Realistic Solution for Collective Self-Defense Right Issue

by Koichi HASEGAWA
Senior Research Councilor, DRC


Preface

Entering this year, the problem of exercising Collective Self-Defense Right suddenly closed up. With the birth of the Bush Administration, demand for Japan’s share of role has become severe and as it is anticipating that the situation expressed by the symbolic explanation ”U.S. warships will help the Japanese warships on the high seas but as the Japanese warships can not help U.S. war ships because they are prohibited from exercising collective self-defense right” must be corrected, scholars, critics and statesmen have all started to take this matter up. Prime Minister Koizumi too, in his first press conference on April 27th stated that can the Japanese Self-Defense Force do nothing in the case U.S. military forces are attacked by other country’s military forces when U.S. Forces and Self-Defense Forces are engaged in joint training on the high sea, and he pointed out that there is a necessity to study on various situations hereafter although the interpretation of the present constitution will be respected. The Prime Minister in the House of Representatives Budget Committee held on May 15th replied too with the same view although knowing that the constitution amendment is desirable. Focal point hereafter will be on collective self-defense rights issue and expecting that discussions relating to Article 9 of the constitution will become livelier, I would like to think about this.

1. Government’s Viewpoint about Relationship between Collective Self-Defense Rights and Japanese Constitution

In the government’s written reply on May 29th 1981 to inquiry prospectus by members of the House of Representatives, Seiichi Inada, they indicated the following interpretation.

“Under the international law, the nation is known to possess the rights to use its power to prevent the armed attack that is made against the foreign country which has close relationship with your country regardless of whether its own country is not directly attacked, namely for collective self-defense rights.

For our country possessing such collective self-defense rights under the international law is rightful as a sovereign nation but exercising of self-defense rights allowable under Article 9 of the constitution to our understanding is not to go beyond the minimal limits necessary to defend your country. Therefore, to exercise collective self-defense rights will be overstepping this limit and believe it will not be permissible under the constitution.”

The government mentions that there are three important restrictions to exercise self-defense rights (Submittal data to the House of Councilor Budget Committee dated January 14, 1972). One of them is a “minimal requirement” restriction that was established which differ from that of other countries. Not only collective self-defense rights but is said that there is a restriction under the constitution on individual self-defense rights too. The government’s recognition regarding this matter is well indicated as following discussion in the House of Councilor Budget Committee March 9,1981.

A Committee Member Fukuzo Nakayama: “Am I understand that the self-defense rights which is the traditional practice under the international law and the self-defense rights under the Japanese constitution differ?”

Government Committee Member Shuzo Hayashi: “As constitution is a national inside law, the interpretation under the constitution does not necessarily be matched with the general idea of self-defense rights under the international law or the ordinary line of thinking for self-defense rights.”

The reason why the government established its original restriction so called “Minimal Requirement” is because it is clearly stated in Para. 2 of Article 9 of constitution that “land, sea, and air forces, as well as other war potential, will never be maintained”

If the government recognizes collective defense rights as constitutional regardless of Para. 2 in Article 9, and makes a 180 degree change in the interpretation like as “Japan can maintain land, navy and air forces, as well as other war potential” to perform international cooperation by exercising its self-defense rights, it is inevitable that Japan will loose international trust. For collective self-defense rights problem solution, the only road open is in amending the constitution even if it will take time. Then, how to handle this as actual issue in the interim period must be looked into from now.

2. Relationship between the Various Situation that Can Be Assumed and Collective Self-Defense Right

Let us look at it more concretely as to what kind of cases need collective self-defense right.

(1) Situation in an Armed Attack against Japan

In the event of an armed attack against Japan, the act of eliminating this by Japan-U.S. joint operation based on the guideline, for U.S., It is in exercising collective self-defense right but for Japan, even if the end result is in protecting U.S. citizen’s life and property, this will be exercising the individual self-defense rights.

In general, under the situation where order has been issued for dispatch of Defense Forces, there will not be any necessity to exercise collective self-defense right for the purpose of supporting the United States. Even within the Japan-U.S. joint operation, there is an occasion of partial Self-Defense Forces protecting the U.S. Forces. This is a link within the exercising activity of individual self-defense right for the purpose of Japan’s defense.

