31. What opinion do you have, from the standpoint of international law, of the recent legislation for a new security regime?


5 September 2016


From the standpoint of international law, we cannot help but wonder whether the Japanese government will be able to judge on an independent basis and express its opinion to its allies on the legality of the use of force by foreign states. According to the new legislation for security, the Japanese Self-Defense Forces may be sent into action for collective self-defense in “situations of threats to the survival of the nation,” as well as be dispatched for international peace keeping operations or collective security in cases of “international cooperative activities for peace and security” or in “situations of international cooperative actions.” In all these activities, Japanese forces are supposed to carry out their operations in cooperation with the military forces of other states. The necessary condition for these activities must be that the use of force by these other states, with which the Japanese forces will cooperate, is legal, because our Self-Defense Forces should not contribute to illegal the military acts of other states.   


     The judgment concerning this condition may seem simple at first glance, but it has, as a matter of fact, never been an easy task. The use of force in recent cases has very often been justified either on the basis of self-defense or a UN measure for collective security. Such legal justification has been elaborated even in the case of the military operations for the Afghanistan War in 2001, the Iraq War in 2003, and the ongoing airstrikes in Syria. It is, therefore, very likely that, in the not too distant future, military operations against “terrorist” organizations will be legally justified as an act of self-defense, or that military measures will be enforced by Allied forces on the basis of a dubious interpretation of UN Security Council resolutions. It is also very plausible to suppose that, in such situations, the allies will require the Japanese government to send its Self-Defense Forces into action to cooperate, saying that there arise “situations of threats to the survival of the nation” or “situations of international cooperative actions,” which would enable the Japanese government to send its forces to foreign territories.


     Then the most crucial question is going to arise: Will the Japanese government make its own judgment about the legality of the allies’ military operations even if the resulting judgment runs counter to the latter’s wishes? Will it be able to reject its allies’ in cases like the Afghanistan War, saying, “According to our judgment, the use of force by your country cannot be justified as an act of self-defense, therefore we will not send our forces to you”? Or will it be able to make an independent judgment in situations like the Iraq War and say, “We cannot cooperate with your armed forces, because this use of force, in our opinion, is not justified by any UN Security Council resolution”?  If it cannot, the Japanese government will feel it has no option but to dispatch its forces into situations like the Afghanistan War and the Iraq War, and Japan will inevitably be involved in such wars.     


     Until now, the Japanese government has always expressed its support for the use of force by the United States. By giving this support, the government has approved, at least tacitly, the legality of U.S. military operations as acts of self-defense or as necessary measures to eliminate threats to international peace and security.  


     Under the post-war Constitutional regime, which strictly restricted the overseas activities of the Self-Defense Forces, the unconditional support of the Japanese government for the use of force by the United States did not matter very much. Japanese forces could hardly make significant military contributions anyway, but now the regime has been changed because of the recent legislation. New security acts considerably enlarge the sphere of activity of Japan’s Self-Defense Forces. Therefore, the Japanese government shall no longer be allowed to maintain its traditional policy of unconditional support for its allies’ military actions. Proposing this legislation, the government must have been determined to change Japanese policy. The assumption is that the Japanese government, in cases like the above, will be able to make an independent legal judgment in the future and follow through on it, even against the wishes of its allies. I am not confident that our government can do this.   


Taira Nishi