Foreign Relations & International Law

A Primer on Japan’s Constitutional Reinterpretation and Right to Collective Self-Defense

Sean Mirski
Friday, November 7, 2014, 12:00 PM
By the end of the year, the United States and Japan are expected to release revised Guidelines for Defense Cooperation. For the first time in seventeen years, the two nations will modernize the framework that governs the U.S.-Japan alliance in times of both peace and war. While the revised Guidelines will encompass many areas of cooperation, they will also reflect part a decision made earlier this year by the Japanese Cabinet.

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By the end of the year, the United States and Japan are expected to release revised Guidelines for Defense Cooperation. For the first time in seventeen years, the two nations will modernize the framework that governs the U.S.-Japan alliance in times of both peace and war. While the revised Guidelines will encompass many areas of cooperation, they will also reflect part a decision made earlier this year by the Japanese Cabinet. In early July, the Cabinet reinterpreted Japan’s Constitution to allow the nation to exercise the right of collective self-defense. This reinterpretation represents a dramatic shift away from Japan’s postwar pacifism, and suggests that Prime Minister Abe seeks to make the U.S.-Japan alliance closer than ever. In preparation for the release of the new Guidelines, Lawfare has prepared this brief primer on the history, meaning, and consequences of this summer’s constitutional reinterpretation. A Brief History of Article 9 As World War II ended, the United States occupied Japan and set about deconstructing its militaristic government. As part of this demolition effort, Washington revamped Japan’s legal system and sought to ensure that Tokyo could never again lawfully threaten regional peace. When combined with the principle of collective security animating the recently born United Nations, the result was Article 9 of the newly minted Japanese Constitution:
(1) 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. (2) 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.
Yet almost as soon as it was adopted, Article 9 came under severe strain. Many understood the clause to prohibit the creation of any military force whatsoever. But two years after the new constitution was ratified, Japan faced a security crisis. The Chinese Communist Party had taken control of the Chinese mainland, and faced with a resurgent communist threat in Asia, the United States was asking Japan to help ensure regional security. For the remainder of the Cold War, Washington would continue to pressure its ally to rearm and play the role of security provider. This pressure influenced how Japan has interpreted Article 9. For instance, once the Korean War broke out, the United States relocated forces from Japan to the Korean Peninsula, robbing the island nation of its principal shield against potential attackers. In response, Japan organized a robust national police force that could defend the country in a time of need. Within a few years, the Diet reorganized these defense capacities and created the Japanese Self Defense Forces (JSDF)—a military in all but name. Faced with a lurking constitutional issue, the Japanese Cabinet squared the existence of the JSDF with Article 9 in late December 1954 by arguing that “[t]he Constitution did not deny the self-defense right; Japan renounced war, but did not renounce the right to struggle in order to defend itself.” Two important lessons emerge from this episode. First, Tokyo justified its rearmament by emphasizing mission over capability. In other words, the JSDF looked like a conventional military in many respects, but—crucially—it would be used only for the narrow purpose of self-defense. Second, this limited mission would affect the division of labor in the U.S.-Japan alliance. As one scholar has put it, the JSDF’s focus ensured that “the United States would provide offensive capability and the SDF would concentrate on the less likely and smaller scale impact of any spillover effects from regional conflicts.” In recent years, however, both assumptions have lost much of their force. First, Japan may no longer be able to stand at the periphery of a regional conflagration; instead, it is much more likely to find itself caught in the middle. Although in past years Tokyo could safely watch the United States battle in the Taiwan Strait or on the Korean Peninsula, today, it cannot sit out a potential crisis with China over the Senkaku Islands, or a nuclear launch from North Korea. In part, Japan is the victim of technological development: countries like China and North Korea are gaining access to long-range military capabilities that expand the potential theater of conflict, roping in the Japanese islands. Whether Tokyo likes it or not, the fight is increasingly being brought to Japan itself. The upshot is that to defend itself, the island nation must become more proactive: it must work closer with its regional allies and recognize that potential threats may now come from further afield. Meaning