East Asia Forum http://www.eastasiaforum.org Economics, Politics and Public Policy in East Asia and the Pacific Sat, 23 Aug 2014 12:00:24 +0000 en-US hourly 1 http://wordpress.org/?v=3.9 Supreme Court of Japan rules against welfare for foreigners http://www.eastasiaforum.org/2014/08/23/supreme-court-of-japan-rules-against-welfare-for-foreigners/ http://www.eastasiaforum.org/2014/08/23/supreme-court-of-japan-rules-against-welfare-for-foreigners/#comments Sat, 23 Aug 2014 12:00:24 +0000 http://www.eastasiaforum.org/?p=43147 Author: Trevor Ryan, University of Canberra

Last month, the Supreme Court of Japan ruled that persons without Japanese nationality (that is foreigners) have no legal claim to benefits under the Public Assistance Act. The case is an affront to the second and third generations of ethnic Chinese and Koreans in Japan who have chosen for practical and identity reasons not to renounce their nationality and naturalise as Japanese. For these and other tax-paying permanent residents, the case simply affirms the legality of a discriminatory statute.

But, while it is a ‘stunning’ decision for some, a few points about the decision should be clarified.

First, the case was limited to only one plank of Japan’s social security and welfare system — tax-funded public assistance for poverty relief (seikatsu hogo). The reasoning does not apply to other areas such as unemployment insurance, health or nursing insurance, age pension or child assistance.

Second, the decision will not necessarily impact current practice. Foreigners with permanent residence status are typically granted public assistance. Indeed, the plaintiff in this case was granted public assistance in 2011 on her second application.

Some have speculated that in light of fiscal and demographic pressures, local governments will use the case to justify denying foreign residents poverty relief. But this claim exaggerates the autonomy of local governments to deny benefits contrary to central policy. Also, it has often been local governments that have taken the lead in collaborating with non-profit organisations to meet the challenges of an increasingly diverse society and address the legacies of past discrimination. Examples include establishing language support for ‘new’ immigrants, ad hoc retirement funding for ‘old’ foreigners who have not met the qualifying period for a public retirement pension, and inclusionary approaches to local political participation.

Third, the underlying constitutional issues were well settled. The principle that the fundamental civil, political, social, and economic rights enshrined in the Japanese Constitution apply to foreigners was settled by the Supreme Court in 1978. The caveat was that some rights may by their nature only be applicable to Japanese nationals in certain contexts.

Differential treatment of nationals per se is not objectionable in light of practice elsewhere in the world: foreigners are usually (but not always) excluded from the franchise and senior government positions, for example. In fact, the 1978 judgment went further than the historical record perhaps allows. According to Dower, the compound word kokumin as the translation of ‘the people’ deliberately emphasises connection to nation — one of the few victories of Japan’s immediate post-war conservative ruling clique in their tussle with Occupation forces over the content of the new constitution. On the other hand, an inclusionary approach better comports with the universal values underpinning Japan’s ‘bill of rights’.

The Japanese Supreme Court had developed an inclusive approach in relation to the general law, for example, on negligence claims. This was also true for some welfare cases, such as foreigner entitlements to benefits for victims of atomic bombs. However, these turned out to be exceptions: in 1989, the Court found that the nationality criterion in the Disability Welfare Act did not amount to unreasonable discrimination, nor did it contravene the constitutional guarantee to a minimum standard of living. The Tokyo High Court followed this position in 1997, finding the nationality criterion in the Public Assistance Act constitutionally valid (at least in relation to ‘unlawful’ immigrants). The Fukuoka High Court had offered a more inclusive approach based on a wider historical and international law-based argument. It observed that the process surrounding ratification in 1981 of the 1951 UN Refugee Convention entailed removing nationality as a criterion under most social security and welfare legislation. The only reason the Public Assistance Act was left unamended was that a Diet committee deemed that, given the practice of providing public assistance to foreigners in need, no amendment was necessary to meet the requirements for ratification. Unfortunately, on appeal the Supreme Court rejected the notion that this could give rise to any implied rights on the part of foreign permanent residents.

Given the hierarchical, bureaucratic structure of Japan’s judicial system, one should not be surprised that the application of constitutional tests regarding fundamental rights and duties has not been particularly progressive. The more likely avenue for inclusive welfare reform is through internal and external pressure on lawmakers, although this is perhaps less promising in the current climate of rising tensions linked to territorial disputes.

So where to from here?

While still relatively small, the percentage of residents in Japan that are of foreign nationality has more than tripled over the past 30 years (from 0.68 per cent in 1982 to about 2 per cent in 2014). Given the projected decline of Japan’s population, it is likely that this percentage will increase because immigration is seen by some policymakers and politicians as one means of replacing retired workers. From a human rights perspective, and to smoothly integrate the foreign population, Japanese lawmakers should grant firm welfare entitlements to permanent residents regardless of nationality.

The case also highlights the need for Japan to depart from its relatively strong adherence to the jus sanguinis principle of nationality by blood and allow more people to possess dual nationality, especially children born in Japan to permanent resident foreign parents. Only with such moves can Japan stave off criticism that its laws and social policies remain underpinned by notions of racial purity once linked to the concept of nationality in a bygone era.

Trevor Ryan is Assistant Professor at the Faculty of Business, Government and Law, University of Canberra.

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Cambodia breaks political deadlock, at last http://www.eastasiaforum.org/2014/08/23/cambodia-breaks-political-deadlock-at-last/ http://www.eastasiaforum.org/2014/08/23/cambodia-breaks-political-deadlock-at-last/#comments Sat, 23 Aug 2014 00:00:29 +0000 http://www.eastasiaforum.org/?p=43132 Author: Vannarith Chheang, CICP

After a year of political deadlock the opposition Cambodia National Rescue Party (CNRP) and the ruling Cambodian People’s Party (CPP) have agreed to settle their differences. The CNRP, established in July 2012 by merging the Sam Rainsy Party and the Human Rights Party, challenged the predominant role of the ruling CPP in the July 2013 election. On 22 July, both parties reached a historical agreement and on 8 August, 55 CNRP members of parliament took their seats at the National Assembly to bring to an end a year-long boycott over alleged CPP vote-rigging.

