Japan’s Torturous Path to Exercise the Right to Collective Self-Defense and Its Impact on Extended Deterrence
History of Japan’s Right to Collective Self-Defense The issue of Japan exercising the right to collective self-defense (shyudantekijieken o koshi suru) has been an important constitutional and alliance issue in Japan since the adoption of the constitution. As such, it is a critical factor in Japan’s role in an extended deterrence framework, with important effects on its force structure, weapons platforms (whether offensive or defensive), integration with both U.S. conventional and nuclear forces, and ballistic missile defense cooperation in East Asia. Prior to Prime Minister Abe’s Cabinet decision to allow Japan to exercise a partially circumscribed (but expansive in the
Japanese context) right of collective self-defense on July 1, 2014,1 the Japanese government subscribed to a very strict interpretation of the constitution with respect to collective self-defense.
Prior to examining Prime Minister Abe’s role in facilitating Japan’s right to exercise collective self-defense, incremental changes under the administration of former Prime Minister Koizumi will be examined.
1 Prime Minister of Japan and His Cabinet, “Cabinet Decision on Development of
Seamless Security Legislation to Ensure Japan’s Survival and Protect Its People” (Ministry of Foreign Affairs of Japan, July 1, 2014),
http://japan.kantei.go.jp/96_abe/decisions/2014/__icsFiles/afieldfile/2014/07/03/anpohos ei_eng.pdf.
Prime Minister Koizumi
The administration of Prime Minister Junichiro Koizumi (April 2001– September 2006) contributed to the continued deterioration of the psychological palliative that was the Yoshida Doctrine and facilitated a marked symbolic shift in Japan’s security consciousness, at least among the elite.2 This manifested itself in Japan’s limited cooperation with the United States in ballistic missile defense, diplomatic and military cooperation with the United States in the Six-Party Talks, the War on Terror generally, and the wars in Afghanistan and Iraq, specifically.
The Koizumi administration passed the Anti-Terrorism Special Measures Law (ATSML)3 in October 2001 in response to the September 11th terrorist attacks against the United States, which authorized Japan Self-Defense Force (JSDF) units to deploy to the Indian Ocean to provide logistical support for U.S. forces in Afghanistan, but still in noncombat roles and under highly restrictive
2 Tomohito Shinoda, Koizumi Diplomacy: Japan’s Kantei Approach to Foreign
and Defense Affairs (Seattle and London: Univ. of Washington Press, 2007); Eugene A. Matthews, “Japan’s New Nationalism,” Foreign Affairs 82, no. 6 (December 2003): 74–90; Michael J. Green, “Japan Is Back: Why Tokyo’s New Assertiveness Is Good for Washington,” Foreign Affairs 86, no. 2 (April 2007): 142– 47; Christopher W Hughes, “Japan’s Re-Emergence as a ‘Normal’ Military Power,” Adelphi Paper (London: International Institute for Strategic Studies, 2004); Kenneth B. Pyle, “Profound Forces in the Making of Modern Japan,” The Journal of Japanese Studies 32, no. 2 (Summer 2006): 393–418; Richard J. Samuels, “Securing Japan: The Current Discourse,” The Journal of Japanese Studies 33, no. 1 (Winter 2007): 125–52.
3 “The Anti-Terrorism Special Measures Law” (Government of Japan, October
rules of engagement. Notably, 48% of the Japanese public opposed this effort, while 44% expressed support.4
In July of 2003, the Law Concerning Special Measures on Humanitarian and Reconstruction Assistance (LCSMHRA) was passed, which authorized JSDF deployment to Iraq to provide logistical support for U.S. and other coalition
forces.5 However, similar to the Anti-Terrorism Special Measures Law, Japanese
forces were under severe rules of engagement that diminished their tactical and strategic contributions substantially. They were not allowed to engage in combat or engage in weapons transport and were to focus on “humanitarian and
reconstruction operations, most notably water purification.”6 Only 33% supported SDF deployment to Iraq, while 63% opposed it.7 Another poll registered a more
balanced public opinion, with 44% in favor and 48% opposed.8 However, it is clear that in both cases, only a minority were supportive of deployment under even the most restrictive conditions. Ultimately, former Prime Minister Koizumi’s contributions to the second Iraq war were merely symbolic.
4 Midford, Rethinking Japanese Public Opinion and Security: From Pacifism to
Realism?, 117.
