A year ago this week, the Supreme Court of Japan issued a judgment that struck down a clause in the Nationality Act as being a violation of the Constitution. There are good reasons for everyone in Japan to celebrate that decision. While little noted outside of specialized legal journals at the time, the decision may have been the beginning of a more robust judicial protection of the right to equality in Japan.

The Nationality Act judgment was, of course, hailed as an historic decision — in part because it was only the eighth time the Supreme Court has struck down a law as unconstitutional; and in part because it would extend the benefits of nationality to tens of thousands of children born in Japan to Japanese fathers and foreign mothers who were not married. But much less noticed were the reasons of the court, and what that analysis meant for the right to equality itself.

Prior to this case, the courts of Japan employed a simplistic “reasonableness” test to determine if discrimination constituted a violation of the right to equality enshrined in Article 14 of the Constitution.

According to this test, the court would first decide whether the subject matter of the impugned law, which discriminated on the basis of some prohibited ground such as race, gender, creed, social status and the like, was an area upon which the government had the legitimate authority to legislate. If it was, and the means chosen by the law to advance the legislative purpose was rationally connected to its objective, then any discrimination it may have caused was deemed to be reasonable. It collapsed the entire analysis into a simplistic inquiry into whether the discrimination could be justified.

For example, a provision of the Civil Code limits the inheritance of illegitimate children to half that of legitimate children in the event that a parent dies without a will. This is discrimination based on family and social status, in apparent violation of Article 14 of the Constitution. The Supreme Court, in 1995, held that the objective of the law was to encourage people to marry, and to foster respect for the institution of marriage. The court reasoned that since the discrimination against illegitimate children might encourage prospective parents to marry, there was a rational connection between the objective and the means chosen, and so the discrimination was reasonable.

Now, the most insidious discrimination could be justified under this test. Indeed, something as horrendous as the Holocaust could be justified on the basis of a mere rational connection between objective and means. As such the right to equality in the Constitution of Japan, which on its face provides a strong protection against discrimination, in the hands of the courts was no protection at all.

But the Supreme Court may have finally abandoned this doctrine in the Nationality Act case of last year. The majority of the Supreme Court employed a more sophisticated analysis, looking at several key elements, and employing criteria external to the law in question. First, before examining the question of justification or “reasonableness,” the court carefully examined the nature of the discrimination itself and the harm that it caused. It explored how the provision discriminated against children on the basis of illegitimacy, and how the law not only harmed those children who were denied Japanese citizenship, but added to the stigmatization of all illegitimate children in Japan.

Turning to the question of justification, the court noted that the objective of the legislation was to ensure, as a condition of acquiring citizenship, that there is a close bond between the children born to unwed couples of mixed nationality, and the Japanese nation.

While the court accepted that the objective was legitimate, and within the scope of government authority to enact, it also concluded that the discrimination it created was not reasonable.

Yet, in its analysis of this “reasonableness,” the court employed external criteria in a manner that it had not done before. To begin with, it examined the extent to which marriage between parents was a sufficiently accurate proxy for a close bond between the child and Japan. The court concluded that, in this day and age, it was not. Marriage is simply no guarantee of where the child might live or grow up.

Moreover, the court looked to Japan’s obligations under international law to not discriminate against persons on the basis of legitimacy, as yet another yardstick for assessing the law’s reasonableness. It further inquired into whether there were alternative methods of ensuring a close bond between children and Japan, which would not discriminate on the basis of legitimacy.

Finally, the court examined the proportionality between the grievous harm caused to children by the discrimination, and the marginal benefit alleged to be gained by the legal distinction in the Nationality Act. It was only able to do this, of course, because it had initially made a careful inquiry into the nature of the discrimination and the harm that it caused, and the objective of the law itself. Each of these elements of the analysis went far beyond the “reasonable discrimination” test traditionally employed by the courts, and together form a framework that is designed to give real effect to the right to equality.

The right to be treated equally, and not to be discriminated against on the basis of personal characteristics in a manner that perpetuates unfair stereotypes and prejudice, and unjustly denies benefits or imposes burdens, is one of the most basic and profoundly important legal rights in a democracy. If the more sophisticated analytical framework employed in the Nationality Act case becomes the standard doctrine for discrimination claims, then the right to equality enshrined in the Constitution will be given new life. All minorities in Japan, not just foreigners, will benefit.

