China Is Crossing A Red Line over the Senkaku Islands: V.How Does the Security Treaty Cover the Senkakus?

Article V of Treaty of Mutual Cooperation and Security between the United States and Japan says:

Each Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes.

Let us examine three questions here.

First, are the Senkaku Islands considered to be “the territories under the administration of Japan”?

Yes, not only the government of Japan but also the U.S. government repeatedly confirmed it. But China has been recently challenging the administration of Japan by having the Chinese coast guards intrude the territorial waters off the Senkaku Islands. If Chinese public vessels try to enforce Chinese law against Chinese fishing boats in the related sea area, the Japanese government will consider that Beijing has completely cross a red line, and take some countermeasures.

Second, what is “an armed attack” under the Treaty?

If Chinese navies rush to the Senkaku Islands and clash with the Self Defense Forces, it will be no doubt an armed attack on Japan.

What if the Chinese coast guards clash with the Japan Coast Guards in the territorial waters off the Senkakus? Although the Chinese coast guards, including the Maritime Surveillance, are known to have close relationship with the PLA, they are regarded as the maritime policing agency, not the military organization. The JCG will cope with them in the first place. The type of clash could be interference of course, collision of vessels, shooting of warning shots and/or water cannon. Even these activities may incur casualties, but I guess it will be difficult to interpret them as an armed attack on Japan at these stages. If the Japan Coast Guards and the Maritime Surveillance exchange fire in harmful way and for a considerable time, the likelihood of Washington’s admitting the situation as an armed attack will increase, but still not be large enough.

The clash may not end here. If the situation escalates further, the confrontation between the SDF and the PLA cannot be ruled out. For Japanese side, the government will order “maritime security operation,” “public security operation,” or “defense mobilization” to the SDF. By Japanese law, the last one responds to an armed attack on Japan, and the use of force will be fully possible. At this stage, it will be difficult for the U.S. government not to admit it as an armed attack.

Third, what are the actions to “meet the common danger in accordance with its constitutional provisions and processes”?

As stated above, the Japanese government will mobilize the SDF for defense when the situation meets the legal requirement, including the Diet approval. The response of the U.S. government is not as clear. The views are divided whether President can start war without the approval of the Congress. But President Obama gave up bombing Syria in September 2013 as he failed to obtain Congressional approval. President will need Congressional support, at least politically, in order to send the U.S. forces for the defense of Japan. If the Congress and the U.S. public are hesitant to make war with China over the tiny—for most of the Americans—islands of the Senkakus, that there will be a possibility that President cannot decide a direct military intervention. It is also possible that President himself/herself may not to want to do so.

In the real world, political calculations always matter. And the language of the Japan-U.S. Security Treaty is vague enough compared to that of the North Atlantic Treaty. The U.S. government will have to weigh the cost and benefit of action against those of inaction. The decision to abandon Japan will cost the United States as much. To choose either Japan or China is an extremely difficult task for any U.S. president.

China Is Crossing A Red Line over the Senkaku Islands: Ⅳ.The Japan-U.S. Security Treaty and the Senkakus

What will the United States do if the Japanese and Chinese coast guards or the two militaries clash over the Senkaku Islands?

Needless to say, the United States and Japan are the allies based on Japan-U.S. Security Treaty. The U.S. forces have been stationing in Japan for more than seven decades. The United States has strategic concern over rising China as Beijing has seemingly started challenging the present word order. The U.S. trade in goods with Japan in 2015 amounted to 194 billion dollars. And the United States shares the value of democracy, freedom, human rights, and the rule of law with Japan much more than with China. Then, can we expect the United States to militarily intervene to help Japan? The answer is not simple.

For the United States, China is at least as important as Japan. The U.S. trade in goods with China in 2015 reached 599 billion dollars, tippling that with Japan. Washington needs Beijing’s cooperation in controlling North Korea and other bad guys. China has a veto power as a permanent member of the U.N. Security Council. Despite the Pivot to Asia strategy, Obama administration has had no choice but to continue to give priority on Middle East and/or Russia. Furthermore, Chinese military is too strong to make war with. Even if the U.S. military can finally win—I believe it will—, the casualties and costs will not be comparable to the war against Saddam Hussein’s Iraq or Taliban.

