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.

第９条の新解釈を押し付けようとすることの致命的な欠陥

一般に柳井報告として知られている「安全保障の法的基盤の再構築に関する懇談会」報告は、日本が集団的自衛および集団安全保障活動に参加することを可能にするためには、日本国憲法第９条の再解釈が必要であると主張している。現在は、いずれの活動も、第９条第１項で禁止されていると解されている。しかし、この報告書は、懇談会の分析の正当性を根底から覆す根本的欠陥を明らかにしている。

懇談会は2007年4月に、安倍晋三内閣（当時）によって、憲法の「再解釈」の必要性を検討するために設置された。懇談会は、13人の著名な学者、元外交官、その大部分は国際関係、政治、国家安全保障の専門家である官僚たちで構成されたていた。懇談会のメンバーの中に憲法学者は一人しかいなかった。懇談会は、憲法改正に賛成していることが公に知られているタカ派によって占められていると批判された。座長の柳井俊二は、元アメリカ大使であり、現在は中央大学教授であるが、6月に内閣に懇談会報告を提出した。

当時の福田康夫首相は、この報告書すなわち憲法の「再解釈」にはほとんど興味を示さなかった。しかし麻生首相は、第９条は「再解釈」されなければならないと、国連で繰り返し述べた。さらに柳井報告書が、官僚たちの間で歓迎され、政府内において次第に影響力を行使しそうな証拠がある。したがってこの報告書は、もっと公に吟味の対象とならなければならないのである。

この報告書は、冷戦終結以降、日本および国際社会には脅威が増大し、脅威の種類も様々になって国際的な安全保障の環境が変化したため、これまで確立されてきた憲法の解釈は、もはや適切ではないと主張している。むしろ、９条は重要な安全保障の目的の遂行を妨げているというのである。

このように、この報告書は、一層効果的な防衛力と一層強固な国家安全政策の展開を可能にするために、第９条の解釈は「改め」なれなければならないと主張している。日本を効果的に防衛し、日本の安全保障にとっての要である日米安全保障条約を支持し、日本の安全保障につながる国際的な平和と安全保障に貢献するという戦略的に緊急性を要することがらを遂行するためにはこれが必要であるというのである。要するに報告書の主張するところは煎じつめればこうである。「日本はより多くの脅威にさらされている。したがって、第９条の意味は、われわれがこれらの脅威によりよく対処できるように変えられなければない」。

（このような）政治的分析は賞賛に値する。しかし、憲法的分析としては、このような主張は、不合理である。現在の（国際）状況が提起した諸問題を識別するところから始めて、（次に）これらの諸問題を解決するのに必要な政治的対応を決定することに移り、それからそのような政策を採用することを促すための憲法条項の解釈に終わるというアプローチそのものが全く不合理なのである。

いかなる憲法理論の定説においても、憲法の解釈は、ある特定の条項の結論や政治的な関連問題から出発し、次にその条項の意味を政治的に望ましい成果を実現できるようなやり方で反対向きに移っていくことはできない。そのような結果志向の論法は、明らかに説得力に欠ける。それどころか、報告書の中で主張されているところとは異なり、懇談会が行ったのはまさしくこのことなのである。

憲法は自国の基本的な法的枠組みを形成している。その諸条項は、将来の世代に対して、このようにつくられたシステムの制限内で、かつ憲法が具体化した価値や理想に従って行動することを義務付けている。ある憲法条項の意味は、その条項それ自体の正文を考慮し、その条項が達成するように企図されている目的を理解して決定しなければならない。そうしたプロセスを助けるものに、憲法の他の部分への考慮や憲法制定・批准の歴史がある。それらは、そのプロセスの中で書き上げられた法的諸原則が教えてくれる。

基本的な法原則を運用するにあたって、一貫性、安定性、予測可能性は、法治主義にとって決定的に重要であるから、その条項の裁判所や憲法上必要な権限を備えた統治機構によるその後の解釈や長年にわたるその運用もまた解釈のための重要な基準である。

