use of force

Japan’s Dilemma in the Persian Gulf

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(Published in Australian Institute of International Affairs: Australian Outlook, Jun. 26, 2019; re-published in Opinio Juris, Jul. 5, 2019)

In the wake of the recent attacks on shipping in the Persian Gulf, there has been considerable discussion about Europe’s difficult position amidst the escalating tension between the United States and Iran. There has been far less discussion of Japan’s situation. Yet one of the ships was Japanese-owned, and Prime Minister Shinzo Abe was in Tehran at the time of the attack, specifically trying to dampen those tensions. Nonetheless, Japan distanced itself from the American accusations of Iran’s role in quite surprising and uncharacteristic fashion.

Why was that? Like the EU, Japan appeared to be on the horns of a dilemma, but the nature of its dilemma seemed far less clear. One explanation may lie with the Japanese government’s 2014 so-called “reinterpretation” of the war-renouncing provision of the Constitution. The current situation in the Gulf dovetailed with that “reinterpretation” in manner that created a dilemma with huge risks for the government.

Japan’s Surprising Response to the Crisis

Most readers would be familiar with the increasing tensions between Iran and the United States, from the American withdrawal last year from the Joint Comprehensive Plan of Action (JCPOA), the American tightening of sanctions since then, through to the recent U.S. deployment of forces to the region, followed by the two separate attacks on tankers in the Gulf of Oman. This timeline is a good refresher.

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Canada’s Support of U.S. Strikes on Syria Harms International Law

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(Published in the HuffPost, May 1, 2017.)

Tomahawk-Missile

In the immediate aftermath of the American missile strike against Syria, Prime Minister Trudeau announced that Canada “fully supports” the U.S. in its “limited and focused action to degrade” the Syrian government’s chemical weapons capability. Many Canadians appear to think that this was the right call, given the heinous nature of the chemical weapons attacks in Syria. But the U.S. missile strikes violated international law, and weakened the international rule of law. Canada’s swift and strong support for those unlawful acts will in turn do further harm to the international law system. That is not at all consistent with Canada’s traditional support for international law. It was not necessary, and the Canadian government should re-consider such support for future American unilateral attacks.

Let us begin with the question of legality. Article 2(4) of The United Nations Charter and customary international law provide for a strict prohibition against the use of force against other states. There are only two exceptions to that prohibition, permitting states to use force either in individual or collective self-defense (Article 51), or when authorized to do so by the UN Security Council for purposes of maintaining or restoring international peace and security (Articles 39 and 42).

There is an amazingly strong consensus among international law scholars, even within the United States, that the U.S. missile strikes constituted a clear violation of the prohibition against the use of force. These views have been articulated in such renowned national security and international law blog sites as Lawfare, Just Security, EJILTalk!, and Opinio Juris. Such a consensus is remarkable given how divided opinion has been on the invasion of Iraq, drone strikes in Yemen and Pakistan, or even the American strikes within Syria against ISIS. There is so little disagreement on these recent strikes, however, because there is virtually no plausible argument that they satisfy either of the established exceptions.

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Jus ad Bellum Implications of Japan’s New National Security Laws

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(Published in Opinio Juris, Apr. 21, 2016; re-published in The Asia-Pacific Journal: Japan Focus, Vol. 14, May 15, 2016)

Far-reaching revisions to Japan’s national security laws became effective at the end of March. Part of the government’s efforts to “reinterpret” Japan’s war-renouncing Constitution, the revised laws authorize military action that would previously have been unconstitutional. The move has been severely criticized within Japan as being a circumvention and violation of the Constitution, but there has been far less scrutiny of the international law implications of the changes.

The war-renouncing provision of the Constitution ensured compliance with the jus ad bellum regime, and indeed Japan has not engaged in a use of force since World War II. But with the purported “reinterpretation” and revised laws – which the Prime Minister has said would permit Japan to engage in minesweeping in the Straits of Hormuz or use force to defend disputed islands from foreign “infringements” – Japan has an unstable and ambiguous new domestic law regime that could potentially authorize action that would violate international law.

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Speaking with Yanai in The Hague

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Speaking in February on a panel with Judge Shunji Yanai, on the constitutional and international law issues arising from the Japanese government’s “reinterpretation” of the war-renouncing Article 9 of the Constitution. Shunji Yanai, who is a judge on the International Tribunal for the Law of the Sea, was the chairman of the Advisory Panel on the Reconstruction for the Legal Basis of Security, which made recommendations to the Japanese government on how and why to “reinterpret” Article 9. The one-day conference was held at the Asser Institute in The Hague, with Judge Hisashi Owada of the International Court of Justice giving the keynote address.

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