Officially, the U.S. government has an established view on the Senkaku Islands. That is, the U.S. government admits that article 5 of the U.S.-Japan Security Treaty covers all the territories under the administration of Japan, including the Senkaku Islands, while refusing to take a position on final sovereignty on the Senkakus. This basic line was made clear by early 2000s at the latest, after Ambassador Walter Mondale made a confusing comment in 1996 on the applicability of the Security Treaty in case of a possible Japan-China conflict over the Senkakus Islands. The more China increased provocation around the Senkakus, the higher ranking U.S. government officials, including President Barak Obama in April 2014, repeated this line. Recently, the United States added that the Senkakus have been historically administered by Japan and its sovereignty should not be subject to change unilaterally.

The United States will continue to say that the Security Treaty covers the Senkaku Islands in the foreseeable future. Although I am not sure about President Donald Trump, the U.S. has at least four reasons to do so. First is the historical involvement. The United States administered the Senkaku Islands after the World War II, and returned it to Japan in May 1972. Second, if Washington says that the Treaty does not cover the Senkakus, Japan will see little value on the alliance. The United States will lose the most precious ally in Asia with sophisticated military and big economy, as well as the U.S. bases in Japan. Third, if Washington takes ambiguous position on the applicability of the Treaty over the Senkakus, other U.S. allies would think the United States recoils from China. Then the credibility of the U.S. alliance all over the world will be severely damaged. And finally, the change of the current position may send a devastating signal to Beijing that Washington would tolerate China’s taking over the Senkaku Islands. In January 1950, Secretary of State Dean Acheson failed to mention Korean Peninsula when he made a speech about the lines of defense, which led Kim Il-Sung to expect that the United States would not intervene even if North Korean military invades south.

Japan has appreciated the U.S. commitment to apply the Security obligation over the Senkakus. But how effective was it to actually deter Chinese provocation? The answer is mixed. On the one hand, Beijing has so far advanced the scope of activities gradually in the East China Sea, without invoking the Treaty obligation for the United States. On the other hand, China has never tried to use force and seemingly avoided material clash with Japan in the sea area around the Senkaku Islands.

Will the announcement of the U.S. Treaty commitment over the Senkakus continue to deter China’s use of force? As I already explained, there are cases where China finally uses force while intending not to. For example, the possibility of a clash between the two coast guards is higher than even, and it may escalate to a military conflict between the SDF and the PLA in the worst scenarios.

Will the United States be obliged to make war with China in order to defend Japan and the Senkakus, then? I would like to say yes from the standpoint of Japan. But objectively speaking, the interpretation of the Japan-U.S. Security Treaty will be heavily influenced by the political calculation of the U.S. government.

China Is Crossing A Red Line over the Senkaku Islands: III. How Realistic is the Clash over the Senkaku Islands?

The critical question is whether the risk of military conflict between Japan and China as a result of the hardline policy will continue to overweigh the growing amount of loss from self-restraints. There are two problems. First, the loss from provocation over the Senkaku, namely a risk of losing peace and prosperity, is invisible until the friction escalates to an actual conflict. Second, the loss would be undervalued if one side or both sides believe that the hardline policy is not likely to invite the actual clash, or the local clash, should it happen, will not escalate to a major conflict as the other side will back down.

China seems to think that Japanese government, even under hawkish Prime Minister Abe, will not physically exclude the Chinese government vessels as long as they penetrate gradually. A total of 522 Chinese government vessels intruded the territorial waters around the Senkaku Islands since September 2012 to August 2016, but the JCG has only repeated warning and there has been no clash. If the Chinese believes that Japan’s inaction will continues, they do not have to worry about the escalation in the first place.

What about Japan? Tokyo has been traditionally cautious about the risk of escalation. But it must draw a line somewhere. There is a growing possibility that that the Japanese government believes the China’s response to be limited if Japan takes material countermeasures as I quoted earlier.

Contrary to our intuition, China’s has refrained from using force in the ocean for a long time. The latest example of the exchange of fire by the Chinese military was in January 1988 with Vietnam at Johnson South Reef, the Spratly Islands. Although the Vietnamese casualty was considerable, the battle was limited in terms of duration and field.

As for the Chinese coast guards, their vessels have crashed deliberately onto the Vietnamese fishing boats to sink them in the last few years. In May 2014, they turned the water canon on vessels of Vietnamese maritime police in order to “protect” an oil-rig in the disputed sea area. Intriguingly, however, they did not seem to fire gun then.

