I have provided my own translation of the official document (jp) released by the kantei at the end of my commentary – feel free to offer any thoughts on my interpretation/summary if warranted. 

Recently the Japanese government decided to revise its approach to the export of certain types of ‘defense equipment’ overseas. For a detailed ‘legal’ history of the framework of the so-called ‘ban’ on the export of Japanese military equipment, the important laws and regulations, and moves to revise it, please read here. The most recent addition to this legal framework comes through a Chief Cabinet Secretary (CCS) ‘Statement’ (官房長官談話) which gives guidance to the Minister of Economy, Trade, and Industry (METI Minister) who legally has, and continues to have, the right to decide what exports fall under Japan’s export restrictions as per the Foreign Exchange and Foreign Trade Act of 1949 and its subsequent revisions. This statement was delivered December 27th last year, 2011.

From a legal point of view the statement essentially partially rolls back the ‘effective ban’ on defense equipment promulgated in a ‘Collective Government View’ by the Miki Cabinet and restores the original 1967 ‘Three Principles on Arms Exports’ as the most important legal component of the framework regulating Japan’s export of defense equipment.1 Japan has allowed itself some room to export some types of equipment, or in the case of international joint development and manufacturing consortia, to allow others to export said equipment, should it be deemed to be in the interests of both Japan’s AND international peace and security (assuming strict management systems are in place to prevent unwanted parties getting their hands on equipment and using them in unwanted ways – 第三国移転・目的外使用).

However this is not a free for all opening up of Japan’s defense industry to all comers and Japanese companies, the government, and Japanese agents will still be prevented (or in the case of non-’Three Principle’ countries, be required to ‘abstain’ as per the Miki Collective View) from transferring technologies and ‘arms’ overseas which fall into the category identified in Annex 1 of the Export Trade Control Cabinet Order (first promulgated in 1949 subsequent to the passing of the Foreign Exchange and Foreign Trade Act).

Perhaps the most distinct change worthy of additional commentary is the formulation of what may well become a new guiding principle for Japanese foreign and security policy, given the use of similar language in the 2011 New Defense Program Guidelines (防衛大綱). Throughout the CCS statement the idea of Japan’s ‘Peace Contribution/International Cooperation’ (平和貢献・国際協力) is mentioned as a primary guidepost for making decisions on allowing defense exports. Given Japan’s recent moves to participate more proactively in PKOs, tentative steps towards broadening economic relations, readjustment of ODA policies, and moves within the broader East Asia region to strengthen defense relations, this is a signal that Japan’s overall foreign policy will be much less passive and perhaps, some may argue, less self-centered. Specifically according to the statement, ‘Peace Contribution/International Cooperation’ activities are those that are intimately related to Japan’s involvement in international peace cooperation, international emergency assistance, humanitarian assistance, and anti-terrorist and anti-piracy measures.

However, one of the ongoing issues and points of controversies in the context of Japan’s export of defense goods is the allowable scale of Japan’s defense industry’s cooperation with the US government and defense industry. Up until 1967 Japan (or more correctly, the Japanese government, companies or individual agents) could, if the METI Minister approved it, transfer goods to almost any nation. The 1967 Three Principles then effectively prevented the transfer of defense goods to three types of nations:

1) Communist nations;

2) Countries subject to a UN resolution or arms embargo; and

3) Countries involved in armed conflict or in the process of entering armed conflict

The first two are generally reasonably clear but it is less than clear whether the third has more or less applied to the US continuously since the Korean War. The Vietnam war was certainly a conflict but what about some of the smaller incursions the US was involved in from time to time up until the 199os when the US ‘branched’ out more widely again? What happens if a nation was acting on behalf of the UN, or NATO, such as the US did in the Gulf War and Yugoslavia respectively?

These questions did not really have to be addressed as the 1976 the Miki Collective View placed  responsibility on the Japanese government and the METI Minister to at least ‘abstain’ from authorizing the transfer to all nations from Japan defense equipment that could be used by a military specifically in combat (ie not just deadly ‘weapons’).2 The meaning of ‘abstain’ in this context can be found in my previous post.

