eez of Japan. The 1996 Act stipulates that the Japanese laws apply to the protection and conservation of the marine environment in the eez and the continental shelf.54 jcg may therefore control foreign vessels navigating in the territorial sea and eez of Japan, but foreign vessels which violated any of the above Japanese laws must be released upon the posting of a bond in accordance with unclos.55 If any foreign vessel violating international standards and regulations on marine pollution is identified on the high seas, jcg notifies the flag State. Since the Marine Pollution Act does not provide the port state jurisdiction based on Article 218 of unclos, Japan does not exercise this right despite the necessity.56 The Marine Pollution Act prohibits discharge of oil57 and noxious liquid substances58 as well as dumping of wastes into the sea from ships, offshore facilities and aircraft. Based on this Act, jcg keeps necessary surveillance on conditions of marine pollution around the coastal area of Japan.59 In cases of significant marine pollution, the Commandant of jcg receives notification from the shipmaster,60 upon which the Commandant notifies the head of the local government in the polluted areas of the conditions of the pollution.61 The

53 Act No. 74 of 1996. 54 The Cabinet Order of 26 June 1996 exempts foreign vessels in the eez of Japan, which are not engaged in the exploitation of the continental shelf, from the application of certain rules and regulations on marine pollution. 55 Marine Pollution Act, Art. 65. 56 K. Yakushiji, ‘Kaiyō Osen’ [Marine Pollution], in S. Yamamoto (Ed.), Kaijōhoanhōsei: Kaiyōhō to kokunaihō no kōsaku [Maritime Safety Legislation: Intersection of the Law of the Sea and Domestic Law], 349 (Sanseidō, 2009). 57 “Oil” includes crude oil, heavy oil, lubricating oil, light oil, kerosene, volatile oil and other oils and oily mixture containing these oils. See Marine Pollution Act, Art. 3(2). 58 “Noxious liquid substances” includes liquid substances other than oil, which is carried as liquid cargo in bulk by a ship, and water ballast, tank washing water and other unnecessary liquid substances which has been generated in a ship containing these substances (excluding such substances as liquid petroleum gas and other substances that are not liquid at the normal temperature and excluding liquid substances loaded on a ship for the purpose of throwing and combustion for disposal in the sea area). See Marine Pollution Act, Art. 3(3). 59 Ibid. Art. 45(1). 60 Ibid. Art. 38. 61 Ibid. Art. 45(2).

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Marine Pollution Act penalizes those who discharged oil or noxious liquid substances against the Act by fining of not more than 10,000,000 yen.62

3.4 Illegal Immigration Japan faced the problem of illegal arrival of boat people when thousands of Chinese and Vietnamese Chinese arrived in Nagasaki by boat in 1989. The number of illegal entry by sea continued to increase until 1997 as an organized crime. The number of illegal entry by sea decreased significantly afterwards due to strengthened measures taken under the 2004 Act on Assurance of Security of International Ships and Port Facility,63 which was enacted in order to implement the 2002 amendment of the 1974 International Convention for the Safety of Life at Sea.64 The Act obliges all vessels navigating from foreign countries and intending to enter into the Japanese ports to notify their security information 24 hours in advance, requests them to provide additional information, stop and inspect the vessels, and question the crews when necessary. If the vessel refuses to provide requested information or receive inspection, or when the Japanese authorities consider that the vessel would cause danger to the port facilities and there are no other means, the entry into port of that vessel can be denied. The number of illegal entry by sea is counted as 24 in 2012, 18 in 2013, 3 in 2014, 4 in 2015, and 3 in 2016.65 The nationalities of those who were arrested are China, Republic of Korea, Myanmar, Vietnam, and Indonesia. With regard to the enforcement of the Immigration Control and Refugee Recognition Act (hereinafter referred to as “Immigration Act”)66 in the territorial sea, a question occurs as to whether the Japanese authorities can stop and inspect a foreign vessel, which enjoys the right to innocent passage in the territorial sea of Japan, for the purpose of preventing violations of the Immigration Act. It can be construed that, if a person who intends to enter Japan illegally hides in the vessel exercising the right of innocent passage, this fact itself may constitute a violation of the Immigration Act.67 However, there is a practice that law enforcement is refrained against the person who violates the Immigration Act as long as the vessel in which he or she is on board fulfills

62 Ibid. Art. 8-2. 63 Act No. 31 of 14 April 2004. 64 International Convention for the Safety of Life at Sea, 1 November 1974, 1184 unts 3. 65 Japan Coast Guard, Heisei 28-nen niokeru mitsuyu oyobi mikkō torishimari jyōkyō nitsuite [Report on the Control of Smuggling of Goods and Stowaways in 2016], 18 January 2017, available at http://www.kaiho.mlit.go.jp/info/kouhou/h29/k20170118/k170118-2.pdf [available only in Japanese]. 66 Cabinet Order No. 319 of 4 October 1951 [Immigration Act]. 67 H. Otsuka, ‘Mikkō’ [Stowaways], in S. Yamamoto (Ed.), Kaijōhoanhōsei: Kaiyōhō to kokunaihō no kōsaku [Maritime Safety Legislation: Intersection of the Law of the Sea and Domestic Law], 246–247 (Sanseidō, 2009).