Chinese fishing ships are sometime also regulated by foreign authorities. For example, there have been at least three skirmishes with Indonesia so far this year in the waters off the Natuna Islands. On March 19, the patrol ship of Indonesian Ministry of Marine Affairs and Fisheries intercepted a Chinese trawler and arrested Chinese crews for illegal fishing. The Chinese Maritime Surveillance vessel intervened to ram the Indonesian ship and recovered the trawler next day. On May27 and June 18, the Indonesian naval ship fired warning shots against the Chinese fishing boats for suspicion of illegal fishing, and arrested the crews. Although the Chinese Maritime Surveillance rescued an injured fisherman in the latter case, they seemed to refrain from taking further vigorous measures against Indonesian vessels.

These facts require careful readings. But it would be possible to insist that the Chinese government does not always use force in the skirmish over maritime incidents, and are cautious in having their coast guards confront the military of other country.

If China thinks that Japan will not escalate the situation as long as China gradually raise the tension, and if Japan thinks that China will not uncontrollably escalate the response against the countermeasures it takes, the possibility of actual clash will be increased. Once Japan and China clash, nobody knows if they can really avoid an escalation. Two countries have a history issues. Both the Japanese and the Chinese people have a sense of rivalry and dislike each other. Prime Minister Shinzo Abe and President Xi Jinping are known to be strong nationalists. It would not be impossible, but difficult to expect self-restraints from both sides.

Prime Minister Shinzo Abe and President Xi Jinping held abilateral meeting in Hangzhou, China on September 5, 2016. They agreed to accelerate discussions between defense authorities to promptly begin operation of a maritime and aerial communication mechanism as well as to resume negotiations regarding the development of natural resources in the East China Sea. But these are the promises agreed several times in the past and have never realized. Who believes things change for the better at last? One thing is clear.

I have to argue that it will be unrealistic to expect the two countries to build a relationship of mutual trust. As seen in the Cold War era, however, leaders who dislike each other can share a sense of impendent danger. Only the mutual recognition of the huge cost of a clash and the actuality of its happening can deter the catastrophe. The Japanese government should give a very straight warning so that the Chinese government understands it is crossing the red line over the Senkaku Islands. It should tell the Chinese that it will consider taking more proactive countermeasures in the context of the sovereignty of the Senkaku unless Beijing stops its provocation in the East China Sea. At the same time, Abe should give up emphasizing value-oriented diplomacy, and send a clear signal that Japan wants to coexist with China in the 21st century. For example, Japan can join the Asian Infrastructure and Investment Bank, and propose the establishment of an institution modeled after U.S.-China Strategic and Economic Dialogue. Admitting that we have no good solution, we must continue to find a way out.

China Is Crossing A Red Line over the Senkaku Islands: II. Possible Countermeasures by Japan

In order to cope with the reinforcement of the Chinese government vessels and the People’s Liberation Army in terms of number, the size, and the firepower, the Japanese government has been increasing the presence of the JCG and the SDF in the areas around the Senkaku Islands. The GOJ will have to accelerate this movement. Some kind of joint exercise between the JCG and the SDF will be also considered. If the United States agrees, alliance will be able to send strong warning to Beijing. For example, Japan and the United States can more frequently hold joint military exercise in the East China Sea, as they already did in last June together with India in the waters off the east coast of Okinawa.

Having said that, we have to understand these measures would only delay the speed of Chinese provocation. China will continue to watch for a chance to challenge us. Further provocative movement by China is likely to invite more direct countermeasures by Japan in the context of the territorial issue over the Senkaku.

As for the reactive and defensive measures, the Japanese government will let the JCG execute the law-enforcement over the Chinese fishing vessels in the territorial waters around the Senkaku Islands. If the Chinese fishing vessels try to catch marine products, the JCG will have to arrest them. Even if Chinese fishermen don’t fish, the JCG can question them and try to ship on board on them for inspection. The probability of the JCG’s taking such actions will be higher if the Chinese side repeats intrusions similar to Aug. 5 incident.

As for the proactive and offensive measures, the Japanese government will try to strengthen effective control of the Senkaku Islands. If China tries to weaken Japan’s effective control of the Senkaku Islands, it would be natural for the Japanese government to consider re-strengthening it in ways the GOJ has so far refrained from undertaking. The construction of the port or helipad on the isle, stationing of the JCG or the police officers on the isle, visit to the Senkaku Islands by government officials and politicians are the examples of possible countermeasures.

