Kerry B. Collison Asia News: China, Malaysia to Hold First Ever Joint Live-Troo...

Kerry B. Collison Asia News: China, Malaysia to Hold First Ever Joint Live-Troo...: On August 27, the Chinese defense ministry announced that the People’s Liberation Army (PLA) and the Malaysian Armed Forces (MAF) would h...

China, Malaysia to Hold First Ever Joint Live-Troop Exercise

On August 27, the Chinese defense ministry announced that the People’s Liberation Army (PLA) and the Malaysian Armed Forces (MAF) would hold their first ever joint live-troop exercise next month.

The exercise, code-named “Peace and Friendship 2015,” will be held in the Malacca Strait during the second half of September. The focus, according to Chinese defense ministry spokesman Yang Yujun, will be the joint execution of non-war operations. It will include training items like joint maritime escorts, the combined search and rescue of hijacked ships, humanitarian assistance and disaster relief, and a gunnery exercise.

The exercise will be read as a boost to the bilateral defense relationship and the China-Malaysia comprehensive strategic partnership more generally. While the two countries had held their first ever bilateral military drills in December 2014 last year under the banner of “Peace and Friendship 2014,” that was a joint table-top exercise held at the MAF Joint Warfare Center. This year would mark the first time that the PLA and MAF have conducted a joint live-troop exercise.

Partly as a result of this, the exercise will also be much bigger this time around. Last year, only 21 personnel participated from the PLA side. This year’s Chinese participating force comprises 1,160 officers and men, two surface ships, one hospital ship, four transport aircraft, and three ship-born helicopters.

Kuala Lumpur and Beijing have long had a close relationship, with Malaysia being the first ASEAN country to normalize relations with China in 1974 and China now being Malaysia’s top trading partner and tourist-generating market outside of ASEAN. But as I have pointed out previously, the security component of the bilateral relationship has tended to significantly lag behind its other dimensions (See: “Malaysia, China Begin First Joint Military Exercise”). Initial efforts tended to be focused on exchanges and education, though more momentum has been added to defense ties over the past few years with formal defense and security consultations as well as joint exercises.

That being said, even Malaysian Defense Minister Hishammuddin Hussein himself noted the nine long years between when the two countries first signed their MoU on defense and when he first announced plans to hold joint military exercises in an October 2013 visit to Beijing. By Prashanth Parameswaran for The Diplomat

Kerry B. Collison Asia News: Australia, India to Hold First Ever Naval Exercise...

Kerry B. Collison Asia News: Australia, India to Hold First Ever Naval Exercise...: Next month, the Indian Navy and Royal Australian Navy will hold their first-ever joint maritime exercise. The exercise, called AUSIND...

Australia, India to Hold First Ever Naval Exercise amid China Concerns

Next month, the Indian Navy and Royal Australian Navy will hold their first-ever joint maritime exercise.

The exercise, called AUSINDEX, will he held off India’s Visakhapatnam Port in the Bay of Bengal in mid-September. According to defense sources, Australia is sending Lockheed Martin’s P-3 anti-submarine reconnaissance aircraft, a Collins-class submarine, a tanker, and frigates, while India will deploy assets including Boeing’s P-8 long-range anti-submarine aircraft and a locally manufactured corvette. The exercise will have both sea and shore phases and include table-top exercises, scenario planning, and at sea, surface and anti-submarine warfare.

Unsurprisingly, the media attention has focused on the exercise narrowly as a response to rising concerns about China. For instance, the anti-submarine warfare focus of the exercise – which includes exercises to protect a tanker from a hostile attack submarine – is said to serve as a counter to China’s deployment of a nuclear-powered submarines in the Indian Ocean.

The potential for increased maritime tensions amid rising competition in the Indian Ocean is real. Commenting on this, Captain Sheldon Williams, a defense adviser at the Australian High Commission in New Delhi, admitted that there is “potential for increased security tensions in the Indian Ocean.”

“We sit right in the confluence of the Indian and Pacific Oceans. We have a significant responsibility for its security. That’s how we’re looking at it now,” Williams added.

But AUSINDEX should also be seen more broadly as one sign of growing defense ties between Australia and India. While Canberra and New Delhi have participated in multilateral exercises before, including Malabar exercises in 2007 and Milan exercises in 2012, AUSINDEX is the first bilateral maritime exercise between the two nations.

Australia’s defense minister, Kevin Andrews, is also in India for a series of high-level meetings this week in a boost for the relationship. This is the first meeting between the two countries’ defense ministers since the release of a new framework for security cooperation inked by Prime Minister Narendra Modi and his Australian counterpart following the former’s visit to Australia in November 2014. Regarding his visit to India, Andrews said that he looked forward to “identifying a range of new ideas to increase our existing defense cooperation.”

Speaking more specifically about AUSINDEX, Andrews described it as “a strong signal of both countries’ commitment to building defense relations.”

AUSINDEX will be followed by Exercise MALABAR in October, which originally began as a U.S.-India bilateral exercise back in 1992. As I have written before, Malabar has been at the center of an ongoing conversation about expanding arrangements in the Asia-Pacific, amid growing trilateral cooperation of various sorts including between India, Australia, and Japan (See: “India, Japan and Australia: A Trilateral in the Making?”). Japan is expected to join the Malabar exercises later this year, in line with the occasional broadening of the drills to include other nations (“Japan to Join, US, India in Military Exercises This Year”). Some have also been pushing for a permanent expansion of the exercises to include Australia and Japan (See: “US Official Calls for Permanent Expansion of Malabar Exercises with India”).

 

Kerry B. Collison Asia News: Could Science Defeat Terrorism? Using Robots to Hu...

Kerry B. Collison Asia News: Could Science Defeat Terrorism? Using Robots to Hu...: Before you rule out so-called killer robots, consider their applications in counter-terrorism. The prospect of intelligence triumph...

Could Science Defeat Terrorism? Using Robots to Hunt Down ISIS

Before you rule out so-called killer robots, consider their applications in counter-terrorism.

The prospect of intelligence triumphing over ignorance is always encouraging.

As a secular method to understand and explain the world, science can reveal gaps and holes in religious dogma, and by doing so, challenge extremist religious beliefs that do not hold up to observable experiments. As the world becomes increasingly networked (thanks in part to science), access to scientific knowledge may disrupt the very belief systems that are exploited and manipulated to recruit and motivate terrorists.

