by Shichi Koseki, Tetsuo Maeda, Yji Suzuki, Susumu Takahashi, Sakio Takayanagi, Yoshiharu Tsuboi, Haruki Wada, Jir Yamaguchi and Sadamu Yamaguchi
Edited and Introduced by Gavan McCormack
The security implications of the end of the Cold War took longer to be appreciated in East Asia than in Europe, but by the mid-1990s loomed large. The two distinctively Japanese dimensions to the debate are the future of the US-Japan Security Treaty (whose abrogation was urged by prominent American voices in the pages of Foreign Affairs in 1995), and the closely-related questions of Japan's own military posture, including its future contribution to the United Nations (on which it aspired to a permanent Security Council seat). The debate on revision of the constitution of 1946 entered a new phase as a result of the changed international circumstances of the 1990s. Whereas in the established Cold War debate on constitutional revision, 'conservatives' favoured a more central role to the emperor and overt state possession of military forces, and the Socialist and Communist parties clung to a strict 'defend the constitution' line (often interpreted to mean unarmed neutrality), after 1990 attention focused on the need for Japan to maximise its contribution to the construction of a New World Order, and on whether the existing constitutional arrangements were appropriate or needed revision to that end. Rethinking on both 'conservative' and 'socialist' sides was profound and for the first time a narrow majority in public opinion surveys came to favour revision.
The document which follows was written by a group of prominent Japanese scholars of law, history and politics, who attempt to recast the traditional 'constitutional defence' position in such a way as to develop a positive, while distinctively 'pacifist' vision for Japan. Their formula calls for Japan to adopt a 'Basic Peace Law' to complement the constitution, and to play a greatly expanded international role, involving a gradual renegotiation of the US-Japan Security Treaty. It was published in 1993 and 1994 in the monthly journal Sekai, published by the Iwanami publishing group, and is here presented in English translation for the first time.
The end of the Cold War opened for Japan (as elsewhere) a phase of institutional and political change. Unlike the dramatic and sudden events in Eastern Europe and the Soviet Union symbolized by the collapse of the Berlin Wall, what happened in Japan was a slow unravelling, a loss of that clear direction imposed by the Cold War and a growing feeling that existing arrangements were no longer appropriate, but without any clear sense of what should replace them. Beneath the surface of political drift, economic recession, and social gloom of the early 1990s, however, the search for a way out of the impasse has focused many minds and a debate of considerable importance about the future of the country was evolving. The papers presented here are one contribution to it.
To conceive of a 'new' way forward is to consider, or reconsider, the roots of the existing one. For Japan, that means the post-1945 settlement, reflected in three key underpinnings: the choice of continued imperial institution (albeit in a peculiar new form as 'symbolic'), the constitution (commonly known as the 'peace' constitution after its famous Article Nine), and the US-Japan Security Treaty (known as Ampo after its Japanese abbreviation). All three were in accord with the decisions of the then-occupying US forces, and throughout the postwar period they have remained central to the political-military order. The search for a 'new' world order, however, redirects attention to the mode by which Japan was incorporated nearly fifty years ago in the 'old' one.
The second of these elements, the 'peace' constitution, constitutes the main focus of the debate thus far. Throughout the Cold War, the position was clear: the United States regretted the constitutional constraint of pacifism almost from the moment it imposed it in 1946, and for decades imposed steady pressure on Japan to revise or evade it. During the Cold War, the Liberal-Democratic Party (LDP) was committed to revision and the Japan Socialist Party (JSP) to retention of Article Nine; the one insisted on the constitutionality of the military forces that were established during the Korean War and came to be called 'Self-Defence Forces' (SDF) and the Ampo treaty; the other stood resolutely opposed to both and in favour of unarmed neutrality. While the LDP maintained political hegemony, the JSP reflected the deep popular commitment to pacifism and served to constrain and limit what the LDP could do.
Following the Gulf War, there was a sharp debate in Japan on the question of whether and how to cooperate in UN peacekeeping activities.(1) The aspiration to attain a seat as permanent member of the United Nations Security Council seemed not to sit well with the reluctance to participate in peacekeeping activities. In 1992, for the first time since the Second World War Japanese troops ('Self-Defence Force' units) were despatched overseas, joining the UN peacekeeping operations in Cambodia. By 1993, major business groupings were beginning to call openly for constitutional revision, and some opinion surveys began to show more people in favour of revision of the constitution than opposed, indicating a profound shift. The prominent conservative politician, Ozawa Ichir, published a book critical of Japan as a 'one lung state' and calling for it to become instead a 'normal state'.(2) In 1994, the JSP (by then under its new name, at least in English, as the Democratic Socialist Party of Japan) held an extraordinary national convention at which it reversed itself on the fundamental questions, declaring that it no longer held the existence of the SDF to be unconstitutional or objected to the Ampo security treaty with the United States. The following year it decided to dissolve itself altogether. The post-Cold War spectrum of constitutional opinion therefore presents the curious spectacle in which literal conservative constitutionalism is held by the Japan Communist Party alone.
The revisionist position has also been radically redefined. Where revisionists had traditionally favoured return to the values of the pre-war constitution--centrality of the emperor and removal of inhibitions on national 'defence'--in the early 1990s their case was fundamentally reconstructed. The draft revision produced by the think-tank established by the country's largest newspaper, the Yomiuri (circulation around ten million), affirmed the principles of popular sovereignty (even to the extent of relegating the clauses on the emperor to a subordinate position) and articulated a vision of Japan as a predominantly civilian power, playing a greatly expanded role in the international community while retaining the SDF and the Ampo treaty.(3)
Following the conversion of the Socialists to support for the SDF and Ampo treaty, the traditional 'left' camp was divided and confused. While the communists, as mentioned, maintained a diehard defensive posture, and the dwindling band of Socialists bowed to the status quo, several groups of intellectuals, with backing from major media groups, began to articulate a vision which would attempt the apparently impossible: to rearticulate the constitutional commitment of postwar pacifism in such a way as to preserve and develop the long tradition of constitutional pacifism but at the same time accept the constitutional basis for a defensive force (while not endorsing the existing SDF), and enunciate a visionary, future-oriented, regional and global programme for Japan. The nine scholars of the group whose thinking is conveyed in the following text may be described as the 'Iwanami Group' from the fact of their proposals having been published in the monthly intellectual journal of the Iwanami publishing house, Sekai, long seen as the flag-bearer of the pacifist movement. Their proposals have been controversial. Their thinking centres on the idea of a 'Basic Peace Law', but extends to the vision of a regional security which would entail the gradual transformation and transcendence of both the SDF and the US alliance. Their prescription goes furthest of those so far published to rethink not only constitutional but also regional and global security matters. Most recently, the country's second largest newspaper group, the Asahi, has also published a detailed plan, very similar in orientation to this, also endorsing the constitution as it stands but supplementing it instead with what it would describe as an 'International Cooperation Law'.(4)
The terms of a completely new phase of constitutional debate in Japan were thus drawn within a few years of the collapse of the Cold War. The issues are of considerable global and regional significance, but have attracted little attention abroad thus far. The post-1945 German and Italian constitutions have been many times revised, without occasioning any particular fears about resurgent nationalism or militarism. In Australia, the debate over republicanism proceeds calmly enough and even in Britain republicanism has been given a position on the agenda of political debate. The Japanese post-1945 institutional framework may be expected too to be increasingly debated, and sooner or later revised. For the moment, attention focuses on questions of pacifism and the nature of the international role which Japan might articulate for the 21st century, although republicanism will presumably also appear in due course. The texts that follow have been translated in order to make available to the international community the thinking of one of the most significant contributions to the debate thus far. Gavan McCormack, 4 July 1995
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. 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. Article 9, Constitution of Japan.
Proposal
The Cold War era, which for nearly half a century gripped the world
within its tensions, has ended. It is also the end of that 'age of
world wars' which from the beginning of this century led the great
powers to pour out vast sums in military expenditure, and to form
alliances opposing one another on a global scale.
The end of the Cold War on a global scale demands an end in Japan to the various arguments and confrontations which have long continued within its domestic politics. It goes without saying that the biggest argument in the postwar period has been that regarding the issues of Article Nine of the Japanese Constitution, the Japanese Self-Defence Forces, and the US-Japan Security Treaty. Because of Article Nine, which, under the flag of 'pacifism', makes clear its stance of 'renunciation of war' and 'non-possession of war potential', the Japanese Self-Defence Forces lack the dimensions of a conventional military force in terms of command, operations, and deployment, and the right to wage war, although they possess huge war-making potential. Similarly, the US-Japan Security Treaty has had to function as an irregular system, not in the form of a conventional military alliance.
Herein lies the reason for the continuing dissatisfaction of those, mainly in conservative and government circles, who demand a 'normal state'. While the spirit of the constitution has been distorted by the SDF and the Security Treaty, so, conversely, the SDF and the Security Treaty may also be said to have been distorted by the existence of the Constitution (at least from the point of view of the conventional modern state). Furthermore, since the security debate died down in the 1970s, this structure was simply set aside without any pretence of a solution, and on the surface appeared to be forgotten.
However, the contradictions and the gap between the Constitution, the SDF and the Treaty cannot simply be set aside in this way. The problem henceforth is whether to try to correct the distortions while adhering to the spirit of the Constitution, or alternatively to correct them by holding fast to the Security Treaty and the SDF.
The latter position is that of constitutional revision, which is now vociferously advocated. The common strain of thinking in this argument is that which advocates 'normal statehood' with a 'normal army' for Japan, along with international 'great power' status in the international community represented by a permanent seat on the UN Security Council, and to that end international contribution and the overseas dispatch of armed forces.
Basically, we advocate the former position. Apart from the fact that the main consensus among the Japanese people is the aspiration for peace and justice, the renunciation of war and the ability to wage war, and respect for international cooperation, all set out in the Constitution, we consider it a position that most adequately reflects the spirit of the present age in which wars on a world scale are a thing of the past.
Classical warfare, in the sense of state armies being pitted against each other, or wars fought by the forces of several states forming military alliances as was once the case, has become unimaginable, at least among the advanced industrial countries. The best chance for the spirit of the Japanese Constitution to match that of the current age has arrived. It must be stated however, that our position is not that of the established constitutional defence party, Gokenron, which calls for the immediate abolition of the Self-Defence Forces as unconstitutional. As will be explained further on, we are advocating not complete disarmament, but a new type of Self-Defensive Defence, wielding the minimum necessary defensive force, which, subject to meeting various conditions, could be maintained constitutionally. This position could be described as Skenron, or 'creative constitutionalism'.
While still adhering to the spirit of the Constitution, how are we to resolve the contradiction between the Self-Defence Forces and the Constitution that has divided public opinion for so long, and achieve a national consensus on this matter? We wish to propose the creation of a semi-constitutional law that in legal terms would be derivative from Article Nine, and which would adhere to its spirit, which we have named the Basic Peace Law.
This Basic Peace Law as we propose it is not merely the exposition of an ideal, but a practical foundation to consolidate Article Nine of the constitution, specifying procedures and processes to embody its ideals. Furthermore, it reverses the gradual erosion of the ideals of the Constitution consistently practiced by successive postwar conservative governments, and would amount to a vow of 'non-use of force', 'renunciation of war' and 'disarmament' to both the Japanese people and the people of the entire world, most particularly the peoples of Asia. The National Defence Agency and Self-Defence Forces based on the present Defence Law would be re-structured and incorporated under this law. From the moment of inception of this law, the Self-Defence Forces, which, because of unconstitutional elements contained within them, could be described as in an unconstitutional state, would be re-structured into a new organisation, provisionally named the National Guard (Kokudo keibitai). This could be regarded as a transitional entity pointing towards the Minimum Defensive Force that would be constitutional and lacking in any attacking capacity. So far as Japan's international contribution of a non-military kind is concerned, that would be entrusted to a separate organisation. Furthermore, the Japanese people would be able to launch court actions based on this law, hence shifting the current debate over interpretation from the Constitution to this Basic Peace Law.