As you can easily imagine, however, the Chinese government may not acquiesce to these countermeasures. When the JCG vessels try to inspect Chinese fishing boats, China’s government vessels will possibly obstruct the JCG’s act of law-enforcement. Likewise, if the Japanese government decides to build a helipad on the isle, China may try to block Japan’s transporting materials and personnel. In either case, the result will be a clash between the JCG and Chinese maritime policing vessels. Government vessels of both countries may turn on water cannon, collide with the ships, or even fire autocannon. As the Chinese maritime policing agencies have been increasing the size and firepower of vessels, we should expect at least some casualties.

The clash may not end there. Behind the vessels and aircrafts of the two coast guards, the SDF and the PLA are engaged with reconnaissance and surveillance. The leader of the country whose maritime policing agency is put in disadvantageous position may order its military to help the coast guards. In turn, the leader of the other country will have to consider sending its military to the sea area. Then, it is only a step to the real military conflict between Japan and the PRC.

Needless to say, the cost of military conflict is huge, or even catastrophic for both Japan and China. Besides human casualties, the bilateral trade, amounting more than 300 billion dollars annually, will be suspended. The trade and investment with other countries will also be heavily damaged. Not only will the capital markets of the two countries plunge as foreign investors escape, the military conflict between the second largest economy and the third will hit very hard the global economy and financial market as a whole. With these sheer facts, conventional wisdom is that both Japanese and Chinese leaders will not think they can fight each other. I was one of those who believed so. But I am no longer confident in this theory.

The first reason is simple. The more the Chinese government vessels (and the PLA behind them) stay in the territorial waters around the Senkaku Islands and adjacent area, the more chances of encounter between the Chinese and Japanese maritime policing vessels (and military forces behand them), and thus the more chances of conflict, including the accidental one.

Secondly and more fundamentally, the calculus is changing rapidly in a way to challenge conventional wisdom.

For a long time, China simply lacked the ability to challenge Japan’s claim of sovereignty over the Senkaku Islands. When they did not have the ability to project its coast guards and military forces in the East China Sea, China could gain more from preserving the status quo. Now, Beijing can constantly send patrol vessels from the continent and match the size and firepower of the JCG vessels. The modernization of the PLA enables the continued expansion of its sphere of activity. With this ability in hands, Chinese leadership may consider that they can gain more points not from self-restraints, but from provocative action in the game over the Senkaku’s sovereignty. Inaction could also mean a fixation of the disadvantageous Chinese position following a decision of the Japanese government to nationalize three isles of the Senkaku Islands in September 2012.

On the other hand, Tokyo has long favored the status quo. Because it can effectively govern the Senkaku Islands, endurance has basically brought more gain for Japan. But recently, the loss from endurance has become more and more visible and problematic.

In the past, Chinese challenge to Japanese sovereignty over the Senkaku —illegal landing by the Chinese activists at the Uotsuri Island in 2004 and 2012 and illegal fishing by the Chinese fishermen in the territorial waters around them in 2010— occurred sporadically, and the Chinese government vessel was not at least directly involved. Japanese coast guard or police agency could arrest the Chinese for violation of the Japanese laws. By that, Japan could prove that the Senkaku Islands are governed by the Japanese government. With this calculation, the government thought it acceptable, if not desirable, to release the Chinese detainees without putting them on Japan’s trial. However, if the Chinese government generates a situation where the Japanese government cannot execute its law in the territorial waters around the Senkaku Islands, the loss from self-restraints will be too significant for Tokyo to ignore.

The Japanese government as well as most Japanese people has given up receiving rewards from their endurance. Although the United States is not satisfied with China’s behavior at all, Washington can sometimes do business with Beijing. The ratification of the Paris Agreement to combat climate change is the recent example. Japan’s disappointment over China is far greater. Lost incentive to accommodate China may push the back of Tokyo to take harder lines. (The same thing can be pointed out about the psychology of the Chinese policy makers.)

