Fuel Supply Operations Need No U.N. Resolution - Japan should make independent decisions

Faculty Fellow, RIETI

The Japanese National Diet is currently debating whether or not to continue with the fuel supply operations of the Japan Maritime Self-Defense Force (JMSDF) in the Indian Ocean. From the standpoint of international law, the presence or absence of a United Nations resolution is irrelevant to Japan's refueling operations. The operations in the Indian Ocean are naval policing activities and they should be distinguished from the use of armed force.

No debate should confuse laws with policies

The Anti-Terrorism Special Measures Act and Japan's supply of fuel to U.S. and other warships in the Indian Ocean are now a major political issue. The debate was sparked when Ichiro Ozawa, leader of the Democratic Party of Japan, commented that Japan should not be allowed to cooperate in a U.S.-led war that did not have the approval of the United Nations. Recently, the U.N. Security Council adopted a resolution containing an expression of gratitude to Japan.

When it comes to the connection between the fuel supply issue and the United Nations, the Security Council, and warfare, it appears to me that arguments about laws, international laws, and the Constitution are being confused with arguments about policies. No policy debate is required for any action that is not permissible under international law or the Constitution. But a policy debate on an action is essential if international law and the Constitution permit that action.

To sum up Ozawa's argument, first, the United States is waging a war; second, Japan's marine fuel supply activities constitute cooperation in that war; and third, these activities require the approval of the United Nations.

Under the Charter of the United Nations, the use of force is generally prohibited, with certain exceptions including individual self-defense, collective self-defense, the use of force by a U.N. force in accordance with a Security Council resolution, and the use of force by multinational coalition forces in accordance with a Security Council resolution. The Security Council is the principal organization of the United Nations responsible for maintaining international peace and security, and is regarded as being entitled to authorize a use of force that might originally be unlawful. In the 1991 Gulf War, the multinational coalition forces used armed force against Iraq after it was authorized by the Security Council. The point is that the use of force, which is banned under the U.N. Charter, was justified by a Security Council resolution in this particular event. It seems that Ozawa's recent remarks are based on that.

The anti-terrorism campaign is metaphorically expressed as a war on terrorism, but to be more precise, the Japan Self-Defense Forces (JSDF) do not supply fuel to foreign warships involved in combat. They refuel those engaged in maritime interdictions aimed at stopping the arms influx, drug trafficking, and terrorist incursions. Under international law, warships may carry out naval policing activities against private vessels to prevent or deter maritime crimes. The maritime interdictions conducted by the war vessels refueled by Japan fall under naval policing activities.

Same goes for cooperation in the Iraq-related operations

In Japan, the question of how the use of weapons is distinguished from the use of force has often been a source of debate. The dividing line is perceived as unclear. The JSDF has a use-of-force capability and could use the same weapons in an act that constitutes the use of force in one case and, in another, for the safety of its personnel.

However, suppose that a police officer fired a gun or that a Coast Guard officer used a firearm against a private vessel at sea. No one would see these acts as the use of force. They fall under policing operations. The use of weapons corresponds to the use of force in some cases and to policing activities in others. When JSDF members use their weapons to maintain themselves, this is not a use of force. The JMSDF refuels foreign warships deployed for naval policing activities against private ships, not to overseas war vessels participating in the use of force against the armed forces of another state.

International law allows warships and government vessels to conduct naval policing operations on the high seas. Indeed, the Japan Coast Guard does just that. Each state has unconditional rights to police its own vessels, as they are under its exclusive control. Under international law, the high seas are open to all. Ships on the high seas are under the jurisdiction of their respective flag states, and the order of the high seas is maintained by the mechanism. Moreover, a state may be allowed under international law to conduct policing activities targeting a foreign vessel, with the approval of the flag state of that vessel. Specifically, such activities include not only the embarkation of officers for the inspection of documents and cargo (embarkation and official inspection) but also the seizure of the vessel for the purpose of taking it to a port of the policing country or to the nearest port. Furthermore Article 110 of the United Nations Convention on the Law of the Sea authorizes warships to perform embarkation and official inspection of suspicious foreign ships without the approval of their flag states in limited cases, such as piracy or a suspected absence of official ship nationality.

