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.

From banking to healthcare, looking to Canada has become fashionable of late. It is also an example on equality rights. I served as an officer in one of the first Canadian warships to deploy with women among its crew. That was only after a spirited campaign waged by the military against the integration of women in combat roles, in part on the basis that they would undermine the cohesion and fighting effectiveness of combat units. There would be privacy issues, sexual tension, an erosion of the essential masculine warrior ethos, and ultimately a degradation of military effectiveness.

All of this was proved false of course. It was proved false again a few years later, in the early 1990a, when the Canadian military was again forced to adhere to the country’s constitutional values and open its ranks to openly gay and lesbian members. To the extent there was any disruption (and most studies have found there to have been none), it was minor and temporary, as the military sub-culture adjusted very quickly to the new reality – a reality that better conformed to the values of the society the military is sworn to defend.

The experience of Canada, Britain, Israel, Germany, Australia, and many other democratic allies of the United States (the troops of which are fighting alongside Americans in Afghanistan) have demonstrated that there is no significant impact on military effectiveness by the integration of gay and lesbian troops. Quite the contrary. As with the admission of women, and racial minorities before that, it broadened the recruitment base and increased the number of highly skilled personnel available to the military.

Moreover, to the extent that some think there might still be some disruption of cohesion, it is important to note that the cause would necessarily be the underlying prejudice and homophobia within the military sub-culture. To argue against integration is to suggest that such prejudice should be protected and nurtured. That is profoundly inconsistent with the values of a democracy, and utterly untenable. It was rejected decades ago when the discrimination against non-white troops was terminated.

Even putting aside questions of motive or rationale, the policy denying people the opportunity to serve in the military because of their sexual orientation constitutes unjust discrimination that is entirely at odds with the fundamental right to equal protection. The right to be treated as an equal, and not be discriminated against on the basis of shared but personal characteristics that are tied to one’s sense of identity and dignity, is a right that is at the foundation of all liberal democratic systems, and a bedrock of international human rights.

The violation of that right simply cannot be justified in this context. Not only is there no important purpose served by the policy, given the compelling evidence that integration would have no significant impact on military effectiveness, but the disproportionate harm it causes is extreme. As compared to a marginal and temporary impact at the very most (and most studies of such transitions in other countries demonstrate that there is no impact at all), the discriminatory policy not only injures those gay and lesbian members who are denied entry or are drummed out of the military. Rather, the policy perpetuates the societal prejudice against all homosexuals. The policy effectively communicates to the entire society that homosexuals are less worthy of our respect and concern than the rest of Americans. It signals that gays and lesbians cannot be trusted to serve in the defence of the nation.

But the harm does not even end there. It not only causes egregious harm to all gay and lesbian members of our society, but it erodes the normative power of the right to equality itself, and thereby undermines the very values of our democracy. It casts the United States as a backward nation relative to other liberal democracies in the protection of equality rights, and human rights more generally.

We used to quip in the Navy that “we are here to defend democracy, not to practice it.” Nothing could be further from the truth. A military cannot defend a democracy while doing violence to the democratic values that constitute the very foundation of the nation.

President Obama, in accepting his Nobel Prize, spoke in lofty terms about the requirement that all nations, weak and strong, must adhere to the legal standards that govern the use of force. He noted that the U.S. had played a leading role in creating that legal framework. And he went on to underline that the U.S. too must respect international law: “America cannot insist that others follow the rules of the road if we refuse to follow them ourselves. For when we don’t, our action can appear arbitrary, and undercut the legitimacy of future intervention — no matter how justified.”

And yet the absence of any public discussion or analysis of the legal issues raised by America’s efforts against terrorism is striking. Whether it be torture and extraordinary rendition, military commissions, the targeted killing by drone attacks in Pakistan, the planning of CIA assassination squads, the large number of civilian deaths in air strikes in Afghanistan, or even the prospect of military strikes in Iran, all of these raise significant and complex international law issues. But you will not find any meaningful discussion of those issues in the media, or indeed in the talking points, blogs, or analysis produced by most liberal or progressive organizations.

Consider the contrast between the media coverage of such topics and the analysis of the issues surrounding the Israeli operations in Gaza earlier this year. There were countless articles examining the legal significance of the claims that the Israeli use of force was disproportionate, that civilians and civilian structures had been targeted, and that Israeli forces were using illegitimate munitions. The coverage was often sympathetic to the Israeli position, but there was nonetheless an examination of the legal issues involved. In contrast, when in the same month American forces killed Afghani civilians in air strikes, there was no such analysis – the entire discussion revolved around the strategic and political ramifications of killing civilians.