China Is Crossing A Red Line over the Senkaku Islands: Ⅰ. Significance of the August 5 Incident

On August 5, 2016, a Chinese government vessel intruded into the territorial waters surrounding the Senkaku Islands, following the Chinese fishing vessels. There would be no need to explain the recent Chinese provocative and expansionist behaviors in the Western Pacific, from South China Sea to East China Sea. As for the activities of Chinese maritime policing vessels around the Senkaku, you can refer to a website of Ministry of Foreign Affairs at

Frankly, we have been getting used to such Chinese rudeness. But the August 5 incident was special. It has not only intensified the territorial dispute over the Senkaku Islands, but also non-sequentially raised the possibility of actual clash between Japan and the People’s Republic of China.

The similar incident occurred on September 7, 2010. The Chinese fishing vessel intruded into the territorial waters around Senkaku Islands and continued illegal fishing despite the warning by the Japan Coast Guard to leave. The two cases, however, are fundamentally different.

In the incident of September 7, 2010, Chinese fishing boat came alone, while no vessels of the Chinese maritime policing agencies intruded the territorial water of Japan. The fishing boat neglected the orders of the JCG and continued illegal fishing. Finally, the JCG arrested a drunken Chinese captain for interference of the execution of the Japanese government activities as the Chinese fishing boat collided with JCG vessels. Japan could manage to prove it was effectively governing the territorial waters around the Senkaku. And the nature of the incident was basically understood as accidental, with little commitment by Chinese government.

On August 5, 2016, the fishing vessels were accompanied by the China Maritime Surveillance’s vessel. This fact clearly suggests that the incident was deliberate in nature, and well planned by the Chinese government. And the presence of the CMS vessel would have made it hard for the JCG to enforce Japanese law over Chinese fishing vessels.

Chinese maritime policing vessels have occasionally got on board of the Chinese fishing boats in the Exclusive Economic Zone of Japan (and China as it insists). Most recently, the officers moved from the vessels of China Maritime Surveillance and China Fisheries Administration to Chinese fishing boats in the Japanese EEZ on August 9 and 10. Although the acts could be regarded as the Chinese government’s enforcement of their laws in the area, these acts conform to the ruling of Japan-China Fishery Agreement. That is, each county’s administrative office should exercise control over the fishing vessels of its own county in “provisional measures area” north of the Senkaku Islands.

However, there is no agreement as to who executes the control over the fishing boats in the territorial waters around the Senkaku Islands, which is not the “provisional measures area” under the Fisheries Agreement. If the Chinese maritime policing agencies instead execute Chinese law in the territorial waters around the Senkaku Islands, it will become totally another story. The law-enforcement activity by the Chinese public vessels in the territorial waters around the Senkaku will be an open challenge to the strong claim of the Japanese government that the Senkaku Islands are under the valid control of Japan. What is more serious, the repeated Chinese behavior would possibly cast doubt on what the United States reassured Japan. President Obama stated on April 24, 2014, “Our commitment to Japan’s security is absolute and article five [of the U.S.-Japan Security Treaty] covers all territories under Japan’s administration, including the Senkaku islands.” If the JCG cannot execute control over Chinese private fishing boats, will the American people believe the Senkaku islands are under Japan’s administration?

The August 5 incident should be understood as representing the will of the PRC as a state to weaken Japan’s administrative right and territorial right over the Senkaku Islands. Further provocation by China means that China crosses the red line. The Japanese government will have to consider taking more direct countermeasures.

Ⅳ. Case 2: Second Korean War (When Japan Legally Allowed to Use Force)

If the conflict on the Peninsula escalates, or even from the initial stage of military crash under certain scenarios, North Korea may possibly fire missiles against Japan’s territory or the U.S. Forces, Japan (USFJ). Pyongyang has a reason to do so because the US is launching (will launch) direct and indirect attack from the bases in Japan, and Japanese government is providing (will provide) logistical support to the US forces. If attacked by North Korean missiles or by other means, the GOJ would declare “Armed Attack Situation” and the SDF will be able to use force as an exercise of individual self-defense right.

By declaring “Survival Threatening Situation,” the new laws have made it possible for the SDF to use force as an exercise of collective self-defense right before Japan is actually attacked. As previously explained, the recognition of “Survival Threatening Situation” requires the US or the ROK to be attacked militarily by North Korea. And the attack on the US and/or the ROK must be considered to threaten Japan’s survival, or pose such a clear danger that Japanese people’s right to life, liberty and pursuit of happiness would be fundamentally overturned.