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 117–133 01:40:29PM via free access 128 Kojima the conditions for innocent passage in the light of the object and purpose of unclos.68 The 1996 Act on Territorial Sea and Contiguous Zone69 establishes the contiguous zone in order to prevent and punish infringement of customs, fiscal, immigration or sanitary laws and regulations within the Japanese territory in accordance with Article 33(1) of unclos. It is clear that jcg can arrest, in the contiguous zone, those who committed crimes against the Immigration Act on the Japanese territory, but it is controversial whether jcg may enforce the Act in the contiguous zone for preventing crimes to be committed on the territory of Japan.70 The general view is that if the vessel carrying a person who violated the Immigration Act by entering Japan illegally navigates from the territorial sea to the contiguous zone, jcg may take enforcement measures.71 If the vessel is navigating in the contiguous zone towards the territorial sea, it is construed that the person has not yet committed the crime of illegal entry and therefore jcg cannot take law enforcement actions, such as seizure of the vessel or goods on board the vessel and arrest the suspects.72 If a suspicious vessel was found in the contiguous zone, jcg may only inspect, warn or order the vessel to leave the contiguous zone. However, the Immigration Act provides that, Article 2 of the Penal Code, which stipulates the application of the Code to anyone who commits certain crimes outside the territory of Japan, applies to offences such as the transportation of collective stowaways, preparation of vessels or aircraft for criminal use, and production of fraudulent documents produced as a passport. If these criminal acts have been identified in the territorial sea, jcg may take enforcement measures based on relevant provisions of the Immigration Act for punishment.73

3.5 Drug Trafficking One of the most popular means of smuggling of drugs nowadays is that a Japanese fishing vessel or small pleasure boat involves a transaction of illegal drugs with a foreign vessel on the high seas and unloads these drugs into a local

68 Ibid. at 247. 69 Act No. 73 of 14 June 1996. 70 Otsuka, supra note 67 at 247–248. 71 Ibid. at 248. 72 Ibid. 73 Ibid. at 248–249.

korean journal of international and comparativeDownloaded law from 6 (2018)Brill.com09/27/2021 117–133 01:40:29PM via free access Maritime Law Enforcement in Japan 129 port or coast in Japan.74 Such cases are increasing due to the rapid development of telecommunication and technology. In 2016, jcg confiscated 1,314 kg of illegal drugs brought by sea, which was the largest amount in the past.75 A question arises as to whether the offence of importing illegal drugs should be punished in accordance with the Customs Act76 when the vessel entered the territorial sea of Japan.77 This controversy has been settled since the Supreme Court of Japan rendered a decision in 2001 that the offence of illegally importing antihypnotic agent is committed at the moment when antihypnotic agent is unloaded from a vessel on the territory of Japan.78 The practice of law enforcement follows this decision and law enforcement officials mainly con- trols Japanese vessels when they enter Japanese ports. However, if any illegal drugs were found on a foreign vessel as a consequence of enforcing the 2008 Act on Navigation of Foreign Ships through the Territorial Sea and Internal Waters,79 jcg can capture the vessel and arrest the persons on board the vessel. Another question is related to whether jcg can arrest the foreign vessel in the contiguous zone when there is evidence proving that a Japanese vessel in the territorial sea was involved in the trafficking of drugs with that foreign vessel. The general view adopted in the Japanese maritime law enforcement practice is that jcg cannot arrest the suspects or seizure that foreign vessel but only inspect, warn or order the vessel to leave the contiguous zone.80 Unlike the Immigration Act, the Customs Act does not have a provision related to the extraterritorial application of the Penal Code regarding the punishment of those who committed crimes outside the territory of Japan. However, the Stimulants Control Act, Narcotics and Psychotropics Control Act, Cannabis Control Act, and Opium Control Act have provisions for the

