January 26, 2009
Insights into the World
Time to resolve issue of collective self-defense
By Hisahiko Okazaki / Special to The Yomiuri Shimbun
Nearly 40 years have passed since I first took up the problem of Japan’s right to collective self-defense. I am not as presumptious as to claim that I was the first propounder but I certainly belonged to the minority.
In recent years, however, I believe there have been significant changes in regard to this matter and there seems to be no doubt that public opinion has shifted on this issue.
A government special panel was created in 2007 under the administration of then Prime Minister Shinzo Abe to review the conventional government approach to the matter. Last September, Prime Minister Taro Aso said forthrightly, “I’ve been saying the same thing for years–that essentially the government interpretation of the nation’s right to collective self-defense must be changed.”
And there was no distinct opposition to his statement, either from opposition parties or leftist media.
A matter of common sense
Essentially, the core of the problem comes down to common sense.
When a French deputy defense minister visited Japan, I explained the situation as follows: “In the event of a Maritime Self-Defense Force vessel being attacked by an enemy ship while traveling with a U.S. warship in the Sea of Japan, the U.S. warship would immediately go to the aid of the MSDF vessel. But if the U.S. vessel came under attack, the MSDF vessel wouldn’t be able to do anything. That’s just the way it is, because of Japan’s position on collective self-defense.”
The deputy minister, who was a typical French intellectual, replied: “I can see how that works in theory. But surely that problem wouldn’t arise in the real world.”
He said it would be only natural for the MSDF vessel to assist the U.S. ship if it were attacked, and that the MSDF should therefore engage in any such fighting.
His way of thinking is commonsensical. Nobody except for Japanese defense experts and politicians would consider it acceptable for an MSDF vessel to stand by doing nothing if a vessel belonging to the United States, the key ally of Japan, was on the verge of being sunk in front of the MSDF vessel by an enemy assault.
What would happen if an MSDF vessel dared to assist a U.S. warship?
This act cannot be punishable in terms of this country’s criminal law.
Article 36 of the Criminal Code stipulates: “An act unavoidably performed to protect the right of oneself or any other person against imminent and unlawful infringement is not punishable.”
The phrase “right of oneself or any other person” in this article is significant.
The question, however, is whether the act of the MSDF ship should be considered a violation of any laws or regulations relating to the Self-Defense Forces.
Any punitive measure taken against the commander of the ship by the government would have to be based on the ban on exercising the right to collective self-defense. But if the issue went to court, the case for the constitutionality of the government ban would surely be weak.
This is because there is no provision at all in the Constitution that explicitly prohibits the exercising of collective self-defense. The ban comes only from an interpretation by the Cabinet Legislation Bureau.
The authority to interpret the Constitution, however, rests in the hands of courts, not of the government. The court has already handed down rulings stating that this country does have the right to self-defense as an inherent right of an independent state.
There is little possibility of the Supreme Court issuing a verdict that would be so pretentious as to back the government’s stance, a unique position in the world that divides the concept of self-defense into subcategories–individual self-defense and collective self-defense, and prohibits the exercise of the latter.
If we apply what constitutes legitimate self-defense for an individual citizen to the self-defense of a country, the conclusion we should reach is self-evident when judged through the prism of basic legal philosophy.
All of the hullabaloo over the matter has been preposterous from the very beginning.
In light of Article 51 of the U.N. Charter and the 1951 Treaty of Peace with Japan between the Allied Powers and Japan, which were ratified under the Constitution, Japan has the right to collective self-defense. This right has rooted solidly in its constitutional obligations to abide by international treaties.
In some situations, the government could opt for self-imposed restraint on exercising the right as a matter of political choice. But it is absurd to argue that Japan has the right to collective defense, but nevertheless cannot exercise this right as the standing governmental interpretation asserts.
Public understanding deeper
Another factor behind the changing landscape surrounding issues of collective self-defense may be the deepening public understanding in recent years of how important the Japan-U.S. alliance is for this country.
