LANDMARK SHIFT IN JAPAN’S DEFENSE POLICY: WAR, PEACE AND SELF DEFENSE

TABLE OF CONTENTSTABLE OF CONTENTS.................................................................................................................i

ABSTRACT....................................................................................................................................1

INTRODUCTION...........................................................................................................................1

GRADUAL DEVELOPMENT OF INTERPRETATIONS............................................................3

Self-defense.................................................................................................................................3

Collective Self-Defense...............................................................................................................7

INTERNATIONAL DEVELOPMENTS AND THE CHANGES IN THE SECURITY

ENVIRONMENT SURROUNDING JAPAN................................................................................9

Modernized threats....................................................................................................................10

Deepened and expanded Japan-U.S. relationship......................................................................11

THE NEW RESOLUTION, JAPAN AND INTERNATIONAL LAW........................................11

Japan’s International Security Commitments: UN PKOs.........................................................13

a. Legal obligation to participate in UNPKOs....................................................................13

b. Japan’s International Participations and Internal Caveats..............................................13

c. Scope opened up by the new interpretation....................................................................15

US-Japan Mutual Co-operation Treaty......................................................................................16

a. Expanded scope of the Treaty.........................................................................................16

b. The Controversial Aspects..............................................................................................17

Effects on the East Asian peace and international relations......................................................18

CONCLUSION..............................................................................................................................20

Page | 1

Page | 2

ABSTRACT

Japan’s preamble portrays Japan’s desire to live in “an international society striving for the

preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance

for all time from the earth.” It also draws from Article 13 in its requirement that the government

protect its citizens’ “right to life, liberty and the pursuit of happiness.” Being the only victim of

the nuclear weapons in the world, no one can better identify with the futility and horrors of war

than Japan. Deep scar left on the nation’s psyche by the trauma and tragedy of war-loser

country and the suffering, death and devastation that ensued to the nationals of the losing state,

all contributed incredibly to the strong antiwar emotions of the nation and the religious

acceptance of the “No War Clause” of the constitution.

INTRODUCTION

The principle of self-defense was a precept of the jus naturale and jus gentium, and is universally

recognized as an inherent right1 in international law.2 But in the dynamic global scenario where

sovereign relations are so intertwined and equations of friend and foe change with the slightest

intervening factor, where the weapons of mass destructions are so advanced that another direct

war would mean virtually the coming of the dooms day, the connotations of ‘war’ are subtle and

so are the nuances of ‘self-defense’.

Japan’s cabinet has recently approved a landmark change in security policy, paving the way for

its military to fight overseas.3 The so called ‘dimensional change’ rather than policy shift, was

awaited and deliberated for 18 months despite wariness among many Japanese voters worried

about entanglement in foreign wars and angry at what some see as a gutting of the constitution's

war-renouncing Article 9.4 The resolution taken by the Abe government on July 01, 2014, talks

1 Art. 51, Charter of the United Nations2 Dionisopoulos, P. Allan (1956) "The No-War Clause in the Japanese Constitution," Indiana Law Journal: Vol. 31: Iss. 4, Article 1.Available at: http://www.repository.law.indiana.edu/ilj/vol31/iss4/13 News Asia, Japan cabinet approves landmark military change, BBC’s News Asia, http://www.bbc.com/news/world-asia-28086002, 4 Linda Sieg, Kiyoshi Takenaka, Japan poised to ease constitution's limits on military in landmark shift, Reuters, , http://www.reuters.com/article/2014/06/30/us-japan-defense-idUSKBN0F52S120140630,

Page | 3

about policy of pro-active contribution to peace, avoiding armed conflicts before they materialize

while increasing ‘deterrence’.5

The wide international recognition of Article 9 as a regional and international peace mechanism

contributing to peace and stability in Northeast Asia and serving as a legal framework to promote

peace, disarmament and sustainability, its nomination for this year's Nobel Peace Prize6

highlights its role as a tool for peace.

Yet, within less than a decade of the enactment, Japan possessed Self-Defense Forces (SDF) on

the land, at sea, and in the air. On the one hand, why does Japan have a constitution that does not

incorporate the right of a nation to defend itself? On the other, why does Japan have what are for

all intents and purposes an armed forces despite the presence of a clause with language

specifically denying itself the right to maintain such?7

The effects of Article 9 were multifarious and complicated. While on one hand it regained Japan

the lost trust of the world community, particularly the earlier victims and new victors of Imperial

Japan, on the other it put the country in a fix by creating a bottleneck when it came to Japan’s

participation in international peace activities including U.N. peacekeeping operations

(UNPKOs).8

The move has divided the country in two – while the supporters of the revision state that there

has been no change to Japan’s pacifism, on the other hand the critics feel Abe is pushing Japan

towards remilitarization after nearly 70 years of peace and that this is the first step towards

permanent revision or removal of Article 99. While the general populace is very much

apprehensive about the move10, what goes at the diplomatic level remains a brain-storming

exercise for the legal-eagles. Protests within the country is noteworthy meanwhile, the concerns

5 Ministry of Foreign Affairs, Cabinet Decision on Development of Seamless Security Legislation toEnsure Japan's Survival and Protect its People, Ministry of Foreign Affairs, Japan, Taken on http://www.mofa.go.jp/fp/nsp/page23e_000273.html, 6 Ankit Panda, Article 9 of Japan's Constitution: Nobel Peace Prize Laureate Material? , The Diplomat, http://thediplomat.com/2014/04/article-9-of-japans-constitution-nobel-peace-prize-laureate-material/, 7 Mayumi Itoh, Japanese Constitutional Revision: A Neo-liberal Proposal for Article 9 in Comparative Perspective, Asian Survey, Vol. 41, No. 2, University of California Press, http://www.jstor.org/stable/10.1525/as.2001.41.2.3108 Ibid9 Supra note 310 See, Reiji Yoshida, Tomohiro Osaki, Fiery suicide bid shocks Shinjuku on eve of historic security decision, The Japan Times, http://www.japantimes.co.jp/news/2014/06/30/national/fiery-suicide-bid-shocks-shinjuku/#.U9bupPmSx7N,

