뉴스레터

Question

Tokyo is making controversial moves recently to seek Japan's 'right of collective self-defense.' What specifically does Japan mean by 'right of collective self-defense'?

Answer

According to Tokyo's definition, the right of collective self-defense is 'the right for a nation to physically intervene when its ally comes under armed attacks, even if it is not itself the victim of the attacks.' Tokyo's position has been that Japan has the right, but is forbidden to exercise it under Article 9 of the Japanese Constitution.

A nation's right of collective self-defense is enshrined in international law, specifically in Article 51 of the Charter of United Nations, a charter that prescribes the establishment of collective security system and the rights of individual and collective self-defense. When it acknowledged the right of collective self-defense for the first time, however, the Charter of the United Nations didn't specify its meaning. As a result, there are differing views among scholars and countries on the meaning of the right of collective-defense, although they share a certain level of understanding.
As can be inferred from the background of its establishment, the right of collective self-defense is rooted in the fear of minor powers about the worst scenario in which collective security collapses as major powers refuse to maintain it, and regional organizations lose independence. Once it was prescribed under the Charter of the United Nations, the right of collective self-defense has been the basis on which a number of bilateral or multilateral collective defense treaties were concluded and collective defense systems established.
Sometimes the right of collective self-defense is confused with collective security. While collective security is a system to maintain order within a single group, the right of collective self-defense is a right to defend oneself against attacks from external enemies. These two concepts are essentially different but closely related with each other under the Charter of the United Nations.

In terms of its legal characteristics, the right of collective self-defense is viewed as :
1) justifiable defense to defend the rights of other countries;
2) self-defense, i.e. collective exercise of the rights of individual self-defense; or
3) when the safety and independence of a given country under attack is of vital importance to another country,

then that country may take defensive actions. And this is the universally accepted view today. In this case, however, given the vague relationship between the country under attack and the country exercising the right of collective self-defense, military interventions may increase.

To avoid them, the International Court of Justice (ICJ) ruled in the 1986 Nicaragua case that the right of collective self-defense could not be exercised unless the country under attack announced the attack and requested help from other countries. In fact, the right of collective self-defense is thought to have been abused. The actual occurrence of armed attacks from the outside and the validity of the request for help by the country under attack have been always questioned.

To maintain international order, these two requirements need to be met before the right of collective self-defense can be exercised. Recently, the Frontier Subcommittee of the Council on National Strategy and Policy, the advisory council for Japanese Prime Minister Noda Yoshihiko (野田佳彦), suggested that "the existing practices, including the interpretation of the right of collective self-defense, should be reconsidered so as to seek expanding means of cooperation for security," inciting a backlash from the Korean press, which denounced it as Japan's revealed ambition to become a military power in earnest. But a similar suggestion had been already made, although not realized, during the Abe Shinzo administration; on May 18, 2007, the expert panel on security, an advisory council of its kind, suggested, based on a study of the cases where the right of collective self-defense had been exercised, that the right of collective self-defense should be allowed to be exercised in the following four cases :

1) Counterattack in case a U.S. naval vessel should be attacked while sailing side by side with Japaness Self-Defense vessel on the high seas;
2) Counterattack missile defense system(MD) against missile that might be on its way to the United States;
3) logistics support for the operations of other countries participating in the same peace operations, such as U.N. PKOs (Peace Keeping Operations);
4) use of weapons to eliminate obstacles to PKOs

Even Abe Shinzo, considered one of the most right-winged administrations in the history of Japan, couldn't alter the interpretation of the current Constitution that prohibits the exercising of the right of collective self-defense. The Noda administration seems unlikely to succeed.
Tokyo is discussing the following options to allow exercise of the right of collective self-defense :

1) to amend the Constitution
the most desirable option, although it is not feasible because it requires motions by two-thirds of congressmen and a majority vote in a referendum
2) to enact a law enshrining the right of collective self-defense
this option will cause political confusion resulting from disputes within the Diet and a delay in amending the Constitution. If the Security Act was enacted, should the interpretation of the Constitution change?
3) for the Diet to pass a resolution that recognizes the right of collective self-defense
this option not only requires a unanimous vote but would also create a weird reality where the Diet is superior to the administration in interpretation of the Constitution.
4) to express an intention for the amendment of the Constitution by an interpretation of the Cabinet
this option undermines the stability of the law as it is equivalent to bidding defiance to the Constitution. If this option were adopted, Japan would be regarded as a country that easily abrogates its own fundamental principles, and lose credibility in the international community.

Recent political moves within Japan are pointing to the second option. The concern is that once Japan was allowed to exercise its right of collective self-defense, the Japan Self-Defense Forces would transform into the official armed forces of one of leading military powers in the world and, along with the U.S., might abuse the right of collective self-defense on its neighboring countries.