If we are to maintain a peaceful, safe, and orderly society, Japan must base its domestic laws on sound legal criteria. At Japanese universities, students are taught that in Japan's legal system, the order of precedence is the Constitution, statutes, Cabinet orders, and ordinances. Some scholars are of the opinion that treaties carry more force than the Constitution; others believe that the Constitution takes precedence over treaties. However, all agree that treaties approved by the Diet and ratified by the Cabinet are binding on Japan and its people. International law recognizes Japan's right, when it ratifies or approves a treaty, to attach reservations to any provisions in a treaty that contravene the Constitution (see Article 2.1.d. of the Vienna Convention on the Law of Treaties).

When Japan's Diet approved the United Nations Charter in 1952 (promulgated on December 12, 1956), it did not enter any reservations. In 1960, the Japan-U.S. Security Treaty was ratified; since it was concluded between two nations, there were no reservations registered on Japan's part. Therefore, Japan and the Japanese are legally bound by the U.N. Charter and the U.S.-Japan Security Treaty on the one hand, and by the Constitution on the other. Consequently, there should be no inconsistencies between the interpretation of treaties and the Constitution on any single issue. However, the fact is that the binding power of the U.N. Charter and the Japan-U.S. Security Treaty is inconsistent (diametrically opposed, in actuality) with that of the Constitution on a matter that is of crucial importance to the nation and people of Japan, i.e., peace, safety, and order. Nevertheless, most constitutional scholars and specialists in international law skirt or completely avoid this issue, both in their classrooms and their writings.

First of all, there is virtually no discussion of treaties ratified by Japan in university courses on the Constitution. For instance, Chapter VI of the United Nations Charter contains provisions relating to peaceful resolutions of international conflicts (Articles 33-38). However, professors do not tell their students which interpretation renders these provisions valid in Japan.

The provisions in Chapter VII of the Charter address the suppression of international conflicts (Articles 39-51). However, no university course explains why these provisions are legally binding on Japan. Instead, explications and interpretations of Article 9 of the Constitution (Renunciation of War) are provided, in complete isolation from these very important chapters of the Charter. These "interpretations" of Article 9, resembling theological disputes, have long been (and continue to be) purely theoretical arguments. Most of Japan's legal scholars, their intellect and wisdom notwithstanding, avoid maintaining that there is indeed consistency among the U.N. Charter and the Japan-U.S. Security Treaty, and Article 9 of the Constitution. Their failure to support a realistic legal interpretation of this problem C one that concerns the survival of our nation and its people C is unconscionably irresponsible. Nor do debates about constitutional revision in the world of politics ever produce any legislation; they seldom progress beyond the debate stage.

Furthermore, the judicial examination, which one must pass to become a legal practitioner, completely evades this issue. That is why successful candidates launch their careers as attorneys without the necessary basic legal expertise to make responsible legal decisions about a problem that is crucial to Japan's survival. The questions asked in the current judicial examination, and other national examinations, are prepared with absolutely no attention to national security and order, which are of the utmost importance to the citizens of our nation. Practicing attorneys should be aware of the content of and force behind the U.N. Charter and the Security Treaty, and of their consistency (or lack thereof) with the force behind Article 9 of the Constitution. Once they gain such expertise, it is their duty to the people of Japan to put it into practice. However, they expound upon the famous three principles: sovereignty of the people, basic human rights, and pacifism. Instead, they should be discussing the basic principles of the Constitution in light of the U.N. Charter and other treaties, on which the Constitution is based. In other words, their priorities should be (1) the U.N. Charter and other treaties, (2) the basic principles of those treaties, and (3) the Constitution. Although this writer has long been delivering lectures and providing guidance on the subject of the judicial examination and other national examinations, he has until recently been ignorant of this very important issue, a state of affairs that he genuinely regrets.