Cambodian opposition party leader Sam Rainsy of the Cambodia National Rescue Party, registers before a meeting at the National Assembly in Phnom Penh, Cambodia, 8 August 2014. Lawmakers from the opposition Cambodia National Rescue Party attended the meeting of the National Assembly for the first time, ending their ten month boycott of parliament over claims that results of the July 2013 general election were rigged. (Photo: AAP).

The recently concluded power-sharing arrangement between the two parties involves reform of the National Election Committee and the National Assembly. Each party will elect four members to the National Election Committee and one independent member will be selected based on the consensus of both parties. The position of vice-president and chairperson of five commissions out of ten in the National Assembly will now go to CNRP. This institutional arrangement provides the CNRP with a roughly equal playing field in the National Assembly, although the CPP still holds the majority of seats with 68.

Still, the CNRP faces huge challenges. It needs to find effective ways to manage the expectations of its supporters and constituents and implement its election policy platform.

This is easier said than done. It is impossible for the CNRP to root out corruption and restructure complex state institutions overnight. It needs time. And the leadership and institutional capacity of the CNRP are not yet up to the task.

The CNRP needs to put much more effort into building up its leadership capacity and management structures, especially at the local level. It also needs to strengthen democratic and transparent decision-making processes within the party and enhance the central–local relationship.

So, what does the future hold for the CNRP?

There are at least three scenarios for the future development of the CNRP. First, if the Sam Rainsy and Human Rights Party factions can maintain a united approach, the CNRP will be able to pursue its agenda of national rescue mission and nation building more effectively. And, if it performs well in the legislature and other independent state institutions, it has the chance of garnering popularity and expanding its political power base in time for the next election.

Second, the internal unity of the party might face severe pressure as long as the Human Rights Party and Sam Rainsy Party factions are active. Imbalanced and competitive power-sharing arrangements could implode the party. It must also deal with the different demands of relevant interest groups.

Third, although the popularity of the CNRP has increased since the last election, it must now prove that it can be an effective leader — this will determine its future. If it fails to deliver on expected results then it will lose public support and confidence.

The majority of CNRP voters at the last election expressed their dissatisfaction with the performance of the CPP, who have enjoyed largely unobstructed rule over Cambodia for more than two decades. Voters wish to see a stronger role for the opposition and more effective checks and balances on the CPP’s power.

Fighting corruption, providing decent wages for factory workers and resolving chronic and widespread land disputes are the most urgent tasks. The CNRP alone cannot address these structural complexities. It requires a close working relationship and partnership with the ruling CPP, development partners, civil society groups and private corporations. The ruling CPP, however, will have more to gain politically from achieving these reforms. CPP executives are more prominent in the eyes of the general public. But the opposition CNRP, through the national assembly, will also get some credit for its efforts in shaping the path to reform.

At the same time, significant steps need to be taken by the ruling CPP to restore the public’s trust and confidence in the party. These steps include changing the party leadership, revitalising public institutions and improving public communication — especially at the grassroots level. CPP members are already taking steps to present themselves differently — such as not showcasing their wealth and opulent lifestyle when travelling to meet the masses, especially in rural areas. Another important step for the CPP will be to promote capable and promising young leaders, giving them more responsibility within the party.

But what if efforts to implement reform fail to produce results?

If the situation does not improve and reform efforts do not produce good results, the opposition will then have a high chance of winning the next election — as long as the CNRP is able to blame the ruling CPP. What ‘good results’ are will be determined by citizens’ demands and expectations.

It is more likely, however, that both the CPP and CNRP will be blamed for failed efforts at reform. Their political support bases would shrink. And, in such a scenario, small parties (especially the FUNCINPEC party and other emerging political parties) are likely to have a greater opportunity to win parliamentary seats in the next election. This would also increase the likelihood of a coalition government in the future.

Change is urgently needed. Cambodia’s political outlook will depend on the ability of the CPP and CNRP to cooperate and bring structural reform to the nation. The ideal scenario would be both the CPP and CNRP working together — developing effective checks and balances, strengthening democracy and good governance, promoting inclusive, sustainable and rights-based development and improving the justice system.

Vannarith Chheang is a senior research fellow at the Cambodian Institute for Cooperation and Peace.

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Rivers run through Modi’s regional agenda http://www.eastasiaforum.org/2014/08/22/rivers-run-through-modis-regional-agenda/ http://www.eastasiaforum.org/2014/08/22/rivers-run-through-modis-regional-agenda/#comments Fri, 22 Aug 2014 12:00:28 +0000 http://www.eastasiaforum.org/?p=43141 Author: Robert G. Wirsing, Georgetown University

Narendra Modi’s two-day visit to Kathmandu in early August, the first visit to Nepal by an Indian premier in 17 years, was his third trip abroad since his inauguration on 26 May. In mid-June, only weeks after taking charge in New Delhi, he had made his first official foreign excursion — a two-day visit to nearby Bhutan. These upfront state visits to the two Himalayan countries were a clear indication that Modi was determined to put flesh on his campaign pledge to give priority in his foreign policy to bolstering relations with India’s South Asian neighbours.

No doubt concern over China’s massive aid-driven inroads in the region (and the corresponding concern over how to reassert India’s dominance there) had a huge impact on the ordering of New Delhi’s priorities. It was just as certain, however, that India’s new leadership, in crafting Modi’s foreign travel agenda, recognised the crucial importance to India’s economic and strategic future of Himalayan Asia’s immense river resources. Indeed, whatever else the now unfolding Modi era means for India, it seems more than likely, to borrow from the title of Norman Maclean’s fine novel, that rivers will run through it.

Water resources (hydroelectric power in particular) were the centrepiece of Modi’s visits to both Bhutan and Nepal. In Bhutan, he laid the foundation stone for the 600 megawatt Kholongchu hydroelectric power station. This is the seventh in a lengthening list of major joint hydropower ventures between India and Bhutan targeting 10,000 megawatts in hydropower cooperation by 2020.

In Nepal, Modi laboured to finalise two key hydropower pacts — a Power Trade Agreement and a Power Development Agreement — aimed at reviving long-stalled joint energy projects. Without their formal acceptance, foreign investment, heavily contingent on investment security, is extremely unlikely. Modi’s efforts in this regard were sweetened with a US$1 billion soft loan for Nepal’s use in developing infrastructure and energy projects.

The enormous importance to the Bhutanese economy of Indian investment in developing Bhutan’s hydropower resources, in company with Bhutan’s de facto quasi-protectorate status, helped ensure the success of Modi’s visit to Thimphu. The far less congenial relationship between Kathmandu and New Delhi, burdened with decades of distrust and neglect, does not augur well for the swift growth of hydropower cooperation between them.