Firstly, we will present the following points which we feel should be incorporated into the Basic Peace Law. It goes without saying that the following is not a formal draft law, and as such it is not presented in strictly legal form. Then secondly, we will explain its background.
Outline of a Basic Peace Law (Draft)
A. Objectives
This law affirms the basic principles and ideals regarding security
embodied in the Japanese Constitution, and is here promulgated in
order to detail concrete methods and procedures by which to
maintain the security of the Japanese people and contribute
positively towards world peace, striving for the implementation of
the universal ideals embodied in the Constitution, in particular
the spirit of those sections of the Constitution which state that
the Japanese people have
| 'resolved that never again shall we be visited with the horrors of war through the action of government' (Preamble); |
| that 'We, the Japanese people . . . have determined to preserve our security and existence, trusting in the justice and faith of the peace-loving peoples of the world' (Preamble); |
| that '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 . . . 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' (Article Nine). |
B. Relationship with the Constitution
The right to live in peace
The Japanese people are guaranteed 'the right to live in
peace' under the Constitution of Japan. The government bears the
responsibility of security in order to protect the people's lives
from various threats.
The right to self-defence
Although Article Nine of the Constitution by paragraph one
rejects aggressive war and prohibits the use of force as a means of
settling international disputes, the right to individual
self-defence is recognised by Article 51 of the United Nations
Charter. Sufficient force may be maintained to defend the people's
lives from any invasion of sovereignty. However, because paragraph
2 of Article Nine prohibits all war potential and renounces the
right to Defensive Force, and the mode of its organisation and
equipment, and the methods by which it may exert force, must be
limited and restricted.
Prohibition of conscription
Since the Constitution of Japan forever renounces war as a
sovereign right of the nation, no emergency powers for such purpose
may be adopted, the government does not have the right to declare
war or sue for peace, the establishment of courts martial is
prohibited, and the duty of state defence shall not be imposed upon
the people. Based on the spirit of the Constitution, the government
shall not impose conscription or any other analogous duties upon
the people.
Obligation of disarmament
Since the Constitution prohibits our nation from the use of force
as a means of settling international disputes, the duty to strive
ceaselessly for disarmament, both in Japan and in the world, is
imposed on Japan.
C. Security not reliant on military force
Relations with neighbouring
countries
The basis of the security to which the Constitution of Japan
aspires is 'trust in the justice and faith of the peace-loving
peoples of the world'. Previously, Japan committed the error of
employing force to make colonies of its neighbouring countries,
threatening and invading them with force, and inflicted numerous
sufferings and losses upon them. The first thing that Japan must do
to regain the trust of these nations and to secure the peace and
security of Japan by trusting in the 'justice and faith of the
peace-loving peoples of the world' is to pledge never to repeat
those errors, and to apologise and compensate for them. The
Japanese people must not be allowed to forget this reality.
Common security
Regional collective security. The peace and security of
the Asia-Pacific region is an indispensable factor in the security
of Japan. By avoiding the construction of hypothetical enemies,
deepening of mutual economic, political, and cultural exchange, and
gradual and continuous effort toward building and encouraging
mutual trust in this region, Japan should exert itself to get
mutual declarations and treaties of non-aggression and non-war.
Every effort must be made to construct a regional collective
security apparatus, as was prescribed in a future-oriented way in
the United Nations Charter. Furthermore, every effort shall be made
to inform the other peoples of Asia of the ideals embodied in
Article Nine of the Constitution, and of the Japanese people's
sincere commitment to these ideals.
Common security based on the United Nations Charter. The United Nations Charter and the Constitution of Japan are both rooted in the common spirit of the same period in terms of their renunciation of the use of force as a means for settling international disputes and their aspiration toward international security based on rejection of war. Furthermore, the peace of Japan cannot be realised without a stable international peace and order. From this perspective, along with positive participation in the various United Nations activities, every effort shall be made toward what can be termed common security on a global scale in the form of a UN-centred collective security apparatus. Also, every effort shall be made toward the democratic reform of the United Nations, and a position of responsibility should be adopted to pursue such reform.
However, so far as the 'use of military forces' against threats to peace or against aggressors as prescribed by Article Seven of the UN Charter is concerned, in consideration of the fact that the 'war potential' and war methods employed by United Nations member-states is completely different from that envisaged in the period during which the Charter was established, we make this concrete proposal for cooperation with other states towards the establishment of a 'United Nations Army' suited to the contemporary world.
Comprehensive security
Security means the protection of the lives of the people from all
sorts of threat. To accomplish it, we must strive by diplomatic
effort, stabilising and improving domestic politics, stressing the
non-military aspects of scientific and technological, economic and
industrial progress, to transform the international environment in
desirable directions and to promote a security which will ease
antagonisms in order to effect favourable change on the
international environment. Furthermore, we recognise that the
increasing wealth gap between North and South is the major source
of conflict, and shall make every effort to rectify it.
Prohibition of military
alliances
In accordance with its Constitution, Japan should not belong to any
military alliances. Taking note of the new post-Cold War
circumstances, we look to the demilitarisation of the post-Cold War
US-Japan Security Treaty and its development and merger into a
regional collective security system (see 2A).
The three non-nuclear principles
Japan shall never possess, store, or develop either nuclear weapons
or the means to transport them. Furthermore, Japan shall not export
armaments to any country, nor repair or modify the weapons
possessed by another country.
D. Minimum defensive force
Task
Its task is to respect the spirit of the Constitution and defend
the people from any act in violation of territorial
sovereignty.
Command
The Prime Minister shall command and supervise it.
Ministry for Peace and
Disarmament
As for the possession and management of a strictly-controlled
minimum defensive force, a provisionally named Ministry of Peace
and Disarmament (or alternatively, Ministry of Peace and Security)
shall be established. A civilian shall be appointed to head this
Ministry (Article 66:2, Constitution of Japan).
Basic principles
The Minimum Defensive Force cannot engage in defence activities
beyond the boundaries of Japanese sovereign air, sea, or land
space. The position of resort to the use of force only after prior
use by an opponent shall be maintained.
Furthermore, the decision to deploy the Minimum Defensive Force shall be subject in principle to the prior resolution and approval of the National Diet.
Composition and equipment
Levels of personnel, budget, composition and equipment appropriate
within the limits appropriate to conducting the tasks outlined by
the Basic Peace Law require the decision and approval of the Diet.
Furthermore, in regard to scale, every effort shall be made to
adhere to the principle of consultation with neighbouring countries
and mutual approval.
Civilian priority
The Ministry for Peace and Disarmament shall be managed according
to the principle of civilian priority.
Public disclosure of information
The Minimum Defensive Force shall have a duty to publish to the
Diet all information pertaining to matters of equipment, operations
and information collection.
Rights of members
The democratic rights (including the right to public association)
of personnel who volunteer to participate in the Minimum Defensive
Force shall be respected in the same manner as the normal rights of
all public servants.
Obligation of fulfilment and
penalties
This law imposes upon the government concrete
obligations--including in respect of disarmament--of fulfilment,
and appropriate penalties for breach. Accordingly, in the event
that either the general public or the members of the Minimum
Defensive Force have reason to believe that these principles have
been violated, they may resort to the courts.
E. Transitional measures
Following the establishment of the Basic Peace Law, the current
Self-Defence Forces shall be reorganised into a National Guard
(Kokudo keibitai: a provisional title) with different
duties. Furthermore, an International Relief Force (Kokusai
kynantai: a provisional title) shall be hived off as a
separate organisation, comprising volunteers, for non-military
activities associated with UN Peacekeeping Operations and other
duties relating to international contribution. Continuing
employment will be guaranteed to all personnel.
A disarmament program, designed to bring about the Minimum Defensive Force, shall be spelled out, according to which reductions of equipment and personnel shall be effected in harmony with the disarmament processes of neighbouring countries. (At the time of establishment of the Basic Peace Law, the Diet shall proclaim the constitutionality of the National Guard.)
F. Non-military methods for a positive contribution
towards world peace
The Japanese government and the Japanese people must contribute
towards world peace through non-military methods in accordance with
the spirit of the Constitution. We must deepen mutual understanding
and trust through diplomacy, striving for a global nuclear ban and
for reductions in conventional armaments and the banning of weapons
exports, and also for the implementation of an Official Development
Assistance (ODA) policy that will contribute toward the narrowing
of the North-South gap in a way without harming the environment or
the peoples of any other country, and through the positive
advancement and promotion of Non-Government Organisations (NGOs)
and the positive promotion of things like textbook exchanges.
How to interpret the present age
The end of the Cold War may be considered as the conclusion of an
age of worldwide war that spanned the entire twentieth century.
Great powers formed global military blocks and confronted each
other; regional conflict always threatened to expand into global
hostilities between the military blocks, and on two occasions--the
First and Second World War--did actually evolve into world war.
Such an age has now finished.
State socialism, which was born out of the hostilities of the world wars and became one of the major actors of this age, met its end in Russia and Eastern Europe. Furthermore, with the dissolution of the Soviet Empire, the military superpower Soviet Union and the other military superpower, the United States, have also in a sense come to an end. It could be described as the end of the American empire. Upon the end of the Cold War, former US president Bush spoke of the victory of the United States but this can scarcely be considered to be true.
During the nuclear arms race, the main resources of the former Soviet Union were poured into the production of weapons. At the same time, the economy of the United States also became a grossly weapons-centred system. Now that the two countries have ceased to be enemies, large numbers of overseas-deployed troops, huge nuclear capacity, chemical weapons, the CIA and KGB and other specialist organs, are all becoming redundant. What is called for now is to move away from a world of military confrontation rooted in hate and fear. The basic orientation of the history that begins now is that of disarmament and demilitarisation.
What begins with the passing of the age of world wars is the age of economics. The economic centre of this age is Japan, which has built up a highly-efficient, growth economy through non-military development, and Germany, which in the same manner through non-military development became the economic leader of Europe.
Japan suffered defeat in the Second World War, and was democratised under the occupation of the US, its military forces disbanded. With its peace constitution, Japan was promptly able of its own accord to remove itself from the age of world wars. The anti-war and anti-military feelings of being fed-up with war and sick of armies were sentiments only to be expected from a people that had been the first in history to suffer the horror of nuclear weapons. The Japanese people had sung the praises of its army and supported overseas expansion for half a century after the Sino-Japanese War (1894-5). The transformation into a country without conscription was remarkable.
However, we must also acknowledge that the unprecedented spiritual de-militarisation of the Japanese people might actually have been based upon a lack of genuine feeling of responsibility about the war. This can be well understood if Japan and Germany are compared.
At the end of street-fighting in the German capital, the parliament was occupied, and Germany finally surrendered. As a result of the defeat, the country, and even the capital Berlin, was divided. West Germany later revised its new Constitution and established a conscription army, but this army was part of the North Atlantic Treaty Organisation (NATO) and in the main only operated under NATO command, not sending troops outside of NATO territory. Germany has created relations of such trust with France, a country with which it fought two world wars, as to be able to constitute a joint force with it. This state of affairs however, is linked firmly to the fact that in West Germany the war responsibility of the Hitler regime and Nazism was pursued thoroughly, and de-Nazification was carried out autonomously by the German people themselves. The statute of limitations was lifted with respect to the pursuit of Nazi war criminals, and compensation to the victims of Nazism undertaken through the responsibility of the German people and industry. The German people punished Nazi crimes and thereby reflected upon their own responsibility. Furthermore, it may well be that through continuing to question their own responsibility for the war, they have managed to put the responsibility of the military into proportion, without going so far as to negate it outright.
