Limited Exercise of Collective Self-Defense Is Not UnconstitutionalPolitics
INTERVIEWER On June 4, an expert invited to address the House of Representatives Commission on the Constitution at the recommendation of the ruling parties declared that it is unconstitutional to allow the exercise of the right of collective self-defense, one of the planks of the government’s proposed security legislation. What’s your reaction to this development?
KITAGAWA KAZUO I should note that he was recommended just by the Liberal Democratic Party, not jointly by the ruling parties. Komeito wasn’t involved in his selection. I’m not sure how well he and the other experts understood, but I believe that we had a truly deep debate over the proposed security legislation. And I definitely think that it doesn’t violate Article 9 of the Constitution.
The Three Principles Set Forth by Komeito
INTERVIEWER In the deliberations between the LDP and Komeito over the proposed security legislation, the three principles you set forth became a major turning point in the drafting process.
KITAGAWA I think we came up with the best possible legislation. But the overseas dispatch of the Self-Defense Forces must be in line with certain ground rules and principles. In terms of ground rules, it must not violate Article 9 of the Constitution. In other words, it must not involve the threat or use of force. This is the fundamental premise, based on which I set forth three principles.
The first is legitimacy under international law. The SDF are a means for Japan to implement its will, and so their overseas dispatch needs to be internationally legitimate.
The second is to be able to win the understanding of the Japanese people. If SDF members are dispatched without the people’s understanding, they won’t be able to keep up their morale. And how is this understanding to be obtained? The only route is through approval by the National Diet.
And the third is to secure the safety of SDF members. Dispatching them overseas means increased tasks, operations, and risks. Even now they are being sent to places where the security situation is bad. As a matter of course, their safety must be assured.
In our discussions with the LDP, I called for these three principles to be solidly incorporated in the proposed legislation, and the government and LDP agreed.
Balancing Security Requirements and Constitutionality
INTERVIEWER Some refer to the Komeito as “the party of peace.” Didn’t you have some worries over the course of the almost two years of work on the security legislation?
KITAGAWA I get that question a lot. But the peace that we believe in is by no means a do-nothing peace. If you look back at the passage of the Act on Cooperation with UN Peacekeeping Operations in 1992, which was the first law providing for the overseas dispatch of the SDF, it took place at a time when the opposition parties held a majority in the upper house. The Socialists and Communists were against the bill, and the ruling LDP lacked the votes to enact it without support from Komeito, which was in the opposition at that time. We proposed five principles for participation in peacekeeping operations, and based on the LDP’s acceptance of these, we supported the bill and it became law. To tell you the truth, the debate at that time was fiercer than the one we’ve had last year and this year.
Security issues involve the question of necessity. But even where the necessity exists, Japan is bound by the pacifist ideal embodied in Article 9 of our Constitution, which is something unusual in global terms. So we must naturally do what we can to respond to the security needs of the time within the permitted bounds while staying in line with Article 9. This has been our party’s consistent stance since 1992.
In our current age, there can be no such thing as peace for Japan alone. Globalization has progressed, and everywhere in the world you find Japanese people. The peace and stability of the international community is a Japanese national interest. It’s important to keep conflicts from expanding, to prevent them from occurring, and to keep the world peaceful and stable. Japan benefits tremendously from this peace and stability, and so I believe it is important for our country to play a role in maintaining it.
Misplaced Concerns That Japan Will Be Embroiled in War
INTERVIEWER The Guidelines for Japan-US Defense Cooperation were recently revised for the first time in eighteen years. Some Japanese have a vague fear that this may result in our getting embroiled in America’s wars.
KITAGAWA The proposed security legislation provides for logistical support in two contexts. One is in situations that will have an important influence on Japan’s peace and security. A typical example is a case in which a conflict on the Korean Peninsula threatens to affect Japan. In such a case, the US military would step up its surveillance activities to protect Japan under our bilateral security treaty. And under these circumstances, it would be peculiar for Japan not to provide support for the US forces conducting these activities.
The other context is when the United Nations adopts a resolution calling on member countries, including Japan, to play roles in response to an occurrence of international terrorism. Up to now we’ve dealt with such cases by adopting special legislation, but this time we’re proposing the adoption of a new law, the International Peace Support Law, to serve as permanent legislation for this purpose. But since we’re making this law at a stage when we cannot be sure what sorts of situations will arise in the future, we’ve attached stringent conditions.
INTERVIEWER What sort of conditions?
KITAGAWA First is the major precondition that there be a UN resolution calling for member countries to take certain measures. Second is the requirement for prior approval by the Diet in all cases, which our party pushed for vigorously. And third is securing the safety of SDF members.
In either of the two contexts—a situation with an important influence on Japan or a case under the International Peace Support Law— the SDF will provide logistical support only when the objective has legitimacy under international law, and its provision will be based on rigorous procedures. Also, the arrangements do not permit SDF activities to form an integral part of the use of force. So I believe that it is inaccurate to complain that Japan may get embroiled in wars.
The Requirement for Prior Approval by the Diet
INTERVIEWER The various situations to be handled under the new security legislation supposedly are not defined in terms of geographical scope. But in his response to questioning in the Diet, Prime Minister Abe Shinzō referred to the Indian Ocean and Persian Gulf as examples. Isn’t this confusing?
