21st Century Shape of Japan Series, No. 3
| Q |
Recently, committees and review panels have
been established in the Diet with the aim of revising the Constitution,
and revision of the Constitution of Japan has finally been taken
up in earnest. One topic of discussion has been whether Japan
can exercise a collective right of self-defense. What is this
collective right of self-defense? |
| A |
The Cabinet Legislative Bureau defines the
collective right of self-defense as follows: "the right of a
country under international law to use force to stop an armed
attack on another country that is in a close relationship, even
where one's own country is not directly attacked." Concretely,
in a case where Japan's Self-Defense Force and the U.S. military
are conducting joint military operations based on the Japan-U.S.
Security Treaty, and another country launches an attack and
artillery fire hits the U.S. fleet, this is the right of the
Japanese military to attack the enemy even though the fleet
of Japan's Self-Defense Force itself was not hit.
|
| Q |
Well, what is this about Japan not being able
to exercise the collective right of self-defense? |
| A |
In the above example, that would mean that
if the enemy's artillery fire hit Japan's Self-Defense Force
first, Japan would have the right to counterattack (i.e., to
exercise the right of self-defense), but where the U.S. military
is hit first, Japan could not counterattack but would have to
stand by until Japanese forces themselves were hit.
|
| Q |
How do the Japan-U.S. Security Treaty and
the Charter of the United Nations treat the collective right
of self-defense? |
| A |
Article 51 of the U.N. Charter expressly provides
that member nations (Japan, of course, became a member on December
19, 1956) may exercise the rights of both individual and collective
self-defense if an armed attack occurs. Further, Article 5 of
the Japan-U.S. Security Treaty states that if an armed attack
occurs against either party, both countries may jointly counterattack.
Thus, the exercise of the collective right of self-defense allowed
to all U.N. member nations (198 nations) as well as of the collective
right of self-defense provided for in the Japan-U.S. Security
Treaty have become customary international law (i.e., law that
is the accepted wisdom of the nations of the world). The problem
is that the Cabinet Legislative Bureau stated in the House of
Representatives on May 29, 1981 that Japan could not exercise
such a right.
|
| Q |
Why is it that only Japan is opposed to the
exercise of the collective right of self-defense although the
right is the accepted wisdom of all U.N. member nations and
moreover expressly stated in a treaty between Japan and the
U.S.? |
| A |
The legal basis is the existence of a provision
renouncing war in Article 9 of the Constitution of Japan. The
social reason was the strong public tendency of the Japanese
people to avoid war against foreign countries in the aftermath
of Japan's defeat at the hands of the U.S. in World War II.
|
| Q |
Do the treaties Japan enters into with foreign
countries have validity within Japan, or are they valid only
with respect to Japan's external relations? |
| A |
First of all, laws are enacted and take effect
by promulgation of the Emperor based on the approval of the
Diet and the advice and consent of the Cabinet. Treaties are
enacted and take effect by promulgation of the Emperor based
on the advice and consent of the Cabinet after approval by the
Diet of content that the Cabinet negotiates with foreign countries,
drafts, and ratifies. Because treaties go through the same domestic
legislative procedures as other legislation, they gain direct
legal validity with respect to the nation and the citizens of
Japan when promulgated by the Emperor. This is called the "self-executing
power" of treaties. In other words, it is not the case that
the contents of treaties that the Cabinet concludes with foreign
powers must again be enacted as law in the Diet in order to
gain domestic effect within Japan. Of course, where a treaty
only prescribes abstract, general matters, the Diet sometimes
fleshes it out by enacting legislation that clarifies the purposes
of the treaty. This fact is not, however, a basis for denying
that treaties have self-executing power. There is no disputing
that in both pre-war and post-war Japan, treaties have gained
domestic effect within Japan upon promulgation by the Emperor.
|
| Q |
We studied this in college, but as among the
Constitution, laws and treaties, what is the current order of
superiority with respect to domestic effect? |
| A |
It is indisputable that in legal interpretation,
the legal effect (referred to as "formal effect") of treaties
is superior to that of laws. All Japanese scholars acknowledge
this. There are opposing views as to whether the Constitution
of Japan or a treaty takes superiority; however, in foreign
countries, the doctrine of treaty superiority is the commonly
held view. Especially since the end of World War II, developed
nations have all been entering treaties, and the various countries
of the European Union have taken this movement so far as to
aim for political integration. Due to this treaty activity,
purely sovereign nations have become a thing of the past; i.e.,
the sovereignty of nations has become restricted to some degree.