In Japan, as part of the Cold War strategy of the US, all responsibility for the war was ascribed to Tojo and the military, and the war responsibility of the Showa Emperor [Hirohito] was not pursued. In addition, because it was easier for most Japanese not to question their own responsibility but to blame the military, the idea of compensating the victims of Japan's aggressive war never occurred to them. The military was completely negated, but at the same time their own responsibility was forgotten.
Emotionally, the Japanese people turned their backs on wars and armies, even though the age of worldwide conflict continued. The US and the Soviet Union became centres of this age, forming world-wide military blocks and confronting each other with nuclear weapons. Japan was denied the exercise of collective self-defence rights under its Constitution, but basically belonged to the US camp, allowed the establishment of US bases within its territory, and in this way chose to entrust its security to a quasi-military alliance with the US. Also, within this security arrangement it constructed on a limited scale a quasi-army known as the Self-Defence Forces. Although such a move was inherently in conflict with the Constitution, it explained it to the people in terms of the right to individual self-defence. This was the beginning of constitutional revision by interpretation. In addition, the policy of concentration upon economic growth through non-military development was taken by the Yoshida government.
Later, the Liberal Democratic Party called for constitutional revision in order to resolve the contradiction between the Constitution and the military, but the people did not give the constitutional reform proposal the necessary two-thirds of parliamentary seats. In due course, popular support for Article Nine of the Constitution became fixed, and support within the LDP for express constitutional revision weakened. Nevertheless, the Constitution was systematically belittled by the governing party. Under this weak state in which conscription did not exist, 'companyism' advanced with great strides, and economic high growth was achieved through development of mass production of consumer goods based on non-military, civilian technologies. The fact that the political opposition, and almost a third of the general public, insisted that the existence of the Self-Defence Forces was unconstitutional under Article Nine, both made the Yoshida doctrine possible in the first place and sustained it, but also served as a constraint and a brake on its expansion, and served to hold military cooperation with the US to a minimum.
So, what does the end of the age of world conflict portend?
First of all, because the military blocks have been dissolved, or lost their meaning, the concept of collective self-defence by military alliances has also become meaningless. The US-Japan alliance has likewise lost its meaning as something confronting the 'Soviet threat'. It is 'common security' on a global scale that must now be aimed for.(6) It is only natural that the concept of collective security conceived at the formation of the United Nations should now be reconsidered.
The fact that the age of world wars has now passed does not mean that there is no more war but that regional wars are more possible since there is no fear of them escalating into world war. Superpower Soviet-American controls no longer operate, and with the force of ideology diminishing, ethnic emotions and long-held resentments that had been held down by this power explode and regional warfare becomes rampant. The neglected questions of the influence of colonial control, and the scars of aggressive wars, again generate antagonisms. In addition, in the age of the world economy, as the wealth gap between North and South widens it carries the potential for even greater conflicts. Disputes over resources and territory are already occurring.
Even considering such antagonisms and wars, the activities of a UN which stood on the principle of common security become important. Without being one-sidedly swayed by the interest of the larger powers, the UN should continue its activities, taking a stance of fairness and respecting the equal status of all its constituent states. However, the deeply-rooted antagonisms or wars which stem from them will not be resolved by military means. There cannot be true resolution other than by exercising political, economic and cultural effort designed to stir the people of the region concerned to a new awakening and to make their own effort.
Also important are factors which make impossible for the US and the (former) Soviet Union to push ahead with arms reduction, despite its urgency. The disposal of these (military) white elephants is enormously expensive, and people get laid off as a result, swelling the ranks of the unemployed. The process of transformation of the munitions industry to civilian industry is fraught with difficulties, whether in the former Soviet Union or in the US. Disarmament must proceed slowly but surely, through the deepening of mutual trust between both countries, and it needs to be expanded into a framework of regional cooperation. It is necessary for countries other than the USSR and the US to cooperate positively in the disarmament process.
What does this current situation mean for Japan?
Although the end of the age of world wars means that Japan must endeavour to fulfil its responsibility as a leading power, yet Japan is not ready for this. It has neither a political position nor a philosophy which is sensitive to this new era and so has issued almost no message to the world. Under these circumstances, it is fatal for there to be no consensus regarding the Constitution, and precisely because this is the case we must now tackle the main point of constitutional contention, the problem of the Self-Defence Forces.
The problems of apology, reflection and compensation for war and colonial rule ought to have been settled after the end of World War II, but were set aside and left unresolved. Above all else, we must first begin the effort to establish at a national level an understanding of Japan's colonialism and aggressive war, and show repentance over them. The history of aggression must be taught to the next generation, and compensation made to those who suffered.
The Self-Defence Forces and the Security Treaty are problems left over from the Cold War. They must be resolved in a new spirit appropriate to our third 'postwar' constituted by the end of the age of world wars. We will not be able to enter this new period unless we do this.
Toward the implementation of Article Nine
Although the 'left' in postwar Japan adopted the preservation of
Article Nine as its raison d'être, their
explorations of what concretely was meant by preservation of
Article 9 did not go very deep.
Domestically, as a result of having renounced armaments and the use of force, little concrete consideration was given to the question of how to advance Japan's security. Unarmed neutrality may have been one of the possibilities considered, but it was assumed to be unrealistic amid the realities of the Cold War, and subsequent opinion surveys and elections show that the majority of the people did not choose this option. The people firmly rejected constitutional revision, but they accepted the contradictory reality involved in recognition of the existence of the SDF.
Internationally, concrete consideration was not given to how Japan might contribute to the resolution of world conflict. Whatever fears there may have been about being embroiled in another war, little practical consideration was given to how to manifest to the world its peace constitution spirit of 'aspiring sincerely to an international peace based on justice and order'.
For this reason, the word 'constitutional defence' came to be ridiculed as meaning 'one country pacifism'. The main responsibility, however, should attach to governments which, faced with this situation, high-handedly possessed and expanded 'war potential' whose possession was clearly forbidden by the constitution, without amending the constitution, merely saying 'we can possess it because it is not war potential'. Not once was the contradiction between constitution and armed forces made clear to the people, and not once were they given the opportunity to choose to resolve it. The people simply gave up thinking deeply about the issue and lapsed into thinking they might as well just enjoy the 'peace' they had.
Now that the age of world wars is over, what is required of us, both nationally and internationally, in order to preserve the spirit of the constitution, is the wisdom to implement Article 9. We must put an end to the sterile arguments about what is 'constitutional' or 'non-constitutional', and shift the focus of the debate towards finding a 'creative constitutionalist' path to breathe life into the spirit of the Constitution.
As mentioned earlier, the peace constitution was historically prophetic in character. When considering how to implement it this is a point which should first be recognised. That force is of no use in the settlement of conflict has been demonstrated anew both by the way the Cold War ended and by the course of post-Cold war regional disputes. Unlimited military expansion exhausts economies and comes to threaten security itself. If we look at the examples of the Gulf War and the civil war in Yugoslavia, we should be able to understand that the fundamental causes of conflict cannot be eliminated by force. Although it is still possible to imagine situations where force might be necessary, the spirit of the peace constitution, which rejects force as a means of settling disputes, is not only not 'outdated' but is very much in keeping with the times.
Furthermore, another perspective to keep in mind when considering the implementation of the Constitution is that the gap between legal norms and reality should not be ignored any longer. That the court has used the argument of 'tchi ki' to avoid making any judgement on the constitutionality of the Self-Defence Forces means that there are limits to the extent to which any resolution of the problem may be sought through the legal system.(7) Since the courts defer their judgement to the government, there is no alternative to entrusting the political wisdom of the people to find a solution. The Constitution is the basic norm which determines the way politics should be conducted and the condition of the state, and as such it must be clear and understandable to the people. What is needed is to strive towards formulation of clear norms, not an explanation of reality by means of interpretations.
Let us here set out the main categories of interpretation of the Constitution.
It goes without saying that there are two positions with respect to Article 9, that the SDF is constitutional and that it is unconstitutional, but within both of these there are differences of nuance about interpretations of the right to self defence and of war potential.
The established view of those who affirm the existence of the SDF is that since 'Article 9 Paragraph One of the Constitution does not go so far as to deny the existence of the right to self defence, accordingly a minimum necessary force (hitsuy saishgendo no jitsuryoku) may be maintained based on Paragraph Two.' This is the Constitution interpretation favoured by the conservative mainstream, and it became the official viewpoint of successive Liberal Democratic Party governments (argument A).(8) Although belonging to the same affirmative view, there is another interpretation of this genre which claims that 'Understanding that Article Nine prohibits wars of aggression, but not defensive wars, a defensive force may be maintained under Paragraph Two.' This was the interpretation of Prime Minister Ashida, and until recently was also favoured by a majority of scholars. Of late the Ozawa Study Group's understanding of the Constitution is of the same type, arguing that Self-Defence Forces may participate in exercising force for security in accord with the decision of the United Nations (argument B). Interpretation B takes the view that, as a normal state, Japan's possession of an army is natural, and restricts the meaning of the constitution to a certain restraint on the exercise of that force.
Even among those who believe that the existence of the SDF is unconstitutional, there are differences of interpretation. The conventional understanding interprets Article Nine as meaning 'Article Nine Paragraph One renounces all forms of war, and the maintenance of war potential of any kind is forbidden under Paragraph Two' (argument C). A further interpretation (D) claims that 'Article Nine does not deny the right to self-defence, but because the possession of war potential is prohibited in Paragraph Two, in effect even defensive war is prohibited.' According to D, in the case of aggression, defence would be pursued through non-military police forces and civilian sabotage. This argument was adopted in the first judgement in the Naganuma case.
Our own stance, which rates highly the Constitution's pacifism, and tries to pursue its implementation, is this D position. This is because we feel that position C does not permit room for the realisation of any other security option than immediate unarmed neutrality, leaving no room for discussion of methods of security to realise the ideal.
Furthermore, the core of implementation of Article Nine is the pursuit of security through methods other than traditional military force. What is necessary towards this end is a transformation in the established ideas of war and army, based on the large historical turning-point of the end of the age of world wars. In this age, even if another country were to be invaded and subdued by force, there is no state able to bear the cost of such war and the costs of controlling the conquered territory. Accordingly, at least among advanced countries, classical warfare in which soldiers of rival state armies engage in fighting based on the right of state belligerency, has become inconceivable.
Military blocks have broken down, and the threat to be faced has changed from enemy states or blocks of states seeking conquest to the level of international terrorism and armed refugees. If so, then what this means is that the sort of self-defensive organisation would be much smaller than that required in the traditional scenario of confrontation with another country's regular army, and the scope to construct a new type of defensive organisation not prohibited by Article Nine may be discerned.
What was problematic about the interpretation of Article Nine by previous governments was its possession of inherent attack capability as its equipment was steadily upgraded despite the words 'Self Defence'. In so far as the SDF was for defence against the regular forces of some other country, there was nothing to hold its expansion in check. This aroused suspicion among both the Japanese people and the peoples of neighbouring Asia. In keeping with the change in the nature of the threat, the possibility has emerged for constructing henceforth a self-defence organisation without attacking capability.