Neither of the two needed hydropower pacts were signed during Modi’s visit to Nepal; and negotiation will likely be protracted and difficult. On the surface, this is more than puzzling. For its part, India — faced with an officially estimated 5 per cent power shortage in the current fiscal year and burdened with a daily power outage of 30,000 megawatts — has an obvious interest in Nepal’s hydropower resources. Nepal, meanwhile, has an equally compelling interest in exporting these resources to India. It is one of the poorest and least developed countries in the world: an estimated one quarter of its population of about 28 million people lives below the poverty line.

And yet, if measured in terms of exploitable inland water resources, it is one of the richest countries in the world. There is broad agreement that it possesses at least 40,000 megawatts of economically and technically viable hydropower potential. Yet Nepal’s current installed capacity stands roughly at a stunningly meagre 680 megawatts.

The puzzle largely vanishes, of course, once one recognises that the circumstances surrounding the India–Nepal relationship put up a formidable obstacle to cooperation. Anti-India sentiment, exploited politically by the strong Maoist bloc, is rife among Nepalis. So any deal with India is viewed with suspicion. Indians, too, have reasons of their own to be suspicious. Having observed a decade of Maoist insurgency followed by chronic political instability, including five prime ministers in five decades and a stalemated effort to forge a new constitution, they naturally have little confidence in the durability of the present coalition government. Neither are Indians much reassured by Nepali insistence that India has nothing to fear from China’s increasingly prominent role in Nepal’s infrastructural development.

Even if Modi’s Nepal initiative turns out to have positive material results, it will fall well short of his presumed goal of forming an economically integrated region. Achievement of that lofty objective won’t come soon or easily. Modi did manifest unusual political boldness in the issuing of an unconventional invitation to all the leaders of India’s South Asian neighbours to attend his inauguration — and, not least, in offering a widely hailed ‘historic handshake’ to Pakistan’s Prime Minister Nawaz Sharif.

But drawing all of the region’s states, and in particular the two giant Muslim-majority states, Bangladesh and Pakistan, into India’s orbit is work of an entirely different order. Modi’s accusation that Pakistan is waging proxy war in Kashmir, made on a recent trip to Ladakh, in company with frequent reports of violations of the 2003 ceasefire agreement between the two states, is a blunt reminder of this. Moreover, China is highly unlikely to relax its efforts to bring India’s South Asian neighbours more fully into its own orbit. And few, if any, of these neighbours are likely to accept without reservation Modi’s repeated assurances that India comes not to dominate but to build trust.

Modi undoubtedly displayed commendable political nerve in his innovative selection of foreign visits and friendly gestures towards erstwhile adversaries in the first months of his government. However, he will establish himself as a regional and not just Indian leader to the extent that he is able to convince neighbouring populations that India’s goals in the region are largely in harmony with their own and that cooperation, not conflict, will be the watchword of his government.

In this era of increasing water scarcity and the mounting threat of climate change, it would not be amiss if he chose to expand upon the hydropower initiatives witnessed in the Bhutan and Nepal visits and offer to all India’s neighbours across-the-board joint partnerships in the development of water resources. One can hardly imagine a more urgently needed change in the way water resources are managed in the region. Neither could there be a more convincing way to demonstrate India’s commitment to a truly regional vision.

Robert G. Wirsing is Professor at Georgetown University’s School of Foreign Service in Qatar.

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Indonesia’s cash for health program http://www.eastasiaforum.org/2014/08/22/cautious-optimism-for-indonesias-cash-for-health-program/ http://www.eastasiaforum.org/2014/08/22/cautious-optimism-for-indonesias-cash-for-health-program/#comments Fri, 22 Aug 2014 00:15:16 +0000 http://www.eastasiaforum.org/?p=43130 Author: Margaret Triyana, Stanford University

Indonesia’s conditional cash transfer program, Program Keluarga Harapan (PKH), provides cash to poor households in exchange for meeting specified health targets. It aims to reduce poverty and improve maternal and child health. But does it work?

A woman cleans outside an informal dentist shop in Jakarta, Indonesia, 18 October 2013. (Photo: AAP)

After the success of Mexico’s social assistance program PROGRESA (now Oportunidades), Indonesia followed suit in 2007 with the implementation of a pilot program, PKH. PKH set out to speed up the attainment of the Millennium Development Goals, especially poverty reduction and improved maternal and child health. Indonesia’s PKH targets the poorest households with children or expectant mothers. The requirements typically include prenatal and postnatal checks, vaccinations and school enrolment and attendance.

Under PKH, program participants are required to have four prenatal visits; facility-based delivery (the original requirement was childbirth assisted by a trained health care provider); two postnatal visits; monthly weighing; vaccinations and vitamin A for children under five; and enrolment in primary and junior high school with a minimum of 85 per cent attendance for school-aged children.

To the government’s credit, PKH has been more successful than other social assistance programs in identifying and enrolling poor households. The impact evaluation finds that the program has increased participants’ utilisation of primary health care services, which suggests that the program has improved health care access for the poor. Unfortunately, the program has no effect on education. This is not surprising, however, since primary school enrolment is already high (greater than 80 per cent) and the transition rate to junior high school is fairly high (roughly 75 per cent).

Even though the program is successful in getting participants to ‘show up’ to meet the health requirements, participants’ health-seeking behaviour unfortunately has not translated to improvements in long-term outcomes — such as reductions in the incidence of low birth weight and mortality. The lack of impact here is partly related to the supply side of the health care market.

Conditional cash transfer (CCT) programs operate best when the health care system has adequate supply to absorb the additional demand stemming from the program requirements. In some places, there is insufficient supply or no excess capacity in the health care system, so there is a change in price, quantity or quality from the supply side — which can dampen the effects of the program. In particular, higher prices are expected in the short term, before new health care providers can enter the market to increase supply. This increase in demand may also reduce quality of care as providers see more patients.

Indonesia’s public providers are also allowed to hold private practice part-time, and this potentially impacts on the program. As the CCT increases demand for health care — for providers with both public and private practices — they can respond with higher prices in private practice, thereby increasing average prices.

Also, public providers may opt to pursue their more lucrative private practice. This could strain the public system and quality of care would suffer. The combination of lower quality and higher prices could limit health care access, thereby defeating the purpose of the program. This possibility is a particular concern for households that just miss the CCT cut-off.