But it could take years if not decades before science as a knowledge system infiltrates past the authoritarian walls of religious fundamentalism.

In a more practical sense, applied science, and particularly artificial intelligence, may provide more immediate tactical benefits.

Enter killer robots, artificially intelligent lethal machines capable of selecting and engaging targets without human intervention.

Killer robots have received considerable bad press in recent months. Many scientists, nongovernmental organizations, and states have called for a preemptive ban on their development and eventual use on the battlefield. They fear that lethal autonomous robots may increase the likelihood of war and could one day pose an existential threat to humankind.

This anxiety is nothing new. In an article published in 1863 entitled “Darwin among the machines,” English writer Samuel Butler argued that the “the machines will hold the real supremacy over the world and its inhabitants.” The author recommended that as a precaution, mankind should return to the “primeval condition of the race.”

Technophobic–or perhaps neophobic, the aversion to all things new–sentiments have ebbed and flowed throughout history, peaking at times when revolutionary technologies were introduced in society. Seventeenth century Japan rejected the use of firearms, then an “advanced military technology.” Nineteenth century England grappled with the Luddites, who smashed mechanical looms for fear of putting people out of work.

In many ways, artificial intelligence is different because it raises unique issues about control, legitimacy, and accountability. But could the pessimistic prognoses about killer robots miss the forest for the trees? What if robots were used as partners of peace and promoters of global order and justice?

Or, importantly, as terrorist hunters?

The war on ISIS shows no end in sight. The group’s unrestrained campaign of violence in Iraq and Syria continues to reveal new shades of brutality. Its disregard for the well-being of humanity is unrivaled in the 21st century. I say “humanity” because ISIS’ political war is costing the lives of the innocent by using tactics that are perhaps best suited to earlier iterations of the human race. Rape, beheadings, torture. Repeat.

But I could just as well say that the group has no respect for the “humanities,” the branch of human learning that studies human culture. ISIS’ iconoclastic crusade against Syrian and Iraqi cultural heritage is well documented, both by the group itself and the international community.

The group’s obliteration of numerous World Heritage Sites, including the recent destruction of the Baalshamin temple in Palmyra, and of priceless cultural artifacts around the region are part of a systematic campaign to enforce their puritanical interpretation of Islam. For ISIS, cultural cleansing is necessary to wipe the slate clean and build a caliphate free from idolatry.

As a commercial hub linking the Far East with the Roman Empire, the city of Palmyra marked “the crossroads of several civilizations in the ancient world.” Its destruction has been condemned as a “war crime” by UNESCO.

Irina Bokova, UNESCO’s chief, deplored these actions as the “most brutal, systematic” destruction of cultural heritage since World War II.

These ancient sites are symbols of humanity’s cultural history: a reminder of how the web of human relations intersect and knowledge flows interact. This is what makes ISIS particularly dangerous: not only are they murdering members of communities but also destroying the cultural foundations upon which such communities were built.

Culture is not some whimsical collection of pretty paintings and table manners; it is a reflection and embodiment of social identity. Through language, art, music, knowledge, and religion we continuously give meaning to our social existence. By destroying these cultural anchors, ISIS is now on an ideological path that would make Hitler and Malan throw evil nods of approval.

Earlier this year, Dario Franceschini, Italian Minister of Cultural Heritage and Tourism, called for the formation of a UN military force to protect the world’s cultural heritage. Killer robots would be particularly useful against groups like ISIS, where political costs are too high for major military powers to put boots on the ground, and political momentum too low to justify human military intervention to protect sites of cultural importance.

In addition to using robots offensively to fight terrorists, robots could be used to promote peaceful objectives, such as protecting humanitarian convoys, refugee camps, schools, hospitals, and museums.

First iterations will likely be semi-autonomous, featuring some level of human supervision and control. Once the technology is sufficiently capable of meeting the stringent standards of international humanitarian law, such as discriminating between combatants and civilians, as well as operational safety, such as recognizing friendly fire, greater autonomy may be delegated to the robot.

ISIS may be defeated before killer robots ever see the light of day. But the value of autonomous lethal technology, operating within legal and morally sound grounds, cannot be underestimated to solve global security problems. Scientific advancements–and its evolving creations, like artificial intelligence–must be given serious thought as a bridge to peace, or at the very least as a weapon to defeat terror.

Lucas Bento is an attorney in New York specializing in complex litigation and international arbitration.

 

Kerry B. Collison Asia News: Japan: Farewell to ‘One Country Pacifism’ -Why it ...

Kerry B. Collison Asia News: Japan: Farewell to ‘One Country Pacifism’ -Why it ...: Why it is time to part ways with the traditional interpretations of Article 9 of Japan’s Constitution. The current and ongoing par...

Japan: Farewell to ‘One Country Pacifism’ -Why it is time to part ways with the traditional interpretations of Article 9 of Japan’s Constitution

Why it is time to part ways with the traditional interpretations of Article 9 of Japan’s Constitution.

The current and ongoing parliamentary debates about the proposed National Security legislation have exposed the closed and self-indulgent mindset that has perpetuated Japan’s notion of what is commonly referred to as “one country pacifism” in international relations. It is unreal to listen to and read about the never-ending futile discourse on whether Article 9 of the Japanese Constitution permits the use of the right of collective self-defense. The real culprit for this futility is Article 9 of the Constitution itself, which provides:      

1.  Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.

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. The right of belligerency of the state will not be recognized.

In fact, the provisions of Article 9, paragraph 1 should pose no problem, given that similar provisions have been found in many other constitutions since the 1928 Kellogg-Briand Pact. The real villain of a postwar Japan’s “One Country Pacifism” is rooted in the provisions of paragraph 2, which were designed to render Japan so vulnerable as to become no threat to the United States in the future. The combined effect of these two provisions has spawned problems in every interpretation given to them by Japanese governments trying to deal with changing international circumstances. Today’s question about the lawfulness of the use of the right of collective self-defense is just the latest milestone in the long meandering flow of interpretations.

This article considers how the Japanese government has managed to build up its security apparatus in the face of Article 9, a symbol of Japan’s pacifism; analyzes the way in which a series of constitutional interpretations of Article 9 permitted the progressive development of Japan’s armed forces; explains why the status of the Self-Defense Forces remains essentially the same as that of the police; shows that the Japanese notion of collective self-defense is an anomaly under international law; and concludes that the basic tenet that has sustained a series of interpretations of the use of force is rooted in national egotism and should be rejected.