憲法解釈については様々な理論がある。他のものに比べ、正本と憲法制定者意思により結合しているものもあるし、憲法は、裁判所における解釈の長年にわたる積み重ねを通して、また価値観の変動や国の現実状況に伴って徐々に発展する生きた制度であるということを強調する研究方法もある。しかし、認識された政治上の必要性に合わせるため、その場しのぎの極端な政府による条項再解釈を予定するような憲法解釈論は存在しない。

仮に、国の状況に重要な変化が、ある憲法の条項を継続して持ち続けることに疑義が生ずるほどのものになった場合には、適切な道は憲法を改正することである。状況の変化、さらには価値観の変化でさえも、明らかに予定されている。通常（憲法）改正手続きは憲法システムの一部分をなしている。日本国憲法に例外ではない。日本国憲法はドイツやアメリカ合衆国よりも簡単な改正手続きをもっているのである。

その場しのぎの「解釈」とりわけ行政府のその場しのぎの「解釈」は、まさしく正統な憲法改正手続きを回避する究極のやり方なのである。

もし国民の多数はそのような改正を支持しないだろうというのであれば、それは、国民の多数が賛同しない新しい意味を憲法に押し付けようとすることの不合理性を際立たせるだけである。そもそも、「状況が変わった。だから我々は憲法を変えなくてはならない」という議論は、まったく正当なものである。しかし「状況が変わった。だから憲法の意味は変わらなければならない」という議論は正当なものではない。

もし政府が状況の変化を理由に第９条を「再解釈」することが簡単にできるなら、ほかの条項ではなぜそれができないということになるのか。日本への移民の数が、高齢者の人口という難問に反応を示して増加するならば、政府はもはや外国人に対する差別を禁止するものではないとして、第１４条をも「再解釈」することができるのであろうか。いかなる条項の「再解釈」をも、憲法の構造全体を危機に陥れることになる。もちろん、裁判所は憲法を解釈する最終的な権威をもっている。しかし日本の最高裁判所は歴史的に、こうした状況では頼りにならないほど政府に敬意を示してきた。

アメリカ合衆国の銃の問題を考えてみよう。多数のアメリカ人やおそらく世界の他のほとんどの国の人々は、先進国の中で、最も殺人や暴力の発生率が高い国で、個人に小火器を保所持する権利を保障している憲法条項を持つということは、誤っていると考えている。その条項すなわち修正第２条は、２００年以上も前に批准されたものである。それは、多くの人々によって、時代錯誤であり、かつアメリカにおける銃という現代の社会悪を減らすための努力に対する重大な障害となっていると考えられている。

しかし、アメリカ合衆国大統領や連邦議会が、すべての小火器を法的に禁止することを可能にするために、修正第２条を「再解釈」するなどということは全く想像すらできないことである。そして、アメリカ合衆国憲法修正第２条は、日本国憲法第９条よりずっとあいまいであり、もっと複雑な歴史をもっている。最近コロンビア州自治区が最高裁判所の前で行ったように、妥当な憲法解釈の諸原則に基づいているならば、別の解釈の方が、より妥当なものとなる。しかし、アメリカでは銃があまりにも多くの人々を殺しているので、修正第２条はいまや何か別のものを意味するようになったと政府が簡単に主張することはできないのである。

柳井報告は、変化しつつある国際的な安全保障環境について重要な分析をしており、また日本の戦略的な政策の必要性について簡潔な表現で述べている。それは、日本が第９条の制約内で国家安全保障の目的に応えることができるかどうかという重要な疑問を提起している。

柳井報告はまた、憲法改正に賛成する立場に立って、提出するのが妥当な重要な議論を提供している。報告書はさらに、報告書が奨励している変化によって可能となる軍事力の行使を制約するために設けられるべき法的な限界について、かなり詳細かつ見事な勧告を行っている。報告書は政治的な文書としては、少なからぬ価値をもっている。

しかし、第９条が、このようにして長期にわたって確立してきた解釈とは異なる意味を持つべきだという報告書の結論は、まったく説得力に欠ける。懇談会は、その解釈論のいくつかの項目において、誤りをおかしている。しかし、アプローチ全体の非論理性は、これらの誤りを目立たなくさせている。

上述したように、柳井報告は、その政治的分析に価値がありうるとは言えても、憲法の意味に対していかなる影響力をもってはならない。そして報告書に従おうとする政府の試みは、問題とされなければないのである。