PKH is planned to go national this year. It will be interesting to analyse the long-term effects and how the effects change as the program expands. The supply of health care will become an even more important issue with the implementation of the national health insurance system, Jaminan Kesehatan Nasional.

The Indonesian government is continuing to seek better ways of delivering health care services to the public and to the poor. As the government is taking steps to strengthen the health care system — through efforts such as PKH — we can be cautiously optimistic for what the future holds.

Margaret Triyana is a Postdoctoral Fellow in Asia Health Policy at Stanford University.

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Obama mustn’t underestimate Modi http://www.eastasiaforum.org/2014/08/21/obama-mustnt-underestimate-modi/ http://www.eastasiaforum.org/2014/08/21/obama-mustnt-underestimate-modi/#comments Thu, 21 Aug 2014 12:00:56 +0000 http://www.eastasiaforum.org/?p=43117 Author: Harshita Kohli, RSIS

US Secretary of State John Kerry’s recent visit to India for the India–US Strategic Dialogue, in which he described India as an ‘indispensable partner for the 21st century’, is a clear effort by the American government to jumpstart the flagging bilateral partnership.

During his stay in India, Kerry met with senior politicians and leading Indian businessmen. US Secretary of Defence Chuck Hagel also visited New Delhi last week to further the US–India defence partnership. The increase in senior-level interactions between officials from both countries is designed to set the stage for the bilateral summit to be held between Prime Minister Narendra Modi and President Barack Obama in Washington in late September 2014.

Since his election, Modi has been vocal in expressing the view that China, Japan and Russia are important partners for India and consequently has sought to deepen bilateral relations with them. With Modi already having met Xi Jinping and Vladimir Putin, it was imperative for the US to engage Modi too. The Obama administration, which was keen for Kerry to meet the new Indian leader, asked for the scheduled venue of the Indo–US Strategic Dialogue to be moved from Washington DC to New Delhi. Speaking to the media during his trip, Kerry even addressed the controversial visa ban on Modi by describing it as a decision taken by the previous government and not by the Obama administration.

Kerry’s visit to India, however, was more than just about increased diplomatic engagement between the world’s most populous democracies. The Indo–US partnership faces significant hurdles. Modi’s focus on reviving the Indian economy is a powerful impetus for the two countries to improve ties. The Obama administration hoped that Kerry’s visit would address issues relating to India’s protectionist economic policies that have made it difficult for US companies to invest more widely in India. During his trip, Kerry said the US wished to see trade with India expand to US$500 billion a year.

There is great potential, but there are also considerable obstacles. Increasing investment in infrastructure, growing the manufacturing industry, modernising the military and attracting more foreign investment will not only help Modi revive the Indian economy but will also offer lucrative opportunities for American businesses. New Delhi’s decision to raise the limit on foreign direct investment to 49 per cent in the insurance sector, and to open up the defence sector to foreign investment, has been welcomed by American investors. On the other hand, liability laws relating to nuclear trade and the bilateral investment treaty are obstacles that must be resolved for the Obama–Modi summit in September to offer any significant results.

Further complicating matters, India recently torpedoed the WTO’s Trade Facilitation Agreement. An accession protocol for the agreement, which had been agreed upon by world leaders including by India’s former government, had to be ratified by all signatories by 31 July. But New Delhi vetoed the trade deal claiming that the WTO failed to provide India with a suitable alternative to India’s policy of offering food subsidies and maintaining large stocks of food. India’s U-turn on the agreement cast a shadow over Kerry’s visit and led the US to remark that India’s decision sent a ‘confusing signal’.

The Obama administration is also looking for more robust Indian participation in the Asian security structure vis-à-vis China. This may prove to be difficult as Modi is looking to chart his own partnership with Beijing based on a thriving economic partnership and is unlikely to take an overtly anti-China stance. In his former role as chief minister for Gujarat, Modi achieved a significant level of Chinese investment in his state.

The road ahead could be rocky, but Kerry’s decision to come to New Delhi was a signal to India that improving ties continues to remain a priority for President Obama. India’s ability to withstand international pressure at the WTO coupled with its clear displeasure over the National Security Agency spying revelations should be taken by the US as a signal that the Modi government will not necessarily maintain the strategic stance of the previous UPA government. The Obama administration should take India’s decision at the WTO as an indication of Modi’s style of leadership. Unlike his predecessor, Manmohan Singh, the US must realise that Narendra Modi is an independent thinker who is not afraid to go against the general consensus of his party.

Before leaving for India, Kerry aptly described the Strategic Dialogue as a ‘potentially transformative moment’ in India–US relations. Both countries must recognise the strategic and economic opportunities they represent for each other. For India, it is beneficial to develop stronger strategic ties with the US as it will leave New Delhi better equipped to deal with the repercussions of the growing Pakistan–China partnership or failure by India and China to resolve their border disputes. Improved economic ties with the US will also help Modi revive the Indian economy and thereby maintain domestic popular support.

Having recognised the pivotal role New Delhi can play in Washington’s rebalancing strategy, it is imperative that President Obama offer certain strategic and economic concessions to India. These could include pushing for a permanent seat for India in the Security Council, abandoning potential reforms in his immigration bill that would significantly reduce the number of work permits issued to Indians, and adopting stronger measures to control terrorist activity in Afghanistan after the US withdrawal. These measures could help bring the momentum back into the India–US partnership.

Harshita Kohli is an Associate Research Fellow with the US Studies Programme at the S. Rajaratnam School of International Studies (RSIS), Nanyang Technological University.

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Collective self-defence: What Japan’s new defence policy means for international cooperation on cyber security http://www.eastasiaforum.org/2014/08/21/collective-self-defence-what-japans-new-defence-policy-means-for-international-cooperation-on-cyber-security/ http://www.eastasiaforum.org/2014/08/21/collective-self-defence-what-japans-new-defence-policy-means-for-international-cooperation-on-cyber-security/#comments Thu, 21 Aug 2014 00:00:19 +0000 http://www.eastasiaforum.org/?p=43111 Author: Mihoko Matsubara, Pacific Forum CSIS

In July 2014, the Shinzo Abe cabinet took an epoch-making decision to change its interpretation of the Japanese constitution to recognise the right to collective self-defence. The Japanese government’s traditional interpretation of the constitution prohibited Japan from exercising the right to help the US, or Japan’s defence partners, in the case of an armed attack, even though Article 51 of the Charter of the United Nations authorises this.
Japan Ground Self-Defense Force Maj. Nishikawa Hajime analyses data transmissions on a computer at the Camp Naha gymnasium, Okinawa, 23 July 2014. (Photo: US Marin Corps/ Lance Cpl. Pete Sanders).

