At their April 27, 2007, summit meeting, President George W. Bush and Japanese Prime Minister Shinzo Abe reiterated the importance of U.S.-Japan bilateral security cooperation, particularly in the area of ballistic missile defense (BMD). A follow-on meeting of the U.S.-Japan Security Consultative Committee (SCC) also emphasized in its May 1 Joint Statement that as both countries deploy their BMD systems, “every effort must be made to ensure tactical, operational, and strategic coordination” in order to respond to “ballistic missile threats against alliance interests.” [1] The two sides agreed that U.S. forces and Japan’s Self-Defense Forces would improve information sharing and develop a “bilateral common operational picture.” The SCC focused in broad terms on developments related to technology, information, and coordination, but the Japanese government must itself address more fundamental questions before undertaking closer cooperation with the United States.

Specifically, under the current Japanese government’s interpretation of Article 9 of the Constitution, forbidding Japan’s participation in collective self-defense, Japan is barred from using its missile defense system to defend a third country, including its ally, the United States. [2] Ever since Japan made a decision in 1998 to undertake research on a BMD system in cooperation with Washington, Japanese officials, political leaders, and commentators have wrestled with the issue of what steps Japan can take without violating Article 9. [3] As the BMD system has moved from research to deployment and from a theater missile defense to a broader missile defense system in response to North Korean nuclear and missile developments, the debate within Japan has intensified. To more closely integrate the Japanese and U.S. BMD systems, Japan may need to revise its constitution, review its export control laws, and strengthen protection of secret military information.

Background of U.S.-Japan BMD
Japan had been discussing missile defense with the United States since the 1980s, but it was North Korea’s test of a Taepodong-1 ballistic missile in August 1998 that spurred the government, in December 1998, to join with the United States in cooperative research and development of a ballistic missile defense system. In August 1999, the United States and Japan signed a Memorandum of Understanding establishing a five-year program of joint research and development on four components of a sea-based, then-theater wide BMD system (now called Aegis Ballistic Missile Defense). Because of constitutional and other constraints, Japan made no decision about acquiring a missile defense capability or about integrating any future Japanese system with a U.S. system. [4]

However, given the U.S. decision to deploy an initial BMD system at home and progress in the relevant technologies, the Japanese Cabinet decided on December 19, 2003, to introduce the multi-layered defense system based on the Aegis BMD system and Patriot Advanced Capabilities (PAC)-3. At that time, the Cabinet adopted a policy decision, “On Introduction of Ballistic Missile Defense System and Other Measures,” thus establishing that a robust missile defense system capability was a top priority on Japan’s security agenda and that the purely defensive system “presents no threat to neighboring countries, and does not affect regional stability.” [5] Bypassing the Article 9 issue, the statement declared:

As for the issue of the right of collective self-defense, the BMD system that the Government of Japan is introducing aims at defending Japan. It will be operated based on Japan’s independent judgment, and will not be used for the purpose of defending third countries. Therefore, it does not raise any problems with regard to the issue of the right of collective self-defense. The BMD system requires interception of missiles by Japan’s own independent judgment based on the information on the target acquired by Japan’s own sensors.

Adopted in 1981, in a statement by the Cabinet Legislation Bureau to the Japanese House of Representatives (the lower house of the Japanese parliament, or Diet) and supported unanimously by successive Cabinets, this policy allows Japan to exercise only the right of individual self-defense. [18] The ruling was applied specifically to bar the use of ballistic missile defenses to protect a third country in a statement of Japan’s Chief Cabinet Secretary, Yasuo Fukuda, in 2003, at the time the Japanese government first decided to deploy a BMD system. [19]

Since taking office in September 2006, Prime Minister Shinzo Abe has worked to revise the interpretation of Article 9 to facilitate closer integration of the U.S. and Japanese BMD systems; eventually he is expected to amend the article. Some security analysts in Japan suspect that Abe’s eagerness to review the interpretation of collective self-defense was triggered by his firm decision to enhance U.S.-Japan security cooperation through closer integration of the Japanese and U.S. missile defense systems. [20]

