Thanks to the generosity of the Japan Foundation, I spent last week in Tokyo meeting with government officials, academics and journalists. Among the many issues of interest to the security and economic environment of Northeast Asia were discussions about the revision of Article 9 and the prospects for Japan’s entry into the TPP negotiations.
The Mysteries of Article 9
Article 9 of the Japanese constitution is a crucial pillar of Japan’s national security strategy and thus an essential feature of the security landscape in Northeast Asia. The language of the Article—reproduced in full below—has been contentious since it was drafted by the SCAP during the occupation. The left initially claimed that it restricted the development of any military capacity, and argued that the self-defense forces were unconstitutional; although this battle was lost, support for a narrow and restrictive interpretation of Article 9 persists. For its part, the right has seen Article 9 (and the corresponding reliance on the US through the security treaty [1951, revised 1960]) as a constraint on Japan’s ability to become a “normal country.”
In 1954, the Cabinet Legislation Bureau issued an interpretation of Article 9 according to which Japan was permitted the right to self-defense and the minimum forces required to defend against direct attack. However in combination, Article IX and the security treaty are interpreted as limiting Japan’s ability to engage in collective security arrangements: acting in concert with other powers to take actions not immediately limited to the defense of Japan.
By limiting Japanese capabilities, the so-called “San Francisco system” embodied in the surrender documents, Constitution and security treaty have assured Japan’s neighbors. Yet these measures also place constraints on security cooperation between the US and Japan. Two commonly cited examples have motivated the recent discussion. Under dominant interpretations, it is probably unconstitutional for Japan to shoot down a North Korean missile launched at the US or US forces outside Japan. Similarly, Maritime Self Defense Forces would be proscribed from engaging the navy of a third country—think China or North Korea–in joint defense of US military forces outside of Japanese territorial waters. The last Abe government sought to address precisely these issues through a dubious “reinterpretation” of the Constitution; because of the nature of judicial review in Japan—which like the US relies on actual cases—the courts cannot simply adjudicate the issue.
Will Abe actually move to revise the Constitution? The opening gambit is not about Article 9 directly but about revision of Article 96, which would weaken the existing supermajority provisions on constitutional amendment. The current constitution requires a 2/3 majority in both houses, followed by simple majority in a national referendum. But some believe that the revision of Article 96 is simply the prelude to wider constitutional revision after the upper house elections July; those revisions are not limited to Article 9 but include a raft of other changes favored by conservatives.
The LDP released a draft amendment last year, which would delete the second clause of Article 9 altogether and add new Articles 9-2 and 9-3 stating that the “National Defense Force” shall be set up with the Prime Minister as its commander-in-chief. Such an amendment would resolve the ambiguity about Japan’s right to self-defense but might also pave the way for participation in collective self defense arrangements.
Is it smart for Abe to do this? In the end, we think not even thought is hardly for the US to say. It is annoying that countries in the region that are building up their own capacities would express concern that Japan—still spending about 1 percent of GDP on defense–is on the verge of 30s-style militarism. On the other hand, given the need to calm Japan-China relations—which Xi Xinping finally seems to recognize–it is not clear what would be gained. Much of what needs to be done at the moment in the US-Japan security relationship, such as resolving the endless haggling over Okinawa, signing the intelligence-sharing agreement between Japan and the ROK and increasing the inter-operability of US and Japanese forces are not affected by the Article IX debate one way or the other. Why roil the waters?
TPP was a dominant topic of conversation in Tokyo. As Peter A. Petri, Michael G. Plummer, and Fan Zhai argue in a Peterson post, the entry of Japan into the TPP negotiations would be a game changer for Japan, adding 2% to its GDP and 11.2% to its exports by 2025. It is seen by supporters of the Abe government as a component of the current effort at long-overdue economic renewal.
But Japan’s entry would also be a game changer for the negotiations. Japan’s participation would effectively turn the TPP negotiations into a bilateral FTA negotiation, particularly given the fact that the US has approached the TPP process as a series of bilaterals rather than a true plurialteral negotiation in any case. Japan is currently making the rounds of the existing parties, since all are required to sign-off on their entry. But the Abe administration has set up a 100-person ask force to oversee the negotiations and we would be surprised if they don’t come in.
The standard line in Tokyo seemed to be that Japan had little leverage in the negotiations. But it is not at all clear that Japan brings a weak hand to the table. First, absent Japan the TPP is largely a collection of medium-sized and smaller countries, a number of which already have pretty strong FTAs with the US (Canada and Mexico in the NAFTA, Singapore, Australia). The gains from including Japan—as Petri and co. show—are not trivial. Moreover, the dynamic effects of including Japan are important too; with Japan in, the agreement could attract countries like South Korea that have chosen to sit out the first round.
A second theme in the conversations was that Japan can’t sign a real FTA because of the agricultural constraints. But this argument is also dubious. To be sure, all of the interests with a stake in the negotiations with Japan were laying down markers in Congress last week: autos, beef, and the other usual suspects. But it looks like the TPP is going to have carveouts anyway because of commitments made under prior FTAs. And do a bunch of sensitive sectors weaken or strengthen your hand if Japan’s participation is seen as crucial to the agreement’s success? There will in any case be a mad scramble at the end of the negotiations to work out sensitive sectors, and the Abe administration has already leaked that they have identified their list. Conversations with some participants in sensitive sectors on the US side suggest that they may agree to concessions on the phase-out periods for tariffs as long as there is a commitment to real liberalization. Because of the size of the Japanese market and the growth promised under a predictable phase-out, concessions may be seen as worth it.
A final theme was how the TPP negotiations related to the overall regional architecture. We will now have three, major trade negotiations proceeding in parallel: the TPP; the Regional Comprehensive Economic Partnership (RCEP), rooted in the ASEAN + 6 (China, India, Japan, South Korea, Australia, and New Zealand), all of which have trade agreements with ASEAN; and the “CJK” trilateral FTA between China, Japan and Korea. Again, Japan seems to have some leverage in these other negotiations from its entry into the TPP; given the concessions it will be making in the TPP, it will almost certainly be a demandeur in the RCEP and Trilateral processes as well.
Can Abe pull it off? At least the process is simpler; in a parliamentary system, the government does not need to secure authority from a separate Congress, with all of the horse-trading that implies. To be sure, the LDP will have to stare down agricultural interests in its own party. But the TPP could provide the momentum to shift from reliance on trade policy instruments to support agriculture toward more direct subsidies, which in aggregate social welfare terms are much less expensive. To date, the Abe administration is enjoying high approval ratings; even the intellectuals who don’t care for him grudgingly admit that he has been quite disciplined. Those officials I met who were directly involved in trade negotiations believed TPP was eminently doable.
(1) 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.
(2) 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.