From Japan to Afghanistan: the U.S.-Japan joint security relationship, the war on terror, and the ignominious end of the pacifist state?

• Author: Southgate, Edward J.L.

INTRODUCTION

On November 9, 2001, three warships of the Japan Maritime Self-defense Forces (JMSDF or Kaigun) left Sasebo naval base for Diego Garcia in the Indian Ocean in support of Operation Enduring Freedom. (1) This dispatch commenced the first combat theater operations of the Japanese navy abroad since the end of hostilities in 1945 and followed the overwhelming Diet approval, two weeks earlier, of the Anti-Terrorism Special Measures Law. (2) On its face the law grants the JMSDF the ability to provide noncombat support to U.S. forces overseas in the war on terror, including resupply, repair, and search and rescue services. (3) More important from a geopolitical standpoint, however, is that the law coterminously represents a radical departure from the post-World War II status quo in East Asia. The mobilization of the Self-Defense Forces (SDF or Jieitai), including the JMSDF, calls into question the constitutionality of the SDF more clearly than ever before with the possible consequence of a sea change in what is arguably the most important bilateral relationship in the world today: the United States-Japan security alliance.

Japan is unique among the nations of the world in that it constitutionally relinquished its right as a sovereign nation to go to war. (4) Article 9 of the post-World War II constitution provides:

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 a 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. (5) While the prohibition on military buildup in Article 9 appears to be explicit, revisionist legislators--upset with what they argue was a constitution "imposed" by General Douglas MacArthur and the Supreme Command for the Allied Powers (SCAP) (6) and prompted by U.S. officials caught up in the exigencies of the Cold War (7)--have used an inherent ambiguity in Article 9 to justify the creation of the SDF. (8) The justification advanced by these legislators for the creation and maintenance of the SDF depends upon a flexible interpretation of "war" as an aggressive act. By establishing a military on the basis of a right to "self-defense," the Japanese Diet has sidestepped the constitution; but this is only logically tenable to the extent that the SDF concerns itself solely with the defense of Japan.

The American framers of the Japanese constitution intended that, like the U.S. Constitution, the document they drafted for Diet approval would be the "supreme law of the nation." (9) To safeguard the constitution's primacy, the framers placed significant hurdles in the path of would-be revisionist legislators. Article 96, in particular, provides that amendments to the constitution may only be made by a two-thirds affirmative vote in both houses of the Diet and with ratification by a majority of the electorate. (10) In the post-War Japanese milieu both SCAP and the Diet's own constitutional commission believed that such stringent requirements were necessary to ensure constitutional stability and to prevent a backslide from the newly instituted democratic ideals of the "MacArthur Constitution" to the imperialist ones of the prewar Meiji Constitution. (11) The effect of Article 96 is to make revision of the constitution "'either extremely difficult or next to impossible.'" (12) As a consequence, the Diet avoids the need for revision through use of judicial precedents, administrative practices, and circumlocutions such as that employed to describe the SDF. (13) Under ordinary conditions these methods afford maximum maneuverability while assuring the Japanese public, as well as Japan's allies and neighbors, that the Diet acts within the scope of its grant of power.

The deployment of JMSDF vessels to the Afghani theater, however, represents a departure from the "self-defense" rhetoric of the SDF's supporters and could be a material breach of the prohibitions embodied in Article 9. While initial public reaction in Japan has strongly favored the Anti-Terrorism Special Measures Law and support of the U.S. war on terror, (14) Japanese opposition parties, in particular the Japanese Communist Party (JCP), have vociferously objected to what they contend is a "distort[ion of] constitutional principles to justify the dispatch of SDF units abroad." (15) Similarly, Japan's neighbors, long sensitive to the possible reemergence of Japanese militarism, (16) viewed the dispatch of JMSDF units unfavorably. North Korea, for one, has argued: "'This [law allowing SDF participation in the war on terror] indicates that the Japanese reactionaries, who have stepped up their moves for military power and militarization of Japan, took a very dangerous step forward for overseas aggression....'" (17) These nations, together with the opposition parties in Japan, contend that the Anti-Terrorism Special Measures Law is inconsistent with the purposes of Article 9 and even the flexible interpretation of Article 9 used to justify the SDF's existence. (18) According to a group of Japanese constitutional scholars:

The [law's] intent is to conduct "cooperation and support activities" including supply, repairs, servicing, medical care, and the transport of weapons, ammunition, and personnel, but assuming that the use of force is impossible without such help, this support is an essential part of military action, and is therefore clearly participation in war. This would be the first participation in the use of force by Japan's military apparatus in the postwar years, and would clearly violate Article 9 of Japan's Constitution.... (19) While the potential ramifications of the Anti-Terrorism Special Measures Law for the SDF and Article 9 are serious, the dispatch in November of three JMSDF ships additionally implicates the future bilateral security relationship between Japan and the United States under the U.S.-Japan Treaty of Mutual Cooperation and Security. (20) Based on the terms of this agreement and subsequent implementation "Guidelines," (21) the Japanese and U.S. militaries are pledged to conduct bilateral defense planning and assist each other in the event of an attack on Japan or "a situation in areas surrounding Japan." (22) In accord with the principles of the constitution, including Article 9, the terms of the Guidelines limit the SDF's contributions to the alliance for certain actions. In practice, this means the SDF is only committed to providing rear-area support, nonoffensive information gathering, and minesweeping in the event of a conflict outside of Japan. (23) Although the Anti-Terrorism Special Measures Law meets these limitations, Afghanistan likely does not qualify as an "area surrounding Japan." (24) Japanese participation in the war on terror, at least insofar as it occurs outside the Guidelines' operational area, is therefore an expansion of the SDF's role in the joint security relationship. Furthermore, the use of weapons, albeit strictly confined to cases of self-defense or necessity, is not as tightly controlled under the Anti-Terrorism Special Measures Law as under the previous SDF principle of nonparticipation. (25) The expanded role of the SDF thus calls into question the existing security arrangement between the United States and Japan, even as it raises the precedent question of whether the SDF and its actions in support of the war on terror are constitutional.

This Comment will assess the Anti-Terrorism Special Measures Law under the strictures of Article 9 and its subsequent interpretation by Japanese courts and the Diet to determine both the constitutionality of the SDF's participation in the war on terror and the probable response of the majority coalition to the arguments of the opposition parties. In addition, the Comment will look to the Treaty of Mutual Cooperation and Security to discern possible implications for the future of the United States-Japan alliance. Toward those ends, Part I considers the circumstances surrounding the adoption of Article 9 and its diachronically asynchronous interpretation from 1947 to the promulgation of the 1997 Guidelines. Part II examines the Guidelines in brief, with particular attention to the role of the SDF in U.S. led military actions (as opposed to search and rescue activities). Parts III, IV, and V address the constitutionality of the Anti-Terrorism Special Measures Law and the subsequent "Basic Plan" implementing the law. Part III provides an analysis of the relevant provisions of the law together with a history of the law's execution and a preliminary sketch of the law's intersection with Article 9. Parts IV and V discuss, respectively, the judicial and legislative responses to the limitations of Article 9 and the continued existence of the SDF. Finally, Part VI presents some possible consequences for Article 9 and the joint security arrangement between the United States and Japan brought on by the Special Measures Law. The Conclusion explores an alternative solution to what the Comment posits may be the ignominious end of the world's sole "peace constitution." (26)

1. FROM 1947 TO 1997: FIFTY YEARS OF ARTICLE 9 EXEGESIS

   1. In the Beginning

      The origins of Article 9 are unclear, (27) but the desire to completely disarm and demilitarize the Japanese archipelago was one of the principle aims of the Occupation. (28) General MacArthur, who was charged with administering the Occupation through SCAP, sought to establish a "peaceful and responsible government" in Japan that would "respect the rights of other states and ... support the objectives of the United States as reflected in the ideals and principles of the charter of the United Nations." (29) This goal, MacArthur believed, had two precursive components: (1) elimination of...