The Abe Cabinet’s Interpretation of Article 9
September 03, 2014
Prime Minister Shinzo Abe’s efforts to expand the scope of self-defense activities permitted by the Japanese Constitution have met with resistance from some members of his own coalition. Tokyo Foundation President and Senior Fellow Masahiro Akiyama discusses the July cabinet decision to revise the interpretation of Article 9 and the hurdles Japan must clear to expand the role of the Self-Defense Forces to make a proactive contribution to peace.
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One of the most hotly debated issues in Japanese politics today—and in Japanese society as a whole—is Japan’s right to engage in collective self-defense—the use of military force in defense of a friend or ally. Why is there so much fuss over an inherent right that all nations are recognized as having under the United Nations Charter? The answer lies in Japan’s “pacifist” Constitution, promulgated under Allied Occupation following World War II. At issue specifically is Article 9, which reads as follows in the official English version:
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.
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.
On the face of it, this would appear to prohibit the very capacity to wage a military defense, whether collectively or individually. Yet in fact Japan maintains sophisticated land, sea, and air capability in the form of the Self-Defense Forces. Why, one might ask, are the SDF even legal under Japan’s Constitution?
Practical Limits of Pacifism
In response to questions regarding the legitimacy of the SDF, legal and other experts note that the text states that land, sea, and air forces will never be maintained for the purposes stated in the preceding paragraph—that is, as war potential or a means of settling international disputes. The government has thus taken the view that the Constitution does not forbid self-defense in the event of an armed attack on the nation, noting that it would be unreasonable to interpret Article 9 as denying Japan the wherewithal to defend its own people from threats to their peace, particularly in the light of the Preamble and Article 13, which proclaim the “right to live in peace, liberty and the pursuit of happiness.”On this basis, the government has stood by the fundamental position that Japan has the constitutional right to maintain armed forces, but only the minimum necessary for self-defense. In addition, it has followed a highly restrictive interpretation of “the minimum necessary for self-defense” that permitted the use of force only if the nation was under imminent “armed attack”—meaning an organized and sustained attack by the military forces of a foreign nation.
Over the years, the government has sought to clarify the limits on Japan’s defense capabilities and actions under Article 9 through statements in the Diet and legal opinions drawn up by the Cabinet Legislation Bureau. In terms of weapons capability, the “minimum necessary for self-defense” ruled out predominantly offensive systems, such as long-range missiles and strategic bombers and assault aircraft carriers. In terms of operations, the overseas deployment of SDF troops has been prohibited, the SDF’s use of weapons strictly limited, and great care taken to avoid any form of security cooperation that could give the appearance of integral involvement in the use of force by another country.
In addition, the government’s interpretation of Article 9 had been that although engaging in collective self-defense was prohibited, Japan nonetheless had an inherent right to do so. Succeeding cabinets have adhered to this admittedly rather abstruse argument, originally formulated by the Cabinet Legislation Bureau.
Seeds of Change
Meanwhile, the regional and global security environment was changing dramatically, fueling concerns that Japan was losing the ability respond effectively to the exigencies of regional and global security under the existing interpretation of Article 9.
Prime Minister Abe took preliminary steps during his first term in office toward the lifting of the ban on collective self-defense, along with other constraints on defense operations that he considered outdated. In 2007, Abe formed the Advisory Panel on Reconstruction of the Legal Basis for Security from a group of like-minded experts. The panel was charged with deliberating the legitimacy of military action in four basic hypothetical cases—scenarios that in themselves shed considerable light on the evolving international situation. They were (1) defense of US naval vessels on the high seas; (2) interception of ballistic missiles that might be heading toward the United States; (3) use of weapons in international peacekeeping operations; and (4) logistic support for the operations of other countries in international peacekeeping operations by the United Nations, etc.
In its report, issued in June 2008, the panel concluded that the government should revise its interpretation of the Constitution to permit Japan to exercise the right of collective self-defense (the first and second cases above) and participate in peace keeping operations categorized as collective security measures under UN auspices (third and fourth cases) and recommended that it introduce new legislation to permit action in all four cases. By that time, however, Abe had stepped down for reasons of health. His successor, Yasuo Fukuda, chose not to act on the recommendations, and the issue lay dormant until Abe returned to power in December 2012.
Resuming the Crusade
In February 2013, two months after his return, Abe reconvened the Advisory Panel on Reconstruction of the Legal Basis for Security.
The panel’s final report, released in May 2014, stresses the dramatic and ongoing changes in defense technology and Japan’s security environment. It reiterates the conclusion of the 2008 report that it has “become difficult to respond appropriately to important issues that arise under the contemporary security environment” under the existing interpretation of Article 9.
However, the latest recommendations go beyond the four cases set forth in the 2008 report, extending to situations involving the protection of Japanese nationals overseas, cooperation in international policing, and response to security incidents or situations that fall short of a full-scale armed attack.
On July 1, 2014, the Abe government took the next step by announcing and explaining its intent to pursue executive and legislative action based on the panel’s recommendations in a resolution titled “Cabinet Decision on Development of Seamless Security Legislation to Ensure Japan’s Survival and Protect its People.” The title makes no reference to “collective self-defense” per se, nor does the text itself highlight the concept. One reason is that the decision pertains more broadly to the optimization of SDF operations, but another is that the concept of collective self-defense has become a lightning rod for opposition, not only among the general public but also within the New Komeito Party, the junior partner in the coalition led by Abe’s Liberal Democratic Party. As we shall see, the cabinet’s new interpretation neatly skirts the issue of the legality of collective self-defense under Article 9.
