NDL's Feasibility Report on the UNEPS

The following document is a set of studies conducted by the NDL, the National Diet Library of Japan, under the request of the Office of Senator Tadashi Inuzuka, on the feasibility of the UN Emergency Peace Service initiative from two perspectives: (I) constitutionality, and (II) historical analysis of the UN peace operations concerning the establishment of a standing rapid deployment force composed of willing and capable individuals.

Foreign Affairs and National Defense Division
Research and Legislative Reference Bureau
National Diet Library, JAPAN

November 8, 2006

I. The UNEPS and Article 9

Delivery of funds:

During the 1991 Gulf War, the government has helped deliver the funding for the war with the condition of not having the funds used for supplying arms and ammunition. However, this was a political decision and not due to constitutional constraints. For example, in 1992, the government went ahead to deliver the funding of the operation in Somalia with no precondition while recognizing the potential of it being used for supplying arms and ammunition:

“The ‘use of force' as prohibited in Article 9 of the Constitution is a conceptual terminology for ‘acts of combat' that refers to acts resorting to force. From such perspective, we have thus stated repeatedly on numerous occasions in our government responses that since delivery of funds does not constitute a concept of ‘use of force,’ it does not fall under the category of criterion stipulated in Article 9 that prohibits the use of force, and therefore is constitutional.”

--Statement by Omori Masasuke, then-Director-General of the First Department of Cabinet Legislation Bureau at the Upper House Committee on Cabinet in the 125th National Diet, 8 December 1992.

Provision of bases:

On 16 December 1959, the appeals court for the so-called “Sunagawa” case that dealt with the stationing of the U.S. troops ruled that foreign forces do not constitute a ‘war potential' as stipulated under Section 2 of Article 9:

“The possession of ‘war potential’ prohibited under the applicable clause (note: Section 2 of Article 9), refers to a potential with which the right to control and command are principally exercised by the state, which in turn refers to the state’s war potential. It should be therefore comprehended that foreign services, even though if they are stationed in our soil, would constitute a war potential as mentioned herein.”

--The Grand Bench of the Supreme Court ruling made at 16 December 1959

Japanese national(s) participating in a foreign service based on free will:

“Under the Constitution, Japanese national(s) applying as volunteer servicemen in a foreign military do not pose any constitutional problem, provided that such national(s) will apply for volunteer service based on his/her free will.”

--Statement by Takeo Ohashi, then-Director-General of the Legal Affairs Bureau at the Upper House Special Committee on Peace Treaties and Treaty of Mutual Cooperation and Security between Japan and the United States of America in the 12th National Diet, 29 October 1951.

However, it must be noted that this statement does not consider the possibility of state’s involvement in some form in the recruitment of volunteers.

II. Individual Participation in UN Peace Operations

1. UN Guard Force initiatives

A pre-PKO proposal made by then-Secretary General Trygve Lie in 1947

Characteristics:

• SG responsible for recruitment
• Utilization can be delegated to the Security Council or the General Assembly
• Deployed under the provisional measures of Article 40 of the Charter for; residential referendum under UN auspices, fulfillment of peace agreement, protection of UN missionaries, and policing mandates under international governance, etc.
• Intended initial size of troops to be at 800 with up to maximum of few thousand, 300 of which will be active personnel and 500 would be reserves stationed back in the originating state.
• The personnel status of the contingent will be a 'UN Secretariat employee'.

Reactions:

• Former-Soviet Union states insisted that the Security Council can only have its own forces for disposal under Article 43 and otherwise illegal
• Other states critical for financial reasons and due to concern of possible clashes with the local military

2. Post-90’s initiative

Several rapid deployment initiatives were proposed from the failures of Somalia and Rwanda to establish a permanent UN force, i.e., proposal by then Secretary General Sir Brian Urquhart in 1993 and proposal by the Netherlands in 1995 (UN Doc.A/49/886-S/1995/276).

Characteristics (background, merits/demerits):

• Increase in internal conflicts and humanitarian intervention
• Need for rapid deployment to prevent deterioration of conflict situations
• Expectations in its interoperability, effectiveness, and political neutrality for its permanent nature
• Logistic transports would be dependent on big states like the U.S.
• The idea is not necessarily excluded from the Charter but are not inclusive
• Some states prefer that UN does not retain its own armed forces
• Cost-wise, it would be lower than the expenses incurred for Rwanda
• Problem of right personnel being appointed to right positions
• There are criticisms that this might ignite the revival of mercenaries. But conventional wisdom rules that having states voluntarily contribute their troops is more problematic
• Gaps in decision-making between North and South. Some Southern states with less opportunities to intervene may consider the proposal as neo-colonialist approach
• Quantitative gap for selectivity of involvement; analyses of relationship between situations and troop sizes to be contributed, necessity of regional organization forces, etc.

Source: Kinloch “Utopian or Pragmatic?” International Peacekeeping, Vol.3 No.4 (Winter 1996)