Japan’s Use of Force under the New National Security Legislations: I. From Old to New — Ambiguity Persists

Japan’s new national security legislations passed the Diet in September 2015 under the leadership of Prime Minister Shinzo Abe and were put into force on March 29 of this year. New legislations, combination of a new law and revisions of eleven existing laws, will no doubt give significant impact on Japan’s national security policy and Japan-US alliance.

However, new laws are still ambiguous or very complicated at best. It is very difficult to understand precisely what kind of change they will bring and how large their impact is. The scope and domain of activity by the Self Defense Forces will absolutely expand. But these laws will never make Japan a “normal country.” Excessive expectation by Americans would turn into disappointment over alliance with Japan.

I don’t mean to insist that we should completely avoid ambiguity in national security policy making. In every country, political leaders decide whether or not to use force by making calculation based on theirs national interests. The formulae of national interest calculation differ by country and person, and are almost always biased. President Bush decided to go to Iraq war based on the wrong intelligences about her WMD. Bush and his aides also underestimated both the human and financial cost of post-war management, and gave little consideration to spreading Islamic extremists as a result of eliminating Saddam Hussein.

Leaders are not always able to dispatch troops if they decide to do so. Many countries, including Japan, require the congressional approval before sending their forces abroad. Even in countries where such an approval is not legally required, leaders are often checked by the legislative bodies. In summer 2013, UK Prime Minister David Cameron and US President Barak Obama tried to attack Syria punitively and requested the Lower House and the Congress for approval. Meeting the rejection from the parliaments, both Cameron and Obama were forced to give up the use of force at that time.

In case of Japan, however, ambiguity over “when and to what extent the use of force is legally and constitutionally possible” adds more fundamental uncertainty on its national security decision-making. Japan’s national security laws have posed so heavy legal constraints that Japanese policymakers have to consider the legal aspect of the possible use of force first and for all, and often cease to make further strategical or tactical calculations.

The similar, but less significant ambiguity was seen in Germany’s national security policy before 1994. Under Basic Law for the Federal Republic of Germany, the government could not send the German forces, the Bundeswehr, out of the NATO area. In 1994, however, the Federal Constitutional Court ruled that the deployment of the Bundeswehr beyond the NATO area is constitutional as long as the military action concerned is done under collective security framework, and the federal parliament, the Bundestag, gives prior consent. German national security policy has basically cleared the legal ambiguity since then.

Have the new Japanese national security legislations cleared the way for more flexible use of force as German Constitutional Court’s ruling did in 1994? The answer is basically no.

In the first place, Japan’s constitutional constraints on the use of force are far more fundamental. While German Basic Law articulates the possession of military forces, Japanese Constitution does not. Article 9 states as follows:

Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.

In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.

Japanese government has explained the existence of the Self Defense Forces as constitutional for more than half a century. The GOJ insists that Article 9 never denies Japan the right to self-defense for an independent sovereign nation, and thus the necessary minimum forces for self-defense should be recognized. The fact that the Constitution does not specify the possession of national army, however, poses great constraints. For instance, Japan cannot basically send the SDF to foreign territories even when she is attacked as a result of abandoning the right of belligerency. Although there could be exceptional cases when a dispatch of the SDF in the foreign territories is permissible, nobody knows exactly what kind of situations constitutes such exceptional cases. As a result, the SDF is not prepared to respond to such situations. The new laws have changed nothing about it.

Having said that, it is also true that Abe has successfully changed, at least to some degree, the nature of ambiguity Japan’s national security legislations have had for many decades. Previously, ambiguity originated from the interpretation of Constitution. Today, considerable parts of ambiguity stems from the interpretation of laws.

In the very near future, application of the new security laws is likely to be constrained by the restrictive interpretation the Abe administration showed during the 2015 Diet session. But there remains a distinct possibility that future prime minister of Japan, including Abe himself if he stays in power for long time, will change the current interpretation of these laws. It goes without saying that changing the interpretation of law is much easier than changing that of Constitution. As a result, the government of Japan may be able to use force more freely.

I will try to examine in series how behaviors of Japanese government and the SDF may or may not change after the enactment of Abe’s new national security legislations. That will be a job of defining new ambiguity, or the limits and possibilities of the new laws.


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