Indeed, since discrimination against the aged is one of the forms of discrimination that is prohibited by Article 14, everyone in Japan’s aging society may have good cause to celebrate the development of this new doctrine, and the re-birth of the right to equality in Japan.

Once again the issue of Japanese contributions to international security efforts is the subject of tortured debate. And once again the proposed government policy, and aspects of the debate itself, reveals fundamental misunderstanding of the relationship between Article 9 of the Constitution and the relevant principles of international law.

This time, the issue relates to maritime piracy off the coast of Somalia, and the proposed deployment of Japanese naval vessels to the area. Predictably, the issue has triggered debate over the effect of the war-renouncing provision of the Constitution. A careful analysis, however, would suggest that the Article 9 prohibition on the use of force would not apply to the deployment of naval forces, or their use of weapons, to protect shipping from pirates in international waters.

Yet, it is clear that the government policy is being formulated under the shadow of Article 9. While the ships are initially being deployed under the authority of Article 82 of the Self-Defense Forces Law, the government has drafted and submitted to the Diet a permanent anti-piracy law, and it is around this bill that debate has focused.

Opposition to the bill has centered on questions of whether the Maritime Self-Defense Force (MSDF) vessels would be permitted to assist foreign ships, what degree of relationship with Japan would be necessary to justify MSDF intervention and under what circumstances weapons could be employed against pirates.

This is quite clearly due to the influence of the government interpretation of Article 9 as prohibiting any use of force by Japan except for the purposes of “individual self-defense” — meaning the direct defense of Japan. Similarly, the opposition to the policy is being shaped by Article 9.

The criticism is that any use of force by the MSDF to defend ships of other nations would somehow constitute “collective self-defense,” which is understood to be prohibited by Article 9. Similarly, it is argued that any use of weapons for purposes other than strict self-defense would be prima facie illegitimate.

But these concerns fail to consider the true nature of the prohibition in Article 9. Paragraph 1 of Article 9 states (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.”

The words “as a means of settling international disputes” qualify and limit the scope of the prohibition. The provision does not purport to prohibit the use of force of any kind whatsoever by the organs of the state. For instance, it clearly does not prohibit the use of force for ensuring internal security, and the Japanese police can legally use force to break up riots or armed insurrections.

The language and the drafting history of the provision clearly suggest that it was aimed at prohibiting participation in armed conflict, principally with other sovereign nations, as a means of furthering the foreign policy of the state and resolving disputes with or between other nation states. In short, the use of force contemplated by the provision is the use of military force employed against the territory and people, and the armed forces or other agents, of another state.

So the question then, is whether the deployment of the MSDF, and the possible use of armed force by the MSDF, to help prevent piracy in the Gulf of Aden, falls within the scope of this constitutional prohibition of the use of force. To answer that question, one has to understand the concept of “piracy” in international law.

Piracy has been an international crime under the Law of Nations for several centuries. The prohibition of piracy under international law is generally understood to have risen to the level of jus cogens (compelling law), meaning that it is one of the few peremptory norms from which no country may derogate.

The International Court of Justice has confirmed that pirates are to be considered the enemy of all mankind, and that any nation may, in the interest of the entire world, capture and punish those engaged in piracy.

Piracy, under most generally accepted definitions, constitutes illegal acts of violence or any other act of depredation, committed for private ends by the crew of a private ship (or aircraft), that is directed against another ship (or aircraft) on the high seas or in a place outside the jurisdiction of any state.

The key elements of this definition are that it is a criminal act, perpetrated by private individuals for personal ends, outside of the jurisdiction of any state (which, incidentally, is quite different from non-state actors engaged in terrorism, a quintessentially political activity, typically conducted within the jurisdiction of a state, and often supported or harbored in another state).

Any use of force against pirates in international waters, either to defend private shipping from their attacks or even to apprehend them and bring them to justice, cannot be construed as a use of military force for the purpose of settling international disputes. Such action does not involve the application of force against the agents of another state, the engagement in armed conflict with the forces of another state, or any other act of war. The laws of war under international law would not be triggered by the use of force against pirates, and it would not apply to such conduct.

