Abe and effective head of the Kondankai, Kitaoka Shinichi

Abe and effective head of the Kondankai, Kitaoka Shinichi

The Advisory Panel on the Reconstruction of the Legal Basis for Security (「安全保障の法的基盤の再構築に関する懇談会」; hereafter the “Panel” or kondankai) will deliver their report within the next few days. This is after putting it off for three months out of consideration for the difficulties Abe was having with convincing the New Komeito to roll over on their 50 year opposition to Japan exercising its collective self-defense rights (who would have thought!).* Various details of the report have been coming out from various sources associated with the government and the Panel.

The report will, in justifying the exercise of some elements of collective self-defense, make reference to the legal language of the 1959 Sunagawa case. This case was formerly most notable for essentially being the first concrete affirmation by the Supreme Court of Japan that Japan did indeed posses the right to self-defense and to maintain armed forces for this reason. It also effectively established that the presence of US bases in Japan was not a breach of the constitution.

In terms of what the Panel will read into the case in terms of Japan’s ability to exercise collective self-defense rights, the Panel will argue that elements of collective self-defense are contained within what the Court termed “the necessary self-defense measures that can be taken to ensure the existence of the nation” 「(国の)存立を全うするために必要な自衛のための措置をとりうる」.

The Panel will argue this will require an explicit reinterpretation of the Cabinet Legislative Bureau’s prohibition on Japan exercising its right to collective self-defense. Six specific conditions should be attached to any exercise of collective self-defense under the reinterpretation.

Three of these conditions relate to the situations in which CSD can be exercised. These situations are:

  1. If a nation that Japan has close relations with is attacked;
  2. If not reacting to the situation results in a significant impact on Japan’s security; and
  3. If there is a request from the country being attacked to exercise Japan’s right to collective self-defense.

Three further “process” conditions will also need to be met before Japan can engage in any use of force on the basis of collective self-defense, or, more likely, “integration with the use of force” (武力行使との一体化). These are:

  1. A judgment by the Prime Minister that there is a general threat to Japan’s security;
  2. Permission from the Diet is attained (including, one assumes, pre-approval in cases such as protecting other nations’ militaries during joint operations on the high seas etc); and
  3. That Japan receives permission from any countries through which Japan’s forces may need to traverse in supporting the country attacked.

The committee will reportedly enumerate nine situations or examples (not all strictly related to the use of force as currently understood) where the Japanese government should focus its attention in order to strengthen Japan’s security in an era of increasing tensions in East Asia.

Examples will include the defense of US military vessels in regional contingencies where Japan failing to offer support is liable to result in Japan being affected by the fallout from the conflict. Another contingency where Japan may take on a greater role is the protection of sea lanes, in particular through minesweeping activities in combat zones during hostilities if necessary. The Panel will argue that a failure to address sea lane security will greatly affect the existence of the nation and citizen well being. Changes to at least 18 pieces of legislation will be required to meet the recommendations of the Panel. In terms of directly protecting the US mainland if it is attacked, it seems this will be limited to ballistic missile defense.

The language of the kondankai also makes use of similar language to the shuuhen-jitaiho (周辺事態法 or laws relating to security in areas and situations surrounding Japan) that were promulgated in 1999 to implement most elements of the 1997 Revised US-Japan Defense Guidelines. The original jitaiho (somewhat unconvincingly IMHO),** and the special measures laws that were derived from them by the Koizumi administration during the Bush administration, tried to make a distinction between the (what was understood to be unconstitutional) integration with the use of force on the one hand, and non-combat operations on the other, by restricting Japan’s assistance to the provisioning of fuel and water, transport activities (but not weapons and ammunition) and other non-combat operations. The jitaiho essentially allowed coordinated, perhaps even “collective” non-combat military activities to take place outside of combat zones if the US was engaged in a  regional conflict or contingency, and, critically, if not dealing with the contingency or conflict would have a significant impact upon Japan’s security (放置すれば日本の安全保障に重大な影響を及ぼす事).  In this case, the kondankai  refers to situations where such CSD rights could be invoked as those that “if not dealt with, would likely lead to Japan being involved in war” (「放置すればわが国に戦禍が及びかねない状況」lit. A situation where, if left as it is, our country is likely to be damaged through war).

In this case, the key difference is that the SDF would be allowed to operate within a combat zone overseas, and if necessary (although not necessarily proactively), would use force to protect itself, and protect and support militaries of countries with which Japan is allied to or aligned to in a given contingency.

The government also anticipates the need to adjust the first of the minimum requirements for Japan engaging in the use of force (including for self-defense). Currently these are:

(i) there is an imminent and illegitimate act of aggression against Japan (「我が国への急迫不正の侵害があること」)

(ii) there is no appropriate means to repel this aggression other than the use of the right of self-defense (「これを排除するために他の適当な手段がないこと」); and

(iii) the use of armed strength is confined to the minimum level necessary for repelling (「必要最小限度の実力行使にとどまるべきこと」)

The new first requirement will probably read something like:

(i) there is an imminent and illegitimate act of aggression against Japan, or, due to an attack on another country, our nation’s existence, which is indispensable to protect the life and rights of Japan’s citizens, is threatened.

