How and Why Japan Should Amend its War-Renouncing Article 9

(Published in The Japan Times, Aug. 4, 2012)

The pressure is mounting to either amend Article 9, the war-renouncing provision of Japan’s Constitution, or to increasingly disregard it and so make it irrelevant. In April the Liberal Democratic Party (LDP) published its proposal for amending the Constitution, and the dangers it posed for Article 9 was analyzed here on June 6 (“LDP’s dangerous proposals for amending antiwar article”). But the response to such amendment proposals by the supporters of Article 9 continues to be one of complete denial — that is, a categorical argument that Article 9 should not be amended at all.

This position is misguided. There are both strategic and legal reasons why the left must develop realistic alternative amendment proposals that would preserve and strengthen the core elements of the provision, but eliminate those elements that undermine it. In a chapter in the book “A Time for Change? Japan’s ‘Peace’ Constitution at 65,” published last month by the Woodrow Wilson Center for International Scholars (the chapter is available online: http://bit.ly/MWGF8T), I explain why Article 9 should be amended, and provide draft language that can serve as a basis for beginning a discussion on alternate amendment proposals.

Flat out rejection of any and all possible amendments to Article 9 is dangerous as a strategic matter. The national security environment of Japan has shifted in the last couple of decades, with the emergence of a nuclear-armed North Korea, and the growing military strength of China. In addition to these perceived threats, there is an increasing sense that Japan should be doing more to fulfill its international responsibilities. Moreover, the Japanese Self-Defense Force (SDF) has participated in non-combat roles in such conflicts as Afghanistan and Iraq with no adverse consequences. … Read more…

The Law and Congressional Red-Lines on Iranian Nuclear Talks

(Published in the Truman Doctrine blog, July 11, 2012)

The Moscow round in the talks with Iran over its nuclear program, in which the world powers are ultimately trying to prevent Iran from developing nuclear weapons, collapsed last month. The next round of talks are scheduled to begin soon. This has renewed claims that further talk is futile and harsher measures are required, and counter-arguments that diplomacy is failing precisely because the U.S. refuses to make reasonable and necessary concessions in the negotiations.

One of the central issues in this debate is whether the U.S. should “permit” Iran to enrich uranium for non-military purposes. Israel and its supporters in Congress have pressed for a categorical “red-line” in the negotiations, according to which Iran should be prohibited permanently from any enrichment whatsoever. Others have responded with powerful policy and strategic reasonswhy, on the contrary, a “concession” to acknowledge Iran’s right to develop a peaceful nuclear program, is necessary for there to be any meaningful chance of success in the negotiations. Past U.S. policy has, of course, been that Iran has the right to peaceful nuclear energy development, and the proposed red-line would be a departure from past policy.

The claims against Iran are, of course, framed largely in legal terms — and there should, therefore, be a careful consideration of the legal principles that relate to this central issue of Iranian enrichment. And an analysis of the law suggests that a U.S. failure to acknowledge Iran’s right to peaceful enrichment would not only be unprincipled and perhaps unwise, but it would be fundamentally inconsistent with the governing legal regime – the legal regime that is the foundation for our objection to Iran’s program to in the first place. … Read more…

LDP’s Dangerous Proposals for Amending Antiwar Article

(Published in The Japan Times, June 6, 2012, and in Comparative Constitutions blog, June 11, 2012)

The Liberal Democratic Party (LDP) published its new draft constitutional amendment proposal in late April. The draft reflects a number of significant changes above and beyond those advanced in the proposal unveiled by the LDP in 2005. The proposal includes a complete overhaul of Article 9, the war renouncing provision of Japan’s so-called Peace Constitution. These changes to Article 9 are important, and on balance, dangerous. The nature of these proposed revisions, and how they would likely operate, deserve to be examined in some detail.

Before addressing the changes, it is helpful to recall the meaning of the current provision. Article 9 has two paragraphs, which contain three essential elements. Paragraph one provides 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. This represents an incorporation of international law principles on the use of force into the Japanese constitution, to constrain future governments of Japan from ever again dragging the nation into a disastrous war of aggression.

Paragraph two contains two clauses. The first provides that Japan will never maintain land, sea, and air forces, or any other war potential. This is a unique provision, purporting to prohibit the maintenance of any military forces, and was designed to reinforce the prohibition on the use of force by making such use of force impossible. The second clause of paragraph two, which provides that the rights of belligerency will not be recognized, is even more novel. This was the incorporation of principles of international humanitarian law relating to belligerency, to further ensure that as a matter of constitutional law Japanese forces would not enjoy the rights and privileges of combatants in armed conflict. … Read more…

Comment on Jens Ohlin’s “Targeting Co-Belligerents”

(Published on Opinio Juris, as part of a book symposium, June 4, 2012)

Jens Ohlin’s chapter in Targeted Killings, Targeting Co-Belligerents,” provides an important analysis of one of the key questions in the targeted killing debate, and makes a persuasive argument in favor of one possible response to it. In doing so, however, I wonder if it leaves another fundamental question hanging, which I lay out below for him to address. First, however, let me provide a sketch of his argument.

Jens begins by noting how the US targeted killing policy, and the transnational terrorism against which it is directed, raises difficult questions regarding which legal regime should be controlling. Not only is there an ongoing debate as to whether responses to terrorism should be governed by domestic criminal law within a law enforcement paradigm, or public international law in the context of armed conflict, but even for those who accept the armed conflict paradigm there are debates over whether the principles of jus ad bellum or jus in bello are best suited to justify the targeted killing.

Against that backdrop, and assuming for the sake of his analysis that some targeted killing will be permissible in some circumstances, Jens addresses the question: “who can be targeted and why?” His stated objective is to investigate “the tension between national security and civil liberties through a distinctive framework: what linking principle can be used to connect the targeted individual with the collective group that represents the security threat?” As he explains, regardless of whether one approaches the problem from a jus in bello or a jus ad bellum perspective, the problem of linking the individual targeted to some collective is an essential step in the justification process. … Read more…