In short, such use of force against pirates, in international waters, cannot fall within the scope of the prohibition in Article 9 of the Japanese Constitution. Now, to be sure, the MSDF would have to take care that the target of their activity legitimately fell within the definition of “pirates,” and that they were in international waters. Conducting activities in the territorial waters or on the shores of Somalia, for instance, would raise entirely different issues.

In the past, failure to sufficiently understand the applicable international law, and the relationship between such principles of international law and the proper interpretation of Article 9, has resulted in Japanese participation in international military operations that arguably violated the Constitution.

It may be understandable, therefore, that some in Japan will be apprehensive that the deployment of the military for any reason may open the door to further unconstitutional activity. And, indeed, there is a real and significant risk that such deployments of the military could be used cynically by the government to undermine the powerful norms within Japan against the use of military force.

Those concerned about this risk may be tempted in these circumstances to invoke the Constitution as a bar against the deployment against pirates. But that would be dangerously counterproductive. It would simply contribute to a process in which political forces exploit constitutional arguments for instrumentalist purposes, whether they be cynical or benign, leading to confusion and disagreement over the meaning of the Constitution, and the overall weakening of its authority.

There may be room for debate over the wisdom of deploying naval forces to defend against pirates on the high seas. The Constitution should not be part of that debate. One of the key defenses against government infringement of the actual constitutional principles is to ensure that the scope and meaning of the principles remain clearly understood and widely shared. And the government ought to ensure the integrity of the Constitution by applying its provisions consistently, and in accordance with that understanding, in the shaping of national policy.

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.

The report of the “Panel on the Reconstruction of the National Security Legal Foundation,” commonly known as the Yanai Report, argues that a reinterpretation of Article 9 of the Constitution is necessary to permit Japan to participate in collective self-defense and collective security operations. Both activities are currently understood to be prohibited by Article 9, Section 1. The report reveals, however, a fundamental flaw that entirely undermines the legitimacy of the panel’s analysis.

The panel was created in April 2007 by then-Prime Minister Shinzo Abe to consider the need for a “reinterpretation” of the Constitution. The panel was composed of 13 prominent academics, former diplomats and government bureaucrats who were predominantly experts in international relations, politics and national security. It included only one constitutional scholar. The panel was criticized for being dominated by policy hawks who were on record as favoring constitutional revision. The chair, Yanai Shunji, a former ambassador to the U.S. and now a professor of Chuo University, submitted the panel’s report to the Cabinet in June.

Then Prime Minister Yasuo Fukuda showed little interest in the report or constitutional “reinterpretation.” But Prime Minister Aso reiterated while at the United Nations that Article 9 should be “reinterpreted.” Moreover, there is evidence that the Yanai Report has been well received within the bureaucracy, and is likely to exercise increasing influence within government. It should therefore be the subject of greater public scrutiny.

The report argues that because the international security environment has changed since the end of the Cold War, with increased threats and more diverse threats to Japan and the international society, the established interpretation of the Constitution is no longer appropriate. Rather, Article 9 is preventing the fulfillment of important security objectives.

Thus, it argues, the interpretation of Article 9 must be “revised” so as to permit the development of a more effective defense capability and more robust national security policies. This is necessary in order to implement the strategic imperatives of effectively defending Japan, supporting the U.S.-Japan alliance, which is key to Japanese security, and contributing to the international peace and security to which Japan’s security is tied. Boiled down to its essence, the argument is this: Japan faces more threats; therefore, the meaning of Article 9 must be changed so that we can better meet those threats.

The policy analysis is commendable, but as constitutional analysis, the argument is fallacious. The entire approach of beginning with an identification of the problems posed by current circumstances, moving to a determination of the policy responses necessary to resolve those problems, and then concluding with an interpretation of a constitutional provision so as to facilitate the adoption of such policies, is entirely illegitimate.

