Before discussing the possible change in the behaviors of Japanese government and the SDF under the new national security legislations, we have to briefly review one of the most significant and controversial changes the new legislations have introduced: the exercise of so-called collective self-defense right.
It is widely believed that Japan’s new national security legislations have made “partially” possible the exercise of collective self-defense right, which was banned by article 9 of Constitution for almost seven decades. But it is hardly clear when, how, and to what extent it can be actually exercised under the new laws.
Until the enactment of the new laws, Japan’s use of force was only possible as the exercise of individual self-defense right in “Armed Attack Situation” when an armed attack against Japan occurred, or an imminent danger of an armed attack occurring is clearly acknowledged. By introducing the notion of “Survival Threatening Situation” when an armed attack against a foreign country that is in a close relationship with Japan occurred, the new laws have opened the way to use force as an exercise of collective self-defense right. At the same time, however, their provisions set strict conditions for the actual exercise of the right to collective self-defense.
First, an armed attack against a foreign country needs to threaten, as a result, Japan’s survival and pose such a clear danger that Japanese people’s right to life, liberty and pursuit of happiness would be fundamentally overturned. Second, there should be no alternative means but to use force. And third, the use of force must be limited to the necessity minimum for self-defense. As Yusuke Yokobatake, Cabinet Legal Bureau chief, put it, Japan is, under the new security laws, not allowed to exercise right to collective self-defense in general, nor engage war in oversea, including in the foreign territory under attack.
Here, the issue becomes the interpretation of these three conditions. Major political players and government organizations have different views on this point. A coalition partner of the ruling Liberal Democratic Party, Komeito, wants to interpret them very sternly. Its political and electoral base is well known to be a dovish religious group, Soka-Gakkai. It demands that “Survival-Threatening Situation” be essentially the same as “Armed Attack Situation.” Ministry of Foreign Affairs, on the other hand, apparently tries to keep larger room for more flexible use of force. Ministry of Defense is divided. Prime Minister Abe seems to stand somewhere between them although his original desire was to use force with no reservation. Out of necessity to accommodate Komeito and calm down the rising criticism among the public, the ministers, including Prime Minister Abe himself, frequently made restrictive statements on the use of force during the last year’s Diet session.
Consequently, the official explanation about the exercise of collective self-defense right has come to look even more noncommittal. In his answer to the question by Natsuo Yamaguchi, the president of Komeito, the CLB chief Yokobatake said, “Considering the real-world situations, I think there is almost no case where Survival Threatening Situation is not identical to arms attack situation.” But just before expressing this opinion, Yokobatake carefully mentioned that he could not rule out the exceptional cases where an armed attack on a foreign country alone poses as grave and significant damage upon Japanese citizens as an armed attack on Japan does.
At least in the near future, it will be politically difficult for Japanese government to exercise right to collective self-defense in the distant area. Japan’s exercise of collective self-defense right is likely to start from contingencies in the neighboring area. But still, we should remember the fact that the texts of the new laws do make it possible to partially exercise right of collective self-defense. Almost all the restrictive statements on the use of force made by government officials during the last year’s Diet session have also carefully left loopholes.