Landmark Shift in Japan S Defense Policy: War, Peace and Self Defense

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

c. TABLE OF CONTENTS

d. 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.

e. 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’.

1 Art. 51, Charter of the United Nations

2 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/iss4/1 Page | 1 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 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

3 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,

5 Ministry of Foreign Affairs, Cabinet Decision on Development of Seamless Security Legislation to Ensure 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.2001.41.2.310

8 Ibid Page | 2 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 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

f. 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

9 Supra note 3

10 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,

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 3

13 Supra Note 16 Page | 3 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 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

14 Supra note 15

15 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.

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,

17Ibid Page | 4 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 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

18 Seiichi Omura, Director-General of the Defense Agency, Budget Committee of the House of Representatives (December 22, 1954), cited in Ibid

19 Supra Note 21

20 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) Page | 5 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. 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

23 36 Minshu 1679, Ibid

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 15

26 Ibid

27 Supra Note 33

28 Supra No15 Page | 6 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 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:

29 Supra Note 32

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, 2004

31 See James E. Auer, Supra Note 15, p. 184

32 Supra Note 16 Page | 7 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.

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

33 Ibid Page | 8 concrete boundaries, the government has still not changed its basic position: Japan owns collective self-defense rights, but cannot act on them because of the constitutional restriction.34

g. 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 Ibid

35 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 15

37 Second 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 | 9 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 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

39 Supra note 5

40 Ibid

41 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 | 10 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.

h. 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).

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

42 Supra Note 45

43 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 | 11 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

i. 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 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

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 38

47 Art. 25, United Nations Charter, 1945

48 Art. 98, Constitution of Japan, 1946

49 Art. 45, United Nations Charter, 1945

50 Supra Note 38

51 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, Page | 12 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

j. 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 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

52 Aurelia George, Japan's Participation in U.N. Peacekeeping Operations: Radical Departure or Predictable Response?, 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, 1992

54 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/,

55 Supra Note 24 Page | 13 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

k. 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

56 Supra Note 7

57 Supra Note 66

58 Sheila Smith, Reinterpreting Japan's Constitution, Forbes, http://www.forbes.com/sites/sheilaasmith/2014/07/03/reinterpreting-japans-constitution/,

59 Supra Note 45 Page | 14 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 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

60 Supra Note 70

61 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

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. 56 Page | 15 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

l. 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 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,

64 Supra Note 45

65 Japan-US Joint Statement on Review of Defense Cooperation Guidelines, 1997, International Legal Material 36 (1997) 1621

66 Section II (2), Japan-US Joint Statement on Review of Defense Cooperation Guidelines, 1997, International Legal Material 36 (1997) 1621

67 Supra Note 38 Page | 16 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.

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: -

68 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

70 Supra Note 73 Page | 17  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 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

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, Page | 18 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.

m. 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 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

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

74 Preamble, Constitution of Japan

75 Supra Note 38 Page | 19 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.

76 Supra Note 43

77 Ibid Page | 20 Page | 21