KITAGAWA I don’t think so. The point is that the situations are to be carefully identified. And Diet approval will be required in every situation. The only exceptional cases in which this approval may be obtained after the fact are situations of extreme urgency, such as a military attack on Japan.
In addition, since Diet approval is a prerequisite, the government must draft a basic plan concerning the measures to be taken. This will involve writing, for example, that a certain country has made such-and-such moves on the Korean Peninsula, based on which the Diet will recognize the situation. The dispatch of the SDF can only be proposed after the situation has been recognized by the Diet.
In the case of activity under the International Peace Support Law, prior Diet approval will be required without exception. But it won’t do to let the process drag on, so when the government seeks Diet approval for a cabinet decision, the Diet will be obliged to try to reach a decision within about two weeks, allowing a week for the lower house and a week for the upper house to act on the matter.
The Significance of the Prime Minister’s Press Conference
INTERVIEWER In July last year the government adopted a cabinet decision approving the limited exercise of the right of collective self-defense. During the process leading up to this decision, did the Komeito consider parting ways with the LDP?
KITAGAWA There were a number of key junctures. In February 2013 Prime Minister Abe reconvened the Advisory Panel on Reconstruction of the Legal Basis for Security. We observed the subsequent deliberations of this panel with some concern.
The panel issued its report on May 15, 2014. That day marked a turning point. We were extremely interested in what Prime Minister Abe would say about it. Many of the panel members had asserted that collective self-defense, along with collective security, was not prohibited under international law because the United Nations Charter recognized it, and that the Japanese Constitution did not negate this right that is recognized under international law.
In his press conference that day, though, Prime Minister Abe didn’t go along with everything included in the report. He clearly stated his view that the sort of full-scale collective self-defense permitted under Article 51 of the UN Charter, including defense of other countries, is not permitted under Japan’s Constitution. That relieved about half of our worry. If the prime minister had taken the position of seeking passage of a basic law on security that would permit the full-scale exercise of collective self-defense, I think it could have jeopardized the ruling coalition.
INTERVIEWER The process leading up to the cabinet decision was difficult, wasn’t it?
The first paragraph of Article 9 renounces war, and the second paragraph forbids the maintenance of war potential. But this article doesn’t specify the bounds within which Japan can exercise the right of self-defense. Properly speaking, the Supreme Court should rule on this matter, but unfortunately the court has taken the position that matters of great political significance are to be settled politically except in cases involving clear violations of the Constitution.
Meanwhile, Article 13 declares that the people’s right to life, liberty, and the pursuit of happiness shall be the supreme consideration in governmental affairs.(*1) In the light of this article, the Constitution does not require the country to do nothing even in the face of a critical situation. This was the decision issued by the Supreme Court in its 1959 ruling on the Sunagawa Incident.(*2)
However, this ruling doesn’t explicitly set the bounds for exercising the right of self-defense. These bounds have been set over the course of many years by the government and the Diet. So the interpretation of Article 9 isn’t something that has come from constitutional scholars or from the Supreme Court. It has been built up through interaction between the government and the Diet. The Constitution itself makes no reference either to individual self-defense or collective self-defense. The references have been part of the government’s interpretation.
Enhancing Deterrence Is the Main Objective
KITAGAWA The past two decades have brought major advances in military technology. And in the context of the total transformation of the security environment, the issue has arisen that Japan may not be able to take measures for its own defense if it comes under attack.
A typical example is a case where US forces that are conducting surveillance activities for Japan’s defense come under attack first on the high seas in the vicinity of Japan. We can’t at that point get caught up in a discussion of whether a Japanese response would be individual self-defense or collective self-defense. In terms of international law, there’s a high likelihood that it would be considered the latter. Since it’s necessary to respond properly in cases like this, we’ve accepted the limited exercise of the right of collective self-defense subject to the three new conditions.
To implement this, we need to adopt “seamless” legislation that covers situations ranging from peacetime to the so-called gray zone, contingencies in nearby areas, and contingencies within Japan.
“Adding” to the Constitution
INTERVIEWER What’s Komeito’s stance on amendment of the Constitution?
KITAGAWA Sixty-eight years have passed since the present Constitution of Japan was adopted. Given the changes in the times, it’s only natural to include provisions that are appropriate to the current age.
Our basic position is that the Constitution is a fine document that has become established among the people and that has definitely played a role in Japan’s postwar development. On this basis, we support the idea of revising existing provisions and adding new ones to match the changes in the times. We refer to this as kaken, “adding to the Constitution.” And we hope to deliberate the matter thoroughly from this basic standpoint.
INTERVIEWER How would you handle Article 9?
KITAGAWA To tell you the truth, I believe that if the Diet approves our proposed security legislation, the need to revise Article 9 will recede considerably. My personal opinion is that, having recognized the limited exercise of the right of collective self-defense and having incorporated that recognition into the legal system, we won’t need to change Article 9 for now.
(Translated from an interview conducted in Japanese by Harano Jōji, representative director of the Nippon Communications Foundation, on June 5, 2015.)
(*1) ^ Article 13 reads as follows: “All of the people shall be respected as individuals. Their right to life, liberty, and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs.”
(*2) ^ In a 1957 protest against expansion of a US base in the town of Sunagawa (now Tachikawa, Tokyo), seven Japanese were arrested for entering the base. Their case made it to the Supreme Court, whose December 1959 ruling overturned a district court decision declaring that the presence of US forces in Japan was a violation of Article 9.