Rule of Law

The Tragic Demise of Japan’s Constitutional War Constraints

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Published a chapter entitled “The Tragic Demise of Japan’s Constitutional War Constraints,” the in an edited volume, The ‘Pacifist Principle’ in the Italian and Japanese Constitutions in the Wake of the War in Ukraine, Giovanni Cavaggion ed., (Springer, 2026), which came out of the conference at the University of Milan last year. The full chapter is available on SSRN, and the abstract is below:

Article 9 of the Constitution of Japan famously prohibits the use of force and the maintenance of armed forces and “other war potential.” For seven decades this provision effectively shaped national policy, constraining the government from any use of force and, to a lesser extent, moderating Japan’s national security posture. It also helped define Japan’s postwar constitutional identity. This chapter examines the process and implications of how Article 9 has been illegitimately undermined over the last decade.

First, it explains the traditional understanding and effective operation of Article 9, from its first authoritative interpretation in 1954 through 2014. Second, it analyzes the Abe administration’s process of “reinterpretation” in 2014–2015, which gutted the clear and effective constitutional constraint on the use of force in paragraph one, and explains why this was not a valid informal amendment but an unconstitutional circumvention of the formal amendment procedure. Third, it examines how Russia’s 2022 invasion of Ukraine was used as an opportunity to complete the evisceration of Article 9, with a new national security strategy that entrenched the reinterpretation and sidelined the less effective prohibition on armed forces and other war potential.

The chapter closes with reflections on the tragic nature of this demise: Article 9 was a unique experiment in constitutional incorporation of international law constraints on the use of force. Its illegitimate subversion is significant not only for constitutionalism and the rule of law in Japan, but for the broader project of subjecting state use of force to meaningful legal limits—at a time when that project is under increasing strain internationally.

Nuclear-Powered AI: The Risks of De-Regulation

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Mike Kelly and I continued our collaboration on AI issues, with an essay in Just Security entitled “Nuclear-Powered AI: The Risks of De-Regulation,” in which we analyze the risks associated with the Trump administration’s coordinated loosening of regulation in AI development, nuclear energy deployment, and environmental review. The government is relaxing regulation in all three areas in order to facilitate the development of nuclear energy — particularly small modular reactors — for purposes of providing power to the ever spreading and expanding AI data centers. While the use of nuclear energy has some appeal from a climate change perspective, the coordinated relaxation of regulations in all three areas raises significant risks, which we explore and explain.

New Substack – Law in Crisis

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I have launched a new substack, entitled Law in Crisis, which some might find interesting. As the masthead explains, it is a forum for “musings on how law can help our response to crises, and how to respond to the crisis in law itself – use of force and armed conflict, climate change and security, AI and security, constitutional and int’l human rights, and the rule of law more generally.”  The plan is to publish an essay of between one to two thousand words at least once a week.

Discussing Autonomous Weapons Systems and IHL at Case Western Law

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Case Western University School of Law’s annual international law symposium this year focused on the question of whether the Geneva Conventions, enjoying their 75th Anniversary, need to be updated to deal with new challenges, including the application of IHL to space, expanding transnational conflicts with non-state actors, cyber-war, and the development and deployment of fully autonomous weapons systems. The conference began with a closed experts group meeting to discuss the development of a white paper on the issues, followed by an open conference with panels on each of the major topics.

My panel, with Laurie Blank of Emory Univ. Law, Milena Sterio of Cleveland Univ. Law, and Romina Morello of the ICRC, fielded questions from Paul Williams of American Univ. Law, on whether, and how, the Geneva Conventions might need to be updated in some form to better regulate the use of autonomous weapons systems. My article on the subject will be published next year in the Case Western Journal of International Law. Great conference.