Ever since Mr Abe became the prime minister, his plans to reform Japan’s security policy and to include a change of the Constitution have been controversial. But how bold have the prime minister’s plans been? A quick answer to the question is that as a security policy, Prime Minister Shinzo Abe has spoken in a bold language but in substance his changes are far more modest than originally proposed and so far implemented. As a question of Japanese constitution and democracy, Abe’s initiative was rather bold, to the extent of possibly having violated some well established constitutional principles and norms, but he has done less than some of his fiercest liberal critics at first feared.

New security legislation, passed in the national Diet on September 18, 2015, consists of revisions of ten existing laws and the drafting of one new law. They could be categorized into three areas of Japanese security and defense policies: (1) situations threatening Japan’s survival, (2) situations of important influence, and (3) international peace cooperation. Situations which relate to the question of the right to the collective self-defense (1) will be discussed below.

Categories 2 and 3 involve important changes from the previous typical Japanese self-restraint in the management of the U.S.-Japan alliance (the guidelines of defense cooperation between Japan and the United States), and participation in international peacekeeping operations. In short, it can generally and reasonably be argued that the role of Japanese self-defense forces and Japan’s options in both of these areas are still quite modest from a normal international standard, falling far short of those of Australia, for instance.

Category 1, pertaining to the most controversial issue, relating to the right to the collective defense, gives rise to somewhat fundamental problems concerning what could be termed the “Abe Agenda.” The new security legislation sets out three revised “conditions for the use of force for self-defense” as follows:

• (1) When an armed attack against Japan occurs or when an armed attack against a foreign country that is in a close relationship with Japan occurs and as a result threatens Japan’s survival and poses a clear danger to fundamentally overturn people’s right to life, liberty and pursuit of happiness.
• (2) When there is no other appropriate means available to repel the attack and ensure Japan’s survival and protects its people, and a proviso,
• (3) Use of force should be limited to the minimum extent.

The sentence in bold above gives room to exercise the right to collective self-defense, which successive Japanese governments have previously rejected due to the limitations arising from Article 9 of the Japanese constitution. The Abe administration has come to a new interpretation of Article 9, stating that the self-defense allowed by Article 9 consists of self-defense and collective self-defense. In condition (1), while the original reference pertains to self-defense in the strict sense of the term, the new addition in bold makes collective self-defense part of self-defense in a broader sense (something which reflects the changing security environments according to the explanation of the government).

Many constitutional experts in Japan are furious about the new interpretation. It is not only a matter relating to the substance of the changes, but the parliamentary process by which they were secured. Abe virtually forced this new interpretation on the national Diet’s deliberations, without allowing any room for compromise. This is in an important reason why the new security legislation presents the case for crises in constitution and democracy for the Japanese society.

As to the substantial part of the right to collective self-defense, the issue is not very straight-forward. The opposition’s argument that it is a “war-making” law is misplaced, as are Japan’s neighbours’ concerns about Japan’s military “expansion.” This is primarily because the right to collective self-defense is a legitimate one for all the sovereign states in the world, which is justified by Article 51 of the UN Charter. It is because additionally, the revised interpretation of the new law allows for the exercise of the right for Japan only at most 50 percent of what is justified by the UN Charter, i.e., only in situations where Japan’s survival is directly threatened. In other words, the new legislation would not allow Japan to engage in military operations with the United Sates and other friendly nations if the case has no direct bearing on Japan’s security. This is what is meant by 50 percent of the stipulation of the UN Charter, which is in principle, for the sake of international peace and order rather than a single country’s security.

Legally, the incomplete nature of the new legislation was necessary because of Article 9: As long as Abe tried to justify the right of self defense without changing the constitution, this is the maximum interpretation possible within the confines of Article 9. A further twist is that Abe originally wanted to change Article 9. The right to the collective defense was brought up as an extension of Abe’s aspiration, but the new interpretation was made in the name of defending Article 9. It was as if an invisible hand had pushed the “Abe Agenda” back to the box of “postwar regime” from which he wanted, ironically, to separate himself from.

The momentum for further change to Japan’s security policy may now have passed for the time being. But if Abe still wants to change Article 9 in the years ahead, it would mean that he would step into the remaining 50% of the right to the collective self-defense as stipulated by the UN Charter. Is he ready for this truly internationalist advance, or will he remain satisfied by his achievement concerning Japan’s own security? This question should be a real test for the “Abe Agenda.”

Article written by Yoshihide Soeya, Professor, Faculty of Law, Keio University, guest of Griffith Asia Institute.