It is argued that the act of refueling in local waters any foreign ship that is involved in combat - or to put it in another way, any foreign ship that is involved in the use of force - may under international law be deemed a use of force in itself, depending on the circumstances such as the importance of the act to the combat action. Even if it does constitute a use of force, the act of refueling is justified under international law provided that it meets the particular requirements. However, the matter of compliance in the use of force with international law has nothing to do with the question of whether or not the JSDF's act of supplying fuel to foreign warships engaged in the use of force falls under the use of force prohibited by the Constitution of Japan. According to the interpretation of the Japanese government, it is unconstitutional if it is integrated with the use of force.

At present, the JSDF is conducting refueling operations in the Indian Ocean, in accordance with the Anti-Terrorism Special Measures Act. Fuel is offered to foreign naval ships conducting naval policing activities, with missions such as blocking any influx of weapons, and not to those involved in the use of force. Irrespective of the existence or absence of a resolution of the Security Council, the refueling operations may therefore be conducted at the discretion of individual states. Naturally, the legitimacy of the act of refueling foreign warships involved in a use of force is a different story.

Even if the United Nations calls for cooperation, it is individual states, not the world body, that decide whether or not to cooperate with any other state that is acting in compliance with international law. The United Nations would probably be baffled if it were asked to approve cooperation in an activity that it already supports. If Japan requested the United Nations to make a judgment on something that individual states are expected to decide at their own discretion, the United Nations would naturally wonder if Japan was relinquishing its sovereignty.

Security Council resolutions as a key indicator

In 2001, the U.N. Security Council adopted Resolution 1368, which condemned terrorism and calling for cooperation in the fight against terrorism. Its recent Resolution 1776 approved an extension of the mandate of the International Security Assistance Force (ISAF) in Afghanistan. These resolutions can be understood as meaning that different nations are engaged in anti-terrorist activities in response to the Security Council's request and that these activities remain of great importance. However, these resolutions have no impact on whether cooperation in maritime intercept operations is permissible in legal terms. They merely indicate that the United Nations values the cooperation highly as policy.

So a question arises: Would the circumstances be different if the refueling operations were taking place off the coast of Iraq, rather than in the Indian Ocean off Afghanistan? Unlike the Iraq War, which is widely considered an American campaign, the military action in Afghanistan has broad support from the international community. If, however, the perspective shifts from the initial invasion of Iraq by coalition forces to the refueling of foreign vessels engaged in naval policing operations, there is no difference in the legal standing and in the policy decision framework between at-sea refueling operations near Afghan soil and those near Iraqi soil.

Legal issues do not arise if a sovereign nation carries out naval policing against any domestic ship, against any foreign ship with the approval of the ship's flag state, or against any ship in instances authorized by Article 110 of the United Nations Convention on the Law of the Sea. Every state is free to decide whether or not to provide cooperation based on its own factors. Although it largely escapes attention, the fact is that the U.N. Security Council called on states to cooperate in Iraqi reconstruction, as in its Resolution 1511 issued in 2003. The United Nations' stance on Iraq is becoming closer to that on Afghanistan. So not only is there no legal problem, but the United Nations has also expressed its support.

During the U.S.-led invasion phase, there was an enormous disparity between the international support for the campaign in Iraq and that in Afghanistan. It should be noted that this disparity is linked to attitudes about the use of force, and not to naval policing operations, which began subsequently and separately and are currently underway.

If naval policing is unlawful, then Japan must not cooperate with it. But the maritime interdictions off Afghanistan currently at issue are not illegal. It naturally follows, then, that any state can cooperate with these operations at its discretion. The decision on the offshore refueling operation should be a policy one, made after taking into account the political implications. Issues to consider in making the decision include international collaboration against terrorism, the Japan-U.S. alliance, amicable relations with other countries involved, peace and stability in Southwest Asia, transparency of at-sea fuel supply activities, and the appropriateness of the financial burden.

United Nations resolutions mean that the refueling operations have international support. The resolutions reflect world opinion and should be regarded as a basis for judgment. Of course, I am not suggesting that Japan also supply fuel to foreign warships off the coast of Iraq just because it does so in the waters off Afghanistan; there are differences in crew safety and other aspects to be taken into account.

>> Original text in Japanese

* Translated by RIETI.

October 9, 2007 Nihon Keizai Shimbun

November 5, 2007

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