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.

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

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

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

The case arose when approximately 1,100 plaintiffs commenced the lawsuit in an attempt to prevent the continued operation of the Self-Defense Force (SDF) in Iraq. It was one of more than a dozen cases around the country challenging the deployment of the SDF in support of operations in both Afghanistan and Iraq. The Nagoya High Court, while dismissing the claims of the plaintiffs for token compensation (for mental distress) and an injunction prohibiting further deployment of the Air Self-Defense Force (ASDF) in Iraq, held that the activity of the ASDF was in violation of Article 9 of the Constitution.

Specifically, the court held that ASDF activity was being conducted in a combat zone in violation of the Iraq Special Measures Law (Iraq SML), which authorized the deployment of the SDF. It also held that the ASDF activity was a necessary and integral component of the use of force by coalition forces in Iraq, and thus itself constituted the use of force in violation of Article 9 of the Constitution, which prohibits Japan from using force as a means of settling international disputes.

The court dismissed the plaintiffs’ claims because they lacked standing. While recognizing that the Constitution conferred upon the plaintiffs a personal right to live in peace, the court held that the ASDF operations did not directly infringe that right, or any other individual or direct legal interest of the plaintiffs, so as to give them a legal basis to advance their claims. But the determination that the plaintiffs did not have standing for their specific claims did not in any way prevent the court from also deciding that the government deployment of the ASDF in Iraq was in violation of Article 9(1) of the Constitution.

The Constitution provides that the Supreme Court, and such other inferior courts as are established by law, are the sole repository of judicial power in Japan (Art. 74). It further provides that the Constitution is the supreme law of the land, and that no law or other act of the government that is inconsistent with it is to have any force and effect (Article 98). Finally, the judiciary, ultimately the Supreme Court as the court of last resort, has the sole power to determine the constitutionality of any law or other act of government (Article 81).

It is very clear, therefore, that the Nagoya High Court had every authority, and indeed a responsibility, to interpret the constitutionality of the operations of the ASDF and the Iraq SML. It was also acting within its jurisdiction in determining whether the operations violated the limits prescribed by the Iraq SML itself. One of those limits restricted all SDF activity to noncombat zones.

The question of whether Baghdad constituted a combat zone as defined in the Iraq SML, and whether the ASDF transportation of armed coalition forces to the combat zone in Iraq itself constituted the use of force, were therefore proper questions for the high court to consider.

Its judgment with respect to those questions, on the basis of evidence before it, and its application of the law and interpretation of the Constitution for that purpose, was a fulfillment of its constitutional role.

Yet Chief Cabinet Secretary Machimura stated publicly that the government “could not accept such a court ruling” because it was inconsistent with the government’s own determination that Baghdad airport was not a combat zone.

Such comments suggest that the executive is spurning a proper legal determination by the judiciary, and substituting its own judgment on a legal question, for which the executive has no constitutional authority (ironically, there was actually evidence given in the trial, by a representative of the Defense Ministry, that the Baghdad airport was susceptible to attack and had occasionally come under attack).

Similarly, the prime minister stated that the decision of the court, which held that his government’s policy was in violation of one of the three fundamental principles of the Constitution, would have no impact on the continued deployment of the ASDF to Iraq. This tends to reflect contempt for the judiciary’s sole authority in interpreting the Constitution and the constitutionality of the laws and acts of government. In the context of the careful separation of powers in a constitutional democracy, the executive is thereby emasculating the judicial branch and trying to usurp its authority.

Most egregiously, Adm. Takashi Saito, the chief of staff of the SDF, publicly stated that the ASDF mission in Iraq does not play an integral part in the use of force, directly contradicting the judicial determination by the Nagoya High Court. Whether it constitutes a use of force or not is a question of law, which the courts have the sole authority to decide.

Given Japan’s history of militarism in the 1930s, during which the military disdained and then usurped the fundamental democratic institutions of the state, such a flagrant demonstration of disrespect for a judicial decision by the most senior military officer ought to be viewed as being entirely unacceptable and the cause for serious concern.

Because the high court held that the plaintiffs lacked standing to claim the remedy they sought, the requested injunction was not issued, and so the government’s response is not formally in contempt of a court order. But that does not mean that the high court’s judgment that a government policy is unconstitutional can be simply ignored and dismissed as irrelevant. To ignore judicial determinations of unconstitutionality is to weaken the institutional power and authority of the judiciary and thus unbalances the separation of powers, and undermine the integrity of the Constitution itself. Ultimately, such practice may threaten the democratic structure of the state.

As the government continues to work toward Japan taking a more active role in the international collective security system, it will need to convince both the Japanese people and the other countries in the region that the rule of law and other institutions of constitutional democracy are secure and respected in the Japanese political system.

Such high-handed flouting of the Constitution, the law and the judiciary as was reflected in this case does not help.

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.