Since the end of the Cold War, and through the era of the so-called “Global War on Terror,” Japan has struggled to define and develop a meaningful role for itself in the world of international politics. Constitutionally constrained from participating in collective security operations that involve the use of force, it has sought to cast itself as something of a “power for peace.”(1) In its handling of the crisis in Sri Lanka, however, it appears to be losing its way. While providing a great deal of aid to Sri Lanka, Japan is failing to exercise its considerable influence to help reduce the causes of further conflict, and risks not only undermining its own ambitions but also significantly harming the chances for peace and justice in Sri Lanka.

Almost exactly twenty years ago, the run-up to the Gulf War of 1991 created a major crisis within Japan that has had an enduring impact on the country’s politics and policy. The Japanese government came under enormous pressure to contribute to the international effort to resist the aggression of Iraq, in a region from which Japan obtained most of its energy supply. But Japan was constrained by its Constitution from any involvement in the military operations. It ended up providing support in other ways, including giving US $13 billion to the effort, more than any other country. Yet it was scorned (unfairly) for its “cheque book diplomacy,” received little gratitude for its help, and came out of the crisis with a deep sense that it would have to find more meaningful ways to contribute to the international community – particularly given that it continued to nurture ambitions to obtain a permanent seat on the United Nations Security Council.

Japan turned to limited involvement in U.N. peacekeeping, participation in the development of such concepts as “human security” (2), and perhaps most important, the use of foreign aid, particularly in areas of ongoing or potential conflict, to increase its influence and shape its identity as a “power for peace.” With respect to Sri Lanka, in 2003 Japan tried to take a leading role by hosting the Tokyo Conference on Reconstruction and Development in Sri Lanka and it played an important role in the Norway-led peace talks that continued in the period that followed. Japan’s foreign aid to Sri Lanka, in the form of loans, grants, and the provision of technical assistance, has been part of that effort, and Japan has given far more foreign aid in the last ten years than any other country (3). In the 2007-2008 period alone, Japan provided US $ 288 million, more than three times the amount given by each of the U.S. and the E.U. (4), and Sri Lanka was tenth on the list of Japan’s top aid recipients (5). The benefits to Sri Lanka from such aid should not be minimized, and it will no doubt contribute to the economic growth and stability essential to (while of course not sufficient for) the post-war peace process in Sri Lanka.

Nonetheless, precisely because Japan is by far the largest aid donor to Sri Lanka, it is in a position to exercise considerable influence over the policies of the government in respect of ongoing humanitarian and human rights issues. These include the continued need for reintegration of tens of thousands of internally displaced persons (IDPs) into their home areas, ending the indefinite and completely unmonitored continued detention of thousands of suspected members of the Liberation Tigers of Tamil Eelam (LTTE) insurgents, the requirement for an independent investigation into war crimes allegations, taking meaningful steps to restore the rule of law, and generally moving to ensure that Tamil grievances are addressed (6). There is widespread consensus that a failure by the government to take these steps, as a means to resolving some of the underlying root-causes of the conflict will likely result in a resurgence of violence down the road (7).

There is little evidence, however, that Japan has used its unique position to meaningfully influence the government of Sri Lanka to develop policies that would address these issues and thus significantly enhance the chances for lasting peace. Back in 2008 when the ceasefire between the government and the LTTE broke down, Japan went so far as to announce that it was “considering” a review of its aid policy, but since then it has been conspicuously reluctant to criticize Sri Lanka government policy and conduct(8).

In the closing months of the conflict, when the world press was full of dire reports about hundreds of thousands of civilians having been trapped between opposing forces in the North, Japan did little publicly beyond issuing anodyne statements of concern and reaffirming its continued commitments to provide humanitarian assistance. In May 2009 the inaction of the Japanese government prompted the heads of Human Rights Watch, the International Crisis Group, Amnesty International, and the Global Centre for the Responsibility to Protect, to issue a joint letter to then-prime minister Taro Aso, asserting that Japan must shoulder its responsibilities to help prevent a humanitarian disaster in Sri Lanka (9). Japan did little in response. In October, 2009, five international and Japanese human rights groups wrote to the newly elected DPJ government urging it to follow the lead of Western governments in demanding the release of thousands of detainees (10). The government remained largely silent.

