Law

"There has been little study of the analytical framework employed by the Japanese courts in resolving constitutional claims under the right to be treated as an equal and not be discriminated against. In the Japanese literature the only comparative analysis done focuses on American equal protection jurisprudence. This article examines the development of the equality rights doctrine in the Japanese Supreme Court from the perspective of an increasingly universal “proportionality analysis” approach to rights enforcement, of which the Canadian equality rights jurisprudence is a good example, in contrast to the American approach. This comparative analysis, which begins with a review of the theoretical foundation of the right, and the Canadian and American approaches, illustrates the inadequacy of the “unreasonable discrimination” test traditionally employed by the Japanese courts, and makes normative arguments for modification of the Japanese doctrine. While there are other significant factors that explain the Court’s failure to enforce constitutional rights in Japan, the article suggests that the weakness of the doctrine has been an important factor.

The article also examines evidence that there is a more sophisticated doctrine emerging, beginning with strong dissents in earlier Supreme Court judgments, through to the majority opinion of the Supreme Court in a 2008 judgment, all of which reflect an analytical framework that conforms to the standard proportionality analysis. The article argues that this trend should be encouraged, and one means of doing so would be for Japanese scholars to widen their comparative analysis of constitutional jurisprudence beyond that of the United States, as the American approach is not a helpful model for Japan. Finally, the article discusses what the comparative analysis of the Japanese experience may reveal about the American approach to equality rights, constitutional borrowing, and constitutional migration."

This article develops an argument for increased constitutional control over the decision to use armed force or engage in armed conflict, as a means of reducing the incidence of illegitimate armed conflict. In particular, the Model would involve three elements: a process-based constitutional incorporation of the principles of international law relating to the use of force (the jus ad bellum regime); a constitutional requirement that the legislature approve any use of force rising above a de minimus level; and an explicit provision for limited judicial review of the decision-making process. The Model is not designed with any one country in mind, but address issues raised in recent debates and calls for reform of executive war powers in various liberal democracies.

The article begins by looking at the causes of war, which operate at the decision-making level, at the level of state structure, and at the level of the international system. The history of the development of legal constraints on the use of force, however, reveals that while there was an apparent understanding of the need to address the causes of war at both the domestic and international level in the pre-modern period, since the early twentieth century we have almost exclusively relied upon the jus ad bellum regime in international law to constrain armed conflict. Constitutional democracy has spread throughout the world, and international law is increasingly implemented within the domestic legal systems of the world. Yet in most liberal democracies in the world there has been little domestic implementation of the principles of the jus ad bellum regime, the very core of the international law system, or further development of the constitutional principles creating the separation of powers in relation to the decision to use force.

The article reviews the theoretical support for the three elements of the Model. Various strands of international law compliance theory, as well as aspects of constitutional theory, provide support for the idea that the incorporation of jus ad bellum principles would further the achievement of both constitutional goals, and enhance compliance with the international law regime. In short, such incorporation would engage the causes of war at the domestic level, and strengthen the compliance with the laws that engage the causes of war at the international level.

Similarly, the requirement for legislative approval of decisions to use force would further the realization of the separation of powers envisioned by Madison and Kant. Bringing to bear the representative and oversight functions of the legislature would not only enhance democratic accountability, but would engage the domestic causes of war in significant ways, reducing the factors that lead democracies to wage war with illiberal states, while not undermining the features that help give rise to the democratic peace.

Finally, the establishment of explicit jurisdiction and standing for judicial review of the process would help ensure that the other branches comply. The courts would not be second-guessing the substance of executive decision-making, and such judicial review of the process is entirely consistent with theories regarding the role courts play in resolving the agency problems inherent in the democratic system. All three elements of the Model operate in mutually reinforcing ways to engage the causes of war at all three levels, thus reducing the likelihood of illegitimate uses of armed force. The analysis includes some discussion of the likely objections to the Model and its theoretical assumptions.

