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asia policy
real deterrence effect. 41 For them, the legal conditions in Japan to conduct an
orthodox military action with the full use of force are currently too severe
and should be relaxed to allow more appropriate reactions to gray-zone
situations. 42 These observers advocate that the use of the right to self-defense
should be allowed prior to an issuance of a defense mobilization order. 43
Actually, the May 2014 report of the Advisory Panel on Reconstruction of the
Legal Basis for Security suggested that “even in the case of an infringement
that cannot be judged whether it constitutes an ‘organized and planned use
of force,’ action to the minimum extent necessary by the SDF to repel such
an infringement should be permitted under the Constitution.” 44 It adds
that this action would be permitted under international law, especially if
such infringements are repeated frequently enough to be considered as an
“armed attack.” 45 However, the report concludes that this move could “invite
criticism at home and overseas that Japan is expanding the concept of the
right of self-defense under Article 51 of the UN Charter.” 46 For this reason, it
seems premature for Tokyo to employ such legal reasoning to allow greater
rules of engagement by the JMSDF in gray-zone situations. An attempt to
provide a more legally grounded definition of what constitutes a gray-zone
situation would nevertheless be a desirable first step toward expanding the
JMSDF’s role.
While the legal dimension of the issue still remains a quagmire, the
next section will consider how to ensure an optimal operational response to
gray-zone situation in the East China Sea.
41 See Yoji Koda, “Ki gatsukeba Senkaku ni goseikoki ga hirugaeru jitai mo, nihon no boeitaisei
no mujun to seidoteki kekkan” [If We Realize, the Five-Star Red Flag Could Even Fly on the
Senkaku—Flaws and Contradictions of the Japanese Defense System], Diamond, October 9, 2013.
42 There are currently three conditions for Japan to use armed force to defend itself: when there is an
imminent and illegitimate act of aggression against Japan, when there is no other means than force
to respond, and when use of force is confined to the minimum necessary.
43 See the first and second proposals in Tokyo Foundation, “Maritime Security and the Right of
Self-Defense in Peacetime: Proposals for a National Security Strategy and the New National
Defense Program Guidelines (Summary),” 2014. Also see Nasu, “Japan’s 2015 Security Legislation,”
263–66, 269. Nasu suggests that the category of “existential threat to Japan” created by the 2015
security legislation to enable the use of collective self-defense could be more broadly defined to
allow for the use of self-defense in gray-zone situations without a clear armed attack.
44 Advisory Panel on Reconstruction of the Legal Basis for Security, “Report of the Advisory Panel on
Reconstruction of the Legal Basis for Security,” May 15, 2014, 42–43.
45 “The concept has not been denied that also in cases where individual acts of infringement may not
amount to an ‘armed attack’ by itself, if such infringements were to ‘accumulate,’ they may then be
viewed as an ‘armed attack, and that in this scenario it would be possible under international law to
exercise the right of self-defense.” Ibid., 43.
46 Ibid., 45.
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