以上

（常岡せつ子教授翻訳）

Part III, Section 1 – Opinions and Their Premises Regarding the 4 Scenarios: the panel returns to the question of constitutional interpretation, this time explaining “The Panel’s Fundamental Understanding of Art. 9.” In section one of this part, the panel outlines its opinion and its underlying assumptions with respect to the four problems. After rehashing the changes in threats already discussed above, it articulates the two assumptions that underlie its recommendations for the minimum necessary changes to the interpretation of the Constitution. These are i) that there must be continued maintenance of pacifism and international cooperation as fundamental principles of the Constitution; and ii) even where there is the exercise of collective self-defence or collective security operations under a new national security policy, it cannot be without limits. The panel indicates that the specific limitations will be discussed in Part IV.

Part III, Section 2 – The Interpretation of Art. 9: The panel turns next to its own interpretation of Art. 9. It again summarizes the government interpretation, then begins its discussion with the assertion that in interpreting laws and the Constitution, while it may be natural to interpret the text of each provision, it is also necessary to examine the entire context of the law in its entirety, the history of its formation, the country’s national strategies, the society as a whole, the economy, and other related circumstances.

Moreover, the panel continues, in the event that a particular provision has some connection with international relations, then it is also necessary to consider the concepts and language of those provision as they are understood in international law. All of this is all the more important when it is the Constitution that is being considered. Since the features of Art. 9, such as war, use of force, individual self-defence, collective self-defence, collective security and so forth, are all international law concepts, it is impossible to interpret them without an understanding of international law and international relations.

The report concludes this section, prior to any analysis of the text, history, or international law perspectives relating to the provision, with the assertion that the government interpretation reflects the international relations of the post-war period and Cold War era, and repeats that the circumstances have changed since then.

Part III, Section 3 – Collective Self-Defence: In this section the panel finally gets to the text of Art. 9, and argues that it does not support the government interpretation that Japan, as a state, is entirely forbidden from using force in international relations. After citing the language of Art. 9, the panel draws attention to the clause “forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes”, and emphasizes that it does not contain any provision to the effect that “Japan, as a state, is completely prohibited from exercising the use of its actual capabilities in foreign relations”, but rather, only war as a sovereign right and the use of force “to resolve international disputes” is forever renounced. Thus, the argument continues, the better view is that not only individual self-defence but also the exercise of collective self-defence and collective security operations are actually outside of the scope of the prohibition. [This argument will be analyzed in detain at the end of the review of the report]

The panel argues that the concept of war renunciation in Art. 9(1) has a long history, from the Kellogg-Briand Pact, the League of Nations, the U.N. Charter, and similar instruments of international law, and in that historical development, there is not one instance of the concept including any prohibition on individual self-defence, collective self-defence, or collective security operations. On the contrary, the idea of the renunciation of war is predicated on the premise that international disputes will be resolved by peaceful measures, and by the use of force within the collective security system, through international cooperation under first the League of Nations, and later the U.N. Charter. It was part of the emergence of a system that prohibited the use of force by individual states to resolve disputes.

Looked at from this background, the panel explains, Japan, while promising unilaterally to no longer use force to resolve its own national disputes, on the other hand, ought not to take the position that it will not support international peace or participate actively in the restoration of international peace. Moreover, Art. 9 is based on the Kellogg-Briand Pact, which provided that “the High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.”

Thus, if, as already explained by the panel, it is accepted that Art. 9(1) (renouncing as a sovereign right of the nation war and the use of force for the settlement of international disputes) is not understood to prohibit collective self-defence or the participation in collective security operations, then, the first sentence of Art. 9(2), “in order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained” should be read as not prohibiting the maintenance of military forces for the purposes of self-defence and participating in collective self-defence operations. [This is the standard argument regarding the so-called ‘Ashida amendment’, which I will explain in the analysis at the end]