The U.S. targeted killing policy employs drone-launched missiles to kill suspected terrorists and insurgents in countries in which the U.S. is not clearly involved in an armed conflict. It has justified the program on two bases: that the U.S. is in an armed conflict with Al Qaeda and associated organizations; and that the U.S. can engage in the strikes as an exercise of self-defence. These strikes constitute a use of force against the states in which the targets are located, in jus ad bellum terms, and the claim to the right of self-defence is similarly reliance upon a jus ad bellum justification.

This chapter examines the validity of this self-defence claim, and assesses the potential impact that the policy might have on the future development of the jus ad bellum regime. Some of the implications and rationales for the policy reflect a return to older ideas about war, some dating to the medieval period, which were deliberately rejected in the design of the modern jus ad bellum regime in the U.N. system.

The broad claim of self-defence cannot be sustained without identifying the specific armed attacks to which the use of force is responding, explaining exactly how the non-state actors (NSAs) targeted are connected to such attacks, and establishing how the states against which the use of force is ultimately employed are sufficiently responsible for those actions of the NSA. Blanket assertions of self-defence with reference to 9/11 cannot justify strikes against groups and states that had no involvement in 9/11. The core argument, that self-defence claims can justify the use of force against NSAs as such, regardless of the degree to which the states in which they are located are implicated in the NSAs’ operations, is inconsistent with current treaty law, customary international law, judicial decisions, and predominant scholarly opinion. Moreover, there are good reasons for rejecting arguments in favor of expanding the doctrine of self-defence to include preventative strikes, and collapsing the gap between the thresholds for justifying the use of force against states on the one hand, and establishing state responsibility on the other.

A continuation of the targeted killing policy, together with acceptance of the rationales advanced in its defence, could significantly weaken the jus ad bellum constraints on the use of force against states. The expansion of the self-defence doctrine and weakening of its core principles would not be limited to targeted killing, but would apply generally to the use of force against states. Moreover, the policy implies a significant alteration to the relationship between the jus ad bellum and jus in bello regimes. The idea that one state could use force against another on the sole ground that it is engaged in an armed conflict with an NSA, would circumvent the jus ad bellum prohibition on the use of force altogether. All of this runs the risk of undermining the coherence of the overall system of laws that govern the use of force and armed conflict. While trying to adapt to meet the threat of terrorism, we run the risk of rejecting crucial parts of a system designed to reduce the incidence of armed conflict among states – ultimately a far more serious threat than transnational terrorism.

The long simmering debate in Japan over whether and how to amend the war-renouncing provision of the Constitution, the famous Article 9, is once again heating up. Laws are now in place for a plebiscite on the issue. The Liberal Democratic Party has published a formal amendment proposal, which would operate to eviscerate the meaningful constraints on the use of force. The left continues to oppose any and all revision, even though public opinion has begun to shift, Japan’s strategic situation has become more fraught, and external pressure for Japan to play a greater international role mounts. Amendment is more likely, and the left needs to develop meaningful proposals to counter those of the right.

This short article, a chapter in The Constitution of Japan at 65: Time for a Change? (Washington, D.C.: Woodrow Wilson Center for International Scholars, 2012), suggests that there are in fact sound legal reasons why Article 9 should be amended, in ways that are consistent with its original objectives, and for the purpose of bringing it into line with current realities, while at the same time strengthening the normative power of the provision.

The article begins by reviewing the meaning and operation of Article 9, focusing on the effective operation of the provision’s constraint on the use of force. Then, relying in part on conclusions drawn from more detailed theoretical analysis I have published elsewhere (Binding the Dogs of War, and Taking War Seriously), the article develops an argument for revising Article 9 to provide greater clarity as to the precise scope of the limits on the use of force; introducing new provisions to acknowledge the legitimacy of existing military forces, but to also establish clear civilian control and legislative approval powers over all use of such armed forces; and adding a new provision to clarify and reinforce the powers of judicial review over decisions relating to the use of force and deployment of armed forces.

