74
J. Tsuruta
Recently, there have been many cases where foreign government ships enter
Japanese territorial sea.
23 Foreign government marine research ships conduct marine
scientific research (hereinafter, “MSR”) inside Japan’s EEZ without prior notification. Furthermore, MSR is also being conducted in different sea areas or through
methods that differ from those in the prior notification.
24 In such cases, the Government of Japan demands that such foreign government ships leave Japan’s territorial
sea and they cease such research activities inside Japan’s EEZ. Such exercise of
enforcement jurisdiction by the Government of Japan could not be based on the
provisions “enforcement of laws and regulations at sea,” “prevention and suppression of crimes at sea,” and “detection and arrest of criminals at sea” in Article 2,
Paragraph 1, of the JCG Act. That is because the foreign government ships enjoy
immunity from exercising enforcement jurisdiction by foreign states under international law, and there was no Japanese law that directly regulated MSR. Moreover,
many Japanese laws that regulate ships explicitly exclude foreign warships and other
government ships in the definition of “ships” with such wordings as “except for
warships and other ships owned and operated by the government of each foreign
country.”
The partial revision to the JCG Act in August 2012 added provisions regarding
duties in Article 2 and regarding affairs under its authority in Article 5. The added
provision “maintenance of order of ships’ navigation at sea” is intended to clarify the
legal grounds for the exercise of the enforcement jurisdiction at sea. Such is used for
demanding foreign government ships to leave the Japanese territorial sea or to cease
research activities inside Japan’s EEZ without prior notification. In other words, the
activities of the foreign government ships are legally assessed not based on laws
enacted and revised for implementing the UNCLOS, but rather directly based on
the UNCLOS incorporated into Japan’s legal system. The 2012 revision of the JCG
Act was designed to clarify that the JCG can exercise enforcement jurisdiction over
foreign government ships. The legal basis of such is Article 2 and Article 5 of the JCG
Act, providing for the “maintenance of order of vessels’ navigation at sea” in cases
where the exercises of enforcement jurisdiction are permitted under international
law. Such exercise of enforcement jurisdiction includes the exercise of the “right of
protection” by a coastal state against a foreign ship whose conducts in its territorial
sea are assessed as not “innocent, which is in accordance with Article 25, Paragraph
1 of the UNCLOS. It also includes the demand by a coastal state against a foreign
ship conducting MSR in the EEZ without prior notification and without fulfilling
obligations to cease such research activities, pursuant to Article 246, Paragraph 2 of
the UNCLOS Article 246.
23 The recent activities of foreign government ships in the waters surrounding Japan are available
at https://www.mofa.go.jp/region/page23e_000021.html (last accessed on May 20, 2020).
24 The recent activities of foreign government marine research ships in Japan’s EEZ, etc. are available
at https://www.kaiho.mlit.go.jp/info/topics/post-663.html (only in Japanese) (last accessed on May
20, 2020).
J. Tsuruta
Recently, there have been many cases where foreign government ships enter
Japanese territorial sea.
23 Foreign government marine research ships conduct marine
scientific research (hereinafter, “MSR”) inside Japan’s EEZ without prior notification. Furthermore, MSR is also being conducted in different sea areas or through
methods that differ from those in the prior notification.
24 In such cases, the Government of Japan demands that such foreign government ships leave Japan’s territorial
sea and they cease such research activities inside Japan’s EEZ. Such exercise of
enforcement jurisdiction by the Government of Japan could not be based on the
provisions “enforcement of laws and regulations at sea,” “prevention and suppression of crimes at sea,” and “detection and arrest of criminals at sea” in Article 2,
Paragraph 1, of the JCG Act. That is because the foreign government ships enjoy
immunity from exercising enforcement jurisdiction by foreign states under international law, and there was no Japanese law that directly regulated MSR. Moreover,
many Japanese laws that regulate ships explicitly exclude foreign warships and other
government ships in the definition of “ships” with such wordings as “except for
warships and other ships owned and operated by the government of each foreign
country.”
The partial revision to the JCG Act in August 2012 added provisions regarding
duties in Article 2 and regarding affairs under its authority in Article 5. The added
provision “maintenance of order of ships’ navigation at sea” is intended to clarify the
legal grounds for the exercise of the enforcement jurisdiction at sea. Such is used for
demanding foreign government ships to leave the Japanese territorial sea or to cease
research activities inside Japan’s EEZ without prior notification. In other words, the
activities of the foreign government ships are legally assessed not based on laws
enacted and revised for implementing the UNCLOS, but rather directly based on
the UNCLOS incorporated into Japan’s legal system. The 2012 revision of the JCG
Act was designed to clarify that the JCG can exercise enforcement jurisdiction over
foreign government ships. The legal basis of such is Article 2 and Article 5 of the JCG
Act, providing for the “maintenance of order of vessels’ navigation at sea” in cases
where the exercises of enforcement jurisdiction are permitted under international
law. Such exercise of enforcement jurisdiction includes the exercise of the “right of
protection” by a coastal state against a foreign ship whose conducts in its territorial
sea are assessed as not “innocent, which is in accordance with Article 25, Paragraph
1 of the UNCLOS. It also includes the demand by a coastal state against a foreign
ship conducting MSR in the EEZ without prior notification and without fulfilling
obligations to cease such research activities, pursuant to Article 246, Paragraph 2 of
the UNCLOS Article 246.
23 The recent activities of foreign government ships in the waters surrounding Japan are available
at https://www.mofa.go.jp/region/page23e_000021.html (last accessed on May 20, 2020).
24 The recent activities of foreign government marine research ships in Japan’s EEZ, etc. are available
at https://www.kaiho.mlit.go.jp/info/topics/post-663.html (only in Japanese) (last accessed on May
20, 2020).