Japan’s Definition of Armed Attack and ‘Bloody Nose’ Strikes Against North Korea

(published in Just Security, Feb. 1, 2018)

Shinzō_Abe_and_Donald_Trump_in_Palm_Beach_(2)There has been an important discussion in the last couple of weeks over the legality of possible limited strikes, part of a so-called “bloody nose” strategy, by the United States against North Korea. The main issue of that debate has been quite conclusively determined: such a strike would not be legal. And as Victor Cha, the White House’s pick, until recently, to be ambassador to South Korea, laid out in an op-ed this week, it would be deeply misguided as a policy choice. There remains more to be said, however, about a couple of interesting and potentially important questions regarding Japan’s position in relation to such strikes. One, which has been raised but not fully answered in the discussion, relates to whether Japan has already somehow consented in advance to U.S. action in collective self-defense of Japan. The second, which has not been explicitly addressed at all, is whether Japan defines “armed attack” for purposes of triggering the right of self-defense differently than does the U.S.

To recap briefly, the debate was set off by an essay in Lawfare by two West Point professors, Army Lt. Col. Shane Reeves and Army Capt. Robert Lawless, arguing that limited strikes on North Korea would be lawful. Virtually all elements of their argument were quite persuasively demolished by Kevin Jon Heller in Opinio Juris, and Michael Schmitt and Ryan Goodman here in Just Security.

A central premise of one strand of the Reeves/Lawless argument was that the test-firing of a North Korean intercontinental ballistic missile (ICBM) into the territory of Japan could constitute an armed attack, triggering an American right to use force as an exercise of collective self-defense. They were dismissive of the position of the International Court of Justice (ICJ) that collective self-defense requires a request from and consent of the country under attack, suggesting that the 1960 Treaty of Mutual Cooperation and Security between the U.S. and Japan (the “U.S.-Japan Security Treaty”), “may provide a basis” for American action. They went on to note that, in their view, Japan was in any event very unlikely to oppose American strikes in defense of Japan.

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The Omar Khadr Settlement Reaffirms Canada’s Values

(Published in the HuffPost, July 17, 2017).

Omar_Khadr_-_PD-Family-released

Much has been written both for and against the recent Khadr settlement, in which the Canadian government provided Omar Khadr with an apology and a $10.5 million payment. But the debate has largely focused on the wrong issue. Much of the discussion revolves around what Omar Khadr “deserves”—whether he deserved the treatment he received because he is a “confessed killer and terrorist”; or whether he now deserves the apology and payment because he is a “victim of torture and a denial of justice”.

As much as the settlement is about Omar Khadr and what he may deserve, it is more importantly about what Canada and Canadians deserve. An apology is not only for the benefit of the aggrieved, but for the integrity of the apologizer. Canada and Canadians deserves the atonement, the reaffirmation and restoration of our values, that is made possible by the settlement. Let me explain.

Canadian Values

The starting point has to be with our own values as a nation. What does Canada stand for, and what does it mean to be Canadian? We we are a liberal democratic country founded on constitutionalism, respect for human rights, and the rule of law. While the Charter of Rights and Freedoms has only been part of our constitutional system for some 25 years, surveys show that it has come to be the most significant determinant of Canadian national identity. This is likely because Canada has for much longer been a champion of international human rights, and international law more generally. In short, we are a nation that respects and embraces human rights.
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Canada’s Support of U.S. Strikes on Syria Harms International Law

(Published in the HuffPost, May 1, 2017.)

Tomahawk-Missile

In the immediate aftermath of the American missile strike against Syria, Prime Minister Trudeau announced that Canada “fully supports” the U.S. in its “limited and focused action to degrade” the Syrian government’s chemical weapons capability. Many Canadians appear to think that this was the right call, given the heinous nature of the chemical weapons attacks in Syria. But the U.S. missile strikes violated international law, and weakened the international rule of law. Canada’s swift and strong support for those unlawful acts will in turn do further harm to the international law system. That is not at all consistent with Canada’s traditional support for international law. It was not necessary, and the Canadian government should re-consider such support for future American unilateral attacks.

Let us begin with the question of legality. Article 2(4) of The United Nations Charter and customary international law provide for a strict prohibition against the use of force against other states. There are only two exceptions to that prohibition, permitting states to use force either in individual or collective self-defense (Article 51), or when authorized to do so by the UN Security Council for purposes of maintaining or restoring international peace and security (Articles 39 and 42).

There is an amazingly strong consensus among international law scholars, even within the United States, that the U.S. missile strikes constituted a clear violation of the prohibition against the use of force. These views have been articulated in such renowned national security and international law blog sites as Lawfare, Just Security, EJILTalk!, and Opinio Juris. Such a consensus is remarkable given how divided opinion has been on the invasion of Iraq, drone strikes in Yemen and Pakistan, or even the American strikes within Syria against ISIS. There is so little disagreement on these recent strikes, however, because there is virtually no plausible argument that they satisfy either of the established exceptions.

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Article Examining Japan’s “Reinterpretation” of Article 9 Through the Lens of Informal Amendment Theory

Fordham-webMy latest big law review article has just been published: “The Legitimacy of Informal Constitutional Amendment and the ‘Reinterpretation’ of Japan’s War Powers,” 40 Fordham International Law Journal 427 (2017). It analyzes the “reinterpretation” of Article 9 of the Constitution of Japan for what insights it can offer our understanding of theories of informal constitutional amendment. At the same time it examines what those theories can tell us about the legitimacy of the Japanese “reinterpretation.” The abstract is as follows:

The government of Japan has purported to reinterpret the famous war-renouncing provision of the Constitution in a controversial process that deliberately circumvented the formal amendment procedure. This article argues that these developments should be of great interest to constitutional law scholars in America because they bring into sharp focus issues that remain underdeveloped and unresolved in the debate over informal amendment. Theories on informal amendment suggest that there are some constitutional changes that exceed the reasonable range of normal interpretive development, but which are not implemented through formal amendment procedures. The existence, scope, and legitimacy of such informal amendments remains hotly contested.

This article focuses on the key issue of legitimacy. It uses the Japanese reinterpretation as the context in which to explore the relationship among three suggested factors affecting the legitimacy of informal amendment, namely: the public ratification of the change; the intent of the agents of the change; and the passage of time. It also suggests a new way of conceptualizing the relationship among authority, legitimacy, and time in thinking about informal amendments, in that the level of constitutional authority and degree of legitimacy that may be enjoyed by contested changes will begin to diverge with the passage of time.

The article argues that deliberate attempts to effect significant constitutional change in a manner calculated to circumvent the formal amendment process—such as the Abe government’s reinterpretation effort in Japan—are prima facie unauthorized and illegitimate at the time they occur. Moreover, only the most explicit and deliberate expressions of popular sovereignty can serve to legitimate such changes. But while such deliberate informal change will always remain unauthorized, it may be legitimated with the passage of time. I argue that this legitimation may, and should, take longer than for less contested forms of change.