Page | 4

of China with whom Japan is currently engaged in a bitter territorial dispute and other Eastern

countries11 apprehend turbulence in the East Asian international peace. Their reasons include the

tensions in Northeast Asia - markedly between Japan, China and the Koreas over territorial

disputes, historical recognition issues and nuclear weapons programs, which due to the

reinterpretation of Article 9 threaten to further destabilize the fragile peace in the region.

As per official version, the change only means that in the past Japan could use force only in self-

defense. Japan's military will now be able to come to the aid of allies only if they come under

attack from a common enemy. Other conditions would apply including that there should be a

clear threat to the Japanese state and that people's right to life and liberty. Nonetheless, this

would officially include Japan shooting down a missile fired by North Korea at the US and Japan

taking part in minesweeping operations in key sea-lanes during a conflict. PM Abe says the

change does not mean taking part in multilateral wars, like the US-led war in Iraq.12

GRADUAL DEVELOPMENT OF INTERPRETATIONS

Interpretation of this article has varied, broadly, from absolute pacifism to admission of the need

for utilization of a collective self-defense right.13 Although the constitution draft was modified so

many times to keep some scope for a defensive force for Japan, and although MacArthur himself

supported the self-defense forces, Japanese government’s initial take on the issue was that all

armed force was outlawed for all purposes.14 Since then, the interpretation of article 915 has

followed closely the political needs of U.S. and Japan.

SELF-DEFENSE

In June 1946, then Prime Minister Shigeru Yoshida made the remark at a session of the Imperial

Diet under the former Constitution that deliberated and enacted the new Constitution that –

though the provision pertaining to the renunciation of war in this draft does not deny the right of

11 See, China, S. Korea Warn against Japan's Defense Policy Shift, China Radio International, http://english.cri.cn/12394/2014/07/02/2702s834121.htm,12 Supra note 313 Supra Note 1614 Supra note 1515 Article 9 of Japan's Constitution reads as follows:1. 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 a means of settling international disputes.2. 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.

Page | 5

self-defense directly, however, as a result of not recognizing any war potential and the right of

belligerency of the state in paragraph 2 of Article 9, Japan renounced both war as an exercise of

the right of self-defense and the right of belligerency.16 In the same year, Prime Minister Yoshida

stated, “If Japan becomes a member of the U.N. as an independent nation, Japan will be prima

facie protected by the U.N. Charter.”17

With the cold war escalating in the 50s, the U.N. did not function as was anticipated. The Korean

War broke out in June 1950.the US decided to co-opt Japan as part of its global strategy of

containing the communist threat. Japan was returned its sovereignty in April 1952, but was

required to sign a security treaty with the US to become part of the 'free world’ (former Japan-

U.S. Security Treaty). At about the same time, under a new interpretation of the Japanese

constitution, the US urged Japan to raise its own armed forces for self-defence. American

pressure led to the creation of a 'police reserve', later upgraded to Self Defence Forces (SDF) in

1954.

At this time the government ‘clarified’ its stance saying, “The Constitution, while renouncing

war, has not renounced fighting for self-defense. … To repel armed attack in the event of such an

attack from other countries is self-defense itself, and is essentially different from settling

international disputes. Hence, the use of force as an instrument for defending national territory

when an armed attack has been launched against the nation does not violate the Constitution. …

It is not a violation of the Constitution for Japan to set up an armed force such as the SDF having

a mission for self-defense and to possess military force to the extent that is necessary for that

purpose.”18

In November 1953, several months after the war in Korea had ended; Vice President Richard

Nixon told the America-Japan Society in Tokyo that the United States made a mistake in 1946

by inserting Article 9. He thus, contradicted MacArthur's repeated assertion that the

constitutional disarmament of Japan was the result of a Japanese (Shidehara's) initiative. Nixon,

unlike MacArthur, flatly repudiated the disarmament of Japan rather than praise Article 9 and

explain it away by reinterpreting it to allow defensive armament. Relating disarmament with war 16 First Report of the Advisory Panel on Reconstruction of the Legal Basis for Security, http://www.kantei.go.jp/jp/singi/anzenhosyou/report.pdf, 17Ibid18 Seiichi Omura, Director-General of the Defense Agency, Budget Committee of the House of Representatives (December 22, 1954), cited in Ibid

Page | 6

and rearmament with peace he said “it is because we want peace that we ourselves have rearmed

since 1946, and that we believe that Japan and other free nations must assume their share of the

responsibility of rearming since 1946.”19

During the second decade of Japanese sovereignty and new constitution came the first judicial

pronouncement concerning Article 9 made by a Tokyo District court which held the U.S. Japan

treaty to be violative of article 9 and hence unconstitutional. However, the ruling was later

reversed by a direct appeal made by the government to the grand bench of Supreme Court in

what was popularly called the Sunagawa case. Supreme Court held that self-defense was not

denied to Japan as an inherent sovereign right but avoided determining the war potential for self-

defense or, more specifically, the legality of the SDF.20

Next in this series of judicial interpretations was the Naganuma Case21 wherein again the scope

of Article 9 came before the High Court of Sapporo in an appeal. The Japan Defense Agency

desired to construct a missile base in Hokkaido as part of the 1967-1971 Defense Build-Up