We wish to call this new type of defensive organisation 'Minimum Defensive Force' (saishgen bgyoryoku). Since much discussion will be needed on the actual scale, equipment, and personnel of such a force, and because there will be changes in accord with international circumstances, we have avoided spelling it out too clearly within the substance of the law. So far as the basic principles are concerned, we have restricted ourselves to what is outlined above. The sort of spider-web defensive organisation proposed by Maeda Tetsuo could serve as draft proposal.(9) It would be a defensive organisation without offensive equipment or orientation, but equipped to deal with disasters and conflicts beyond the scope of a conventional police force or fire brigade.
The gap between the present Self-Defence Force and our proposed Minimum Defensive Force is large. The SDF, under pressure from the US, expanded greatly during the Cold War and especially during the 1980s, to the point where it could not possibly be described as 'Constitutional'. In order to switch the SDF to a constitutional Minimum Defensive Force, transitional measures, in accordance with a demilitarisation program to be debated in the Diet, will be necessary.
What is necessary in sum is to establish a formula for subjecting the new-style military to the control of civil society. Most pressing is to put an end to mobilisation for keeping the public peace (with certain political movements in mind) as prescribed under Articles 3 and 78 of the Self-Defence Force Law. Furthermore, for civilian control of the military, openness of information is vital. In addition, the enshrinement of the dead at Yasukuni Shrine, which is evocative of the former Imperial Japanese Army, and illegal gathering of intelligence on the civil society should probably also be stopped.
Furthermore, the scale of the Minimum Defensive Force will also change depending on the extent to which the UN's collective security system and East Asian regional security systems are provided. If a regional security organisation encompassing the US, Russia, China, North and South Korea (or a united Korea) is formed, it could be that a coastguard plus small numbers of ground troops would be enough for the defence of Japan's territory.
The Constitution of Japan orders the Japanese people to make 'ceaseless effort' toward the accomplishment of security and the resolution of disputes by more peaceful means and by increasing avoidance of force. Continuing discussion on concrete constitutional means will be needed to cope with this permanent movement.
Restriction of the Self-Defence Forces
Until now, the Japanese government has held that it was
internationally understood that the SDF was maintained as an
'inherent right' of a sovereign state prescribed under the UN
Charter. It has continued to develop its position on the
constitutionality of the SDF. However, although this idea of
individual self-defence has been accepted in Japan as an absolutely
self-evident national right, we should realise that there is no
clear definition of it, and it is not only vague but potentially
dangerous as a basis for legitimacy.
This is because, as pointed out by Prime Minister Yoshida at the Constitutional Reform Committee (26 June 1946) 'Many of the wars of recent years have been waged in the name of self-defence.' Furthermore, because the geographical limits of self-defence are not defined, one cannot rule out the possible emergence of irresponsible politicians claiming that Japan's self-defence right extends from 1,000 nautical miles to the Malacca Straits or even the Gulf area.
Certainly, Article 51 of the UN Charter states that 'In the interim before the UN Security Council takes necessary steps for the preservation of peace and security, nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations.' (Even the 1928 Treaty of Non-Aggression includes the qualification that 'Since all sovereign states possess a self-defence right, and since it is assumed in all treaties, therefore all states, regardless of what is stipulated in any treaty, possess the freedom to defend their own territory from attack or aggression.')
However, the reason why we propose a re-interpretation of the notion that the 'self-defence right' is an 'inherent right' of a sovereign state, lies in the collective security system envisaged by the United Nations. In that self-defence is recognised as a temporary measure pending the adoption of measures based upon the collective security system, the judgement of whether or not something is a self-defence right is entrusted to each sovereign state. The problem inherent in this is that of abuse of the self-defence right.
If pacifist Japan can be said to have the right to self-defence, the problem of how to interpret excessive use of this right must be seen as inescapable, and the scale, deployment, and any restrictions on the military force of the proposed Minimum Defensive Force becomes relevant to it.
The use of force and even resort to war in case of conflict between states used to be recognised, but in the course of the present century the view that war is illegal has progressed, and within this trend the United Nations has outlawed both the 'use of force' and the 'threat of force', permitting force only for sanctions or self-defence.
Within the UN collective security system, broad restrictions have been imposed upon the 'use of force', especially war. The collective sanctions by the UN against illegal 'use of force' or 'threat of force' have been recognised as legal responses, and the exercise of a self-defence right recognised as a temporary measure pending the coming into operation of such sanctions. However, even if the right to self-defence is exercised as a temporary measure, the possibility remains that the self-defence power may be abused if it is seen as an 'inherent right' of sovereign states.
To construct a system which would prevent such abuse, the 'self-defence right' might be seen as a right stemming from the UN's collective security system rather than as an 'inherent right' of a sovereign state. The possession by a sovereign state of a 'self-defence right' does not vary in accordance with whether the right is inherent or given, but, if the self-defence right were to be reconstituted as a right bestowed under the collective security system it should be easier to prevent its abuse.
The 'Basic Peace Law' which we have proposed here can be described as the first step toward a political declaration on the limitation of the self-defence right, and in order to realise it, it might be worth considering the international exchange of documents pertaining to the Basic Peace Law, either through the United Nations or on a regional level.
At the heart of the current UN collective security system is the recognition of the 'use of military force' against breaches of the peace and aggressive acts. However, the essence of army is 'victory over the enemy', 'annihilation' and 'destruction'. In principle, what collective security requires should be not the use of the military, but police activity based upon the law to restrain the breaches of the law. There should be no such thing as 'enemy'.
In addition, in the event of such international (UN) policing activities, it should be possible to establish a new-type Japanese unit, not an army and completely separate from the Minimum Defensive Force, which could be internationally, or UN, trained and led.
In fact, if Japan is to entrust its security to such an international policing system, one would expect that it would want to participate positively in it. This is because as the international police system grew in strength, the Minimum Defensive Force protecting Japanese territory could gradually be reduced. (So far as any United Nations Army is concerned, our position is that great prudence should be exercised regarding any participation by Japan, and that participation in any other multinational force is out of the question).
Of course, we realise that conditions in either the UN or East Asia are not conducive to the immediate formation of a collective security system involving a strengthened police along these lines. However, if we are to be committed to the pacifism demanded by the Constitution in this new post-world war age, we must strive to move the reality in the direction of the ideal.
Japan is indeed a 'special state' which has voluntarily relinquished part of its military sovereignty. There are voices, not only from the Liberal Democratic Party but also from within the political opposition, which would have this 'special state' become a 'normal state'. Even in some circles in Germany the call to become again an 'ordinary state' is gaining strength. But what is wrong with being a 'special state'? Might not the abandonment of part of our sovereignty indicate rather a certain foresight? This is after all the age in which the modern state itself, its borders, its centralised government, its education system and its national economy, are being seriously questioned.
We believe that it is precisely through inheriting and further developing the idea of a 'collective security system' that was born out of the horrors of repeated war, and by exploring both in juridical theory and in practice the idea of UN-based collective security and regional security, that our 'special state' may be made into a 'normal state' while retaining its 'specialness'.
What we have developed here is not an argument for the constitutionality of the Self-Defence Force. Even less is it an argument for leaving things be, by accepting the current situation as it is. It is instead a prescription for putting an end to the Cold War era within our country by our own efforts. For the resolution of conflict, both political wisdom and sincere effort on both sides is necessary. We must attempt to disentangle ourselves from the inertia of the 'Cold War mentality' and 'confrontational thinking' that were nurtured within the Cold War structure.
The political parties that are the political expression of the will of the people, in particular the Japan Social Democratic Party and the Liberal Democratic Party, are called upon to exert the utmost efforts towards achieving a mutual understanding and a consensus on this problem.
Furthermore, without the participation and supervision of the people, whatever laws are drawn up will be meaningless. This is so much more the case in dealing with the problem of the military, the most difficult of all problems facing a democracy. A lively debate is called for from the people on this issue.
Introduction
The main points of the proposal we made in April 1993 were as
follows:
1. The Soviet-American Cold War, with its threat of the extinction of the world, is over, and the age of world wars has also ended.
2. Thanks to the end of the Cold War, the Warsaw pact armies have ceased to exist and the meaning of NATO has changed greatly. The context surrounding the US-Japan Security Treaty has also greatly changed. On the other hand, regional wars and ethnic conflicts are intensifying. Under these circumstances, attention has come to focus on the notion of a collective security system, which was the original meaning of the United Nations.
3. In Japan the contradictions over the constitution and the Self-Defence Forces, which were born of the Cold War and have divided public opinion, must be resolved.
4. To achieve this, a national debate and effort, transcending Cold War inertia, is necessary to construct a national consensus over how to contribute positively and by non-military means to world peace, to construct a 'Basic Law of Peace' in accordance with Article 9 of the Constitution, and to cut back the scale and the structure of the existing Self-Defence Forces so that its military force becomes 'Minimum Defensive Force' of a level allowed by the constitution.
5. For this purpose it is also necessary to accomplish a true reconciliation with the Asia that Japan once invaded.
6. The idea of 'Minimum Defensive Force' is based on the right of national self-defence, but the self-defence right is not an 'inherent right' but a right bestowed in accordance with the collective security system and as such obviously subject to constraint.
After the publication of this proposal, we received many responses from various quarters. So far as political quarters are concerned, the opinions of ten members of the Diet who responded to the solicitation of the editors of Sekai may be consulted in the June 1993 issue of the journal. Mr Hosokawa Morihiro, who was to become Prime Minister two months later, responded that he 'could well understand' the proposal. Asked whether he was in agreement or not he replied that 'you could say that I am in agreement', and called for the creation of a UN Police Unit. Tanaka Shsei, then a member of the Liberal-Democratic Party, who later established the 'Harbinger' (Sakigake) party and became a special adviser to Prime Minister Hosokawa, said, 'I have no particular disagreement with the proposal. I respect the aspiration, but must say that I do not see its necessity at the present juncture.' He proposed planning towards an international security system under UN auspices. From the Social Democratic Party of Japan, Uehara Ksuke, who was to become a member of Cabinet two months later, declared his 'complete agreement with the gist of what has been proposed and the political line it embodied', saying that he intended to have his party work on the drawing up of drafts. End Otohiko of the Kmeit said it was most important to devise a clear guide in the form of a 'Basic Law on Peace' and a 'Basic Law on Security', but that, while he 'recognised the proposal as a clarification of the problem', he himself stood for the constitutionality of the Self-Defence Forces and the continuation of the US-Japan Security Treaty.
As against these views, the Japan Communist Party's Ueda Kichir said the proposal was 'a kind of constitutional revision by legislation'. He called for a repudiation of the Security Treaty and for 'a non-nuclear, non-aligned path'. Apart from the Japan Communist Party, it seems to us that the proposal was widely recognised, irrespective of party, as worthy of deliberation.
Next, the views of politicians and activists living in the vicinity of the bases were solicited, and carried in the August issue. These views were many and various, ranging from 'complete agreement' to 'determined to block it completely' and 'had to groan while reading it'. What was most resisted was the idea that 'Minimum Defensive Force' was constitutional. How was it different from the Liberal Democratic Party's understanding of Article 9, and did it not amount to an abandonment of the view of the constitution as 'giving up the right of self-defence' and 'completely renouncing war'? However, positive responses to the proposal may be seen as coming from the demands of reality, in that its existence would have to be clearly recognised if the size of the SDF was to be reduced.
