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The murder case on the Tajima is often referred to as pinpointing a weak point in the law of the sea. Was there really no way to avoid inflicting great and prolonged damage and pain on the persons concerned? The authorities concerned took the position that they were not allowed to intervene without a request from the flag state. In my view, however, the law of the sea does not preclude Japanese intervention while the vessel was in its internal waters.

Recounting of events

On April 7, 2002, a Japanese officer went missing on a tanker of Panamanian nationality Tajima, which was owned and operated by Japanese companies, on the high seas off the coast of Taiwan. A Filipino seaman later reported that he saw two other Filipino seamen beat the officer and throw him into the sea. At the request of the master, Japanese Coast Guard officers got aboard the tanker and detained each of the suspects in different rooms. The tanker entered Himeji port on April 12, when a team of Coast Guard officers went aboard as the Panamanian side requested, performed on-site investigations, and found the marks of blood in the vessel. Both suspects were reported to have confessed that they committed the murder.
Although the investigation report was delivered to the Panamanian embassy on April 19, the reply to this report was delayed for reasons allegedly of translation work and discussions made in the home country. The tanker was compelled to remain anchored offshore in the Himeji port for more than a month with the suspects put under house arrest by the authority of the master, which was a very unusual situation. On May 14, the Panamanian government asked for the provisional detainment of the suspects, and the following day the Coast Guard sent the suspects to the Tokyo High Public Prosecutor's Office under guard. It was still another month later that the Japanese government began the proceeding based on the Law on the Extradition of Fugitive Criminals upon receiving the request for the extradition of criminals by the Panamanian government.

The Law of the Sea does not exclude the jurisdiction of Japan

This incident caused spiritual and economic losses to, inter alia, the master, the crewmen, the owner of the tanker, and the people concerned with the tanker operations and management. It also gave rise to legal problems and other problems that concern the sea transport industry of Japan, which is heavily dependent on ships flying flags of convenience. Here, however, I wish to focus only on the question of whether the Law of the Sea was really an impediment to Japan in taking quicker action to deal with the case.
Reports are that the authorities concerned judged that the Japanese Penal Code does not apply, because the murder occurred on a foreign vessel on the high seas and the perpetrators were not Japanese, and that they would have take action quickly had Panama asked Japan to arrest and extradite them. In other words, they took the position that a coastal nation cannot intervene in such a case in any manner whatever unless the flag state of the vessel requests the coastal nation to take specific actions. In my view, this is not the correct interpretation of the Law of the Sea.

Jurisdiction over an incident that occurs on a foreign vessel in internal waters

The problem was that the fact that the incident had occurred on the high seas was emphasized too much, and little attention was paid legally to the facts that the tanker was anchored in a Japanese port in the internal waters of Japan and the murder case had a serious impact on Japan.
Although Panama reportedly mentioned the provisions concerning the territorial waters specified in the United Nations Convention on the Law of the Sea, internal waters must be distinguished from territorial waters. The Convention does not clearly specify a coastal State's criminal jurisdiction over a foreign vessel in its internal waters. Therefore, customary law based on the practice of States should be applied. According to the general practice of major States, the intervention of a coastal State is recognized if an incident on board a foreign vessel is considered to have an impact so serious as to disturb the peace and public order of that State. A murder case is a typical example; legal precedents show that even if people of coastal States were not involved, the coastal States exercised the jurisdiction in a number of cases.

How Japan should handle such a murder case?

The present Japanese Penal Code does not apply to a foreign suspect of a criminal act committed against Japanese outside Japan. If we interpret the Penal Code strictly, it may have been difficult to bring the suspects to criminal prosecution in this murder case. However, the fact remains that the state of affairs surrounding the murder continued without change until it was brought to internal waters of Japan, and the case had a serious impact on Japan. Under such circumstances, it is submitted, the Law of the Sea does not preclude the intervention of the authorities concerned. Had the authorities taken some practical steps for humanitarian purposes and human rights protection, such as allowing the suspects to go on shore and be kept under temporary detainment while negotiating with Panama, Japan would not have been accused internationally. The Japanese government is reportedly considering an amendment to the Penal Code. I hope that the above-mentioned point will be duly taken into account.*

* Subsequently, on July 11, 2003, the Diet adopted an amendment to the Penal Code, which makes the Code applicable to persons (irrespective of nationality) who commit certain serious criminal offences against Japanese nationals outside Japan.