Program. Local residents protested and brought legal action against the Ministry of Agriculture

and Forestry. In 1973 the Sapporo District Court held that the SDF were military units and thus

were unconstitutional. The court affirmed Japan's right of self-defense as an independent state,

but stated that this right should be achieved through diplomacy, police action, revolution by the

masses, confiscation of the property of citizens from aggressor nations, deportations, and other

non-military measures.22 The Sapporo High Court reversed the ruling and held that the law

establishing SDF did not carry an aggressive tone and only wars of aggression are prohibited by

Article 9. What is noteworthy here is the stand of the court that the court was unable to draw

conclusions about the constitutionality of the SDF. In 1982 the Supreme Court upheld the high

court's decision that the case was not constitutionally based but instead was merely a political

issue; thus the residents did not have a right to sue.23 Once again the court overruled the lower

court’s ruling but conveniently avoided ruling on the constitutionality of defensive armaments.

19 Supra Note 2120 Sakata v. Japan, 13 Keishu 3225 (Sup. Ct., G.B., Dec. 16, 1959)21 Ministry of Agriculture and Forestry v. Ito, 36 Minshu 1679 (Sup. Ct., 1st P.B., Sept. 9, 1982)22 Supra Note 1523 36 Minshu 1679, Ibid

Page | 7

This tendency of the courts has been a great disappointment to both the supporters and opponents

of the Self-Defense Forces, who wish to see a definitive ruling on the crucial issue.24

The only conclusive stand taken by any court was in the Hyakuri Base Case where the Mito

District court going further than the Sapporo High Court stated that self-defense for the purpose

of preventing foreign attack was not constitutionally prohibited, thus making self-defense a legal,

rather than a political, issue:

“In effect, the use of the right of self-defense for the purpose of preventing and

eliminating armed foreign attacks and for organizing and equipping effective and

appropriate defense dispositions in advance does not violate Article 9 of the

Constitution.”25

However, this was merely a district court judgment. Even there too, the legality of SDF was

again left to the Diet. Apparently, the court found no ‘clear unconstitutionality’ in the creation of

SDF and left the dispute of whether the former Defense Agency Establishment Law and the

former SDF Law are unconstitutional as a political question not to be decided by the courts.26

“The decision of whether the SDF exceed the necessary limits termed "war

potential" under Paragraph 2, Article 9 is, in principle, not under the jurisdiction

of the courts of justice unless it is clearly unconstitutional and invalid.” 27

Subsequently, the Tokyo High Court in 1981 and the Supreme Court in June 1989 also avoided

the constitutional question and treated the matter as a purely political dispute. 28 Thus,

consistently the courts in Japan have avoided the big question leading to no authoritative ruling

on the Article 9 jurisprudence.

The government till now interpreted this limitation to mean that the Self-Defense Forces may not

be armed with offensive weapons or dispatched overseas (even on United Nations missions).29

24 Theodore McNelly, American Political Traditions and Japan's Postwar Constitution, World Affairs, Vol. 140, No.1, United States Political Institutions and traditions in World Affairs: Essays in Honor of Franklin L. Burdette (Summer1977), pp. 58-66, 69, World Affairs Institute,, http://www.jstor.org/stable/20671711, 25 43 Minshu 385 (Sup. Ct., 3d P.B., June 20, 1989), cited in Supra Note 1526 Ibid27 Supra Note 3328 Supra No1529 Supra Note 32

Page | 8

Further, the manner of exercising the right of self-defense has been restricted in that every

military facility has been assessed in the light of whether it would constitute the ‘war potential’

or not. The three non-nuclear principles are worth mentioning in this context as they provide for

Japan that: (1) that it will not possess nuclear weapons; (2) that it will not produce nuclear

weapons; and (3) that it will not allow them to be introduced in Japan.30

Over the time there has been gradual acceptance by the government of the need for stronger

military, though it still maintains the position that SDF does not constitute the ‘war potential’

talked about in the second para of Article 9. It merely constitutes the ‘defensive potential’. This

is even though the SDF are increasingly becoming a meaningful element of the U.S.-Japan

Treaty of Mutual Cooperation and Security, which is the United States' most important security

arrangement anywhere in the Pacific and which already rivals in importance the United States'

ties with the North Atlantic Treaty Organization; Japan’s defense budget is third largest in the

world and largest among non-nuclear powers and its military capacity rivals those of the

advanced armies like the Royal Army and U.S. army.31

COLLECTIVE SELF-DEFENSE

The idea of collective self-defense was not perceived initially at the time of discussing the

constitution. In fact as mentioned above, the government, at first, took the view that even

individual defense would be restricted under the article 9. Collective defense was debated when

the Peace Treaty and the Japan-United States Security Agreement were submitted to the Diet for

the ratification. The Peace Treaty admitted Japan’s right of collective self-defense referred to in

Article 51 of the Charter of the United Nations.32

The 1951 Japan-United States Security Agreement states:

The Treaty of Peace recognizes that Japan as a sovereign nation has the right to

enter into collective security arrangements, and further, the Charter of the United

Nations recognizes that all nations possess an inherent right of individual and

collective self-defense.

30 Hitoshi Nasu, Article 9 of the Japanese Constitution: Revisited in the Light of International Law, Journal of Japanese Law, Vol. 9, No. 18, pp. 50-66, 200431 See James E. Auer, Supra Note 15, p. 18432 Supra Note 16

Page | 9

In exercise of these rights, Japan desires, as a provisional arrangement for its

defense, that the United States of America should maintain armed forces of its

own in and about Japan so as to deter armed attack upon Japan.

