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…

Reinterpreting the Constitution of Japan

(Initially published in the Japan Times, October 5, 2008)

The report of the “Panel on the Reconstruction of the National Security Legal Foundation,” commonly known as the Yanai Report, argues that a reinterpretation of Article 9 of the Constitution is necessary to permit Japan to participate in collective self-defense and collective security operations. Both activities are currently understood to be prohibited by Article 9, Section 1. The report reveals, however, a fundamental flaw that entirely undermines the legitimacy of the panel’s analysis.

The panel was created in April 2007 by then-Prime Minister Shinzo Abe to consider the need for a “reinterpretation” of the Constitution. The panel was composed of 13 prominent academics, former diplomats and government bureaucrats who were predominantly experts in international relations, politics and national security. It included only one constitutional scholar. The panel was criticized for being dominated by policy hawks who were on record as favoring constitutional revision. The chair, Yanai Shunji, a former ambassador to the U.S. and now a professor of Chuo University, submitted the panel’s report to the Cabinet in June. … Read more…

Japan Opens Up Way For Military Use of Outer Space

(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 more…

Canadian Charter Extended to Guantanamo Bay

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 more…