Asia-Pacific, Global Analysis, Territorial and Law of the Sea Disputes

Deciphering the Japanese Ship Guarding Act

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Written by Simon O. Williams with research support credited to Michitsuna Watanabe

First released by The Maritime Executive, July 1st, 2014

Over six months since the Japanese government issued a landmark national law permitting privately contracted armed security personnel (PCASP) aboard Japanese flagged vessels, there remains confusion and uncertainty as to its scope and practical application. The legislation is entitled the “Special Measures Act for Security of Japanese Vessels in Pirate Infested Waters” of 20th November 2013, Law No.75 (Japanese Ship Guarding Act.) This Act, along with its supporting Orders and Ordinances, sets the policies, procedures, and applications for the employment of armed guards aboard Japanese flagged oil tankers. It is written exclusively in Japanese and requires not only translation, but also analysis by those seeking to provide or procure compliant maritime security services for the Japanese market.

THE ACT

Despite the Act being rolled out more than half a year ago, Japanese ship-owners and operators struggle to find foreign PCASP and private maritime security companies ready to provide their services aboard Japanese vessels.

According to Mr. Henri Vlahovic, founding director of Amniscor Ltd., which offers market entry support to companies in this sector, “while our team has developed the right compliance solutions for the constantly evolving procedures in Japan, significant challenges remain for foreign private maritime security companies to enter this new-born market. There are several reasons, including a lack of comprehensive information on policies and laws, which themselves are still not completely defined and remain emerging. This is compounded by protracted application procedures that hinder, rather than foster, advancement of this crucial new industry segment in Japan. The Japanese Ministry Of Land, Infrastructure, Transportation and Tourism (MLIT) is still missing sufficient mechanisms to attract foreign service providers, while Japanese ship-owners’ demand for high standard PCASP is steadily increasing.”

So as the demand grows, supply of services remains lacking due to the complexity of navigating the Japanese legal system, especially the hurdle of deciphering the Japanese Ship Guarding Act, which can be seen as scaring off foreign security providers.

While the world now observes a trend in piracy and maritime-armed robbery, priority areas shifting to West Africa and Malacca, the Act came into existence against the backdrop of increased PCASP deployment aboard vessels transiting the High Risk Area– the Horn of Africa and the Indian Ocean. The Japanese government accepted the correlation of increased use of PCASP with decreased successful pirate boarding in this region. Coupling this with Japan’s energy dependence being exclusively sea-borne from source countries mostly in the Middle East, authorities sought strategies to protect their vulnerable maritime assets and energy flow. However, unlike some other nations which could place PCASP on-board their ships at-will, Japanese flagged vessels were prevented from doing so as firearms possession is prohibited by the Japanese Swords and Firearms Control Law of 1958.

The recently adopted Japanese Ship Guarding Act provides an exception to this Law. The Japanese legal system is composed of three unique components: Laws, Orders, and Ordinances.

The Act itself is actually a Law, meaning that it was passed by a vote in the Diet, Japan’s parliament. However, it also includes Orders and Ordinances, which can be modified without Diet debate by the cabinet or the relevant ministry, in this case—MLIT. This allows the cabinet and MLIT the necessary legal latitude to independently adapt or expand the scope of the legislation without Diet approval, a crucial aspect to respond to the fluid nature of maritime operations and maritime threats.

THE ORDERS

According to the relevant Orders, to obtain MLIT permission for embarking armed guards on Japanese flagged vessels, the candidate vessel must be a Japanese flagged tanker carrying crude oil and meeting certain fundamental static requirements as set down in the Ordinances described below.

The Orders prescribe the use of PCASP only within a designated High Seas area in the Gulf of Aden and Indian Ocean along with a ‘passing area’ at Bab-el-Mandeb, the entrance to the Red Sea.

Japanese Ship Guarding Act Subject Area

According to Mr. Takashi Watanabe, the Deputy Director of MLIT’s International Shipping Division, the operational area remains the High Seas, beyond twelve nautical miles from shore, as prescribed by the UNCLOS framework, while the territorial sea spaces of these oceans are considered transit areas. This means that armed guards may be onboard within twelve nautical miles, designed specifically to facilitate embark and disembark procedures in a coastal state’s territorial sea, but in such locations they are forbidden from using weapons.