What is more, in the post-conflict period, Japan has sent mixed messages. In June 2010, Yasushi Akashi, Japan’s special envoy to Sri Lanka, visited the country and addressed the issue of proposed U.N. investigations into war crimes committed during the final months of the conflict. Upon his arrival in Sri Lanka Akashi stated that the rest of the world ought not to dictate to Sri Lanka how to resolve war crimes issues or develop the post-conflict reconciliation process, and said that it was up to Sri Lanka to define any role to be played by a panel recently established by the U.N. Secretary General. Yet four days later, to a wider international audience, Akashi stated that Japan in fact backed efforts by the U.N. to investigate alleged war crimes, and said that he had actually pressed Colombo to allow the U.N. to participate in the reconciliation process (11).

Japan can and should do much more in pressing the government of Sri Lanka to address the ongoing humanitarian, human rights, and rule of law issues in the post-conflict period. What is more, aside from its significant leverage as Sri Lanka’s largest donor and debt-holder, Japan could draw upon its own experience as a credible source of some historical lessons and moral authority in advising the government of Sri Lanka. For while the analogies are of course very imperfect, with the nature of the conflict being very different, Japan’s experience in the aftermath of World War II could nonetheless offer some insights.

The strength of the U.S.-Japan alliance and the depth and warmth of that bi-lateral relationship speaks to the possibilities for peace between former enemies when the defeated are treated with magnanimity and respect. The manner in which Japan itself, in the wake of the utterly devastating destruction of World War II, managed to evolve from a militarist regime into a pacifist liberal democracy with a hugely successful economy, is powerful evidence of the possibilities for peaceful change in the aftermath of conflict. We should also remember that the prosecution of Japanese war crimes by the International Military Tribunal for the Far East served an important role in restoring the legitimacy of the new post-war Japanese regime, and accelerating the return of Japanese sovereignty. This historical experience is not without its relevance for how Colombo might want to think about how to deal with the war crimes issues (12).

Instead of exercising leadership in some of these ways, however, Japan not only looks ineffective but indeed runs the risk of appearing cynical and unprincipled in its pursuit of strategic and geopolitical interests at the expense of both the “power for peace” image it aspires to develop and the peace process in Sri Lanka itself. This is because Japan’s studied refusal to join in criticism of the Sri Lankan government, while it continues to pour money into infrastructure development, could be construed as not simply more ineffectual cheque-book diplomacy but in fact an investment in the regime — no matter what. The reasons for both looking the other way and actively supporting the Sri Lankan government could range from securing Japan’s sea-lanes to its primary energy sources in the Middle East to precluding China from muscling in on Japan’s perceived sphere of influence. Not only does this undermine Japan’s efforts to define itself as a state with the ability and commitment to work for the high ideals of peace and security in post-conflict regions, but also its continued unconditional and uncritical support for the Sri Lankan government could cause real harm to the peace process in Sri Lanka.

Protestations about “quiet diplomacy” notwithstanding, the failure Sri Lanka’s most significant development assistance partner to support U.N., EU, and other governmental and NGO pressure upon the Sri Lankan government to address the many significant humanitarian and human rights issues, and respond meaningfully to other Tamil grievances, provides the government of Sri Lanka with the necessary space to evade and withstand international pressure. This not only raises the risk of perpetuating the human tragedy that continues to unfold in Sri Lanka notwithstanding the end of warfare but in the longer run it contributes to the possibility of a resumption of the conflict in the future. Quite apart from the moral implications, such a consequence is not in Japan’s interests, from the perspective of either its strategic and geopolitical concerns, or its efforts to become a “power for peace” with U.N. Security Council aspirations.

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1. Takashima Hatsuhisa, Foreign Ministry Spokesman, quoted in the “Japanese Wage Peace with Talks and Money, Pleasing Asians,” The New York Times, Dec. 8, 2002. For more on the effort, see Peng Er-Lam, “Japan’s Peace Building Diplomacy in Sri Lanka,” 21:2 East Asia 3-17 (2004).

