Paul Kallender-Umezu, Defense News
14 June 2015
TOKYO – Efforts by Prime Minister Shinzo Abe to normalize Japan's security posture and bolster its U.S. alliance against China hit an obstacle when the Lower House Commission on the Constitution declared Abe's moves unconstitutional. Still, Japan is expected to pass legislation around August to expand the nation's ability to better support the U.S. in the defense of Japan.
In a minor bombshell, on June 4, Setsu Kobayashi, professor emeritus of Constitutional Law at Keio University and member of the Lower House Commission on the Constitution, said provisions allowing limited rights of collective self defense as promoted by the Abe administration are unconstitutional.
"Paragraph 2 of Article 9 does not grant any legal standing for military activities abroad," Kobayashi is reported to have said. "Going to war abroad to help a friendly nation is a violation of Article 9," he said.
Article 9 of the 1947 U.S.-imposed Japanese Constitution outlaws war as a means to settle international disputes involving the state. In its text, the state formally renounces the sovereign right of belligerency and aims for international peace based on justice and order.
In its own interpretation, the legislation put forward by the Abe administration this spring mostly deals with provisions about how Japan's Self-Defense Forces (SDF) can legally support the U.S. in certain situations.
Composed of two bills, the legislation was put before the Japanese Diet following an historic July 1, 2014, decision by Abe's Cabinet to reinterpret the 1947 "Peace Constitution" that forbids Japan to even have a military.
Opposition to the current legislation is echoed in some popular opinion polls that show about 80 percent of the Japanese public feels ill-informed on the issue, with opinion roughly divided pro and con.
While the Lower House commission's ruling has been interpreted as a major embarrassment for the government in the liberal media, Robert Dujarric, director, the Institute of Contemporary Asian Studies, Temple University Japan, disputed the basic logic of the opposition to the legislation.
"The creation of the SDF 60+ years ago and something like U.S. $1 trillion spent on defense in the past 25 years mean that Article 9 has been violated. Thus saying that the new bills are unconstitutional is like accusing a man who shoots a cadaver that's been dead for decades of murder," he said.
Dujarric also questioned the scope of any substantive change enabled by the bills, noting that even
without the legislation, the Japanese prime minister already has the ability to order the SDF into battle.
"It's unclear that these laws will do much in the short term to improve SDF capabilities. In the longer term, a set of decisions taken over the 20 years have [hopefully] improved SDF capacities, but that's another issue.
"It's hard to call a state which puts such little emphasis on national defense militarized or remilitarized," Dujarric said.
Japan spends 1 to 1.5 percent of GDP on defense, has no conscription, has very restrictive rules of engagement, has been unwilling to participate in internationally sanctioned operations and invests little in research, he said.
Despite the fanfare from allies about how this could improve interoperability, he said, the legislation changes very little in terms of the need to improve interoperational capabilities.
Jun Okumura, a visiting scholar at the Meiji Institute for Global Affairs in Tokyo, said the entire effort is aimed at tightening the U.S.-Japan relationship and giving the U.S. less room to avoid engagement in a military incident involving Japan if Washington perceives that U.S. interests are not seriously threatened.
However, Christopher Hughes, author of "Japan's Foreign and Security Policy Under the Abe Doctrine," called the legislation a "watershed moment" in Japan's military history. The upcoming legislation does not "completely revolutionize" Japanese security policy or U.S.-Japan alliance cooperation, Hughes said, because Japan could have undertaken many of the actions under the name of individual self-defense that it is now seeking to do under the umbrella of collective self-defense. But the legislation does give Japan a much wider mandate for military action, he added.
"Now, even if there is no direct attack on Japan, Japanese leaders can more readily mobilize the JSDF to meet U.S. expectations for military support," he said.
Exactly what constitutes a threat to Japan's existence is open to interpretation, as Abe has demonstrated with his view that there are "exceptions" to the condition, such as the need to dispatch the JSDF to minesweeping in territorial waters of Arabian Gulf states, Hughes said.
"There is no objective standard of when a threat can or cannot be responded to by military or non-military means, and it is unlikely that Japan would be able to or want to resist now a call from the U.S. for military assistance rather than sanctions or diplomatic action; and again, there is no objective standard of the constraining force to the minimum level necessary, as that is again just a political decision," he said.
The legislation does not sweep under the carpet every constraint on Japan's exercise of force, however. Analysts said change will be incremental, but the new legislation does expand the functional and geographical scope for use of the military, and lowers the overall barriers.
In addition to U.S.-Japan cooperation in the Arabian Gulf, Japan can expect closer cooperation in a Korean Peninsula contingency, and perhaps at some point cooperation will expand into the South China Sea and Indian Ocean, Hughes said.
"In this sense, China is right to watch with interest the developments in Japan's security policy. Hence, neither the naysayers who say the new legislation is insignificant, nor those who say the legislation has entirely transformed Japan's security are correct. The truth is somewhere in-between – Japan has transgressed past military constraints, is still not entirely 'normal,' but is progressively moving on that trajectory toward becoming a more effective alliance partner and military power."
Whatever the debates over the more strategic implications of the legislation, Japan is far from aggressively rearming, Okumura said.
Define "militarization," he said.
"Let's see; ICBMs and submarines with nuclear warheads, aircraft carriers, amphibious warfare capabilities, cyberwarfare capacities ... I don't think that Japan has the political capability to join the troika [U.S., Russia, China]. Plus, we can't really afford it," he said.