As these requirements are prescribed specifically in the Order and not the Act itself, the Japanese government maintains the jurisdiction to modify such specific geographic requirements as needed to adapt to fluid operational and threat conditions.

Should security operations be needed to protect the Japanese fleet in West Africa or Malacca, for example, the government maintains the power to grant these permissions in the form of a new or modified Order which can expand the subject area for a security response.

Likewise, should the need for increased protection be deemed necessary aboard vessels other than crude oil tankers, such as LNG carriers, fishing vessels, or even perhaps the Japanese whaling fleet, cabinet can similarly expand the scope of the Order to include these parameters.

THE ORDINANCES

Related Ordinances specify that in order to qualify for armed security permission, Japanese oil tankers must have a maximum speed no faster than eighteen knots fully loaded, and have a freeboard less than sixteen meters (distance between the water line and the deck or other places where humans can enter the ship.) Ships must also have a secure citadel where crew members can seek refuge and continue external communication in the event of an attack, along with primary preventative measures including a water discharging system and razor wire along exposed areas of the deck.

Application forms are included with the Ordinances as appendices available in Japanese only, which ship-owners must submit to MLIT for obtaining permission to employ PCASP aboard their Japanese flagged vessel. However, a summary of required information has been created and is presented below.

This includes applications to authorize a Ship Security Plan, modify all or part of the Ship Security Plan, confirm security personnel and their weapons, change of security personnel, submit the guarding implementation plan, and notify MLIT about lost or stolen firearms.

Ship-owners must submit a designated guarding plan for each candidate vessel to MLIT along with personal details of the PCASP and their embarked weapons. These applications are free of any charges and commissions and have validity periods of two months, after which a new application must be submitted.

DESIGNATED GUARDING PLAN

An application must be submitted to MLIT detailing the Designated Guarding Plan. This plan includes information on the ship-owner, including copies of their personal identification documents and criminal record check. It also must include details of the candidate vessel, certification of its Japanese flag possession, architectural schemes, pictures, and drawings. This evidence shall detail the equipment required under the Regulation to prevent and reduce damage by piracy, including that of the citadel, razor-wire, water discharge system, and appropriate storage facilities for firearms. Moreover, a written pledge by the Ship’s Master (Captain) must be enclosed stating that he/she is over twenty years old, and does not have any psychological or physical conditions which may impact his performance, is not a previous criminal offender, and is capable of overseeing and monitoring the possession and use of firearms onboard for special security activities.

The ship-owner or their liaison must also submit relevant documents about the PCASP to be embarked on the vessel and the company they hail from. Along with copies of relevant PCASP team leader or company director’s personal identification documents, such as residency card, a medical certification by a doctor or public body indicating this individual does not suffer from any psychological issues, addictions, or other health problems that can impact this line of work must be included. They must also submit results of a clean criminal background check indicating they have not been imprisoned in the past five years or have been a violent criminal within the last ten years. A copy of the guards or guarding company’s insurance or alternative form of liability protection demonstrating that the PCASP to be employed are insured for the scope and duration of their operations must be included.

The ship-owner or their designated liaison must submit documents indicating details of the intended voyage, cargo, number of rifles, bullets, and activities to take place on the candidate vessel during the special security period. Photographs of weapon profiles and serial numbers must be attached for the specific firearms slotted to be brought on-board.

VERIFICATION OF DESIGNATED GUARDING BUSINESS (DGB) PERSONNEL

MLIT also requires an application to verify what they call the Designated Guarding Business (DGB) Personnel, or PCASP, to be engaged in special security activities aboard the candidate vessel. This is the middle stage after ship-owner’s Designated Guarding Plan has been approved, but before they receive the final greenlight to undertake the specific maritime security operations requested in their Guarding Implementation Plan, described in the subsequent section.

The verification of Designated Guarding Business Personnel by MLIT takes approximately two months to process, so it is imperative for ship-owners to begin this process early. It requires them to provide evidence attesting to the quality and competence of the individual guards scheduled to embark upon their vessel. It requires evidence of their training and education which must be submitted in a document indicating that the individuals were trained by the relevant maritime security company along with a video demonstrating their proficiency for MLIT review and record-keeping. These videos must demonstrate (1) rifle handling and the other basic skills, (2) inspection of firearms, (3) loading / unloading various types of ammunition, (4) shooting form and weapons handling, (5) marksmanship and external variables. In some circumstances MLIT may issue a paper test to be completed by PCASP in order to verify their qualifications and education.