我が国への急迫不正の侵害があること」又は「他国に対する武力攻撃が発生し、これにより国民の生命や権利を守るために不可欠な我が国の存立が脅かされること」(Yes, inelegant, slightly tautological phrasing).

In this sense, some SDF activities and acts, considered to be within the ambit of collective self-defense, will now fall within the ambit of the  ”minimum necessary” defense measures that Japan can take to defend itself and its well being (and to which Japan is constitutionally limited).

The kondankai will also argue that some “collective security” actions, that is, actions taken in support of  multinational or UN forces acting on the basis of a United Nations Security Council resolution (and NOT collective self-defense), do not equate to the use of force and should be allowed. Examples will include the transportation of troops and possibly materiel, medical activities and other non-combat support or rear area activities such as the provision of water and fuel to multinational forces. Like for some collective self-defense activities, this could result in the SDF operating inside or very close to a combat zone overseas and far from Japan, even while providing non-lethal or rear area support. There will also be mention of the need to allow the SDF to engage in activities specifically in support of the protection, and if necessary, the rescue of other countries’ troops or of civilians within the context of a UNPKO mission (駆けつけ警護). This could well require the use of weapons, as could the rescue of Japanese citizens from the territory of other countries, which will also be raised as an issue for consideration.

Finally, the kondankai  will propose that the government reduce the restrictions on the SDF to deal with so-called “grey zone” activities, which are aggressive acts against Japan that jeopardize its security but fall short of the general definition of an “armed attack,” defined as an organised or planned use of force against Japan. This could include  submarines illegally coming into Japanese territory, or paramilitary attacks/invasions/incursions into Japanese territory (Senkaku Islands being the obvious concern here).

I have not attempted to provide an analysis of the implications for Japan’s security policy and evolution, nor have I commented upon the likelihood of the kondaikai‘s recommendations being accepted by the government coalition and making their way into a collective cabinet decision and, eventually, legislation. As a decision to move forward on the more controversial aspects of the report, namely those relating to collective self-defense and collective security, will be postponed until Autumn this year, I have a few more months yet. For the time being, the LDP-Komeito coalition will focus on the “grey zone” contingencies that they both agree on and were first raised as issues during the DPJ administrations.

EDIT: See here for analysis of the report which came out on the 15th subsequent to this post.

Notes

* There is an argument to be made that the conflict between the Komeito and the LDP is more about symbolism. On the one hand, Abe and his supporters, given the historical resonance dating back to PM Kishi Nobusuke being forced to his chagrin to repeat in the Diet that collective self-defense was indeed prohibited at around the time of the signing of the Mutual Security Treaty (2.0), are very determined to have the words “collective self-defense written in any new interpretation, even if it is only a partial legitimation of “collective” defense. The New Komeito, to the contrary, are determined to fit any new changes within the ambit of “individual” self-defense given the party’s historical opposition to CSD. While there are still some significant differences between the LDP and the Komeito on just how far the legitimate use of force should extend for Japan, speaking to Komeito legislators reveals very little distance between the Komeito and more cautious LDP supporters of allowing elements of CSD to be exercised.

**PM Obuchi in 1999 argued in the House of Councillors that  whether something could be considered integration with the use of force would be based on a comprehensive consideration of the concrete facts of any individual situation

The Cabinet Legislative Bureau, in commenting on the original Diet bills submitted in 1997, stated that its opinion whether a given act would be regarded as the integration with the use of force would be based on the comprehensive evaluation of four general considerations in each individual case. These were: whether combat operations were taking place, the geographic relationship to where the concerned operations were taking place, the degree of the closeness of the relationship with the nation engaged in the use of force, and the current state of operations of the country with which Japan is seeking to participate.

In essence, the argument was that a line could be drawn between the engagement in direct hostilities (戦闘行為), defined in the 2003 Anti-Terrorism Special Measures Law as actions that are part of operations to kill or injure people and/or damage property undertaken during an international conflict, and actions involving the transport and supply of materiel outside of a combat zone.

GD Star Rating
loading...

Related posts:


Corey Wallace joined Japan Security Watch in 2011. He writes on Japan security-related topics, focusing on issues and stories that may not find their way into the English language media. He also hosts the blog Sigma1 where he writes on Japanese domestic politics and broader issues in international relations. Prior to taking up a PhD Corey was a participant on the JET program (2004-2007) and on returning to New Zealand he worked at the Ministry of Research, Science and Technology from 2007-2010 as a policy adviser. Corey lectures two courses at the University of Auckland. One is on the international relations of the Asia-Pacific, which contains a significant focus on East Asia security issues. The other is a course on China's international relations. His primary academic interests before his current Japan focus were science and technology politics/policy, issues of ethnic identity, and Chinese modern history and politics. He carries over his interest in issues of identity and history into his PhD where he is looking at generationally situated concepts of national identity and their impact on foreign policy ideas in Japan.
Corey Wallace has 51 post(s) on Japan Security Watch