Up until about 30 years ago, it was virtually taboo in Japan even to utter the word “alliance” in public. Prime Minister Zenko Suzuki denied the military dimension of the Japan-U.S. Security Treaty.
But as various opinion surveys in recent years have shown, the perception of the significance of the alliance between Japan and the United States has become firmly rooted in the Japanese public’s mind. Indeed, many people now openly say this country should be ready to exercise the right of collective self-defense to help maintain and bolster the Japan-U.S. alliance.
The United States used to refrain from commenting on Japan’s constitutional issues, leaving the matter to be decided by the Japanese themselves. But recently, the United States has started speaking out, as shown, for example, by the 2000 Armitage-Nye report and more recently, commentaries by Michael Auslin, a resident scholar with the American Enterprise Institute, a U.S. think tank.
The launch of the U.S. Democratic administration of President Barack Obama has brought back memories of the friction between Tokyo and Washington during the first half of Bill Clinton’s administration, highlighting the importance of maintaining and boosting bilateral relations of alliance.
Japan, of course, has sufficient diplomatic muscle to win a verbal reassurance from the United States over its willingness to keep the Japan-U.S. alliance intact.
But if the U.S. side were to ask what Japan would do in exchange for such a reassurance, attention would certainly focus on the issue of Japan exercising its right to collective self-defense. Anything less would merely be a half-measure.
What should Japan do under such circumstances?
The scenario I long had in mind and was trying to achieve was that the government would declare its adoption of a new interpretation on the issue of collective self-defense in the wake of a report by the above-mentioned special advisory panel to the prime minister.
I also envisioned the government would subsequently address the task of gradually revising the laws and regulations, which, due to the current interpretation, have placed the government in a quandary.
But on reading a recent book by former Administrative Vice Foreign Minister Ryohei Murata, I felt like I had encountered some fresh thinking.
“I could not help but feel it unnecessary to create the panel [for reviewing collective self-defense matters], and that launching the panel was disrespectful. The prime minister can simply declare that Japan can exercise collective self-defense,” Murata writes.
He goes on to say: “The prime minister, while noting that the exercise of the right should be made with the greatest care, should declare that it is up to him to make a final decision on the matter. And if the head of the Cabinet Legislation Bureau takes exception to that, the prime minister will have to seek his resignation, since under the Constitution the prime minister has the power to do that.”
Actually, I am a member of the panel Murata referred to as “disrespectful,” and I intend to continue working on the procedures the panel is supposed to follow. But should the prime minister decide to issue a declaration as suggested by Murata, I would have no qualms about agreeing with his decision as the best possible solution.
Getting ready to fight
In making the declaration, it would be important for the prime minister to state clearly that the existing laws and regulations relating to the right of collective self-defense should be revised as quickly as possible.
As mentioned above, there is little possibility of the exercising of the right being ruled illegal by the judiciary.
It is also worth pointing out, though, that a nation’s fighting capabilities can hardly be adequate without sufficient training exercises in peacetime. Japan’s likelihood to exercise the right in a contingency alone would, in the eyes of the United States, be insufficient in preparing for a joint military operations under the bilateral security pact.
On the assumption that Japan, as a matter of principle, can exercise the right to collective self-defense and that relevant laws can be revised sooner or later, it would be reasonable for the government to allow practice maneuvers presupposing actual law revisions. And if such maneuvers were brought before the court, there is no doubt the Self-Defense Forces members involved would ultimately be found innocent.
I believe the entire issue of collective self-defense already has begun to move toward a resolution. But the most expedient way of accelerating this process will be for Aso to take every opportunity to present his own views on the matter.
The SDF, for their part, should be resolutely prepared to exercise the right to collective self-defense in the event of a crisis and prepare for it through peacetime exercise and maneuvers. Otherwise the Japan-U.S. alliance will hardly be sustainable.
Okazaki served as Japanese ambassador to Saudi Arabia and Thailand. He is currently a guest research fellow at the Yomiuri Research Institute.