March 11, 2015

Update on Japan's legislative process for Soryu sale to Australia

Shinzo Abe when appointed Prime Minister in December 2012. He is steadily altering Japan's defence policies and laws, in response to the threats from China, North Korea and terrorism.
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Japanese air force F-15s, based in Okinawa. They mainly protect Japanese territorial interests in the East China Sea area. Amended laws will provide greater legal backing for broader Japanese military activities.
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Japan's competitors (Germany and France) in the submarine sale to Australia have policies and legal systems well in place to sell to Australia. Japan's own defence sales legal system probably needs years of work to make sales to Australia sufficiently legal under Japanese law and more acceptable to the broad Japanese public. The time-lag is made more serious by Australia being Japan's first multi-billion dollar weapons customer. So as things stand today Japan is at a legal disadvantage compared to established weapon exporters Germany and France. 

The Abe Government also needs to establish greater legal certainty while Abe's Liberal Democratic Party (LDP) has so many seats in both the lower (House of Representatives) and upper (House of Councillors) houses of the Diet (Parliament).  

The mass of decisions and documents required by Japan’s Government and companies to sell Soryu submarines to Australia require major legislative changes. This is a short update on part of the legislative process.

In July 2014 the Cabinet of Japan’s Abe Government agreed on three new requirements for using the right of collective self-defence. The three requirements were (and are) that:

1.    there is an imminent and illegitimate act of aggression against Japan and also in some cases its allies,
2.    there is no appropriate means to repel this incursion other than the use of force in self-defence, and
3.    the use of force is confined to the minimum level needed to repel the attack.

On March 6, 2015 a council meeting of the majority LDP and its coalition partner Komeito further discussed revising laws. It was decided that an outline of security legislation will be formulated by the end of March 2015, and the government will start writing the texts of the bills in April 2015. The bills will amend such laws as:

-          the Law on Response to Armed Attack Situations, and
-          the Self-Defense Forces Law

The LDP sees actual changes to Japan’s Constitution as a long term goal requiring agreement in the Diet and also a referendum. Article 96 of the Constitution provides that a proposed amendment must first be approved by both houses of the Diet, by at least a super majority of two-thirds of each house (rather than just a simple majority). It must then be submitted to a referendum in which it is sufficient for it to be endorsed by a simple majority of votes cast. A successful amendment is finally promulgated by the Emperor, but the monarch cannot veto an amendment.

Soryu to Australia

The legislative changes mentioned above add legal legitimacy and also help build consensus for a non-pacifist Japanese defence policy. Actual Principles and Guidelines form part of the mass of decisions and documents required to sell Soryu submarines to Australia. Principles and Guidelines include:

1.     The Three Principles on Transfer of Defense Equipment and Technology of April 1, 2014 http://www.mofa.go.jp/press/release/press22e_000010.html and 

2. The Implementation Guidelines for 1 Implementation Guidelines for the Three Principles on Transfer of Defense Equipment and Technology http://www.mofa.go.jp/files/000034954.pdf
This was adopted by Japan's National Security Council on April 1, 2014 .

Within the Guidelines I understand that Provision 1,2)A will be applied in possible the Soryu or related technology transfer to Australia. The Provision is:

1. Cases in which Overseas Transfer of Defense Equipment and Technology may be
Permitted

2) Overseas transfers that contribute to Japan’s security, only if the transfers have positive meaning from the viewpoint of Japan’s security, and that:

A. are related to international joint development and production with countries
cooperating with Japan in security area including the U.S.,"

COMMENT

The Abe Government appears to be steadily working towards changes in laws needed to permit such exports as the Soryu to Australia.

The agreement of Abe’s Liberal Democratic Party (LDP) with its more centrist coalition partner Komeito seems required for these changes in laws. Komeito’s power comes from its centrist nature and its numbers in both the lower and upper house of the Diet (Parliament). Komeito’s agreement to the wording the LDP wants in the laws may be an obstacle, if Komeito hesitates from April 2015 onwards.

It is difficult to assess whether the Principles and Guidelines needed to sell Soryus to Australia are currently overly strict or prescriptive. There are sensitivities in the Australian military over how Sweden, due to Sweden’s export guidelines, decided to embargo Carl Gustav anti-tank weapon ammunition to Australia during the Vietnam War. Sweden’s decision not to sustain the Carl Gustav weapon system with ammunition, in time of great need, was probably the main Australian concern.

I do not know whether Japan’s submarine sale competitors, Germany and France, have similar Principles and Guidelines that may potentially restrict sale or sustainment of their submarines.

Japan's defence laws may be modified to be less pacifist but most depends on how they are interpreted, by politicians, the judiciary and the public.

I would be grateful to Japanese readers if you could comment whether I have an accurate view or not.

Regards

Pete

5 comments:

Anonymous said...

I personally think your discussion is in the right direction. Other comments are:

1) Second opposion party, the Japan Innovation Party may support revision of the Constitution. As resionists have more than 2/3 seats of the Lower House, if they win 2/3 seats of the Upper House in the next election, they can propose the revision.

