Japan’s Nuclear Law and National Security

I recently saw this report about the Japanese Diet having amended its 57 year old national atomic energy act – Japan’s fundamental legislative framework governing its nuclear energy sector – to include “national security” as an ‘aim’ of the law:

Recent modifications to Japan’s national atomic energy act include the insertion of “national security” as an aim of the law, causing consternation in some quarters that the language could be used as a legal basis for the nation to create a nuclear weapons program in the future, the Korea Herald reported on Thursday.

“The safe use of atomic power is aimed at contributing to the protection of the people’s lives, health and property, environmental conservation and national security,” reads the new amendment to the Atomic Energy Basic Act.

The new national security clause was included as an appendix to a bill for the establishment of a new nuclear regulatory body in late June, and appears to effectively amend Article 2 of the 1955 Atomic Energy Basic Act, which originally read:

The research, development and utilization of nuclear energy shall be limited to peaceful purposes, shall aim at ensuring safety, and shall be performed independently under democratic administration, and the results obtained shall be made public so as to actively contribute to international cooperation.

This new amendment apparently went unnoticed for some time by the media, but since it was picked up it has caused a lot of controversy both inside Japan and within the region.  Many in Japan consider the new amendment to be in disharmony with the “three non-nuclear principles” that have guided Japanese law and policy on nuclear energy for decades.  The three principles (Hikaku San Gensoku) were first announced by Prime Minister Eisaku Sato in an address to the Diet on December 11, 1967, and later adopted by the Diet (though never actually made into law) in a 1971 resolution.  Every Japanese Prime Minister since has publicly reaffirmed them. The principles state that: Japan shall neither possess nor manufacture nuclear weapons, nor shall it permit their introduction into Japanese territory.

Under some interpretations of the amended language – and I have to say that at least to me as a non-Japanese-law-expert, these interpretations seem pretty persuasive – the insertion of “national security” as an aim of Japan’s development and utilization of nuclear energy could pave the way, at least under Japanese domestic law, for the future development of a Japanese nuclear weapons program.  That may well not have been the intent of the amendment – and numerous parliamentarians and government officials have been stressing that it was not – but it does seem to me that at the very least the newly crafted provision of this centerpiece legislation could colorably be used as a legal basis on which to ground the development of nuclear weapons in the future, by a government that wished to pursue such a program. Again, I’m not a Japanese law expert at all, so others that are may have a better sense of this potentiality (I’ll try to get Professor Masahiko Asada, a good friend and a great arms control law scholar at Kyoto University, to comment).  In any event, the amended language has caused considerable alarm in Japan and has prompted calls for the amendment to be repealed in the next Diet session.

Seeing this report brought back to my mind the recent, fairly shocking, comments of Shigeru Ishiba, former Japanese Minister of Defense and now a leading member of parliament, about Japan’s interest in keeping its civilian nuclear program healthy so that Japan could use the capabilities afforded by its civilian program, to develop a nuclear weapon if it ever needed to do so.  As reported by the Wall Street Journal in October of 2011:

Many of Japan’s political and intellectual leaders remain committed to nuclear power even as Japanese public opinion has turned sharply against it. One argument in favor rarely gets a public airing: Japan needs to maintain its technical ability to make nuclear bombs. “I don’t think Japan needs to possess nuclear weapons, but it’s important to maintain our commercial reactors because it would allow us to produce a nuclear warhead in a short amount of time,” Shigeru Ishiba, a former defense minister, said in an interview in a recent edition of Sapio, a right-leaning twice-monthly magazine.  “It’s a tacit nuclear deterrent,” added Mr. Ishiba, an influential parliament member who made similar remarks on a prime time television news show in August while serving as policy chief of Japan’s main opposition party.

(As a quick aside – can you imagine if a former Minister of Defense and now sitting parliamentary leader in Iran said this? Oh, what hay would be made of it by the U.S. and Israel! But I digress.)

And actually, this isn’t the first time a Japanese official has made comments about Japan’s nuclear hedging posture. On June 17, 1994, Japanese Prime Minister Tsutomu Hata told reporters that “it’s certainly the case that Japan has the capability to possess nuclear weapons but has not made them.”

And indeed, there is a sense in a lot of what I’ve read that this idea of Japan’s civilian nuclear program being in part actually purposed in developing and maintaining a capacity to make nuclear weapons in short order if the need ever presented itself, is sort of accepted as a not-very-well-kept-secret within political circles in Tokyo.

But with the recent amendment to the Atomic Energy Basic Act seeming, at least to the perception of many, to constitute an actual manifestation, and a legal formalization, of this longstanding not-so-secret nuclear hedging posture, South Korea, at least, is starting to get a little bit freaked out.  South Korea’s foreign minister, Kim Sung-hwan, reportedly expressed his government’s concerns about the changes to Japan’s nuclear law in a meeting with Seiji Maehara, chairman of the ruling Democratic Party of Japan’s Policy Research Committee, on July 16.

South Korea of course has a well known and quite nasty recent history with Japan that makes this nervousness completely understandable.  And there remains serious concern in South Korea about Japan’s post-war return to economic and military power, and some pretty serious and widespread distrust of Japan’s intentions in the region.  This distrust was on full show only a month ago, when the signing of a much-heralded intelligence-sharing pact between Japan and South Korea was postponed at literally the last hour, to the embarrassment of both governments, because of a public outcry against the agreement in Seoul.