This is known as the relativity of sovereign nations. It is
the wisdom of the modern era that treaties have priority over
constitutions.
|
| Q |
In that case, what is the relationship between
Article 9 of the Constitution of Japan the collective right
of self-defense provided for in the U.N. Charter and the Japan-U.S.
Security Treaty? |
| A |
It is common sense to conclude that the provisions
of very important treaties on which the right to live in peace
of the whole nation depend have superior effect over the country's
domestic provisions for peace and security. I think this is
the common sense of modern international law. If Japan could
independently maintain peace, there would be no need to rely
on the U.N. or the United States. Rights such as the collective
right of self-defense which have become so accepted as to be
customary international law (in Japan, this right is referred
to in Article 98, Paragraph 2 of the Constitution as the "established
laws of nations") have superiority over the provisions of Article
9 of the Constitution.
|
| Q |
The so-called Emergency-at-the-Periphery Law
(Law on New Guidelines), enacted in 1999, is criticized for
prescribing provisions incompatible with the collective right
of self-defense provided for in the Japan-U.S. Security Treaty
(the so-called one-sided collective right of self-defense).
What is this about? |
| A |
That provision was made in order to render
the Emergency-at-the-Periphery Law consistent with Article 9
of the Constitution and opinion of the Cabinet Legislative Bureau
that the collective right of self-defense could not be exercised.
However, the exclusive right to interpret the laws, including
the Constitution, rests with the courts and not the Cabinet
Legislative Bureau. In the event of an emergency (war), the
collective right of self-defense will be invoked based on Article
51 of the U.N. Charter and Article 5 of the Japan-U.S. Security
Treaty in accordance with the general form of the exercise of
the same right allowed to all U.N. member nations and that contemplated
by the Japan-U.S. Security Treaty, notwithstanding the provisions
of the Emergency-at-the-Periphery Law. And this is common sense
(legitimate) under international customary law. There is no
cause for concern on this point, since in legal interpretation,
the effect of treaties is superior to that of Japan's constitution
and laws.
|
| Q |
I do not recall ever being taught at university
about the contents of treaties Japan had entered into. About
how many such treaties are there? |
| A |
There are about 700. These days Japan has
made internationalization and globalization its policies, but
that refers to faithfully carrying out domestically the terms
of treaties Japan has entered into. University education in
Japan does not particularly include lectures on treaties. The
reality is that in practice, treaties are the legal standards
(i.e., standards for the courts' application of treaties at
trial; referred to as a source of law) that take up hotter issues
and exert greater influences on our lives. In particular, treaties
that protect the security and peace of Japan and those that
protect the human rights of the Japanese people (so-called social
rights and liberty rights) are more specific and realistic than
Japan's domestic laws. Thus, in cases relating to the provisions
of these treaties, courts should conduct trials based thereon.
However, in fact the courts are operating based on laws of inferior
validity, and this renders internationalization and globalization
so much empty talk. Internationalization is necessary to keep
the courts from falling behind the times.
|
| Q |
Are there any treaties with respect to ongoing
judicial reforms? |
| A |
That is a good question. In the current round
of the World Trade Organization, the liberalization of profession
services, including attorneys' services, as well as the drafting
of regulations for the mutual approval of qualifications and
relaxation of domestic regulations are moving forward rapidly.
There has already been agreement regarding certified public
accountants, and the impact of this of being strongly felt within
Japan. |
(Author: The form of question and answer was taken to clarify the
issues.) 