The response from constitutional scholars was also mixed. In '"The Basic Law on Peace" from a constitutional law perspective' (Sekai, July 1993 and March and May 1994), Fukase Chichi, professor of Japanese Constitutional Law at Hokusei Gakuen University, while surveying the constitutional cases of the postwar period, took the view that the constitutionality of the Self-Defence Forces remained unsettled, drew attention to the importance of the role of the courts in blocking any threats to the basic human right of the people to live in peace arising from national defence and military purposes of the Self-Defence Forces, and concluded that the proposal for a 'Basic Law of Peace' had important and positive meaning as 'a model for implementing the peace constitution'. However, he added that he could not help feeling opposed to the constitutionalising of 'Minimum Defensive Force', stressed the need for reconsideration of the right of self-defence based on it, and called for further scholarly research on the question. On the other hand, Okudaira Yasuhiro, professor at the International Christian University, offered the criticism that, while he appreciated that this was 'an attempt to systematise and give life to the spirit of Article 9', it was hard to see how 'Minimum Necessary Force' was different from the government's 'necessary minimum for self-defence', and 'could not help thinking that it amounted to no more than a play on words' (Sekai, June 1993).
Our proposal met with a fierce response and criticism from one sector of the 'constitutionalists'. Watanabe Osamu, professor at Hitotsubashi University, criticised us in his book Seiji kaikaku to kemp kaisei (Political Reform and Constitutional Revision)(11) saying that the kernel of the proposal was 'the constitutionality of the Self-Defence Forces' and that the objective of the proposal was 'to have the Japan Social Democratic Party adopt a position of clear support for the constitutionality of the Self-Defence Forces.'
Many of the critical opinions oppose the thrust of the proposal to seek positively for a new direction to mark an end to world war. It seems that they feel the problem of this moment is 'how to resist' the trend for a strengthening of unipolar US control accompanying the end of the Cold War, and the increasingly strong tendencies for Japan to be tugged along the path of war and militarisation.
However, the fact is that great global changes have occurred and are continuing. No-one can escape these changes. The resistance which certainly was meaningful in the context of the structure of events as they existed till now becomes meaningless under the new circumstances. If we are to recognise as positive the situation brought about by that resistance till now, are we not called upon to propose an alternative, to give life to it, and to take part in the construction of a new world?
So, what is it that can be recognised as positive in the situation brought about by our resistance? Is it not, so far as the security dimension is concerned, the Japanese people's psychological transcendence of militarism, the existence of a society in which the military is not given priority, and the character of the Self-Defence Forces as a special military force greatly constrained by the constitution? The prohibition on collective defence, the three non-nuclear principles, the ban on export of weapons, and the ban on the overseas dispatch of Japanese troops, should probably also be included. What is now required of us, we believe, is to preserve and reform these assets and expand them by linking them to new directions.
In the one and a half years since we proposed the 'Basic Law on Peace' we have not seen any need to revise the proposal itself in its fundamentals. However, while in our proposal we called for a debate of the utmost intensity, the Japan Social Democratic Party for its part thereafter entered government and, without any new debate at all, switched its position to 'constitutionality of the Self-Defence Forces' and 'support for the Peace Treaty'. The peace keeping organisation [units] of the Self-Defence Forces which were then deployed in Cambodia were withdrawn, and now the Self-Defence Forces are active in Zaire. On the other hand, implementation of the heavily armed 'Peace Enforcement Units' under the Ghaly plan seems, after the stalemate in Somalia, to have receded into the distant future. The United Nations' peacekeeping operations are undergoing severe trials.
Faced with such changes in the situation, we would like here to supplement, or make more concrete, our original proposal and to indicate what are the problems we now face.
The meaning of 'Minimum Defensive Force'
The criticisms of our proposal have been manifold, but the greatest
criticism has attached to our idea of 'Minimum Defensive Force'
(saishgen bgyoryoku). That is to say, it is a matter of
how recognition of the constitutionality of 'Minimum Defensive
Force' differed from the established government position that
'necessary minimum force for self-defence' (jiei no tame no
hitsuy saishgen no jitsuryoku) was constitutional?
We classify the main interpretations so far of Article 9 under the following four headings.
A. Since Article 9, paragraph 1 does not go so far as to rule out self-defence powers, the necessary minimum force for self-defence may be possessed under paragraph 2 (the government position).
B. Since paragraph 1 of Article 9 forbids aggressive war but not defensive war, defensive forces may be possessed (the view of Ashida).
C. Paragraph 1 of Article 9 rejects all war, and paragraph 2 rules out possession of all war potential (senryoku) (the established view of the Constitutional Lawyers' Society).
D. Paragraph 1 of Article 9 does not rule out defensive war but, since paragraph 2 forbids the possession of force, the upshot is that even defensive war is forbidden (the judgement in the Naganuma case).
In our proposal we said that we adopted the 'D' position, and we were criticised on the ground that, if we recognised 'Minimum Defensive Force' as constitutional, we were so close as to be almost identical with the 'A' position. It is our position that 'Minimum Defensive Force' does not mean the air, land, and sea forces which are ruled out under Paragraph 2 of Article 9, or any similar war-potential. However, it is not denied that Minimum Defensive Force means armed force (busryoku) that could be opposed against any invader. Our position is that an army, or 'special armed force' analogous to an army but not 'war potential', may be possessed under the constitution.
What becomes important here is the question of what is an army. In our view, an army is an armed unit for combat,
i) mostly against foreign enemies, possessed by a state for the protection of the state, whose main purpose is to destroy and annihilate the enemy;
ii) which recruits troops by voluntary system or by conscription;
iii) in which orders from command are absolute;
iv) in which insubordination is punished by court-martial or military tribunal;
v) which possesses voluminous secrets that are protected by special laws;
vi) which during combat operations is more-or-less freed of the constraints of the law.
In the definition of an army, Professor Fukase Chichi draws attention not just to the quality and scale of the armed force (busryoku) but to its use in battle of force freed from the restraint of the law. Yamauchi Toshihiro, Professor of Japanese Constitutional Law at Hitotsubashi University, also believes that one basic distinguishing characteristic of an army, along with its purpose and its essence, is its distinctive principle of organisation and activity. (12)
However, iv, v and vi above do not apply even to the existing Self-Defence Forces. That is why, in our proposal, we used the expression 'distorted by the existence of the constitution'.
Apart from the Self-Defence Forces, there also exist in Japan the armed organisations of the coastguard and the police force. Despite the fact that the Coastguard has 12,000 men and is equipped with automatic canon and Vulcan canon, which are classified as 'conventional weapons' (having 38 patrol boats equipped with 40 mm automatic canon, four with 35 mm and 49 with 20 mm) commonly no question is raised about whether these are constitutional or not.
Along with difference in purpose and organisational principle, while the Coastguard and the police are subject to regulation of the laws even in subjugation operations, an army in battle exercises force, freed from the restraint of the law. This seems to us to be a fundamental distinction. (Under the Keisatsukan shokumu shikkh or Police Duties Implementation Law, the use of weapons by the Coastguard is limited to the extent reasonably necessary to subdue resistance.)
Traditionally, Japan has clearly distinguished between an army, which is used externally, and police which are used for maintenance of the peace. We are used to this concept, but in many foreign countries this distinction has ceased to hold good, at least since the First World War. In other words, in between army and police, there are armed units of various scale and possessing various functions.
For example, there are coast guards, border police, national guards, and constabulary. In the case of the United States, the coastal police, which is equivalent to the Japanese Coastguard, is under the command of the Ministry of Transport in ordinary times but in wartime shall be subject to the order of the Ministry of the Navy (14 U.S.C.A., Para. 3). Likewise, the Militia, ordinarily under the command of the governor, in wartime come under the command of the president. Under Article 80, Clause 1 of the Self-Defence Law, even Japan's coastguard would in wartime come under the command of the Director-General of the Defence Agency.
In other words, these armed organisations may in certain circumstances be incorporated in the army, which means the real difference between such armed organisations and an army is not a matter of size or scale of equipment.
The American constabulary was basically a peace preservation force set up in the colonies, and were not the Police Reserves which the United States set up in Japan during the Korean War exactly such a constabulary, both in function and in name? In 1953, the year that the Police Reserves became the National Safety Force (Hantai), Kimura, the Yoshida cabinet's Minister for State, explained in a Diet interpellation that since this was not 'a force capable of the efficient or appropriate prosecution of modern warfare', it was therefore not a senryoku or war potential such as was forbidden by the constitution (House of Representatives Budget Committee, 1 February). In concrete terms this meant that there was at the time no air-force, but when soon afterwards the three Self-Defence Forces of land, sea, and air, were set up under the Defence Laws and Japan came to possess the 'capacity for implementing modern war', the government changed its explanation. From 1954, the 'minimum force necessary for self-defence' was held not to amount to 'war potential' or senryoku.
The transition from police reserves to Self-Defence Forces, and the history of the expansion of the SDF till it came to have its present 233,000 members provided with the utmost modern arms in the world, is a process of becoming an armed organisation which is virtually an army.
From these considerations we are led to the idea of 'Minimum Defensive Force'. We believe the present SDF is in an unconstitutional state. To turn it into a 'Minimum Defensive Force' which would not be unconstitutional, it will be necessary to go against the current of recent history by turning an armed organisation which is virtually an army into an armed organisation which is virtually a police force or coastguard.
A disarmament involving a considerable reduction in equipment and personnel will naturally be necessary, but that alone will not be enough. What is indispensable is (i) restriction of the role and purpose, and (ii) restriction of the defensive force and geographic scope, and (iii) reform of the organisational principles. In our thinking, so far as role is concerned this means the protection of the lives and property of the people; so far as geographical scope is concerned it means confinement to national territory and the territorial seas and skies; and so far as organisational principle is concerned, the principles of democracy and openness apply. However, in fact what the Self-Defence Forces protect is not the lives and property of the people but the security of the state, and, as is clear from the notion of 'sea-lanes to 1,000 nautical miles', its military presence has been expanded well beyond the geographical confines of either territorial seas (12 nautical miles) or exclusive economic zones (200 nautical miles).
Under the government's 'minimum necessary for self-defence' the possibility of expansion is inherent in the idea of resistance to any supposed threat, and in fact such expansion has occurred. In the notion of 'blockade of the three straits' and the '1,000 nautical miles defence' mentioned above, the 1980s expansion of armaments by the Self-Defence Forces proceeded by leaps and bounds. By contrast, no hypothetical enemy is even assumed by the idea of 'Minimum Defensive Force'. Another way of putting it is to say that this means force enough to symbolically represent the people's sense of defence and resistance.
The essential quality of an army is to crush the enemy and thoroughly implement the ideology of the state. The essential quality of 'Minimum Defensive Force' is utterly defensive and includes no intent to crush any enemy.
Such 'Minimum Defensive Force' is subject to international law, that is to say it is predicated upon consultation with neighbouring countries, on the idea that a defence right cannot just be exercised in one's own country, and on organisational democratisation and the non-possession of secrets from the people.
Is this notion of ours absurdly idealistic? At any rate, the effort to solve these problems has already begun in the world.
On the meaning of 'army' in the contemporary
world
A reconsideration of the meaning of army is under way in the
countries of Western Europe that constituted the front line in the
Cold War, and at least in some quarters it involves not just a
matter of restructuring of the state but also a profound
theoretical reconsideration of the nature of an army in a
democracy.
There are some countries in Western Europe which practice conscription, but the feeling is strong that for a democracy the system of citizen-soldier, based on the militia tradition, is preferable. However, the idea of citizen-soldiers which is rooted in democracy is predicated on the view that national defence can be implemented in a single country, yet from the time of the Cold War, defence became, in practice, collective. Thereafter this has remained the mainstream defence posture among the advanced countries. Whether in NATO or the Western European Union (WEU) or the Common Security Conference for Europe (CSCE), doubts have been raised over whether military service could be compelled for the defence of the collective unit.