In late October 27, 2006, U.S. Ambassador to Japan Thomas Schieffer, during a speech in Tokyo, stated that the United States would like an answer to whether a Japanese destroyer would shoot down a North Korean missiles not headed toward Japan. He added, “The answer will be absolutely critical to the function of our future alliance.” [21] Following Schieffer’s speech, in a November 2006 interview, Prime Minister Abe stated that Japan may need to review its policy that prohibits it from using its missile defense system to defend a third country. Chief Cabinet Secretary Yasuo Shiozaki also has mentioned that Japan will consider reviewing the 2003 interpretation. [22] Abe reiterated his support for BMD in a speech at the 166th session of the Diet in January 2007: “In coordination with the United States, we will strive for early deployment of a system to defend our country against ballistic missiles.” [23]

In April 2007, Abe formed the Council on Reconstruction of a Legal Basis for Security (the “Council”), an advisory expert panel to provide recommendations by September 2007 on specific cases related to Japan’s security policy and the Constitution, particularly the right of collective self-defense. [24] The panel, under Abe’s leadership, consists of 13 members, including former officials of the Foreign and Defense Ministries. [25]

Before the first meeting of the Council, Abe won an initial victory on the constitutional reform issue. On May 14, 2007, the upper house of the Diet – the House of Councillors – passed a bill that established the detailed legal procedures for revising the Constitution, including the terms of a national referendum required by that document. [26] The referendum bill was passed by a vote of 122 “for” to 99 “against.” The bill was supported by the ruling Liberal Democratic Party and its coalition partner, New Komeito. [27] Japan’s second largest, and opposition party, the Democratic Party of Japan, and other opposition parties, including the Social Democratic Party and the Japanese Communist Party, voted against the bill. The liberal newspaper Asahi Shimbun carried an editorial titled “Referendum Law Flawed” that bluntly criticized the Prime Minister: “Abe has politicized the debate on referendum legislation.” [28] Japan’s largest newspaper, the conservative Yomiuri Shimbun, encouraged further debate over revising the constitution and declared that the passage of the referendum bill “provides an important foundation to create a new charter that will serve as a guiding principle for the nation in the new era.” [29]

First Meeting of Council on Reconstruction of a Legal Basis for Security
Soon after the constitutional referendum bill victory, on May 18, Abe convened the first meeting of the Council, which has been commissioned to examine four scenarios, one of which bears directly on the BMD issue: “Whether it is appropriate for Japan to use its missile defense (MD) to intercept ballistic missiles targeting the United States.” [30] At the meeting, Abe reiterated the importance of reviewing the current Japanese governmental interpretation on the right of collective self-defense, stating, “The security environment surrounding our country has become dramatically harsher due to issues such as North Korea’s nuclear development and ballistic missiles. It is important that the Japan-U.S. alliance functions more effectively.” [31] While Japan’s current missile defense system cannot intercept a missile targeting the United States during the mid-course phase, some analysts argue that the accelerated implementation of the Aegis system equipped with SM-3s may make such an interception feasible. [32]

As noted, since December 2003, Japan’s official position on missile defense as stated by former Chief Cabinet Secretary Fukuda has been: “Japan’s MD [missile defense] system will not be used for the defense of a third party nation.” [33] Reportedly, Abe instructed the Cabinet Legislation Bureau, the body responsible for interpretation of the Constitution, to review the interpretation of the right to exercise collective self-defense prior to the formation of the expert panel. [34] The recommendations by the expert panel, expected in September 2007, may lead the Cabinet Legislation Bureau to substantially alter its interpretation, in particular, to allow Japan to use its BMD to protect third countries. The Ministry of Defense supports a change. In May 2007, a high ranking Defense Ministry official claimed that the Japan-U.S. alliance “would collapse” if Japan were to ignore a missile targeting the United States that passed over Japan. In an editorial, the conservative Yomiuri Shimbun supported the idea that Japan should intercept missiles flying over Japan. [35]

Defense Minister Fumio Kyuma, at a Security Committee meeting of the House of Representatives on May 18, expressed his view that Japan can shoot down a missile targeting the United States if the country that launched the missile towards the United States had already attacked Japan and Japan responded as a defensive measure. According to Kyuma, in such a situation, Japan would be exercising the right to individual self-defense, which is granted to Japan under the current official interpretation of the Constitution. He also added that “If the United States is attacked when Tokyo has ordered defense operations, Japan can launch a counterattack even if the place attacked is within the United States.” [36]