Postwar Period

After the war, a vanquished Japan began to rebuild, relinquishing some of the fundamental rights of sovereign states recognized by international law. The path to reconstruction was not smooth. Japanese policymakers had to ensure that new policies not only conformed to the wording of Article 9, but also responded effectively to the changing reality of Japan’s international environment. Often, these tasks seemed mutually contradictory.

Over the decades, security debates in Japan have left, in their trajectory, traces of the twists and turns of a sophistry marked by a constant anguish. After 70 years, that sorry state of affairs remains unchanged, because Japan has avoided any mention of the core issues of Article 9, paragraph 2 of the Constitution.

The emerging Cold War and the outbreak of the Korean War in 1950 fundamentally altered U.S. expectations of a disarmed Japan. That change took place only after the Constitution was adopted in 1946, when Japan was still under occupation and subject to the authority of the Supreme Commander of the Allied Forces in Japan, General Douglas MacArthur. Contrary to his own wishes, MacArthur had to rearm Japan in order to deal with the changing circumstances of international politics.

The San Francisco Peace Treaty in 1951 and the U.S.-Japan Security Treaty the same year attest to that seismic change. Japan’s “inherent right of individual or collective self-defense” was recognized in these treaties, as referred to in Article 51 of the United Nations Charter. That created a nagging concern in Gen. MacArthur’s mind about the future of Article 9 upon Japan regaining sovereignty in 1952. He encouraged “progressive” political parties in Japan, helping them gain and retain, at minimum, more than one-third of the seats of at least one House of the Diet. That meant that constitutional amendments could not be initiated by the Diet in accordance with Article 96 of the Constitution, which requires “a concurring vote of two-thirds or more of all the members of each House.” The consequence is that Japan has not made a single amendment to any provision of the Constitution.

Given the constitutional prohibition so explicitly laid down in Article 9, how can the Self-Defense Forces (SDF) be allowed to exist in the first place, and how has the Japanese government managed to make the SDF one of the most respected militaries in the world? The Diet approves and allocates the world’s sixth largest budget to the SDF each year to equip, develop and maintain fighting units of high caliber, mobility, and strength. Even the 1994 coalition government headed by Prime Minister Tomiichi Murayama (chairman of the Japan Socialist Party) was no exception. The government has deliberately interpreted the provisions of Article 9 to enable Japan to, as set out in the preamble of the U.S.-Japan Security Treaty of 1951, “increasingly assume responsibility for its own defense against direct and indirect aggression, always avoiding any armament which could be an offensive threat or serve other than to promote peace and security in accordance with the purposes and principles of the United Nations Charter.”

Nowhere is “the right of self-defense” mentioned in the Constitution; nor is any reference or allusion made even to the notion of self-defense. In fact, positive references to the term “the right of self-defense” began appearing mode only after MacArthur pronounced in his New Year’s message of 1950 that the Constitution of Japan did not deny the country the right of self-defense. The American general, too, had to face the reality of the changing conditions surrounding Japan.

It is therefore understandable that Japanese decision-makers – intoxicated with the idealism of “non-armament and pacifism” at the time of adopting the new Constitution in 1946 – would consider that Japan had forfeited even the right of self-defense. Prime Minister Shigeru Yoshida was a good example. In March 1952, he testified before the budget committee of the House of Councilors that “armed forces and other war potential” – even for self-defense – would mean re-armament, which would necessarily require a constitutional amendment. He made that statement even after the creation of the “National Police Reserve” in 1950 in response to the outbreak of the Korean War “to complement national and local government police forces.”

In December 1954, the government of Ichiro Hatoyama, which had succeeded Yoshida’s government, formalized the government’s position on the right of self-defense, which has become the basis for the policy today: The Constitution does not deny the right of self-defense. Any state that is independent has ipso facto the right of self-defense, and it is obvious that Japan has that right under the present Constitution. The Constitution renounces war, but not resistance in self-defense. The renouncement of war and the prohibition of the use or threat of force concern the use of force for the settlement of international disputes. In the event of an armed attack, to desist and block that attack is self-defense, which is essentially different from settling an international dispute. Therefore, the use of force as a means for defending one’s own country is not in violation of the Constitution.

More Than a Police Force, Less Than a Military

The political circumstances in which the National Police Reserve was established thus ensured the ambiguous, half-baked nature of the National Police Reserve as something more than a police force, but less than a military. There was no alternative but to apply mutatis mutandis the extant Police Officers Duties Law to the newly created police reserve unit. The practice persists for the SDF today, and that usage reinforced bureaucrats’ habitual obedience to syntax that seeks to maintain linguistic consistency and conformity in the use of words without regard to the goals or purposes of the ideas embedded in the words.

The application of any principle of law or any texts of law to a certain set of factual circumstances demands interpretation by human beings. A body of rules is not an autonomous organization. No correct answer automatically emerges simply by feeding just the right amount of information and data into a body of rules; nor will you obtain your answer from legal texts, however closely and often you read them. You need to interpret these texts or words with the purposes of policy in mind. Interpretation is an integral part of decision-making.

The anchor of the new interpretation was the “inherent right of individual or collective self-defense” recognized in the San Francisco Peace Treaty in 1951, as referred to in Article 51 of the United Nations Charter. Although no amendment has been made to Article 9, the need and rationale for armed forces were interpreted differently, from the establishment in 1950 of the National Police Reserve through the reorganization of the reserve in 1952 as the National Safety Forces, to the establishment of the SDF in 1954. Each major reinterpretation allowed the progressive expansion of the duties and tasks of armed forces and the corresponding improvement and reinforcement of their armaments. On each occasion no relevant decision-maker seriously alleged that the new interpretations were creating a “constitutional crisis.”

