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Seiron Column: Raising the exercise of the right to collective self-defense to a realistic level

  • November 21, 2016
  • , Sankei , p. 7
  • JMH Translation

By James E. Auer, professor emeritus at Vanderbilt University


Interpretation of Article 9 has changed over the years


It has been over two years since Shinzo Abe’s cabinet decided to authorize the exercise of the right to collective self-defense in limited, specific situations. Recently, the Cabinet Legislation Bureau released a book outlining the case for Article 9 of the Constitution of Japan. The book, Q&A related to the Constitution of Japan: Constitutional interpretation of Article 9, details changes in the Bureau’s views on what is permitted and prohibited under Article 9.


The draft Constitution penned by the United States forbade all use of armed force, including acts of self-defense. Hitoshi Ashida revised Article 9 of the draft Constitution to retain the legal possibility for Japan to exercise the right to self-defense (seeking a flexible interpretation of the Constitution).


What many critics in Japan and overseas completely forget is that the Ashida-revised Article 9 in the Constitution of Japan, which was approved by the National Diet and came into force in 1947, forbids the exercise of aggressive military force only in the case that it is used for the purpose of resolving international conflicts.


In 1959, the Supreme Court ruled (in the case on the Sunagawa incident) that Article 9 does not prohibit the right to self-defense.


In 1972, however, the cabinet of Eisaku Sato accepted the Cabinet Legislation Bureau’s decision that Japan has the right to collective self-defense as a sovereign state but cannot exercise it. Although the government has the right to make the political decision to not exercise the right to collective self-defense, the exercise of the right itself was not prohibited by law.


The relative power of the United States is uncertain


The constitutionality of the Self-Defense Forces was the focus of debate in 1954 when the Self-Defense Forces Act was passed. At that time, the Japanese government distinguished “self-defense capabilities” from “war potential,” saying they were different. Stating that the purpose of the Self-Defense Forces Act is to develop the “minimum necessary level” of self-defense capabilities, the government limited their scale. The move can be considered a political decision taken from a utilitarian standpoint even if the capabilities would fall below the legal limit in every way.


The key issue that has not been debated to date is the fact that Japan’s self-defense capabilities were inadequate to protect the nation during the period from the 1950s through the Cold War. In other words, the capabilities were not up to the “minimum necessary level.” Japan’s security has depended on the alliance relationship with the United States under the Japan-U.S. Security Treaty of 1960, which states: “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.” I think that Prime Minister Abe fully understands that Japan’s level of self-defense capabilities have been inadequate to date.


Japan’s self-defense capabilities have improved markedly since the 1980s. Even in the post-Cold War era, however, they still are not up to the minimum necessary level in light of the threats posed by North Korea and China today where North Korea is thought to possess a certain level of capabilities in nuclear weapons and conventional missiles and China is expanding its high-performance weapons in both the East China Sea and the South China Sea and demonstrating a more aggressive stance in its words and actions.


The absolute level of threat may not be as great as during the Cold War, but in those days no one expected Japan itself would deter the former Soviet Union.


Today, however, Japan faces greater threats, and many Japanese feel that America’s absolute power in the Pacific is not as certain as it was in the past. For this very reason, in 2014 the Abe administration revised the 1972 view of the Cabinet Legislation Bureau.


Some Japanese think that President-elect Donald Trump will demand that Japan’s sympathy budget (omoiyari yosan) be increased. America’s self-defense capabilities have been left to weaken to a dangerous level, and Trump actually probably intends to strengthen them with an eye on China, which is beefing up its military strength.


Just as was the case with Prime Minister Yasuhiro Nakasone and U.S. President Ronald Reagan in 1982, Trump is likely to pressure Prime Minister Abe to increase efforts to strengthen the Japan-U.S. joint deterrence in the Asia-Pacific region.


Japan and the U.S. acting in concert is the greatest deterrent


The Cabinet Legislation Bureau’s book confirms that the Abe cabinet’s 2014 decision and the new security legislation mark a change from the Bureau’s 1972 view. Moreover, the book justifies the Bureau’s change in view as follows: Under specific, urgent situations in the current security environment, Japan’s exercise of collective self-defense triggered by an armed attack on another country is a necessary measure not to protect another country but to protect Japan.


The 2014 change (in the interpretation of the right to collective self-defense) was regarded as dangerous by some. However, the move to consider additional legal measures before Japan is shut out from the South China Sea or North Korea possesses nuclear weapons can be considered wise.


If China were convinced that the United States and Japan would act in concert to maintain peace throughout the Pacific, that would be the greatest deterrent as the U.S. Seventh Fleet and the JMSDF Fleet Escort Force, the units that would work together, are stronger than the Chinese Navy.


I am confident that the Abe cabinet’s aim in permitting the exercise of the constitutional right to collective self-defense at a realistic level based on the law is very sensible from the perspective of Japan’s security. If Japan’s self-defense capabilities are accelerated, the defense ties between Japan and the United States are sure to become stronger than they are today.


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