China’s Response
Japan’s move toward collective self-defense and a BMD system more integrated with the United States has been criticized on the grounds that it could aggravate relations with China. Taku Yamazaki, former Liberal Democratic Party secretary general, criticized the advisory panel studying Japan’s right to collective defense because it could intensify Japan-China disputes, especially over the Taiwan Strait issue. China has been increasingly disturbed by the accelerated progress of U.S.-Japan missile defense systems, which would also provide protection against Chinese missiles, as well as by Japan’s reviewing the scope of its right to collective self-defense. [37] In June 2007, at the Annual Asian Security Forum organized by the International Institute for Strategic Studies in Singapore, Mr. Zhang Qinsheng, Deputy Chief of the General Staff of the People’s Liberation Army, in response to a statement by Japan’s Defense Minister, highlighted China’s concern over the intentions of the United States and Japan. He asserted that the deployment of a missile defense system would destabilize Asia and create uncertainty in terms of regional stability and peace. Moreover, he insisted that any bilateral military cooperation “should not target a third party or infringe the interest of a third party.” [38] Furthermore, on June 5, 2007, China’s Foreign Ministry emphasized its “grave concerns” about U.S. and Japanese plans. A Foreign Ministry spokeswoman commented that the intensifying U.S.-Japan cooperation in missile defense systems will impact stability and the strategic balance and may also cause new proliferation problems. [39]

Sharing Classified Information
The May 1 “Joint Statement of the U.S.-Japan Security Consultative Committee” noted that the two countries reached agreement on measures to protect classified military information in the General Security of Military Information Agreement (GSOMIA). According to the statement: “The GSOMIA will facilitate information exchange and establish a common basis of information security contributing to sharing of intelligence and defense program and operational information.” [40] As of early July, both governments were in the process of deciding the effective date of the GSOMIA, but Japan had not yet decided whether further revisions of its national laws on confidential military information will be necessary. [41] The GSOMIA supplements Japan’s current obligation under the U.S.-Japan Mutual Defense Assistance Agreement, which covers only secret information about military equipment, including ships, aircraft, and weapons purchased from the United States. [42] The GSOMIA paves the way for Japanese companies to act as subcontractors to U.S. companies and allows the militaries of the two countries to share a greater range of information.

Agreement to conclude the GSOMIA was reached during a time of mounting concern about a series of leaks of U.S. secret information by members of Japan’s Self-Defense Forces. [43] In March 2007, Japanese police found a disk of classified information about the U.S.-developed Aegis system at the home of a Maritime Self-Defense Force (MSDF) officer in Kanagawa prefecture during an investigation of the immigration status of the officer’s Chinese wife. [44] Kanagawa Prefecture Police and MSDF authorities subsequently discovered that data files created by the MSDF Program Service Unit in Yokosuka, Kanagawa prefecture, were copied and distributed to MSDF’s First Service School in Etajima, Hiroshima prefecture. According to police, the leaked files included data on the Standard Missile-3’s performance and an advanced communication system, called “Link 16,” used to share information between Japanese and U.S. forces. This information should be protected as a “defense secret” under Japan’s Confidentiality Protection Law. [45] There have also been allegations of leaks in Japan of information about the U.S.-developed Aegis radar system. [46]

On June 5, 2007, Japanese police raided two MSDF bases – the Maizuru Training Center in the Sea of Japan in Kyoto and the Iwakuni Air Base in Yamaguchi – seeking information from trainees of the First Service School in Etajima, prefecture.Also, MSDF investigators have questioned about 300 relevant individuals, including those who have worked at a program unit in Yokosuka, Kanagawa prefecture, and instructors and trainees at the Etajima training school. According to sources, the materials including the confidential data were originally produced sometime after 1998 to use in the training of senior MSDF officers who would work with advanced air defense systems on Aegis ships. Investigators are seeking to establish a criminal violation of the 1954 Law Concerning the Protection of Secrets for the Japan-U.S. Mutual Defense Assistance Agreement, which would be the first case brought under that law. [47] Investigations continue in these cases, which have heightened concerns over the need for Japan to strengthen both its agreements with the United States and its domestic laws on protecting confidential information related to BMD and other military issues.

Conclusion
While Japan is expediting implementation of its missile defense system and calling for heightened security cooperation with the United States, it has yet to reach a domestic consensus on fundamental questions about the constitutional limits on collective military activities, whether to address Chinese concerns, and how to ensure the effectiveness of its laws on protecting classified security information.

Masako Toki and Sarah Diehl – Monterey Institute Center for Nonproliferation Studies