In the fictional world of “trusting in the justice and faith of the peace-loving peoples of the world,” as depicted in the preamble of the Constitution, Japan’s lost the means “to preserve [its] security and existence” itself. As the forces needed to ensure the country’s “security and existence” did not exist, the U.S.-Japan Security Treaty plugged the institutional deficiencies and lacuna of Japan’s constitutional system. The U.S. military filled in for the absent Japanese forces, and the Japanese Supreme Court opined in the Sunagawa case that “the forces which are prohibited” by Article 9(2) of the Constitution “are those forces over which Japan is capable, on its own right, of exercising command authority and the administrative rights, and such forces are in the end our own forces. It is, therefore, to be understood that foreign military forces, even if they are stationed in Japan, are not considered included in such prohibited forces.” It could be argued, then, that Japan’s Self-Defense Forces, being “those forces over which Japan is capable, on its own right, of exercising command authority and the administrative rights,” could be deemed unconstitutional. Under such circumstances, Japan’s increasing assumption of defense responsibility requires a new creative way of interpreting paragraph 2 of Article 9.

Changing Interpretations

There is a long flow of constitutional interpretations of Article 9 since 1947, beginning with “total disarmament” and “the right of self-defense without the use of force,” through “the minimum amount of force necessary for self-defense” and the interpretation in the immediate pre-Abe years that the use of the right of collective self-defense is prohibited by the Constitution, to the latest interpretation that the use of the right of collective self-defense is lawful under the Constitution. Anybody who argues that we now have a constitutional crisis is simply refusing to acknowledge that Japan’s entire security arrangement has been developed through, and built upon, a series of constitutional interpretations that have been meandering, to say the least, yet moving, however slowly, in the appropriate direction of re-molding Japan into a normal country that is internationally responsible for its conduct.

I suspect there is a case of “intellectual vested interest” in the arguments of the so-called guardians of Article 9. It must be unbearable for those who have spent their entire productive lives studying and expounding on the safeguarding of Article 9, only to witness it all come crumbling down.

Since the 1959 decision of the Supreme Court on the Sunagawa case, the lower courts have followed its judgment that the question as to whether the existence of the SDF violated Article 9 belonged to the realm of “act of state” and “unless its unconstitutionality is patently obvious at first glance, it is not subject to judicial review.” According to the Supreme Court’s Sunagawa decision, “such judgment should ultimately be left to the political critical judgment of a sovereign nation.” Therefore, the Supreme Court dismissed the case stating that whether the SDF would meet the “war potential” (戦力 ) of paragraph 2 of Article 9 was beyond the reach of the judicial review of the Court, and terminated the proceedings without rendering any judgment on the constitutionality of the SDF.

As Max Weber said, a sovereign state is sovereign because “the state is considered the sole source of ‘the right’ to use violence.” Therefore, the military of a state is, in principle, unrestricted in its ability to act in defense of the country. With that understanding, the power of the military is subject to particular prohibitions in international law. That has long been common and general practice across cultures. Unfortunately, it is not the practice Japan followed.

The National Police Reserve and the National Safety Forces were organizations designed to complement the country’s police forces. Their respective legal systems were, as for the police, a positive list approach premised on the express authorization of each action to be taken and each power to be exercised. The SDF, which succeeded the National Safety Forces, carries that same legal constraint. Consequently, each time a new activity is required, a new piece of legislation needs to be passed. According to this legal doctrine, without the express statement of authority in a piece of legislation, the state cannot do anything. It exposes the state itself to danger, with the SDF unable to take prompt, responsible action. This abnormal situation forces commanding officers in the field to take on unreasonable responsibility. How many similar pieces of legislation do we have to enact to satisfy ourselves? Despite the proliferation of legislation, unforeseen situations do occur, not anticipated in any of the laws enacted to date. The more the legislation multiplies, the more complicated it will become to ensure consistency among existing laws.

The fundamental problem of today’s SDF, then, is that they do not have the legal status or treatment normally accorded to the military forces of an independent state. SDF personnel are all subject to civilian civil and criminal jurisdiction because no military tribunal can be established under Article 76, paragraph 2 of the Constitution. The use of weapons is thus heavily restricted, as the conduct of the SDF is regulated by the Police Officers Duties Execution Law. The enormity of firepower at its disposal notwithstanding, the SDF are legally indistinguishable from the police force. Under normal circumstances, a military should operate in a legal system based on the negative list approach and subject to international law. Japan’s SDF are a make-believe military force.

‘Linguistic Clarifications’ 

Short of amending the provision of paragraph 2 of Article 9, the current proposed security legislation is designed to cure the deficiencies of the existing piecemeal security legislation. It is a sad commentary that the most important pieces of draft legislation have been mired in nit-picking discourse on linguistic clarifications. The real question of why Japan needs comprehensive security legislation has not been raised; rather, discussion seems to be trained on generating unwarranted fear, increasing anxiety, exaggerating risks, and unnecessarily heightening apprehension, all generated from the prepared texts of Diet members and all unrelated to the reality of Japan’s security concerns.

The “crisis” cited by critics of the legislation is an imaginary constitutional crisis, which they have concocted from nothing. They are unconcerned about unlawful activities taking place in and around Japan’s territorial seas and economic exclusive zone (EEZ). They are unconcerned about the incessant unlawful incursions by Chinese Coast Guard vessels into Japanese territorial waters, contiguous zone, and EEZ. They remain utterly indifferent to the inability of the Japanese Coast Guard to take any effective measures to prevent Chinese vessels from undertaking unlawful activities within the former’s own jurisdiction. All that Japan’s Coast Guard can do today is issue warnings. The Chinese vessels ignore those warnings and continue their unlawful activities, and the Japanese Coast Guard merely continues to watch and monitor what the Chinese vessels are doing. They accomplish their purpose; the Japanese Coast Guard fails in its mission. Yet for Japanese Diet members deliberating the proposed legislation in august chambers, these unlawful activities in the real world of the East China Sea or the South China Sea are not registering in their mind as a crisis. No question has been asked how the proposed legislation could improve the situation around the Senkaku Islands, enable the Coast Guard to deal with Chinese vessels violating Japan’s jurisdiction, or allow the SDF to discharge its tasks more effectively in UN PKO missions.

Instead of dealing with the real problems Japan is facing today, self-appointed “Article 9 Guardians” would rather indulge in an almost theological discourse in expounding what is permitted in the phrase of prohibiting “the threat or use of force as means of settling international disputes.” And their theological conclusion is, of course, unrelated to any reality on the ground: The use of force is permitted only in self-defense, namely, the defense of Japan proper only when attacked. Force may not be used even for UN Peacekeeping Operations (PKO) because it is the exercise of state power for the settlement of international disputes. As a result, SDF troops deployed as part of UN PKO contingents are required to be protected by their colleagues in other UN member countries. Those self-appointed “Article 9 Guardians” do not find that anomaly to be strange and unreasonable. For them it is a matter of faith akin to Creation Theology. It defies reason and scientific evidence.

