Japan is Failing in Sri Lanka

(Initially published as a blog-post at Sri Lanka Campaign for Peace & Justice, Nov. 10, 2010)

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. … Read more…

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…