When the Japan-US Security Agreement was revised in 1960, there were extensive protests

against the agreement in Japan the Diet had heated debates on it. The collective self-defense right

was also discussed in the Diet. The discussion focused on the meaning of collective self-defense

and the scope of it to cover a case of Japan’s response to an attack on a U.S. base in Japan.33

Article 5 of the new Security Agreement provides:

Each Party recognizes that an armed attack against either Party in the territories

under the administration of Japan would be dangerous to its own peace and

safety and declares that it would act to meet the common danger in accordance

with its constitutional provisions and processes.

Any such armed attack and all measures taken as a result thereof shall be

immediately reported to the Security Council of the United Nations in accordance

with the provisions of Article 51 of the Charter. ….

However, defending US bases in case of an attack under the US treaty could well be justified as

exercise individual self-defense as such attack necessarily involve invasion of Japan’s land and

sea. So this revision also did not provide anything substantial in the direction of Japan’s right to

collective self-defense.

Since then, from time to time, the government has added explanations of its interpretation on the

relationship between collective self-defense and the Constitution. For example, the dispatch of

SDF troops abroad, fueling U.S. ships, and use of force against attacks by aggressors on foreign

ships that bring commodities to Japan, have been discussed in the Diet and explained as

permitted by Japan’s right of individual self-defense. Though everything has been explained by

referring to a right of individual self-defense, and although the right of individual self-defense

does not have concrete boundaries, the government has still not changed its basic position: Japan

33 Ibid

Page | 10

owns collective self-defense rights, but cannot act on them because of the constitutional

restriction.34

INTERNATIONAL DEVELOPMENTS AND THE CHANGES IN THE SECURITY

ENVIRONMENT SURROUNDING JAPAN

During the 67 years of its life the Constitution of Japan has witnessed fundamental

transformations in the security environment surrounding Japan. Even now, it is continuing to

evolve, and Japan is confronted by complex and significant national security challenges. There

are little prospects of the realization of the so-called formal "U.N. forces" an ideal proclaimed in

the Charter of the United Nations. 35

Owing to its seriously vulnerable, strategic location 200 to 500 miles across the Sea of Japan

from the Soviet Union, Japan (whose economy is now larger than the USSR's and which will

continue to grow more quickly) cannot, with its limited military power, "go neutral."36

North Korea continues to develop missiles and nuclear weapons. Also noteworthy are the

prominent shifts in global power that have unfolded, which are transforming the situation in the

East China Sea and South China Sea near Japan. This has necessitated serious consideration on

Japan’s security policy towards the maintenance and building of peace in the international

community. Moreover, the Japan-U.S. alliance, the linchpin of stability and prosperity in the

Asia-Pacific region, is faced with an even greater responsibility.37

Japan is now a global power in its own right, being the world's second largest economy. Even

though it is still America's security partner, the rationale for this alliance is wearing thin. Japan is

seeking permanent membership of the Security Council. It is being asked to contribute troops to

the UN peace-keeping operations. As the tensions between the US and Japan grow on trade and

other matters, pressures within Japan for autonomous defense are bound to increase. But Japan's

pacifist constitution will stand in the way of legitimacy for such a role.38

34 Ibid35 S. P. Seth, Japan’s Constitutional Debate, Economic and Political Weekly, Vol. 29, No. 16/17 (Apr. 16-23, 1994), p. 907, http://www.jstor.org/stable/4401089 , 36 Supra Note 1537Second Report of the Advisory Panel on Reconstruction of the Legal Basis for Security, http://www.kantei.go.jp/jp/singi/anzenhosyou2/dai7/houkoku_en.pdf, 38 Supra Note 43

Page | 11

Moreover, even when considering only the quarter-century since the end of the Cold War, the

shift in the global power balance, rapid progress of technological innovation, development and

proliferation of weapons of mass destruction and ballistic missiles, and threats such as

international terrorism have given rise to issues and tensions in the Asia-Pacific region, and there

exists a situation in which any threats, irrespective of where they originate in the world, could

have a direct influence on the security of Japan. Furthermore, in recent years, risks that can

impede the utilization of and free access to the sea, outer space and cyberspace have been

spreading and become more serious. No country can secure its own peace only by itself, and the

international community also expects Japan to play a more proactive role for peace and stability

in the world, in a way commensurate with its national capability.39 It is essential to avoid armed

conflicts before they materialize and prevent threats from reaching Japan by further elevating the

effectiveness of the Japan-United States security arrangements and enhancing the deterrence of

the Japan-United States Alliance for the security of Japan and peace and stability in the Asia-

Pacific region.40

To detail out there are five major factors emphasizing upon the role of Japan and the need for a

revision of the interpretation of Article 9:

MODERNIZED THREATS

Technological innovation and the advancement of globalization, weapons of mass destruction

have lead to changed nature of threats and risks. Weapons are becoming increasingly

sophisticated and smaller. Cross-border threats have increased, raising concerns about the spread

of international terrorism. North Korea, for instance, in defiance of U.N. resolutions, has

conducted its third nuclear test in February 2013 and declared it had made progress in securing a

functioning atomic arsenal. It seems to possess biological and chemical weapons. It has also

deployed ballistic missiles with a range that covers the whole of Japan and is developing ballistic

missiles that would reach the United States.41

Cyber space is yet another vulnerable area. The targets of cyber-attacks have moved beyond the

level of nation states, companies, and individuals, and become increasingly multi-layered and

