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21st Century Shape of Japan Series, No. 1 LEGAL BASIS FOR JAPAN'S
ABILITY TO EXERCISE THE RIGHT OF COLLECTIVE SELF-DEFENSE |
| The commonly accepted modern view is that the Meiji
Constitution was defective in that the Emperor had supreme command
of the nation's army and navy*1, the Imperial Diet
and Cabinet could not control the arbitrary and unilateral acts of
the military, and consequently war continued uncontrollably for 15
years and ended in defeat. The reason for the war is said to lie in
the Imperial government's inability to exert control over the military,
which exercised its country's right of self-defense. The Japanese
government of 55 years after World War II declared similarly that
it could not exercise Japan's right of self-defense. From the perspective
of the Japanese government, the pre-war and post-war eras differ not
at all with respect to being unable to exercise the right of self-defense.
However, the only difference is in the reasoning. That is, before
the war, the justification for the government's lack of control over
the military was that control belonged to the Emperor; during the
Occupation, control belonged to the United States; and thereafter,
the logic was that Japan had the right of self-defense but could not
exercise it. This sort of justification can no longer be adhered to
in the international society of the 21st Century, which is characterized
by great competition and the blurring of borders between nation-states.
It is necessary to define Japan's right of collective self-defense
under the Constitution in order to break free of the mistakes of the
pre-war era.
I shall argue that Japan's right of collective self-defense is constitutional based on the following two points. First, the term "individual right of self-defense" refers to the right of a country which is directly attacked (Japan) to repel such attack, and the term "right of collective self-defense" refers to the right of Japan, in a case where Japan does not itself undergo direct attack, to deem an attack against another country that is in an alliance with Japan (e.g. the United States) as an attack on itself and then counterattack. These individual and collective rights of self-defense are clearly prescribed in Article 51 of the Charter of the United Nations*2 and in Article 5 of the Japan-U.S. Security Treaty*3, both of which have been approved by the Diet and ratified by the Cabinet (i.e., Japan has the legal obligation to implement both at home and abroad). The first argument is based on the individual right and natural right recognized in sovereign states based on the "right to live in peace," which is the basic principle of the Constitution of Japan. This right is also recognized in Article 51 of the U.N. Charter and the Treaty for the Renunciation of War, which Japan ratified in 1929. Further, the decision of the Grand Bench of the Supreme Court of December 16, 1959*4 said of Article 9 of the Constitution, ". . . the individual right of self-defense that Japan holds as a sovereign state is not denied at all, and the pacifism or our Constitution certainly does not prescribe being without defense or non-resistance. . . . Article 9 of the Constitution in no way prohibits Japan from requesting security of other nations in order to maintain that peace and safety. . . ." This indisputably states the right of collective self-defense. Still, there is a doctrine that bases the right to live in peace on the denial of the right of self-defense; however, in view of Japan's position in the present-day international situation, the right to live in peace should, if anything, be understood as the basis for the affirmation of the right of self-defense. The second argument is based on the "established laws of nations" provided for in Article 98, Paragraph 2 of the Constitution of Japan*5. The phrase, "established laws of nations" refers to customary international law that is generally recognized and implemented, regardless of whether written or unwritten. The International Court of Justice recognized the right of collective self-defense as a right under customary international law in the 1986 Nicaragua Case*6. Cases in which the right of collective self-defense is prescribed in a treaty ratified by Japan (e.g., the current Japan-U.S. Security Treaty) are included within the "treaties" provided for in Article 98, Paragraph 2. Accordingly, cases based on the established laws of nations are significant where Japan is not a party to a treaty establishing the right of collective self-defense or where such treaty is invalid. From the above, it is reasonable based on the process of its enactment and the aforementioned grounds to interpret Article 9 of the Constitution of Japan as prohibiting wars of aggression, wars that are clearly illegal under international law and crimes against humanity and peace while also interpreting it as not prohibiting the maintenance and exercise of both individual and collective rights of self-defense. *1 Meiji Constitution, Article 11: The Emperor shall have supreme command of the nation's army and navy. *2 Charter of the United Nations, Article 51 (Self-defence): 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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. *3 Treaty of Mutual Cooperation and Security between the United States of America and Japan (Japan-U.S. Security Treaty), Article V (Joint Defense): Each Party recognizes that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes. Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations in accordance with the provisions of Article 51 of the Charter. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security. *4 13-13 KEISHU 3225 (Sup. Ct. Dec.16,1959) *5 Article 98, Paragraph 2 of the Constitution of Japan: The treaties concluded by Japan and established laws of nations shall be faithfully observed. *6 Nicar. v. U.S., 1986 I.C.J. 14 (June 27) |
