The “Yanai Report” on Art. 9, Part 2.

Continuing from the last posting, this segment reviews the substance of Part I and Part II of the report, with particular emphasis on Part I. It will be recalled that Part I was entitled “The National Security Environment of Japan and the Need for a Reconstruction of the Legal Foundation”.

Part I, section 1

It begins by establishing the premise that it is necessary for the national security policy of Japan to adapt to changes in the international environment. Moving from that premise, the report then establishes that as a country governed by the rule of law, the national security policy must be constructed on a foundation of clearly defined laws. However, it argues that this foundation must constantly be re-examined so as to accord with the reality of shifts in the national security threats. It asserts that while the legal foundation as it now exists is based in part on the Constitution, it also reflects the historical reality, both in political and in strategic terms, that existed at the time of its formation. Since those circumstances have changed, it is appropriate to re-examine and reform the legal foundation to ensure it complies with today’s realities.

This conclusion is followed by several qualifiers, regarding the degree of change in the threat environment that makes such reform necessary, and the assertion that “it goes without saying that the interpretation of law cannot simply be a convenience to be adjusted in conformity with the circumstances. But nor does it mean that looked at legally, the interpretation that has been maintained until now is the only possible rational interpretation.” It then goes on to criticize the government interpretation of Art. 9 as being excessively complicated and inconsistent with international law.

Part I, section 2

The second section of Part I proceeds to review in more detail the changes to the international security environment. The upshot of this review is that there are more, and more diverse, threats to Japan. As such, it is concluded that it is necessary for Japan to not only maintain an effective defence organization for its own security, but in addition to also maintain the effectiveness of the U.S.-Japan alliance, and to make efforts to contribute to the security of the international society as a whole. Moreover, the legal base of Japan’s national security policy must be viewed from that perspective.

Part I, section 3

In section three of Part I, the report reviews the government’s interpretation of Art. 9. It begins, before getting to the interpretation, by emphasizing that there are differing interpretations and political conflicts over Art. 9. It then provides a fairly straightforward review of the government interpretation, being that Art. 9(1) does not deny Japan’s right to individual self-defence, or prohibit the use of the minimum force necessary to defend its territorial and political integrity; and as such, Art. 9(2) does not prohibit the maintenance of the minimum defence capability necessary for self-defence, and thus the SDF does not constitute the “war potential” prohibited by Art. 9(2).

On the other hand, the government has provided strict conditions for the exercise of force for self-defence, being i) there has been a sudden and unjust aggression; ii) there are no other means available to prevent the aggression; and iii) the use of force ought to be the minimum necessary for defence in the circumstances. Thus, it flows from this that collective self-defence, and collective security operations under authority, are prohibited by Art. 9(1).

Even participation in peacekeeping operations is limited to circumstances, and by specific conditions, such that there can be no possibility of using force other than for personal self-defence of SDF personnel. And logistical and rear-area support activity that is provided for coalition forces in situations such as Iraq and Afghanistan, must be carried out in such a way that they do not become integral to the use of force by such coalition forces, for such activity will constitute a violation of Art. 9(1), even if Japanese forces are not themselves using force. While this interpretation is thus described in the report, there is no analysis of the basis for it, or how precisely it relates to the text, nor any exploration of its origins and history.

Part I, section 4

Section four of Part I then examines the factors that militate in favour of reinterpretation of Art. 9. Once again there is a review of the changing threats and dangers in the international security environment, ranging from the proliferation of WMD and missile technology, the spread of terrorism, in addition to the traditional threats posed by nation states.

It then outlines the fundamental objectives of Japan’s national security strategy to meets such threats, being i) to maintain an effective defence capability in order to deter direct threats to Japan, and in the event they materialize, limit the harm to a minimum; ii) to continue to maintain the effectiveness of the U.S.-Japan alliance, since Japan cannot provide for its own security alone in the current threat environment; and iii) to contribute to the international peace and security efforts of the international society, since improvement of the international security environment as a whole help enhance Japan’s own security.

The report then proceeds to question whether the current legal foundation for national security policy, and particularly the government interpretation of Art. 9, is sufficient for the purposes of developing and executing a national security policy based on the foregoing strategy. Can Japan effectively support the U.S.-Japan alliance, it asks, if it cannot exercise the right of collective self-defence? Can Japan effectively contribute to UN operations, if it cannot use force for anything other than the repulsion of a sudden and unjust aggression on Japan itself?

After some further discussion of the four specified problems, (which are addressed in detail in the next part of the report), the panel concludes with the assertion that the analysis of these problems do not lead to the recommendation of a legally unreasonable re-interpretation of the Constitution merely to meet the exigencies of new circumstances. On the contrary, the panel claims that the interpretation being submitted is based on consistent logic and is in accord with international law. Moreover, it is the continued adherence to the government interpretation, with its inherent irrational elements, that is unreasonable.

Part II

In Part II, the panel examined the four specific problems. There is no need to review that discussion in any detail, as it is not that germane to the analysis that I will engage in the later assessment of the report. The four problems, however, as provided to the panel by Prime Minister Abe, were whether i) Japanese MSDF vessals in international waters could respond with force to assist U.S. forces in the proximity were they to come under attack; ii) Japan could use anti-missile defence weapons to strike an in-flight ballistic missile targeting the U.S.; iii) whether and in what circumstances the SDF could use weapons in UN peace keeping operations; and iv) to what extent could Japanese forces provide rear-area support for other countries involved in UN collective security operations.

With respect to each problem, the panel examines the legal constraints on the activity in question, pursuant to Art. 9, and then posits options for resolving the problem, in accordance with the aspects of the overall re-interpretation recommendations that are more fully addressed in the next Part.

To be continued… with reviews of Parts III and IV.

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