(2) Situation in Areas Surrounding Japan

According to surrounding situation law, it states that implementation of responding measures against the situation must not be military force threat or exercising armed forces.  Even under the guideline, Japan’s activity can basically be confined to a range where it will not require exercising self-defense rights. However, there is a need to review it once again to see that military inconsistency does not occur in the actual case when this is in reality put to practical use. Now, let us think about the situation that may take place below.

a. Situation in Korean Peninsula

Assuming that a situation where the second Korean War takes place and U.S. Forces Japan completely participate, in this case, the U.S. will make a request to Japan for support based on the guideline as well as depending upon the situation, U.S. will most likely request prior consultation regarding participation for direct fighting from bases in Japan. To this, Japan probably will take suitable responding steps taking into consideration the probability that direct fighting could take place in Japan. Additional study shall be conducted on possible case of this enlarging into use of armed forces.

(a) Support Activity to U.S. Forces Based on Guide Line

The support activities (rear area support, search and rescue activity, etc.) to U.S. Forces laid down in the guide line are basically not to be implemented in the area where battle can be anticipated so that military forces will not be taken. However, as an actual issue, it can be thought of a case where military force must be used for the purpose of self-defense. That is for instance in the case Self-Defense Forces aircraft and warships engaged in search and rescue activity and transport activity in the open seas surrounding Japan are attacked. Counterattack in this case will be legitimate self-defense or exercising individual self-defense right and has no relationship to collective self-defense right.

(b) Defense of U.S. Military Aircraft by Self-Defense Force

In the territory or in the neighborhood of Japan, there are cases where the Self-Defense Forces interceptor fighter or surface to air missile will be used for defense the U.S. military aircrafts those are making sorties or returning to the bases located in Japan. In the case there are invasion by attack aircraft in the said air zone, in reality, you will not be able to predict whether they will attack U.S. military aircraft or attack our country so that Japan will prevent it with armed forces based on individual self-defense right. This is as stated in the guideline as a situation where it develops into “Situation an armed attack against Japan”

(c) Joint Defense with Warships in the Open Seas

There is no arrangement of warship joint operation in the “Situations in areas surrounding Japan” but in order to maintain sea-lane traffic security in East China Sea and Japan Sea, implementation of a new joint operation by Japan and U.S. can be thought of. This operation which should be implemented by Japanese government advocacy or through agreement will be limited within the scope of not requiring collective self-defense right being exercised. In the case warships and aircraft engaged in this operation are attacked, it will be dealt with jointly. This will to the end be justifiable defense or will be based on individual self-defense right. What is said out in the street that “U.S. warships will defend Self-Defense Forces warships but Self-Defense Forces warships cannot defend U.S. warships” situation will never arise. Joint operation including training which cannot perform joint defense will never be planned from the beginning.

b. Situation in Taiwan

Let’s assume that a situation will arise where dispute between China and Taiwan occur and U.S. engages in defending Taiwan. In this case too, the U.S. the same as that of situation in Korean Peninsula will request Japan to provide support to U.S. military forces based on guideline and prior consultation of aircraft direct departure for battle area.

In response to this, Japan can consider aggressive and negative support depending upon the description of the dispute. To look at involvement in collective defense rights, all that required is to think of aggressive case.

(a) Support Activity to U.S. Forces Based on Guide Line

In principle, it will be the same as in the case of situation in Korean Peninsula.

(b) Defense of U.S. Military Aircraft by Self-Defense Forces Aircraft

In regards to this too, the same as situation in Korean Peninsula can be said but it can be thought of that Self-Defense Forces capability may not be sufficient in fighting power and unless special measure is employed such as in putting to practical use Shimoji-shima Commercial Airport, it will be questionable for effective exercise of individual self-defense right.

(c) Joint Defense of Warships and Other Vessels on High Seas

In this case too, it will be the same as that of situation in Korean Peninsula. Except that in the case of situation in Taiwan, it differs from Korean Peninsula as the war will mainly be across the strait so that battle will frequently occur around the warships and other vessels on high seas, it is probable that Japanese warships and aircraft will be involved in it.

The activities of Self-Defense forces in such situation will be in principle centering around rear area support based on guideline so that there will be no joint operation by warships and aircraft. Only in the case ships safety is threatened on the high seas, Japan and U.S. joint operation for sea traffic protection (sea-lane defense) may be carried out and this under the guideline is not situation in areas surrounding Japan but is classified as a situation where an armed attack is made against Japan whereby it has no relation with collective self-defense right as it is an exercise of individual self-defense right. As long as joint operation is to be conducted, mutual defense is the bases so that you cannot think of a situation where the Self-Defense Forces warships will not protect the U.S. warships.