of the Reinterpretation In light of these trends, Prime Minister Abe and his Cabinet reinterpreted Article 9 on July 1, 2014, in a way that would allow Japan’s military to engage in collective self-defense. Under this reinterpretation, Japan can come to the aid of allied forces if they come under attack. At the same time, this reinterpretation has clear limits. In announcing the Cabinet’s decision, Prime Minister Abe stressed that it did not depart from “the existing principle of not, as a general rule, permitting overseas deployment of the SDF.” Japan would not “become caught up in wars in order to defend foreign countries”; it remained a force oriented at self-defense. For that reason, Japan would engage in collective self-defense only “for the purpose of ensuring Japan’s survival and protecting its people,” only “to the minimum extent necessary,” and only in circumstances “when there is no other appropriate means available.” But in highlighting Japan’s status as a “peace-loving nation,” Prime Minister Abe also recognized that “[t]he peace we enjoy today is not bestowed upon us by someone else. The only way to achieve it is to establish it with our own hands.” This responsibility implies the continuing need to “respond[] to the changes in the times.” Prime Minster Abe highlighted how Article 9 had previously been reinterpreted in order to allow past changes in the JSDF’s mission, including a revision of the U.S.-Japan alliance in 1960 and Japan’s participation in U.N. peacekeeping operations since the end of the Cold War. In light of Japan’s “increasingly severe” threat environment, the Cabinet had decided to act once again. Of course, in order for the reinterpretation to have real bite, the Abe Administration will have to pass the legislation necessary to revise relevant laws such as the Self-Defense Law and the Japan Coast Guard Law. This process is ongoing, and the final outcome is uncertain: although Prime Minister Abe’s coalition holds majorities in both houses of the Diet, he must contend with skeptical coalition partners and a largely disapproving public. Reactions to the Reinterpretation at Home and Abroad Unsurprisingly, the Cabinet’s decision has proved controversial in Japan. In a poll conducted less than two weeks before Prime Minister Abe’s announcement, the Japanese public largely opposed exercising the right to collective self-defense (56%), while only a small minority supported it (28%). Activists have peppered the Japanese press with anti-reinterpretation editorials, and in one extreme case, a man set himself on fire to protest the decision. These protests have affected Prime Minister Abe’s approval ratings: after the decision was announced, they tumbled to a historic low of 42%. Since then, though, the ratings have risen again, suggesting that the Article 9 issue remains only one of many concerns on the mind of Japanese citizens. Outside Japan, the reaction has been mixed. Some regional powers have denounced what they perceive as Japan’s remilitarization. China has been particularly vocal: it has depicted the reinterpretation as a blow against the post–World War II international order. The other victim of Japan’s aggression during World War II, South Korea, has also expressed its concerns, albeit at a lower decibel level. But while Beijing and Seoul have condemned Japan’s reinterpretation, other powers have voiced their support. Unsurprisingly, nations in China’s lengthening shadow—as well as traditional allies like the United States—see Tokyo’s newfound assertiveness as a welcome counterbalance to growing Chinese power. After Prime Minister Abe issued his reinterpretation, the Pentagon released a statement lauding it as “an important step for Japan” that would “make the U.S.-Japan alliance even more effective.” Australia and the Philippines have also publicly welcomed the reinterpretation, while other nations—including India, Indonesia, Malaysia, Myanmar, Thailand, and Vietnam—have allegedly offered private encouragement.

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Prime Minister Abe has set out on a controversial course. Although success is far from certain, a victory for the Abe Administration is likely to have significant consequences for the U.S.-Japan relationship, as well as for the region as a whole. Either way, it is worth keeping an eye out for next month’s revised Guidelines, which promise to shed additional light on the future of the alliance.

Sean A. Mirski practices a combination of foreign-relations, international, and appellate law at Arnold & Porter in Washington, DC. He is also a Visiting Scholar at the Hoover Institution. He clerked for Justice Samuel A. Alito, Jr., on the United States Supreme Court, and for then-Judge Brett M. Kavanaugh on the United States Court of Appeals for the D.C. Circuit. He also served as Special Counsel to the General Counsel of the U.S. Department of Defense. He is the author of We May Dominate the World: Ambition, Anxiety, and the Rise of the American Colossus, which Kirkus selected as one of the 100 Best Non-Fiction Books of 2023.

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