President Obama, in accepting his Nobel Prize, spoke in lofty terms about the requirement that all nations, weak and strong, must adhere to the legal standards that govern the use of force. He noted that the U.S. had played a leading role in creating that legal framework. And he went on to underline that the U.S. too must respect international law: “America cannot insist that others follow the rules of the road if we refuse to follow them ourselves. For when we don’t, our action can appear arbitrary, and undercut the legitimacy of future intervention — no matter how justified.”

And yet the absence of any public discussion or analysis of the legal issues raised by America’s efforts against terrorism is striking. Whether it be torture and extraordinary rendition, military commissions, the targeted killing by drone attacks in Pakistan, the planning of CIA assassination squads, the large number of civilian deaths in air strikes in Afghanistan, or even the prospect of military strikes in Iran, all of these raise significant and complex international law issues. But you will not find any meaningful discussion of those issues in the media, or indeed in the talking points, blogs, or analysis produced by most liberal or progressive organizations.

Consider the contrast between the media coverage of such topics and the analysis of the issues surrounding the Israeli operations in Gaza earlier this year. There were countless articles examining the legal significance of the claims that the Israeli use of force was disproportionate, that civilians and civilian structures had been targeted, and that Israeli forces were using illegitimate munitions. The coverage was often sympathetic to the Israeli position, but there was nonetheless an examination of the legal issues involved. In contrast, when in the same month American forces killed Afghani civilians in air strikes, there was no such analysis – the entire discussion revolved around the strategic and political ramifications of killing civilians.

Liberal advocates say in private that they did not want to raise the international law arguments against torture, because such arguments “do not play well” in middle America. So the focus of the debate in this country was on the ineffectiveness of torture, and how counterproductive it could be. That is a dangerous argument to stake one’s entire position on. The fact is that the prohibition of torture is one of the very few peremptory norms in international law (known as jus cogens norms) – meaning it is one of the most bedrock principles of international law that nations may not derogate from under any circumstance. The other such norms include the prohibitions on slavery, genocide, and piracy. Yet in America, the debate was over when and under what circumstances we might derogate from the norm, and liberals were afraid to raise the law, because it does not “play well.”

The danger in all of this is that if liberals and progressives are afraid to make the argument for international law and the rule of law, then the argument will not get made. Progressives, afraid of looking weak, abandon the defense of the rule of law in favor of functional arguments. And so the country lurches ever rightward, in a one-way ratchet effect, with crucial principles being left by the side of the road as political liabilities.
Yet this country is supposed to be a “nation of laws” that preaches to the world the importance of the rule of law. These principles are supposed to be foundational, part of the constitutional DNA of the nation. They are part of the identity that is presented to the rest of the world. It cannot reject international law without doing violence to its own notions of the importance of law and the rule of law.

Moreover, as President Obama said, if the U.S. does not respect and observe the international legal standards, then it will lose its legitimacy and moral authority in the world. And that means that the extent to which American policy conforms to international law, from military commissions to targeted killings in Pakistan, must be part of the national discourse. So progressives have to engage the legal issues more, both to help preserve the country’s identity as a nation of laws, and to help ensure that we at least understand whether policy complies with the law.

The debate over climate change legislation is beginning to heat up. The American Clean Energy and Security Act was passed by the House and is now before the Senate. The debate on this issue typically takes the form of environmental concerns about global warming pitted against economic fears about the cost of reducing greenhouse gases. It is often framed in left-right terms. But as Americans think about whether to support this legislation, they should ponder the national security implications of climate change.

The recognition that global warming will increase the threats to our national security and place ever greater demands on our military is not new. The Bush administration acknowledged the issue in the 2006 National Security Strategy. A national security think tank comprising retired military officers, including Marine General Anthony Zinni, issued a report on the subject in 2007, identifying the various ways in which man-made climate change will directly affect national security.

Areas of the globe will be increasingly ravaged by drought, on the one hand, and flooding from extreme storms and rising sea levels on the other. These will cause mass migrations of refugees, the breakdown of societies and resulting conflict over reduced arable land, living space and other resources. The conflict in Sudan today is in part caused by the prolonged drought in the region. The massive movement of refugees that followed both the recent flooding in Bangladesh and the typhoon that hit Myanmar are other examples of such climate-related disruption. Climate change is seen as a “threat multiplier” that intensifies instability and sows the seeds of conflict.

