The Chinese frigate ship locked its weapon-targeting radar on the escort ship of the Japanese Maritime Defense Forces on January 30, 2013, near the Senkaku Islands lying in between Okinawa, Japan, and China in the East China Sea. It was disclosed later by the Japanese Defense Ministry after it made a thorough analysis of the nature of the Chinese radar activities.
In the air space, China unilaterally set in November, 2013 the air defense identification zone along the coast near the Senkaku Islands in the East China Sea, which extends and therefore overlapping in part into the ADIZ set by Japan a long time ago. And then Chinese fighter jets approached the Japanese patrol airplanes as close as 30 meters long in that overlapping air space on May 24, 2014.
Since the Japanese Government under the Democratic Party nationalized the Senkaku Islets in September, 2012, by buying them out from the Japanese owner inherited from his ancestor, China stepped up their insistence for the territorial rights of the Islets by sending out oceanic survey ships and war ships or planes around the islets. They sometimes tried to enter the Japanese Economic Zone and even the territorial waters in an effort to demonstrate their territorial rights.
Along the outer edge of the Chinese Economic Zone off the Chinese continent, China has been undertaking drilling activities of oil and gas on the sea bed. The oil & natural gas fields near the maritime mid-line between China and Japan are being developed, which might exploit natural resources on the side of the Japanese Economic Zone.
The Senkaku Islets are consisting of eight small islets, about 170 km north-west of the Ishigaki Island, which is a part of the Prefectural island of Okinawa, Japan. The Senkaku Islets used to be owned by a Japanese islander family until the Government of Japan bought them in an attempt to avert the purchase of the three islets offered by Mr. Shintarou Ishihara, patriotic Governor of Tokyo in September, 2012.
Contrary to the expectations of the Government of Japan under the Democratic Party, the nationalization of the islets by Japan invited a strong reaction and protest from China, which upholds that the territorial issue over the islets remains and “should be solved by future generations” even after the conclusion of the Peace and Friendship Treaty in October, 1978.
Now China claims that they are the “core interest” to China, while the Government of Japan takes the view that there is no territorial issue between the two countries. But obviously there exists a diplomatic issue between Japan and China with regard to the Senkaku Islets.
In addition to the straining Japan-China relations, North Korea has been stepping up their nuclear and missile development programs since Mr. Kim Jong-un succeeded General Secretary Kim Jong-il, his father, who died in December, 2011, and also inherited the Military-First politics.
In December, 2012, North Korea under Mr. Kim Jong-un, First Secretary of the Workers’ Party and First Chairman of the National Defense Commission as well as Supreme Commander of the Korean People’s Army, tested a long-range rocket. And it carried out an underground explosion test of nuclear devices, the third nuclear test, in February, 2013.
Responding to a series of such clear violations of the previous resolutions adopted by the U.N. Security Council, the Security Council adopted tougher sanctions including financial ones against North Korea in March, 2013.
In countering against the U.N. Security Council sanctions as well as the U.S.-Korea joint military drills in South Korea, which become annual routines recently and also invite furious criticism by North Korea as “belligerent activities” on the part of South Korea, North Korea announced the termination of the mutual non-aggression agreement between South and North in late March and further abolishment of the Truce between South Korea and North Korea along the 38th parallel north agreed in July, 1953, by U.S-backed U.N. Forces, South Korea, North Korea and China.
While stepping up provocative assertions since then, North Korea sent Mr.Choe Ryong Hae, member of the Politburo Presidium of the Workers Party of DPRK, as a special envoy of First Secretary Kim Jong-un to China in an attempt to address an apparent displeasure expressed by China, which stopped financial transactions of the Bank of China with North Korea in accordance with the UN Security Council resolution.
In a meeting with him on May 24, 2013, President Zu Jingping, General Secretary of the Central Committee of China’s Communist Party as well, was quoted as saying that “denuclearization and long-lasting peace and stability on the Korean Peninsula are common aspirations shared by all people in the region as well as a general trend.”
President Zu also quoted as saying as follows, “China has a very clear position concerning the issue that no matter how the situation changes, all the parties concerned should adhere to the objective of denuclearization, adhere to safeguarding the peace and stability on the Peninsula, and adhere to resolving the issue through dialogue and consultation.” And he expressed hopes that all the parties concerned would restart the process of the six-party talks and make unremitting efforts for achieving denuclearization on the Korean Peninsula and safeguarding lasting peace and stability on the Peninsula and in Northeast Asia.
He received a letter signed by Mr. Kim Jong-un, Supreme Leader and First Secretary of the Workers’ Party of North Korea. North Korean envoy responded that “the DPRK side was willing to work with the parties concerned to properly solve relevant issues through the six-party talks and other dialogues and consultation of various forms, so as to safeguard peace and stability on the Korean Peninsula.”
