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) has delivered its report to Prime Minister Abe and the NSC. The main focus of the report relates to whether the Japanese government can and should allow itself to exercise the right to collective self-defense currently considered by the Japanese government to be a prohibited form of the use of force to settle an international dispute. I have outlined the general approach that might be used to reconfigure the current constitutional interpretation here.
The key thing to remember is that the kondankai’s recommendations do not carry any legal weight as they are essentially a private advisory body to the Prime Minister. Abe himself has said the report will point to the general policy direction that he intends to take, although the final decision on CSD and constitutional reinterpretation will be taken later. The report will serve, however, as a maximal point of reference for where Japan’s security policy and SDF activities might go in the near future.
For now, it seems Abe will use the report to assert that Japan cannot defend itself adequately or contribute to stabilizing the regional security environment without making certain changes to its security policy and current interpretations of Article 9. He will argue that such changes will be essential for Japan to continue to enjoy a stable regional environment, as this will help strengthen the US-Japan alliance and allow Japan to play a greater role in regional deterrence.
While indicating his support for many of the positions taken by the kondankai, the language used by Abe in the press conference after the report was released suggested that the changes proposed by the Panel were not a foregone conclusion. This was likely out of consideration for coalition partner Komeito. Abe also attempted to head off wide-ranging concerns among the public and many political elites about how far the changes would go by ruling out the proposal of the kondankai to allow unlimited Japanese participation in United Nations Security Council-sanctioned collective security actions undertaken by multinational forces seeking to restore international order. Abe also suggested that he would only pursue legislation to enable a partial or limited exercise of Japan’s collective self-defense rights. This is opposed to a reinterpretation that would allow the full embrace of the right to exercise collective self-defense, which could allow Japan to use collective self-defense rationales to justify military interventions such as those that took place in Vietnam and Afghanistan.
Even as he tries to present his reinterpretation plans in a moderate light, there are a few different “veto” points Abe will have to negotiate, however – both political and institutional – before this becomes full government policy.
Politically, Abe is to the right even for this rather right-leaning LDP. There are factions and groups within the LDP, including many in the House of Councillors, that are skeptical of the change, either on procedural and legal grounds (ie can political leaders really just “reinterpret” the constitution without Cabinet Legislative Bureau and/or Supreme Court direction?), or in terms of worries about public opinion and electoral backlash. Many less hawkish LDP members are closer to the Japanese public’s attitude in that they support the expansion of activities that the SDF can undertake, particularly in regards to regional security, but are reluctant for the SDF to be proactively engaged in combat overseas, particularly within another country’s sovereign territory.
This is very similar to attitudes within the New Komeito. In addition to a strong reluctance to see the SDF engage in overseas combat, the added complication with Komeito is that the party has symbolically been opposed to CSD since the party’s inception some 50 years ago. The Komeito’s core political support group, Souka Gakkai, is in particular against the change to this core identity for the party, and the organization has already made an official statement asserting that constitutional revision is required rather than reinterpretation. New Komeito MPs themselves are more pragmatic in the sense that they generally support the US-Japan alliance, and are not necessarily against all of the changes that Abe and the kondankai will propose. But the party really does not want to call whatever these changes will be “collective self-defense,” especially if it means they will run afoul of Souka Gakkai. Abe and his supporters, on the other hand, are highly invested in the historical and strategic symbolism around “collective self-defense,” so a lot of the tension between Abe and the Komeito will be focused as much on the language used in any collective cabinet decision, rather than simply being about what the SDF should be able to do.
Within this political context, two institutional checkpoints are important.
First, Abe is trying to rally Cabinet to sign-off as a whole on a new interpretation. This is harder than it might seem as every member of the cabinet needs to sign-off. Former Komeito leader Ota Akihiro is currently Minister of Transport in the Abe Cabinet. If Ota refuses to put his name to any Cabinet decision and Diet bills, Abe cannot proceed and would be basically forced to expel Ota (this would be similar to what happened between the DPJ and Fukushima Mizuho from the SDP over the Futenma relocation plan). That would obviously have significant implications for the coalition relationship which Abe currently relies upon for a majority in the House of Councillors. While they would be unlikely to oppose Abe directly, senior and influential cabinet ministers such as former LDP leader and Minister of Justice Tanigaki Sadakazu, and Foreign Minister Kishida Fumio, head of the less hawkish Kouchikai (宏池会) faction, are skeptical of Abe’s collective security agenda and may wield some influence inside cabinet.