(3) International Cooperation

In the law (PKO law) relating cooperation for United Nations Peace Keeping Activity enacted in the year 1992, it prohibits threat by force or use of armed forces. In the enforcement of this law, the activities which could well require use of arms depending upon the situation such as surveillance of armed dispute suspension, patrolling the buffer zone or inspecting passerby whether they have weapon activities will be frozen until a separate law is established. This in itself is often looked upon as a purpose of prohibiting exercise of collective self-defense rights but that is wrong. This law is structured recognizing use of arms to minimal requirement limit in legitimate defense and emergency evacuation and the reason for partial freezing of this activity is because in the Diet they were unable to eradicate the possibility of responding to exercising use of arms outside the country and compromised politically and have temporarily frozen it (Refer to reply by Director in Legislation Bureau, Kudo, dated October 30, 1990 in the House of Representative United Nation Special Committee).

(4) Conclusion

From the extent of looking at it so far, exercising of collective self-defense right cannot be taken on this activity based on existing law so that ordinarily, you cannot think of a case where inconvenience could arise. What is said out in the street that “U.S. warships will help Self-Defense warships but Self Defense warships cannot help U.S. warships” situation is just an illusion.


3. Studies on Exercising Collective Self-Defense Rights Argument

The opinion that Japan should be able to exercise collective self-defense right is getting stronger day by day. However, its realization is not so simple as this is related to the constitution.  Thereupon, let us look concretely at several opinions as to what reasons exercising of collective self-defense rights is being asserted.

(1) Opinion of Mr. Okazaki

Mr. Hisahiko Okazaki (former Ambassador to Thailand) of Okazaki Research Institute has mentioned the following in the magazine “Sapio” dated December 6, 1995.

“War breaks out in he Korean Peninsula and American destroyer and Japanese destroyer are sailing side by side in the Japan Sea. If the Japanese destroyer is attacked, the American destroyer will immediately support the Japanese destroyer. However, even if the American destroyer is attacked, Japanese destroyer cannot go to defend them as they do not possess collective self-defense right. Even though knowing that if the American destroyer is damaged, next thing the enemy will do is attack the Japanese destroyer but cannot respond to them.  There is nothing so absurd as this.

In regards to the issue on this collective self-defense problem, the U.S. Democratic Administration presently is not saying to take another look at this matter but if this changes to Republican Administration, you cannot be able to maintain Japan-U.S. alliance unless Japan will correct this problem in the long run.”

We understand that this was mentioned to explain the necessity of collective self-defense rights but this state of setting up is a little too imperfect. The movements of Self-Defense Force warships are always implemented based on lawful orders. This situation is explained that self-defense operation has been ordered or anticipated it, it is a movement based on Japan and U.S. joint operation order. If it is something based on surrounding situation law, there would be no necessity for both country’s destroyers to sail side by side excluding special cases. As mentioned in the Korean Peninsula paragraph, in the case like this, joint defense based on individual self-defense rights will be taken on every attack. Even in saying from military common sense, Japan-U.S. destroyers sailing side by side will take activity to prevent it prior to being attacked. But as you cannot foresee which of the Japan-U.S. destroyer is aimed at being attacked beforehand, it is only proper for both to jointly move against it. This situation which Mr. Okazaki has indicated is unsuitable to explain the necessity of collective self-defense right

(2) Armitage’s Report (INSS Special Report October 11, 2000)

Prior to becoming the Deputy Secretary of Defense in October 2000, Mr. Armitage announced his report titled “The U.S. and Japan: Advancing Toward a Mature Partnership”. This report in the paragraph Security mentions that Japan’s prohibition against collective self-defense is a constraint on alliance cooperation, and Washington must make clear that it welcomes a Japan that is willing to make a greater contribution and to become a more equal partner. But there is no concrete explanation as to how collective self-defense rights will be involved. In regards to this mater, it will be touched once again under Mr. Foley’s opinion paragraph later.

(3) Statement by U.S. Government High Official (Sankei Newspaper dated April 30, 2001)

In the morning edition of the Sankei Newspaper dated April 30, 2001, it reported on April 28th that government high official of Bush Administration involved in Asiatic Policy made a statement relating to the issue of Japan’s collective self-defense rights as follow.

“Whether Japan will continue to ban exercising collective self-defense right or removing the ban by changing the interpretation of the constitution or removing it by amending the constitution is a problem which Japan independently must decide. However, for greater close and desirable security cooperation between Japan and U.S. hereafter under the alliance relationship, the present situation where Japan possesses collective self-defense rights but is unable to exercise it will be an obstacle.”

“The cooperative set up which U.S. side desire in emergency hereafter from the point of security through Japan-U.S. Alliance can not be realized if Japan remain in not being able to exercise collective self-defense rights”

“The Bush Administration will greatly welcome the new Prime Minister Junichiro Koizumi, tackling the problem to enable exercising collective defense right.”