Although he was quoted as saying that the DPRK was willing to take positive actions for it, such a “positive” action is yet to come. It seems that North Korea bowed to some “positive” actions to solve relevant issues through six-party talks and other dialogues and consultations under pressure from China. Yet, as long as North Korea’s ‘Military First’ policy is upheld with the ambition to develop and possess nuclear weapons and missiles, it will constitute a threat to Japan and the rest of the World.
The increasing tension in East Asia in recent years prompts the Japanese Government to accelerate examination of its national security system with a view to realize Japan’s collective security arrangements with the third country, primarily based on the Japan-U.S, Security Treaty. However, there are three major hurdles to realize it.
Constraints by Article 9 of the Japanese Constitution
The Article 9 of the Constitution enacted in May, 1947, stipulates that Japan “forever renounces war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.” It also says that “the right of belligerency of the state will not be recognized.”
It is interpreted and widely recognized that it does not prevent by any means Japan’s inalienable right to defend itself. Therefore, although Japan maintains the Defense Forces of about 225 thousand personnel consisting of land, sea and air forces, it is strictly observed that their activities are limited to self-defense purposes.
To supplement security needs, it upholds the Japan-U.S. Security arrangements since 1960. Under the Treaty, both countries would act to meet the danger if the territories under the Japanese administration, either Japan itself or the U.S. bases and facilities in Japan, are attacked.
The United States is granted, under the Treaty, the use of the facilities and areas in Japan by its land, air and naval forces. Therefore, even if the U. S. territories, or any military targets outside Japan, are attacked, Japan is not obliged to take military actions under the Treaty. It is often criticized that the security arrangements are one-sided in terms of military obligations.
However, it is not so one-sided because of the following reasons. First, Japan provides military bases including aircraft runways, ports, and other facilities to the U.S. side across Japan from Okinawa close to the East China Sea to Hokaido, northern most area close to eastern Russia.
While the U.S. presence certainly serves for Japan’s stronger security, it constitutes a most stable and effective forward-based security posture for the U.S. itself in East and North Asia. Japan also provides financial support called as the ‘host country support’ to the U.S. bases in Japan since the late 1980s in the order of about 3 billion to 1.8 billion dollars annually, reducing U.S, military costs in this part of the World.
Furthermore, Japan could take and obliged to take defensive actions together with the U.S. under the Security Treaty if any of the U.S. bases, facilities and other military targets within the Japanese territories is attacked by a third country or party. Such defensive actions will be taken within the provisions of the Constitution and until the United Nations would take actions upon report from Japan.
Therefore, the Japan-U.S. Security arrangements are not so one-sided as is often said, although obligations are not proportional as far as military actions outside the Japanese territories are concerned. It could be said that a collective security aspect is partly applied within the territories under the Japanese administration in case of an armed attack to either party.
While the Constitution itself does not exclude the right to take some collective security actions, it is up to a collective security treaty which Japan concludes with an allied country with regard to what sorts of collective security actions Japan is expected to take, or what sorts of security actions are expected from the allied country. The Japan-U.S. Security Treaty is a kind of the collective security arrangement, but Japan is not obliged to take military actions if the U.S. territories are targeted.
Change in constitutional interpretation or its revision?
The best way to enable Japan to take collective security measures, or collective defense actions without any limitations is to amend Article 9 of the Constitution. However the hurdle is high for a Constitutional amendment. It requires two-thirds majority in both Houses to propose an amendment for a national referendum, and it should be approved by a majority of the voters.
Further, there are those, especially among the conservatives, who wish to revise a wide range of articles of the Constitution. It will take some time to increase people’s understandings for the need to revise it.
The Abe regime, facing the difficulty for the constitutional amendment, is inclined to change the interpretation of Article 9, which has been upheld by the previous governments since the present Constitution was proclaimed in 1946.
The increasing tensions from North Korea and China seem to be persuasive enough to argue that Japan needs an enhanced security framework to supplement its Defense Forces. Especially, it is questioned how far Japan could take part in military actions with the allied United States under the framework of collective security or collective defense.
At present, it is widely held that Japan has naturally the inalienable right to defend itself with its own defense forces. To supplement such defense forces, Japan concluded the Security Treaty with the United States in 1960 at a time when the Cold War structure between the West and the East was dominant.
Around that time, Japan did not have even a Peace Treaty with China and the Soviet Union. Especially since those two countries possess nuclear weapons, a nuclear deterrence, among other things, was needed by the United States. Japan concluded the Peace and Friendship Treaty with China in 1978, while a peace treaty is still pending between Japan and Russia because of the territorial issues over the four northern islands which have been occupied by Russia (former Soviet Union) after World War II. But there remain increasing tensions in northeast Asia.
There are arguments, however, that Japan should take part in defensive actions collectively with the U.S. if the latter is attacked because Japan is protected by the latter.
