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.

Read more…

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.

Jus ad Bellum Implications of Japan’s New National Security Laws

(Published in Opinio Juris, Apr. 21, 2016; re-published in The Asia-Pacific Journal: Japan Focus, Vol. 14, May 15, 2016)

Far-reaching revisions to Japan’s national security laws became effective at the end of March. Part of the government’s efforts to “reinterpret” Japan’s war-renouncing Constitution, the revised laws authorize military action that would previously have been unconstitutional. The move has been severely criticized within Japan as being a circumvention and violation of the Constitution, but there has been far less scrutiny of the international law implications of the changes.

The war-renouncing provision of the Constitution ensured compliance with the jus ad bellum regime, and indeed Japan has not engaged in a use of force since World War II. But with the purported “reinterpretation” and revised laws – which the Prime Minister has said would permit Japan to engage in minesweeping in the Straits of Hormuz or use force to defend disputed islands from foreign “infringements” – Japan has an unstable and ambiguous new domestic law regime that could potentially authorize action that would violate international law. … Read more…

Questioning U.S. Support for Japan’s National Security Moves

(Published in JURIST – Forum, Sept. 2, 2015)

AbeKerry-smallOn August 30, tens of thousands of Japanese citizens demonstrated outside of the Diet (parliament), and in other cities across Japan, protesting against draft national security legislation that would expand the permissible operations of the Self-Defense Forces (SDF). The bills are the culmination of an effort by Prime Minister Shinzo Abe to expand Japan’s role in international collective security efforts. To do so, however, the government has sought to “reinterpret” Japan’s constitutional limits on the use of military force, in a manner that circumvents the formal constitutional amendment process, and thereby undermines the rule of law and constitutionalism in Japan.

It is this process as much as the substance of the bills that has provoked the protests and triggered a constitutional crisis in Japan. Yet these developments have been largely welcomed in US policy circles. The objectives may be in America’s short-term interest, but a deeper understanding of the issues and a longer-term perspective would caution against US endorsement of this illegitimate process.

Constitutional Background

To understand the issues one has to begin with the constitutional limits. Article 9 of the constitutionrenounces war as a sovereign right of the nation, and the threat or use of force for the settlement of international disputes (Art. 9(1)). It also prohibits the maintenance of armed forces or other war potential (Art. 9(2)). These provisions have been consistently interpreted by the Cabinet Legislation Bureau (CLB) (which is loosely analogous to the US Office of Legal Counsel) and successive governments since the early 1950s, as meaning that Japan was entitled to use force for individual self-defense in the event of an armed attack on Japan; and that Japan was thus entitled to maintain a minimum level of armed forces necessary for such defense. This understanding was also implicitly confirmed by the Supreme Court in the Sunagawa decision, the only decision it has rendered on the issue. But the CLB has also clearly maintained that Art. 9(1) means that Japan is prohibited from any participation in collective self-defense as authorized by Article 51 of the UN Charter, or other collective security operations as authorized by the UN Security Council under Articles 39 and 42 of the UN Charter. … Read more…