Such instability and conflict will affect the United States. Armed conflict and massive political upheavals pose the risk of ever-wider hostilities and thus draw the world powers into the fray if only to contain it. Dislocation and instability will also lead to the failure of states, which become incubators for the development of other threats. Consider Somalia in the 1990s and again today. The failed state of Afghanistan in the 1990s provided a base for the planning and launching of the Sept. 11 attacks. The initial failure of Afghanistan was not caused by global warming, but a study conducted for the National Intelligence Council predicts that climate change raises the risk of many more failed states in the future.

The Pentagon and the State Department increasingly factor these expected ramifications of man-made climate change into their strategic planning and policy development. But the impact on national security should also be part of the broader debate on emissions policy. The greater and more rapid the climate change, the more quickly these threats will emerge – and the greater will be the impact on our national security.

Thus, efforts by the United States to reduce carbon emissions and to lead the rest of the world in tackling global warming are partly an effort to reduce the likely threats to our own national security. As the military strategist Sun Tzu wrote more than 2,500 years ago, the very acme of military skill is never having to fight a battle. General Zinni echoed this wisdom recently, saying “we will pay to reduce greenhouse gas emissions today … or we’ll pay the price later in military terms. And that will involve human lives.”

Some still cling to the tired argument that the link between human activity and climate change has not been “proven.” But in military and strategic matters, we do not wait until a risk has actually exploded into reality or wait for potential threats to be proven before developing our defenses. We defend against our best estimate of the future threat. So even if some holdouts continue to doubt the causes of global warming, prudence still dictates that we act now to respond to the risk.

Of course, the scientific community overwhelmingly endorses the position that humans are causing global warming and that we are near the point of no return. Meaning, unless we take action now, climate change will increasingly and radically multiply the threats to our national security, and the future drain on our military resources will dwarf the economic cost of taking action today. And we will pay in blood as well as treasure. That is something we would do well to remember when we consider the climate change bill before the Senate.

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 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.

Such legislation establishes the operating parameters, such as limiting the SDF to noncombat zones and defining the conditions under which it may use force in self-defense, and typically specifies clear time limits for the deployment. New legislation is also required to extend the time limits of such laws before they expire.

The government was embarrassed last year by its inability to get Diet approval for an extension of the ATSML for another year, forcing it to withdraw the SDF from the Indian Ocean.

The government, and many policy pundits, believe that the requirement to obtain legislative approval for each deployment is cumbersome, time-consuming, and when the opposition controls one chamber of the Diet, a real obstacle to the implementation of policy. So it now wants a permanent law that would provide blanket authorization for the deployment of the SDF for participation in what it calls “international cooperation activities.”

The term “international cooperation activities” (which also appears in the Liberal Democratic Party’s proposed amendment to Article 9 of the Constitution) has no meaning under international law. It could be used to describe collective self-defense, or collective security operations authorized by the United Nations Security Council, both of which are understood to be prohibited by Article 9.

It could even include such operations as the invasion of Iraq, which was not authorized by the U.N. and is widely interpreted as having been an act of aggression in violation of international law.

Since the term is deliberately ambiguous, the law authorizing such “international cooperation” would have to provide broad and ambiguous criteria justifying the dispatch of the SDF. There would be no narrow parameters tailored to the specific circumstances for which the SDF were to be deployed, as have characterized the “special measures” laws authorizing each SDF deployment in the past. It would be tantamount to a blank check.

Such a blank check would eliminate the role of the legislature in the process of deciding upon and approving Japan’s involvement in military operations abroad. Nor would the legislature have any power to block or otherwise restrain government after it has decided to deploy Japanese troops. The Cabinet would have authority to make the determination, in its sole discretion, as to whether the operation for which it sought to deploy Japanese troops met the criteria in the permanent law. Moreover, without a specific law setting the limits within which the SDF is required to operate, there would be no restraints on “mission creep” in which operations could develop into actual combat activity and escalate over time.

Advocates of the new law assert that the permanent law would not be for engaging in armed conflict, but only to authorize the dispatch of the SDF for humanitarian support efforts. But these assertions are both hollow and disingenuous. Given the language of “international cooperation,” the SDF could be deployed for almost any purpose the government decides upon.

In the recent past, when there have been special laws both authorizing and limiting SDF operations, the SDF has been found to have violated the limits of those laws (as with the ASDF operations in Iraq), the government has tried to dismiss legal findings to that effect (as in its response to the Nagoya High Court case on ASDF operations in Iraq), and the SDF itself has tried to deceive both Cabinet and the Diet regarding such violations (as in the MSDF misrepresentations regarding the fueling of U.S. naval assets in the Indian Ocean).

Given this recent record, why should anyone think that eliminating such legal restraints and legislative oversight would not lead to even more unrestrained use of the military, in ways that may be utterly inconsistent with the Constitution?