In the wake of North Korea’s developments of nuclear bombs and a long-range missile, security experts under Prime Minister Abe studied whether and how far Japan could take military actions within the framework of a collective security or a collective defense with the United States, by changing the interpretation of the Constitution.
After over one year study, the expert group presented the study report to the Prime Minister on May 15, 2014. Their study is concentrated basically on the following four specific cases together with detailed ‘grey zone’ cases where the Japanese Defense Forces could act as follows:
Case 1) Japan could shoot down a ballistic missile heading toward its ally across the Pacific by the MD system.
Case 2) The Japanese Maritime Defense Forces could counter an attack against an ally’s warship cruising side by side in the high seas.
Case 3) The Japan’s Defense Forces could back up the allied forces abroad by shipping fuel, weapons and bullets, and strategic materials.
Case 4) The Japanese Defense Unit sent for a PKO mission abroad could engage in armed exchanges if other country’s PKO forces are attacked.
All these cases posed by the security experts show by themselves that the Japanese Constitution imposes some particular self-restrains on the use of forces. To the eyes of many countries, it may appear somewhat unusual.
Except for Case 4, which is quite different from other three cases, the defense forces have fundamental constrains by the Constitution.
As for Cases 1 and 2, the Japanese side would be obliged to take a counter attack against the enemy target offering a protective action for the ally only if the security agreement between Japan and its ally provided that an armed attack by the third country or party against either one of the parties of the agreement is considered an attack to the other party. And such an action constitutes an exercise of the sovereign right of Japan against the enemy and may well be taken as a declaration of war so that the enemy country would fight back against the Japanese side as well, which may lead to a war. Therefore, it is difficult to affirm such an action under the present Constitution.
Here it is important to note that it is a collective security agreement, bilateral or multilateral, which provides obligations for either party to take military actions if the other party is attacked by an enemy. The Constitution only allows Japan to conclude such a security treaty with an allied country. But the content of the security treaty should be consistent with the Constitution. Therefore, it is a matter of policy what type of a security agreement Japan would conclude with the United States.
If Japan intends to have a full-fledged security treaty with the U.S., the present Security Treaty must be revised and corresponding domestic laws must be adopted. Such a new agreement should be ratified at the Diet. For the Japanese people, it will be indeed a big decision, which will change its security as well as diplomatic stance.
There are three hurdles to materialize a more or less full-fledged security agreement with the U.S.
First, there are constitutional self-restraints. Article 9 prohibits Japan from “a war as the exercise of a sovereign right of the nation.” Is it constitutionally permissible to conclude a security agreement with the United States under which Japan is obliged to take a military action if the United States side is being attacked by some enemy one way or another? Yes, if the scope of the agreement is limited within the Japanese territories including air space. But no, if it covers the U.S. territories. If Japan is obliged to take a military action to defend the U.S. entities which are attacked by an enemy, it may be regarded to be a military action as the exercise of Japan’s sovereign right. Therefore, it becomes unconstitutional.
To avoid unconstitutionality, security experts are said to study cases compatible with Article 9. It is reported that such a military response may be limited to a situation where it will seriously affect the Japan’s security otherwise. Who will judge such a situation when the U.S. side is under attack? Anyway, it may be short of a collective security or a collective defense, and operations become unrealistically complicated.
Secondly, it is going to be a big policy issue for the Japanese people to have a full-fledged ally for whom the Japanese side is obliged to take a military action if and when the allied partner is attacked by some enemy. It will be a big departure from the security posture after World War II and the present Japan-U.S. Security Treaty. In a sense, Japan will become somewhat an ordinary country, but Japan should be prepared for the world-wide security risks and responsibilities in the defense readiness parallel to that of the U.S. There will be a big argument over whether Japan should embark on a fully armed country with greater global responsibility as an ally to the U.S.
Thirdly, there is a question as to whether the Diet will ratify such a collective security treaty with the United States, and approve relevant domestic laws and regulations. It requires a wide and solid support in both the House of Representatives and the House of Councilors. At present, the Liberal Democratic Party and its coalition Komei party hold a majority in both Houses so that such a collective security treaty with the United States as revised might be ratified.
However, the Komei party and some of the LDP members are cautious. Some of them argue that it should be realized by revising Article 9, not by changing the interpretation of the said Article, because it is a matter of the Constitution affecting the future course of the Japanese people. It is difficult to revise the Constitution because two-thirds majority is required at both Houses to call for a national referendum.
In terms of the political spectrum in Japan, the conservative circles, in particular, conservative revisionist groups are eager to revise the Constitution, while the Communist Party and the Democratic Socialist Party persistently advocate it, especially Article 9, with the rest of the Parties somewhere in between.
In the case of the change in interpretation, a collective security treaty as revised and related laws based on it might be sued as unconstitutional by civil groups.