The panel then turns to the so-called “belligerency clause” in Art. 9(2), which provides that “the right of belligerency of the state will not be recognized.” The panel argues that this clause means that the “rights of belligerency” that are recognized in international law will not be recognized, and in particular, this means that the rights in international law relating to the commencement of war, termination of war, and so forth will not be recognized. This is, the panel explains, quite natural given the renunciation of “war as a sovereign right of the nation” in Art. 9(1), but the clause is thought of as a confirmation of that provision. Continuing, the panel blithely asserts that, on the other hand, it is clear that the “right of belligerency” that are not recognized in this provision are not the rights and obligations in the international humanitarian law in the 1949 Geneva Conventions and similar instruments. [This argument is manifestly incorrect, and will be addressed in some detain in the discussion at the end]

Part III, Section 4 – The conditions for the exercise of the right to self-defence: As touched on in Part I, the government has formerly established three conditions for the exercise of the right to self-defence under Art. 9, namely: 1) the existence of an imminent and unjustified invasion (shingai) of Japan; 2) there are no other appropriate means of repulsing the invasion; and 3) the exercise of the right stops at the minimum necessary level of the use of force (jitsuryoku, as opposed to buryoku, or armed force, as is used in Art. 9 itself). However, the first condition obviously assumes only the right of individual self-defence. But if collective self-defence is also recognized, then this condition needs to be changed. The panel also notes that the concept of “imminent unjustified invasion”, is obviously different from the condition precedent for the exercise of self-defence pursuant to the provisions of the U.N. Charter. Art. 51 of the U.N. Charter reflects the history of abuse of the right to self-defence prior to World War II, under the ambiguous condition of “imminent invasion”. Thus, in Art. 51 of the Charter the condition for exercise of the right was limited to the occurrence of an “armed attack”. But, the panel continues, if for some reason the U.N. Charter does not apply [i.e. the condition has not been satisfied], it does not mean that there can be scope for the right of self-defence under customary international law, in response to an “imminent unjust invasion” or a “use of force not reaching the level of armed attack” and so forth, and that fact is recognized in international court decisions. But, the panel concedes, this is restricted to extremely limited situations.

With respect to this problem, the panel explains, there is an argument in Japan based on the concept of “minor right of self-defence”, but this term is also ambiguous, and has not received sufficient international understanding. The panel goes on to note that, in the context of this concept, the exercise of the right to self- defence in Japan is predicated on the issuance of an order for the mobilization of defence forces, and the mobilization of the SDF is subjected the onerous procedural pre-conditions of there having been passage of a UNSC Resolution, and in addition, prior approval of the legislature. The panel argues that all of this means that in an urgent situation, it will not be possible for Japan to respond appropriately prior to the issuance of the command for mobilization of the military. These procedures are not thought to effectively respond to ballistic missile attack, terrorism, and other such new threats, and there ought to be consideration given to a legal system that can promptly and effectively respond to such threats.

Part III, Section 5 – The Possession and Use of the Right of Collective Self-Defence, and the Concept of International Dispute: The panel begins this section by noting that the government position on collective self-defence, as first stated on March 31, 1960, is that in terms of the core sense of the concept of deployment abroad to defend some other country, collective self-defence is not recognized in Japan’s Constitution. But the panel argues that in terms of the other aspects of the concept, the government has not made clear statements, notwithstanding the inconsistency of its position with academic theory. The current government view of collective self-defence was first stated in a committee meeting of the Diet on October 14, 1972, and was reiterated on May 29, 1981 in the following language:

It is therefore self-evident that since it is a sovereign state, Japan has the right of collective self-defense under international law. The Japanese government nevertheless takes the view that the exercise of the right of self-defense as authorized under Article IX of the Constitution is confined to the minimum necessary level for the defense of the country. The government believes that the exercise of the right of collective self-defense exceeds that limit and is not, therefore, permissible under the Constitution. [This translation of the government position appears in Richard J. Samuels, Securing Japan (2007)]

The panel then asks the question, how should one consider the relationship between the “possession” of a right and the “exercise” of the right? In the context of its recognition of the right to self-defence, while not recognizing the ability to exercise the right of collective self-defence, the government has not done enough to explain the precise grounds for its position, and thus has not sufficiently obtained the understanding of the people.