The problem is that the present interpretation says that Japan has the right of collective self-defense, but cannot use it because the Constitution allows only the individual self-defense of Japan. On what theological premise do the guardians of Article 9 conclude that Japan has the right of collective self-defense? For them, there is no contradiction because they are not in a position to challenge Article 51 of the UN Charter and Article 5(c) of the San Francisco Peace Treaty. These provisions recognize that Japan has “an inherent right of individual or collective self-defense.” Recognition of the right is one thing, but the use of it is another. They have to abide by their theological tenet that the use of force is prohibited. So they insist that the use of force in the defense of other countries is unconstitutional. In their kind of creation theology, they have to restrict the scope of “self” in the concept of self-defense to Japan only, even though the Japanese criminal code recognizes the defense of other individuals as the lawful exercise of self-defense. In the present strange interpretation, the concept of “collective self” does not exist. “Collective self” means the expanded self-system by broadening the scope of self-identification from an individual through family, friends, alumni, home town, city, country, and region to the world, a planet and beyond. The collective self develops in the process of shaping and sharing of purposes, interests, emotions, expectations, crises, and so on. It is a community in which you are a member and share common interest with the rest of the community members. To defend that collective self is the right of collective self-defense because an armed attack against any member of the community is considered an armed attack against the entire community including your own country. That is the notion of collective self.

An authoritative interpretation of the inherent right of collective self-defense was given by the International Court of Justice (ICJ) in its judgment on the Nicaragua Case of 1986. The ICJ says that the right of collective self-defense is customary law “even if its content has been confirmed and influenced by the [UN] Charter.” The ICJ underlined that it existed long before the UN Charter and “customary international law continues to exist alongside treaty law.” The right of collective self-defense exists in a continuum of the right of individual self-defense, in that the individual self closely identifies itself with other entities in the defense of their common enterprise. The notion of collective self-defense is for a third state (State A) to come to the defense of the victim state (State B, State A’s close ally) of an armed attack by State X when State A is not directly attacked by State X. The ICJ is explicit in stipulating that two conditions must be met for the use of the right of collective self-defense to be lawful: the requirement of a request by the state which is the victim of the alleged attack and the requirement that the state should have declared itself to have been attacked because “there is no rule permitting the exercise of collective self-defense in the absence of a request by the State which regards itself as the victim of an armed attack.” It also reminds us that customary international law does not permit “another State to exercise the right of collective self-defense on the basis of its own assessment of the situation.”

Strangely, however, as evidenced in the interpretation given prior to the proposed security legislation, the Cabinet Legislation Bureau (CLB) has traditionally rebuffed the notion of a collective self to defend even though it has recognized the right of collective defense. That putative recognition turned out to be mere lip service. According to the CLB’s interpretation, collective self-defense is for State A to come to the defense of State B for State B’s benefit when State A is not being directly attacked. The use of force for the benefit of another state is not in self-defense, and not permitted under the Japanese Constitution.  It was a grand deception by the CLB which lost, to use Immanuel Kant’s phrase, “freedom to make public use of one’s reason in all matters,” but abided by “the private use of reason” to conform to, and perpetuate, the consistency and stability of the Office’s interpretations held by its predecessors.

Instead of acknowledging the notion of collective self, the theology developed by the CLB hinges on the dichotomy between Japan and foreign countries. This theological dualism does not recognize the idea of collective self. The CLB’s self-absorbed reasoning lacks even a basic understanding of shaping and sharing common interests and values with other nations, an understanding that is indispensable for international cooperation. In short, the CLB’s dualism has underpinned the idea of “One Country Pacifism,” which has contributed to justifying Japan’s non-participation in (i) UN Security Council sanctions, so long as they include the use of force; and (ii) UN PKO missions other than humanitarian assistance in non-combat zones. The CLB’s theology, like any other, is circular: The idea of “One Country Pacifism” does not support the development of identification with other entities by broadening the scope of the individual self, which in the end justifies the application of the use of force only in defense of Japan under the circumstances of an armed attack, and at the same time means a refusal to defend a foreign country being attacked by a third country. This is commonly referred to as “One Country Pacifism.”

The futility and hollowness of Japan’s security debates in the 70 years since the end of the war derive in part from the interpretation given by the theology of the Article 9 Guardians to the phrase “the threat or use of force as means of settling international disputes.” The CLB has surreptitiously interpreted this to mean that all types of “force” are unlawful.  This sort of theology conveniently adopts a false and self-serving device as a démarche to justify its conclusion. The CLB used it by ascribing one negative meaning only to the word “force.” But force is a means; it is neutral to the purpose and process of its use. It could be lawful or unlawful, depending on who uses it, in what circumstances, by what modality, and for what purpose. The CLB has ignored all of these variables of different contexts in its analysis, but has accepted that “force” (武力) is illegal and avoided even the use of the word “force,” choosing instead the ambiguous “capability,” ( 実力). It is a pointless exercise in syntax whose only policy goal is to dodge the real issue at stake.

The CLB’s theology rejects the notion of collective self despite the admonition laid down in the Preamble of the Constitution that “no nation is responsible to itself alone” and “that laws of political morality are universal; and that obedience to such laws is incumbent upon all nations who would sustain their own sovereignty and justify their sovereign relationship with other nations.” Judge Kotaro Tanaka’s supplementary opinion in the Sunagawa case correctly warned that pacifism in the Constitution should not be understood in the context of one country alone.

It is worth recalling the following dicta of Judge Tanaka’s supplementary opinion:

To defend one’s country is a moral obligation in the international community. The interdependent relations of nations today have so expanded that one nation’s crisis inevitably affects other nations directly. Thus, the self-defense of a nation should not be considered individually, that is, from the perspective of that nation alone. To defend one’s country from aggression is at the same time to defend other countries. It is thus the defense of one country to cooperate in the defense of other countries. In other words, in today’s world the notion of self-defense, as strictly understood, no longer exists. To defend oneself is “to defend others;” to defend others is thus to defend oneself. Accordingly, whether in self-defense or in cooperation with others in their defense, each country recognizes that it shares in its obligations with each other in this matter.

