Article 9

The “Yanai Report” on Art. 9, Part 2.

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Continuing from the last posting, this segment reviews the substance of Part I and Part II of the report, with particular emphasis on Part I. It will be recalled that Part I was entitled “The National Security Environment of Japan and the Need for a Reconstruction of the Legal Foundation”.

Part I, section 1

It begins by establishing the premise that it is necessary for the national security policy of Japan to adapt to changes in the international environment. Moving from that premise, the report then establishes that as a country governed by the rule of law, the national security policy must be constructed on a foundation of clearly defined laws. However, it argues that this foundation must constantly be re-examined so as to accord with the reality of shifts in the national security threats. It asserts that while the legal foundation as it now exists is based in part on the Constitution, it also reflects the historical reality, both in political and in strategic terms, that existed at the time of its formation. Since those circumstances have changed, it is appropriate to re-examine and reform the legal foundation to ensure it complies with today’s realities.

This conclusion is followed by several qualifiers, regarding the degree of change in the threat environment that makes such reform necessary, and the assertion that “it goes without saying that the interpretation of law cannot simply be a convenience to be adjusted in conformity with the circumstances. But nor does it mean that looked at legally, the interpretation that has been maintained until now is the only possible rational interpretation.” It then goes on to criticize the government interpretation of Art. 9 as being excessively complicated and inconsistent with international law.

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Japan Opens Up Way For Military Use of Outer Space

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(Written for and appearing in Foreign Policy Digest)

Developments:

Japan’s Diet (legislature) passed a new Basic Law on Space on May 21 (the bill can be found in the index on-line here, and in pdf here ), which will permit Japan for the first time to use space for the purposes of contributing to national security. This constituted a marked departure from an almost 40 year old policy of strict non-military use of outer space.

While the passing of the law received some passing coverage in the Western press , the significance of this development remains largely unexplored. The move is important in two respects – the first being its place in a systematic widening of the scope of Japanese military activity notwithstanding constitutional constraints, and the second is the extent to which it may contribute to an escalation in the militarization of space among East Asian countries. This article focuses on the first aspect.

Background:

To put all of this into context one has to begin with the Japanese constitutional constraints on the use of force and maintenance of armaments. Article 9 of the 1947 Constitution provides that Japan forever renounces war and the threat or use of armed force for the purposes of settling international disputes. It also, in Art. 9(2), declares that it shall never maintain land, sea, or air forces or any other war potential, and that the rights of belligerency will not be recognized.

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Permanent SDF Deployment Law and Democracy

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(Initially published in the Japan Times, May 21, 2008)

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.

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Rule of Law Under Fire in Japan

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(Initially published in the Japan Times, May 3, 2008)

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.

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