JCP VIEW AND PROPOSAL ON 'MYSTERY SHIP' QUESTION

The Japanese Communist Party on January 28 published its opinion and proposal concerning the question of "suspicious ships."

Shii Kazuo, JCP Executive Committee chair, released the JCP opinion at a press conference on January 28. "The JCP has compiled this after a series of interviews with specialists on the Law of the Sea, Japan Coast Guard members, and other authorities concerned," Shii explained. The full text follows:

The incident of the so-called "mystery ship" took place from December 21 to 22, within Japan's exclusive economic zones (EEZ) in the East China Sea. The ship was sunk after a chase by Japanese Coast Guard ships.

The incident caused uneasiness among the Japanese people because Japan's territorial waters and its surrounding areas are allegedly being infested by such "mystery ships," supposedly committing crimes.

At the same time, criticism of counter measures taken by the Japanese Coast Guard has arisen from inside and outside of Japan. Anxiety and warnings were expressed by China, South Korea, and other countries over the fact that Japan, in a first postwar incident, resorted to the use of force in the waters where every ship has the "freedom of navigation."

Whether the Coast Guard's response to the recent incident was correct or not must be scrutinized. We should also carefully work out ways to deal with similar possible incidents in the future. It should be noted that the "mystery ship" was found outside of Japan's territorial waters, and the ship was sunken in China's EEZ. The incident must be examined in light of international law, and further measures be taken accordingly.

On Japan Coast Guard's response to the incident

(1) Territorial waters and exclusive economic zones (EEZ) must be clearly distinguished

In discussing the incident, the government and ruling parties are apparently mixing up two different categories: territorial waters and EEZ. Territorial waters, which are within 12 nautical miles from Japan's coast, are fundamentally different from the EEZ, which are 200 nautical miles from it.

Within territorial waters, Japan can claim its sovereignty and enforce its laws against all kinds of criminal activities.

By contrast, within the EEZ, under the United Nations Convention on the Law of the Sea, any parties concerned are entitled to exercise its economic sovereignty over limited matters such as biological and non-biological resources, and sea pollution. In the EEZ, any cases other than mentioned above shall be dealt with in the same manner applied to the high seas, and free navigation is guaranteed for ships of all countries.

This means that the Japanese Coast Guard is only allowed to regulate ships that are suspected of committing poaching, unauthorized research on seabed resources, and sea pollution, and that Japan can't exercise its sovereignty in other cases.

(2) Japanese Coast Guard response lacked international legal grounds

In retrospect, the Coast Guard first detected the "mystery ship," not in Japan's territorial waters, but in Japan's exclusive economic zone (EEZ) more than 200 kilometers off Amami Oshima, to the west-northwest. After chasing the ship, the Coast Guard patrol boat fired at the ship's hull in China's EEZ, which lies at over 300 kilometers' distance from Amami Oshima, west-northwest.

In parliament, a Coast Guard official explained that the ship was presumed to be a foreign fishing vessel possibly operating without a permit, and that the Coast Guard patrol boat ordered a halt to confirm the facts, thus indicating that the Coast Guard acted initially on suspicion that the ship was violating the Fisheries Act. But he also said, "The patrol boat from the outset judged that the ship was loaded with rocket launchers and automatic rifles, and therefore called up special units. Subsequent developments showed clearly that the Coast Guard was definitely acting on the assumption that the ship was not a fishing vessel.

In other words, the Coast Guard from the outset did not recognize it as a fishing boat, but dealt with it on suspicion of violations of the fisheries law. Its explanation was thus contradictory. In fact, the Coast Guard has yet to establish charges of a violation of the fisheries law.

Such a response, not in conformity with domestic laws or the United Nations Convention on the Law of the Sea, must not be allowed.

How should Japan deal with "mystery ships"?

The Japanese Coast Guard says it has witnessed at least 20 "mystery ships" in the past. The Coast Guard says some had the appearance of fishing boats but their nationality was unidentifiable or had false ship names, and that others were armed with rocket launchers and automatic rifles as was the case with the latest incident. The fact that such ships appear frequently in Japan's territorial waters and the EEZ is a warning sign that calls for some measures to be taken to ensure the safety of Japan.

