CRAIG MARTIN

Continuing from the last post, this posting examines Part III of the Yanai Report, which is the heart of the argument on the actual interpretation of Art. 9. While the earlier posts were summaries combined with some select segments being translated almost in crfull, this posting is less a summary and more a full report on the substance of this part of the report. There is much to criticize here, but the analysis is left for the fourth and final posting on the report.

Part III, Section 1 – Opinions and Their Premises Regarding the 4 Scenarios: the panel returns to the question of constitutional interpretation, this time explaining “The Panel’s Fundamental Understanding of Art. 9.” In section one of this part, the panel outlines its opinion and its underlying assumptions with respect to the four problems. After rehashing the changes in threats already discussed above, it articulates the two assumptions that underlie its recommendations for the minimum necessary changes to the interpretation of the Constitution. These are i) that there must be continued maintenance of pacifism and international cooperation as fundamental principles of the Constitution; and ii) even where there is the exercise of collective self-defence or collective security operations under a new national security policy, it cannot be without limits. The panel indicates that the specific limitations will be discussed in Part IV.

Part III, Section 2 – The Interpretation of Art. 9: The panel turns next to its own interpretation of Art. 9. It again summarizes the government interpretation, then begins its discussion with the assertion that in interpreting laws and the Constitution, while it may be natural to interpret the text of each provision, it is also necessary to examine the entire context of the law in its entirety, the history of its formation, the country’s national strategies, the society as a whole, the economy, and other related circumstances. Read the rest of this entry »

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. Read the rest of this entry »

In June of this year the “Panel for the Reconstruction of the National Security Legal Foundation”, known informally as the Yanai Committee after the name of its chairman, filed its report with the government of Japan. The report called for a re-interpretation of Art. 9 of the Constitution so as to permit Japanese participation in collective self-defence and collective security operations. Both are currently understood to be prohibited by Art. 9.

Prime Minister Fukuda showed no interest in the report or the issues, and the report has received little public attention. With a new Prime Minister soon to be elected, and with emerging evidence that the Yanai Report is having more significant influence within the bureaucracy, it warrants more careful attention.

Over the next little while I will be posting entries here providing a detailed examination of the report. Since the report is not yet available in English (the original is available here), I will first provide an overview of the substance of those aspects of the report that I think are at least important for the analysis I wish to engage in. The substance should be reviewed in two posts, following which I will provide a segment with an analysis of the report – first criticizing its overall approach, and focusing on some of the interpretive errors that, in my view, the panel made; and then examining some of the limitations that it recommended be placed on the exercise of force, that may be useful for considerations of what a nuanced amendment might look like.

Background

Prime Minister Abe convened a “panel of experts” back in April 2007, to consider whether it was necessary to “revise the current interpretation of the Constitution”, in order to allow Japan to participate to a greater extent in international security activity. In particular, the panel was to consider four specific scenarios that highlighted the ramifications of the constitutional prohibition on collective self-defence and collective security operations.

The panel was comprised of thirteen people, mostly academics specializing in political science, foreign relations, and defence studies, and former government officals from the Ministry of Foreign Affairs and the Defence Agency. There was only one constitutional scholar among them, and only three legal specialists in total. The media was critical of the panel when it was announced for being a group with a public record of being hawkish on national security issues and of being critical of the constitutional constraints on Japan’s defence policy.

I wrote at the time (The Case Against “Revising Interpretations” of the Japanese Constitution ) that the exercise of using an extra-constitutional body to advance a “revision” of the interpretation of the Constitution, was illegitimate on a number of levels, the most important being that it was an end-run around the amendment provisions in the Constitution. The Report tends to confirm those concerns. Read the rest of this entry »

(Written for and appearing in Foreign Policy Digest)

Developments:

Japan’s Diet (legislature) passed a new Basic Law on Space on May 21 (the bill can be found in the index on-line here, and in pdf here ), which will permit Japan for the first time to use space for the purposes of contributing to national security. This constituted a marked departure from an almost 40 year old policy of strict non-military use of outer space.

While the passing of the law received some passing coverage in the Western press , the significance of this development remains largely unexplored. The move is important in two respects - the first being its place in a systematic widening of the scope of Japanese military activity notwithstanding constitutional constraints, and the second is the extent to which it may contribute to an escalation in the militarization of space among East Asian countries. This article focuses on the first aspect.

Background:

To put all of this into context one has to begin with the Japanese constitutional constraints on the use of force and maintenance of armaments. Article 9 of the 1947 Constitution provides that Japan forever renounces war and the threat or use of armed force for the purposes of settling international disputes. It also, in Art. 9(2), declares that it shall never maintain land, sea, or air forces or any other war potential, and that the rights of belligerency will not be recognized. Read the rest of this entry »

Canadian Supreme Court Repudiates the Legal Black Hole Paradigm

The Supreme Court of Canada handed down a judgment relating to detainees in Guantanamo Bay on May 23, holding that the one Canadian detained there may rely upon the Canadian Charter of Rights and Freedoms to obtain some due process protection from the Canadian government.

Overview

The decision has already been reviewed briefly from the perspective of Canadian constitutional law on the University of Toronto and Osgoode Hall law school blogs, so I will not repeat that process here. But the decision has importance from the perspective of international law, and the relationship between international and constitutional law.

I would suggest that the judgment refutes the arguments, voiced most recently by several scholars at the ASIL conference in April, that there are circumstances in the so-called “war on terror” in general, and the treatment of detainees in particular, in which neither constitutional law or international law (whether human rights or humanitarian law) ought to govern the conduct and procedures of the detaining forces.

The Supreme Court held that it is precisely when the agents of the Canadian government participate in conduct and circumstances that constitute violations of international law, that the application of the Charter will be triggered and its protections available to detainees (or at least Canadian detainees - more on that distinction below).

Background

Omar Khadr was 15 years old when he was captured by U.S. forces in Afghanistan in July, 2002. He was one of the few detainees who has been arraigned and who is actually moving towards a trial before the much-disputed Military Commissions in Guantanamo Bay. He has been charged with murder and with conspiracy to commit other acts of murder and terrorism. The murder charge arises from the death of a U.S. soldier during the skirmish in which he was captured. Read the rest of this entry »