Liberal advocates say in private that they did not want to raise the international law arguments against torture, because such arguments “do not play well” in middle America. So the focus of the debate in this country was on the ineffectiveness of torture, and how counterproductive it could be. That is a dangerous argument to stake one’s entire position on. The fact is that the prohibition of torture is one of the very few peremptory norms in international law (known as jus cogens norms) – meaning it is one of the most bedrock principles of international law that nations may not derogate from under any circumstance. The other such norms include the prohibitions on slavery, genocide, and piracy. Yet in America, the debate was over when and under what circumstances we might derogate from the norm, and liberals were afraid to raise the law, because it does not “play well.”

The danger in all of this is that if liberals and progressives are afraid to make the argument for international law and the rule of law, then the argument will not get made. Progressives, afraid of looking weak, abandon the defense of the rule of law in favor of functional arguments. And so the country lurches ever rightward, in a one-way ratchet effect, with crucial principles being left by the side of the road as political liabilities.
Yet this country is supposed to be a “nation of laws” that preaches to the world the importance of the rule of law. These principles are supposed to be foundational, part of the constitutional DNA of the nation. They are part of the identity that is presented to the rest of the world. It cannot reject international law without doing violence to its own notions of the importance of law and the rule of law.

Moreover, as President Obama said, if the U.S. does not respect and observe the international legal standards, then it will lose its legitimacy and moral authority in the world. And that means that the extent to which American policy conforms to international law, from military commissions to targeted killings in Pakistan, must be part of the national discourse. So progressives have to engage the legal issues more, both to help preserve the country’s identity as a nation of laws, and to help ensure that we at least understand whether policy complies with the law.

The debate over climate change legislation is beginning to heat up. The American Clean Energy and Security Act was passed by the House and is now before the Senate. The debate on this issue typically takes the form of environmental concerns about global warming pitted against economic fears about the cost of reducing greenhouse gases. It is often framed in left-right terms. But as Americans think about whether to support this legislation, they should ponder the national security implications of climate change.

The recognition that global warming will increase the threats to our national security and place ever greater demands on our military is not new. The Bush administration acknowledged the issue in the 2006 National Security Strategy. A national security think tank comprising retired military officers, including Marine General Anthony Zinni, issued a report on the subject in 2007, identifying the various ways in which man-made climate change will directly affect national security.

Areas of the globe will be increasingly ravaged by drought, on the one hand, and flooding from extreme storms and rising sea levels on the other. These will cause mass migrations of refugees, the breakdown of societies and resulting conflict over reduced arable land, living space and other resources. The conflict in Sudan today is in part caused by the prolonged drought in the region. The massive movement of refugees that followed both the recent flooding in Bangladesh and the typhoon that hit Myanmar are other examples of such climate-related disruption. Climate change is seen as a “threat multiplier” that intensifies instability and sows the seeds of conflict.

Such instability and conflict will affect the United States. Armed conflict and massive political upheavals pose the risk of ever-wider hostilities and thus draw the world powers into the fray if only to contain it. Dislocation and instability will also lead to the failure of states, which become incubators for the development of other threats. Consider Somalia in the 1990s and again today. The failed state of Afghanistan in the 1990s provided a base for the planning and launching of the Sept. 11 attacks. The initial failure of Afghanistan was not caused by global warming, but a study conducted for the National Intelligence Council predicts that climate change raises the risk of many more failed states in the future.

The Pentagon and the State Department increasingly factor these expected ramifications of man-made climate change into their strategic planning and policy development. But the impact on national security should also be part of the broader debate on emissions policy. The greater and more rapid the climate change, the more quickly these threats will emerge – and the greater will be the impact on our national security.

Thus, efforts by the United States to reduce carbon emissions and to lead the rest of the world in tackling global warming are partly an effort to reduce the likely threats to our own national security. As the military strategist Sun Tzu wrote more than 2,500 years ago, the very acme of military skill is never having to fight a battle. General Zinni echoed this wisdom recently, saying “we will pay to reduce greenhouse gas emissions today … or we’ll pay the price later in military terms. And that will involve human lives.”

Some still cling to the tired argument that the link between human activity and climate change has not been “proven.” But in military and strategic matters, we do not wait until a risk has actually exploded into reality or wait for potential threats to be proven before developing our defenses. We defend against our best estimate of the future threat. So even if some holdouts continue to doubt the causes of global warming, prudence still dictates that we act now to respond to the risk.

Of course, the scientific community overwhelmingly endorses the position that humans are causing global warming and that we are near the point of no return. Meaning, unless we take action now, climate change will increasingly and radically multiply the threats to our national security, and the future drain on our military resources will dwarf the economic cost of taking action today. And we will pay in blood as well as treasure. That is something we would do well to remember when we consider the climate change bill before the Senate.

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.