As is standard throughout this industry, medical certification by a doctor or public body must be produced that indicates the mental and physical health of the candidate. A document indicating the employment relationship between the maritime security company and the individual guard must be provided along with copies of the individual’s passport, residence permit, as well as a clean criminal background check indicating they have not been imprisoned in the past five years or have been a violent criminal within the last ten years. Evidence of insurance coverage for damages that can occur from their activities should also be included.

GUARDING IMPLEMENTATION PLAN

After guards are approved by MLIT, the ship-owner must submit the Guarding Implementation Plan at least five days prior to the commencement of the special security arrangements. Like the other documents, there is no fee for MLIT processing this request.

To this they must attach a copy of the contract between the ship-owner and PCASP or their hiring company along with details of the special security activities planned. This shall include navigational charts for the assigned vessel’s voyage indicating the location where weapons will be loaded/unloaded and if relevant, where PCASP will embark/disembark.

NOTIFICATION FOR LOST OR STOLEN FIREARMS

When guns are lost or stolen, the Master of the approved vessel must submit a pre-form document which is included with the Act to report the location, nature, and reason for the loss along with indication and identification of the missing items. Masters are requested to contact MLIT for updates to the document and to submit the details as soon as possible after their disappearance.

RULES FOR THE USE OF FORCE (RUF)

Mr. Takashi Watanabe of MLIT highlights that the use of firearms to deter pirates attacking a Japanese vessel remains a last resort. The preliminary steps taken beyond deterrence with razor wire are discharging water and escaping the crew into a reinforced citadel, or protected area.

To use rifles, additional steps are required. First, PCASP must warn the suspected pirates using all other means, both audio and visual, without using firearms. Second stage is warning by rifle use, safely firing warning shots into the sky or sea to deter attack.

Only in cases which the first two measures are undertaken, but the pirates do not halt their attack, are PCASP aboard Japanese flagged vessels permitted to shoot at the pirate ship for the purpose of protecting the lives of crew members.

The Japanese government’s move to permit PCASP onboard their vessels is certainly a step welcomed by the international maritime community. Its redundant safety and approval protocols will keep their seafarers safe and energy supply uninterrupted, while ensuring that PCASP operations remain monitored for compliance. Although challenging to decipher, the Japanese legal system caters specifically to this complex Act, placing its components within the numerous levels of Law, Order, and Ordinance that permit the Japanese cabinet and MLIT the flexibility to expand the Act’s scope and geographic-area as new threats against the Japanese fleet emerge and security responses evolve.

 

Written by Simon O. Williams with research support from Michitsuna Watanabe, under the auspices of Tactique Ltd. Their team remains available for contact at info@tactique.org should there be queries regarding this subject or related compliance matters.

This article is for information only and does not constitute legal consultation services.

Theory

Army’s Strategy Education Lessons for the Navy

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By: Bowen Vernan, Navy Helicopter Pilot

In May 2013, Chief of the Army, General Ray Odierno stood in a small DC area ballroom in front of a few dozen graduates and their families. Central to the crowd were several Army Captains and recently minted Majors as well as the 2013 Class of the Institute for World Politics. General Odierno and the US Army were both familiar friends with IWP, having participated in speaking engagements and sending dozens of students through the tiny graduate school nestled in an old mansion on the outskirts of Dupont Circle in Washington, DC. IWP’s faculty of approximately 30 instructor-practitioners are all leaders in their diverse field of expertise. At no other institute of learning is such a small group constituted of Generals, Ambassadors, and former Intelligence Operatives. The high caliber of experience brought together by the instructors drives the school to focus in a few key areas. IWP’s majors are limited to Master’s Programs is the fields of Statecraft and National Security Affairs, Statecraft and International Affairs, and Strategic Intelligence Studies with an additional Executive M.A. in National Security Affairs.

