Six years ago this month, the Japanese Diet started deliberations on the 2015 peace and security legislation. This legislation package contained one new law and an omnibus bill that included revisions to 20 existing security-related laws. At the time, critics argued that the legislation would fundamentally alter Japan’s approach to security, and it is worth reflecting on whether or not that proved true.
Certainly, the laws expanded Japan’s security authorities and widened the aperture for the type of cooperation in which the Self-Defense Force can engage with foreign partners. Slowly but surely, Japan is exploring those opportunities with countries like the United States, Australia, the United Kingdom and France. Still, the laws did not shift the manner in which Japan employs its security authorities; rather, they reinforced the country’s long-standing “positive list” approach to its security practice.
But what is a positive list approach, and how does it differ from a negative list approach?
The positive list means that unless a law explicitly allows an action, one may not do it. Conversely, the negative list means that unless a law explicitly prohibits an action, it is fair game.
An example is useful here: When the U.S. military employed assets in Libya as a part of Operation Odyssey Dawn in 2011, the American Congress did not pass any exceptional laws or issue any decision to authorize the use of force in that situation. Rather, the White House issued orders based on standing authorities that permitted the use of military assets for operations other than war. This included the enforcement of a no-fly zone over Libya, naval and air operations, and employment of weapons against targets inside the country.
Contrast this with the Japan Self-Defense Force in Iraq. The SDF was only able to deploy troops in 2004 following the passage of a special measures law. That law specially outlined the limited activities the SDF unit would be permitted to undertake and called for renewal by the Diet every two years.
Despite the criticism that the 2015 peace and security legislation would fundamentally alter Japan’s security authorities, it actually further institutionalized the positive list approach. Yes, the new legislation eliminated the need for special measures laws for the types of operations the SDF had engaged in since 2001, and yes, they added new provisions for limited collective self-defense. But all that was done in a specific and restrictive way.
The laws established situation-specific menus of authorities, ranging from the “situations where the international community is collectively addressing peace and security” to the “armed attack situation.” The laws still mandate Diet approval and periodic renewal for SDF deployments. Further, they all still require the establishment of a kihon keikaku, or “basic plan” that outlines exactly the types of missions and scope of operations that the SDF would be allowed to undertake. In all cases, legislative approval is required, whether prior or ex post facto.
That is not a fundamental shift, but a prescription very much in line with the legal frameworks that have existed since the birth of the SDF in 1954.
So, why does Japan have such an enduring positive list approach? The answer to that question can fill a book, but I will summarize it with one fact and three contributing factors. The fact is that Japan did not always employ a positive list approach to its security, evidenced quite clearly by the Imperial Japanese military. Rather, this approach came in the postwar era, largely a result of three key factors: the Allied Occupation, Article 9 of the Constitution and the entrenchment of the bureaucracy.
The Allied Occupation brought the complete demobilization and disarmament of the Imperial Japanese military, down to confiscation of all weapons from every household. When Occupation policy reversed course to enable Japan to provide for its own defense amidst the rising threat of communism and the invasion of the Republic of Korea, the General Headquarters of the Occupation saw fit to reintroduce military-esque forces into the nation’s security architecture, albeit one general order at a time with specific provisions on what those forces would be allowed to do.
Then there is Article 9 of Japan’s Constitution. For most reasonable people, the language of the Constitution might suggest that Japan’s Self-Defense Force exceeds the letter of the article; after all, it does state that “land, sea, and air forces, as well as other war potential, will never be maintained.”
What the Japanese government has done is provide specific interpretations of Article 9 that define the boundaries of what Japan can do in the name of self-defense. Those boundaries have expanded through subsequent reinterpretations to permit what we see today, but they also reinforce an approach that demands specificity and limits to the activities of the SDF.
The third factor that cemented the positive list approach started under Shigeru Yoshida. The policy that most people associate with the former prime minister is the “Yoshida doctrine” — that is, the pursuit of economic growth under the umbrella of U.S. defense. However, Yoshida also championed the kanryo shudo taisei, or bureaucratic leadership structure. Yoshida was a former diplomat in the Foreign Ministry and encouraged other former bureaucrats to take up political posts. He relied heavily on the Japanese bureaucracy as the engine behind his governance, and this empowerment of Japan’s ministries and agencies entrenched authorities and practices that still exist today.
Bureaucracies across the world tend to apply a positive list approach to their activities, but the Japanese bureaucracy has made it a form of art, especially in the realm of Japanese defense.
What this all means is that Japan’s positive list approach is unlikely to change in the near future, even if the Liberal Democratic Party succeeds in achieving a modest amendment to Article 9. There are generations of precedent and practice that would need to be unraveled to achieve the sort of fundamental change that some argue has been looming for years.
Is that sort of change possible? Of course it is. However, it is also important to temper expectations with our understanding of a government’s internal machinations. So, should we expect the Japanese government to alter its fundamental approach to security? Perhaps they will fax us the answer.
Michael MacArthur Bosack is the special adviser for government relations at the Yokosuka Council on Asia-Pacific Studies. He previously served in the Japanese government as a Mansfield fellow.
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