The Houthi Rebels’ Attack against Japan-Related Vessel in the Red Sea: An Idea of “the Right to Protect Uses of Sea”

On the 19^th of November 2023, a Japan related vessel, which was operated by the Japanese NYK was attacked by Houthis in the Red Sea. The crew was being taken as hostage, and still no report on its release has been given. The tense situation in the Red Sea and neibouring sea areas has continued by the repeated attacks against commercial vessels by Houthis.

The Red Sea is an important shipping route for international trade. At high seas where no States have sovereignty, international law, the United Nations Convention on the Law of the Sea, confers on every State the freedom of high sea including the freedom of navigation. This is a principle of international law not only under UNCLOS but also under customary international law that international society has established for several centuries. In jurisdictional sea areas of States, also, the freedom of navigation and the right to use oceans are recognized, as far as they are exercised in accordance with the legal rules thereon.

Now, one of the most important principles of international legal order, the freedom of navigation, has been violated. It is not an infringement on the individual interests of the victim vessel and its related States, but also that on the common interest of international society. Thus, in the sea areas concerned the US-led and EU-led coalitions of military operations have been deployed. The Security Council of the United Nations adopted resolution 2722 on the 10^th of January 2024. The UK and US have initiated military attacks against Houthi’s bases within Yemeni territory. To this, States and authorities in the world have opined different voices.

Recently, violations of the freedom of use of high seas and uses of oceans in various sea areas have taken place. Japan experienced that its research whaling in the Antarctic was violently obstructed by the Sea Shepard. Japanese government has requested the Danish government to extradite its former leader. Sabotage cases on the submarine cables and pipelines have occurred repeatedly, and after the Nord Stream incidents international society has serious concern on such sabotage.

What is a legal response possible against such infringements on uses of sea? UNCLOS provides for some provisions according to which the designated States may exercise the right of enforcement at sea and the right to try in their domestic courts. However, UNCLOS does not cover all obstructions to uses of sea. There are lacunae. When there is a lack of legal basis under UNCLOS for responding against an obstruction to uses of sea, what can the victims do?

No States are obliged to endure and tolerate any obstruction to their legal uses of sea. It would be against common sense. No laws would be accepted by anyone that are contrary to common sense. Based upon the common sense, this paper will devise a theoretical framework for “the right to protect uses of sea,” even irrespective of lack of provisions under UNCLOS for taking responding measures against obstructions to legal uses of sea. The critical point is to ensure a fine balance between the protection of uses of sea by the right to protect, on the one hand, and the avoidance of its abuse to prevent international disputes.

This paper will proceed as follows.

After Section I Introduction, Section II will make a general survey on the stances of Japan and the foreign States by focusing upon the arguments relating to the resolution 2722 adopted by the United Nations Security Council (SC) on the 10^th of January in 2024. Based upon such a survey, Section III will analyze in detail “the right to protect” for providing a possible theoretical framework thereon under the law of the sea. Some concluding remarks will follow.