2. The most recent iteration of this effort was a symposium on the subject of Human Security sponsored by the Ministry of Foreign Affairs in the summer of 2010. See http://www.mofa.go.jp/policy/human_secu

3. OECD data. It should also be noted that the motives for Japan’s foreign aid are mixed, and there is a body of scholarship that argues that Japanese ODA has during some periods been at least partially motivated by a desire to create markets and provide opportunities for Japanese companies. See, e.g., Bruce M. Koppel and Robert M. Orr Jr., eds., Japan’s Foreign Aid: Power and Policy in a New Era (1993).

4. OECD, World Bank, available on-line at http://www.oecd.org/dataoecd/0/7/1878751.gif

5. OECD, available on-line at http://www.oecd.org/dataoecd/42/5/44285062.gif

6. On the current conditions of IDPs within Sri Lanka, see reports available at Internal Displacement Monitoring Center, available on-line at http://www.internal-displacement.org/countries/srilanka; for more on the status and treatment of detainees, see International Commission of Jurists, Beyond Lawful Constraints: Sri Lanka’s Mass Detention of LTTE Suspects, September 2010, available for download at
http://www.icj.org/default.asp?nodeID=349&sessID=&langage=1&myPage=Legal_Documentation&id=23159 ; on the breakdown of the rule of law since the end of the conflict, see James Yap and Craig Scott, “The Breakdown of the Rule of Law in Sri Lanka: An Overview”, unpublished paper prepared for the Sri Lanka Campaign on Peace and Justice, posted on SSRN athttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1682133

7. See, e.g., “Victory’s Rotten Fruit: The Government’s Unpleasant Triumphalism is Sowing the Seeds of Renewed Conflict,” The Economist, Jun. 11, 2009; and see generally, Paul Collier et al., Breaking the Conflict Trap: Civil War and Development Policy (2003);

8. See BBC News, “Japan ‘reviews’ aid to Sri Lanka,” January 15, 2008, available on line athttp://news.bbc.co.uk/2/hi/south_asia/7189002.stm

9. “Joint Letter to Japanese Prime Minister on Sri Lanka,” Human Rights Watch, May 10, 2009, available on-line athttp://www.hrw.org/en/news/2009/05/10/joint-letter-japanese-prime-minister-sri-lanka

10. “Japan: Break the Silence on Sri Lanka Rights Abuses,” Human Rights Watch, October 22, 2009, available on-line athttp://www.hrw.org/en/news/2009/10/22/japan-break-silence-sri-lanka-rights-abuses

11. See “Japan Urges World Not to Dictate to Post-War Sri Lanka,” Reuters, June 16, 2010, available on-line at:http://www.reuters.com/article/idUSTRE65F23320100616; and “Japan Backs UN War Crimes Probe into Sri Lanka,” AFP, June 20, 2010, available on-line at: http://www.google.com/hostednews/afp/article/ALeqM5jY8mJYN7CrKTNKobNadHD1RvLiGQ

12. There is, of course, continued debate over the legitimacy and fairness of the Tokyo War Crimes Trials, with many conservatives in Japan being strongly critical of the entire process. Perhaps ironically, given the point I am advancing, the Indian Judge, Radhabinod Pal, who was the only Judge to have dissented in holding that all the defendants should be found not guilty of all charges due to the illegitimacy of the tribunal process, continues to be revered by such conservatives today.

The prime minister’s advisory panel on national security has recommended a reconsideration of Japan’s adherence to the so-called three nonnuclear principles. The panel specifically urged that the third principle, the prohibition on the introduction of nuclear weapons into Japan (which forbids not only the stationing of weapons in Japan, but even the transit of weapons through Japan), be relaxed in order to permit the U.S. greater freedom in deploying nuclear weapons in Japanese territory.

This is a bad idea for many reasons, but for one it would be inconsistent with the Constitution.

As is well known, Article 9, paragraph 1 of the Constitution renounces war and the threat or use of force as sovereign rights of the nation, while paragraph two prohibits the maintenance of armed forces or other war potential, and denies to Japan the right of belligerency. The long established official understanding of paragraph 1 is that Japan can only use the minimum military force necessary for its individual self-defense. It cannot use or threaten the use of armed force for collective self-defense, or for U.N. collective security operations.

