In May 2007, during Japanese Prime Minister Shinzo Abe’s first administration, an Advisory Panel on Reconstruction of the Legal Basis for Security was convened. The panel was to advise on the relationship between the Japanese constitution and Asia-Pacific security issues. Among the topics discussed was the right to collective self-defense, permitted under Article 51 of the UN Charter but self-restricted in Japan since 1972 by Article 9 of the Japanese Constitution.
When the panel completed its report in June 2008, it concluded that the existing interpretation of Article 9 was no longer appropriate given the current security environment. Instead, the panel recommended that Article 9 be interpreted to permit not only individual self-defense, but also the right to collective self defense and the participation in collective security operations in support of the United Nations. By the time the report was published, Abe had stepped down as prime minister for health reasons, and his successor, Yasuo Fukuda, opposed further discussions.
The panel was convened again by Abe during his second administration in February 2013. Led by Shunji Yanai (a former ambassador to the U.S.), the panel consisted of 14 experts in foreign affairs and national security, including a former vice foreign minister, former vice defense minister, and experts in international law. After more than a year’s deliberation, their recommendations were made public last Thursday during a press conference by Abe.Enjoying this article? Click here to subscribe for full access. Just $5 a month.
Much like the first panel’s recommendations, there are six specific conditions to be met before collective self-defense may be authorized. The first three are as follows.
– A nation that Japan has close relations with is attacked;
– Not reacting to the situation would result in a significant impact on Japan’s security; and
– There is a request from the country being attacked to exercise Japan’s right to collective self-defense
If those pre-conditions are met, three processes must be followed:
– Japan must receive permission from any countries through which forces may need to traverse in supporting the country attacked;
– A judgment must be made by the prime minister that there is a general threat to Japan’s security; and
– Permission from the Diet must be obtained.
According to the panel, these changes are needed because “Japan is now facing a situation where adequate responses can no longer be taken under the interpretation of the Constitution to date in order to maintain the peace and security of Japan and realize peace and stability in the region and in the international community.” In an attempt to garner popular support for the reinterpretation, the panel listed nine scenarios where collective self-defense would likely occur, many focused on the protection of Japanese citizens. These examples include situations such as the need to protect U.S. transport vessels carrying Japanese civilians and the ability to rescue Japanese civilians in remote locations. It also includes “grey-zone” incidents such as responding to an armed group disguised as fishermen landing on Japan’s remote islands – a not-so-subtle reference to a feared Chinese annexation of the Senkaku/Daioyu Islands. The panel continues, arguing that “collective security” operations (such as UN forces acting in response to a UN Security Council resolution), do not equate to the use of force and should also be allowed.
Despite the panel’s recommendations, any changes in Japanese military posture must be approved by the Diet (Japan’s bicameral legislature), who rely on the interpretation of Article 9 by the Cabinet Legislation Bureau (CLB), which crafted the current interpretation of the constitution. The CLB’s interpretation explicitly prohibits the exercise of collective self-defense based on Article 9’s limit on offensive actions. Obtaining initial Diet approval, however, is likely to be difficult.
Ever since the CLB’s constitutional interpretation in 1972, which stated that Japan possessed the right to collective self-defense yet could not exercise it, successive administrations have routinely upheld this interpretation. Despite this precedent, the panel argues that Article 9 of the Japanese Constitution as currently written does not limit the use of collective self-defense (CSD), but that CSD is essential to “the necessary self-defense measures that can be taken to ensure the existence of the nation.” The U.S. has also regularly pushed for a reinterpretation of Article 9, looking for a more balanced alliance between the two nations. As recently as April, the White House published a joint statement with Japan voicing support. “The United States welcomes and supports Japan’s consideration of the matter of exercising the right of collective self-defense.” With a shrinking military budget, the U.S. would certainly support a “rebalancing” of the alliance.
Opponents within the Japanese Diet argue that a constitutional reinterpretation of this magnitude, overturning more than 40 years of precedent, requires a full amendment to Article 9, which has not changed since it was created under American direction in 1946. That said, there appears to be room for compromise. Some suggest avoiding the term “collective self-defense” and using a more palatable phrase such as “integration with the use of force,” as some interpretations of the Constitution would allow for such an “integration.”
The reinterpretation is even more challenging given current efforts to nominate “the Japanese people” for a Nobel Peace Prize for adhering to Article 9 for nearly 70 years. Additionally, many of Japan’s regional neighbors are leery of the move. Seoul, recently irked by Abe’s December visit to the Yasukuni Shrine in Tokyo, can scarcely envision Japanese troops landing in South Korea to assist U.S. forces under attack. China also sees the move as directed specifically at containing its rising military influence – a shrewd assessment – although Abe has been careful not to single out any one country as the reason behind the reinterpretation. North Korea has even threatened “fiery lightning” against Japan if collective self-defense is instituted.
The road to implementation will not be easy. The Japanese ruling parties begin discussions on Tuesday, with plans to seek Cabinet approval for the reinterpretation before the end of the current Diet session on June 22. If approved by the Diet, Japan’s military posture could be altered as early as this fall. After Abe lifted the ban on arms exports in April, this constitutional reinterpretation could further alter the balance of the U.S.-Japan alliance – something both sides support.
Will Atkins is a CSIS-Pacific Forum non-resident Fellow and an Adjunct Fellow with the American Security Project. A Regional Affairs expert, he has been stationed and conducted extensive field work throughout the Asia-Pacific theater. He can be found on Twitter @WillAtkins2.