In a city filled with storied centers of learning such as Georgetown University, George Washington University, and countless military and intelligence centers of excellence, why has the Army invested their time and money in a school of less than 150 students? The Army has simply adopted IWP as a vehicle for training their Officer Corps in a way that no other military or civilian institution can currently supply. Beyond the ever present push for inter-service “jointness” IWP takes the Army’s mid-level leaders to a new level of inter-agency understanding and cooperation. The broad array of government leaders is seen not only in the staff, but also the student body of IWP. A typical class, consisting of only a handful of students could contain of a Captain from the US Army, an analyst from the CIA, and a Foreign Service officer from the State Department, all instructed by a retired Air Force General, Intelligence Community Professional, or former member of the National Security Council to learn the lessons of the past and together share ideas using every facet of the United States Government’s foreign policy resources. In an environment where fiscal resources are being stretched ever thinner among all government agencies, the Army has used IWP as a planning lab for learning how to better achieve mission goals by employing the resources and expertise of all government agencies. Following their time at IWP, many Army graduates are able to take their newfound understanding of inter-agency capabilities and jointness to forge the future of a more integrated and more capable US Army and US Government. It is clear that the Army has found a unique and invaluable resource in a government focused melting pot of higher education. However, the US Army is currently the only branch of the US Military that sends active duty officers to be among the ranks of the student body of this particular school. If the Army has found value from this program, why have the other services not followed the Army’s lead?

The US Army has recognized the importance of strategically focused professionals since the creation of the Functional Area (FA) 59 designation for Strategic Planning and Policy Officers. The Navy is starting to realize a need for a similar expertise to the Army’s FA 59 program. Making strides to create a new US Navy skill set, the Naval War College has recently begun its inaugural year of a Naval Strategy program. While the program is a first step in creating a corps of strategically thinking Naval Officers, it appears to be limited in scope and lacks a “full government” approach. To be prepared for the future of warfare, US Navy military planners will need to be familiar with the realms of conflict that reach far beyond naval engagements and sea power to remain effective.

It is my belief that the US Navy faces an additional hurdle in its pursuit of a strategic level expertise: the stigma that in order to remain relevant an officer must remain tactical. As a junior officer, I have seen my role as a tactical asset in the aviation community quickly diminished by the ever present budget cuts and the ever expanding age of unmanned aerial vehicles fulfilling every role from air-to-air combat to airborne vertical replenishment. However, when I attempted to look to the future and the Navy’s need to focus strategically, I quickly discovered that even inquiring how to shape the next generation of war fighter was frowned upon by the operational environment.

While the US Navy will always have a need to build young officers to sharpen the “pointy end of the spear”, an equal value must be placed on sharpening the young ingenious minds which will shape the strategic picture needed to effectively employ the Navy’s spear alongside the CIA’s arrows and the State Department’s shield in order to maintain America’s role as the preeminent foreign policy leader.

Future Tech

Super Tornadoes vs Wind Farms

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Rather than destroying the eye of the storm, which, according to the US National Oceanic and Atmospheric Administration (NOAA), is suggested every hurricane season, a new (crazy?) study from a Stanford University professor notes an additional advantage of building offshore wind farms. Besides creating clean energy, offshore wind farms could dissipate hurricanes!

At a time of the year when Pacific countries and islands are struck by this destructive phenomenon, this study comes as good news!

It almost sounds too good to be true. But scientists from Stanford University, Cornell University and the University of California-Davis, are categorical: “You can dissipate hurricanes so much that you can reduce wind speeds, peak wind speeds by more than half, and the storm surge by almost 80 percent in the case of New Orleans and hurricane Katrina,” says Mark Jacobson, professor of civil and environmental engineering at Stanford University.  The authors even declared that 78,000 turbines 90 meters high placed off the coast of New Orleans could have reduced Hurricane Katrina’s wind speeds by as much as 158 km per hour by the time they reached land. And they go on: 100,000 turbines located between New York and Washington, D.C., could have weakened the winds of hurricane Sandy by up to 140km/h and reduced storm surge by 34 per cent. It is not without mentioning the financial benefits of producing huge amounts of clean energy.

Professor Jacobson argues that the turbines could reduce the power of a hurricane so much that the turbines themselves would not be damaged: “The wind speeds are dissipated, the hurricanes are dissipated sufficiently so that you never get to the destructive wind speed of a turbine even in a hurricane such as hurricane Katrina, which destroyed much of New Orleans.”

When winds blow in the turbine blades, some of their kinetic energy is converted into electric energy. In theory, the winds converted could no longer be used within the hurricane, which would therefore slow it down.