Even this understanding, long embraced by successive governments, the courts, and the Cabinet Legislation Bureau, is a strained interpretation of a clause that clearly prohibits those uses of force that remain sovereign rights under international law — which are limited to individual and collective self-defense, and collective security operations. But the proposed changes to the nonnuclear principles would violate Article 9 under even the official interpretation.

The three nonnuclear principles were articulated by the government of Prime Minister Sato in 1967, and formally adopted in a Diet Resolution. Japan went on to sign the Nuclear Nonproliferation Treaty in 1970 and ratified it in 1976. The nonnuclear principles caught the imagination of the Japanese people and quickly became powerful elements of the broader pacifist identity associated with the constitution. As the only victim of nuclear weapons, this stance also made Japan a powerful symbol for the nonproliferation movement. Sato won the Nobel Peace Prize for his efforts.

Of course, reality is always more complicated and messy. Sato had in fact sanctioned a study to determine whether Japan should develop a nuclear weapons program. Only after deciding against it did he articulate the nonnuclear principles. Moreover, in 1969 he then entered into a secret agreement with U.S. President Richard Nixon and U.S. Secretary of State Kissinger to permit the stationing of nuclear weapons in Okinawa (then still under American control) in the event of a crisis.

Recently discovered evidence confirms that a secret agreement has also existed from even earlier, permitting American forces to “introduce” nuclear weapons into Japan itself without prior consultation, in clear violation of the third nonnuclear principle. The advisory panel actually argues that since the practice has been going on secretly, it should simply be formalized, and the principle prohibiting it abandoned.

That is absurd. When someone betrays an agreement or violates a compact, the response is not to formalize and perpetuate the breach, but to take measures to ensure that the violation cannot continue.

Which brings us back to the Constitution. Leaving aside the suspicion that the panel is also obliquely suggesting that Japan should consider developing its own nuclear weapons (a suggestion that has been advanced by politicians several times recently), even the presence of U.S. nuclear weapons in Japan would likely constitute a violation of Article 9.

First, such nuclear weapons could not be construed as being for the individual self-defense of Japan. While they would no doubt be part of the nuclear umbrella that serves to protect Japan, in legal terms the use of the weapons, and even their deterrent power (which effectively constitutes the threat to use the weapons), would not be for the exclusive defense of Japan, but rather would be for the defense of the United States, its other allies and perhaps its “vital interests.”

This is in fact consistent with recent U.S. National Security Strategy. It should also be noted in passing that while the deployment might be strategically useful for the U.S., it is certainly not necessary.

Moreover, it is very dubious whether the use of nuclear weapons could ever constitute self-defense as the concept is understood in international law. The Cabinet Legislation Bureau opined in 1959 that nuclear weapons could possibly be “defensive” in nature. Since then, however, the International Court of Justice, in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, held that it is improbable that the use of nuclear weapons could ever meet the tests of necessity and proportionality so as to be justified as self-defense.

The International Court of Justice also suggested that it was unlikely that such use could ever satisfy the humanitarian law prohibition against the indiscriminate and disproportionate killing of civilians. The threat of such use would similarly run afoul of the prohibition against the threat to use force, found in both the U.N. Charter and Article 9.

Some will argue that the weapons would not be under the command and control of the Japanese government, so would neither constitute the prohibited “war potential,” nor be the basis of a “threat or use of force” attributable to Japan. The Supreme Court of Japan famously decided in the 1959 Sunakawa case, using just such logic, that the U.S. armed forces in Japan did not constitute the “maintenance of war potential” as prohibited by paragraph two of Article 9.

But that was 50 years ago. The definition of aggression adopted by the U.N. General Assembly, and subsequently applied by the International Court of Justice, attributes culpability for aggression to states that permit their territory to be used by other states or entities for acts of aggression or the launching of armed attacks. Indeed, that principle was the justification for the U.S. invasion of Afghanistan following 9/11.

The same principles of attribution would apply by analogy to any use of weapons launched from Japanese territory, even if they did not constitute an act of aggression. These principles should therefore help shape the constitutional analysis as well. Thus, Japan cannot sidestep the constitutional prohibitions against maintaining “war potential” and the “threat or use of force,” through coy arguments that the nuclear weapons being deployed in Japan, with Japanese knowledge and consent, are not under Japanese command and control.

