Japan’s Dilemma in the Persian Gulf

(Published in Australian Institute of International Affairs: Australian Outlook, Jun. 26, 2019; re-published in Opinio Juris, Jul. 5, 2019)

In the wake of the recent attacks on shipping in the Persian Gulf, there has been considerable discussion about Europe’s difficult position amidst the escalating tension between the United States and Iran. There has been far less discussion of Japan’s situation. Yet one of the ships was Japanese-owned, and Prime Minister Shinzo Abe was in Tehran at the time of the attack, specifically trying to dampen those tensions. Nonetheless, Japan distanced itself from the American accusations of Iran’s role in quite surprising and uncharacteristic fashion.

Why was that? Like the EU, Japan appeared to be on the horns of a dilemma, but the nature of its dilemma seemed far less clear. One explanation may lie with the Japanese government’s 2014 so-called “reinterpretation” of the war-renouncing provision of the Constitution. The current situation in the Gulf dovetailed with that “reinterpretation” in manner that created a dilemma with huge risks for the government.

Japan’s Surprising Response to the Crisis

Most readers would be familiar with the increasing tensions between Iran and the United States, from the American withdrawal last year from the Joint Comprehensive Plan of Action (JCPOA), the American tightening of sanctions since then, through to the recent U.S. deployment of forces to the region, followed by the two separate attacks on tankers in the Gulf of Oman. This timeline is a good refresher.

Prime Minister Abe’s visit to Iran was itself unusual. It appears to have been planned on very short notice. The first accounts of his floating the idea appeared in the press in late May, not long after the first set of attacks, and shortly after the Iranian Foreign Minister had visited Tokyo. After clearing the idea with President Trump, and notwithstanding that a Japanese Prime Minister had not visited Tehran since the 1979 Islamic Revolution in Iran, Abe was on his way to Iran for a state visit in the second week of June. The second tanker attacks occurred while Abe was in Tehran, and there has been some speculation that the timing and target of the attack was precisely to embarrass Japan.

Yet Japan’s response to these latest attacks was surprising. While the Trump administration ramped up its accusations of Iranian responsibility and sought to persuade the world with video and photographic evidence, the Japanese government increasingly distanced itself from the US position. Abe initially condemned the attack, but pointedly added “no matter who” was responsible. He further added that “all parties concerned” should exercise restraint. The owner of the Japanese ship contradicted the US government assertion that the attack was conducted with a limpet mine, stating that the crew had witnessed a “flying object” hit the ship.

Even more striking were statements made by government officials in the days that followed. Chief Cabinet Secretary Hoshihide Suga refused to comment on responsibility for the strike. A senior diplomat was quoted as saying that the government cannot “make any statement based on a presumption,” apparently rejecting the American evidentiary claims. Yet another diplomat raised the false claims made by US intelligence prior to the invasion of Iraq in 2003, concluding “we can’t unreservedly accept US claims.” A former cabinet minister even went so far as to echo the Iranian government claims that the tanker attacks might be a false-flag operation.

For those familiar with the Japanese government, for which the US-Japan security alliance is a bedrock article of faith, these are utterly astonishing statements. They may reflect, for one, just how far the Trump administration has debased the credibility of the United States, even in the eyes of its closest allies. The Japanese are certainly not alone in this respect. But it also suggests that Japan, like the European countries, is struggling to maintain some middle-ground, some neutral position within the escalating conflict.

The reasons for this are more obvious in the case of Europe, as the European parties to the JCPOA try to keep Iran compliant with the agreement, while trying not to offend the United States in the process. But Japan is not a party to the JCPOA. Of course, Japan continues to be a major oil importer, and much that oil flows through the Persian Gulf, and so Japan does have a general interest in preventing disruption. Indeed, it is that general interest that inspired curious remarks in fairly recent constitutional developments, which in turn have created a much more specific problem for Japan.

