I must be missing something, because I don’t understand why the Aso administration continues to pursue the possibility of sending Maritime Self-Defense Force ships to protect Japanese ships against attacks from Somalia-based pirates under existing legal authority. Not waiting for legislation that would confer broader authority on the JSDF to patrol the waters alongside the U.S. Navy and other forces is a blunder that I believe could lead to resentment and a loss of face. But then, what do I know? Anyway, here’s what I think.
Under existing law, the JMSDF can conduct maritime security operations, i.e. policing activities, beyond Japanese territorial waters only with regard to a crime or threat thereof that violates Japanese sovereignty or consists wholly or in part of an attack on a Japanese national. This effectively limits the JMSDF’s role against the pirates to protecting 1) vessels registered in Japan, 2) vessels operating under Japanese control, and 3) vessels with Japanese nationals on board. According to Sankei reports, 2,300 such vessels pass through Somali offshore waters. Because of limited resources—at the peak of the refueling operations in the Indian Ocean, the JMSDF was likely stretched to the limits of its capabilities with four refueling fleets including one escort ship each (“escort ship”, if I remember correctly, is the Japanese euphemism for “destroyer”) in operation simultaneously; only one fleet is currently on site—the government consensus appears to be that only ships registered in Japan can be protected. The JMSDF, like anyone else under Japanese jurisdiction,, can defend 4) vessels that do not fall into categories 1)-3) under the Japanese Criminal Code rules for self-defense (including third persons) and averting present danger. But unlike with regard to 1)-3), it cannot give pursuit. In all cases, it cannot conduct stop and search activities, which rules out any meaningful role in normal patrolling activities. (An editorial in the conservative Sankei suggests boarding vessels under the pretext of confirming whether Japanese nationals are on board, but that seems to be rather farfetched and legally dubious.)
So the JMSDF will be able to escort through the troubled waters only as many Japanese vessels as the escort ships that it dispatches. Any more Japanese vessels, and the Japanese government will face the uncomfortable task of choosing which vessels to protect, leaving the rest to the good offices of the American, Chinese, Iranian, and other navies, which do not face the same restrictions. But that’s nothing compared to the embarrassment of not being able to join the other navies in normal patrolling activities, instead acting as an overqualified bodyguard for narrowly–defined Japanese interests.
The idea could be that since an escort vessel will take many weeks to reach its destination, not to mention the time to be equipped for the voyage, there will be enough time to enact legislation that allows the government to reassign the vessel to a more appropriate role. In fact, I hope that’s what the authorities have in mind and are preparing for.
The conservative Sankei has been following this issue closely. Here are the most relevant links if you are interested and can read Japanese.
「日本から護衛艦派遣」 ソマリア沖 麻生首相は「海上警備行動」を明言