39 Supra note 540 Ibid41 North Korea condemns U.N., threatens a 'new form' of nuclear test, Reuters, http://www.reuters.com/article/2014/03/30/us-korea-north-nuclear-idUSBREA2T04020140330,

Page | 12

integrated, demanding a unified and prompt response of the international community. The a-

jurisdictional and borderless nature of cyberspace has made its impacts far more complicated and

interdependent. A cyber-attack in any region of the world could influence the peace and security

of Japan immediately. Outer space is another domain which demands the strengthening of further

international cooperation, including the cooperation with the United States, such as in monitoring

in normal circumstances as well as rulemaking, to ensure stable use, because of the expanded

uses for both civilian and military purposes.42

DEEPENED AND EXPANDED JAPAN-U.S. RELATIONSHIP

The Japan-U.S. cooperation has become even more significant on the operational front for

addressing varied situations like ballistic missile attacks and global terrorism leading to

expansion of the bilateral security and defense cooperation. At the Japan-U.S. Security

Consultative Committee held in October 2013, revision of the Guidelines for U.S.-Japan Defense

Cooperation and discussion over strengthening bilateral security and defense cooperation

including role-sharing of concrete bilateral defense cooperation between Japan and the United

States were proposed.43 Japan needs more collaborative efforts to adapt to the changes in security

environment and ensure the security of Japan but it can no longer unilaterally expect US to

provide sanctuary like the post WW II era. Fairer burden sharing is therefore a must.

THE NEW RESOLUTION, JAPAN AND INTERNATIONAL LAW

The issue of national defense and security necessarily involves international aspects in a material

sense, inasmuch as it encompasses the defense against external threats as much as against

internal threats. It entails international dimensions in a legal sense as well, since there exist a

number of international rules of law to regulate military con-ducts undertaken for the purpose of

national defense and security, including notably the Charter of the United Nations (hereinafter

the U.N. Charter).44 Japanese Constitution itself acknowledges the significance of observing

international law in Article 98 (2).

42 Supra Note 4543 Office of the Spokesperson, Washington, DC, Joint Statement of the Security Consultative Committee: Toward a

More Robust Alliance and Greater Shared Responsibilities, U.S. Department of State,

http://www.state.gov/r/pa/prs/ps/2013/10/215070.htm, 44 Supra Note 38; See, Art. 2 (4) of the U.N. Charter

Page | 13

Whatever be the interpretation till now, Article 9 has created a gap vis-à-vis the internationally

realized nuances of self-defense under the general international law as also the UN Charter.

Right of self-defense in international law has seen an expansion in its actual exercise. An

extreme defense action was eminently illustrated when the Israeli fighter-bombers attacked and

destroyed Iraq's Osiraq nuclear reactor near Baghdad only days before the reactor was set to

come online just in anticipation of Iraq possessing nuclear weapons, which would have posed a

huge risk to the Israel’s national security.45 Israel and the U.S. also have justified armed reprisals

against those states from which terrorist activities presumably originated, in the name of the right

of self-defense, even in the absence of an imminent threat of further terrorist attacks. Most

recently, the U.S. has advocated the notion of “pre-emptive self-defense” against remote, not

imminent, security threats. Thus, the right of self-defense of states has in practice been widely

interpreted, with a variety of justifications being sought for it by academics. Even the Japanese

aggression in Manchuria in 1932 was done in the name of right of self-defense which

nonetheless highlights the risks inherent in expanding the concept of right of self-defense.46

Nevertheless, the new interpretation takes the obvious attention to some of the more

controversial aspects of Japan and its international relations – the role of Japan in UNPKOs, its

relation with US under the mutual cooperation treaty and last but not the least – changing

equations in the East-Asian global community.

JAPAN’S INTERNATIONAL SECURITY COMMITMENTS: UN PKOS

a. Legal obligation to participate in UNPKOs

Japan is a member of United Nations. Every member of the United Nations is obliged to comply

with the decisions of the Security Council.47 Also, it is constitutionally obliged under article 98

of its constitution to ‘faithfully observe the treaties’ concluded by it48. However, the way of

implementing the decisions is left to the discretion of the member states in absence of a special

agreement.49 Hence in absence of any special agreement, there is no legal mandate on Japan to

45 D'Amato, Anthony, "Israel's Air Strike upon the Iraqi Nuclear Reactor" (2010), Faculty Working Papers, Paper 76, http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/76; 46 Supra Note 3847 Art. 25, United Nations Charter, 194548 Art. 98, Constitution of Japan, 194649 Art. 45, United Nations Charter, 1945

Page | 14

send its armed troops under U.N. peace operations.50 Strong claims made from abroad during the

U.N. military operation in the Gulf Crisis should be seen as political pressure, in view of Japan’s

large military capacity.51

Domestically speaking, there is no specific prohibition – constitutional, legal or otherwise, in

cases where the dispatch is not for the purpose of using force. Hence, deployment for other

purposes such as peacekeeping becomes permissible under the Constitution.52 However any

Japanese contribution to UN peacekeeping operations requires compliance with Japan’s 1992

Law Concerning Cooperation for UNPKOs. It stipulates five principles for Japan’s engagement,

including the need for a ceasefire to be in place, consent of the parties to the deployment,

maintenance of strict impartiality and the minimal use of weapons.53

b. Japan’s International Participations and Internal Caveats

Japan has deployed over 10,300 personnel to UN peacekeeping missions in places such