Constitutional interpretation, under any accepted constitutional theory, cannot begin with the consequences and policy ramifications of a given provision and then proceed to reverse-engineer the meaning of the provision in a manner designed to enable the realization of the desired policy outcomes. Such result-oriented reasoning is simply invalid. And notwithstanding assertions within the report to the contrary, this is precisely what the panel has done.

A constitution forms the fundamental legal framework of a democratic state. Its provisions commit future generations to operate within the confines of the system thus created, and according to the values and vision that it embodies. The meaning of a constitutional provision has to be determined by reference to the text of the provision itself, and an understanding of the purpose that it was designed to achieve. That process is assisted by reference to other parts of the constitution, and an examination of the history of the drafting and ratification of the constitution, informed by the legal principles that were drawn upon in the process.

The subsequent interpretation of the provision by the courts and other government bodies with the requisite constitutional authority, and its operation over time, are also important guides to interpretation, as consistency, stability and predictability in the operation of fundamental legal principles are crucially important to the rule of law.

There are different theories of constitutional interpretation, some more wedded to the text and the original intent of the framers than others. Some approaches emphasize that the constitution is a living institution that will evolve gradually over time through incremental developments in court interpretations, in accordance with the shifting values and realities of the nation. But none of them contemplate ad hoc and radical government reinterpretation of provisions to fit perceived policy needs.

If there is such significant change to the nation’s circumstances that the continued legitimacy of a constitutional provision is thrown into question, then the appropriate avenue is constitutional amendment. Changing circumstances and even changing values are obviously anticipated, and amending procedures are typically part of the constitutional system. The Constitution of Japan is no exception, and it has an amendment process that is less onerous than those of Germany and the United States.

Ad hoc “reinterpretation,” particularly by the executive, is just an end run around the legitimate amendment procedures of the Constitution.

If the view is that the majority of the nation would not support such an amendment, then that simply highlights the illegitimacy of trying to impose a new meaning on the Constitution that the majority of the people would disagree with. At root, the argument that “the situation has changed, so we must change the Constitution” is perfectly valid; the argument that “the situation has changed, so the meaning of the Constitution must have changed” is not.

If the government can simply “reinterpret” Article 9 due to changing circumstances, why not other provisions? As the number of immigrants in Japan increases in response to the challenges of an aging population, could the government not also “reinterpret” Article 14 as no longer prohibiting discrimination against foreigners? A “reinterpretation” of any one provision puts the entire constitutional framework at risk. Of course, the courts have the ultimate authority to interpret the Constitution and could reject such “reinterpretations,” but the Supreme Court of Japan has historically demonstrated such deference to the government that it cannot be relied upon in this context.

Consider the issue of guns in the U.S. Many Americans, and probably most of the rest of the world, think it misguided to have a constitutional provision guaranteeing an individual right to possess firearms in a country that has the highest homicide and violent crime rates in the industrialized world. The provision itself, the Second Amendment, was ratified more than 200 years ago. It is considered by many to be anachronistic and a significant obstacle in efforts to reduce the modern scourge of gun violence in America.

Yet it is utterly inconceivable that the president or Congress could announce that it was “reinterpreting” the Second Amendment so as to permit the legal prohibition of all firearms. And the Second Amendment is much more ambiguous and has a much more complex history than Article 9. It would be open to argue, as the District of Columbia did recently before the Supreme Court, that based on valid principles of constitutional construction, an alternate interpretation is more legitimate. But governments cannot simply claim that the Second Amendment now means something different because guns kill too many people in America.

The Yanai Report provides an important analysis of the changing international security environment, and provides a concise articulation of Japan’s strategic policy requirements. It asks important questions regarding whether it is possible for Japan to meet its national security objectives within the constraints of Article 9.

It also offers significant arguments that could be legitimately advanced in favor of constitutional amendment. The report even provides fairly detailed and impressive recommendations on the legal limits that should be created to govern the exercise of military force that would be made possible by its recommended changes. The report has considerable value as a policy document.

However, its conclusion that Article 9 must thus have a meaning different from the long-established interpretation is simply invalid. The panel makes errors in some of the details of its interpretive arguments, but these are dwarfed by the illegitimacy of the entire approach.

As such, notwithstanding the potential value of its policy analysis, the report ought not to have any influence whatsoever on the meaning of the Constitution. And government attempts to follow it ought to be challenged.