The “revision” of the nonnuclear principles would therefore require amending the Constitution to permit the use of force for collective self-defense, and the maintenance of “war potential” consisting of nuclear weapons.

There are many reasons why doing so would be ill-advised. But choosing to simply ignore the constitutional issues, and proceeding with changes to the nonnuclear principles that would lead to violations of the Constitution, would have much more serious consequences, both inside and outside of Japan.

Changing the nonnuclear principles would undermine the normative power of the constitutional system, raise questions about the country’s commitment to the rule of law, and reawaken the deepest suspicions among its neighbors.

A year ago this week, the Supreme Court of Japan issued a judgment that struck down a clause in the Nationality Act as being a violation of the Constitution. There are good reasons for everyone in Japan to celebrate that decision. While little noted outside of specialized legal journals at the time, the decision may have been the beginning of a more robust judicial protection of the right to equality in Japan.

The Nationality Act judgment was, of course, hailed as an historic decision — in part because it was only the eighth time the Supreme Court has struck down a law as unconstitutional; and in part because it would extend the benefits of nationality to tens of thousands of children born in Japan to Japanese fathers and foreign mothers who were not married. But much less noticed were the reasons of the court, and what that analysis meant for the right to equality itself.

Prior to this case, the courts of Japan employed a simplistic “reasonableness” test to determine if discrimination constituted a violation of the right to equality enshrined in Article 14 of the Constitution.

According to this test, the court would first decide whether the subject matter of the impugned law, which discriminated on the basis of some prohibited ground such as race, gender, creed, social status and the like, was an area upon which the government had the legitimate authority to legislate. If it was, and the means chosen by the law to advance the legislative purpose was rationally connected to its objective, then any discrimination it may have caused was deemed to be reasonable. It collapsed the entire analysis into a simplistic inquiry into whether the discrimination could be justified.

For example, a provision of the Civil Code limits the inheritance of illegitimate children to half that of legitimate children in the event that a parent dies without a will. This is discrimination based on family and social status, in apparent violation of Article 14 of the Constitution. The Supreme Court, in 1995, held that the objective of the law was to encourage people to marry, and to foster respect for the institution of marriage. The court reasoned that since the discrimination against illegitimate children might encourage prospective parents to marry, there was a rational connection between the objective and the means chosen, and so the discrimination was reasonable.

Now, the most insidious discrimination could be justified under this test. Indeed, something as horrendous as the Holocaust could be justified on the basis of a mere rational connection between objective and means. As such the right to equality in the Constitution of Japan, which on its face provides a strong protection against discrimination, in the hands of the courts was no protection at all.

But the Supreme Court may have finally abandoned this doctrine in the Nationality Act case of last year. The majority of the Supreme Court employed a more sophisticated analysis, looking at several key elements, and employing criteria external to the law in question. First, before examining the question of justification or “reasonableness,” the court carefully examined the nature of the discrimination itself and the harm that it caused. It explored how the provision discriminated against children on the basis of illegitimacy, and how the law not only harmed those children who were denied Japanese citizenship, but added to the stigmatization of all illegitimate children in Japan.

Turning to the question of justification, the court noted that the objective of the legislation was to ensure, as a condition of acquiring citizenship, that there is a close bond between the children born to unwed couples of mixed nationality, and the Japanese nation.

While the court accepted that the objective was legitimate, and within the scope of government authority to enact, it also concluded that the discrimination it created was not reasonable.

Yet, in its analysis of this “reasonableness,” the court employed external criteria in a manner that it had not done before. To begin with, it examined the extent to which marriage between parents was a sufficiently accurate proxy for a close bond between the child and Japan. The court concluded that, in this day and age, it was not. Marriage is simply no guarantee of where the child might live or grow up.

Moreover, the court looked to Japan’s obligations under international law to not discriminate against persons on the basis of legitimacy, as yet another yardstick for assessing the law’s reasonableness. It further inquired into whether there were alternative methods of ensuring a close bond between children and Japan, which would not discriminate on the basis of legitimacy.

Finally, the court examined the proportionality between the grievous harm caused to children by the discrimination, and the marginal benefit alleged to be gained by the legal distinction in the Nationality Act. It was only able to do this, of course, because it had initially made a careful inquiry into the nature of the discrimination and the harm that it caused, and the objective of the law itself. Each of these elements of the analysis went far beyond the “reasonable discrimination” test traditionally employed by the courts, and together form a framework that is designed to give real effect to the right to equality.

