TOKYO -- As enforcement of U.N. sanctions against North Korea tightens, Japan is bumping up against constitutional restrictions on what its Maritime Self-Defense Force ships are allowed to do during peacetime.
On Jan. 20, Taiwanese authorities said they searched a Taiwanese vessel suspected of smuggling contraband to North Korea, despite the fact that Taiwan is not a member of the United Nations.
Meanwhile, Japan's efforts to crack down on North Korean evasion of U.N. sanctions meant to punish the country for its nuclear and missile programs are hobbled by limits on SDF operations imposed by Japan's war-renouncing constitution.
On Jan. 12, 17 countries that are members of the Proliferation Security Initiative, a U.S.-led effort to stop shipments of weapons of mass destruction and related products and materials, issued a statement affirming their commitment to stepping up inspections on the high seas to ensure enforcement of the U.N. resolutions against Pyongyang. Four days later, foreign ministers from 20 countries agreed to expand their searches of vessels to prevent oil and other prohibited items from slipping into North Korea.
But actions by Maritime Self-Defense Force ships to enforce the sanctions, which call for inspections of North Korean shipping to halt ship-to-ship transfers of fuel, are limited to those directly related to Japan's security. "Unless something happens to change the situation drastically, such as a military conflict on the Korean Peninsula, Japan's activities will be limited for the time being to vigilance and surveillance, and providing relevant information to the U.S. military," said a senior Japanese official.
Japan was among the countries that issued the PSI joint statement. But the MSDF is legally barred from carrying out operations beyond "vigilance and surveillance" in international waters during peacetime.
Leave it to us
Since the end of last year, the MSDF has been monitoring foreign ships in the Yellow Sea and the East China Sea, on the lookout for illegal transfers of oil and other banned products to North Korean vessels. The MSDF passes that intelligence along to the U.S. military. Even if an MSDF catches a vessel in the act of sanctions-busting, however, any searches or other sanctions enforcement will fall to the U.S. or others.
The MSDF may be allowed to inspect suspicious ships in the event of an emergency on the Korean Peninsula, but under the current constitutional interpretation, the MSDF can only do that if the situation is considered a serious threat to Japan's security or international peace and stability.
In that case, it can inspect cargoes on civilian ships and check their destinations. It can also ask ships to change their routes. The catch is MSDF vessels can only conduct such inspections with the consent of the cargo vessel's captain. And they can only use their weapons to protect the lives of their crews. "It would be unrealistic to expect the captain of a suspicious ship to agree to an inspection," said a senior official with Japan's Defense Ministry.
If things get really ugly, the MSDF will be authorized to take tougher action, such as forcibly stopping and searching vessels. In such cases, if a suspicious vessel disregards an order to stop, an MSDF captain will have the discretion to enforce the order using deadly force.
Official inspections during emergencies sometimes involve sinking vessels suspected of carrying contraband. But if the MSDF takes such an action, that could violate Article 9 of the constitution, which denies Japan "the right of belligerency."
Japan has set conditions for ship inspections, and defined the scope of tasks the MSDF can conduct. The MSDF is allowed to carry out forced inspections of ships on the high seas only if Japan is under attack, or if an against the U.S. or other countries directly threaten Japan's survival.
There is an exception to the peacetime ban on use of weapons by MSDF ships in conducting ship inspections. MSDF vessels are allowed to use their weapons when the target ship is itself armed and shows clear intent to attack the MSDF vessel. In such cases, the defense minister can order an on-the-spot inspection involving use of weapons. This exemption applies to the MSDF's ongoing anti-piracy operations off Somalia.