5 “Speeches and Statements by Prime Minister Junichiro Koizumi” (Government
of Japan, December 9, 2003),
http://japan.kantei.go.jp/policy/2003/031209housin_e.html; “Basic Plan Regarding Response Measures Based on the Law Concerning Special Measures on
Humanitarian and Reconstruction Assistance in Iraq” (Ministry of Foreign Affairs of Japan, December 9, 2003),
http://www.mofa.go.jp/region/middle_e/iraq/issue2003/law_o.pdf.
6 Midford, Rethinking Japanese Public Opinion and Security: From Pacifism to
Realism?, 135.
7 Ibid. 8 Ibid., 137.
Further, in a legal sense, these measures were passed as ad hoc laws that left the fundamental ambiguity of Japan’s role in collective self-defense uncodified and subject to future revision or reversal. While the aforementioned developments reflect the shifting elite attitudes toward security norms in Japan and show the domestic political evolution of a Japanese government that is emerging from its “anti-militarist” shell, they were still, in the strategic and tactical sense, too restrictive to provide substantive contributions to military missions. Their symbolic nature (and the simple fact that, unlike the First Gulf War, legislation was able to be passed) however, is an important aspect of Japan’s post-Cold War security evolution.9 Further, under Prime Minister Koizumi, institutional changes in the Japanese government gave the executive branch more power and influence relative to other bureaucratic organs, making the
Kantei (broadly defined as the Cabinet Secretariat and the prime minister) the
“new policy center in defense and foreign affairs.”10 In sum, despite the JSDF
being a near-non-factor in the tactical and strategic outcome and operations of both the Afghanistan and Iraq Wars, former Prime Minister Koizumi did succeed in allowing an incrementally more proactive shift in Japan’s security posture, laying the groundwork for more ambitious reform under Prime Minister Shinzo Abe.
9 For a complete analysis of the interaction between domestic processes and
foreign policy under Prime Minister Koizumi, see, Shinoda, Koizumi Diplomacy: Japan’s Kantei Approach to Foreign and Defense Affairs.
Prime Minister Abe’s First Term (September 2006–September 2007) In a policy speech given to the 166th Session of the Japanese Diet in January 2007, former Prime Minister Abe addressed the crucial issue that confronts Japan implementing a more proactive security strategy. Questioning the efficacy of Article 9 and the constitutional proscription of collective defense, Prime Minister Abe (first term) stated,
In addition, we believe that, in order to make greater contributions to the peace and stability of the world, we have to reconstruct the legal basis for national security to befit the times. We will continue to study, based on individual and specific cases, to identify which case constitutes exercise of the right of collective self-defense that is prohibited under the
Constitution.11
At the time, fundamental constitutional ambiguities remained uncodified and unresolved, resulting in continued ambiguity of the efficacy and long-term viability of the U.S.–Japan alliance and the concomitant nuclear umbrella provided by the United States.
History of Article 9
To fully appreciate the gravity of this constitutional conundrum, we should examine the specific wording of Article 9, which reads:
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 means of settling international disputes.
11 “Policy Speech by Prime Minister Shinzō Abe to the 166th Session of the Diet
(Provisional Translation),” January 26, 2007,
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.12
The inclusion of this clause was not without controversy. Unlike the American Constitution and the Meiji Constitution that preceded it, for example, there is no explicit designation of commander-in-chief. There is no explicit mention of to whom authority is delegated to raise a military or declare war, nor are there included any provisions articulating the constitutional or legal
framework through which Japan could or should act if it is attacked by a foreign state.13 The original draft of Article 9 was even more stringent. As submitted to
the Diet on April 17, 1946, it read:
War, as a sovereign right of the nation, and the threat or use of force, is forever renounced as a means of settling disputes with other nations.
The maintenance of land, sea, and air forces, as well as other war potential, will never be authorized. The right of belligerency of the state will not be recognized.14
Deeming this wording too restrictive because it indicated that Japan should perpetually remain vulnerable and unequivocally unarmed “‘even for preserving its own security’ as too sweeping,”15 the Diet’s subcommittee on
constitutional revision chaired by Ashida Hitoshi (who subsequently served as
12 The Constitution of Japan,
http://www.kantei.go.jp/foreign/constitution_and_government_of_japan/constitution_e.ht ml.
13 Shigenori Matsui, The Constitution of Japan: A Contextual Analysis,
Constitutional Systems of the World (Portland, OR: Hart Publishing, 2011), 235.
