New Japan SDF Legislation Breaks from History

In the wee hours of the morning yesterday, Japan’s ruling Liberal Democratic Party (LDP)–Komeito coalition muscled a suite of security-related bills through the upper house of the Diet. The bills, now certain to become law, fundamentally re-draw the legal parameters of security cooperation in which the Self-Defense Forces (SDF) may now engage.

In the wee hours of the morning yesterday, Japan’s ruling Liberal Democratic Party (LDP)–Komeito coalition muscled a suite of security-related bills through the upper house of the Diet. The bills, now certain to become law, fundamentally re-draw the legal parameters of security cooperation in which the Self-Defense Forces (SDF) may now engage.

The new laws will allow the Japanese government to exercise a constrained form of the right to collective self-defence (CSD) and assist an ally during a military contingency, even if Japan is not directly under attack. Prime Minister Shinzo Abe’s private advisory panel had argued that the potential to undermine trust in the US–Japan alliance — and thereby its deterrence capability — if Tokyo did not assist during a contingency should itself be a sufficient basis to exercise this right. The LDP bosses too had held out for a lenient reinterpretation.

Due to pressure from the LDP’s pacifist junior coalition partner, Komeito, the legislation allows Tokyo to exercise the right only when ‘an armed attack against a foreign country that is in a close relationship with Japan occurs.  It also states … [which] poses a clear danger to [the Japanese people] …and there are no appropriate means available to repel the attack and ensure Japan’s survival’. The United States is for now envisaged as the only such collective self-defence partner.

The legislation also expands the range of the SDF’s logistics support functions during a regional contingency or multinational mission not considered ‘integrated with the use of force’. Abe’s advisors had called for the discontinuation of this concept altogether, while the LDP had sought to authorise most forms of logistics support to foreign troops even in combat areas. However, after more pressure from Komeito, support activities can henceforth conduct in a military theatre only if it is ‘not the scene of actual combat activities’. The U.S. and Australia during regional contingencies and Tokyo’s multinational partners in ‘coalition of the willing’ peace enforcement missions expect to be the beneficiaries of such assistance.

Two key rationalisations underpin the security bills: that Japan’s external security environment is rapidly deteriorating; and that US deterrent power in Asia is diminishing, with knock-on effects for US–Japan security arrangements. Hence, the imperative to reinterpret the SDF’s ‘self-defence’ and ‘use of force’ powers to enable seamless alliance cooperation and ‘preemptively diminish the potential for conflict by enhancing deterrence’.

Both rationalisations are contestable. The withering of Japan’s security environment is a function of the insecurity generated by its own economic decline (rather than China’s rise) and its discomfiture in striking up a mutually beneficial political equation with Beijing. Meanwhile, the pre-eminence of US hard power in Asia seems assured. ‘Escaping the post-war regime’ and its pacifist constraints, rather than deterrence, appears to provide a more likely motivation.

The legislation received a groundswell of popular criticism, including by a host of non-partisan establishment voices ranging from ex-Supreme Court justices to Cabinet Legislation Bureau chiefs. Critics argue that the criteria that trigger the exercise of the right to CSD are vague, overly broad and excessively complex. What, for example, exactly is a ‘survival threatening situation’ and why is an ‘imminent armed attack situation’ not also sufficient to exercise the right to CSD? A key example given by the LDP of a ‘survival threatening situation’ — a blockade of the Strait of Hormuz — has also been criticised as misleading given that the Abe government itself projects oil to comprise just 3 per cent of the energy mix by 2030. Besides, had not Manchuria and Mongolia too, as sea lines of communications today, constituted indispensable lifelines during a darker recent period in history? In addition, the integrated use of force beyond the ‘Far East’ theatre seems to overstep Article 6 of the US–Japan security treaty.

The security bills also take aim at two of three key tenets of Japanese pacifism: the dispatch and exercise of force overseas and the minimum exercise of force. The legislation permits incursions into other countries’ land, sea and airspace with the aim of using force by way of CSD-linked minesweeping operations and strikes on enemy military bases. And while current restraints on the minimum use of force remain, the SDF’s logistics support assistance (which includes transporting toxic gas weapons and supplying depleted uranium munitions) to allies in close proximity to the battlespace would effectively make it an accessory to the use of force that bears no correlation with minimum levels necessary for ‘self-defence’.

Constitutional barring from exercising the right to CSD is misplaced and is a cardinal criticism. It is true that Abe has adapted the interpretation of the constitution to fit the security bills. Post-war Japan has always located its rights to self-defence and deterrence in the preamble and in Article 13, which states that people’s life, liberty and pursuit of happiness shall be the supreme consideration in legislation. Article 9.2 affords space to maintain a military capability. The July 2014 reinterpretation of the constitution and the security bills operate, for the most part, within the construction and constraints laid out in subsequent Cabinet Legislation Bureau interpretations.

Future Japanese governments would be wise to limit their exercise of the right to CSD to the Article 6 ‘Far East’ area of operations, defined as the area north of the Philippine islands. Involvement in disputes neither clearly related to Japan’s interests nor spelt out persuasively to the public, including in the South China Sea, would degrade, not enhance, deterrence. Future governments would also be prudent to limit their logistics support-related participation to peacekeeping or peace enforcement missions that have clear UN authorisation.

Most of all, future governments must reconstruct the bases of Japan’s geo-political relationship with China. Tightening deterrence arrangements without a strategy of comprehensive diplomatic engagement that affords a principle of mutual self-restraint with a rising potential foe is a recipe for further insecurity. Japan’s ‘silver pacifism’ — with its aversion to military adventures, near and remote — will require that its leaders exercise their newly legislated security prerogatives with patience and prudence.

Abe’s new security legislation doubles-down on the US alliance is republished with permission from East Asia Forum