The Constitutional Connection

The Abe government purported to “reinterpret” the famous war-renouncing provision of the Constitution of Japan in 2014. Article 9 of the 1947 Constitution provides that, among other things, Japan renounces war and the threat or use of force in the settlement of international disputes. This had been interpreted by every branch and relevant agency of government, since 1954, as meaning that Japan could only use force for purposes of individual self-defence in the event of an armed attack on Japan itself. Specifically, it was understood to mean that Japan was prohibited from participating in either collective self-defence or collective security operations authorized by the UN Security Council. In 2014, however, the Abe government purported to “reinterpret” this provision, by way of executive fiat, to mean that Japan could, henceforth, engage in collective self-defence.

This “reinterpretation” was widely seen inside and outside Japan as unconstitutional and illegitimate. Nonetheless, the government passed revisions to national security laws in 2015, in the face of massive public protests, for purposes of implementing this changed interpretation. But to complicate matters, and central to our discussion here, the government sought to define collective self-defence in a manner that departed from the established meaning of that concept in international law. Specifically, it suggested that Japan’s right of collective self-defense could be triggered by an armed attack on a state with which Japan had close relations, which also threatened Japan’s survival and posed a clear danger to the Japanese people’s right to life, liberty and the pursuit of happiness.

One possible interpretation is that this right is only triggered by an armed attack on another country that is also an existential threat to Japan, but this really just collapses the distinction between individual and collective self-defense. Statements by Abe and other members of the cabinet at the time made clear that this was not how they understood the formulation. They implied that the elements of the definition could each separately serve as a trigger, such that any one of an attack on a close ally, a threat to Japan’s survival or a threat to the Japanese people’s rights, could each independently serve as a separate trigger for the right of collective self-defense. What is more, a separate aspect of the “reinterpretation” provided that Japan could use force in self-defense in response to “infringements” that do not rise to the level of armed attack, notwithstanding that an armed attack is the established condition-precedent for the exercise of self-defence in international law.

Most significantly for our purposes, Prime Minister Abe, in explaining his understanding of this formulation back in 2015, stated that efforts by Iran to mine or otherwise militarily block traffic in the Straits of Hormuz, could serve as a trigger for the exercise of Japan’s right of collective self-defense. It was not at all clear from his comments at the time how this might be so in legal terms, and I have written elsewhere on how the “reinterpretation” could potentially put Japan offside the principles of the jus ad bellum regime, which governs the lawful recourse to use force. But these comments, and the government’s understanding of its “reinterpretation” more generally, cast an entirely different light on Japan’s current situation in relation to events in the Persian Gulf.

The Resulting Dilemma

From the Korean War through to the invasion of Iraq in 2003, Japan has successfully resisted American pressure to assist in its wars on the grounds that the Japanese Constitution precluded any participation in armed conflict. But Abe’s explanation of the “reinterpretation” has eliminated any constitutional basis for resisting US requests that Japan assist in an American armed conflict with Iran. The conditions for triggering the “reinterpreted” right of collective self-defence may have already been satisfied. If asked by the US to assist in a use of force against Iran, a reluctant Japanese government would be left with either political excuses, or arguments that such a use of force would violate international law. The latter would not only infuriate the US, but would highlight the gap between the “reinterpretation” of the Constitution and international law.

Yet one of the major reasons for public opposition to the “reinterpretation” was a fear of involvement in “American wars.” Any move to now participate in an armed conflict for the first time since World War II, with no obvious threat to Japanese security, and based on the unpopular and controversial “reinterpretation,” would trigger a massive political crisis at home. And given that important electionsare looming, the timing could not be worse.

Seen in this light, it is not so surprising that the Japanese government is trying so hard to mediate the tensions between the United States and Iran and is so uncharacteristically rejecting US claims of Iranian responsibility for the attacks. No doubt there are other factors at play, and this is surely not the whole story. But the situation has exquisitely brought to a head problems the government created with its controversial constitutional “reinterpretation.” It may have all seemed academic back then, but in the context of possible war in the Gulf, it has now created the potential horns of a dilemma: enrage the public by engaging in armed conflict, or defy Japan’s closest ally by refusing to do so.