Cambodia, Mozambique, the Golan Heights, Timor-Leste and Haiti. As of May 2014, Japan

currently has 271 JSDF personnel deployed to the UN Mission in South Sudan (UNMISS),

making Japan the 45th largest troop contributor to UN peacekeeping.54

Hitherto, the policy of Japan had been to aid in UNPKOs through providing logistics support, an

activity that does not in itself constitute a "use of force". When international peace and security

are threatened and the international community is united in responding to the situation in

accordance with a U.N. Security Council resolution, there exist situations in which it is necessary

for Japan to conduct such support activities to armed forces of other countries carrying out

legitimate "use of force" based on the resolution. Yet, for Japan's support activities, the legal

frameworks limiting the area of such activities to ‘rear area’ or so-called ‘non-combat area’, etc.

have been established in past legislations to ensure that the issue of ‘ittaika with the use of force’

(forming an "integral part" of the use of force) does not arise, in relation to Article 9 of the

50 Supra Note 3851 Yamaguchi Jiro, The Gulf War and the Transformation of Japanese Constitutional Politics, Journal of Japanese Studies, Vol. 18, No. 1 (Winter, 1992), pp. 155-172, http://www.jstor.org/stable/132710, 52 Aurelia George, Japan's Participation in U.N. Peacekeeping Operations: Radical Departure or PredictableResponse?, Asian Survey, University of California Press, Vol. 33, No. 6, Japan: Redefining Its International Role (Jun., 1993), pp.560-575, http://www.jstor.org/stable/2645006, 53 International Peace Cooperation Law, 199254 Lisa Sharland, Reinterpreting Article 9: enhancing Japan’s engagement in UN peacekeeping, The Strategiest, Australian Strategic Policy Institute Blog , http://www.aspistrategist.org.au/reinterpreting-article-9-enhancing-japans-engagement-in-un-peacekeeping/,

Page | 15

Constitution and its activities are not alleged as being against its own constitutional restraints.

Acts that are deemed to be “ittaika” with the use of force by other countries, including activities

conducted under the U.N. or by allied countries, are interpreted as constituting a breach of the

Constitution even if the acts themselves are not the use of force.55

As a result these constitutional restraints were cited as the cause when Japan was criticized for

offering too little, too late by way of its involvement in the Persian Gulf War. As one observer

notes, Germany, which also had constitutional constraints on the use of its armed forces in both

its former state as West Germany and now in its unified form, has revised its Basic Laws

(Constitution) more than 40 times since 1947 in order to participate in both the North Atlantic

Treaty Organization military operations and UNPKO. In contrast, Japan’s Constitution has

survived the controversies and remains intact.56

Foreign deployment remained an undefined grey area, a deficiency in the legal framework

governing SDF activity until the U.N. PKO law filled the gap 1992. The most fundamental

question that arose then was the extent to which SDF participation in U.N. peacekeeping

confirms or departs from the conventions of Japan's international behavior (the Yoshida

Doctrine). The national caveats, as complained by UNO made it difficult for Japan to fulfill core

obligations of peacekeeping mandates, including protecting civilians or ensuring the safety and

security of other personnel that might come under attack. This is particularly relevant in contexts

such as South Sudan, where the security environment has continued to deteriorate since

December 2013.57

Multilateral military cooperation, in particular, revealed contradictions in Japan’s position on the

right of collective self-defense. For example, the dispatch of the SDF to Iraq in support of

reconstruction activities required other militaries to provide perimeter defenses, as the Ground

Self-Defense Force members were unable to use their weapons beyond the narrow purpose of

defending themselves. When Japan decided to send its Maritime Self-Defense Force to

participate in the anti-piracy effort in the Gulf of Aden, ships were initially discouraged from

using force on behalf of other coalition partners.58

55 Supra Note 2456 Supra Note 757 Supra Note 6658 Sheila Smith, Reinterpreting Japan's Constitution, Forbes, http://www.forbes.com/sites/sheilaasmith/2014/07/03/reinterpreting-japans-constitution/,

Page | 16

c. Scope opened up by the new interpretation

Article 9 of the Constitution can now be interpreted as not prohibiting participation in

international peace operations and permitting SDF personnel’s use of weapons to protect

themselves, as well as to come to the aid of geographically distant unit or personnel participating

in the same operations who are under attack (so-called “kaketsuke keigo”) and to remove

obstructive attempts against its missions.59 The new resolution is intended to enable SDF to use

its weapons when operating with others, such as the actual missions it faces in UN PKO and

when operating with the United States to evacuate or transport Japanese nationals from a

contingency.60 JSDF personnel deployed to UN peacekeeping missions will now be in a better

position to defend other personnel, protect civilians and contribute more broadly to the

implementation of UN peacekeeping mission mandates. However, for the time being PM Abe

has been reluctant to accept this and has given assurances that Japan will not join military

operations by coalition forces authorized by the U.N., such as the Gulf War. This runs counter to

the recommendation of his own handpicked panel, which recommended in its defense report in

May that Japan should take part in such operations.61

US-JAPAN MUTUAL CO-OPERATION TREATY

a. Expanded scope of the Treaty

Internationally speaking, the US-Japan treaty was another restraining factor. Despite its character

as a collective defense treaty, the treaty62 stipulates that the obligation of collective self-defense

arises when an armed attack occurs against U.S. or Japan only within the territories under the

administration of Japan. Thus the treaty acknowledges Japan’s right to collective self-defense but

restricts it to the territories administered by Japan only, which is nothing but practically the same

as exercising of right of individual self-defense.