The cabinet decision carries symbolic importance for Japan’s alliance with the US and defence partnerships with other countries, including Australia and the UK, as it signals Japan’s strong will to be a more proactive partner.

But the practical implications of the reinterpretation remain unclear, especially in cyber security cooperation. There are two reasons for this.

First, there is no internationally agreed upon definition of ‘armed attack’ in cyberspace to base the right to collective self-defence on. The North Atlantic Treaty Organization (NATO) agreed to extend Article 5 (on collective self-defence) of its Washington Treaty to include cyberspace. But NATO members have not reached an agreement on how the article should be applied.

This arises from the complicated nature of cyber-attacks. While some types of cyber-attacks such as distributed denial of service attacks and website defacements are hard not to notice, for others it is difficult to detect and identify the culprit in a timely manner due to their stealthy and borderless nature. It is challenging to provide an overarching, clear threshold of the duration, intensity and scope in which cyber-attacks would fully or partially constitute ‘armed attack’ to enable countries to respond under international law. An official, clear-cut definition to the public could prompt adversaries to launch cyber-attacks under the threshold and could hamper allies from responding collectively and swiftly when a new type of cyber-attack appears. It is also difficult to choose an appropriate counteroffensive measure — whether cyber, non-cyber or a combination of both — in the case of a stealthy attack when the government cannot necessarily identify the true cause quickly.

Second, although the July 2014 cabinet decision acknowledges increasing risks which prevent countries from ensuring free access to cyberspace, it does not specifically cover cyber security cooperation. The 15 scenarios where the right to collective self-defence can be exercised that were provided by the Japanese government do not include any cyber components.

The cabinet decision reflects a report submitted by an advisory panel to Prime Minister Abe in mid-May 2014, which recommended that the interpretation of the Japanese constitution allow Japan’s Self-Defense Forces to execute the right of collective self-defence when necessary. The advisory panel discussed whether collective self-defence could be applied to cyberspace in 2013, but the 2014 report avoided making any conclusions.

The report only observes that so far cyber-attacks have not been categorised as constituting an ‘armed attack’ but some cyber-attacks do satisfy the three necessary conditions for Japan to use force in its self-defence. These conditions are, first, that there is an imminent and illegitimate act of aggression against Japan; second, that there is no appropriate means to repel this incursion other than the use of force in self-defence; and third, that the use of force is confined to the minimum level needed to repel the attack. Following the cabinet decision in July 2014, the Japanese government redefined the first condition to cover not only Japan but also in some cases its ally and defence partners.

But these constraints do not mean that the reinterpretation of the Japanese constitution prohibits Japan from contributing to other countries’ cyber defences. Collective self-defence would require allies or defence partners to conduct more joint exercises to enhance their crisis communications and interoperability. Since military operations and critical infrastructure such as energy supplies, finance and medical services are increasingly reliant on computers and the internet, any alliance or defence partnership needs to consider cyber security to make their ties resilient. Accordingly, it is crucial to include cyber components in joint exercises to make them realistic.

Joint exercises are key to making joint operations seamless and increasing the capability of cyber defences. The Japanese and US governments have committed themselves to revise the US–Japan Defense Cooperation Guidelines by the end of this year and to include bilateral cooperation on cyber security in the revision. Holistic joint exercises and relevant information-sharing could make up an important part of the revision.

As military operations depend on the reliable operation of critical infrastructure, joint exercises should not be limited to military personnel. The involvement of industry is indispensable. When Abe met with UK Prime Minister David Cameron in London in May 2014, the two leaders signed the UK–Japan Sports Host to Host Agreement to share lessons learned from the London Olympic Games for the upcoming Tokyo Olympic Games in 2020. Since the Olympics demands multilayered public–private partnerships to ensure safety and security, this will prompt Japan and the UK to launch bilateral public–private partnerships for cyber security. Such cooperation may help to create a template for effective cyber security collective self-defence in the future.

Mihoko Matsubara is a senior cyber security analyst and adjunct fellow at the Pacific Forum CSIS. Views expressed here are her own.

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Increase in coal tax will scale up Indian renewables http://www.eastasiaforum.org/2014/08/20/increase-in-coal-tax-will-scale-up-indian-renewables/ http://www.eastasiaforum.org/2014/08/20/increase-in-coal-tax-will-scale-up-indian-renewables/#comments Wed, 20 Aug 2014 12:00:38 +0000 http://www.eastasiaforum.org/?p=43105 Author: Pallav Purohit, IIASA

India needs economic growth for sustainable development, which in turn requires access to clean, convenient and reliable energy. An estimated 400 million people still lack access to electricity, and blackouts are still common across the country. A combination of rapidly increasing energy demand and fuel imports plus growing concern about economic and environmental consequences is generating growing calls for innovative policies and mechanisms to promote increased use of abundant, sustainable, renewable resources.

Locals on a boat pass by panels at a solar energy farm at Gunthawada in Gujarat state, about 175 kilometres north of Ahmadabad, India. There are growing calls for increased use of renewable energy resources in India. (Photo: AAP).

The Indian government initiated a renewable energy program to diversify national energy sources about three decades ago. The government aimed to add 455 GW of renewable capacity by 2050. Currently, renewable sources contribute about 13 per cent (32 GW) to India’s 249 GW installed capacity base.

The National Action Plan for Climate Change (NAPCC) sets a target for the share of renewables-based power generation from the current 4 per cent to 15 per cent by 2020. As a result, renewable projects currently benefit from several policy initiatives: accelerated depreciation benefits, feed-in tariffs, a ten-year tax holiday and generation-based incentives. As part of the NAPCC, the government launched the Jawaharlal Nehru National Solar Mission (JNNSM) in 2010 which aims to add 20 GW of grid-connected solar capacity by 2022, along with other solar targets for off-grid space.

The government plans to launch a similar program for wind. The National Wind Energy Mission, announced in January, will aim for 100 GW of wind power by 2022, a third of India‘s estimated wind energy potential. While the government has taken certain measures for the promotion of renewables, these need to be scaled up and expedited. The development of the sector suffers from a number of constraints, overlaps and gaps in the current policy and regulatory environment.