The CLB’s interpretation, backed by the theology of the Article 9 guardians, is rooted in national egotism. It is a betrayal of universal pacifism and must be rejected.

Eisuke Suzuki is Professor of Law, Ateneo Law School, Ateneo de Manila University, Manila, Philippines. He was Professor of Policy Studies, 2009-13, Kwansei Gakuin University School of Policy Studies, Kobe-Sanda, Japan. Formerly, he was Deputy General Counsel, 1994-2002; Special Adviser to the President, 2003; Director General, Operations Evaluation Department, 2003-04, Asian Development Bank. His latest publication includes “Non-State Actors in International Law in Policy Perspective” in Math Noortmann et al. (eds.), Non-State Actors in International Law (Oxford, Hart Publishing, 2015) 33-56.

Kerry B. Collison Asia News: Malaysian rally dogged by talk of racial divide

Kerry B. Collison Asia News: Malaysian rally dogged by talk of racial divide: Bersih's ability to mobilise tens of thousands of people for a 34-hour protest at the weekend is a worrying development for Malaysia&...

Malaysian rally dogged by talk of racial divide

Bersih's ability to mobilise tens of thousands of people for a 34-hour protest at the weekend is a worrying development for Malaysia's long-ruling Umno-led Barisan Nasional government, which is used to outlasting political opposition.

 

A source of comfort perhaps for Prime Minister Najib Razak's Umno is the low turnout among the majority Malay community.

Mingguan Malaysia, the Sunday edition of Umno's Utusan Malaysia newspaper, wasted no time in painting the rally as a success for the opposition Chinese-dominated Democratic Action Party (DAP), accusing it of exploiting the split in the Malay electorate.

The newspaper called for sterner action to be taken in dealing with the organisers of what the government has called an illegal rally.

Opposition and Bersih leaders were quick to play down the lower Malay attendance, turning to rhetoric that all the supporters were "Malaysian". The Malay turnout was estimated at less than a fifth of the total, compared with more than half in the three previous Bersih-led rallies.

"This is nothing racial, nothing communal. We cannot just show our care for votes. It must come from the heart to know each other better," New Hope Movement (GHB) leader Hatta Ramli told a largely Chinese crowd who had resumed proceedings after a sleepover in the streets of Kuala Lumpur.

The GHB is a splinter group from Parti Islam SeMalaysia (PAS), a key opposition party that has been at odds with its former partner DAP.

PAS refused to mobilise its supporters for Bersih, robbing the demonstration of tens of thousands that the Islamic party had bussed in for the three previous rallies.

"This highlights the fact that civil society demands are championed by political parties, so when one pulls out, it is very obvious," think-tank Ideas chief Wan Saiful Wan Jan explains.

Several analysts also point out that support from parties such as PAS, which has a well-oiled machinery, helps Malays, who are largely poorer than their Chinese countrymen and mostly live farther from the capital, to attend such events.

A pre-rally survey by respected pollster Merdeka Centre found that support for Bersih was only 23 per cent among Malays, 31 per cent in rural areas, and 28 per cent for those earning less than 3,000 ringgit (Bt26,000) a month.

"The survey reveals a peninsular Malaysia electorate that is polarised along ethnic and socio-economic lines," the opinion research firm said.

Umno's more strident pro-Malay leaders are likely to demonise the Bersih rally on racial grounds, following the cue of the ruling party's mouthpiece on Sunday.

"To discourage the Malays to join Bersih 4, one may just need to warn them, if Malays join in enthusiastically, then not only Najib Abdul Razak will go, Umno will lose power too, and the now politically assertive Chinese will dismantle the New Economic Policy and weaken Islam," Bersih activist Wong Chin Huat wrote.

Some observers say it is likely that Mahathir Mohamad, who led Umno for 22 years, took part in the rally to try to take the steam out of such a narrative, as he continues his campaign to get Najib to step down.

Mahathir said he had met both Umno and PAS members, who told him "they would like to support me [turning up at Bersih] but their bosses said, 'No, you must be loyal to party leadership'."

Mingguan Malaysia made clear mention of Mahathir's presence in its Sunday editorial, claiming that "feedback especially from Malays was one of discomfort and anger with his appearance".

Managing editor of the Umno-controlled New Straits Times Abdul Jalil Hamid also wrote that it was ironic for "the country's once most powerful man, who ruled Malaysia for 22 years with an iron fist", to support street protests, having lambasted such tactics just last year.

Deputy Prime Minister Ahmad Zahid Hamidi appears to have already taken heed of the newspapers' narrative, telling Umno members on Sunday not to support "a leader who comes to the rally for only six minutes", referring to Mahathir's brief appearance, and also promised that action would be taken against Bersih leaders despite a peaceful assembly.

But Wan Saiful said the government should be worried about "a politically activated middle class" as they "have the ability to sustain the momentum for significant political changes".

Shannon Teoh The Straits Times Asia News Network

Kerry B. Collison Asia News: The 'disappeared': a visible stain on Thai justice...

Kerry B. Collison Asia News: The 'disappeared': a visible stain on Thai justice...: Reform must focus on closing the loopholes that have enabled the suspected forced abduction of at least 100 citizens since 1990   T...

The 'disappeared': a visible stain on Thai justice system

Reform must focus on closing the loopholes that have enabled the suspected forced abduction of at least 100 citizens since 1990

 

The declared core mission of Prime Minister Prayut Chan-o-cha's government is to secure the well-being of all Thais, yet it has apparently taken no action over the forced disappearance of an estimated 100 citizens over the past 25 years.

Sunday brought the International Day of Forced Disappearances, and, as in previous years, civic groups and rights defenders marked the occasion by calling on the authorities to revive the cases.

Meanwhile United Nations Secretary-General Ban Ki-moon denounced the alarming increase in enforced or involuntary disappearances and urged all member states to ratify or accede to the UN convention aimed at preventing such acts.

In the past year alone, the UN has received 246 requests for urgent action from victims' family members. "This figure is just a fraction of the thousands of cases that are never reported either because of security conditions or because of a lack of knowledge of the existence of international mechanisms that can help," Ban Ki-moon said.

The UN also urged governments to guarantee full protection from all forms of reprisal for those who report cases of enforced disappearance.