On the other hand, the idea of promulgating an EC conscription system and encouraging loyalty to the defence of the EC has emerged. An alternative prescription is to leave intact the conscription system of particular countries, but to attach part of the personnel to a newly established force such as an environmental protection force (Green Helmets). In a related debate, the notion that a 'democratically-rooted citizen-soldiery' should not serve for the defence of national territory and was inappropriate for an intervention force in regional conflicts has surfaced. In all cases, the debate stresses the gap between the equation of democracy and defence of national territory on the one hand and actual defence tasks on the other.
On the other hand, focusing on actual armies, the argument has developed that since armies have become highly specialised and require highly specialised technical training, they have become unsuited to the conscription system. It is a debate which slices through the gap between the idea of citizen-soldiers and the reality of armies. However, the question that has come to be asked is what to do about the democratic control of an army made up of professionals when that which gives the best guarantee of the democratic control of the army is the citizen-soldier who stands in the tradition of the militia.
In either case, the legitimacy of the army in a democracy is at issue. The background to this is the large transformation of the Western European sovereign national state. In other words, the tradition of one country militarism is severely shaken. In the EU, which is at the stage of developing common foreign policy and defence policies, consideration is being given to assigning, sharing, or pooling part of that military sovereignty.
Ideas about 'structural incapacity to attack' and 'defensive defence' (bgyoteki bei) are seriously debated. What the EC and the CSCE is trying to do may seem to be part of a project for the distant future, yet it seems as though in the post-Cold War present Japan too shares the common problems of constructing a shared military sovereignty and a non-offensive defensive force. This suggests that a truly world-wide transformation is under way in the established framework of the sovereign state.
For both East and West camps in the Cold War, security was thought to lie either in influencing the behaviour of the other side, in blocking or repulsing an attack from it. To achieve that, the core of security was military security, and central to that was the building of military force and strategy and tactics.
However, in the post-Cold War age the likelihood of armed struggle arising out of East-West confrontation has become very slight, and so-called regional conflict grounded in racial, cultural, religious or economic causes has become the problem. To deal with these, military-centred thinking has already become ineffective, as should have become clear from recent experience in Cambodia, Somalia, Bosnia, Palestine or Haiti.
In case of a war of annihilation such as the recent Gulf War against Iraq, the military force accumulated during the Cold War period might have been effective, but in places such as Somalia, however much the attempt is made to impose peace by intervening in civil wars with military force alone, it does not work. Politics--the capacity for diplomacy, negotiation, dialogue--has come to play an extremely large role in security.
Of course it would be an illusion to think that peace could be established by political power alone, or that the meaning of military force had completely evaporated.
Regional conflicts stem from many different causes and cannot all be accounted for by a single concept. Responses to conflict have to be considered on a case-by-case basis. All sorts of interventions by countries or organisations not directly involved in regional conflict, including the United Nations, may be contemplated, from cases in which politics is paramount and military force minimal to those in which politics is minimal and military force paramount, but in any case no solution is to be achieved by input from one side only.
However, the recent tendency to deal with regional conflicts by simply sending in armed forces has strengthened. Even for activities such as maintenance of public peace and order, medical and sanitation tasks, or the provision of infrastructure which can scarcely be considered military, the army has been sent in. And to cope with this, armies have also begun to reorganise and revamp themselves into a dual-purpose (military and non-military) model. Reorganising and revamping in this way would further increase the tendency for armies to be sent in. There is a danger that this tendency may lead to an excessive expectation of the capacity of armies to solve regional conflict and lead instead to military escalation of regional conflicts.
We believe it is necessary to put an end to the sort of thinking which responds to regional conflict by wanting to resort to military intervention legitimised by the United Nations. What is more important than anything is to find preemptive measures to avoid conflict and ways to achieve coexistence between the different. In addition, should conflict occur, through an analysis of the distinctive causes, character and unperpinnings of each conflict, we should draw up a menu of measures deemed necessary and out of that consider what sort of body would be appropriate to each.
Accordingly, we are extremely critical of the recent dispatch of Japanese Self-Defence Force peacekeepers (including 'humanitarian aid' such as to Zaire). It is not just because of the constitutional ban on the overseas dispatch of military forces but because of doubt about the efficacy of such interventions by military force.
The Self-Defence Forces have no political force (especially no capacity to mediate), and no such capacity can be expected of them. Nor do they have any capacity for either medium or long term regional economic development. What is needed for Japan is to prepare bodies appropriate for various activities in accord with different scenarios. International emergency relief forces made up from NGOs, local government aid, ODA, governmental diplomacy, would be included among such measures. Probably the Self-Defence Forces, for the time being and subject to five conditions, might have to be included as one possibility, but for everything to be left to the SDF, as at present, can only be described as unfortunate, whether for the SDF itself or for the people of the regions they are sent to.
In our view, overseas dispatch of the 'Minimum Necessary Force' entrusted with the defence of the lives and property of the people should be ruled out. Our proposal is for the present SDF to be split up and reduced in size, and for an 'unarmed, separate organisation' to be established, suitable for overseas dispatch. Our proposal has been criticised as unrealistic, but is not its realism being progressively demonstrated by the realities?
Going beyond the US-Japan Security Treaty
What was scarcely mentioned in our original proposal was the
US-Japan Security Treaty (system). The US-Japan Security Treaty
system was established during the Korean War (1950-53) which was
the 'Hot War' that occurred in the middle of the Cold War, and it
was predicated on Cold War or actual war. The Self-Defence Forces
were also produced and sustained by this US-Japan Security Treaty
system. It began as a force for the maintenance of public order
after US forces were despatched to Korea, became a support group
for the American forces to the point where they became capable of
fighting jointly with them, and fundamentally this character of
being a supplementary unit to the US forces has not changed. It is
impossible to talk about the Self-Defence Forces without talking
about the US-Japan Security Treaty.
The US-Japan Security Treaty was maintained during the Cold War as the fixed compass-needle of Cold War Japanese diplomacy. Together with the San Francisco Treaty which was adopted at the same time, this should probably be seen as constituting a '1952 system'. This '1952 system' constituted the kernel of Japan's post-war foreign policy and its Cold War Asia policy. It was like the opposite side of the same coin to the '1955 system' in domestic politics. Now that the Cold War is over and we are confronting the collapse and reorganisation of the '1955 system', it would be strange if the '1952 system' were not also to change.
The US-Japan Security Treaty has to be reappraised and redefined in the new security context. Under the '1952 system', Japan clearly chose to join the Western camp of which the United States was core, and militarily, by the gratis provision of bases within Japan, accepted the role of the United States's advance base against the Soviet Union and against Asia. From bases in Japan, the United States fought the Korean War, kept watch on China, and bombed Vietnam. Till its 1960 revision, the US-Japan Security Treaty included a 'civil disturbance clause' under which US forces could intervene in domestic disturbances in Japan, and the sense of a protective treaty relationship was strong. At the time it was enough that Japan remained a member of the West and that it (the US) be able freely to use the bases.
Under the Japanese constitution, Japan was denied the right to exercise the right of collective self-defence. Accordingly, while the Self-Defence Forces, which were the 'minimum necessary force for self-defence', protected the territories under Japan's jurisdiction (individual self-defence right), the exercise of this individual self-defence right was structured so as to incorporate the US bases which were capable of sending (and did actually send) armed forces into Asia. In other words, a spear was contained within the shield.
The structure may be explained in terms of two partially overlapping circles. The small circle is the treaty zone of joint US-Japan response to any armed attack on territories under the administration of the government of Japan, according to the provisions of 'joint defence' in Article 5 of the US-Japan Security Treaty. The large circle is the separate treaty zone in which the US forces contribute, unaided, to 'the maintenance of international peace and security in the Far East' as prescribed in Article 6 on 'provision of bases'.
According to the government's interpretation, these two zones are clearly differentiated. The small circle is the sphere of 'collective self-defence right' in which Japanese involvement is forbidden. However, both in principle and in practice, this distinction is unstable and filled with contradictions which have grown larger with time.
The large circle, or the sphere within which US forces could operate from Japanese bases, was at first 'inclusive of to the area to the north of the Philippines, Japan and its vicinity, Korea and Taiwan' (Unified Government Explanation of February 1960). Vietnam, which was outside this sphere, became part of it from the late 1960s, and in the 1980s, in the fierce contest with the Soviet Union to establish 'nuclear control of the seas' in the North-West Pacific, Japan became the indispensable 'unsinkable aircraft carrier'. Later, in the 1990s, the bases of Okinawa, Sasebo and Yokosuka played an important role in the Gulf War in the Middle East, 10,000 kilometres away. By then, the large circle covered half the world.
Accompanying this expansion, the small circle also grew. The '1,000 nautical miles sealane defence' which was designed to resist the activities of the Soviet Navy in the Pacific in the 1980s, expanded this circle to 'North of the Philippines and West of Guam'. The activities of anti-submarine patrol vessels and convoy ships were brought within the scope of 'individual self-defence'.
The 1960 treaty revision and the 'Japan-US Defence Cooperation Guidelines' (or simply 'Guidelines') adopted by the government in 1978 mark distinct epochs in the US-Japan Security Treaty. According to the Guidelines, the Security Treaty, which till then had been basically no more than an agreement for the provision of bases, changed into a system under which Japan and the US could jointly engage in military activities. Under it, joint responsive activities became possible even in peacetime, including not only an emergency in Japan but an emergency in the Far East beyond the scope of Article 5. Joint operations were studied and joint manoeuvres carried out repeatedly. The coordination of command and rear support in terms of supply and transport was agreed and arrangements for Japan and the US actually to conduct war jointly were put in place. It was for this reason that a senior Defence Agency official spoke of life having been breathed into the Buddha (the Security Treaty) by the Guidelines.
Since the Cold War front line was at this time in the Japan region and in Europe, it could almost be said that the Japanese individual self-defence sphere and the US strategic operational activities zone became blurred, virtually overlapping or merged.
Accompanying this qualitative transformation, considerable changes were also evident in the Self-Defence Force equipment and operations. What it amounted to was that 100 Japanese P3C anti-submarine planes, a staggering number in world terms, were tracking Soviet submarines, Japanese convoy ships were engaging in joint manoeuvres with US aircraft carriers which were in a state of readiness to attack the Soviet Union, and US bases were protected by 170 Japanese F15s. The Self-Defence Force was a supplementary component of US forces and by that very fact had become an extremely distorted organisation.
The Self-Defence Forces took part in the biennial RIMPAC (Rim of the Pacific) naval exercises for the purpose of 'upgrading their strategic ability', but little-by-little this 'strategic ability' grew till in the 1990s it was obviously in excess of the level of the government's explanation, and had become something very close in practice to the exercise of a collective defence power, with ANZUS (Australia), NATO (US and Canada), the US-Japan Security Treaty (Japan), and the US-ROK Joint Defence Treaty (South Korea) having become parts of a single system.
Furthermore, from 1978, under the name of 'thanks payment', Japan began to cover the costs of stationing US forces in Japan. In 1994 this item amounted to 250 billion yen. Neither Germany nor Korea makes any appropriation under such a vague formula as 'thanks payment'. This burden is clearly contrary to the terms of the 'US-Japan Status Agreement'. In defence expenditure too, the two circles have become blurred.