The Supreme Court of Canada handed down a judgment relating to detainees in Guantanamo Bay on May 23, holding that the one Canadian detained there may rely upon the Canadian Charter of Rights and Freedoms to obtain some due process protection from the Canadian government.

Overview

The decision has already been reviewed briefly from the perspective of Canadian constitutional law on the University of Toronto and Osgoode Hall law school blogs, so I will not repeat that process here. But the decision has importance from the perspective of international law, and the relationship between international and constitutional law.

I would suggest that the judgment refutes the arguments, voiced most recently by several scholars at the ASIL conference in April, that there are circumstances in the so-called “war on terror” in general, and the treatment of detainees in particular, in which neither constitutional law or international law (whether human rights or humanitarian law) ought to govern the conduct and procedures of the detaining forces.

The Supreme Court held that it is precisely when the agents of the Canadian government participate in conduct and circumstances that constitute violations of international law, that the application of the Charter will be triggered and its protections available to detainees (or at least Canadian detainees – more on that distinction below).

Background

Omar Khadr was 15 years old when he was captured by U.S. forces in Afghanistan in July, 2002. He was one of the few detainees who has been arraigned and who is actually moving towards a trial before the much-disputed Military Commissions in Guantanamo Bay. He has been charged with murder and with conspiracy to commit other acts of murder and terrorism. The murder charge arises from the death of a U.S. soldier during the skirmish in which he was captured.

The Supreme Court decision was in respect of an application by Khadr for full disclosure of all information in the hands of the Canadian government that may be relevant to his case. He had been interviewed and interrogated by officials of the Canadian government in Guantanamo Bay, and the evidence reflected that the Canadian government had shared some of the information so obtained with the U.S.

The importance of disclosure to his case before the Military Commissions is difficult to overstate, as detainees obtain only very limited disclosure from the prosecution. After the U.S. Supreme Court held that the procedures of the Military Commissions were unlawful in its decision in Hamdan v. Rumsfled (2006), Congress promptly passed the Military Commissions Act to provide the legislative authority for most of those same procedures. They included the admissibility of evidence obtained through “coercion”, denying the accused access (even at the hearing itself) to classified evidence, and even excluding the accused from the hearing in certain circumstances. The disclosure obligations on the prosecution are very limited.

There has yet to be a full trial before the Military Commissions, but the conduct of the Combat Status Review Tribunals (CSRT), which were created to determine whether detainees met the definition of “unlawful combatant” for the purpose of prosecution, have been analyzed by a team at Seaton Hall Law School (report here). The denial of the most fundamental rights expected in administrative and judicial proceedings was found to be extreme, and is suggestive of the entire Military Commission process.

Indeed, the D.C. Circuit Court held in Bismillah v. Gates (2007), that the lack of disclosure by the government in judicial review proceedings of CSRT decisions was unconstitutional. But there is little relief in sight with respect to the lack of due process in the Military Commission hearings themselves (the other significant Guantanamo case before the U.S. Supreme Court, Boumediene v. Bush, in which Khadr is also a party, relates primarily to the legality of the provisions of the Military Commissions Act that purported to strip the federal courts of habeus corpus jurisdiction with respect to detainees). Thus any disclosure Khadr can get from the Canadian government will be helpful for his case.

The Decision

Khadr sought full disclosure from the Canadian government, on the grounds that section 7 of the Charter governed his relationship with the Canadian government. Section 7 of the Charter, which provides for the “right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”, was interpreted in the seminal case of R. v. Stinchcombe (1991), as requiring the government to provide the accused in a criminal proceeding, whose liberty interests are thus at stake, with full disclosure of all material relevant to the issues in the case. The government argued that the Charter did not apply to the operations of government officials operating abroad, and that Stinchcombe was thus irrelevant.

In deciding the case in Khadr’s favour, the Supreme Court expanded an exception it had created in R. v. Hape (2007), the case which revised the general principles for Charter application to the conduct of government officials abroad. The basic rule is that the Charter will not apply, due to the deference owed to the laws of the foreign jurisdiction in which the Canadian agents are operating. Such deference, manifested by refraining from any attempt to extend the operation of one’s own laws to conduct within a foreign jurisdiction, is required by the principle of comity in international law. But the Court held in Khadr that where the conduct in which the Canadian agents are participating violates international law (and more specifically Canada’s international law obligations), then the basis for deference is negated, and the Charter will apply to the extent of the participation.