In Thailand, labour-union leader Thanong Pho-an went missing under a military government in 1991. A year later at least 31 people "disappeared" during a protest against the junta. Prominent Muslim lawyer Somchai Neelapaijit was kidnapped in 2004 while defending fellow Muslims accused of being part of the deep South insurgency. The most recent case of enforced disappearance came in April last year, when Karen land-rights activist Porlajee "Billy" Rakchongcharoen went missing. The relatives of these victims have never given up on their hopes of finding them, but they have received precious little cooperation from the authorities under any government, elected or otherwise.

The military-backed government under former Army chief Prayut could do much to boost its flagging reputation on human rights by responding to the calls for action on these cases.

Thailand signed the International Convention for the Protection of All Persons from Enforced Disappearance in 2012 but has yet to ratify its position.

Meanwhile the National Human Rights Commission has failed to make any progress on the issue.

However, this government claims to be working for democratic reform and has placed a slew of rights defenders on its various administrative agencies, boosting hopes that public calls for action could be heeded.

The government should first ratify the international convention and its related protocols.

Second, the National Legislative Assembly should pass the laws necessary to enforcing the international norms.

Third, the government and concerned agencies should begin work on establishing effective administrative mechanisms to look into the cases of missing persons.

Finally, the issue of forced disappearances should inform key measures of reform for the justice system. Though there are strong suspicions that police were involved in the disappearance of Somchai and many others, the court system has proved incapable of bringing them to justice. The Nation, Bangkok

 

Kerry B. Collison Asia News: Japan plans largest ever defence budget to counter...

Kerry B. Collison Asia News: Japan plans largest ever defence budget to counter...: Defence ministry requests £27bn amid concern over Beijing’s construction of artificial bases in the South China Sea and claims to Senkaku...

Japan plans largest ever defence budget to counter China's reach

Defence ministry requests £27bn amid concern over Beijing’s construction of artificial bases in the South China Sea and claims to Senkaku islands

Japan’s defence ministry has requested its biggest ever budget to bolster its ability to protect outlying islands in response to China’s growing military reach in the region.

The ministry has asked for 5.09 trillion yen (£27bn) for the financial year starting in April 2016, amid concern over Beijing’s construction of artificial bases in the South China Sea and its claims to the disputed Senkaku/Diaoyu island chain in the East China Sea

If approved, the defence budget would be Japan’s biggest ever, after the fourth increase in as many years. The budget will be drafted into a bill in December and submitted to parliament for approval.

Japan had been making annual cuts to its defence budget for a decade up to 2013. The increases since then reflect its growing anxiety about China’s expanding naval reach. The rise is also in line with Japan’s more assertive defence policy under the conservative prime minister, Shinzo Abe, as he seeks to check Chinese influence and expand the scope of his country’s military.

Abe’s ongoing attempts to push through legislation that would allow Japanese troops to fight alongside allies on foreign soil for the first time since the end of the second world war brought tens of thousands of people out in protest on Sunday.

Monday’s budget request, an increase of 2.2% on last year, demonstrates a shift in Japan’s security emphasis from its northern maritime border with Russia to its long and porous southern reaches. In contrast to previous investment in tanks and heavy artillery, it is building a more flexible and mobile force – including its own version of the US marine corps – that would be able to quickly defend territory against an invading enemy.

Japan defence paper warns on China and pushes for stronger military role

China tops Japan’s list of security concerns in its annual defence white paper as its government pushes to pass legislation to give its military a greater role

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Japan’s defence budget is still dwarfed by that of China, where military spending rose by more than 10% this year to £90bn.

China is second only to the US, which spent $581bn (£377bn) on defence in 2014, while Japan was ranked seventh, according to the International Institute of Strategic Studies in London.

In 2010 China accounted for about 28% of defence spending in Asia, but by 2014 its share had increased to 38%, according to IISS. Japan’s share of regional military spending, meanwhile, fell from 20% in 2010 to just below 14% last year.

Much of the hardware included in Japan’s new budget is designed to monitor outlying territories and repel any attempt to invade the Senkaku islands, which are administered by Japan but claimed by China.

Japan is building a military radar station on Yonaguni island, just 94 miles south of the islands.

According to a request submitted on Monday, the ministry’s shopping list includes amphibious assault vehicles, stealth warplanes, F-35 Osprey tilt-rotor aircraft, F-35 fighters and an advanced Aegis radar-equipped destroyer.

It also wants to acquire Global Hawk drones and surveillance helicopters to defend far-flung islands along an 870-mile stretch of ocean between the Japanese mainland and waters off Taiwan.

The ministry is also seeking extra cash to build new military bases and expand existing ones on some of the islands, equipping them with state-of-the-art radar and missile batteries.

Ministry officials have set aside £58m to expand an army base on Miyakojima island, 188 miles east of Yonaguni, and £47m to build a base on Amami Oshima, an island midway between the main Okinawan island and the Japanese mainland.

South China Sea tensions escalate as China unveils plans for lighthouses

China to project naval power further from its shores, as construction increases on reefs in waters also claimed by nations including Vietnam and the Philippines

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Chinese surveillance vessels briefly sailed into Japanese territorial waters around the Senkaku islands last week, the 23rd time they have done so this year, the Japan coastguard said.

“Beijing hasn’t stopped sending its official vessels either into the contiguous or the territorial waters of the Senkakus,” a Japanese government official told the Guardian.

The official added that Beijing had also broken international agreements to conduct only joint exploration of gas and oil fields in disputed areas of the East China Sea.

“Against that background, the Beijing-Tokyo relationship cannot improve in any substantial way,” he said. “Yet it is still very important for the two countries to have a manageable relationship.” Photograph: Eric Talmadge/AP Justin McCurry in Tokyo

 

Kerry B. Collison Asia News: Indonesians Are Feeling the Pinch

Kerry B. Collison Asia News: Indonesians Are Feeling the Pinch: Tens of thousands of workers plan to take to the streets on Tuesday as more and more people are beginning to feel the impacts of the cou...

Indonesians Are Feeling the Pinch

Tens of thousands of workers plan to take to the streets on Tuesday as more and more people are beginning to feel the impacts of the country's economic downturn. Price increases coupled with massive layoffs in recent months are the main reasons behind the planned workers' protests.

The people demand wage increases because the inflation has taken its toll on their purchasing power. Many people already complain about rising food prices that have made Indonesia's annual inflation, at 7.26 percent in July, the highest in the region.