Also not to be overlooked are moves to establish a legal system for coping with a state of emergency.(13) Even though the joint US and Japanese forces were to achieve combat readiness they could not actually fight a war without the control and mobilisation of the Japanese people. At the end of the 1970s an 'Emergency Bill' was proposed by the government, at the same time as the adoption of the Guidelines, and research was begun in the Defence Agency. The argument that an emergency legislation system is necessary thereafter surfaced whenever anything happened, and even in the 1990s it appeared again on the occasion of the suspicions over the North Korean nuclear program. A system of emergency law rule is a system of wartime law in which it is implicit that the Self-Defence Forces become an army (as the criteria of army listed earlier under iv to vi are satisfied), the military is given priority, people are mobilised under conscription and corvee, the mass media is controlled by laws such as a Secrets Protection Law, and rights including the right to strike are suspended.
Fortunately, after reaching a peak in the early 1980s, the Soviet-American confrontation gradually eased, and in 1989 the end of the Cold War was announced without military conflict or war having broken out in the vicinity of Japan. A dangerous fusion of the 'two circles' was accomplished, but a situation that would have shaken the roots of the constitution--such as an emergency law system or a secrets control law--was avoided.
The end of the Cold War could be the occasion heralding a transformation in this US-Japan Security Treaty system structure, and we should try to move things in that direction. With the collapse of the Soviet Union and the loss of a 'common enemy' from the Security Treaty, the raison d'être and need for the US bases in Japan as advance base to restrain the Soviet Union has greatly diminished.
The security system based on a combination of individual self-defence power and collective self-defence power which had become the keystone of the international relations of the Cold War and the East-West confrontation (as, for example, in the WTO or Warsaw Pact, NATO, US-Japan Security Treaty, US-ROK Mutual Defence Treaty), in other words the 'threat-response' model of security system, has lost its efficacy and change has become unavoidable. Dissolution of the Warsaw Pact, the transformation of NATO into an all-European organisation, the anticipation of a strengthening of the functioning of the United Nations, constitute evidence of this. Moves in the direction of 'common security' which are under way in Europe--including the multilateral All-European Security Cooperation Conference (CSCE), the European Conventional Force Reduction Treaty (CFE), and the Open Skies Treaty--are gropings towards imagining and then implementing a new security system.
Even in the Asia-Pacific region, which includes Japan and its environs, the structure as known till now has greatly eroded. The Soviet-American rapprochement, the simultaneous entry of North and South Korea into the United Nations and their reaching of agreements on reconciliation, non-aggression and cooperation, the normalisation of relations between the Soviet Union and South Korea and China and South Korea, the beginnings of negotiations between North Korea and Japan and North Korea and the United States, the end to the Cambodian civil war, and the opening of the Asian Regional Forum (ARF), constitute evidence of this. The process of groping for a way to move from a 'threat-response model' towards a 'common security' model has begun. Japan too must participate and cooperate in planning for and actually constructing it. It is not enough just to 'cling to the US-Japan Security Treaty'.
***
In our proposal last time, we did not go beyond saying of the US-Japan Security Treaty that we 'looked to its demilitarisation and its development and dissolution into a regional security system'. In this essay we now propose to consider in more concrete fashion what we mean by demilitarisation and a regional security system.
We do not favour immediate abrogation of the US-Japan Security Treaty, for the reason, first of all, that the preamble and Article 2 of the treaty include a clause on 'promotion of economic cooperation'. There is no economic cooperation clause in the security and mutual defence treaties contracted by the US with other Asian-Pacific countries, such as ANZUS, US-Republic of Korea Mutual Defence Treaty, US-Philippines Treaty, and the US-Republic of China [Taiwan] Treaty. Article 2 of the Security Treaty is a new sprout which should be cultivated in place of military cooperation. When one considers that the two countries, located on opposite sides of the Pacific, are both major centres of the world economy and indispensable members of the emerging Asia-Pacific region, the transformation of the US-Japan Security Treaty into a different framework with strengthened and diversified economic cooperation becomes highly desirable.
The second reason is because, after the Cold War, it is China and Japan that are perceived as threatening by the countries of Asia, and the US-Japan Security Treaty is seen as a restraint on Japanese militarisation (or any revival of Japanese militarism) and even as functioning to stabilise the Asia-Pacific region. It would be nothing but a nightmare for the people of Asia if Japan were to expand militarily again and come to exercise a renewed hegemony over Asia in the wake of a US withdrawal. It may be seen as a reflection of the fact that Japan has not renounced militarisation and has neglected efforts to build a new peaceful order that even now, fifty years on, it is still not able to gain the trust of the people of Asia. Another reason for this is Japan's post-war path in which the 'Great East Asian War' has been seen exclusively as a war against the United States, and attention focused only on Japan's own losses. Japan's role as aggressor in Asian wars has been overlooked. The reinforcement of military preparations by post-war conservative governments counter to the principle of Article 9, and the widening of the gap between official position and the reality, have intensified doubts and suspicions about Japan.
It is precisely because we believe it is a matter crucial to the recovery of the trust of the peoples of Asia that we make our proposal for a 'Basic Peace Law', urge a process of progressive reduction of the Self-Defence Forces, and try to show in concrete terms a non-aggressive defence policy and new-style security policy.
Towards demilitarisation
The process of demilitarisation begins from the shrinking and
separating of the merged 'two circles'. In a situation that has
escalated to 'combat-ready posture' it may be described as 'lifting
the mobilisation'. It is not a revision or abrogation of the
Security Treaty so much as a return to 'the situation that ought to
be', and it can, and must, be begun forthwith.
Among the issues that could be discussed even now with the Americans are the strict interpretation of the 'Far East clause' (to shrink the large circle to its proper size), the recognition that 'advance consultations' may be proposed from the Japanese side, and the abolition of the 'thanks payments'.
It is also desirable to shake free of the 'Guidelines', to reduce and then stop joint operational research and exercises and to make clear separate lines of command. The Soviet Far Eastern Fleet, which was always described as threatening the sealanes, has already collapsed and the threat of the Chinese navy is over-emphasised. 'Sealane Defence Operational Research' based on the Guidelines should be opened to scrutiny and then returned to a clean slate, joint operations in 'maritime anti-air defence' stopped, and participation in joint exercises including RIMPAC suspended (while calling for the suspension of the exercises themselves). The 'small circle' too should be reduced to Japan's sovereign land, sea, and air territory.
This process of shaking free of the 'Guidelines' will also contribute to an accompanying disarmament of the Self-Defence Forces. And if presence and exercises outside the territories remote from Japan are ended, a scalpel can also be taken to large-scale, expensive, and huge support systems and maintenance costs for the frigates equipped with AEGIS defence systems and the P3Cs. With Russia obviously engaged in demilitarisation, and the US too quite dramatically engaged in the same process, it would not do for Japan alone to be satisfied with minimal budget cuts.
Apart from such 'demobilisation', the basic contours of the US-Japan Security Treaty System itself will have to be reconsidered.
A fundamental reconsideration of the Security Treaty and Status Agreement and related domestic laws (hereafter referred to as the US-Japan Security Treaty system) is necessary. This system is predicated on Cold War and war, and the disarmament of the Self-Defence Forces is impossible without taking a good second look at it. This is because Article 3 of the Security Treaty calls for 'continuous and effective strengthening of Japanese military power'.
Article 6 of the Security Treaty determines the provision of bases, but the United States may also ask for the provision of bases anywhere on Japanese territory without restriction as to disposition or equipment if it is to contribute to the security of Japan or to 'maintenance of peace and security in the Far East'. Although the restriction of 'prior consultations' was established by the Exchange of Notes in 1960, no such consultations have been held for more than 30 years, and the clause might just as well not exist. The particulars of 'provision of bases' are determined by the Status Agreement under this clause.
One characteristic of the Security Treaty is that it is not just a state-to-state agreement, like a friendship treaty, but it comprises a system made up of Security Treaty, Status Agreement, and related domestic laws. For example the Criminal Special Law accompanying the Status Agreement makes the divulgence of US military secrets a crime punishable by up to 10 years penal servitude. This is an extremely heavy penalty, compared to less than one year under the Self-Defence and public service laws.
Accompanying the Status Agreement, a Land Use Special Measures Law applies to US military bases, and makes possible the compulsory expropriation of land for US military bases only. However, land for Self-Defence Force use cannot be expropriated in the main islands of Japan since the (ordinary) Land Expropriation Law, reversing the law that used to operate under the Meiji constitution, rules out expropriation for military purposes.
Quite apart from this, there is a series of laws and regulations which confirm the preferential position of US forces, such as the Special Civil Law, according to which the Japanese government pays for any damage inflicted on Japanese people by US forces, and the Tariff Special Law, under which not only US military personnel and employees but also their families are exempted from tariffs on imported goods. All of these domestic laws date from 1952, when the old Security Treaty system was in operation, and have not been revised for more than forty years. Furthermore, most of these domestic laws are simply a continuation of US occupation orders.
This Cold War Security Treaty system deserves to be thoroughly overhauled and in due course completely abolished.
Especially worthy of note is the 'Korea-United Nations Status Agreement' which is in a similar category to the Security Treaty system. In the Korean War, which broke out during the occupation of Japan, all US bases in Japan became 'United Nations Forces' bases. This was the result of America being allowed by the United Nations Security Council the use of the term 'United Nations Forces' and of the United Nations flag. This residual vestige from the occupation period still continues today and is still effective under the 'Agreement Regarding the Status of UN Forces in Japan' (which came into effect in June 1954). By Article 5 of this Agreement, US bases in Japan could be provided for the usage of 'UN forces' in the event of a crisis in Korea. At present the rear command of the UN Forces in Korea is established at Camp Zama US base in Kanagawa prefecture, and Japan would automatically become involved in the event of a crisis in Korea.
The situation on the Korean peninsula has greatly changed, as is evident from the understanding reached between the US and North Korea. It is no longer necessary to uphold this agreement, and indeed it should not be upheld. Now that conditions are ripe for its abrogation, it is up to Japan to take the initiative.
***
So far as manoeuvres by US forces are concerned, these have continued because they were taken to be important, despite the great inconvenience and danger they cause to Japanese people, but they must now be reduced in scale and in due course stopped. For example, the low level flight practice in the mountains by aircraft carrier planes, the night landing practice flights at Atsugi, the F16 training flights from Misawa, and the firing of artillery across main roads in Okinawa should be stopped forthwith.
In Okinawa in particular, it is necessary to commence at the earliest possible moment a reconsideration of the various systems giving priority to US forces. US air traffic control, which has continued despite revision, should be completely turned over to Japanese civilian aviation control, and all air and maritime zones which give priority to US military exercises should be abolished. The unfairness of the concentration of 75 per cent of US military exclusive (or regular use) facilities in Okinawa which has only one per cent of Japan's land area and population, should not be tolerated any longer. Those who suffered most from the Cold War should be first to benefit from the 'peace dividend' deriving from the conclusion of the Cold War.
So far as the bases are concerned, it is necessary that the right of inspection and investigation be acquired and exercised by the Japanese government, not only because of Japan's non-nuclear policy but also in order to verify whether the 'two circles' of the Security Treaty system referred to earlier are being kept distinct.
In addition, the return of the bases becomes a central issue.
Now that the Cold War is over, the retrenchment of US bases both on the US mainland and overseas is under way. A complete check of bases provided to the US forces under the Security Treaty should be carried out and a process of return undertaken in accord with Article 2 of the Status Agreement, beginning with unnecessary and idle bases. First of all, should not those which are already strategically unnecessary, such as the communications base at Yokota on the outskirts of Tokyo, Misawa, which confronted the Soviet Union, and Iwakuni, which is the air base for the marines, be targeted for reduction and return?
