The Use of Privately Contracted Armed Security Personnel (PCASP)
On November 13, 2013, "the Act on Special Measure concerning Security of Japanese Flagged Vessels in the Piracy High Risk Area (the Act)" passed the Diet. The Act allows shipping companies to deploy Privately Contracted Armed Security Personnel (PCASP) with firearms on board the Japanese flagged vessels and is the first act that permits ordinary citizens to possess and use firearms under the Japanese legal system. The Act was promulgated on November 20 and came into force on November 30; it has been eagerly anticipated because, earlier, it was discarded due to an unrelated political fight.
2. Background of the New Act
Recently, the number of piracies off the coast of Somalia has dramatically increased. Moreover, since 2010, Somali pirates began to appear in the area off the coast of Oman and in the Arabian Sea. Against this background, most states deployed PCASP, which becomes a widely recognized effective method for fighting against piracy, to protect their flagged vessels. For example, the International Maritime Organization (IMO) admitted the effective role of the PCASP, and issued Recommendations addressed to the related States and Guidance addressed to the other stakeholders, notwithstanding the fact IMO does not encourage using PCASP.
According to some authors, only Japan and Greece are among the only maritime powers that have not taken any measures to allow their flagged vessels to bear arms. In this context, the Japanese shipping industry showed its concern that Japanese vessels would be a target of pirates, once the pirates learned Japanese vessels were not armed. Japan is an island nation surrounded by the sea. Therefore, maritime transportation is of extraordinary importance for it because Japan especially relies on maritime transportation to import energy resources, including oil, for most of which Japan depends on the Middle East. However, traditionally, the possession of firearms is strictly prohibited in Japan. Accordingly, under the existing Japanese legal system, a shipping company cannot use PCASP on board Japanese flagged vessels which are subject to the Japanese law. Considering the above circumstances, it is rational for the Japanese government to have enacted this legislation.
3. Contents of the New Act
Article 1 of the Act allows Japanese flagged vessels to use PCASP with firearms, in order to ensure the safe navigation of Japanese flagged vessels in the Piracy High Risk Area (PHRA) that are important for transportation of goods, including crude oil, essential to daily lives for Japanese nationals.
(2) The Scope of Application
Based upon the flag state principle, the Act is only applied to the Japanese flagged vessels, upon the condition that those vessels satisfy certain requirements. Since PCASPs are now allowed to use firearms against pirates, the definition of piracy is important to limit the scope of the Act's application. The definition in the Act was imported from Article 2 of the 2009 "Act on the Punishment of and Measures against Piracy (Piracy Act)"1 (Article 2(1)). Considering the fact that Article 2 of the Piracy Act was written to reflect the definition of piracy under the UNCLOS, the definition of piracy in this new Act is also in congruence with the UNCLOS.
From the aspect of the possession of firearms, the identification of the PHRA is crucial, because in accordance with the Act, PCASP can possess the firearms only when a vessel navigates in that area (Article 14). Actually, the Act itself does not identify the PHRA because PHRA was defined by the Cabinet Order on the Act (Article 2(2)). According to Article 1 of the Order, the PHRA is the high seas surrounded by coast line and the following three lines: (1) the line connecting the points (8°52′N, 78°08′E) and (6°56′N, 79°54′E), (2) the line connecting the points (7°02′N, 81°50′E), (10°S, 81°50′E) and (10°S, 81°50′E), and (3) the line connecting the points (25°59′N, 56°24′E) and (25°50′N, 57°19′E). On the other hand, the Best Management Practices (BMP), which is widely accepted, defines the High Risk Area as an area bounded by the Suez and the Strait of Hormuz to the North, 10°S and 78°E. Although the definition of the PHRA under the Act and the High Risk Area are almost overlapped, a tiny difference is confirmed.
(3) Procedure to Deploy PCASP with Firearms
In order to deploy PCASP with firearms on Japanese flagged vessels, several procedural requirements must be satisfied. First, ship owners shall formulate a security plan according to the Ordinance provided by the Ministry of Land, Infrastructure and Transportation (MLIT), and that plan shall be approved by the Minister of the MLIT (Articles 3 and 4). In that plan, ship owners are required to clarify which Private Maritime Security Company (PMSC) they use (Article 4(2)4). When PCASPs have been contracted by a PMSC, there are other requirements they must meet, such as the knowledge of firearms. The Minister of MLIT confirms whether each PCASP satisfies those requirements pursuant to Article 7. When the approved vessels return to a Japanese port, no one can disembark and off-load cargo to Japan from those vessels without the Minister's approval (Article 19).
(4) Conditions to Use Firearms
The essence of the Act is to allow PCASP to use firearms against pirates. However, that use is strictly regulated by the Act. According to the Act, there are only three occasions when the use of firearms is allowed. First, a trial firing toward the sea surface is allowed as a test if the firing is limited to the minimum required for the test, after checking there are no vessels in the vicinity (Article 15 (3)).
Second, PCASP can fire into the air over the vessel in question and under the sea surface if the following five conditions are met: (a) if, for the purpose of committing piracy in the PHRA, a person is operating a ship and approaching extremely or following about the Japanese vessels, or obstructing the passage of those vessels; (b) if the perpetrator committing the said acts does not obey other means to deter it and persistently tries to advance his/her ship and continue the said acts; (c) if there is a probable cause to believe that there are no other means to stop the advancement of the said ship; (d) if within the limits judged to be reasonably necessary for the purpose of warning, according to the circumstances; and (e) if the PCASP exhibits that it possesses firearms (Article 15(4)). When using firearms in accordance with Article 15(3) and (4), PCASP shall pay attention that they do not threaten the life, body, or property of an individual (Article 15(5)).
Third, PCASP may use firearms under the following two conditions: (a) if there is a probable cause to recognize a compelling necessity to use firearms in order to protect the lives and bodies of PCASP themselves and other people on board; and (b) within the limits judged to be reasonably necessary according to the circumstances (Article 15(6)). When using firearms in accordance with Article 15(6), PCASP shall not inflict any injury on others, unless the conditions stipulated by Articles 36 and 37 of the Japanese Penal Code, which provide self-defence and necessity respectively, are met (Article 15(7)).
(5) Relationship with other Japanese Laws
If the Act is applied to the Japanese flagged vessels satisfying the requirements, other Japanese laws are also applicable to that vessel. Therefore, as the previous section indicates, the condition permitting the use of firearms is provided in conformity with the Japanese Penal Code by making reference to Articles 36 and 37 of the Code. Any laws that are in conflict with the Act are listed and exempted. For example, Article 28 of "the Act for Controlling the Possession of Firearms or Swords and Other Such Weapons" which provides the obligation of the person in charge of management of firearms is listed (Article 20 of the Act).
Considering Japanese culture, that includes a strong hesitance to bear arms and use firearms, the successful enactment of the Act itself might be highly evaluated. However, the real value of the Act will be appreciated after its actual application. For this purpose, the Act should be reviewed from the perspective of following two points: first, whether the Act provides the enough power for PCASP to fight against pirates; and second, whether the Act limits the power of the PCASP, resulting in the protection of the rights of the pirates and not causing international conflicts with other States, such as the State of the nationality of the pirates.
1 As for the detail of this Act, see J. Tsuruta, "The Japanese Act on the Punishment of and Measures against Piracy", Aegean Review of the Law of the Sea and Maritime Law, Vol.1 (2011), pp. 237-245.
(on December 8, 2013)