4 Japanese Implementation of the United Nations Convention …
71
under international law. Article 111 of the UNCLOS and Article 23 of the Convention
on the High Seas, which was adopted in Geneva on April 29, 1958, were enforced
on September 30, 1962 and were acceded by Japan on July 30, 1968, prescribe the
details governing the right of hot pursuit, the sea areas where authorities can exercise the right, and the lapse of the right. Moreover, in states like Japan where the
Constitution incorporates international treaties into the domestic legal system (i.e.,
countries adopting the doctrine of incorporation), treaties concluded by them take
legal effect as their domestic laws. Therefore, treaty provisions incorporated into
Japan’s legal system can be direct legal grounds for exercising jurisdiction. It is not
necessary to rewrite the contents of the treaty provisions into domestic laws. For
example, the Government of Japan may exercise the right of hot pursuit to arrest
the master of a foreign ship who is violating laws that regulate fishing activities in
Japan’s territorial sea or EEZ. The Government of Japan may then pursue the ship
onto the high seas. The legal grounds for taking these measures under domestic laws
are derived from Article 212 and Article 213 of the Code of Criminal Procedure (Act.
No. 131 of 1948).
19 However, should the foreign ship escape and enter the territorial
sea of the flag State or a third country, there is no law which serve as legal grounds
for ceasing the pursuit. This is because the right of hot pursuit lapses under Article
111, Paragraph 3 of the UNCLOS.
Also, Article 20, Paragraph 2 of the JCG Act identifies those ships subject to the
use of weapons as those whose “passage that is not innocent passage as defined by
Article 19 of the UNCLOS.” Under Article 20, Paragraph 2 of the JCG Act ships are
identified not through the interpretation and application of laws enacted to regulate
activities listed in Article 19, Paragraph 2 of the UNCLOS. Rather, they are identified
through the application of the UNCLOS, which is incorporated into Japan’s domestic
legal system.
Concerning the exercise of judicial jurisdiction, Article 97, Paragraph 1 of the
UNCLOS prescribes that in the case of a collision or any other navigation incident
concerning a ship on the high seas, the exercise of judicial jurisdiction is permitted
only for the flag State or the State of the nationality of the master. For example, in
a case where a Japanese ship collided with a foreign ship on the high seas, and the
Japanese ship sank and Japanese crew members died, even if professional negligence
resulting in death was recognized as the master’s negligence by an application and
interpretation of the Penal Code (Act No. 45 of April 24, 1907),
20 Japan could not
exercise criminal jurisdiction over the concerned master even if they enter Japanese
territory after the collision; as long as the master is not a Japanese citizen. Such is
pursuant to Article 97 of the UNCLOS. In accordance with Article 98, Paragraph
19 English translation of the Code of Criminal Procedure is available at http://www.japaneselawtran
slation.go.jp/law/detail/?id=3364&vm=04&re=01&new=1 (accessed on May 20, 2020).
20 English translation of the Penal Code is available at http://www.japaneselawtranslation.go.jp/law/
detail/?id=3432&vm=04&re=01&new=1 (accessed on May 20, 2020).
71
under international law. Article 111 of the UNCLOS and Article 23 of the Convention
on the High Seas, which was adopted in Geneva on April 29, 1958, were enforced
on September 30, 1962 and were acceded by Japan on July 30, 1968, prescribe the
details governing the right of hot pursuit, the sea areas where authorities can exercise the right, and the lapse of the right. Moreover, in states like Japan where the
Constitution incorporates international treaties into the domestic legal system (i.e.,
countries adopting the doctrine of incorporation), treaties concluded by them take
legal effect as their domestic laws. Therefore, treaty provisions incorporated into
Japan’s legal system can be direct legal grounds for exercising jurisdiction. It is not
necessary to rewrite the contents of the treaty provisions into domestic laws. For
example, the Government of Japan may exercise the right of hot pursuit to arrest
the master of a foreign ship who is violating laws that regulate fishing activities in
Japan’s territorial sea or EEZ. The Government of Japan may then pursue the ship
onto the high seas. The legal grounds for taking these measures under domestic laws
are derived from Article 212 and Article 213 of the Code of Criminal Procedure (Act.
No. 131 of 1948).
19 However, should the foreign ship escape and enter the territorial
sea of the flag State or a third country, there is no law which serve as legal grounds
for ceasing the pursuit. This is because the right of hot pursuit lapses under Article
111, Paragraph 3 of the UNCLOS.
Also, Article 20, Paragraph 2 of the JCG Act identifies those ships subject to the
use of weapons as those whose “passage that is not innocent passage as defined by
Article 19 of the UNCLOS.” Under Article 20, Paragraph 2 of the JCG Act ships are
identified not through the interpretation and application of laws enacted to regulate
activities listed in Article 19, Paragraph 2 of the UNCLOS. Rather, they are identified
through the application of the UNCLOS, which is incorporated into Japan’s domestic
legal system.
Concerning the exercise of judicial jurisdiction, Article 97, Paragraph 1 of the
UNCLOS prescribes that in the case of a collision or any other navigation incident
concerning a ship on the high seas, the exercise of judicial jurisdiction is permitted
only for the flag State or the State of the nationality of the master. For example, in
a case where a Japanese ship collided with a foreign ship on the high seas, and the
Japanese ship sank and Japanese crew members died, even if professional negligence
resulting in death was recognized as the master’s negligence by an application and
interpretation of the Penal Code (Act No. 45 of April 24, 1907),
20 Japan could not
exercise criminal jurisdiction over the concerned master even if they enter Japanese
territory after the collision; as long as the master is not a Japanese citizen. Such is
pursuant to Article 97 of the UNCLOS. In accordance with Article 98, Paragraph
19 English translation of the Code of Criminal Procedure is available at http://www.japaneselawtran
slation.go.jp/law/detail/?id=3364&vm=04&re=01&new=1 (accessed on May 20, 2020).
20 English translation of the Penal Code is available at http://www.japaneselawtranslation.go.jp/law/
detail/?id=3432&vm=04&re=01&new=1 (accessed on May 20, 2020).