It is unclear whether Article 9 bars the right of collective self-defense or Japan has chosen as a

legal policy to refrain from exercising this right. But the recognition of the stationing of such a

59 Supra Note 4560 Supra Note 7061 Ayako Mie, Abe wins battle to broaden defense policy, The Japan Times, http://www.japantimes.co.jp/news/2014/07/01/national/coalition-agrees-on-scrapping-pacifist-postwar-defense-policy/#.VBZTCvmSzMt, 62 US-Japan Treaty of Mutual Cooperation and Security, 1960

Page | 17

huge army base in its territory was itself seen as an acknowledgement of this right.63 However,

till now the government has refrained from claiming this right explicitly. In wake of this policy

of government, the new resolution to interpret Article 9 as involving the right to aid allies comes

as a clear declaration of the stance taken by the government.

For the maintenance and strengthening of mutual trust between the allies, it is essential that

Japan be able to protect U.S. naval vessels when the latter face danger during joint operations.

The current constitutional interpretation and the provisions of relevant laws explain that the

defense of U.S. vessels is possible by exercising the right of individual self-defense, or by a

“reflex effect” of a Self-Defense Force (SDF) personnel protecting one-self or in “defense of the

SDF’s weapons and other equipment under Article 95 of the SDF Law”. However, under these

interpretations, the SDF can defend U.S. naval vessels only in very exceptional cases and cannot

respond effectively to the actual situations of missile attacks against those vessels. Therefore, the

exercise of the right of collective self-defense needs to be permitted to prepare for such a case.

Japan cannot respond effectively enough to a ballistic missile that might be on its way to the

United States if it continues to maintain the hitherto held concept of the right of self-defense and

current domestic procedures. It would be detrimental to the Japan-U.S. alliance, a basic

prerequisite for Japan’s security, if Japan did not shoot down a ballistic missile that might be on

its way to the United States even though Japan was capable of doing so; thus such a situation

must absolutely be avoided. As this issue cannot be solved by the current approach that relies on

exercising the right of individual self-defense or law enforcement powers, this also needs to be

dealt with by exercising the right of collective self-defense.64

b. The Controversial Aspects

Theoretically the perceived expansion of right of ‘self-defense’ may well be within the contours

of Article 9, that is as long as it is exercised for the purpose of defense of either nations, yet a

real legal issue may arise on the scope of collective self-defense extending to areas surrounding

Japan as set in the Mutual guidelines set in 1997.65 Although the guidelines acknowledge the

63 T. Matsuda, The Japan-US Security Treaty and Japanese Laws, Japanese Annual of International Law 39 (1996) 85-87; cited in Supra Note 38, p. 5664 Supra Note 4565 Japan-US Joint Statement on Review of Defense Cooperation Guidelines, 1997, International Legal Material 36 (1997) 1621

Page | 18

limitations of Article 966, they give ample scope for excessive use of Japan’s military forces

against the constitutional limit.

GOJ emphasizes upon the nature of the ‘rear area support’ to be provided to justify cooperation

with US in areas surrounding Japan. It is argued that assistance in a non-combat nature at a

distance away from a battlefield would not constitute the use of armed force as contrary to

Article 9.67 However, the elements contained in the use of armed force within the meaning of

Article 2 (4) of the U.N. Charter are in fact not limited to actual exchange of shots. For instance,

the U.N. General Assembly’s Resolution on the Definition of Aggression lists, in Art. 3 (f) as an

act of aggression, “[t]he action of a State in allowing its territory, which it has placed at the

disposal of another State, to be used by that other State for perpetrating an act of aggression

against a third State”.68 An extended exercise of self-defense may go to the roots of Article 9 in

case of a Chinese attack on Taiwan or an attack short of invasion which may well qualify as

situation in surrounding areas of Japan.

The most controversial and obvious example of the over-expansion of the right of self-defense is

the dispatch of three SDF warships to Diego Garcia in Indian Ocean to support US led military

operations in Afghanistan. Apparently the step was taken as Japan’s ‘own initiative towards the

eradication of terrorism, in cooperation with the United States’69 and in absence of any specific

authorization by the U.N. Security Council of the use of armed force. Thus the only possible

explanation to it can be an exercise of collective self-defense if not an act of aggression. Also, it

seems more likely that this step was taken as a response to the U.S. call for cooperation outside

the treaty framework. It is obvious in this respect that this action dramatically deviated from

Japan’s policy hitherto, formalistic or substantive, on the exercise of the right of collective self-

defense. This act could well be argued to be an unconstitutional one in absence of any

amendment in Article 9 to reflect the liberal interpretation justifying fully the exercise of the

right of collective self-defense.

66 Section II (2), Japan-US Joint Statement on Review of Defense Cooperation Guidelines, 1997, International Legal Material 36 (1997) 162167 Supra Note 3868 U.N. Doc. A/Res/3314 (XXIX) (14 December 1974)69 Junichiro Koizumi, Prime Minister of Japan, Opening Statement at Press Conference (19 September 2001), cited in: E.J.L. Southgate, Comment: From Japan to Afghanistan: The U.S.-Japan Joint Security Relationship, the War on Terror, and the Ignominious End of the Pacifist State?, University of Pennsylvania Law Review 151 (2003) 1620, http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3221&context=penn_law_review

Page | 19

Nevertheless, by adopting the new liberal interpretation, GOJ has authorized itself to do the same

and similar in future without amending constitution.

EFFECTS ON THE EAST ASIAN PEACE AND INTERNATIONAL RELATIONS

Although it seems the purpose of the reinterpretation was to finally provide Japan with the

inherent right to collective self-defense as enshrined in Article 51 of the UN Charter. The effect

of reinterpretation is much more limited. Unlike Article 51 which provides nations with the

inherent right to come to the aid of allies even if the states themselves are not directly threatened,

the reinterpretation of Article 9 only allows Tokyo to come to the defense of allies if it can be

tied directly to its own defense.