Jacobson explains: “We found that when wind turbines are present, they slow down the outer rotation winds of a hurricane. This feeds back to decrease wave height, which reduces movement of air toward the center of the hurricane, increasing the central pressure, which in turn slows the winds of the entire hurricane and dissipates it faster.”

Another consequence of hurricanes are storm surges. This is when a hurricane causes waters along the coast to rise above the normal tide, resulting in wide-ranging flood. However, the study also affirms that wind farms could reduce storm surge by up to 79 per cent, due to lower wind speeds.

However, installing 78,000 offshore wind turbines would have a cost of hundreds of billions of dollars. But Jacobson is optimistic: “You get all that money back by electricity sales over 25-30 years, and you reduce storm surge and wind speed associated with a hurricane.” Still, is it realistic to think that this can be done?

Could this be true?

Hell, yes!

Professor Cristina Archer of the University of Delaware, who is a co-author of the study, is sure that wind farms are a new solution against the disasters that the U.S are often facing. She suggests locating wind farms in offshore areas where they could use the wind for electricity, offsetting fossil fuel use and its resulting emissions and pollution. “If you can be smart about it, then you can have still very, very high benefits and locally. So, for example, for [Hurricane] Katrina, we placed the turbines just up wind of New Orleans,” she said. “And, so we protected New Orleans by taking action in New Orleans. So [we showed that] local actions had actual local benefits.”

A climate scientist at Massachusetts Institute of Technology, Kerry Emanuel, is also optimistic “It’s a fairly straightforward calculation,” he says.”It’s not at all implausible.”

And they are not the only ones: Mark D. Powell, a hurricane researcher at the American National Oceanic and Atmospheric Administration is excited about the conclusions of Jacobson’s study. He declared that the agency would fly its data-gathering planes (with the pretty name of “Hurricane Hunter“) which are piloted into storms every season for meteorological research, into areas where Jacobson proposed to install turbines. Powell believes that by gathering hurricane wind data from those areas, scientists could be able to forecast how the hurricanes would impact turbine blades.

Hell, no!

However, NOAA is not planning to investigate any technique to reduce hurricanes for the moment. Powell explains that the organization is currently rather focusing on improving hurricane forecasts.

Dr. Ioannis Georgiou, director of the Pontchartrain at the Institute for Environmental Sciences from the University of New Orleans, with a background in storm surge and hydrodynamic modeling, also examined the study but he is not convinced.

“I’m not questioning the reduction in winds.” However, the scientist argues that more research are needed on certain aspects of the study, in order for before an investment to be made into offshore wind farms aiming at reducing hurricanes.

For example, he explains that the shoreline of Louisiana is far more complex than the research model shows. He also asserts that the research doesn’t entirely take into account the numerous ways storms could reach the coasts.

Professor Georgiou also affirms that storm surge is not directly related to wind speed. Therefore, reducing wind speed is not the solution to avoid storm surges.

Well, maybe?

An expert in northern hurricanes at Queens College in New York, Nicholas Coch, is sceptical. He said: “That wind farm couldn’t possibly drain that much energy out of the wind”. However, he is not surprised by the idea, which is not new, he says.  Indeed, many years ago, one man “wanted to build windmills along the Florida coast to blow hurricanes back to Africa,” Coch recalls.

Offshore wind farms are not welcome in the United States of America!

There is a good reason why scientists are looking for new ideas to fight against hurricanes: from levees to storm barriers, seawalls and dunes: nothing has worked yet!

Through stats, Jacobson showed that 14,000 offshore wind farms could supply 45 percent of energy demands of the State of New York by 2050. However, there are currently no offshore wind farms in the U.S.

And Jacobson’s proposal might be difficult to apply in America. Indeed, there has been political and social resistance in the United States to installing even a few hundred offshore wind turbines. Undeniably, public acceptance is an important hurdle to U.S offshore wind power has to deal with. For example, the Cape Wind project of 130 turbines for a potential output of 468 megawattshad been delayed by many lawsuits, saying that the deal would drive up electricity costs.

However, this project could be running by 2016 and be the first offshore wind farm. It would be placed off the shores of Cape Cod and it would be run by Cape Wind.

So, is it the time for Americans to turn to offshore wind energy? We would then see if Jacobson was right!