Today Japan is faced with serious problems, both at home and abroad. Our economy has suffered the effects of a global recession. China is rapidly becoming the world's factory, and is flooding Japan with imports. Prices continue to plummet, and Japan has entered a deflationary spiral. The Koizumi Cabinet is determined to reverse this trend by reforming the traditional, "smokestack" industrial structure. Convinced that economic recovery is contingent upon structural reforms, the Cabinet has shifted the emphasis of its industrial policy to new, growth industries, particularly those that specialize in innovative, intellectual products.

Meanwhile, as a member of the international community, Japan must participate actively in that community's efforts to cope with the consequences of ethic and religious strife, poverty, and economic disparity. We can no longer stand by and watch, secure under the American nuclear umbrella. The term "international contribution," which is so often bandied about in Japan, really means that we will provide support when international conflicts that do not jeopardize our national interest arise in faraway places, out of the goodness of our hearts. We do not perceive these events in the same way we would if they occurred on Japanese soil. This disconnectedness is the result of our having gotten out of the habit of viewing Japan in the context of international law. We must emerge from this blissful ignorance, and extricate ourselves from the "one-nation pacifism" illusion. The Gulf War in 1991, the sighting of suspicious vessels in the waters off Noto Peninsula, and the virtually simultaneous terrorist attacks on the U.S. on September 11, 2001 all tell us that it is time for the Diet and the Cabinet to ensure that our Constitution is consistent with the U.N. Charter and the Security Treaty. The Diet needs to hold deliberations that focus on the following portions of the Constitution, and amend them to eliminate discrepancies between them and relevant portions of the U.N. Charter and the Security Treaty.

Preamble (Constitution of Japan)

We desire to occupy an honored place in an international society striving for the preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance for all time from the earth. We recognize that all peoples of the world have the right to live in peace, free from fear and want.

We believe that no nation is responsible to itself alone, but that laws of political morality are universal; and that obedience to such laws is incumbent upon all nations who would sustain their own sovereignty and justify their sovereign relationship with other nations.

Article 98

(2) The treaties concluded by Japan and established laws of nations shall be faithfully observed.

The government bears the obligation to submit new constitutional provisions to the citizenry of Japan. We must give credit where it is due, e.g., the enactment of the International Peace Cooperation Law in 1992, the revision of the PKO (Peace-Keeping Operation) Cooperation Law in 1998, revisions of the SDF (Self-Defense Forces) Law and the Maritime Safety Agency Law in 2001, and the enactment of the Anti-Terrorism Special Measures Law (also in 2001). We must realize that the egoism of one-nation pacifism no longer has currency, and appreciate the progress we have made through this legislation.

About the purposes of the United Nations, Chapter 1, Article 1.1 of the U.N. Charter states the following.

To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

A detailed description of the resolution of international disputes by peaceful means can be found in Chapter VI of the Charter (Articles 33-38); resolving such disputes by suppressing acts of aggression is described in Chapter VII (Articles 39-51). The majority of scholars believe that the articles in Chapter VI are consistent with the intent of the Constitution. They disagree, however, on the constitutionality of the articles in Chapter VII (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression), particularly because U.N. members may be required to participate in military measures (as described in Article 42), or collective self-defense (as described in Article 51) approved by resolution of the U.N. Security Council or the General Assembly. To date, no U.N. troops have been mobilized to collectively suppress a dispute on the basis of the conclusion of a special agreement, as described in Article 43. Therefore, no Security Council resolution binds Japan, in the absence of such a special agreement. However, Article 25 of the Charter states that "the Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter." Recently, the interpretation that the U.N. may resort to the military measures stated in Article 42, even in the absence of the "special agreement" described in Article 43, has been gaining force. The principal issue in Japan now is whether the right of collective self-defense as granted by Article 51, which is now conventional wisdom throughout the world in terms of international customary law (and for that reason, one that Japan should have addressed long ago), is constitutional.

Furthermore, the Preamble of the Japan-U.S. Security Treaty contains the following text: "Recognizing that they have the inherent right of individual or collective self-defense as affirmed in the Charter of the United Nations, ... ." Similarly, Article V provides for joint Japan-U.S. defensive measures. With respect to the right of collective self-defense as defined in these treaties, this writer interprets that right as constitutional, for the following reasons.

