which act in a suspicious manner” and “vessels which enter the territorial sea without
good reason” are also used in distinction to “an illegal act.”
More critically, what is of concern is the addition of the duty “to maintain the
public order” to the specified list of duties of the JCG while concurrently
empowering the JCG Officer to take specified preventive measures if a crime is
about to be committed, or if there are apprehensions about risk to lives, bodies and
property. Of greater concern are the newly prescribed powers to take preventive
measures based on appearances or manner of passage of a vessel which gives the
impression that a crime will be committed, or apprehensions that public order may
be seriously disturbed.
26
3 Res Ipsa Loquitur
There would be no contesting the res ipsa loquitur
27 case of a vessel having indulged
in an activity that is clearly prejudicial to the peace, good order and security of a
coastal State as specified in Article 19 of UNCLOS. Interpretations, however, tend to
be subjective. The United States for example, holds that the list specifying 12 types
of activities is exclusive whereas, several other coastal States tend to weigh in on the
last provision of “any other activity not having a direct bearing on the passage,” to
26 Article 18 of the Japan Coast Guard Law reads as follows:
1. 18(1) When a crime is about to be committed, or when there exist dangerous situations, such as a
natural calamity, a disturbance, destruction of construction, explosion of dangerous substances,
a Maritime Safety officer can take the following measures on the condition that there are
apprehensions about risk to lives or bodies, or about serious damage to property, and that it is
an emergency, in addition to the measures prescribed in other laws and regulations.
(a) Order a vessel to start or stop, or prevent its departure;
(b) Order a vessel to change its course, or bring a vessel to a designated port;
(c) Order the landing of the crew, passengers and those who are in the vessel, or prohibit or
restrict their landing;
(d) Order unloading, or prohibit or restrict unloading;
(e) Prohibit or restrict communication with the land or another vessel;
(f) Take restraining measures, in addition to the measures prescribed above in this paragraph,
when there are apprehensions about risk to lives or bodies, or about serious damage to property.
2. (2) A Japan Coast Guard officer can take the measures prescribed above in sub-paragraph (a) and
(b) in paragraph 1 of this Article on the condition that there are no other appropriate measures,
when judging from the appearance of a vessel, the manner of navigation and abnormal behavior
of the crew, passengers and others on the vessel, and other circumstances, it is reasonably
expected that a crime is clearly about to be committed or that there is apprehension about a
serious disturbance to public order.
Source: Law No. 75 of 1996.
27 Res ipsa loquitur n. Latin for “the thing speaks for itself”.
232
A. Hebbar
good reason” are also used in distinction to “an illegal act.”
More critically, what is of concern is the addition of the duty “to maintain the
public order” to the specified list of duties of the JCG while concurrently
empowering the JCG Officer to take specified preventive measures if a crime is
about to be committed, or if there are apprehensions about risk to lives, bodies and
property. Of greater concern are the newly prescribed powers to take preventive
measures based on appearances or manner of passage of a vessel which gives the
impression that a crime will be committed, or apprehensions that public order may
be seriously disturbed.
26
3 Res Ipsa Loquitur
There would be no contesting the res ipsa loquitur
27 case of a vessel having indulged
in an activity that is clearly prejudicial to the peace, good order and security of a
coastal State as specified in Article 19 of UNCLOS. Interpretations, however, tend to
be subjective. The United States for example, holds that the list specifying 12 types
of activities is exclusive whereas, several other coastal States tend to weigh in on the
last provision of “any other activity not having a direct bearing on the passage,” to
26 Article 18 of the Japan Coast Guard Law reads as follows:
1. 18(1) When a crime is about to be committed, or when there exist dangerous situations, such as a
natural calamity, a disturbance, destruction of construction, explosion of dangerous substances,
a Maritime Safety officer can take the following measures on the condition that there are
apprehensions about risk to lives or bodies, or about serious damage to property, and that it is
an emergency, in addition to the measures prescribed in other laws and regulations.
(a) Order a vessel to start or stop, or prevent its departure;
(b) Order a vessel to change its course, or bring a vessel to a designated port;
(c) Order the landing of the crew, passengers and those who are in the vessel, or prohibit or
restrict their landing;
(d) Order unloading, or prohibit or restrict unloading;
(e) Prohibit or restrict communication with the land or another vessel;
(f) Take restraining measures, in addition to the measures prescribed above in this paragraph,
when there are apprehensions about risk to lives or bodies, or about serious damage to property.
2. (2) A Japan Coast Guard officer can take the measures prescribed above in sub-paragraph (a) and
(b) in paragraph 1 of this Article on the condition that there are no other appropriate measures,
when judging from the appearance of a vessel, the manner of navigation and abnormal behavior
of the crew, passengers and others on the vessel, and other circumstances, it is reasonably
expected that a crime is clearly about to be committed or that there is apprehension about a
serious disturbance to public order.
Source: Law No. 75 of 1996.
27 Res ipsa loquitur n. Latin for “the thing speaks for itself”.
232
A. Hebbar