74 K. Kitagawa, ‘Mitsuyu to Sohikihanzai’ [Smuggling and Organized Crimes], in S. Yama moto (Ed.), Kaijōhoanhōsei: Kaiyōhō to kokunaihō no kōsaku [Maritime Safety Legislation: Intersection of the Law of the Sea and Domestic Law] 253–254 (Sanseidō, 2009). 75 Japan Coast Guard, Heisei 28-nen niokeru mitsuyu oyobi mikkō torishimari jyōkyō nitsuite [Report on the Control of Smuggling of Goods and Stowaways in 2016], supra note 65. 76 Act No. 61 of 2 April 1954. 77 Kitagawa, supra note 74 at 254. 78 Judgment of 29 September 1983, 37(7) Saikō Saibansho Keiji Hanreishū [Supreme Court Reports (criminal cases)] 1110–1137. 79 Act No. 64 of 11 June 2008. The Act explicitly prohibits certain manners of foreign vessels’ navigation in the Japanese territorial waters. They are prohibited from stopping, anchor- ing, mooring, or hovering in the territorial sea and internal waters of Japan except in cases where they have legitimate reasons such as force majeure, distress, or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress. 80 Kitagawa, supra note 74 at 263.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 117–133 01:40:29PM via free access 130 Kojima punishment of those who committed relevant crimes outside the Japanese territory. This can be understood in a way that, if a foreign vessel is involved in any of the acts criminalized under these four Acts outside the territorial sea of Japan, the jcg may seizure or arrest the vessel.81

4 Cooperation among Japanese Maritime Law Enforcement Organizations and Cooperation at Regional/International Levels

4.1 Domestic Cooperation This section examines cases where jcg is unable to take effective actions against foreign vessels violating relevant Japanese laws and therefore it must collaborate with jmsdf.82 Such cases are divided into three scenarios. First, jcg and jmsdf cooperate when they identify a foreign warship navigating in a manner that poses threats to peace and security of Japan. The Self-Defense Forces are allowed to take necessary actions under the 1996 and 2015 Cabinet Decisions in cases where foreign submarines remain submerged and do not fly a flag, as well as against foreign warships in the territorial sea and internal waters of Japan whose navigation is considered to be non-innocent under international law.83 Second, jmsdf may take necessary actions against so-called suspicious vessels ( fushin-sen).84 On 23 March 1999, two fishing vessels were found by jmsdf which were suspiciously hovering within the internal waters off Noto Peninsula. The vessels disguised themselves by having Japanese fishing boat names but they were equipped with unnecessary antennas.85 The information was shared with jcg and jcg’s patrol boats started chasing the vessels. A jmsdf’s escort vessel was chasing the vessels simultaneously, but it required

81 Ibid. at 264–265. 82 J. Okuzono, ‘Kaijyōhoanchō: Kaijyōjieitaikankei no henka to kaizokutaishohō’ [The Coast Guard Agency: Changing Relationship with the Japan Maritime Self-Defense Force and the Piracy Act], in J. Tsuruta (Ed.), Kaizokutaishohō no kenkyu [Study on the Piracy Act], 182 (Yūshindo-kōbunsha, 2016). 83 The explanation note is available at http://www.cas.go.jp/jp/gaiyou/jimu/pdf/gaikoku gunkantaisho.pdf [available only in Japanese]. 84 The term “suspicious vessels” does not appear in any Japanese law, but it is widely used in government documents and by the media. Suspicious vessels are often disguised with vessel names, flags, or unnecessary equipment on board and navigate in a suspicious manner. The navigation of these vessels is considered to be non-innocent in practice. 85 A. Kanehara, The Japanese Legal System concerning Innocent Passage of Foreign Vessels, 42 Japanese Annual of International Law 90 (1999) at 92.

korean journal of international and comparativeDownloaded law from 6 (2018)Brill.com09/27/2021 117–133 01:40:29PM via free access Maritime Law Enforcement in Japan 131 an order from the prime minister to take action instead of jcg. After the order was issued late in the evening of March 24, the pursuit was continued by jmsdf. The jcg patrol boats used warning shots but both jcg and jmsdf could not take effective measures to stop the vessels. The suspicious vessels eventually escaped from the Japanese waters. In this incident, the Japanese authorities chased the vessels on the grounds that they refused inspection required under Article 74(3), of the Fishery Act.86 This incident precipitated the adoption of the 2001 revision of the jcg Act add- ing paragraph 2 to Article 20 that allows jcg officers to use arms directly against foreign vessels when they refuse to stop and resist inspection. jcg and jmsdf held joint training and created a manual for joint actions, which acknowledges the primary role of jcg in reacting to suspicious vessels and the supporting role of jmsdf in taking measures when jcg has difficulties to react.87 On 21 December 2001, another disguised fishing vessel was identified in the disputed eez southwest Kyushu, on the Japanese side of the median line between Japan and China. The vessel appeared to be a Chinese fishing vessel but was later found to be a North Korean spy vessel.88 Since the vessel escaped regardless of the patrol boat’s order to stop, the Japanese authorities chased the vessel on the ground that it refused inspection required under Article 3, paragraphs 1 and 2 of the eez Fishery Law and Article 1, paragraph 1 (2) of its enforcement order.89 After an exchange of fire, the vessel sank on the Chinese side of the median line and the crew of the vessel lost their lives. It was the first time for the Japan Coast Guard to use arms against a vessel in accordance with Article 20, paragraph 2 of the Japan Coast Guard Act. After this incident, the manual for joint actions was revised to include a line that jmsdf reacts from the beginning in cases of suspicious vessels in principle. The third scenario is cooperation between jcg and jmsdf in counter-piracy operations. The 2009 Act on the Penalization of Acts of Piracy and Measures against Acts of Piracy does not allow jmsdf officers to act as judicial police officers and, therefore, jcg officers must be on board jmsdf vessels in such counter-piracy operations.