The article includes draft language for the purpose of beginning a serious conversation among the supporters of Article 9 about possible alternatives to the revisions being advanced by the LDP and others on the right. The amendment proposals provided here are designed to eliminate the harmful gap between current reality and constitutional language; preserve, clarify and strengthen the constraints on the use of force; and establish clear separation of powers with respect to the decisions to engage in armed conflict.

These proposals reflect arguments drawn from theories regarding international law compliance, and arguments for the constitutional incorporation of international law principles on the use of force. They also reflect claims that the separation of powers in the context of the decision to go to war is necessary to ensure a more democratically deliberative and representative decision-making process, and thus more sober and sound judgments on the questions of war and peace.

This Article challenges and proposes refinements to the “unwilling or unable” doctrine. Governments after 9/11 have invoked the doctrine to justify the use of force in self-defense against non-state actors (NSAs) operating within the territory of nonconsenting states. Responding to criticism that it lacked substance and a legal foundation, Daniel Bethlehem famously developed more detailed principles to embed the policy firmly in law, strike a balance between the interests of target states and territorial states, and bridge the gap between scholars and policy makers. His principles were embraced by governments as reflecting custom. The effort was laudable, but the principles fell short of their objective, and they create a risk of destabilizing the jus ad bellum regime.

This Article notes that the principles do not reflect custom, and it examines some of the ways in which they are inconsistent with the established understanding of the jus ad bellum regime. Specifically, they: lower the threshold for what constitutes an armed attack; eviscerate the temporal component from the concept of imminence, thereby destabilizing the core principle of necessity; improperly import the law of state responsibility into the jus ad bellum analysis; and undermine the independence of the international humanitarian law (IHL) and the jus ad bellum regimes. Finally, the principles do not provide sufficient guidance on how or by whom a range of key determinations are to be made, particularly regarding the “ability” or “unwillingness” of the territorial state. The principles lump all these determinations together, and suggest that they may all be made unilaterally by the target state, governed only by a single, low reasonableness standard. All of this weakens the constraints of the jus ad bellum regime more generally, thus raising the risk of inter-state war.

The Article takes seriously the operational imperatives in dealing with the threat posed by terrorist organizations, but proposes refinements to the principles to address each of these problems, so as to achieve greater consistency with established principles of the jus ad bellum regime. It develops new ideas on imminence, and drawing upon theories of self-judgment in international law, it disaggregates the decisions that have to be made and proposes differentiated standards to govern their execution and later assessment.

Using the opportunity of Japan’s recent enactment of hate speech legislation, this article engages in a comparative examination of three different approaches to finding the right balance between legal limits on hate speech and the right to freedom of expression. The Japanese and American systems have struggled to find both a sufficiently important purpose to justify hate speech laws, or an appropriate limiting principle to narrow their scope. Neither system views hate speech laws as implicating equal protection rights, and so the balance is heavily in favor of freedom of speech. The American doctrine views hate speech laws as justifiable only if they can come within other ill-fitting categories of lesser-protected speech, which are mostly concerned with imminent violence rather than equality or discrimination. Japan has enacted hate speech laws too weak to impact freedom of expression at all.

The Canadian approach does not find the perfect equilibrium, but it suggests a better way to strike the balance. Drawing on this comparative review, the article argues that hate speech laws should be enacted with the object and purpose of fulfilling the constitutional guarantee of equal protection and equal treatment. Such laws would thus be narrowly drawn to prevent the fostering of hatred that would in turn lead to increased discrimination against identifiable groups, which are themselves defined in terms of the prohibited grounds of discrimination in the constitutional right to equality. The laws would address, and take seriously, the principal harms caused by hate speech — to the members of such groups, to the principles of equality, and to freedom of expression itself. But this objective also constitutes a compelling state interest, and a constitutionally informed basis for tailoring the hate speech laws narrowly, thus reducing to a justifiable minimum their impact on the right to freedom of expression. The right balance, then, is to be found in understanding and reconciling this tension between two constitutional rights.