Also, as much as he might want to, Abe can’t just turf out Komeito in favour of pro-CSD opposition parties with sufficient parliamentary strength to give the LDP a House of Councillors majority, even though this is a mathematical possibility. This is because Komeito essentially gives over their votes to the LDP at election time in Japan’s sometimes very close winner-take-all single member electoral districts, especially in urban areas. This is usually in exchange for the LDP not running LDP members in other seats, thereby allowing the Komeito to increase their seat total over and above what they would otherwise get through proportional representation. This relationship is essential for the maintenance of LDP rule, and LDP elders will be very reluctant to allow Abe to single out other parties in the opposition to replace the Komeito in order to simply have the words “collective self-defense” emblazoned on the new policy. As it is, with the self-destruction of both Watanabe Yoshimi (Your Party) and Hashimoto Toru (Japan Restoration Party), the LDP now has no long-term prospects for collaboration, and in any respect, neither party can deliver votes in the disciplined and consistent way that the Komeito can. Komeito, itself, of course, will be very reluctant to break up the coalition for the same opportunistic reasons, and Komeito’s leader Yamaguchi Natsuo has already said that he has no intention of doing so. Abe and the LDP, however, would like a collective cabinet decision in the books before the end of the year as the US-Japan Revised Guidelines will be revised again.
Second, even if Abe manages to convince Komeito and Minister of Transport Ota to to sign off on collective self-defense and other proposals put forward by the kondankai, Abe still has to go to through parliament and attempt to make changes to anywhere between 10 and 18 laws, including the SDF Law, the UNPKO Law, the “Areas Around Japan” Law, and the Armed Attack Response Law. The two parties will undoubtedly have to make it through some pretty tough questions from the opposition. The opposition will also likely call in experts beyond those who sat on the Panel, and perhaps even former Cabinet Legislative Bureau officials, to contest the kondankai’s arguments. This might hold the legislative process up, especially if already skeptical public sentiment hardens against the proposed changes (with the electoral consequences that might have down the track). It isn’t impossible that some inside the LDP and Komeito get cold feet at some point, especially if the economy starts to stall, or the TPP or some other policy issue rises to trouble the current administration.
In terms of the whole process of legislation surrounding the Panel’s recommendations, it could take up to 1 to 2 years more. The 1999 “Areas Around Japan” legislation took about two years to negotiate into legislation after the revised guidelines. Ishiba recently told a Washington audience something very similar could happen in this case. From Abe’s point of view, the longer he leaves things up for debate, though, the more politically tense things will become. This is because any controversy and delay will push the changes closer to elections, potentially leading to added caution within the ruling parties. This year is the sweet spot in the electoral cycle in terms of Abe probably not being penalized too much for unpopular policies. Currently, Abe is still in a politically strong position, and has arguably recovered a bit of lost ground since the Designated Secrets Bill and Yasukuni visit at the end of last year. His popularity does not seem to have been greatly harmed by the consumption tax increase last month, and he may be willing to spend political capital on this issue.
on the other hand, wants
to delay things as long as possible, as that will enhance its ability to extract concessions and compromises from the Abe government, and, they hope, help them avoid compromising on the more controversial elements related to the exercise of collective self-defense. In 2015, we have unified local elections in the spring, and then the LDP presidential elections later in the year. Then in 2016 we have both Lower and Upper House elections, unless current rumours
The controversy will be kept under wraps for a while longer yet, however. A meeting between the top executives of both the LDP and Komeito will take place on the 20th to discuss how to proceed on “gray zone” issues, relaxing some restrictions on SDF participation and the use of weapons to protect other countries’ militaries and citizens in UNPKOs and other joint operations, and perhaps legislation allowing the SDF to undertake operations to remove Japanese citizens from dangerous areas, as raised by the kondankai. Discussions behind the scenes on the most controversial live issue of collective self-defense will also be started. What the Panel has to say about the exercise of collective self-defense, and its relation to the debate over its implementation, will be covered here as it becomes more salient over the next few months. For now, below is a brief discussion of the two broader issues of gray zone contingencies and the use of weapons in non-international conflict situations that the LDP and Komeito have already agreed to prioritize in order to essentially keep the political peace for the time being.