14 John W. Dower, Embracing Defeat: Japan in the Wake of World War II (New
York: W.W. Norton, 1999), 394; “Main Issues: Topic 2 Renunciation of War,” Birth of the Constitution of Japan, National Diet Library, n.d.,
http://www.ndl.go.jp/constitution/e/ronten/02ronten.html.
prime minister from March 1948 to October 1948) pushed through adoption (cleared by General Headquarters [GHQ]) of the so-called “Ashida
Amendment”16 that resulted in the extant version of Article 9.17
The change in wording is significant in that rests on the relationship between necessary and sufficient causes of the wording between the first and second sections of Article 9. Unlike the original text of Article 9, the first clause of section 1 of the extant version is conditional: “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 means of settling international disputes.” The first clause of the second
paragraph, then, is contingent upon the fulfillment of the conditionality of the first clause of the first paragraph: “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.”
This seemingly small semantic difference in wording is not an idle distinction.
The degree of linkage between the two clauses has been an enduring source of contention and interpretation. As Dower notes, the relationship
between the first and second paragraphs of Article 9 “deliberately left vague the possibility of modest rearmament ‘for preserving its own security’—and, in so
16 Ibid., 394–96; Matsui, The Constitution of Japan: A Contextual Analysis, 236–
37.
17 On a more detailed analysis of how the “Ashida Amendment” was enacted,
doing, planted the seed of decades of controversy.”18 This constitutional
ambiguity in Article 9 opened the door for legal-ideational interpretations of Article 9’s scope, which, in turn, influenced the scope for Japan’s role in
exercising the right to collective self-defense. This, in turn, has a direct bearing on the legal, ideational, and material ways in which Japan constitutes its force structure as a protégé in an extended nuclear deterrence framework.
The realities of the Cold War and the Korean War quickly brought the idealistic phase of the U.S. occupation to an end and resulted in the “reverse course” (逆コース) that focused on diminishing the influence of left-wing and communist sympathizers in Japan, supporting limited Japanese rearmament, and integrating Japan into the United States’ nascent Cold War strategic framework.19 Thus began the gradual but consistent push from the United States for Japan to engage in a more proactive security policy with strengthened military capabilities, less than five years after promulgation of a distinctively pacifist constitution. As early as 1951, the Security Treaty between the United States and Japan (September 8, 1951) states:
18 Dower, Embracing Defeat: Japan in the Wake of World War II, 369; Haley,
“Waging War: Japan’s Constitutional Constraints,” 18.
19 Pyle, Japan Rising: The Resurgence of Japanese Power and Purpose, 222–
25; Berger, Cultures of Antimilitarism: National Security in Germany and Japan, 33; Dower, Embracing Defeat: Japan in the Wake of World War II, 271–73, 526–28; James L. McClain, Japan: A Modern History (New York: W.W. Norton, 2002), 550– 55; V. D. Cha, “Powerplay: Origins of the US Alliance System in Asia,” International Security 34, no. 3 (2010): 181–82; Christopher W. Hughes, Japan’s Remilitarisation (Oxon, U.K.; New York: Routledge; International Institute for Strategic Studies, 2009), 23–24; Pyle, Japan Rising : The Resurgence of Japanese Power and Purpose, 211; Andrew L. Oros, Normalizing Japan: Politics, Identity, and the Evolution of Security Practice (Stanford, CA: Stanford Univ. Press, 2008), 53–54.
The United States of America, in the interest of peace and security, is presently willing to maintain certain of its armed forces in and about Japan,
in the expectation, however, that Japan will itself 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.20
The Constitution of Japan, the United Nations Charter, and Collective Self- Defense
The United Nations Charter holds that nations are endowed with an intrinsic right to exercise collective self-defense. Article 51 of the United Nations Charter states:
Nothing in the present charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be
immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present to take at any time such action as it deems necessary in order to maintain or restore international peace or security.21
However, prior to current Prime Minister’s Abe’s administration, Japan had chosen not to exercise this right because of a perceived constitutional
proscription. This position comes from a landmark ruling in 1954 decided by the Cabinet Legislation Bureau (CLB), the bureau directly responsible for the
20 “Security Treaty Between the United States and Japan; September 8, 1951,”
http://avalon.law.yale.edu/20th_century/japan001.asp. Emphasis added.
