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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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.

Speaking with Yanai in The Hague

Speaking in February on a panel with Judge Shunji Yanai, on the constitutional and international law issues arising from the Japanese government’s “reinterpretation” of the war-renouncing Article 9 of the Constitution. Shunji Yanai, who is a judge on the International Tribunal for the Law of the Sea, was the chairman of the Advisory Panel on the Reconstruction for the Legal Basis of Security, which made recommendations to the Japanese government on how and why to “reinterpret” Article 9. The one-day conference was held at the Asser Institute in The Hague, with Judge Hisashi Owada of the International Court of Justice giving the keynote address.

Yanai-Owada-Composite

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…