From banking to healthcare, looking to Canada has become fashionable of late. It is also an example on equality rights. I served as an officer in one of the first Canadian warships to deploy with women among its crew. That was only after a spirited campaign waged by the military against the integration of women in combat roles, in part on the basis that they would undermine the cohesion and fighting effectiveness of combat units. There would be privacy issues, sexual tension, an erosion of the essential masculine warrior ethos, and ultimately a degradation of military effectiveness.

All of this was proved false of course. It was proved false again a few years later, in the early 1990a, when the Canadian military was again forced to adhere to the country’s constitutional values and open its ranks to openly gay and lesbian members. To the extent there was any disruption (and most studies have found there to have been none), it was minor and temporary, as the military sub-culture adjusted very quickly to the new reality – a reality that better conformed to the values of the society the military is sworn to defend.

The experience of Canada, Britain, Israel, Germany, Australia, and many other democratic allies of the United States (the troops of which are fighting alongside Americans in Afghanistan) have demonstrated that there is no significant impact on military effectiveness by the integration of gay and lesbian troops. Quite the contrary. As with the admission of women, and racial minorities before that, it broadened the recruitment base and increased the number of highly skilled personnel available to the military.

Moreover, to the extent that some think there might still be some disruption of cohesion, it is important to note that the cause would necessarily be the underlying prejudice and homophobia within the military sub-culture. To argue against integration is to suggest that such prejudice should be protected and nurtured. That is profoundly inconsistent with the values of a democracy, and utterly untenable. It was rejected decades ago when the discrimination against non-white troops was terminated.

Even putting aside questions of motive or rationale, the policy denying people the opportunity to serve in the military because of their sexual orientation constitutes unjust discrimination that is entirely at odds with the fundamental right to equal protection. The right to be treated as an equal, and not be discriminated against on the basis of shared but personal characteristics that are tied to one’s sense of identity and dignity, is a right that is at the foundation of all liberal democratic systems, and a bedrock of international human rights.

The violation of that right simply cannot be justified in this context. Not only is there no important purpose served by the policy, given the compelling evidence that integration would have no significant impact on military effectiveness, but the disproportionate harm it causes is extreme. As compared to a marginal and temporary impact at the very most (and most studies of such transitions in other countries demonstrate that there is no impact at all), the discriminatory policy not only injures those gay and lesbian members who are denied entry or are drummed out of the military. Rather, the policy perpetuates the societal prejudice against all homosexuals. The policy effectively communicates to the entire society that homosexuals are less worthy of our respect and concern than the rest of Americans. It signals that gays and lesbians cannot be trusted to serve in the defence of the nation.

But the harm does not even end there. It not only causes egregious harm to all gay and lesbian members of our society, but it erodes the normative power of the right to equality itself, and thereby undermines the very values of our democracy. It casts the United States as a backward nation relative to other liberal democracies in the protection of equality rights, and human rights more generally.

We used to quip in the Navy that “we are here to defend democracy, not to practice it.” Nothing could be further from the truth. A military cannot defend a democracy while doing violence to the democratic values that constitute the very foundation of the nation.

As tensions mount and there is increasing talk of shooting down the “debris” from a pending North Korean rocket launch, there has been little discussion of what would happen if Japan shot down the rocket instead. While there is great public support for action, there should be some pause to consider the constitutional and legal issues of Japan’s military deployment in these circumstances.

North Korea continues to prepare for the launch of a an experimental satellite delivery system, widely suspected of being a Taepodong 2 long-range ballistic missile, scheduled for some time between April 4-8. While North Korea touts the launch as an attempt to put a satellite in orbit, many view it as a missile test in violation of a 2006 U.N. Security Council resolution. North Korea has provided notice of the flight path, which will take the missile over Japan and into the middle of the Pacific.

It was announced on March 28, that Japan’s Minister of Defense had issued orders to the Self-Defense Forces (SDF) to deploy Ballistic Missile Defense (BMD) assets (the land-based Patriot Missile batteries or PAC-3, and the maritime Aegis Cruiser based SM-3 systems) to shoot down “any part of a North Korean rocket that might fall toward Japanese territory” (link). The order, authorized by the prime minister, is said to be based on Article 82 of the SDF Law.

The provision provides the authority to order the SDF to take measures to destroy missiles or other falling objects (other than aircraft), which are suspected to be heading for Japanese territory and which could cause serious harm to persons or property (link). Others have written about the considerable technical difficulty that the SDF might encounter in trying to intercept actual debris from the first stage of the rocket, which is supposed to separate and fall to earth prior to the rocket passing over Japanese territory (link).

