Revising Japan’s Nonnuclear Principles

(Initially published in The Japan Times, Aug. 18, 2010).

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. … Read more…

A Turning Point in Japan For Equality Rights?

(Initially published in the Japan Times, June 10, 2009)

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. … Read more…

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…