86 Article 74, paragraph 3 of the fishery law stipulates that fisheries surveillance officers may inspect the vessel and ask the person concerned questions when they considered necessary. 87 Okuzono, supra note 82 at 185. 88 A. Kanehara, The Incident of an Unidentified Vessel in Japan’s Exclusive Economic Zone, 45 The Japanese Digest of International Law 116 (2002). 89 R. Murakami, Ryōkai keibi no hōkōzō [Structure of Law concerning Policing of the Territorial Sea], 72 (Chuōhōki, 2005).

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4.2 Regional/International Cooperation Japan has been actively involved in building coast guard capacities among the Southeast Asian countries through joint training and education programs.90 The need to enhance regional cooperation among maritime law enforcement agencies has been addressed at the Heads of Asian Coast Guard Agencies Meeting for the Asian Region since 2004 and at the Summit of the North Pacific Coast Guard Forum (npcgf) for the North Pacific Region since 2000.91 Through these frameworks of cooperation, joint training among several coast guard agencies and joint patrol of iuu fishing have been conducted.

4.2.1 The North Pacific Coast Guard Forum (npcgf) The member States of npcgf are Japan, Korea, Russia, the United States, Canada and China. Areas of cooperation include maritime security, illegal trafficking, combined operations, emergency response, fisheries enforcement and information exchange. The main accomplishments of npcgf are (1) tabletop and on-water training exercises in response to disaster assistance, search and rescue, marine security boarding, and illegal fishing scenarios, (2) coordinated patrols to combat illegal fishing in the Pacific Ocean, (3) agreement on com- mon communication protocols for dealing with “vessels of special interest”, (4) creation by Russia of an information exchange system, and (5) exchange of information on illegal drug and migrant activities.92

4.2.2 Counter-Piracy Cooperation In 2006, the Ministry of Infrastructure, Land and Tourism and jcg established a conference on measures against piracy, which proposed assistance for Asian States in improving law enforcement capabilities at sea. The conference has taken cooperation measures such as granting patrol boats to foreign States, accepting foreign coast guard candidates for education and training, send- ing experts for advising foreign States to establish law enforcement agencies. Japan provides capacity building programs to Southeast Asian States and participates in joint training programs with India and Singapore. Japan also sends staff to the Information Sharing Centre (isc) based on the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP).93

90 S. Bateman, International Solutions to Problems of Maritime Security – Think Globally, Act Regionally!, 139 Maritime Studies 15 (2004). 91 Murakami & Mori, supra note 3 at 97–98. 92 For more information, see http://www.ccg-gcc.gc.ca/Home/NPCGF. 93 Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia, adopted on November 11, 2004, entered into force on September 4, 2006,

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5 Conclusion

Effective maritime law enforcement is crucial for the prevention, deter- rence and punishment of maritime crimes. Japan has taken various – but not all – legislative measures to enable jcg and jmsdf to engage in maritime law enforcement within and beyond areas of national jurisdiction, in accordance with relevant international conventions. While the number of cases in illegal immigration by sea has decreased significantly, the number of cases in illegal fishing, drug trafficking and marine pollution still remains high. Furthermore, Japan, as a State whose economy heavily relies on maritime transport, faces the increasing need to cooperate with other States for eliminating maritime security threats such as piracy and armed robbery against ships. jcg, which includes about 13,000 coast guard officers, has a limited capacity for maritime law enforcement in regard to Japan’s long coastal line and vast eez area. The role of jmsdf in maritime law enforcement is limited to highly violent crimes such as piracy, cases related to suspicious vessels, and cases involving foreign warships. As transnational maritime crimes increase, Japan should enhance regional and international cooperation, which involves not only coast guard agencies but also businesses and civil society, in order to effectively protect the public order of the international community.

2398 unts 199. ReCAAP enhances regional cooperation in terms of information sharing, capacity building and cooperative arrangements in combating piracy and armed robbery against ships in Asia. Under the ReCAAP, each Member State designates an agency to act as a focal that is responsible for coordinating responses to all piracy attacks and armed robbery against ships within respective jurisdiction, in cooperation with isc. Japan took the initiative to establish ReCAAP and provided financial support as well as human resources such as high-ranking former officers or experts.

korean journal of international and comparativeDownloaded law from6 (2018) Brill.com09/27/2021 117–133 01:40:29PM via free access