Moreover, the panel continues, the term “international disputes” in the clause “as a means of resolving international disputes” in Art 9(1), relates to the renunciation of the use of armed force by Japan as an individual state for the purpose of resolving international disputes to which it has become a party. This must be distinguished from circumstances in which Japan, acting under the framework of the U.N. and through international peacekeeping activity, cooperates to resolve an international dispute between third countries, as anticipated in by the preamble of the Constitution, which provides that “We believe that no nation is responsible to itself alone…”.

In the final section of this Part, the panel simply summarizes the foregoing. In Part IV, it makes its specific recommendations regarding the four scenarios under examination, and other related matters, which I will review briefly in the next post. The next post will also engage in a critical analysis of the arguments that the panel has provided, particularly those in Part III on the interpretation of Art. 9.

Part I, section 1

It begins by establishing the premise that it is necessary for the national security policy of Japan to adapt to changes in the international environment. Moving from that premise, the report then establishes that as a country governed by the rule of law, the national security policy must be constructed on a foundation of clearly defined laws. However, it argues that this foundation must constantly be re-examined so as to accord with the reality of shifts in the national security threats. It asserts that while the legal foundation as it now exists is based in part on the Constitution, it also reflects the historical reality, both in political and in strategic terms, that existed at the time of its formation. Since those circumstances have changed, it is appropriate to re-examine and reform the legal foundation to ensure it complies with today’s realities.

This conclusion is followed by several qualifiers, regarding the degree of change in the threat environment that makes such reform necessary, and the assertion that “it goes without saying that the interpretation of law cannot simply be a convenience to be adjusted in conformity with the circumstances. But nor does it mean that looked at legally, the interpretation that has been maintained until now is the only possible rational interpretation.” It then goes on to criticize the government interpretation of Art. 9 as being excessively complicated and inconsistent with international law.

Part I, section 2

The second section of Part I proceeds to review in more detail the changes to the international security environment. The upshot of this review is that there are more, and more diverse, threats to Japan. As such, it is concluded that it is necessary for Japan to not only maintain an effective defence organization for its own security, but in addition to also maintain the effectiveness of the U.S.-Japan alliance, and to make efforts to contribute to the security of the international society as a whole. Moreover, the legal base of Japan’s national security policy must be viewed from that perspective.

Part I, section 3

In section three of Part I, the report reviews the government’s interpretation of Art. 9. It begins, before getting to the interpretation, by emphasizing that there are differing interpretations and political conflicts over Art. 9. It then provides a fairly straightforward review of the government interpretation, being that Art. 9(1) does not deny Japan’s right to individual self-defence, or prohibit the use of the minimum force necessary to defend its territorial and political integrity; and as such, Art. 9(2) does not prohibit the maintenance of the minimum defence capability necessary for self-defence, and thus the SDF does not constitute the “war potential” prohibited by Art. 9(2).

On the other hand, the government has provided strict conditions for the exercise of force for self-defence, being i) there has been a sudden and unjust aggression; ii) there are no other means available to prevent the aggression; and iii) the use of force ought to be the minimum necessary for defence in the circumstances. Thus, it flows from this that collective self-defence, and collective security operations under authority, are prohibited by Art. 9(1).

Even participation in peacekeeping operations is limited to circumstances, and by specific conditions, such that there can be no possibility of using force other than for personal self-defence of SDF personnel. And logistical and rear-area support activity that is provided for coalition forces in situations such as Iraq and Afghanistan, must be carried out in such a way that they do not become integral to the use of force by such coalition forces, for such activity will constitute a violation of Art. 9(1), even if Japanese forces are not themselves using force. While this interpretation is thus described in the report, there is no analysis of the basis for it, or how precisely it relates to the text, nor any exploration of its origins and history.

Part I, section 4

Section four of Part I then examines the factors that militate in favour of reinterpretation of Art. 9. Once again there is a review of the changing threats and dangers in the international security environment, ranging from the proliferation of WMD and missile technology, the spread of terrorism, in addition to the traditional threats posed by nation states.

It then outlines the fundamental objectives of Japan’s national security strategy to meets such threats, being i) to maintain an effective defence capability in order to deter direct threats to Japan, and in the event they materialize, limit the harm to a minimum; ii) to continue to maintain the effectiveness of the U.S.-Japan alliance, since Japan cannot provide for its own security alone in the current threat environment; and iii) to contribute to the international peace and security efforts of the international society, since improvement of the international security environment as a whole help enhance Japan’s own security.