Many have interpreted this as an effective ban, and one in particular targeted at the US. There are various explanations for why this was done – one can view it in terms of the motivations of personal and organizational actors, and also the ideologies involved, but from the broader political perspective in practical terms the Miki decision  served as a form of democratic reassurance for the public in the context of changes in the SDF’s military posture and identified role in society, and the potential for greater defense level relationships and inter-operable collaboration between the US and Japan that was taking shape at the time. It was up until 1976 in theory legally possible for Japan to have conducted a significantly robust weapons trade with the US and others, and there were post-WWII periods were this was the case, so this was quite a change.

It is important to recognize that the Miki Collective View etc are not strictly constitutionally related or even standard pieces of legislation, although the 1949 legislation gives them legal effect. The 1949 legislation can be changed through the normal democratic channels, and the interpretation of that legislation and the political level guidance given to the METI Minister would come in the form of cabinet-level decisions and statements, so one could argue that they have become a ‘constitutional convention’ of sorts. Thus one would expect that the changes to be in line with popular assent, or at least not contrary to popular dissent, as the policy evolved over time.

And indeed it would only be 7 years until the first of the major exemptions would be granted to the US, and from the 1990s the process of specifically exempting (例外化措置) certain technologies and items grew quickly and beyond just to the US. Needless to say there were pockets of opposition inside Japan at each step but overall it  seemed to be in line with changing public perceptions of Japan’s security needs and appropriate policy that seemed to start taking place from the late 1980s.

In short, the new framework states clearly that BMD joint development with the US, and the joint development and export of goods with the US (and other nations) that would support international peace, security and cooperation,  (平和貢献・国際協力) is allowable even if the US was in theory subjected to the restrictions of the ‘Three Principles.’ One can understand that irrespective of the US’ (mis)adventures that Japan would not want its domestic security undermined (however defined in the contemporary context), or its participation in PKOs jeopardized by whatever conflict its partners may or may not be involved in, so this makes some sense.

Is it sufficient?

However, the real world focus in terms of timing to revise the government’s approach was to allow Japanese companies to participate in the joint manufacture and further development of the F-35 Joint Strike Fighter, which Japan has recently committed to buy. I assume the justification relies on the ‘international cooperation’ aspect of the Peace Contribution/International Cooperation (平和貢献・国際協力) formulation found in the new CCS statement, as it not completely clear that the F-35 is a contribution to international peace (incidentally the Eurofighter might have been a better choice from this point of view as it being specifically an air superiority fighter makes it easier to justify as a defense-orientated piece of ‘equipment’ that could help countries genuinely dedicated to peace by focusing on their own defense of territory…but the decision has been made).

Will the F-35 be a valuable piece of ‘equipment’ that will enhance international peace cooperation, international emergency assistance, humanitarian assistance, and/or anti-terrorist and anti-piracy measures? Certainly one could argue that the P-3 Orion (or its eventual replacement the Kawasaki P-1) could fall into this category, as well as a lot of the MSDF’s other assets. The SM-3 Block IIa missile that will be exported by the Japan and US at some point cannot be used for offensive purposes. I am less convinced with the F-35 however – it certainly could support Japan’s national security, and even international security and peace if one defined that as maintenance of the current status quo of power relations –  and clause 4 below offers some ancillary guidance on the importance of national security considerations within the new framework, but I can’t quite place the justification for the export of the F-35 within the renewed framework.

One of the arguments for relaxing the defense equipment restrictions outlined in the New Defense Program Guidelines  was that since Japan’s dwindling defense spending was buying ‘less’ security over time in an increasingly dangerous security environment, and spending more on defense would be neither publicly popular or fiscally responsible,  relaxing aspects of the arms exports restrictions to allow better value for money in terms of domestic defense procurement and defense industrial base sustainability was a necessary move, and one focused on F-35 collaboration in particular. I would have expected that this issue would have been dealt with in more specific and bold terms than what the CCS statement below does. Right now I struggle to see how the F-35 collaboration is justified in the new statement unless Japan plans only to contribute to manufacturing components for its own purchased assets, or that it holds any potential export partners to only using this (explicitly) multi-role stealth fighter for purely defensive purposes (difficult to police in reality, one would think – would India which was once interested in purchasing the F-35 really be able to resist using it in incursions into Pakistani territory during one of their intermittent conflicts?).