For the demilitarisation of the US-Japan Security Treaty not only will time be necessary, but the building of a consensus on the strengthening of the broad cooperative relationship with America will be an indispensable factor. Efforts to ensure that it will not be seen as anti-American, and to seek a new US-Japan regional cooperative modus vivendi while at the same time not causing unease to the countries of Asia, will be absolutely essential.
Towards a regional security system
While thus helping the US-Japan Security Treaty system to grow
beyond its military dimension, it is desirable that it be
incorporated within a new regional security system. This should be
a 'multilateral regional collective security', in which the
Asia-Pacific countries participate on the basis of equality,
irrespective of capacity or means of involvement, rather than
'US-centred multilateral security' as spelled out in the 'Report on
Japanese Defence Problems'. This new system should stand firmly on
precisely this shared security, and must also meet the condition of
being 'without enemy'.
Already various schemes based on such thinking have been proposed, such as Australian Foreign Minister Evans's proposal for the establishment of a CSCA (Asia-Pacific Security and Economic Cooperation Conference) modelled on CSCE, or Canadian Foreign Minister Clark's proposal for a North Pacific regional security framework. Of course, there are also plans which strive to promote multilateral cooperation still centred on the powers, such as (former) Korean president Ro Tae Woo's proposal for the creation of a Northeast Asian Peace Conference which would include the US, Russia, China and Japan, plus North and South Korea. Various comprehensive regional cooperation framework proposals have also been made, such as US president Clinton's idea of a 'New Pacific Community'.
In practice, however, it was the loose consultative group on political cooperation and security called the Asian Regional Forum (ARF), which was convened at the initiative of ASEAN and met for the first time this year [1994], which started things moving. The fact is that in this region, which is characterised not only by Cold War confrontation and different experiences of colonialism but by differences in history, politics, society, economics and culture, the process of cultivating a common security sense has to begin with confidence-building measures. In this sense, the ARF, which would probably best be described as a small power initiative, may be seen as hinting at the nature of a common regional security for Asia.
Of course there is no contradiction between the ARF and the various other security conceptions. It is probably true to say that the search for a new Asia-Pacific regional collective security has just begun. Still quite captive to the framework of the US-Japan Security system, Japan lacks either the will or the ability to propose a new idea, despite the considerable Japanese role in constructing in this region what seems to have become almost an inbuilt economic inter-dependence and an infrastructure allowing continuing peace and equal participation.
However, what is required of Japan is not, as we have said above, to lend a shoulder to the burdens of the United States, but on the contrary to respect the initiatives of regional states such as the ARF and to come up with plans for multilateral regional collective security. This means that effort will be required to conceive of a model for the transformation of the current Cold War US-Japan, US-South Korea, US-Philippines, and ANZUS security treaty system into a security system 'without enemy'. At the same time, effort will be required towards resolution of present-day problems which even now are severe, such as the problem of peace on the Korean peninsula, China-Taiwan relations, and territorial issues between Japan and Russia, in a form which will make possible a truly continuing peaceful and equal participation.
Even though no mean time and effort will be required, without effort along these lines and a strengthening of mutual trust there cannot be any prospect of resolving them. In this sense it could be said that what is required is the ability to think along fresh, new lines.
Demilitarising the US-Japan Security Treaty and reincorporating it within multilateral security will inevitably have consequences for Japan's own defence policy. The Basic Peace Law which obliges disarmament and lays down rules for democratic control and organisational democracy will be a legal expression of Japan's new posture to Asia. The division and reduction of the SDF and their transformation into a 'minimum defensive force' will be the practical expression of that new posture. It is a finely honed position, in which Japan will not threaten its neighbourhood, nor be threatened by it. If Japan does not trust its neighbour countries, Japan itself will not be trusted and no multilateral security will be able to take shape.
Here we want to demonstrate a concrete plan for multilateral security. If Europe is a continent and East-West confrontation was concentrated in land forces, Asia is linked by oceans and its confrontation is concentrated in naval forces. If multilateral security is land-based CSCE in Europe, will not Asia's multilateral security be in the form of a maritime CSCA? However, this will have to take a step beyond CSCE and show a strong orientation towards demilitarisation.
To the extent that the 'sealane defence policy' of the Nakasone government of the 1980s had any persuasive force it was because Japan's economy depended on the network of maritime communications. Now that particularly large threats have disappeared, is it not time to consider the idea that maritime regions of the Pacific and South China seas be patrolled through cooperation between the coastal countries, in other words, the idea of 'East and Southeast Asian maritime defence cooperation'? The Maritime Safety Board from Japan and the Maritime Police from ASEAN could contribute to sea rescue, prevention of ocean pollution, control of smuggling and drugs. If a joint presence enough to defeat pirates but not enough to defeat a navy could be implemented from the Malacca Straits to the South China Sea, the P3C and large frigates would become unnecessary. Not only that, but this could actually become one step towards the realisation of a truly new ideal of common security, through the cultivation of mutual trust and political negotiation in relation to the racial confrontation and territorial problems of the kind that have caused most of the post-Cold War disputes and that cannot be settled by military force.
Future-oriented planning
Till now we have dealt with the plan to demilitarise, disarm, and
transform the military alliance mould of the 'US-Japan Security
Treaty' system into a multilateral security system, and to expand
upon the peculiarities of the Japanese military forces so that they
are transformed into a 'Minimum Defensive Force' which does not
breach the constitution and is worthy of the respect of other Asian
countries, and we have referred to the peculiarity of Japan's
military force as something not necessarily unique but something
for which the quest on a world scale has begun.
Our proposal may be seen as idealism, but at the same time we believe it is the direction which is actually being chosen.
However, in the summer of 1994 the Defence Problems Discussion Group, which had been set up as an investigative committee by Prime Minister Hosokawa to consider disarmament proposals, presented its report. The report sketched a future which could scarcely be described as one of disarmament, including (1) an active and constructive security policy, (2) multilateral security policy cooperation centred on the United States, and (3) maintenance and deployment of a highly reliable defence force. Furthermore, in contrast to our proposal, it urged firm maintenance and positive development of the US-Japan Security Treaty, expansion of information exchanges, joint drafting of unit operational plans to make rear support and supply smoother, the conclusion of an agreement on exchange of services, the extension of the 'thanks payments' and the promotion of research on tactical missile defence (TMD). As we see it, this report is tied to Cold War thinking and goes against the trend of the times.
Prime Minister Murayama adopted the position that the Self-Defence Forces were constitutional, and the Japan Social Democratic Party endorsed this view. There is no longer any major political force which holds to the position that the Self-Defence Forces are unconstitutional. The movement for the revision of the text of the constitution may have declined, but what seems likely to emerge hereafter is the argument that a 'normal country' should have a 'normal army', and that there is no reason why Japan should not have legislation to cope with any emergency, or a crisis control legal system.
As we have already stated, we oppose this direction. It runs counter to the flow of history, and contains the risk of once again plunging the people of Asia into anxiety.
The Japan Social Democratic Party's recognition of the legitimacy of the Self-Defence Forces must be seen as a big step in the debate at the political level on defence policy. This is because any attempt to raise the organisation and structure of the SDF in the Diet has till now been seen to imply a recognition of something which is constitutionally suspect, and so the Diet has not been the body for determination of policy on defence matters.
What is necessary is first of all the publication of the defence facts in the Diet. There are countless secret documents (ca 1.90 million of them in 1991) and other information in the Defence Agency. The 'US-Japan Joint Operations Study', 'Far Eastern Military Study' and 'Sealane Defence Study' have never been published.
Second is Diet control over defence planning. Defence plans have been decided by cabinet but the Diet has had almost nothing to do with them. It should be obligatory for the detailed contents of defence plans to be reported to the Diet and for the progress of the plans to be reported each year. Till now, reinforcement of equipment has been carried out regardless of changes in the environment.
Third is Diet restraint on defence expenditure. The practice of shifting the financial burden of weapons procurement onto subsequent years invites fiscal rigidification. Auditing of the accounts should be reinforced, and any simple increase in defence expenditure or modernisation of weapons checked.
'Defence problems' must not be made into a sanctuary from the Diet as the highest organ of national power. Civilian control or democratic control does not mean restraint of the military by bureaucrats but that the people, and their representatives in the Diet, determine defence policy. We look to the opening of debate on reform of the system in this vein, especially in the Diet's Security Committee.
Finally, we reaffirm once again that the Japanese constitution is part of a search for a world without war. What the constitution envisages and anticipates is a situation in which armies vanish from individual countries, an international police force is formed and eventually even that becomes unnecessary. The end of the age of world wars has increased the need and the possibility for an effort to realise the ideal of the Japanese constitution, and we welcome this change. Is it not the immediate task of the Japanese people who possess such a constitution not only to keep up efforts to reduce that military force which is currently possessed and to call on neighbour states to disarm, but also to proceed in the direction of rejecting war, and to exercise persuasion so that not only does the army cease to exist and become a 'special armed force' but also a common defence system without an enemy is constructed?
Endnotes
1. For details, see Gavan McCormack,
'The Peace State: Dilemmas of Power', in Gavan McCormack, Japan
at Century's End: The Emptiness of Affluence, New York, M.E.
Sharpe, (forthcoming 1996). return to
text
2. Ozawa Ichir, Nihon kaiz keikaku, Tokyo, Kdansha, 1993, p.106. (See English version in Blueprint for a New Japan, Kdansha International, 1994.) return to text
3. For details of the Yomiuri proposals, see Yomiuri shimbun, 3 November 1994, or This is Yomiuri, December 1994, or (as a translated English pamphlet) A Proposal for the Revision of the Constitution of Japan, Yomiuri shimbunsha, 1994. return to text
4. 'Kokusai kyroku to kemp' (International Cooperation and the Constitution), Asahi shimbun, 3 May 1995, and English text in Asahi Evening News of the same day. return to text
5. 'Kyd teigen - "Heiwa kihonh" o tsukur', Sekai, April 1993, pp.52-67. (Translated by Meredith Patton and edited by Gavan McCormack). return to text
6. 'Common security' is the notion originally proposed in a 1982 report to the UN Secretary General by Olaf Palme, in recognition of the fact that in a nuclear age there could not be security for any single state or alliance group; security would have to be for all or for none. return to text
7. 'Tchi ki' refers to the doctrine of 'acts of state'. In 1957, when opponents of US base expansion entered the perimeter of Sunakawa base in Tokyo in protest, they were investigated under the 'Criminal Special Law' but in March 1959 the Tokyo District Court dismissed the case against them, holding that the US-Japan Security Treaty was unconstitutional (Justice Date). In December of the same year, on appeal, that judgement was overthrown by the Supreme Court which ruled that 'matters of high politics which have an extremely grave relationship to Japan's existence, such as the US-Japan Security Treaty, are beyond the scope of the court's judicial investigation'. This view has been cited in subsequent cases, and therefore seems to have constituted a 'doctrine'. return to text
8. 'As a sovereign country, naturally Japan possesses a collective self-defence right, but we take the view that the exercise of the self-defence right permitted under Article 9 of the constitution should not exceed the minimum necessary for the defence of the country (bei suru tame hitsuy saish gendo no han-i). The exercise of collective defence right...is not allowed by the constitution.' (Government statement in the House of Representatives, 29 May 1981). return to text
9. Maeda Tetsuo, Jieitai wa d suru ka (What will we do with the Self-Defence Force?), Tokyo, Iwanami Shinsho,1992; and see his article 'Gken jieiryoku e no san jken' (Three Conditions for a Constitutional Self-Defence Force), Sekai, August 1991. return to text
10. 'Ajia Taiheiy chiiki an