Rather than engage in an independent inquiry into the extent to which conduct in Guantanamo Bay violated international law, the Court simply relied upon the decisions of the Supreme Court of the United States in Rasul v. Bush (2004) and Hamdan v. Rumsfeld(2006) as the basis for finding that the deprivation of habeus corpus, and the procedures established for the operations of military commissions, were in violation of international law and illegal under U.S. law during the period in which Canadian agents interrogated Khadr in Guantanamo.

As such, the Court held that “the regime providing for the detention and trial of Mr. Khadr at the time of the [Canadian interviews] constituted a clear violation of fundamental human rights protected by international law.” (para. 24) Canadian agents participated in that activity, which would have clearly been a violation of Khadr’s Charter rights had it occurred in Canada, and the violation of international law by the U.S. negated the deference that would otherwise prevent application of the Charter.

The crux of Canadian participation in the process was the obtaining information from Khadr and providing it to the U.S. Thus, the Court reasoned, the refusal to disclose the information related to those interviews was a breach of section 7 of the Charter, and Khadr’s remedy is to obtain disclosure of that information, subject to possible privilege claims (the remedy is significantly narrower than that sought, which was disclosure of all relevant information in the government’s possession – it is entirely unclear to me why the order would not at least also include any information that the government received from the U.S. in the course of the interviews and information exchanges related thereto).

Significance

As indicated above, it seems to me that this decision refutes the arguments of some in the U.S. that the treatment of detainees in such places as Guantanamo, Afghanistan and Iraq, should not be subject to either the constitutional law of coalition countries, or international law. Moreover, as discussed elsewhere in these posts, the U.S. has undertaken efforts to ensure that detainees will not even have access to any protections afforded by the local legal system in Afghanistan either (and of course there is no other legal system available in Guantanamo), thus leaving them with virtually no legal protection whatsoever.

These arguments in essence suggest that constitutional law ought not to apply, since the nexus of citizenship, presence within the jurisdiction and so forth, do not exist to trigger its operation in respect of detainees. At the same time, since they are not lawful combatants in an international armed conflict, the laws of international humanitarian law should not apply. But since they are being detained in the “war on terror”, which is an armed conflict of a sort (or so the argument goes), international human rights law ought not to apply either. There is thus, according to these arguments, a legal black hole in which detainees can be afforded the most limited procedural protection and due process, entirely at the discretion of the detaining power.

The Supreme Court of Canada decision in this case, it seems to me, stands in stark contradiction to such arguments, with its holding that Canada’s constitutional protections and remedies will be applied by the Canadian courts precisely when it is determined that international law has been violated. In essence, rather than accepting the notion that these are circumstances in which no law will be deemed to apply, the Court has recognized what is effectively double coverage: international law is recognized as governing the treatment of detainees generally, and when it has been violated in circumstances in which agents of the Canadian government have participated, the Canadian Charter will also be applied to the extent of that participation.

As Sujit Choudhry notes in his initial discussion of the case (in the University of Toronto blog cited above), that will likely inform the Court’s pending analysis of Canada’s obligations to non-Canadian detainees captured by Canadian Forces in Afghanistan. The distinction there, of course, will be that the detainees are not Canadian, and the Court will not have U.S. precedents to rely on in assessing the question of Canadian participation in violations of international law. The issue of Canadian Forces’ compliance with the Geneva Conventions will be squarely before the Court, and it will be interesting to see whether the nationality of detainees will become a significant factor in the Charter analysis.

Thus, while there has been some early criticism of the decision (e.g. the Osgoode Hall blog noted above, which questions why the broader aspects of the government’s participation, and failure to act, in the Khadr case remains largely unexamined), from the perspective of the relationship between international and constitutional law, particularly in the context of the treatment of detainees in counter-terrorism efforts, the case may be viewed as a positive step, and one more blow against the black hole paradigm.