Will Japan Embrace the “Illegal But Legitimate” View of the UN Charter’s Limits on Use of Force?

by Julian Ku

Japan has been slowly moving to modify its domestic law, both constitutional and legislative, restricting the use of its military forces outside of Japan.  In its latest political discussions, it is worth noting that Komeito, a partner to the ruling Liberal Democratic Party, has been insisting on the three “Kitagawa” principles as a basis for any new law governing the use of force overseas.  The three principles are: “legitimacy under international law, public understanding and democratic rule, and ensuring the safety of SDF personnel.”

Interestingly, the ruling party has been hesitant to fully embrace the “legitimacy under international law” requirement, which might be read to require UN Security Council authorization for most overseas uses of military force. Noting that China has a veto in that body, ruling party lawmakers would like to make sure “legitimate under international law” is given a broader meaning.

“In terms of international law, legitimacy isn’t necessarily limited to [those situations involving] a U.N. resolution,” said a senior LDP official. “We’d like to discuss what cases would be legitimate.”

The US and Western powers have used this “illegal but legitimate” analysis to justify actions in Kosovo and elsewhere.  It will be interesting to see if Japan eventually adopts some version of this approach.  It would be wise to do so from a practical perspective, since many scenarios where Japanese forces would act “overseas” including the Senkakus, Taiwan, Korea, or Syria may not qualify as “self-defense” under the U.N. Charter.  But such a move would chip away again at the UN Charter’s limits on the use of military force.


5 Responses

  1. Illegal + acquiescence = legitimate. The elision of that key variable always troubles me.

  2. And, in any event, Kosovo was legal under UN Charter, art. 52 re: NATO authorization of “regional action.”

  3. Nope, consent to a military intervention by the state make it lawful (although things get a bit murky in civil wars) but acquiescence will definitely not transform an illegal use of force into a lawful military action.
    And of course the Kosovo intervention was clearly illegal as well as the majority of international lawyers clearly acknowledge (even if some of them tried to conceal it with the infamous “illegal but legitimate” formula.

  4. most pay no attention to Article 52, but it is also part of the UN Charter. Article 52 “regional action” by the OAS re: use of force to interdict Soviet naval vessels going to Cuba during the Cuban Missile Crisis was also lawful. Re: Kosovo and Cuban M.C., the S.C. was veto-deadlocked or would have been and failed to act so as to trigger 39, 42 or 53.

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