Nor could the courts be relied upon to review such decisions as a check on government action. The courts are considered to be the third branch of government in the traditional separation of powers that is at the foundation of the modern democratic structure. In Japan, however, they have abdicated all responsibility for reviewing the executive’s decisions with respect to the development and deployment of troops. The Supreme Court long ago held that such issues are “too political” to be the subject of judicial review, even where the government action is inconsistent with Article 9 of the Constitution.

The Supreme Court has also narrowed the test for standing, the legal basis upon which constitutional claims may be brought before the courts, to such a degree that using the courts to review government deployment of troops is all but impossible. There are virtually no circumstances in which anyone could demonstrate the “direct legal interest” necessary to advance a claim that would be accepted by the courts.

Lower courts have recently followed precisely these standards in dismissing a number of challenges to the deployment of the SDF to support operations in Afghanistan and Iraq. As the recent Nagoya High Court decision demonstrated, the lower courts will continue to dismiss such claims even when they believe the government’s action is unconstitutional. Notwithstanding the judiciary’s constitutional authority and responsibility, it will thus be no check on executive acts in this regard.

This elimination of checks on the executive power to engage in armed conflict runs counter to recent trends in other democracies around the world. Over the last 30 years there has been a movement toward greater transparency and democratic accountability in the process of deciding to use armed force.

The United States has always had a constitutional provision granting Congress the power to declare war and to confer authority for other actions incidental to armed conflict, though the exact scope of that authority has been hotly debated for over a hundred years. But after presidents began more aggressively ignoring the congressional authority, beginning with the Korean war and culminating in secret operations in Laos and Cambodia during the Vietnam war, Congress passed the War Powers Act to try to reign in the executive power.

While the war powers of the president and Congress continue to be controversial, it is worth noting that the president obtained specific congressional authority for the Gulf War in 1990, for the response to 9/11 that culminated in the invasion of Afghanistan, and for the invasion of Iraq.

In Germany, the Constitutional Court was called upon to consider the issue in the context of Germany’s participation in the North Atlantic Treaty Organization’s operations in the former Yugoslavia in 1994. The court rather creatively interpreted the Basic Law as requiring the government to obtain specific legislative approval each and every time it sought to deploy armed forces in support of international operations. That continues to be the constitutional principle that governs German policy today.

Similarly, Prime Minister Gordon Brown has recently suggested constitutional changes for Britain, introducing the concept of requiring parliamentary approval of decisions to engage in armed conflict. Under the British constitutional system the decision to go to war has traditionally been within the scope of the “Royal Prerogative,” meaning the sole discretion of the executive. That broad discretion of course contributed to such historic policy blunders as the conspiracy with France and Israel for the orchestrated attack on Egypt in the Suez crisis of 1956, which was decided upon without any informed parliamentary debate.

Canada, which has historically also operated under the Royal Prerogative, has more recently begun the practice of submitting decisions to participate in armed conflict to parliament for debate and approval. There was parliamentary debate before the final decision to participate in the first Gulf War in 1991, and there was legislative approval sought again this year for continued Canadian involvement in Afghanistan.

There are other examples that together establish the clear trend in the world’s democracies to broaden legislative participation in the decision to use armed forces. That seems only reasonable, since the decision to engage in armed conflict is one of the most important and potentially significant a nation can make.

It may be cumbersome to obtain legislative approval for deploying military forces overseas, but that is as it should be. It is not a decision that should be made lightly. It should be made after well informed debate, with a clear understanding of objectives and limits.

Japan, more than most countries, ought to have a deep understanding of the horrors that can unfold from granting one branch of government a blank check to make decisions about war and peace, and how international “incidents” can develop into full-blown wars.

The government’s recent high-handed dismissal of the Nagoya High Court judgment on the constitutionality of SDF operations in Iraq is just one more reminder of why it is essential to have meaningful and substantive democratic constraints on the executive power to use armed force in Japan.

Providing the government a blank check for the dispatch of the SDF is going in the wrong direction, and swimming against the tide.

This is utter rubbish, as there is no conceivable scenario in which the disclosure of when he learned of the decision could be of any value to insurgent forces in Afghanistan, far less impact on any actual operations in Afghanistan. But it is far more dangerous that we increasingly allow our government to use assertions of “national security” and “military operations” considerations to shield their own acts, omissions, and policy decisions from the public eye. The detainee issue involves questions of Canada’s compliance with international law, and is thus of public importance.

There are times when national security requires secrecy, but we must be rigorous in demanding that the government justify with precision their attempts to invoke such secrecy. The media, in particular, should demand explanations of public figures as to how, exactly, the disclosure that is being refused would pose a threat to national security.