Collective self-defence does not defend us!
June 1, 2015
Noriho URABE (Adviser, Japan Institute of Constitutional Law)
A proposal to transform Japan into a nation capable of fighting wars is being discussed in the Diet. I feel compelled to examine "the right of collective self-defence," one of the key issues in a bunch of "the war bills" that require most careful analysis. In short, despite the word "self-defence," collective self-defence doesn't mean to defend our nation. It means to fight for other nations, to defend them. That is completely different from the original meaning of self-defence. This essential point is too often ignored in the ongoing discussions among politicians, journalists and even among scholars.
It is usually said that the right of collective self-defence means "the right, in case of a military attack to a closely-related nation, to take defence action in cooperation with the nation under military attack, even when our nation is not yet attacked." "The right of individual defence" is the right to react and take military action in case we are under military attack. Collective self-defence actions are taken together with our allied nation which is under military attack, when we are not attacked, to defend the attacked nation, not us. Can you call that self-defence? If Japan fights together with the USA before Japan is attacked, when the USA is attacked, can it be a self-defence operation? Such a military operation is not for defending Japan. The phrase "the right of collective self-defence" is misleading many people. Though it means to fight for other nations, it may sound something necessary to keep our nation safe.
The Charter of the United Nations is the first major document that defined the right of collective self-defence. Its Article 51 says, "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security." This is normally read that "in case of a military attack, the attacked nation may fight back alone, and it may also choose to ask its allied nations for help, to fight back in cooperation." The UN Charter secures the right of an attacked nation to practice collective self-defence that way. On the other hand, the nations that come to help the attacked nation can not be operating "self-defence," if they shoot before they are attacked. I understand that the UN Charter's Article 51 stands for those nations and authorizes such backing-up operations on the ground that they are done in order to help the attacked nation's self-defence efforts. I believe that is the original meaning of collective self-defence, stated in the UN Charter's Article 51.
Many people have been talking about "the right of collective self-defence" as something which allows us to take military actions before we are attacked, to help some other nations under attack. They pay little attention to the value of self-defence. The UN Charter originally meant to define what an attacked nation can do to defend itself. However, the phrase "collective self-defence" has been utilized to uphold the right to use force, underestimating the attacked nation's right of self-defence in the original sense. Aren't they going too far when they reduce the UN Charter's Article 51 and read it that "using force, even before we are attacked, is a nation's inherent right?"
In 1986, the International Court of Justice rejected the justification of collective self-defence maintained by the USA in connection with the military and paramilitary activities in and against Nicaragua. The USA had stood against Nicaragua since the establishment of a pro-socialist revolutionary government in 1979. Accusing Nicaragua of giving weapons and other assistance to rebels in Honduras and other neighboring countries, the USA started to disturb Nicaragua in 1981: placed mines in Nicaraguan ports, attacked an airport and made some other military actions in Nicaragua. Nicaragua brought the case before the International Court of Justice, and alleged violations by the United States of international law. The USA stated in its counterargument that it was exercising the right of collective self-defence, to help Honduras and other nations that were under Nicaraguan armed attack. The Court reasoned that, "there is no rule permitting the exercise of collective self-defence in the absence of a request by the State which is a victim of the alleged attack, this being additional to the requirement that the State in question should have declared itself to have been attacked," and that there is not enough information to establish an armed attack by Nicaragua against its neighbors. It asserted that the nation under attack is the key party of the collective self-defence, and that the others are not authorized to operate collective self-defence actions without the victimized nation's request. That is what it means. The US claimed the right to use force by the name of "collective self-defence." "Self-defence" would lose all its original meaning if superpowers' self-centered actions were justified as collective self-defence operations. Sadly, we have heard the expression a number of times in their statements when they stormed the nations that they hate. In addition to the Nicaraguan case, such claims were made in historical incidents, including; the former USSR's intervention in Hungarian Uprising of 1956 and the Prague Spring of 1968, and the US war against Vietnam from 1965 to 75.
Those are the real examples of exercising "the right of collective self-defence" which Prime Minister Shinzo Abe and his administration seek to acquire for Japan. The original sense of self-defence is always forgotten when they use force and talk about collective self-defence to make excuse. The word "self-defence" is now utilized by the Japanese government to advertise the war bills as something necessary for our safety and happiness. Let's not be confused. We have learned that "the right of collective self-defence"has always been misused as a nation's right to use force before being attacked. Therefore, we should not be convinced that such a right is a part of a nation's inherent right of self-defence.