Japan One Step Closer to Collective Self-Defense?

Abe Tones Down Enthusiasm for Constitutional Re-Interpretation

The Abe Shinzō administration had shown a clear enthusiasm for approving the exercise of the right to collective self-defense, and its May 15 press conference was believed to be an occasion for Prime Minister Abe to announce far and wide that the government would set about discussing legal revisions to that end. But given the reservations of the New Kōmeitō, the ruling Liberal Democratic Party’s coalition partner, the prime minister’s message to the people turned out to be more subdued than predicted. While stating that the government would “further strengthen” its response to so-called gray-zone situations that stop short of the use of force, regarding the right to collective self-defense he went only so far as to say, “We need to further study whether we can take sufficient legislative measures to protect the lives of the Japanese people under the current interpretation of the constitution.”

The Advisory Panel on Reconstruction of the Legal Basis for Security recommended in its report, “The provisions [in Article 9 of the Constitution of Japan] should be interpreted as not . . . imposing any constitutional restrictions on activities that are consistent with international law, such as participation in UN PKOs etc. and collective security measures.” To this Prime Minister Abe voiced his disagreement, saying, “I don’t believe that the constitution allows all such activities,” and “the government cannot adopt” this line of thinking. Meanwhile, he used panels to illustrate two case examples, one being that the Self-Defense Forces cannot protect US vessels transporting Japanese expatriates fleeing from conflict, the other being that the SDF cannot come to the aid of Japanese personnel engaged in United Nations peacekeeping operations, members of nongovernmental organizations, and foreign contingents. “I don’t think it’s constitutionally acceptable to let these situations remain as they are,” he said, expressing his readiness to allow the use of the right to collective self-defense.

The LDP and Kōmeitō are slated to begin ruling coalition talks on this issue as early as May 20, but the initial focus will be on gray-zone situations. Prime Minister Abe had been hoping to reach a cabinet decision allowing the exercise of the right of collective self-defense prior to an extraordinary Diet session in the fall, so that a bill to amend the Self-Defense Force Law could be submitted at the session. These dates may now have to be significantly postponed.

Advisory Panel Strongly Recommends Re-Interpretation

The advisory panel presented its report to the prime minister ahead of the press conference. The thrust of the report was that collective self-defense is within the bounds of self-defense of “the minimum extent necessary” and that the constitution should be re-interpreted to enable Japan to exercise the right of collective self-defense.

The report made note of missile and nuclear weapons development by North Korea and the situation in the East China Sea and South China Sea to stress how the security environment surrounding Japan has changed. In addition to the four types of security issues raised in the 2008 report (defense of US naval vessels on the high seas, interception of a ballistic missile that might be on its way to the United States, use of weapons in international peace operations, and logistics support for the operations of other countries participating in the same UN PKO and other activities), the current report laid down six specific case examples to point out that “there is a need to examine the question of what the appropriate interpretation of the Constitution and legal system would be to allow Japan to take concrete actions.” These examples included measures to be taken in case of a contingency in Japan’s neighboring areas, such as ship inspections and repelling of attacks against US vessels; support to the United States when it is under an armed attack; and minesweeping in maritime areas where navigation of Japanese ships is significantly affected.

The advisory panel claimed in its report that Japan should be able to exercise the right of collective self-defense when a foreign country that is in a close relationship with it comes under an armed attack and it has obtained an explicit request or consent of that country. The government should take responsibility for making the decision, it said, comprehensively taking into account such questions as whether there is a high possibility that the situation will lead to a direct attack against Japan, whether not taking action would significantly undermine trust in the Japan-US alliance, thus leading to a significant loss of deterrence, and whether international order itself could be significantly affected. The report also suggested that, if Japan would be passing through the territory of a third country when exercising the right of collective self-defense, the government should obtain the consent of that country and that exercising this right should require the approval, either prior or ex post facto, of the Diet.

Collective Self-Defense “Would Diminish the Potential for Conflict”

The Japanese government has hitherto taken the view that the following three requirements need to be met for Japan to be able to exercise the right of self-defense: there is an imminent unlawful infringement against Japan, there is no other appropriate means available to repel this infringement, and the use of force is limited to the minimum extent necessary. Since situations that call for the right of collective self-defense entail no “imminent unlawful infringement against Japan,” the government has maintained the position that Japan cannot exercise this right.

The latest report by the advisory panel noted that Article 9 of the constitution “makes no mention of the right of self-defense or collective security.” The provision of the first clause of Article 9 “should be interpreted as prohibiting the threat or the use of force as means of settling international disputes to which Japan is a party,” it said, and the provisions “should be interpreted as not . . . imposing any constitutional restrictions on activities that are consistent with international law,” such as participation in PKOs and collective security measures by the UN.

The report positively evaluated the right of collective self-defense: “Enabling the exercise of the right of collective self-defense would strengthen relations with other trustworthy countries and would lead to preemptively diminishing the potential for conflict by enhancing deterrence.” It recommended that “the exercise of the right of collective self-defense should be permitted,” by interpreting “the minimum extent necessary” to include not only the right of individual self-defense but also the right of collective self-defense.

(Originally written in Japanese on May 15, 2014. Banner photo: Prime Minister Abe speaks at a meeting of the Advisory Panel on Reconstruction of the Legal Basis for Security held at the prime minister’s office in Tokyo on February 8, 2013. © Jiji Press.)