The report then proceeds to question whether the current legal foundation for national security policy, and particularly the government interpretation of Art. 9, is sufficient for the purposes of developing and executing a national security policy based on the foregoing strategy. Can Japan effectively support the U.S.-Japan alliance, it asks, if it cannot exercise the right of collective self-defence? Can Japan effectively contribute to UN operations, if it cannot use force for anything other than the repulsion of a sudden and unjust aggression on Japan itself?

After some further discussion of the four specified problems, (which are addressed in detail in the next part of the report), the panel concludes with the assertion that the analysis of these problems do not lead to the recommendation of a legally unreasonable re-interpretation of the Constitution merely to meet the exigencies of new circumstances. On the contrary, the panel claims that the interpretation being submitted is based on consistent logic and is in accord with international law. Moreover, it is the continued adherence to the government interpretation, with its inherent irrational elements, that is unreasonable.

Part II

In Part II, the panel examined the four specific problems. There is no need to review that discussion in any detail, as it is not that germane to the analysis that I will engage in the later assessment of the report. The four problems, however, as provided to the panel by Prime Minister Abe, were whether i) Japanese MSDF vessals in international waters could respond with force to assist U.S. forces in the proximity were they to come under attack; ii) Japan could use anti-missile defence weapons to strike an in-flight ballistic missile targeting the U.S.; iii) whether and in what circumstances the SDF could use weapons in UN peace keeping operations; and iv) to what extent could Japanese forces provide rear-area support for other countries involved in UN collective security operations.

With respect to each problem, the panel examines the legal constraints on the activity in question, pursuant to Art. 9, and then posits options for resolving the problem, in accordance with the aspects of the overall re-interpretation recommendations that are more fully addressed in the next Part.

To be continued… with reviews of Parts III and IV.

Developments:

Japan’s Diet (legislature) passed a new Basic Law on Space on May 21 (the bill can be found in the index on-line here, and in pdf here ), which will permit Japan for the first time to use space for the purposes of contributing to national security. This constituted a marked departure from an almost 40 year old policy of strict non-military use of outer space.

While the passing of the law received some passing coverage in the Western press , the significance of this development remains largely unexplored. The move is important in two respects - the first being its place in a systematic widening of the scope of Japanese military activity notwithstanding constitutional constraints, and the second is the extent to which it may contribute to an escalation in the militarization of space among East Asian countries. This article focuses on the first aspect.

Background:

To put all of this into context one has to begin with the Japanese constitutional constraints on the use of force and maintenance of armaments. Article 9 of the 1947 Constitution provides that Japan forever renounces war and the threat or use of armed force for the purposes of settling international disputes. It also, in Art. 9(2), declares that it shall never maintain land, sea, or air forces or any other war potential, and that the rights of belligerency will not be recognized.

The government’s own long-standing interpretation of these provisions is that while Japan maintains the right of self-defence under international law, and may maintain the minimum military forces necessary to exercise this right of self-defence, it may not use force in any act of aggression, nor may it participate in collective self-defence operations or in collective security operations under the authority of the U.N. Security Council. Moreover, the use of force in combat or other military contexts will not enjoy the immunity from the operation of domestic or other international law normally extended to belligerents under the law of armed conflict.

Article 9 has effectively constrained both the development and operation of Japanese foreign policy, as well as, to a lesser extent, the development of its military. While it currently has sophisticated military forces , with a defence budget that ranks it among the top five in the world (depending on the source and method of calculation ), internal political constraints driven by Article 9 have ensured that its forces are largely defensive in nature (as difficult as it is to make that distinction). For instance, Japan has no long-range bombers, ballistic missile capability, or aircraft carriers, to mention a few of the more important systems of power projection. Even within the U.S.-Japan Security Treaty, last renewed in 1960, Japan is under no obligation to defend U.S. forces or U.S. interests outside of Japanese territory, thus preserving the prohibition on collective self-defence.