2) 25 July 2014, Toyokeizai online criticized two dyfuctional cases of“The Three Principles on Transfer of Defense Equipment and Technology” .
2-1) Japan can not export defense equipment to a conflict country, but according to definition of “The Three Principles”, there is no conflict county exist, even Israel is not conflict country.
2-2) In the case of PAC2 missile gyro technology transfer to USA in 2014, before the transfer approval by Japanese National Security Council, USA had decided to sell the technology to Qatar.

Peter Coates said...

Thankyou Anonymous for your views.

I understand your point 1)

I first assumed that the LDP-Komeito coalition were the only revisionists for the laws and Constitution. However with your description of the Innovation Party's (9% lower house (HoR) seats) potential alliance with the LDP (61% HoR) moves my simple picture into more realistic complexity. http://en.wikipedia.org/wiki/Elections_in_Japan#Latest_results

If the Innovation Party is a potential voting ally for the LDP then Komeito (7% HoR) would realise that it is not a irreplacable ally for the LDP at least in the HoR. I note the Innovation Party has no seats in the upper house (HoC) but Komeito has (8% HoC) and LDP (48% HoC). So the upper house (HoC) is the LDP and LDP-Komeito Coalition major weakness when considering Constitutional change.

To create (or amend?) laws the LDP has sufficient seats 61% in the HoR to pass them but with only 48% in the HoC the LDP needs Komeito's 8% HoC (or some other party's seat votes) to pass those laws. http://en.wikipedia.org/wiki/National_Diet#Powers

So Abe's major electoral win in December 2014 gave him LDP law passing dominance in the HoR, but not passing Constitional change power in the HoR. Abe's LDP 48% in the HoC do not have the power to pass laws. LDPs 48% in the HoC + Komeitos 8% cannot pass a Constitional change. 11% more is needed for the necessary 2/3s super-majority.

Abe is experiencing (what we call in Australia) a "Hung Parliament" in the HoC. Just as Abbott is experiencing a Hung Parliament in our upper house (the Senate).

I'll look at your 2) soon.

Kind Regards

Pete

Peter Coates said...

Hi again Anonymous

Re your "2) 25 July 2014, Toyokeizai online criticized two dyfuctional cases of “The Three Principles on Transfer of Defense Equipment and Technology” .
2-1) Japan can not export defense equipment to a conflict country, but according to definition of “The Three Principles”, there is no conflict county exist, even Israel is not conflict country."

My response - Yes under "The Three Principles on Transfer of Defense Equipment and Technology" http://www.mofa.go.jp/press/release/press22e_000010.html "country party to a conflict [is] (a country against which the United Nations Security Council is taking measures to maintain or restore international peace and security in the event of an armed attack)"

But then 2(2) and 2(3) further dilute the strictness-narrowness of the conflict country definition.

COMMENT - So the “Principles” are very much open to the interpretation of Japan's politicians. This may actually be in Australian interests if/when Australia is an ally of Japan.

Your "2-2) In the case of PAC2 missile gyro technology transfer to USA in 2014, before the transfer approval by Japanese National Security Council, USA had decided to sell the technology to Qatar."

I think the dangers of selling to the US are that it has much political and economic power as a customer. The US has also many alliance obligations with many allies. This means the US can lever/exploit(?) its alliance with Japan to strengthen its alliance with Qatar.
The US is often powerful enough to "legally" do what it likes. The US can often draw-up or dominantly interpret international law. This may be in Japan's and Australia's favour given our alliance with the US.

I think the international arms trade is always difficult due to money over principles, money influencing political behaviour, secrecy tied in with alliances and national interests.

Money for submarine corporations (MHI and KHI) and money for the Kobe political district may cause distortions to principles. Money is of course also important to economic and national well-being.

2-1) and 2-2) show how flawed or fortunately open the “Principles” are.

These Principles appear to act as legal vehicles for Abe to persuade the Diet to change defence laws-policies even though the "Principles" are legally weak or wide open to interpretation.

It will be interesting to see if amendments to defence laws themselves are wide-open to interpretation.

Regards

Pete

Anonymous said...

Revisionist are A)LDP, B)Komei, C)Japan Innovation Party, D)Party of Next Generation, E) Sunrize Party.

(1) Current composion of HoR(Total =475 representitves )
A=292, B=35, C=41, D=1, E=1, A+B+C+D+E=370>2/3Total=317

(2) Current composion of HoC(Total =242)
A=115, B=20, C=11, D=6, E=0, A+B+C+D+E=152<2/3Total=162---only 10 seats difference.

Half member (121) of HoC elected in 2010 including LDP(49,then- supporting rate =24%) , Party of Next Generation(2) and major anti-revisionist JDP(41, 32%) will subject to election in 2016. Current supporting rate for LDP and JDP is 37, 11%, respectively. JDP may lose more than 10 seats and LDP win these seats, it means 2/3majority of revisionists in HoC.

Peter Coates said...

Hi Anonymous

Thank you for the information on revisionist numbers in the Diet.

I'll use the information in a future post.

Regards

Pete