Alix is a writer, researcher, and correspondent on the Asia-Pacific region for Marine Renewable Energy LTD. She previously served as a maritime policy advisor to the New Zealand Consul General in New Caledonia and as the French Navy’s Deputy Bureau Chief for State Action at Sea, New Caledonia Maritime Zone.

 

Asia-Pacific, Global Analysis

Taiwan’s Defense: National Interests over Semantics

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The Diplomat has recently brought us a debate on international law – centering on the legality of military intervention on behalf of Taiwan during a conflict with the PRC. Zachary Kech kicked off by proposing that Japan’s recent reinterpretation of Article 9 of their Constitution to permit collective self-defense could allow for Japan defending Taiwan in the event of an attacked from China. This was followed by Julian Ku arguing that intervention by any nation on behalf of Taiwan against the mainland would be illegal since Taiwan is neither definitively recognized as an independent nation nor a United Nations member. Michal Thim quickly refuted those claims in an article, which is followed again by Julian Ku coming back with some clarifications on personal opinions and reiterates the original argument. Finally, Michael Turton and Brian Benedictus co-authored a somewhat convoluted argument that actually Taiwan’s unsettled status as an independent nation makes military intervention acceptable.

With no disrespect meant toward the authors, the merits of discussing this point are mostly academic. Though the debate may be stimulating to those with an interest in the topic and some might learn more about the subject of international law as a result of it, it has little to no bearing on practicality.

One of the key questions present in all of the articles is if Taiwan is an independent nation or an extension of mainland China and how international law views each situation. Clearly arguments can be made in support of both positions or else we would not have so many articles written about it in the past couple of weeks, but does it really matter? Whatever semantics used to describe relationships with Taiwan or China, the U.S. has active relationships with both of them.

Money keeps this machine running
Money keeps this machine running

According to the Office of the United States Trade Representative, China is currently the U.S.’s second largest goods trading partner with $562 billion in total goods trade during 2013 and Taiwan is currently the 12th largest with $64 billion in 2013. Would any of this change if the United Nations passed a resolution stating Taiwan was not an independent nation and officially a part of the larger mainland China? Of course not. Money, and more importantly national interests, will conquer over semantics any day.

Whether the U.S. or Japan would defend Taiwan if China decided to repatriate the island through military force should have nothing to do with semantics and everything to do with strategic interests. The strategic basis for protecting Taiwan or not is neither the subject of this article nor the debate at the Diplomat which inspired it. This article makes no comment as to should or would other nations protect Taiwan, but instead discusses could they.

There is so much talk about international law in the debate. International law, as opposed to simply international norms and conventions, has been in vogue since the fighting of two world wars and the founding of the United Nations. Why? Because law has an absolute and moral feel about it. If you are breaking the law then you are doing something wrong and others have a moral obligation to stop you. If you are following the law then you are doing something right and others have a moral obligation to support you. This grossly oversimplifies the complexities of international relations. Decisions are made to promote strategic national interests and all nations are not necessarily playing by the same moral and ethical code. In the domestic concept of law, you have a like peoples under a recognized government authority with enforcement power. This does not seamlessly translate to the international stage of co-equal governments with differing interests and no central authority with absolute enforcement power.

Welcome back
The Party welcomes you back

If China decided tomorrow to repatriate Taiwan with military force and the U.S. and Japan intervened, would they be protecting a sovereign nation from an invading force or helping to liberate a people from a government they do not want? This semantic difference might matter when deciding what article of the United Nations charter you are going to try to use for propaganda to gain support for your cause or generate opposition for your enemies or what the victor who writes the history will use to justify their actions in the history books. But in all practicality, nations should base their use of force on national strategy and not semantics.

LT Jason H. Chuma is a U.S. Navy submarine officer currently serving as Navigator and Operations Officer onboard USS SPRINGFIELD (SSN 761). He is a graduate of the Citadel, holds a master’s degree from Old Dominion University, and has completed the Intermediate Command and Staff Course from the U.S. Naval War College. He can be followed on Twitter @Jason_Chuma.

The opinions and views expressed in this post are his alone and are presented in his personal capacity. They do not necessarily represent the views of U.S. Department of Defense or the U.S. Navy.

Fostering the Discussion on Securing the Seas.