1. In the context of international law, the right of collective self-defense has been affirmed by almost every member of the United Nations. In other words, it has become customary international law. Article 51 merely validates customary international law, as stated in a judgement handed down by the International Court of Justice in a case involving American military and paramilitary activities in Nicaragua.
   
   Article 98.2 of the Constitution stipulates that the government and the people of Japan shall observe "established laws of nations," i.e., universal customary international law practiced by states (whether written or unwritten). Therefore, the right of collective self-defense (as set forth in Article 51 of the U.N. Charter and elsewhere) has been legitimized via the provisions of Japanese law, i.e., Article 98.2 of the Constitution.
   
   
2. In the spirit of international collaboration, Japan is obliged to interpret the renunciation of war, as set forth in Article 9 of the Constitution, as consistent with the right of collective self-defense, as set forth in Article 98.2. We are now confronted with a deluge of complex interpretations of Article 9. But as long as the right of collective self-defense is affirmed by the Constitution, the interpretation of Article 9 is subject to the same restrictions as is a treaty, as far as this right is concerned. Therefore, the government's current interpretation of Article 9 is an exceedingly narrow one. The right of collective self-defense, as set forth in the Constitution, has the same meaning as it does in the context of international law. Let us suppose that Country X launches an armed attack on Country A. Country B, a treaty partner with Country A, perceives the attack on Country A as an attack on Country B (itself). B has the right to exercise the right of self-defense against X, together with A. To B, exercising the right of collective self-defense, is not a matter of the benefit and protection of law, namely, its own national security. The right of collective self-defense is exercised when universal benefit and protection of the law, i.e., international peace and security, are violated. On that point, it differs basically from the benefit and protection of law in the form of the right of individual self-defense.
   
   
3. The Cabinet Legislation Bureau's current position (the government's position) is that Japan, as a sovereign nation, possesses the right of collective self-defense, in terms of international law. However, its interpretation of the scope of the exercise of the right of self-defense, as set forth in Article 9 of the Constitution, is only the minimum required to defend our nation. The exercise of the right of collective self-defense exceeds that scope, and is, therefore, unconstitutional.

If this position is based on the belief that the Constitution does not permit the exercise of the right of self-defense, it is incorrect. The right of collective self-defense is indeed within the scope of Article 9. However, in this writer's opinion, whenever the Japanese government enacts laws that provide for the exercise of the right of self defense, (e.g., the SDF Law and the Anti-Terrorism Special Measures Law), it imposes limits on the exercise of that right C limits that narrow the scope of the right of collective self-defense as recognized by international law.

The Yomiuri Shinbun surveyed Japanese intellectuals and constitutional scholars between late September and mid-October 2001, asking them for their opinions on constitutional issues. The results of the survey were printed in the November 3, 2001 edition of that newspaper. Some of the responses that relate to the topic at hand follow.

1. The Constitution should be revised (65.2% of respondents, 70.1% of whom believe that the Constitution should be revised to make it absolutely clear that Japan possesses the right of self-defense, and that the SDF exist).
   
   
2. The existence of the SDF is constitutional (51.8%).
   
   
3. The government's interpretation of the right of collective self-defense should be altered, in light of the fact that the exercise of that right is recognized, whether or not it is specified in the Constitution (18.6%).
   
   
4. The language in the Constitution describing the right of collective self-defense is vague, and should be clarified (41.5%).

If we combine the percentages in (3) and (4), we find that 60.1% of all respondents affirm that Japan possesses the right of collective self-defense. Conversely, only 28.7% believe that the exercise of the right of collective self-defense is not permitted by the Constitution. Thus, the conventional wisdom of Japan's opinion leaders (and by extrapolation, that of the people of our nation) regarding the right of collective self-defense is consistent with worldwide conventional wisdom. The same can be said for Prime Minister Koizumi's description of the Anti-Terrorism Special Measures Law, during Diet deliberations on that legislation, as "healthy common sense."