The right to be treated equally, and not to be discriminated against on the basis of personal characteristics in a manner that perpetuates unfair stereotypes and prejudice, and unjustly denies benefits or imposes burdens, is one of the most basic and profoundly important legal rights in a democracy. If the more sophisticated analytical framework employed in the Nationality Act case becomes the standard doctrine for discrimination claims, then the right to equality enshrined in the Constitution will be given new life. All minorities in Japan, not just foreigners, will benefit.

Indeed, since discrimination against the aged is one of the forms of discrimination that is prohibited by Article 14, everyone in Japan’s aging society may have good cause to celebrate the development of this new doctrine, and the re-birth of the right to equality in Japan.

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).

An equally difficult problem, however, may be distinguishing between debris and the rocket itself. And indeed, it is not so difficult to imagine a temptation among some in the chain of command to rely on that difficulty, and to take a shot at the rocket itself. Shooting down the missile itself, under cover of confusion, might be seen as sending a powerful message regarding both Japan’s BMD capability, and its political will to use military force to defend Japanese territory.

Therein, of course, lies the legal problem. The missile is expected to be at an altitude of 600 – 1000 kilometers above the Earth by the time it is passing over Japan (link). In other words, it will be in what is generally considered, for legal purposes, “outer space”. While there is no exact definition of the demarcation between a state’s territorial air-space, over which it may exercise complete control, and the lower limits of outer space, the most accepted range is 160 kilometers (or 100 miles). That is the lowest altitude that can sustain free orbit.

Outer space is, under international law, the “province of all mankind”, and all nations have both the right and an interest in the exploration and use of outer space (link). While states may control absolutely and deny access to the airspace over their territory, they have no control over, or right to interdict, the passage of vehicles through the area of outer space that lies above their national territory.

If Japanese forces were to fire on and destroy the North Korean missile in its trajectory over Japan, it would first of all exceed the authority conferred by Article 82 of the SDF Law. It would also be a violation of the international law governing the use of outer space. The fact that the launch might itself be in violation of a U.N. Security Council Resolution would not alter that fact. Moreover, it would constitute the use of armed force against the vessel of another country, and that would have both international law and constitutional ramifications.

Indeed the constitutional issue is the most important in terms of Japan’s internal legal order. For this use of armed force against the vessel of another country in an international common area (that is, outer space), would most certainly constitute a violation of Article 9 of the Constitution. Paragraph 1 of Article 9 provides (in part) that “the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.”

There can be no doubt that there is an international dispute among North Korea on the one hand, and Japan, the United States, South Korea and indeed the rest of the international community on the other. The dispute centers on North Korea’s continued efforts to develop nuclear weapons and delivery systems. It is a dispute that has been the subject of U.N. Security Council Resolutions, including Resolution 1718 of 2006, which prohibits North Korea from any further ballistic missile testing (link). Shooting down a rocket that is widely suspected to be a disguised ballistic missile test would constitute a use of force as part of efforts to resolve this international dispute, and thus would violate Article 9.

For those who might be tempted to feebly raise the issue of self-defense, in these circumstances there would have to be very clear and compelling evidence that the trajectory of the rocket was such that it was certain to hit Japanese territory before any claim of self-defense could gain credence. The preliminary evidence is that the missile is programmed for a trajectory taking it over Japan and into the Pacific, and that it is indeed carrying a satellite rather than a warhead (link).

The launch by North Korea is a most unwelcome provocation, and there are all kinds of arguments about how the international community should best respond. But a miscalculation by Japanese forces in the frenzy over preventing “debris” from falling on Japanese territory, could not only gravely complicate the international situation, but also create serious legal and constitutional problems for Japan.

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.

Opposition to the bill has centered on questions of whether the Maritime Self-Defense Force (MSDF) vessels would be permitted to assist foreign ships, what degree of relationship with Japan would be necessary to justify MSDF intervention and under what circumstances weapons could be employed against pirates.