The government’s ambitious goals for solar energy, coupled with the country’s rapid progress in developing wind energy, raise many questions regarding the sources and costs of the investment that will be needed to install and operate this infrastructure. Stressing the need for India to start addressing its emissions, a government report released at the end of May 2014 put the costs of investing in low carbon energy systems at US$834 billion up to 2030.

The National Clean Energy Fund (NCEF), announced by the Indian government in its Union Budget 2010-11, is seen as a major step in India’s quest for energy security and reducing the carbon intensity of energy. The objectives of the NCEF are to fund research and innovative projects in clean energy technologies and to harness renewable sources to reduce dependence on fossil fuels.

The former UPA government had decided to levy a tax of $US0.84 per tonne on both domestically produced and imported coal to build up the NCEF, and fund research and innovative projects in clean energy technology. However, the NCEF has been widely criticised for inconsistencies between the stated objectives, operational guidelines and final approval of the projects. The government had collected over US$6.5 billion through the tax. But it has allocated just over 1 per cent of this amount to the Ministry of New and Renewable Energy (MNRE), out of which just US$267,000 has been spent so far on renewable energy projects in the past three years. There was a high degree of policy and regulatory uncertainty for investment in the renewables sector.

The newly elected Modi government announced a suite of initiatives for solar energy across the country and promised a ‘saffron revolution’ that will include ambitious targets for small, large and off-grid solar and a switch away from an assumed reliance on coal as the country seeks to deliver on its momentous task of bringing electricity to the entire country. The new government increased the coal tax to US$1.67 per tonne in July 2014. While this proposal was welcomed by renewable energy experts, there is uncertainty over what the additional revenue will be spent on, based on past experience.

The scope of expenditure from this fund has also been widened to include environmental projects and research and development projects in the clean energy and environment sectors. The new government will fund its ambitious Ganga rejuvenation plan with the tax on coal. It is also planning to spend as much as US$167 million on projects earmarked for this financial year and has earmarked US$84 million for the initial implementation work for four ultra-mega solar power projects each with a capacity between 2 GW and 4 GW — the energy situation could change rapidly.

Another US$67 million would be provided for installation of 100,000 solar-powered irrigation sets and water-pumping stations. Moreover, the canal-top solar power plant will receive US$17 million this year. The new government also plans for a 5 GW solar power project in the Ladakh region. This further emphasises the scale of India’s renewable ambitions. The recently-announced Wind Energy Mission has also pinned its hopes on the NCEF for potential funding.

The increase in the clean energy tax can be still considered an innovative attempt by the Modi government to acquire additional resources to support its environmental plans. It can be seen as a step towards helping India meets its voluntary target to reduce the amount of carbon dioxide released per unit of gross domestic product by 25 per cent from 2005 levels by 2020. The NCEF must be used to provide much-needed impetus for the development of emerging renewable and clean energy technologies, and the financial capital to early-stage and high-potential projects. It is important that the government provides easier access to finance through NCEF for the renewables sector.

Pallav Purohit is Research Scholar at the International Institute for Applied Systems Analysis (IIASA).

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Thailand’s interim constitution: paving the way for a return to authoritarianism? http://www.eastasiaforum.org/2014/08/20/thailands-interim-constitution-paving-the-way-for-a-return-to-authoritarianism/ http://www.eastasiaforum.org/2014/08/20/thailands-interim-constitution-paving-the-way-for-a-return-to-authoritarianism/#comments Wed, 20 Aug 2014 00:00:39 +0000 http://www.eastasiaforum.org/?p=43099 Author: Sarah Bishop, ANU

Thailand, for the 19th time in 82 years, has a new written constitution. The King promulgated the Constitution of the Kingdom of Thailand (Interim) B.E 2557 (2014) on 22 July 2014, finally bringing an end to the nation’s fourth longest period since 1932 without a written constitution. However, although there are some small gains, there are very few positive signs for democracy or rule of law.

Pornpetch Wichitcholchai pays his respects in front of a portrait of Thai King Bhumibol Adulyadej during a royal command ceremony to swear him in as president of the army-appointed National Legislative Assembly at Parliament in Bangkok, 18 August 2014.  (Photo: AAP)

On the positive side, the interim constitution provides for the formation of several new governing bodies including a cabinet, national legislative assembly, national reform council and constitutional drafting committee. While the junta exercises considerable control over membership of these bodies, and appointments so far have largely been of military personnel, the creation of these bodies should at least result in greater power sharing and transparency than existed during the period prior to promulgation of the interim constitution when the junta was ruling by executive decree alone. The interim constitution also leaves the composition of the judiciary untouched and gives some recognition to basic principles of human rights.

However, little effort is made to make the new bodies appear democratic or representative. There is no procedure for members of any of the bodies to be selected through popular processes, and persons who have held a position in a political party in the past three years are excluded from being members of all except for the national reform council. There are also many other grounds on which persons are excluded from being members of the bodies, most of which focus on past misconduct or removal from political office. In practice these criteria most strongly affect past members of the Pheu Thai party and its predecessors. Also noteworthy is the exclusion from the cabinet and constitutional drafting committee of judges, a group who have often assumed a prominent role in governance in post-coup periods.

Similarly, in contrast to the 2006 interim constitution, which emphasised public involvement in the creation of a new constitution, the 2014 interim constitution makes no provision for public consultation on, or approval by referendum of, a new permanent constitution. Also, criteria expressly set for the content of the new permanent constitution by the interim constitution focus mostly on the need to establish even more effective mechanisms for preventing corruption and populism and, of democracy, say only that the model established must be ‘appropriate to the conditions of Thai society’. Given the extent to which anti-corruption mechanisms under the 2007 constitution denied due process and impacted governance, whether even stricter measures can or should be adopted is highly questionable.

Also, although new bodies are created, the junta retains significant powers. Most worrying of these is a non-reviewable power to ‘make any order, or suspend or take any action’ which the head of the junta considers necessary for a very broad range of permissible reasons including ‘for the benefit of any aspect of the reform process’. Similar powers conferred under past constitutions have been used to order executions, detain opponents, curtail freedom of speech and target past rulers. Inclusion of this power therefore gives rise to concern that the formal recognition of rights will be meaningless. Assurances given by drafters that the power is no broader than powers possessed by the junta prior to promulgation of the interim constitution do little to allay this concern. The junta is also given more discrete powers to ask the cabinet to act and to suggest that the new draft constitution be amended.