Workers also want the government to put a stop to massive layoffs in many labor-intensive sectors, as unions say they expect up to 100,000 job cuts this year alone and unemployment levels continue to rise nationally.

Unemployment in Southeast Asia's largest economy stood at 5.81 percent in February, according to official statistics, but analysts say that doesn't cover the informal sector and the real figure could be much higher.

Annual growth slipped to 4.67 percent in the second quarter because of slumping demand for commodity exports and weak domestic demand.

President Joko Widodo is working hard to speed up infrastructure projects that can employ millions of people. He himself has visited many corners of the archipelago to oversee the launch of the projects but progress is painfully slow. Also, he seems to have largely been working alone, with his ministers often nowhere to be found.

While Joko needs to keep a close eye on these projects, he must make sure that he isn't buried by launching ceremonies that can be attended by other top officials. He needs to stop and think about strategy, like what economic steps the country needs to take to halt the rupiah's slide.

He needs his advisers to tell him the truth and to offer alternative solutions. People around him should take this responsibility very seriously. But we don't know if he has any close advisers left at all, now that his former chief of staff Luhut B. Panjaitan has become the chief security minister.

Police have been quick to announce that they've prepared some 8,000 officers to secure the demonstration in Jakarta on Tuesday, which over 50,000 people are expected to join. Just like we call on workers to express their wishes peacefully, police should try their utmost to refrain from the use of violence. By : Jakarta Globe |Editorial

Kerry B. Collison Asia News: East Timor referendum after 16 years: A new hope

Kerry B. Collison Asia News: East Timor referendum after 16 years: A new hope: Timor Leste on Aug. 30 celebrates the anniversary of a historic referendum that resulted in a landslide vote for separation from Indones...

East Timor referendum after 16 years: A new hope

Timor Leste on Aug. 30 celebrates the anniversary of a historic referendum that resulted in a landslide vote for separation from Indonesia 16 years ago. The euphoria of independence was, however, short-lived following the announcement of the UN-administered ballot results on Sept. 4, 1999 as violence, which had marked the run-up to the plebiscite, escalated.Thousands of East Timorese fled their homes or were displaced to the hinterlands and to West Timor.

 

Between 1,400 and 2,000 people were killed or disappeared in a series of atrocities.

 

East Timor’s independence could not be separated from rivalry between then Indonesian president BJ Habibie, who took over from long-time ruler Soeharto, and his inner circle, the military and civilian political elite. When then foreign minister Ali Alatas presented the grant of special status to the province of East Timor with wide-ranging autonomy in 1998, the Cabinet approved without much debate.When Habibie told his Cabinet ministers early in 1999 that Indonesia should move straight to a choice between autonomy and independence for East Timor, there were no voices of open dissent, not even from the military members of the Cabinet. Gen. Wiranto, the defense minister and Armed Forces commander, did not object to the proposed second options per se, according to Alatas writing in 2006.

 

Why did Habibie’s policy go unchallenged?

 

Whatever the answer, the military and other opportunist political elites would possibly take advantage of Habibie’s risky action.“Some of Habibie’s stronger Islamic ministers were happy ‘to be rid of 600,000 Catholics’, as one put it,” Richard Woolcott, the Australian ambassador to Indonesia from 1975 to 1978, wrote in 2003. He wrote that Wiranto would not oppose Habibie in the belief that the latter’s policy would fail, as would his attempt to be elected the president.

 

“This would keep Wiranto’s own political ambitions alive,” Woolcott concluded.At the general session of the People’s Consultative Assembly (MPR) in October 1999, President Habibie delivered an accountability speech, which was rejected because, in part, of the breaking away of East Timor from the Unitary State of Indonesia.In addition, the UN Serious Crimes Unit in 2003 charged, among others, Maj. Gen. Zacky Anwar Makarim (Jakarta), Maj. Gen. Adam Damiri (Denpasar) and Col. Tono Suratman (Dili) with crimes against humanity for their alleged roles in the violence surrounding East Timor’s 1999 independence referendum.

 

While the local media blamed the supervising United Nations and Australia for pressuring Habibie for a resolution, criticism was mounted by a few Indonesian ministers, politicians, intellectuals and military officers of Habibie’s decision, although they were originally silent on East Timor’s independence option.It remained a mystery why Wiranto did not overcome the widespread violence and unrest in East Timor. Perhaps he was aware all of these were orchestrated and designed by his rivals within the Army. Shortly after Habibie was replaced by president Abdurrahman “Gus Dur” Wahid, pressure shifted to the new leader to suspend Wiranto from his Cabinet, pending an inquiry into human rights violence in East Timor.

 

Then UN secretary-general Kofi Annan repeatedly urged Indonesia to prosecute those found guilty of violence and warned that the United Nations would try to set up an international war crimes tribunal if Indonesia did not take the necessary steps. It was hard for Gus Dur to oust the general, but international pressure was mounting too. This “zero-sum game” and its aftermath finally came to an end after those figures were no longer in power.Today, a new chapter of hope has started. Gen. (ret) Luhut Binsar Pandjaitan, a powerful and new Coordinating Political, Legal and Security Affairs Minister under President Joko “Jokowi” Widodo, has announced that the government’s team is still discussing the solution mechanism, as well as determining the priority cases that it will aim to resolve by the end of Jokowi’s five-year term.

 

The discussion involves seven gross human rights violations, including the atrocities in East Timor. Both Timor Leste and Indonesia formed the Commission of Truth and Friendship (CTF) 10 years ago, for which its mandate included establishing the truth about human rights violations that occurred prior to and immediately after the Aug. 30, 1999 popular consultation. The report was endorsed by then president Susilo Bambang Yudhoyono, making it the first recognition of the Indonesian government’s complicity in human rights violations in East Timor. However, according to Country Reports on Human Rights Practices for 2014 published by the US Department of State, recommendations from the commission regarding a national reparations program have not materialized yet.

 

The writer, Kristio Wahyono a guest lecturer in Yogyakarta, is former Commission of Truth and Friendship (CTF) co-director and Indonesian representative to the United Nations Transitional Administration in East Timor (UNTAET).

Kerry B. Collison Asia News: The dynamics of India’s population growth will pus...

Kerry B. Collison Asia News: The dynamics of India’s population growth will pus...: Their sheer size and growth potential mean that China and India will be at the centre of the Asian economic powerhouse over the comin...