As for the capability, North Korea already possesses and deploys hundreds of medium-range missiles (No-Dong) covering almost whole territory of Japan and reaching there in less than ten minutes. Some of them are possibly with chemical warhead and even with nuke in the future. The missile defense system cannot defend Japan perfectly simply because North Koreans have too many missiles to intercept. It is also unrealistic to expect the US forces to destroy them all before the launch as they are fired from road-mobile launch vehicles. As for the intention, Pyongyang will be, once the battle starts on the Peninsula, always tempted to damage the US bases in Japan as well as Japanese facilities in order to sabotage the US attack and the SDF’s logistical support. If the intelligence suggests with certain evidence that North Korea is about to attack Japan, the GOJ is ready to declare “Survival Threatening Situation” even before Japan is actually attacked.

But wait a minute. As you may have already realized, it is also possible to argue that Japan’s use of force in the above case can be understood as the exercise of individual self-defense right. Although the international law prohibits the preventive attack, it admits the preemptive attack as legitimate if there is an imminent and unlawful infringement even before one party is materially attacked. Who would demand, in the above case, the Japanese government should wait until they are actually damaged and many Japanese citizens are dead and wounded?

The successive Japanese governments have also repeatedly expressed since 1950s that Japan can use force (as an exercise of individual self-defense right) before Japan is materially attacked if the enemy is considered to undertake an attack on Japan. For example, Prime Minister Ichiro Hatoyama stated in the Diet session of March 1956, “The purport of Constitution (Article 9) is not to sit and wait for death. From the point of view of legal principles, attacking the bases of (enemy’s) guided ballistic missiles in order to defend against them (before being attacked by the missiles) will be, in case there is no other alternative means, understood as self-defense (and thus constitutionally acceptable).” Regrettably, however, Japanese government has not really elaborated when the enemy is considered to undertake an attack on Japan as to legitimize the SDF’s use of force, and maintained vague but effectively strict interpretations as if the SDF should wait until being attacked.

Prime Minister Abe chose to introduce the notion of an exercise of collective self-defense right, while fundamentally leaving the vague but effectively strict interpretation as to when the enemy undertakes an attack on Japan. Rather, his administration seems to have made it even stricter in order to reject the idea of expanding the scope of an exercise of individual self-defense right. For instance, Foreign Minister Fumio Kishida stated in the Diet on July 3, 2015, “If we deliberately expand the notion of an exercise of individual self-defense right, we would possibly use force when an armed attack on Japan does not happen yet. Then we would violate the international law.”

On July 10, 2015, Abe also tried to explain his (incoherent) thoughts on when the attack on Japan is considered to take place as related to the conditions for declaring “Survival Threatening Situation.” Let me summarize what he said. First, an attack on the US forces by the DPRK should have been already existent on the Korean Peninsula. Second, an attack by North Korea such as missile launch on Japanese territory must be perceived as urgent. At this stage, however, the recognition of the mere danger of an armed attack on Japan alone is not sufficient to legitimize Japan’s use of force. In order to declare “Survival Threatening Situation” and let the SDF to use force before Japan’s homeland is materially attacked, Abe demands additional developments such as evident danger of an attack on the US navy ships, either carrying Japanese evacuees from the Korean Peninsula or being on alert for North Korean missiles against Japan.

Abe’s explanation illustrates how strikingly the notion of an exercise of collective self-defense right under Japan’s new national security legislations differs from that of other “normal countries.” More strikingly, it also suggests that Japanese government may not be able to securely defend the nation even under the new laws. What if, in the case Abe mentioned, North Korean Military launches a missile attack without or before attacking the US navy ships operating for the defense of Japan or carrying Japanese evacuees? More fundamentally, what if Pyongyang tries to attack Japan and USFJ before invading South Korea and attacking the United States Forces Korea? According to Abe and Kishida’s logic, Japan will have to wait and bear material damage before allowing the SDF to use force. That’s ridiculous!

The GOJ’s understanding of its exercise of collective self-defense right is problematic in terms of the alliance management, too. When the United States starts war with North Korea on the Peninsula, the USG may well expect the GOJ to declare either “Survival Threatening Situation” or “Armed Attack Situation” very soon. But the GOJ will have to say “Please wait until we find a sign that your navy ships, operating in Japan Sea for the defense of Japan or carrying Japanese evacuees, are at risk of being attacked by North Korea.” or “We cannot exercise the individual self-defense right when we perceive only the danger of North Korean missile attack on Japan because we believe it’s against the international law.” Ridiculous again! If the GOJ adheres to the existing explanation, Japan’s use of force either as an individual or collective self-defense right will almost certainly come later than the USG expects. My guess is that the GOJ will be forced to change the statements made by Abe and Kishida in the future. But what was the last year’s Diet debate, then?