Further, the junta is afforded an amnesty for actions taken in seizing and consolidating power, and, all orders issued by the junta both prior to and after adoption of the interim constitution but before appointment of a cabinet are rendered legal and constitutional. Although past constitutions have included similar provisions, the conferring of legality on junta orders not yet issued without any stipulation of processes to be followed or permissible grounds is unique.

Also, for the first time in Thai history the interim constitution itself includes an amendment procedure, giving rise to apprehension regarding how ‘interim’ it is.

Overall, there is little in the interim constitution that is surprising. Like interim constitutions that have preceded it, the 2014 interim constitution is intended to legitimise the coup that led to its drafting and to protect and empower the coup-makers. It is not intended to provide legal protections or establish democratic rule.

What is surprising, however, is the particularly blatant manner in which it rejects democratic process and confers powers and immunities on the junta, and the sheer prevalence of anti-corruption rhetoric which has often been used to justify authoritarian rule and which in current political circumstances is far from neutral.

Signs from the interim constitution seem to be that Thailand may be headed for yet another period of extended authoritarian and arbitrary rule.

Hopefully, this is not the case.

Sarah Bishop is a PhD candidate in Thai Law at the ANU College of Law, The Australian National University.

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Back to the drawing board on US–India relations? http://www.eastasiaforum.org/2014/08/19/back-to-the-drawing-board-on-us-india-relations/ http://www.eastasiaforum.org/2014/08/19/back-to-the-drawing-board-on-us-india-relations/#comments Tue, 19 Aug 2014 13:02:38 +0000 http://www.eastasiaforum.org/?p=43095 Author: Sourabh Gupta, Samuels International

The US–India strategic partnership is either the most underperforming bilateral relationship in the world or its most overrated. As a new chapter in this relationship is opened with the formation of a new centre-right government in New Delhi and the back-to-back visits by John Kerry and Chuck Hagel in late July and early August, it is imperative that the path that is charted ahead is informed by the lessons of the past decade and a half.

US Secretary of Defense Chuck Hagel inspects a Guard of Honor before a meeting with his Indian counterpart, Arun Jaitley, in New Delhi, India, 8 August 2014. (Photo: AAP)

It was assumed that with the passing of the bipolar international order and India’s own shift towards market economics, the traditional commonality of democratic values, complemented by an increasingly robust set of inter-societal ties, would accentuate a dramatic convergence of national interests between the two countries.

In the Indo-Pacific region, Washington and New Delhi (and the other major maritime democracies) would be bound by a common interest in countervailing Chinese power, curbing nuclear proliferation, participating in non-traditional security missions and post-conflict reconstruction efforts, and securing the global commons, especially the sea lines of communication. A generous civil nuclear deal was bestowed on New Delhi to consummate this blossoming relationship. Down the line, it was hoped that India might even provide ‘over-the-horizon’ rotational facilities for US forces to manage contingencies that might arise in West and East Asia.

Little of this bold agenda has come to pass.

Far from growing into its designated role as America’s deputy sheriff in the Indian Ocean region (and perhaps someday thereafter as a co-partner across the Indo-Pacific region), New Delhi has doubled down on its autonomist leanings. It has resisted participating in major multi-service combined exercises that prepare for high-end operational missions; stayed away from stationing personnel at US combatant command headquarters; turned down a series of foundational pacts that would have enhanced logistics and battle-group networking; opted for Russian rather than US high-precision, military-grade navigation signals; opted to strip out tactical interoperability aids (high-end electronics and avionics suites) after purchasing US-origin platforms (P8I and C-130J aircraft); and even allegedly passed up the opportunity to get a to-be-decommissioned supercarrier — the USS Kitty Hawk — for free!

Defence ties with Japan and Australia too have been limited to the odd naval exercise from time to time, with little scope for logistics sharing or information exchange envisaged. The only tangible achievement, despite vigorous efforts, has been US$15 billion of American defence hardware sales.

The disappointments do not appear to have tempered the belief of the faithful. Undaunted, they argue that with the departure of the previous government and its long-serving, proto-socialist defence minister, US and India defence ties stand poised to once again break out of the policy stagnation of the past few years. According to this school of thought, Washington should reauthorise and update their 2005 Defense Framework agreement to enable collaboration in multinational operations of common interest. Washington should prioritise military intelligence exchanges and formalise institutional links so as to share classified information on the region. It is also thought that Washington must deepen service-to-service engagements and incorporate service chiefs and regional commanders within institutionalised policy mechanisms. Washington should use the recent Defense Trade and Technology Initiative to take the defence sales relationship beyond the buyer-seller model to one of co-development and co-production.

Each of these agreements and activities is worthy in its own right; equally, on each of them except co-production, the Indian defence-military establishment has shrunk from participating jointly with the US during the past decade or has let the arrangement lapse — despite possessing the legal flexibility to cooperate.

In important respects, the same questions that went unanswered 15 years ago remain applicable today: what is the template by which one operationalises a defence partnership with a critically important country that will never be a treaty ally (and is the primary antagonist of a ‘non-NATO ally’, Pakistan), yet is more than just a friendly, non-hostile state?

Can enhanced defence cooperation and technology handouts infuse a strategic congruence or must the causality run the other way? If technology sharing boosts India’s autonomous defence capability, then does it not detract from the purpose of deepening the partnership? If New Delhi of its own accord bears a larger share of the region’s security burden, what is its imperative to also simultaneously increase cooperation with US forces in the region?

The civil nuclear deal and the mainstreaming of New Delhi within the international dual-use technology-sharing regime at a moment of US primacy did not furnish the desired answer to these questions. In the more constrained age ahead, it is not clear why New Delhi’s strategic calculation will change any more favourably. Although China’s rise and behaviour could supply such a rationale, Beijing is a key pivot in India’s multi-aligned foreign policy strategy and successive governments in New Delhi have seen greater wisdom in operating in the slipstream of Beijing’s meteoric rise than by aligning against it. That most observers continue to implicitly — and smugly — base the ‘natural’ convergence of US and Indian interest in Asia on the belief that China and India are irrevocably locked in strategic competition may, to the contrary, provide a hint as to why Washington’s relationship with New Delhi has serially fallen short of expectations in the first place.