21 United National Charter, “Chapter VII: Article 51,” October 24, 1945,
government’s interpretation of constitutional issues.22 In 1954, the CLB stipulated
that all sovereign nations have the right to self-defense (kobetsuteki jieken) and that establishment of the Japanese Self-Defense Forces does not contravene Article 9’s proscription on “war potential” on these grounds. The CLB also ruled that Article 9 does not proscribe Japan from defending itself in the event of an invasion of Japan. However, Japan must only use “minimum necessary force” (jiei no tame no hitsuyô no jitsuryoku) when invaded. But it could not send forces abroad (kaigai hahei), nor could Japan participate in any “collective defense arrangements” (shudanteki bôei).23 This 1954 ruling was the first “formal
interpretation” of Article 9 by the CLB and stated: “[War potential (senryoku)] refers to a force with the equipment and organization capable of conducting modern warfare. . . . Determining what constitutes war potential requires a concrete judgment taking into account the temporal and spatial environment of the country in question. . . . It is neither unconstitutional to maintain capabilities that fall short of war potential nor to utilize these capabilities to defend the nation from direct invasion.”24 From this ruling, what constituted “war potential” and
22 Samuels, Securing Japan: Tokyo’s Grand Strategy and the Future of East Asia,
48.
23 Samuels, “Politics, Security Policy, and Japan’s Cabinet Legislation Bureau:
Who Elected These Guys Anyway?”
24 A. Nakamura, Sengo Seiji Ni Yureta Kenpô Kyûjô (Article Nine That Shook
Postwar Politics) (Tokyo: Chûô Keizaisha, 2001), 99, cited in Samuels, “Politics, Security Policy, and Japan’s Cabinet Legislation Bureau: Who Elected These Guys Anyway?”
“minimum necessary force” became the benchmark upon which all subsequent interpretations were based.25
However, in May 1981, the CLB again addressed the issue of collective self-defense and “issued a formal (albeit tortured) interpretation recognizing that Japan has the right of collective self-defense under international law but is forbidden to exercise it”26 under Article 9:
It is recognized under international law that a state has the right of collective self-defense, which is the right to use actual force to stop an armed attack on a foreign country with which it has close relations, even when the state itself is not under direct attack. It is therefore self-evident that since it is a sovereign state, Japan has the right of collective self- defense under international law. The Japanese government nevertheless takes the view that the exercise of the right of self-defense as authorized under Article Nine of the Constitution is confined to the minimum
necessary level for the defense of the country (wagakuni). The government believes that the exercise of the right of collective self- defense exceeds that limit and is not, therefore, permissible under the Constitution.27
While this ruling was significant, it was not revolutionary. Yet, it did have demonstrable effects. For example, under Prime Minister Nakasone, Japan “undertook responsibility for defending American ships in its territorial waters against possible Soviet aggression and pushed forward joint planning.”28 The importance of Japan assisting the U.S. military in combat operations in East and
25 Samuels, “Politics, Security Policy, and Japan’s Cabinet Legislation Bureau:
Who Elected These Guys Anyway?”
26 Samuels, Securing Japan: Tokyo’s Grand Strategy and the Future of East Asia,
48.
27 National Institute for Defense Studies, “East Asian Strategic Review” (Tokyo:
Japan Ministry of Defense, 2002), 315.
28 Berger, Cultures of Antimilitarism: National Security in Germany and Japan,
South Asia cannot be overstated. Japan’s severe curtailment of this right is significant in what it means for U.S. forces in the Pacific.
Prior to Prime Minister Abe’s reversing the proscription of exercising the right to collective self-defense in 2014 (which is still relatively circumscribed, as will be discussed in further detail below), Japan was not allowed to defend U.S. military forces outside Japan should they come under attack. Nor was it allowed to pass intelligence to the U.S. military to warn of an attack if the Japanese government could not be sure that the attack (in whatever form) was not directly aimed at Japan. For those unfamiliar with the legalities of CLB and constitutional decisions related to Japan and Article 9, this should seem, prima facie, a fairly straightforward case of alliance malpractice. Yet, the Japanese legal framework is clear in its proscription (as of 2008). As such, grounding Japan’s roles and functions within the U.S.–Japan alliance in analysis of constitutional and legal thought is a necessary condition to fully understand the dilemmas posed by assurance and reassurance in an extended nuclear deterrence framework in Asia.
The legal rationale for this proscription is summarized by the first Advisory Panel on Reconstruction of the Legal Basis for Security appointed during the first term of Prime Minister Abe:
Regarding “logistics support” for other countries participating in the same PKO [Peacekeeping Operations] or similar activities, even though
activities such as supply, transportation and medical services are not in themselves “use of force,” the current constitutional interpretation does not allow such support if it is provided in a manner that forms an “integrated