Speaking of history, the horrific narrative of the suffering of the Japanese people as a result of the use of nuclear weapons against Japan by the U.S. in the closing days of World War II, is also well known.  I’ll never forget reading Masuji Ibuse’s Black Rain in college. Some things should never be forgotten. And since that time, Japanese society has, again quite understandably, had an intense collective revulsion for nuclear weapons, and complex feelings even about civilian nuclear energy. These feelings have manifested themselves in recent weeks through the public demonstrations of a revitalized and surprisingly durable civil society movement opposing all nuclear power in Japan.

As reported in the same WSJ article:

Recent public-opinion polls show the Japanese public turning against nuclear energy after the March Fukushima Daiichi nuclear accident. But even when support was high for commercial atomic use, surveys have shown the Japanese people were overwhelmingly against introducing nuclear weapons. Some 72% of respondents in a 2009 poll conducted by the Mainichi newspaper, a nationwide daily, said they supported keeping the Three Non-Nuclear Principles in tact, while only 24% wanted them revised or scrapped to allow the introduction of nuclear weapons. Japan has long had a “nuclear allergy” due to its status as the only country against which nuclear weapons were used, in 1945 attacks on Hiroshima and Nagasaki.

I can understand, if only in a small, personal way, the communal trauma that the Japanese people attach to the Fukushima Daichi disaster.  I had the privilege of living in Japan for two years, from 1993-1995.  For four months of this time, in the Spring of 1994, I lived in a city called Koriyama, in Fukushima prefecture. I’ll never forget arriving in Koriyama in shigatsu (April), just as the sakura began to bloom.  It was such a welcome sight after the six months I had spent freezing up in Aomori prefecture.  Koriyama is about 37 miles away from the Fukushima Daichi reactor site (the picture at the top of the post is a younger, slimmer, handsomer me at Aizuwakamatsu castle nearby).

I experienced my own personal shock and profound sadness as the images of the destruction caused by the earthquake and the tsunami started to pour into my television on March 11, 2011.  It was heartbreaking to think of so many people – people that I had grown to love – suffering through this unbelievable calamity.  And then, hard on the heels of the horrific natural disaster, came the “man-made disaster” of the meltdown of three of the reactors at the Fukushima Daichi facility, resulting in the forced evacuation of over 100,000 people from their homes.  More than a year later, at least 60,000 people are unable to return to their homes near the facility, and the land up to 12 miles in radius from the Fukushima Daichi site may be uninhabitable for many decades due to the radioactive contamination produced by the meltdowns.

Thinking back on it – and I have to assume that this is how many Japanese think back on it – the natural and man-made elements of the catastrophe of March 2011 in northern Japan sort of blend together in my mind.  It just forms one big terrible and traumatic event in my memory.  I suspect that the newfound vitality of the anti-nuclear movement in Japan takes much of its strength from this coalescing of the elements of the disaster in the minds and memories of many Japanese.

I can also completely understand why the Japanese people are so upset about the recent changes to the basic atomic law, and the introduction, for the very first time, of an aspect of potential militarism into Japan’s nuclear law.  As the polling numbers quoted above evidence, one thing that unites the Japanese people is their hatred for nuclear weapons and their revulsion at the very thought of Japan ever possessing, let alone using, nuclear weapons.  This is something simply unimaginable to most Japanese, and they would never countenance it.  And now to see their government taking steps that could be interpreted as paving the way, at least in terms of domestic law, for the potential development of Japanese nuclear weapons, has been extremely disturbing to most Japanese people who have learned about it.

So what to make of the new amendment to Japan’s basic atomic law?  I really don’t know enough about the legislative history, and the surrounding politics, to make a judgment about the intention of the amendment.  I know the amendment is reportedly viewed by South Korea as only one part of a recent “national security push” by the Japanese Diet and government, that includes the amendment to the atomic energy act, but also includes a recent proposal by a panel of experts under the government’s National Policy Unit to change the interpretation of the Japanese Constitution to allow Japan to exercise the right of collective self-defense, and also includes what South Korean Foreign Minister Kim Sung-hwan has referred to as “Japan’s plans to play a more active role in space development,” which reportedly likely refers to “a June 15 amendment that allows the Japan Aerospace Exploration Agency to develop intelligence-gathering and other satellites for national security purposes.”

I think my own take away lesson from this is that the new amendment seems to be only the latest data point in a longstanding disconnect between the Government of Japan and the people of Japan regarding the uses and purposes of nuclear energy in Japan.  As is so often the case in Japanese politics, it appears that this disconnect went, if not unnoticed, then largely unopposed or criticized by Japanese civil society for many years.  But now the natural and the man-made elements of the March, 2011 disaster in northern Japan have together produced far more public scrutiny, and vocal and active opposition to government policies that are at odds with the will of the Japanese people.  And the Japanese people clearly do not want any moves in law or policy toward a greater likelihood of Japan developing nuclear weapons.

If democracy means anything, it means that elected officials must listen to and implement the longstanding and deeply rooted will of the people.  At least with regard to any even colorable legal facilitation of the development of nuclear weapons in Japan, the will of the people is clear. The amendment should be repealed by the Diet.

UPDATE: See this recent, pretty amazing article in the GSN. Very candid and with some great source material and quotes – http://www.nti.org/gsn/article/japan-atomic-power-phase-out-debate-has-weapon-dimension/