Nevertheless a notable aspect of the new addition to the legal framework is that it actually places a significant amount of responsibility on Japan to take an active role in supporting the international arms control regimes at the same time that it takes a more proactive role in manufacturing defense equipment. The first ‘mutually agreed-framework’ that is required to be negotiated by the Japanese government with an export destination country or a joint development/manufacturing partner nation will be of great interest to see how seriously the Japanese government takes this self-defined responsibility.

I feel overall that the new approach is better than a completely unprincipled approach, although I don’t feel that the issue of interpretation and clarity is addressed satisfactorily. Perhaps new legislation is needed at some point in the near future that will clarify and consolidate the various aspects of the current legal framework more concretely. Both the processes and principles that need to be applied to operationalize the kinds of distinctions the Japanese are attempting to in balancing short-term security needs and longer-term security ideals need to identified. I feel the increased level of complexity as evidenced by this latest addition to the arms export legal framework now makes transparency a significant democratic issue by making it harder for citizens or non-experts (or politicians for that matter) to effectively scrutinize the Japanese government’s decisions, irrespective of whether one agrees with the new direction towards which the CCS statement points for Japan’s security policy.

Translation of the official document (jp) immediately below – as said I welcome comments.

Chief Cabinet Secretary’s Statement on the Standards for the Movement of Defense Equipment Overseas, 27 December 2011. (「防衛装備品の海外移転に関する基準」についての内閣官房長官談話)

Based on the New Defense Program Guidelines (hereafter ‘the Guidelines’ 大綱) formulated in 2010 and applicable from 2011 onwards (平成二十三年度以降に係る防衛計画の大綱) and the careful consideration of  policy related to the changing international environment concerning defense equipment (防衛装備品), at today’s  Cabinet Security Committee a resolution was debated and passed in regards to this policy. From now on the following standards will apply to the movement of defense equipment overseas from Japan (防衛装備品等の海外へ移転):

1) Until now Japan’s government has dealt with the issue of the export of weapons overseas through the careful application  of the ‘Three Principles of Arms’ Export.’

2) However, while maintaining the fundamental ideals of Japan being a peace-loving nation as embodied in the Three Principles of Arms’ Export, successive governments have, through Chief Cabinet Secretary statements, made decisions on the appropriate exemptions to the Three Principles of Arms’ Export (例外化措置) on an individual basis. These exemptions were justified on the basis of their contributing to Japan’s pursuit of peace and international cooperation activities (平和貢献・国際協力 – for example Japan’s international peace cooperation, international emergency assistance, humanitarian assistance, and anti-terrorist and anti-piracy measures), or Japan’s cooperation with the US in the development of ballistic missile defense (BMD).

3) In the Guidelines, in regards to the changing international environment concerning defense equipment, it was stated:

There has been an increase in the  number of occasions where heavy equipment carried by the SDF overseas, if provisioned to the affected countries, would lead to more effective collaboration from the point of view of supporting peace and international cooperation.  Further, through the joint participation in  international development and manufacturing of defense equipment it is possible that the sophistication of defense equipment may be increased at the same time that the costs of such equipment is reduced.

Based on awareness of the above factors in the changing international environment, consideration of Japan’s policy on the movement of defense equipment was conducted based on the premise of Japan remaining committed to the ideal of it being a peace-loving nation.

4) It is recognized by various nations in the contemporary international community that effectively implementing measures related to international peace cooperation, international emergency assistance, international emergency assistance, humanitarian assistance, and international anti-terrorism and anti-piracy activities is a requirement. As a peace-loving nation, it is essential for Japan to make a more effective contribution to peace and stability, and to be more proactive in international cooperation (平和貢献・国際協力) while maintaining our commitment to a peace-loving nation that avoids fomenting international conflict.