Participation in UN Peace Keeping or Multi-National Forces
As for Case 4 above, it has been interpreted by many including the legal authorities that any of the Defense units sent abroad for a PKO mission or similar post-conflict operations supported by the United Nations cannot use arms other than a self-defense case when members of the unit are attacked. Weapons they can carry for such a mission abroad are also strictly limited to the minimum level necessary for self-defense purposes.
In the past, Japan faced difficult cases although it was strongly requested to participate by the United States.
The Gulf War and the War against Terror
In the case of the Gulf War, the United States indicated Japan to join in the Multi-National Forces under the aegis of the United Nations by sending some unit of the Defense Forces to the Gulf area to defend Kuwait from Iraqi invasion in early1990’s. Japan found it difficult to send any combat forces abroad because of the constitutional constraints, specifically the constraints on the use of weapons abroad under the Japanese command.
Instead, it granted 10 billion U.S. dollars to the Multi-National Forces whose headquarters were set up in Saudi Arabia. But Japan was under criticism that its support was only financial one without risking a life, so that it sent out Defense Forces unit for mine-sweeping operations in the Gulf after Iraq withdrew from Kuwait.
In the case of the War against Terror triggered by the 9/11 attacks initiated by Al-Qaeda in 2001, the United States indicated to the Japanese authorities its desire for them to “show the flag” to support the military operations of the U.N.-backed multilateral forces from the Indian Ocean in addition to the non-combat participation of the Defense personnel in Kabul, Afghanistan. Japan decided to send warships to the Indian Ocean to supply fuel to warships of the multilateral forces, while avoiding direct combat activities.
Then the United States requested Japan to put “boots on the ground” in 2003 in Iraq to defeat the Saddam Hussein regime in an attempt to eliminate chemical weapons and other weapons of mass destruction with a view to establishing a democratic government there.
Japan sent a special battalion-size unit of the Defense Forces to Samawah City in southern Iraq, where Shiite sects were dominant with little danger of direct involvements in the Shiite and the Sunni armed exchanges. It was sent to help civil reconstruction and development activities in the area in early 2004. The level of weapons they carried was limited to a minimum sufficient for self-defense purposes. The unit returned to Japan in late July, 2006 without any direct involvement in armed exchanges.
Appreciation with Certain Reservations for the Past Efforts
All these efforts were appreciated with certain reservations. Now Prime Minister Shinzo Abe’s regime intends to change the interpretation of Article 9 to allow Japan to take part in such international efforts allowing, at least in part, a ‘collective security’ notion. He returned to power in December, 2012, forming the coalition Government between the Liberal Democratic Party and the Komei Party. During the campaigns for the general elections in 2012, he pledged to make efforts to revise the Constitution, but it appears to be not so easy while the tension is mounting in the Far East.
All these past cases were dealt on the basis of Article 9 of the Constitution which has been interpreted to restrain Japan from resorting to a war or armed conflicts abroad except for a self-defense case.
But such an interpretation could be rectified as far as the use of arms in such an UN-backed multilateral mission abroad which does not constitute a war as an exercise of the sovereign right of Japan against any country or any recognized government. Such a multilateral mission abroad under the aegis of the United Nations is a collective effort of the UN member countries for the specified peace-keeping purposes or post conflict activities in a certain area, and therefore generally it does not represent an exercise of the sovereign right of any participating country.
It is also pointed out that Case 4 has very little to do with a collective security or a “collective self-defense” each country is entitled to exert.
UN peace keeping operations and similar operations or Multi-National Forces supported by the United Nations are collective multilateral activities for specific purposes adopted by the UN Security Council to maintain order and public safety within a country or between countries at feud, so that it is quite different from the collective activities of certain allied countries against a country or countries.
If Japan participates in such an operation, its activities are carried out collectively with other participating countries within the scope set by the UN and under the guidance of the coordinating unit on site. If requested through the coordinating unit or directly from a participating country for a help, the Japanese unit would be able to take back-up measures within their ability. The level of arms to be permitted to the Japanese forces for such international mission could be similar to those carried by the forces of other participating countries.
However, if such a military action is taken by the U.S. unilaterally or by the NATO group against a country, Japan could not participate in such a military operation abroad because of Article 9.
The mounting tension and military buildups in East and North Asia seem to be persuasive and timely for Japan to consider a reinforcement of its security framework and readiness. Realistic measures must be taken. At the same time, however, it should be realized that such security measures may invite reactions from some of the countries in the region, which may create a vicious circle of actions and reactions in the field of the security structure and competitive military buildups and readiness in this part of the world, probably leading to two major camps, when the world, especially among the permanent members of the UN Security Council, is divided between the U.S.-EU group and Russia-China group over Israel-Palestine peace process, Syria, and Ukraine. Such scenario must be avoided by making more efforts to reduce tension and increase mutual confidence and initiate substantive arms reduction.