An equally difficult problem, however, may be distinguishing between debris and the rocket itself. And indeed, it is not so difficult to imagine a temptation among some in the chain of command to rely on that difficulty, and to take a shot at the rocket itself. Shooting down the missile itself, under cover of confusion, might be seen as sending a powerful message regarding both Japan’s BMD capability, and its political will to use military force to defend Japanese territory.

Therein, of course, lies the legal problem. The missile is expected to be at an altitude of 600 – 1000 kilometers above the Earth by the time it is passing over Japan (link). In other words, it will be in what is generally considered, for legal purposes, “outer space”. While there is no exact definition of the demarcation between a state’s territorial air-space, over which it may exercise complete control, and the lower limits of outer space, the most accepted range is 160 kilometers (or 100 miles). That is the lowest altitude that can sustain free orbit.

Outer space is, under international law, the “province of all mankind”, and all nations have both the right and an interest in the exploration and use of outer space (link). While states may control absolutely and deny access to the airspace over their territory, they have no control over, or right to interdict, the passage of vehicles through the area of outer space that lies above their national territory.

If Japanese forces were to fire on and destroy the North Korean missile in its trajectory over Japan, it would first of all exceed the authority conferred by Article 82 of the SDF Law. It would also be a violation of the international law governing the use of outer space. The fact that the launch might itself be in violation of a U.N. Security Council Resolution would not alter that fact. Moreover, it would constitute the use of armed force against the vessel of another country, and that would have both international law and constitutional ramifications.

Indeed the constitutional issue is the most important in terms of Japan’s internal legal order. For this use of armed force against the vessel of another country in an international common area (that is, outer space), would most certainly constitute a violation of Article 9 of the Constitution. Paragraph 1 of Article 9 provides (in part) 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.”

There can be no doubt that there is an international dispute among North Korea on the one hand, and Japan, the United States, South Korea and indeed the rest of the international community on the other. The dispute centers on North Korea’s continued efforts to develop nuclear weapons and delivery systems. It is a dispute that has been the subject of U.N. Security Council Resolutions, including Resolution 1718 of 2006, which prohibits North Korea from any further ballistic missile testing (link). Shooting down a rocket that is widely suspected to be a disguised ballistic missile test would constitute a use of force as part of efforts to resolve this international dispute, and thus would violate Article 9.

For those who might be tempted to feebly raise the issue of self-defense, in these circumstances there would have to be very clear and compelling evidence that the trajectory of the rocket was such that it was certain to hit Japanese territory before any claim of self-defense could gain credence. The preliminary evidence is that the missile is programmed for a trajectory taking it over Japan and into the Pacific, and that it is indeed carrying a satellite rather than a warhead (link).

The launch by North Korea is a most unwelcome provocation, and there are all kinds of arguments about how the international community should best respond. But a miscalculation by Japanese forces in the frenzy over preventing “debris” from falling on Japanese territory, could not only gravely complicate the international situation, but also create serious legal and constitutional problems for Japan.

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.

To put this in context, there was intense debate in the Japanese Diet in January, 2008, over the renewal of the Anti-Terrorism Special Measures Law (ATSML), which was the authority for the Japanese Self-Defence Forces (SDF) to provide logistical and humanitarian support for ISAF operations in Afghanistan. The Democratic Party of Japan (DPJ) was opposed to a renewal of the law, in part because there was evidence that the SDF had provided support to U.S. forces involved in operations in Iraq. Ozawa Ichiro, leader of the DPJ, has also taken the position that operations in Afghanistan constitute collective self-defence operations not authorized by the U.N., and thus Japanese participation or support of such operations are a violation of Article 9 of the Constitution (Ozawa’s legal interpretation in this regard is flawed on a number of levels. My view on this can be found here).

It was in the context of those debates that Fujita mounted a focused interrogation on the legitimacy of the government’s characterization of 9/11. The English sub-titled video can be accessed below:

There are 8 episodes of this debate, and the other 7 can be found at here. While the questioning begins with some reasonable lines regarding the distinction between treating 9/11 as a criminal act or an act of war, and the sources of the government’s information regarding the Japanese fatalities in the attacks, by the third episode in the recordings here, Fujita begins presenting “evidence” from conspiracy theory sources to suggest that the damage to the Pentagon could not have been caused by a commercial airliner. It develops into a full-blown questioning of whether Al Qaeda was in fact the perpetrators of the attacks.

The DPJ had a range of very legitimate grounds upon which to object to the extension of the ATSML. It is hard to understand such recourse to conspiracy theories, which can only have undermined the credibility of their entire position on the law. The fundamental issue at stake was the constitutionality of Japan’s participation in collective self-defence and collective secuity operations in general, and the operations in Afghanistan in particular. Fringe theories about the causes of 9/11 are entirely beside the point and counter-productive.