Japan Opens Up Way For Military Use of Outer Space

(Written for and appearing in Foreign Policy Digest)

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. … Read more…

Permanent SDF Deployment Law and Democracy

(Initially published in the Japan Times, May 21, 2008)

The Japanese government wants permanent legal authority to send military forces overseas. Letting it have it would be a mistake for many reasons, but one seldom raised is the impact the move would have on the nature of Japan’s democracy. A law conferring permanent authority to deploy troops would eliminate important institutional checks and balances on the government’s use of the military, causing a further weakening of the separation of powers in Japan.

It would also run counter to the recent trend in other democracies to increase accountability in the process of deciding to use armed force.

As it stands now, the government (meaning the executive branch, the Cabinet) has to have specific legislation passed by the Diet, such as the Anti-Terrorism Special Measures Law (the ATSML), to obtain the required legal authority to deploy troops outside of Japan. A new law is required each and every time the government wants to dispatch the Self-Defense Forces (SDF), whether for the purpose of U.N. peacekeeping or to provide humanitarian support for collective security operations such as those in Afghanistan. … Read more…

Rule of Law Under Fire in Japan

(Initially published in the Japan Times, May 3, 2008)

The government’s reactions to the Nagoya High Court’s April 17 decision that Japanese operations in Iraq are unconstitutional, raise profoundly disturbing questions about the rule of law and the democratic separation of powers in Japan.

Representatives of the government, and of the military, have made public statements contradicting the findings of the court, rejecting its conclusions, and dismissing the relevance and significance of its constitutional interpretation. The prime minister has stated that the judgment will have absolutely no impact on the government’s continued use of the military in Iraq.

This response by the executive branch of government to a judicial decision in a constitutional democracy is difficult to comprehend. It raises questions about the extent to which the rule of law is respected. It provokes concerns about the continued normative power of the Constitution. It creates serious doubts about the proper distribution of power among the three branches of government within the democratic structure of the state. … Read more…

U.S. Interference in Japanese Constitutional Case

There was a remarkable discovery announced just this week, that documents uncovered in American archives reveal that the U.S. ambassador to Japan in 1959 actively interfered in the judicial process regarding the determination of a fundamental constitutional issue. While the discovery has been widely reported in Japan, the context and significance of the issue deserve to explored in more depth.

The case in question, commonly known as the Sunakawa case, remains a highly important judgment of the Supreme Court, and the discovery that the U.S. government interfered in the process is important, and may have political repercussions in the ongoing constitutional revision debate.

The Telegram

The discovery itself was made by a Japanese historian on U.S. Japanese relations named Niihara Shoji. While doing research at the U.S. National Archives he uncovered a telegram from ambassador Douglas MacArthur II, nephew to the more famous general who was Senior Commander Allied Powers during the occupation of Japan. In the telegram, sent to Washington in April, 1959, ambassador MacArthur recounted his discussions with both foreign minister Fujiyama Aiichiro, and with Supreme Court Chief Justice Tanaka Kotaro, regarding the ruling by the Tokyo District Court in March, 1959, that the U.S.-Japan Security Treaty was unconstitutional, and that the maintenance of U.S. armed forces in Japan was a violation of Article 9 of the Constitution.

The telegram explains that ambassador MacArthur had initially pressed foreign minister Fujiyama to ensure that the government would appeal the decision directly to the Supreme Court, by-passing the more normal procedure of appealing to the Tokyo High Court. According to the telegram, he “stressed importance of GOJ [government of Japan] taking speedy action to rectify ruling by Tokyo District Court”.

It also recounts how he then had private discussions with Chief Justice Tanaka, after the Supreme Court was seized of the case, in which he sought to determine when the Supreme Court would likely hand down its decision. While the telegram is apparently silent on the issue, it is difficult to believe that the ambassador would not have similarly conveyed to the Chief Justice the American view that it was essential to “rectify” the ruling of the court below. … Read more…