The statement is along the lines of Armitage Report. Concretely it is indistinct as to what further close and desirable cooperation which is being pointed out, so that assertion cannot be made however, if it means such as PKO and PKF activities, it is not such a problem as mentioned later. If you are saying that U.S. side’s desirable cooperative set up cannot be realized with your knowledge that Japanese warships cannot defend U.S. warships, then as verified above, all that can be said is that it is based on big misunderstanding. If it is pointed out up to participation in multinational forces accompanying exercise of armed forces, this would be too far apart from the collective self-defense rights issue which Japan is now discussing and Prime Minister Koizumi is trying to take up.

(4) Statement by Former Ambassador to Japan, Mr. Foley (Sankei Newspaper dated May 25, 2001)

In the evening edition of Sankei Newspaper of May 25th, it reported that Mr. Thomas Foley held an interview with the Japanese Press Team on May 24th in Washington and commented on collective self-defense rights as follow.

“It is up to Japan themselves to decide to realize exercising collective defense rights by amending the constitution or to materialize by changing the interpretation, but my opinion is that looking at it from the standpoint of effective implementation of peace keeping activity (PKO), we welcome removal of ban in exercising collective self-defense rights.”

“In the present situation, the condition for Japan to participate in international peace keeping activity is too severe and there actually is no peace keeping activity existing which can be implemented with such conditions.”

When we focus on his latter opinion, this is quite true. The Diet recognizing the necessity of international cooperation enacted the PKO law. In this law, it lists up 17 items those should be implemented as international peace cooperative service. But among these, 6 items which are said to be highly necessary internationally such as Surveillance of armed dispute suspension status disarmament implementation, patrol of buffer zone and inspection of weapons possessed by passerby, etc., are frozen until the day this law’s supplement is separately decided as a law.  It is only right for dissatisfaction becoming intense against Japan for undertaking only easily manageable PKO business and avoiding those which are dangerous. The reason as to why the 6 items in the PKO law were frozen is because if partial portion of the claim that there is possibility of developing into use of armed forces overseas is not recognized, they would not have been able to materialize the bill. But still, the 6 items are left in the law without being deleted because they have no relationship to collective self-defense right. Mr. Foley in his preceding paragraph seems to take recognition that to settle this problem, it is necessary to remove the ban on exercising collective self-defense rights but this is a misunderstanding.


4. Settlement Method for Collective Self-Defense Right Issue

(1) Roles of Japan in Future

There is a necessity for Japan to undertake the following roles from security aspect.

①To protect its own country with its own power

②To become the keystone in Asian peace and stability

③To contribute in settling disputes and maintaining peace in various parts of the world

In order to fulfill this role, it must possess the same type of military forces as normal country and, ①to accomplish own country’s defense and not become an unstable cause itself, ②to share the role in regional security organization, ③to provide due contribution by participating in the United Nations Forces and multi national forces, ④to cooperate in the United Nations peace keeping activities.

(2) Military Capability and Constitution of Japan

As raised in the preceding paragraph, Japan physically possesses the required military capability to carry out its role. However, it has indicated to other nations as an evidence of being a peace loving country by expressly writing in the constitution that it will not maintain Land, Navy and Air Forces. Hence, it cannot exercise use of armed forces overseas. As mentioned paragraph 2 of this manuscript, it will actually be impossible for the Japanese government to change the interpretation of the constitution now for it will look as if they have been telling a lie until now. In order to make it possible to exercise collective self-defense right as a reason from change in the state of affaires, there are no other course except amend the constitution though it may take time. If so, let us think next about what is to be done until the amendment is made.

(3) Present Realistic Settlement Method

As looked into in paragraph 2 and 3 of this manuscript, there is no case that needs exercising collective self-defense rights from the aspect of possible occurring events and international cooperation activities surrounding Japan, other than participating in multinational armed forces.  Therefore, until everything clears up by amending the constitution, we believe an understanding can be obtained from U.S. and other countries of the world on the following measures.

① To conduct case study in strict conformity to actual condition and make clear as to in what case exercising collective self-defense rights will become necessary and to indicate to inside and outside the country what can be done and what cannot be done from the present constitution.

② Conforming to actual condition, explain such condition as not being able to save U.S. warships will never occur in Japan-U.S. joint operation, and create both countries trust.

③ Removing partial freeze in the PKO law, complete the details of international contribution. Obtain other countries understanding by clearly explaining the constitutional restriction on exercising armed forces overseas in strict conformity with actual condition.

④ State that we aim to amend the constitution so that contribution can be made as same as other countries by participating in the United Nations Forces and multinational armed forces.