According to the new conditions, Japan can come to the aid of a friendly nation if70: -

The attack on that country poses a clear danger to Japan’s survival or could

fundamentally overturn Japanese citizens’ constitutional rights to life, liberty

and the pursuit of happiness.

“There is no other way of repelling the attack and protecting Japan and its

citizens.

“The use of force is limited to the minimum necessary.

The final draft of the Cabinet document said Japan could intervene militarily “when an attack on

a country that ‘has close relations’ with Japan ‘poses a clear danger of threatening our country’s

existence and fundamentally overthrowing our people’s lives, freedom and right to pursue

happiness.’”

This may pose a controversy in case of Chinese attack on Taiwan. No country in Northeast Asia

has as close and friendly of relations with Japan as Taipei. China conquering and occupying

Taiwan would present about as clear a danger to Japan’s survival as any event short of an attack

on Japan itself. The Senkaku Islands are roughly half the distance from Taiwan as they are from

Mainland China, which would allow Beijing to bring far more force to bear in an attack on them.

It would also allow Beijing to approach the islands from roughly two different directions.

Furthermore, Taiwan’s strategic location would greatly enhance China’s ability to interdict

maritime shipping to and from Japan. Thus, China’s occupation would be a threat to both

70 Supra Note 73

Page | 20

Japan’s territorial integrity as well as the “lives, freedom and right to pursue happiness” of the

Japanese people. If the PLA was in the midst of an invasion of Taiwan, it’s hard to imagine any

other way of repelling the attack then through intervening in support of Taiwan. Also, if America

intervened in support of Taiwan, Japan could, in exercise of collective self-defense when a U.S.

ship came under attack on the high seas may join the fight.71 However, there is a strange

international law flaw to this argument. Under black-letter international law, Japan cannot use

military force in Taiwan absent China’s consent, even if the Taiwan government requests its

assistance. That’s because the Article 51 of UN Charter only authorizes an act of “collective

self-defense if an armed attack occurs against a Member of the United Nations.” Taiwan is not a

member of the United Nations, and to make matters worse from Taiwan’s perspective, Japan

recognizes the government in Beijing as the rightful government of China, and Japan further

recognizes that Taiwan is part of China.72

So unless Japan is able to plausibly claim that an attack on Taiwan triggers Japan’s own inherent

self-defense right, and unless a Chinese invasion could be said to justify humanitarian

intervention, Japan would violate the U.N. Charter if it used military force in a way that violated

the territorial integrity of another UN member (China).73

This is but one instance. Any similar disturbing act of aggression or anything short of it in the

North East Asian Region would require Japan to take some stance. In that case, it may by virtue

of the new interpretation come forward to the aid of the ally provided it satisfies the three caveats

attached and discussed above.

CONCLUSION

Needless to say, absolute non-armament is a utopian ideal and a blanket ban on the maintenance

of any armed force even for the purpose of national self-defense, while acknowledging its

military and tactical consequences, would oblige the Japanese people to fall into the same

absurdity as absolute and blind trust in the ‘justice and faith of the peace-loving peoples of the

71 Zachary Keck, Taiwan and Japan’s Collective Self-Defense, The Diplomat, http://thediplomat.com/2014/07/taiwan-and-japans-collective-self-defense/#disqus_thread, 72 Julian Ku, Why Japan Would Violate International Law If It Militarily Intervened to Defend Taiwan (But Why Japan Should Do So Anyway)?, Opinio Juris, http://opiniojuris.org/2014/07/10/japan-violate-international-law-militarily-intervened-defend-taiwan-anyway/, 73 Ibid

Page | 21

world’74 would lead to. This would, contrary to the principle of effective interpretation, rather

nullify the purposes and spirit of Article 9 as well as the preamble of the Japanese Constitution

which recognizes the ‘right of all people of the world to live in peace, free from fear and want’.

‘The principle of effective interpretation would thus make it necessary to possess some level of

military strength by virtue of the right to live in peace as embodied in the preamble and Article 9

of the Japanese Constitution.’75

So far the GOJ has been getting around Article 9-by legal obfuscation or simply by pretending

that it did not exist. But with Japan poised to play an increasingly autonomous global role, this

kind of sophistry and obfuscation has its limit. Japan has two choices in regard to Article 9: (i) to

ignore or reinterpret it with' a view to overcoming its constraints; or (ii) to amend it under valid

constitutional procedures. Therefore, SDF must be given explicit approval by the constitution to

give it legitimacy. However, this is easier said than done, because the amendment to the

constitution requires two-thirds majority in both houses of the Diet (parliament) and ratification

by a majority vote of the people. This is a painfully long haul, as it requires forging a broad-

based national consensus, as most Japanese abhor military power. Therefore, the most feasible

and realistic option would be of trying to pass an amendment is to reinterpret Article 9 in the new

circumstances.76 This is what the government of Japan has been doing all these years. But this

option will always suffer from doubtful legality. Clearly, the language of the article does not lend

itself to any interpretation other than pacifism. The constitutional anomaly will thus continue to

exist. Besides, once Japan started down that road of reinterpretation, it would find itself forever

redefining what constitutes a dire threat to its interests and reinterpreting Article 9 to meet each

change in circumstances. This would deal a fatal blow to the notion that Japan is a law-abiding

nation, and once respect for the law goes, the other ideals [democracy, human rights, etc] would

go with it. 77

Amendment of Article 9 is therefore the most viable and stable option. It is high time for Japan

to leave the shortcuts that can subvert the entire system and go for the clear and decisive step

once and for all.

74 Preamble, Constitution of Japan75 Supra Note 3876 Supra Note 4377 Ibid

Page | 22

Page | 23

Page | 24