The July 2014 cabinet decision sets forth the government’s reinterpretation of Article 9 in relation to a variety of hypothetical security situations, broadly grouped under the headings of (1) response to an infringement that does not amount to an armed attack, (2) further contributions to the peace and stability of the international community, and (3) measures for self-defense permitted under Article 9 of the Constitution.
Under the first heading, “response to an infringement that does not amount to an armed attack,” the government stresses the need to ensure an adequate response and seamless cooperation between responsible agencies (Coast Guard, police, SDF) in the event of “gray zone” situations that threaten Japan’s territorial integrity but fall short of an act of war.
As an example, it cites a scenario in which armed fishing boats attempt to occupy a remote island of Japan—a reference to recent activities around the Senkaku Islands. The cabinet calls for joint exercises to prepare for such situations, as well as reforms to streamline procedures for the issuance of a maritime-security-operation or defense-mobilization order involving SDF units to enable a swift and seamless response in coordination with the Japan Coast Guard and other responsible police forces.
With regard to the protection of US naval vessels, the government intends to draw up legislation that would allow the “very passive and limited” use of military weapons by the SDF to defend US military units in the event that they should come under attack—in a situation that threatens to escalate into an armed conflict—while engaged in activities that contribute to the defense of Japan, including joint exercises.
The second heading is “use of weapons associated with international peace cooperation activities.” In this section, the government stresses the need to facilitate more active and unhindered SDF support for UN-sanctioned peacekeeping operations as part of Japan’s “proactive contribution to peace.” It points out that situations arise in which Japan is called on to provide support for non-Japanese armed forces involved in the legitimate use of force in a UN PKO.
Whereas previous cabinets have limited Japan’s role to “rear area support” to avoid any appearance of “integral” involvement in the use of force, the current government takes the view that such support can legitimately be provided anywhere other than an active combat zone. The decision also substantially expands the SDF’s right to use weapons during peacekeeping operations. Under the cabinet’s new interpretation, SDF personnel may take on a more active role in PKOs by using weapons when responding to requests for emergency support from units that have come under attack (situations referred to as kaketsuke keigo) or “in defense of the mandate,” in the language of UN peacekeeping.
The decision also sanctions the use of weapons by the SDF as needed to rescue Japanese nationals overseas.
Skirting Collective Self-Defense
The third section is titled Measures for Self-Defense Permitted under Article 9 of the Constitution. It begins by summing up the longstanding interpretation of Article 9 as permitting the use of the minimum necessary force to deal with “imminent unlawful situations” that fundamentally violate “the people’s right to life, liberty, and the pursuit of happiness.” While embracing this logic, it makes the case for including within such situations certain armed attacks directed against “a foreign country that is in a close relationship with Japan,” rather than limiting them to direct armed attacks against Japan, as previous administrations have done.
The decision notes that such actions may fall under the definition of “collective self-defense” as defined by international law, and that international law sanctions such action. But it sidesteps this issue by avoiding any explicit reinterpretation of Article 9 to include collective self-defense. Instead, it expands the scope of actions that qualify as self-defense.
This may seem like an arcane distinction, but it can make a real difference in practical terms. While the right of collective self-defense is generally interpreted to mean the right to use force against any country that attacks an ally, the July 2014 cabinet decision clarifies that such actions are permitted only when they are taken as measures for self-defense which are inevitable for ensuring Japan’s own survival and protecting its people—in other words for defending Japan. In this way, the Abe administration has made the defense of an ally consistent with the longstanding government interpretation of the Constitution.
Wanted: A Framework for Peacetime Defense
The recent cabinet decision, while touching on the issue of collective self-defense, is devoted predominantly to other issues, including the scope of SDF participation in activities categorized as UN collective security measures, secondary actions to collective self-defense, participation in other overseas operations, and peacetime measures. Nonetheless, most of the public debate remains focused on “collective self-defense” (shudanteki jieiken) as a kind of catch-all for SDF activities that fall outside the narrow limits imposed by previous governments.
But the truth is that Japan’s right of collective self-defense discussed above—just like its right of individual self-defense—is severely limited and permitted only in the event of an armed attack on the nation or on another nation with which Japan has close ties. Under Japanese law, then, actions in self-defense may be taken only after the issuance of a defense-mobilization order in response to an armed attack under the provisions of the Self-Defense Forces Law. The security problem we are facing now, however, is a difficulty occurring during peacetime.
In the Tokyo Foundation policy proposal “Maritime Security and the Right of Self-Defense in Peacetime,” issued in November 2013, we stress the need to create an institutional framework for self-defense in “gray zone” situations during peacetime—before a situation escalates into an armed conflict. We have called on the government to identify issues that need to be cleared and establish a clear decision-making structure. This, we think, requires a more flexible interpretation of an “imminent armed attack.”
The Abe government is to be commended for identifying the need for a seamless response to violations or infringements that “do not amount to armed attacks.” However, in its discussion of security in surrounding areas, including remote islands, it fails to consider the essential issue of self-defense in peacetime. The protection of remote islands—perhaps the most pressing security issue facing Japan today—is not a law enforcement issue but one of national defense. I strongly urge the government to heed the Tokyo Foundation recommendation as it turns to the task of drawing up legislation for a new security era.
Read the original Japanese article here.