In its drive to reinterpret Japan’s Constitution to allow it to exercise collective self-defense (CSD), the Abe administration’s proposals have constantly shifted. Prior to this week, Abe sought to authorize force provided that “Japan has come under military attack as well as when another nation has come under attack and that leads to the possibility that the survival of Japan is threatened and the right of the Japanese people to life, liberty and the pursuit of happiness could be fundamentally overthrown.” Coalition partner New Komeito, however, objected to language under which an attack on any country whatsoever that led to the mere possibility of certain poorly specified results would allow Japan to invoke the right to CSD. Consequently, Abe’s lieutenants have come up with new language, replacing “another nation” with “a country with a close relationship with Japan” and requiring that the attack “clearly cast a danger” rather than merely led to a possibility of harm.
On the surface, the changes seem to narrow the criteria, and New Komeito’s vice president has welcomed them. But would they in practice constrain Japan’s leaders any more than the old criteria?
In the first place, “a country with a close relationship with Japan” is still rather vague. A primary impetus for CSD is to allow Japan to take on missions for or in concert with American forces. Under the US-Japan Security Treaty, the two countries have an unquestionably close relationship. But in recent months, Japan has sought closer ties with Vietnam and the Philippines as they face China’s aggressive actions in the South China Sea. So an attack on them, assuming the other criteria were met, would presumably permit Japan to use force. Outside of, say, Côte d’Ivoire and Finland, what countries would be excluded?
More to the point, who would make the determination of whether a given country had “a close relationship with Japan” and whether an attack on it “clearly cast a danger” to Japan? The “decider” would be the government itself. Even if this were subject to a vote in the Diet, how many legislators, having been alerted to a purported national emergency, would question the clearness of the danger and refuse to authorize military action?
We have seen elsewhere the precise value of commitments made by a government with a history of language abuse to do X only if it can certify Y. Under U.S. law, no military aid may be provided to “the government of any country whose duly elected head of government is deposed by military coup d’etat or decree or, after the date of enactment of this Act, a coup d’etat or decree in which the military plays a decisive role.” To an objective observer, this would clearly apply to the current government of Egypt, but the Obama administration somehow found Morsi’s overthrow by military officers as something other than a coup. In addition, the law provides an out: “assistance may be resumed to such government if the President determines and certifies to the Committees on Appropriations that subsequent to the termination of assistance a democratically elected government has taken office.” It seems unlikely that this was intended to apply to a coup leader like el-Sisi engineering his own victory in an election that was democratic in name only, but as the President himself makes the determination, shipments of Apache helicopter gunships are set to resume. The quality of democracy is in doubt, and not just in Egypt.
The fundamental problem with Abe’s drive for CSD is that the state is attempting to use extra-constitutional means to remove constitutional limits on itself. When that same government can avoid restrictions merely by certifying that certain conditions hold, it is in practice free to do as it wishes. The fiction of limits serves only to provide New Komeito’s leadership with a way to package a sell-out as a victory eked out after principled resistance.