In 1969, in accordance with the understanding of Article 9, and shortly before Japan ratified the U.N. Treaty on the Principles Governing Activities in Outer Space (the Space Treaty ), the Diet passed a resolution limiting Japan’s use of space to “peaceful purposes.” This in turn was interpreted to mean strictly non-military purposes in order to comply with Article 9. The resolution has constrained Japanese use of space in a number of ways ever since. The government has been precluded from launching satellites for the purpose of defence, which in turn has left Japan reliant upon the U.S. and others for satellite-based intelligence. It also precluded the development and sale of military-grade space technology to other countries, all of which left Japan’s aerospace industry in a relatively underdeveloped state.

A number of events in the 1990s shook Japan’s sense of security and has led to a re-thinking of security issues in a number of ways. In particular, the revelation in 1993 that North Korea was pursuing a nuclear weapons capability, followed by the North Korean firing of a Taepodong 2 missile over Japan in 1998, had a profound impact on Japanese threat perception. In 1997, Japan and the U.S. negotiated new guidelines to govern the alliance under the U.S. Japan Security Treaty (the 1997 Guidelines ), which extended the sphere within which the Japanese Self-Defence Forces (the SDF) might be required to operate in cooperation with U.S. forces.

In the post-9/11 world, Japan has come under increasing pressure from the U.S. to contribute further to American security interests. This has included strong pressure on Japan to participate in U.S. ballistic missile defence (BMD) systems. After considerable debate and in the face of some significant internal criticism, the Japanese government agreed to participate in the development of the U.S. BMD shield, and is in the process of developing a two tiered system, comprising of a sea-based SM-3 atmospheric defence system, and a land-based PAC-3 patriot missile lower level defence system. Japan has successfully tested its SM-3system in the shooting down of a ballistic missile in space in December, 2007 .

Discussion

The current move provides authority for the use of outer space for the purposes of national security, and is yet another step in what may be seen as a steady erosion of the constraints on the scope and nature of Japanese military activity. Japan sent the SDF abroad for the first time to support “anti-terrorism” operations in Afghanistan in 2002. This was followed by an unprecedented deployment of SDF forces to provide support in a combat zone, with the dispatch of 400 troops and three planes to Iraq in 2003. Japan even launched military spy satellites in 2003, notwithstanding the 1969 Resolution, to monitor North Korean activities.

All of this has led to considerable debate within the country over the extent to which these developments are contrary to Article 9. One question that received particular attention within the BMD debate, was whether the Japanese interception of a ballistic missile that was targeting the U.S. or U.S. forces not within Japanese territory, would be a violation of the prohibition on the use of force for the purposes of collective self-defence. Similarly, after yet another series of North Korean missile tests in 2006, there was discussion of whether the right of self-defence extended to pre-emptive strikes against missile sites poised for an attack on Japan. There was even talk of re-interpreting the Constitution, and all these scenarios, including that of “reinterpreting” the Constitution are inconsistent with the provisions of the Constitution itself.

The new Basic Law on Space, while asserting the requirement to comply with the Constitution, as well as the peaceful-use provisions in the U.N. Space Treaty (Art. IV of the Space Treaty), clearly provides that the use of space may be used to contribute to the national security of Japan (Art. III of the Basic Law). Moreover, the Basic Law on Space provides for the development of a space strategy and the establishment of institutional oversight of the program centered in the prime minister’s office.

This needs to be considered in the context of the language of the 1997 Guidelines, which specified that U.S.-Japanese cooperation could extend to “situations surrounding Japan”, a term that was explained at the time as being conceptual rather than geographic. In other words, the scope for Japanese support of U.S. military activity, and the area in which it was authorized to act for its own defence, was ambiguously and circularly defined as being anywhere in which there were circumstances that might trigger Japanese security requirements. Now, with the Basic Law on Space, the “situations surrounding Japan” for such purposes has been extended to outer space.

In addition to North Korea’s attempts in July 2006 to test a Taepodong 2 missile, with a range that could reach the continental U.S., the Chinese recently surprised the world last year by testing its own satellite-killer capabilities. Now, with Japan opening the door to developing its own military space program, the potential for an escalating arms race in space among the East Asian neighbors has become all the more real.