The future of US–India strategic ties in Asia and the world in the 21st century is too important to be constructed solely or even primarily through a China-management lens. The defence cooperation elements within this relationship — joint exercises, intelligence exchange, arms deals, technology-sharing, weapons co-development and co-production, and so on — should be constructed on a pragmatic, interest-based foundation that is geared to nudging the Indo-Pacific region’s multilateral security relations towards a more consociational model of international relations where power is shared and balanced within.

Embracing this balance between autonomy and alignment in the US–India strategic partnership will also lock the two countries in a strategic embrace that will favour a stable geo-political equilibrium in the Indo-Pacific region.

Sourabh Gupta is a Senior Research Associate at Samuels International Associates, Inc. An expanded version of this post, originally appearing in the Pacific Forum CSIS PacNet newsletter, can be found here.

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Abe finding it hard to get his way on defence http://www.eastasiaforum.org/2014/08/19/abe-finding-it-hard-to-get-his-way-on-defence/ http://www.eastasiaforum.org/2014/08/19/abe-finding-it-hard-to-get-his-way-on-defence/#comments Tue, 19 Aug 2014 00:02:52 +0000 http://www.eastasiaforum.org/?p=43092 Author: Yoshisuke Iinuma, Oriental Economist Report

On 1 July, Japan’s Prime Minister Shinzo Abe announced a decision to broaden the interpretation of the Japanese Constitution to enable Japan to exercise its right to collective self-defence. But to what extent will the Japan Self-Defense Forces (SDF) actually be able to expand their range of collective action?

Legally speaking, the Cabinet decision has no teeth on its own. The decision will only have an impact if it is implemented via subsequent revisions to the law by the Diet. Politically speaking, the situation is only going to become more difficult for Abe. The ruling Liberal Democratic Party’s (LDP) coalition partner New Komeito supported collective self-defence on the condition that the language included some restraints. But a schism is already developing between the Abe administration and New Komeito over their interpretation of the Cabinet decision.

Also, the Japan Restoration Party (JRP), who originally supported collective self-defence, is now backpedalling because their members have parted from former JRP co-leader Shintaro Ishihara and assorted right-wing groups. The party is to merge with the Unity Party led by Kenji Eda, who claims collective self-defence is unnecessary.

Neither is the upcoming schedule kind to Abe. Gubernatorial elections for Fukushima and Okinawa prefectures will be held in October and November. Voters in Fukushima, still hurting from the collapse of their local community, will create major resistance to the Abe administration.

Voters in Okinawa are against the construction of a replacement facility for the US Marine Corps Air Station in Futenma and are extremely sensitive to matters of war and peace. The debate over collective self-defence will inevitably have a major effect on upcoming elections, just as it did in the gubernatorial election in Shiga prefecture where the LDP-supported candidate lost in an upset.

Abe was  forced to postpone the presentation of a bill relating to collective self-defence until next year, due to both resistance in the Diet and the plunge in poll ratings that followed the Cabinet’s collective self-defence decision. The Abe administration’s approval rating is trending downward, and all the recent polls are showing that it is less than 50 per cent. In a 19-20 July poll by the Sankei Shimbun, 35.3 per cent agreed with the move to reinterpret the Constitution while 56.0 per cent disagreed with it. A 25–27 July poll by Nikkei produced 36 per cent in favour and 48 per cent against the move to exercise collective self-defence.

But collective self-defence is hardly the only issue causing Abe trouble with the voters. Support for his economic policy is diminishing. Voters are divided on his overall foreign diplomacy and security policy. And, on issues like nuclear power, lowering the corporate tax and raising the consumption tax again, voters disapprove of his actions by large margins. That reduces the political capital he can spend on collective self-defence.

Why is there so little support for collective self-defence?

First, many Japanese people have a naïve outlook on security. Despite China’s rise as a military power and North Korea’s belligerent attitude, the roots of a pacifist mentality extend deep into the social psychology of post-World War II Japan.

Second, the nuclear disaster in Fukushima lifted the curtain on the malfeasance and lack of accountability of Japanese politicians and bureaucrats. Behind every dissenting voice is a general perception that the strict restraints against collective self-defence should not be loosened under such a system.

Third, the public is bewildered that the relatively alien concept of collective self-defence has been so suddenly thrust at them and has already become the subject of a Cabinet decision.

Fourth, opponents are sceptical about the ability of Japanese politicians and bureaucrats to manage ties with Japan’s allies, especially when interests diverge. Those against collective self-defence can use actual examples of Japan succumbing to the political and administrative whims of the US to make their counterarguments. For example, in the 2003 Iraq War Japan, unlike France and Germany, sent the SDF to Iraq. The opposition holds that the SDF provided only humanitarian support because of the restrictions against collective self-defence, but they wonder what would have happened if the restrictions had been lifted.

Some researchers believe the American stance (or lack thereof) on the Senkaku/Diaoyu islands dispute between Japan and China is proof that the US does what is convenient for the US. The current American position is that while the US–Japan Security Treaty applies to the defence of the Senkaku/Diaoyu islands because they are under the administrative control of Japan, the US does not concern itself with territorial sovereignty. This is an example of  American political convenience. Before 1971, when  Nixon  visited  China, the US maintainedthat Japan had sovereignty over the area.  The more people realise these facts, the more they doubt Japan’s capacity to manage its allies, and the stronger the backlash becomes against collective self-defence.

Finally, the fact that Abe is behind collective self-defence is keeping it from being accepted. Japan would most likely exercise the right to collective self-defence in response to a crisis on the Korean Peninsula. Under such a scenario, the SDF could provide supplies, intercept suspicious vessels in surrounding ocean waters and provide other assistance, but the need for SDF vessels to enter South Korean territory to rescue Japanese people may arise.

Unfortunately, given the turbulent relationship that Tokyo currently has with Seoul, which has been exacerbated by actions such as Abe’s visits to the Yasukuni Shrine and denials regarding ‘comfort women’ during World War II, neither side can consider entering the territory of the other. This problematic relationship also precludes discussions that the US wants to have about trilateral security among the US, Japan and South Korea.

Given these difficulties, it is highly likely that in the end Japan’s exercise of collective self-defence will be severely limited.

Yoshisuke Iinuma is Contributing Editor for The Oriental Economist Report.

A version of this article first appeared in the August 2014 edition of the Oriental Economist Report.

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