The Legal Issues of Firing on North Korea’s “Rocket”

(Initially published in JapanInc.com, April 3, 2009)

As tensions mount and there is increasing talk of shooting down the “debris” from a pending North Korean rocket launch, there has been little discussion of what would happen if Japan shot down the rocket instead. While there is great public support for action, there should be some pause to consider the constitutional and legal issues of Japan’s military deployment in these circumstances.

North Korea continues to prepare for the launch of a an experimental satellite delivery system, widely suspected of being a Taepodong 2 long-range ballistic missile, scheduled for some time between April 4-8. While North Korea touts the launch as an attempt to put a satellite in orbit, many view it as a missile test in violation of a 2006 U.N. Security Council resolution. North Korea has provided notice of the flight path, which will take the missile over Japan and into the middle of the Pacific.

It was announced on March 28, that Japan’s Minister of Defense had issued orders to the Self-Defense Forces (SDF) to deploy Ballistic Missile Defense (BMD) assets (the land-based Patriot Missile batteries or PAC-3, and the maritime Aegis Cruiser based SM-3 systems) to shoot down “any part of a North Korean rocket that might fall toward Japanese territory” (link). The order, authorized by the prime minister, is said to be based on Article 82 of the SDF Law.

The provision provides the authority to order the SDF to take measures to destroy missiles or other falling objects (other than aircraft), which are suspected to be heading for Japanese territory and which could cause serious harm to persons or property (link). Others have written about the considerable technical difficulty that the SDF might encounter in trying to intercept actual debris from the first stage of the rocket, which is supposed to separate and fall to earth prior to the rocket passing over Japanese territory (link). … Read more…

Piracy and the Constitution

(Initially published in the Japan Times, March 26, 2009)

Once again the issue of Japanese contributions to international security efforts is the subject of tortured debate. And once again the proposed government policy, and aspects of the debate itself, reveals fundamental misunderstanding of the relationship between Article 9 of the Constitution and the relevant principles of international law.

This time, the issue relates to maritime piracy off the coast of Somalia, and the proposed deployment of Japanese naval vessels to the area. Predictably, the issue has triggered debate over the effect of the war-renouncing provision of the Constitution. A careful analysis, however, would suggest that the Article 9 prohibition on the use of force would not apply to the deployment of naval forces, or their use of weapons, to protect shipping from pirates in international waters.

Yet, it is clear that the government policy is being formulated under the shadow of Article 9. While the ships are initially being deployed under the authority of Article 82 of the Self-Defense Forces Law, the government has drafted and submitted to the Diet a permanent anti-piracy law, and it is around this bill that debate has focused. … Read more…

The “Yanai Report” on Article 9, Part 4

The next segment of my analysis of the Yanai Report is long overdue. The final two posts were supposed to be the critical analysis of the report, from both a constitutional and international law perspective. The constitutional criticism was briefly explained in my Op-Ed piece in the Japan Times, which can be found here. Before posting a more developed version of that, together with the international law critique, I am posting below the Japanese translation of the Op-Ed piece. It was declined by the Asahi Shinbun (ostensibly because it was too narrow in focussing exclusively on one fundamental flaw in the report), but I thought that it should be made available somewhere for wider consumption, since there has been little debate on this aspect of the report in the Japanese media. The eloquent translation is thanks to Prof. Norimoto Setsuko.

第9条の新解釈を押し付けようとすることの致命的な欠陥

一般に柳井報告として知られている「安全保障の法的基盤の再構築に関する懇談会」報告は、日本が集団的自衛および集団安全保障活動に参加することを可能にするためには、日本国憲法第9条の再解釈が必要であると主張している。現在は、いずれの活動も、第9条第1項で禁止されていると解されている。しかし、この報告書は、懇談会の分析の正当性を根底から覆す根本的欠陥を明らかにしている。

懇談会は20074月に、安倍晋三内閣(当時)によって、憲法の「再解釈」の必要性を検討するために設置された。懇談会は、13人の著名な学者、元外交官、その大部分は国際関係、政治、国家安全保障の専門家である官僚たちで構成されたていた。懇談会のメンバーの中に憲法学者は一人しかいなかった。懇談会は、憲法改正に賛成していることが公に知られているタカ派によって占められていると批判された。座長の柳井俊二は、元アメリカ大使であり、現在は中央大学教授であるが、6月に内閣に懇談会報告を提出した。

当時の福田康夫首相は、この報告書すなわち憲法の「再解釈」にはほとんど興味を示さなかった。しかし麻生首相は、第9条は「再解釈」されなければならないと、国連で繰り返し述べた。さらに柳井報告書が、官僚たちの間で歓迎され、政府内において次第に影響力を行使しそうな証拠がある。したがってこの報告書は、もっと公に吟味の対象とならなければならないのである。Read more…

The “Yanai Report” on Art. 9, Part 3

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 full, 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 more…