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Somali Piracy, International Customary Law, and the Dispatch of Japan's MSDF

Published online by Cambridge University Press:  07 May 2025

Alex Calvo
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The high occurrence of pirate attacks off the coast of Somalia has prompted an increase in the number of nations planning to send naval units to fight them. In the Asian continent, India has become the first to sink a pirate vessel, South Korea has announced the deployment early in spring of the 5,000 ton-class KDX-II destroyer Gang Gam-chan, and China is sending two destroyers and a supply vessel.

While these three countries have shown no qualms about deploying their navies in the Gulf of Aden, Japan has once more embarked on a painful debate on the legality of such a move, with the government looking for a legal basis on which MSDF units might be deployed and a number of commentators doubting this would be possible without either a constitutional amendment (or of the official government interpretation of the Constitution's warrenouncing Article Nine) or the passage of new legislation.

Type
Research Article
Information
Asia-Pacific Journal , Volume 7 , Issue 4 , January 2009 , e8
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Creative Common License - CCCreative Common License - BYCreative Common License - NCCreative Common License - ND
This is an Open Access article, distributed under the terms of the Creative Commons Attribution-NonCommercial-No Derivatives licence (http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial re-use, distribution, and reproduction in any medium, provided the original work is unaltered and is properly cited. The written permission of Cambridge University Press must be obtained for commercial re-use or in order to create a derivative work.
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Copyright © The Authors 2009

References

Notes

[1] On the Indian dimension: “India's decision to send INS Tabar to the Gulf of Aden to protect Indian shipping was triggered by the hijacking of a Japanese ship with largely Indian crew and the emotional criticism by the families of the crew of the seeming Government inaction. It was a tactical move taken in a hurry without much thought being given to the development of a strategic maritime security architecture in the region to protect the region against piracy as well as maritime terrorism, in concert with other affected countries. The development of such a mechanism needs attention.” B. Raman, “Active Defence Of Indian Shipping Against Somali Piracy: International Terrorism Monitor,” Paper No. 470, South Asia Analysis Group, November 21, 2008. For the Korean and Chinese angles: “ROK Anti-Piracy Operations”, NAPSNet Daily Report, Nautilus Institute, November 21, 2008; and Leo Lewis, “Beijing Ends 500 Years of Tradition As It Sends the Navy Out to Attack Pirates”, The Times Online, December 27, 2008, respectively.

[2] It must be noted that the League of Nations adopted in 1937 a convention against terrorism, which never entered into force, and that thirteen international agreements against terrorism have been concluded up to date, and a general convention has been discussed. See “UN Action to Counter Terrorism,” and Omer Elagab and Jeehaan Elagab, International Law Documents Relating to Terrorism, New York, Routledge-Cavendish, 2007.

[3] For a historical overview of the Barbary Wars, see Gregory Fremont-Barnes, Wars of the Barbary Pirates: To the Shores of Tripoli: The Birth of the US Navy and Marines, Oxford, Osprey Publishing, 2006. On China, see Cesar Chelala, “China Plays Maritime Chess,” Japan Times, January 22, 2009.

[4] Although it is not the subject of this article, United Nations Security Council Resolution 1846 to Address the Acts of Piracy and Armed Robbery off the Coast of Somalia, adopted on December 2, 2008, must also be noted. See also Eugene Kontorovich, “International Legal Responses to Piracy off the Coast of Somalia,” American Society of International Law, Vol 13, 2, February 6, 2009.

[5] Masami Ito, “Ruling Bloc Sets Stage for Antipiracy Mission,” Japan Times, January 21, 2009.

[6] Michael Penn, “MSDF Somalia Anti-Piracy Mission to be Launched Soon,” Shingetsu Newsletter No. 1265, January 29, 2009.

[7 ï¼½In the Lotus case (France v Turkey) it was held that usage is not the same as custom.

[8] Jeffrey Gettleman, “Pirates Outmaneuver Warships Off Somalia,” New York Times, December 15, 2008.

[9] Ibid.

[10] Christopher Hughes, “Japan's Re-Emergence as a ”Normal“ Military Power”, Adelphi Papers, Volume 44 Issue 368 & 369, London, Routledge, 2004.

[11] Michael Penn, “Somali Pirates and Political Winds Drive Japan to the Gate of Tears,” The Asia-Pacific Journal, Vol. 4-2-09, January 20, 2009. Updated version available here.

[12] Mark J. Valencia and Nazery Khalid, “The Somalia Multilateral Anti- Piracy Approach: Some Caveats”, NorthEast Asia Peace and Security Network, Nautilus Institute, February 12, available here.

[13] Thomas E. Ricks, “Emma Sky, British ‘tree-hugger’ in Iraq who learnt to love US military”, The Times Online, February 21 2009, excerpt from “The Gamble: General Petraeus and the untold story of the American surge in Iraq 2006-2008”, Books First, 2009, available here.