Introduction of an exercise of collective self-defense right is not the purpose of Japan’s national security polity but the better defense of the nation. I would argue that Japan will be better defended by “carefully expanding the notion of an exercise of individual defense-right” than following Abe’s imperfect notion of an exercise of collective defense-right. More concretely, Japanese government should elaborate in accordance with the international law when they can legitimately start using force, or when the enemy is considered to undertake an attack on Japan.


III. Case 1: Second Korean War (When Japan Legally Not at War)

Contingency concerning North Korean aggression is one of the most plausible cases where the Self Defense Forces will be required to use force. What have the new security legislations changed under such situation? In appearance, the new laws have brought significant changes. But closer examination will represent a bit different picture.

Typically, North Korea may crash militarily with the Republic of Korea and the United States across the Demilitarized Zone (DMZ). If the conflict is genuinely confined to local warfare in the peninsula, the Japanese government would recognize it to be “the situation that will have critical influence on the peace and security of Japan” by the law. Then the SDF will provide logistical support to the US (and possibly the ROK) forces and engage in the search and rescue operation. The GOJ will also let the US forces use Japanese ports and airports if necessary. It is important to understand, however, that Japan is not at war at this stage, therefore the SDF cannot use force in legal principle.

Abe revised “The Safety Assuring Law under the Situation that Takes Place around Japan and Will Have Critical Influence on the Peace and Security of Japan” which was enacted in 1999 into “the Safety Assuring Law under the Situation that Will Have Critical Influence on the Peace and Security of Japan” last year. The revision has not only removed the geographical limits of the SDF’s activity but also widened the scope of their logistical support mission. While acquisition and cross-servicing under the original law was possible basically in Japan’s territory, they can now be provided on high seas, and even in the territory of other countries if the permission of the government concerned is obtained. In case of the Korean Peninsula contingency, the SDF can provide logistical support in the territory of the Republic of Korea if Seoul says okay. The 1999 version of the law ruled out the SDF’s provision of both weapons and ammunitions to the US forces. The current version has made possible the provision of ammunitions. The previous ban on the fueling to the US fighters being ready for the combat mission on the Korean Peninsula was also removed.

The biggest change caused by Abe’s revision is concerned with the notion of “the rear area.” The original law prescribed that the SDF’s logistical support to the US forces and the SAR operation should be done in the territory of Japan, or on the high seas as for the transport and the SAR mission, where the actual exchange of fire is not taking place now, and is not expected to take place during the period of the SDF’s activity. This notion was devised as an excuse that the activity of the SDF, being not at war under Japan’s law, would not be seen as an integrated part of the American use of force. However, the Cabinet Decision as of July 1, 2014 changed it: the SDF can now engage in the logistical support activities even in the combatant area, as long as the exchange of fire between the US and the DPRK forces is not actually taking place there. Following the Cabinet Decision, the revised version abolished the provisions about “the rear area.”

But the fundamental contradiction that the SDF, being in the peace time by Japanese laws and prohibited to use force, provide the logistical support to the US forces, being at war, still remains in the revised law. Even the new condition for the SDF’s activity stated above will be disturbing for the American soldiers.

Furthermore, an article 6 of the revised law says that Minister of Defense must order the suspension of the logistical support and the SAR mission when it becomes impossible for the SDF officers “to engage in the activity safely and smoothly.” As a result, when and where the US forces can count on the SDF’s support will continue to be fuzzy, pending on the judgment by the Japanese government at the time.

The drafters may want to argue that it is not realistic to assume a situation where the US and the DPRK forces actually exchange fire on the Sea of Japan, as the US would dominate the sea and air control once the battle starts. Especially at the initial stage of the contingency, however, the US military planners will have to prepare for the worst-case scenarios. They must be frustrated with the ambiguity over when and where the SDF’s logistical support and SAR mission can be planned in.


II. The Exercise of Right to Collective Self-Defense

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.

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.


Vews on Japanese Politics and Foreign Policy by Kiyoshi Sugawa