This is quite clearly due to the influence of the government interpretation of Article 9 as prohibiting any use of force by Japan except for the purposes of “individual self-defense” — meaning the direct defense of Japan. Similarly, the opposition to the policy is being shaped by Article 9.

The criticism is that any use of force by the MSDF to defend ships of other nations would somehow constitute “collective self-defense,” which is understood to be prohibited by Article 9. Similarly, it is argued that any use of weapons for purposes other than strict self-defense would be prima facie illegitimate.

But these concerns fail to consider the true nature of the prohibition in Article 9. Paragraph 1 of Article 9 states (in part) that “the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.”

The words “as a means of settling international disputes” qualify and limit the scope of the prohibition. The provision does not purport to prohibit the use of force of any kind whatsoever by the organs of the state. For instance, it clearly does not prohibit the use of force for ensuring internal security, and the Japanese police can legally use force to break up riots or armed insurrections.

The language and the drafting history of the provision clearly suggest that it was aimed at prohibiting participation in armed conflict, principally with other sovereign nations, as a means of furthering the foreign policy of the state and resolving disputes with or between other nation states. In short, the use of force contemplated by the provision is the use of military force employed against the territory and people, and the armed forces or other agents, of another state.

So the question then, is whether the deployment of the MSDF, and the possible use of armed force by the MSDF, to help prevent piracy in the Gulf of Aden, falls within the scope of this constitutional prohibition of the use of force. To answer that question, one has to understand the concept of “piracy” in international law.

Piracy has been an international crime under the Law of Nations for several centuries. The prohibition of piracy under international law is generally understood to have risen to the level of jus cogens (compelling law), meaning that it is one of the few peremptory norms from which no country may derogate.

The International Court of Justice has confirmed that pirates are to be considered the enemy of all mankind, and that any nation may, in the interest of the entire world, capture and punish those engaged in piracy.

Piracy, under most generally accepted definitions, constitutes illegal acts of violence or any other act of depredation, committed for private ends by the crew of a private ship (or aircraft), that is directed against another ship (or aircraft) on the high seas or in a place outside the jurisdiction of any state.

The key elements of this definition are that it is a criminal act, perpetrated by private individuals for personal ends, outside of the jurisdiction of any state (which, incidentally, is quite different from non-state actors engaged in terrorism, a quintessentially political activity, typically conducted within the jurisdiction of a state, and often supported or harbored in another state).

Any use of force against pirates in international waters, either to defend private shipping from their attacks or even to apprehend them and bring them to justice, cannot be construed as a use of military force for the purpose of settling international disputes. Such action does not involve the application of force against the agents of another state, the engagement in armed conflict with the forces of another state, or any other act of war. The laws of war under international law would not be triggered by the use of force against pirates, and it would not apply to such conduct.

In short, such use of force against pirates, in international waters, cannot fall within the scope of the prohibition in Article 9 of the Japanese Constitution. Now, to be sure, the MSDF would have to take care that the target of their activity legitimately fell within the definition of “pirates,” and that they were in international waters. Conducting activities in the territorial waters or on the shores of Somalia, for instance, would raise entirely different issues.

In the past, failure to sufficiently understand the applicable international law, and the relationship between such principles of international law and the proper interpretation of Article 9, has resulted in Japanese participation in international military operations that arguably violated the Constitution.

It may be understandable, therefore, that some in Japan will be apprehensive that the deployment of the military for any reason may open the door to further unconstitutional activity. And, indeed, there is a real and significant risk that such deployments of the military could be used cynically by the government to undermine the powerful norms within Japan against the use of military force.

Those concerned about this risk may be tempted in these circumstances to invoke the Constitution as a bar against the deployment against pirates. But that would be dangerously counterproductive. It would simply contribute to a process in which political forces exploit constitutional arguments for instrumentalist purposes, whether they be cynical or benign, leading to confusion and disagreement over the meaning of the Constitution, and the overall weakening of its authority.

There may be room for debate over the wisdom of deploying naval forces to defend against pirates on the high seas. The Constitution should not be part of that debate. One of the key defenses against government infringement of the actual constitutional principles is to ensure that the scope and meaning of the principles remain clearly understood and widely shared. And the government ought to ensure the integrity of the Constitution by applying its provisions consistently, and in accordance with that understanding, in the shaping of national policy.