Responses to such ships should be strictly in compliance with the U.N. Convention on the Law of the Sea and other international regulations. In responding to such ships,Japan's territorial waters and ships in the EEZ must be distinguished from each other. This is particularly important in terms of Japan's relations with neighboring countries, because Japan made the mistake of carrying out aggression against them.

(1) No new legislation is necessary in dealing with illegal acts in territorial waters

In order to deal with "suspicious ships" in Japan's territorial waters, the Coast Guard Law provides that Coast Guard patrol boats can order such ships to stop for inspections. The Coast Guard can also prohibit any illegal actions under existing domestic laws. This kind of response is justifiable as an exercise of Japan's sovereign rights over its territorial waters.

If such ships attempt to resist or run away, Coast guard boats, using sonic and visual signals, can order such ships to halt. In case the Coast Guard has to use weapons to halt non-compliant ships, it must follow phased steps: first, blank shots to be fired as a warning, then warning shots across the bow, followed by shots at the hull. Only after these steps and under certain conditions that include the probability that the suspicious ships could commit a serious crime, is the Coast Guard allowed to take shots at the hull and be exempted from criminal responsibility for human injury, if there is any.

This is not intended to allow coast guard vessels to use weapons lightly or harm people. Weapons are allowed to be used for the purpose of stopping suspicious ships for inspections and stopping illegal acts. The JCP is not opposed to the use of arms that strictly follow legal procedures, but an extended interpretation or application of the provisions must be restrained.

Such criminal acts as "drug trafficking," "smuggling," and "violation of the Swords and Firearms Control Law" can be, and are actually controlled by domestic laws. In 2000 alone, 357 ships were found to be involved in illegal activities in Japan's territorial waters and 282 of them were either given warning and got out of Japan's territorial waters or were rounded up.

Thus, illegal activities can be dealt with under the existing law and no new legislation is necessary so long as the Coast Guard does its job properly based on the law.

(2) In the exclusive economic zone, rules need to be established to ensure that Japan and neighboring countries can join together to deal with mystery ships

The problem is how Japan should deal with suspicious ships in the exclusive economic zones as distinguished from territorial waters. Suspicious ships that may be carrying illegal firearms with their nationality unidentified appear frequently in the exclusive economic zones. This is a matter of serious concern for all countries of the region, including Japan. But the United Nations Convention on the Law of the Sea has no provisions for dealing with suspicious ships. In light of international law, it would be unjustifiable for Japan to deal with the matter without asking for cooperation from other countries.

The government and the ruling parties are suggesting that shooting to damage ships should be allowed not only in territorial waters but in the exclusive economic zones. If Japan carries out this action alone, it may cause trouble in Japan's relations with neighboring countries.

Japan is a seafaring nation enjoying the "freedom of navigation." Any attempt to use the need to deal with suspicious ships as a pretext to carry out what is allowed in territorial waters at present in areas outside territorial waters will only harm its national interest.

Japan should attach importance to diplomatic efforts. It should seek to establish necessary rules and systems for cooperation and consultation so that it will be able to deal with suspicious ships jointly with neighboring countries, including China, South Korea, North Korea, and Russia. For that to happen, the pressing task is for Japan to open a diplomatic channel with North Korea.

(3) Police activity on the sea is the primary responsibility of Coast Guard

The police activity on the sea to control acts that threaten security and orders and all other illegal acts is the primary responsibility of the Coast Guard. The JCP opposes the plan to expand the Self-Defense Forces' duties to include such activity.

The use of weapons, even by the Coast Guard, should be restrained and used only in an internationally accepted manner. This is very important for Japan, which in the past conducted the war of aggression against other Asian countries and at present has the Constitution's Article 9 that renounces war.

The JCP strongly opposes the use of this question as an excuse of accelerating the move for enacting wartime legislation. (end)