At the same time to prevent the illicit spread and proliferation of defense equipment which undermines international peace and stability, Japan should proactively work with developing countries and provide assistance to put in place effective systems to manage the export of weapons.

Further, in order to support our country’s security,  joint development and manufacturing projects with the US have been undertaken. However in among the current significant changes in international society, in addition to strengthening our cooperation with the US it has become necessary, for the purposes of consolidating Japan’s peace and safety as well as international security, to pursue cooperation with nations other than the US who have a role in upholding our security. By working with these nations on the basis of advancing the joint international manufacturing and development of defense equipment, through the acquisition of the latest defense equipment, our nation’s national defense industry’s manufacturing and industrial base can be maintained, the level of sophistication can be increased, and costs can be reduced.

5) From the above point of view the government needs to take a comprehensive approach to the process of deciding on appropriate exemptions (包括的に例外化措置を講じること), based on the need to support the joint development/manufacturing projects that enhance our international contribution and cooperation, and on the movement of defense equipment overseas that contributes to our national security. Based on the logic that have supported the process of making exemptions up until now, the following standards will guide the Japanese government’s approach to dealing with the issue.

1) In regards to projects related to Japan’s international peace contribution and cooperation (平和貢献・国際協力), when there is  movement of defense equipment overseas, and/or  provision of  equipment to partner nations, our government and the partner’s country’s government will be required to the implement a mutually agreed framework that ensures that without prior consent (1) the concerned equipment will not be used for purposes other than those agreed upon in the mutual framework (hereafter unintended use 目的外使用), and (2) the concerned equipment is not given to third party countries (hereafter 3rd party country transfer 第三国移転). Japan will provide defense equipment to partner nations based on the premise that these nations have strict management systems in place to prevent the aforementioned deviations from any mutually agreed framework.

2) In regards to [Japan's participation in] joint defense equipment developmentmanufacturing projects, the possession by collaboration partners of strict management systems  to prevent without prior consent the unintended use of or provision to third party countries of the concerned defense equipment should the partner country wish to export the equipment, is a requirement of Japan’s participation. Furthermore, the Japanese government will not give consent unless the movement of such equipment makes a contribution to Japan’s or international peace and security. In situations where Japan’s contribution to the joint development/manufacturing projects is relatively small, it will still be a requirement that any third party country that Japan’s collaboration partners wish to export to also have in place sufficient systems to prevent the transfer to other third party countries.

3) Japan will continue, as a nation dedicated to the fundamental principles embodied in the Three Principles of Arms’ Export of it being a peace-loving nation which desires to avoid fomenting international conflict, to take a cautious approach to arms exports other than those excepted above.

1 In 1967 in the Lower House Accounting Committee Prime Minister Sato Eisaku in his parliamentary response, referencing the 1949 aforementioned law and cabinet ordinance, stated that while Japan should need not necessarily be completely prohibited from exporting weapons overseas, it would not do so to countries that met any of the three conditions identified in the 1949 Act.
2 武器輸出三原則における「武器」とは、「軍隊が使用するものであって、直接戦闘のように供されるもの」をいい

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Corey Wallace joined Japan Security Watch in 2011. He writes on Japan security-related topics, focusing on issues and stories that may not find their way into the English language media. He also hosts the blog Sigma1 where he writes on Japanese domestic politics and broader issues in international relations. Prior to taking up a PhD Corey was a participant on the JET program (2004-2007) and on returning to New Zealand he worked at the Ministry of Research, Science and Technology from 2007-2010 as a policy adviser. Corey lectures two courses at the University of Auckland. One is on the international relations of the Asia-Pacific, which contains a significant focus on East Asia security issues. The other is a course on China's international relations. His primary academic interests before his current Japan focus were science and technology politics/policy, issues of ethnic identity, and Chinese modern history and politics. He carries over his interest in issues of identity and history into his PhD where he is looking at generationally situated concepts of national identity and their impact on foreign policy ideas in Japan.
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