Gray Zone Contingencies
Up until now the SDF has been highly restricted legally in regards to its ability to apply pressure through the threat of, or the use of weapons, even within Japan’s own territory, unless there is a direct and imminent “armed attack” on Japan underway and there is a government mobilization order (such as Defense Mobilization, Maritime Security Operations, or Public Security Operations Orders). There are no provisions that allow the SDF to immediately react to situations which may sit within the “gray zone” between peace and an “armed attack,” currently defined as an “organised and planned use of force against Japan.” The panel in particular has identified illegal and non-innocent submarine incursions into Japan’s territory, attacks on nuclear power facilities, as well as surreptitious paramilitary or guerrilla “invasion” of the remote islands (ie the Senkakus) for the purposes of exerting control over the islands, as three particular issues of concern. The argument is that such aggressive infringements, which could have implications for the security of Japan in addition to being infringements of domestic law, or could represent preludes to an organised armed attack, could best be handled through SDF deployment, rather than relying on the Japan Coast Guard and police through “law enforcement powers,” as has been the legal requirement up until now.
The political debate over better addressing such gray zone contingencies is generally uncontroversial. It was first mentioned in the 2010 NDPG released by the DPJ government as requiring addressing, and both the LDP and the Komeito appear to support adjustments to legislation.
The use of weapons in situations not considered the use of force
The kondankai identified two general situations, not considered to be the use of force in international law, within which the government has said it will consider relaxing restrictions on the use of weapons.
- 駆けつけ警護 (kaketsuke-keigo), removing obstructions to missions, protecting civilians
Currently the SDF is generally only allowed to use weapons in UNPKO missions to protect themselves and foreign civilian and military personnel under their direct supervision. 駆けつけ警護 (kaketsuke-keigo) missions, however, are emergency aid and protection operations that may involve the use of weapons to come to the aid of geographically distant unit under attack or personnel participating in the same UNPKO. Such personnel could include members of foreign militaries, members of NGOs or IOs or other cooperating civilians. The current constitutional interpretation regards such operations to possibly constitute a form of prohibited use of force overseas if the concerned personnel are being held or attacked by a quasi-national or state organization.
The Panel, however, argues that no other nation interprets the “use of weapons” within the context of the international standards set down for UNPKOs (which are generally post-conflict in nature) as being equivalent to the use of force, irrespective of whether the hostile party is a disorganized criminal group, a guerilla force, or a quasi-state organization. Furthermore, the panel argues that as UNPKOs are supposed to be carried out with impartiality, with the consent of the main parties to any conflict, and subsequent to a de facto ceasefire, any legal use of weapons within such missions to protect other civilian and military members of a UNPKO, or civilians in general in a sudden breakdown of peace, should not be considered the constitutionally prohibited “use of force to settle an international dispute.”
Based on similar logic, the panel also suggests that the SDF be allowed to, based on the rules of engagements and standards set down for UNPKOs, remove obstructions to UNPKO missions, and also to allow protection of civilians and the maintenance of security within the context of UNPKOs taking place in fragile states.
In addition to cooperation on gray zone contingencies, the Komeito appears in the last few days to have agreed to allow some relaxation of the use of weapons within UNPKOs might be justified since they believe public opinion is accepting of the use of weapons in such limited cases.
2. Protection and Rescue of Japanese Nationals Abroad
Citing the 2013 Algerian terrorist incident, the kondankai has also suggested the need to allow, within the limits prescribed by international law, for the SDF to come to the rescue and protect Japanese nationals abroad and, if necessary, use weapons to accomplish their missions beyond simple self-preservation. Until this incident the Japanese government had limited ability to dispatch the SDF to allow the protection of Japanese citizens abroad. The kondankai suggests that this is not sufficient and the SDF should be given greater powers. The panel argues that under international law the protection and rescue of nationals abroad is permitted if consent is given by the territorial state, therefore making them “efforts to supplement or substitute security activities of the territorial state.” They also argue that international norms, and previous statements by the Japanese government on these norms, allow the dispatch of military personnel to protect their nationals when another state does not have the will or capacity to protect them against severe attacks on foreign nationals, and could be considered the exercise of self-defense as the responsibility of the state.
The LDP and Komeito coalition will make these issues the top priority for collaboration in the new Diet session in the second half of 2014. It will be subsequent to this, likely in the autumn, that the debate over collective self-defense will heat up between the LDP and Komeito, although deliberations will start in the House of Councillors this month, as is the House of Councillors wont.