Pirates were considered in ancient times to be hostis humani generis; that is, the enemies of mankind, the reason being that they posed a threat to maritime safety in a space not subject to the control of any single state, and where, therefore, anyone could and was actually expected to punish them. Furthermore, punishments against pirates, although dependent on country and age, tended to be rather strict, capital punishment being widespread, often carried out with a degree of publicity designed to maximize deterrence. When pirates attacking a ship were captured by their intended victims, they were liable to execution on the spot, without trial. The preferred method was hanging from the yardarm.

Of course, notions of on-the-spot justice are out of fashion these days, but we should not forget the extent to which the law on piracy informs modern-day notions of international justice. The concept of a pirate as someone subject to the potential jurisdiction of any state, on the basis of an universally agreed-on definition of a crime, believed to be so heinous as to merit a common treatment by all civilized nations, is the cornerstone upon which the fight against slavery, the definition of war crimes, and international cooperation against drug-dealing or child exploitation rests. It is also, of course, a precedent for international counterterrorism cooperation, although here a universal definition of the phenomenon is missing and it is often said that “one man’s terrorist is another man’s freedom fighter.”

We can also point out, looking back into history, that a nation’s willingness to engage pirates in the high seas has often been perceived as a test of character and a measure of ability and credibility in confronting foreign threats. The Barbary Wars, for example, were a watershed in US history, and the Chinese naval deployment off Somalia has been described by some commentators as a turning point in the Middle Kingdom’s quiet ascent.

What has survived of the classical international law on piracy? To start with, the notion of universal jurisdiction, the high seas not being under the rule of any single nation-state, warships of any flag can engage pirate vessels. This is quite clear and does not merit much controversy, but two more difficult questions arise: first of all (and this is an open debate involving all maritime powers) what to do with the pirates? And second (and this is rather a Japan-specific concern), could combating piracy be somehow interpreted as falling within the concept of “collective self-defense”?

It is clear that pirates can no longer be hanged without due process. Pirates detained on the high seas, for acts committed there, will not always be liable to punishment in the nation whose warship has arrested them; it will basically depend on the internal jurisdiction of that state. From an international law point of view there is no reason why such internal legislation might not provide for their trial and punishment; and, what is more, international law can to some extent be said to not only allow for the fight against piracy in international waters but even to impose a duty on naval powers to engage in it for the common benefit of mankind.

Of course, many countries balk at the prospect of trying pirates and have them serve sentences in their own prisons. An alternative might be extradition to their countries of origin, but this is not always possible for, among other reasons, fear of torture or execution. In the case of Somalia, the absence of a government effectively exercising control over its territory makes this a preposterous proposition.

Could the fight against piracy somehow be understood to fall within the definition of “self-defense” as the term is currently interpreted by the Japanese government, so that pirates on the high seas could be arrested by the Maritime Self-Defense Forces? If pirates are considered to be common criminals, then they are outside the scope of the Self-Defense Forces’ constitutional and legal duty to defend the country in the event of armed aggression. However, duties can also be derived from international law. In addition, the Japan Coast Guard (JCG), in the exercise of police functions, could arrest them. This does not necessarily mean that following all such instances they could then be tried by a Japanese court, since it could be argued they had not committed any crime in Japan.

Fighting piracy without recourse to international law, relying instead only on Japanese internal legislation, poses the problem of defining which vessels are to be protected. This is difficult in view of today’s complex maritime business, in which often a ship is registered in one country, owned by a company headquartered in another, insured in a third country, crewed by nationals of a fourth, and employed to transport cargo owned by a company from a fifth, and so on. Such an approach might also lead to a legal minefield: what if a non-Japanese vessel asked a MSDF ship to provide protection? Would that constitute collective defense, banned under the current official interpretation of Article Nine of the Japanese Constitution?

From a practical point of view, it is also necessary to note that an obstacle to the employment of the Japan Coast Guard to combat piracy off Somalia is the limited range and capability of its vessels. An alternative has been put forward whereby Coast Guard personnel would operate on MSDF vessels, conducting arrests, without the MSDF actually handling detainees. This is the approach finally taken by the Japanese government.

Could, however, the Japan Coast Guard arrest pirates and protect non-Japanese vessels prior to the passage of a new bill? Would actions going beyond the bill’s provisions still be covered by international law? Some court decisions, in countries like Denmark, seem to contradict such possibility, since pirates captured on international waters have often been released on the basis of lack of jurisdiction. However, piracy has never ceased to be an international crime.

For such a change to have taken place it would be necessary to either conclude an international convention to that effect (which has not been done) or for a new practice not to fight pirates to establish itself in states’ actual practice. This latter possibility, in order to be considered an amendment to the customary international law on piracy would have to be accompanied by a change in its perception by states; that is, it would not be enough to stop prosecuting pirates, but this would have to be a direct result of countries believing that it was no longer lawful under international law to do so. This is called opinio iuris sive necessitatis.

“Any country can arrest these guys and prosecute them at home, under domestic laws that apply. I’m actually surprised people think it’s unclear. The law on piracy is 100% clear.”

It could therefore be argued that international law as currently understood might provide the necessary legal basis for the MSDF, or the Japanese Coast Guard, to arrest Somali pirates, and for Japanese courts to try them, without the need for new legislation, as well as to protect non-Japanese ships. This would not entail belligerence by the state since the target would be common criminals, and neither would it require an appeal to collective defense since Japanese naval forces would not be defending another state, but simply carrying out Japan’s duties arising out of customary international law.

Implications for Japan’s position as a “peace nation”

Although it can be argued that Japanese intervention in the Gulf of Aden does not require a formal amendment to Article 9, it is yet another step in what some observers have termed “normalization” of the country, meaning the incorporation of the use of military force into its foreign policy arsenal. Whatever position one takes, it must be noted that Japan has been able to appear as a “peaceful” nation because others (chiefly the United States) have catered to her security needs. It is difficult to on the one hand promote a more autonomous Japanese foreign policy and on the other oppose a wider range of security and defense options open to Tokyo.

The MSDF Mission, Middle East Oil, and Somalia

The Gulf of Aden is not the only area where MSDF are being deployed, their presence in the Indian Ocean having already reached its sixth year. The two missions share common factors: they develop long-range patrol capacity, they are part of a multinational enterprise, and they sit astride the long sea lanes through which much of the oil consumed by Japan travels. The risk of interruption to the supply of Gulf oil is a major national security issue in Tokyo.

Social and Economic roots of piracy

The anti-piracy operations are often accused of being a purely military enterprise which ignores the root causes of the phenomenon. This position is basically correct; while it is important to protect shipping, the instability and underdevelopment prevalent on Somalia’s shores must be addressed. It is here that Japan’s extensive experience in foreign development could come in useful, not as a replacement, but as an integral part of stabilization efforts. However, in order to lead such a reconstruction effort, Japan must avoid accusations of “checkbook diplomacy,” and in order to do so the MSDF’s presence in the waters off Somalia is a political imperative.