The “Yanai Report” on Art. 9, Part 3

Continuing from the last post, this posting examines Part III of the Yanai Report, which is the heart of the argument on the actual interpretation of Art. 9. While the earlier posts were summaries combined with some select segments being translated almost in full, this posting is less a summary and more a full report on the substance of this part of the report. There is much to criticize here, but the analysis is left for the fourth and final posting on the report.

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.