Subcommittee on Security and International Cooperation (First Meeting)

Thursday, February 6, 2003

Meeting Agenda

Matters concerning security and international cooperation (emergencies and the Constitution)

After statements were heard from Professors MORIMOTO Satoshi and IGARASHI Takayoshi concerning the above matters, questions were put to them; this was followed by discussion among the members.

Informant

Members who put questions to Professors MORIMOTO and IGARASHI


Main points of Prof. MORIMOTO's statement

1. Emergencies and constitutional provisions

>> The concepts "states of emergency," "emergency circumstances" and "emergencies" need to be clarified; deliberations need to be held to determine whether or not constitutional provisions regarding such emergency conditions are necessary; and if they are deemed to be necessary, the provisions themselves need to be deliberated.

>> I consider "states of emergency" as a comprehensive phrase that encompasses war, civil war, riots, panics, natural disasters and epidemics, and thus see this as a wider-ranging concept compared with "emergency circumstances," which does not include wars and civil wars. The present Constitution does not have any provisions regarding states of emergency, and I believe that this lack of constitutional provisions has delayed the preparation of systems for responding to states of emergency. Accordingly, I believe that the fundamental items regarding the responses, rights and obligations of the state, the government and the people during states of emergency should be explicitly stated in the Constitution.

2. Legal aspects of responding to terrorism

>> Because terrorism is conducted by organizations rather than by nation-states, and because terrorist activities have become increasingly complex and extreme in recent years, we must respond to terrorism with a comprehensive system that organically links together defense, diplomacy, information and immigration control under a unified policy.

>> To these ends, it will be important to (a) prepare domestic laws, (b) establish national and social systems, and (c) foster public awareness and conduct public training exercises.

>> In particular, regarding item (a), national emergency legislation must be enacted to stipulate the response to armed attacks by other nations, and at the same time the existing laws regarding terrorism, natural disasters and other types of emergencies should be integrated so that the state can act in a unified manner.

3. Legal system for responding to emergency circumstances

>> While a revision of the Constitution is desirable to facilitate a comprehensive response to emergency circumstances (and possibly to other emergencies), for the time being a "Basic Security Law" should be rapidly enacted.

>> The "Basic Security Law" should stipulate Japan's overall international security cooperation. An "Emergencies Law," which should stipulate Japan's response to armed attacks by foreign nations, and an "Emergency Circumstances Response Law," which should stipulate the response to terrorism, natural disasters and other emergencies, should be enacted as subsidiary legislation under the "Basic Law."

>> For responding to terrorism and other emergency circumstances, it will be important to (a) upgrade information functions, (b) improve the comprehensive coordination and organic operations of all the concerned organs, and (c) clarify, in the Constitution, the rights and obligations concerning public cooperation.

>> As the United States has announced a policy of preemptive strikes against terrorism, Japan should no longer follow its past stance of reacting to terrorism based on self-defense, but should rather adopt a strategy of deterring terrorism by upgrading its states of emergency legislation.


Main points of Prof. IGARASHI's statement

1. Introduction

>> The Constitution does not include any provisions regarding states of emergency, but we need to work under the assumption that such emergencies will, in fact, occur.

>> States of emergency include natural disasters such as earthquakes and floods, and man-made emergencies such as nuclear power accidents, terrorism and wars.

2. Characteristics of contemporary emergencies

>> The debate to date regarding emergency conditions has mostly failed to properly consider the effects of emergencies on urban areas, which are "dependent societies." We need to consider how states of emergency could cause colossal damage in cities.

3. Japan's response systems

>> There are various problems with Japan's present system for responding to emergencies, including: (a) measures that presume a self-sufficient "agricultural village type" society and respond on a case-by-case basis without preventing or responding to disasters overall, (b) excessive emphasis on leadership by the central government, which fails to give sufficient initiative to those who are on-site, and structural bureaucratic problems whereby ministries and agencies respond individually, without sufficient coordination, and (c) the lack of systems whereby local government bodies can function effectively, and of systems enabling participation by citizens and NGOs.

4. Specific proposals

>> Three specific proposals are: (a) while the centralization of authority is important for responding to emergencies, subsequent checks should also be emphasized, (b) Japan should view the U.S. Federal Emergency Management Agency (FEMA) as a reference for designing a national emergency response organ, and (c) Japan should establish an emergency management system using as reference the German Basic Law in which authority is centralized in the German prime minister, but who is in turn subject to severe checks by the Federal Assembly.

>> While there are differences of opinion regarding the extent to which the right to self-defense can be recognized in times of emergency, we must be prepared to protect citizens' lives, freedom and property during emergencies, and such preparations must be based on the assumption that "cities cannot conduct wars." Additionally, military activities should be kept to the absolute minimum, and Japan should do everything in its power to prevent emergencies via active engagement in the United Nations-centered security system and its own diplomatic efforts.

5. Conclusions

>> (a) Japan should enact a comprehensive emergency management law, and (b) Japan should establish an "emergency management agency" formed from the Cabinet Secretariat, the Cabinet Office, the Ministry of Public Management, Home Affairs, Posts and Telecommunications, the Ministry of Land, Infrastructure and Transport, the Ministry of Health, Labour and Welfare, the National Police Agency, the Fire and Disaster Management Agency, the Japan Coast Guard, the Self-Defense Forces and other concerned bodies, and this "emergency management agency" should be made responsible for the nation's overall emergency management.


Main points of questions and comments to Professors MORIMOTO and IGARASHI

SHIMOJI Mikio (Liberal Democratic Party)

>> (To Prof. MORIMOTO) Considering the importance of Japan's role in the event of international terrorism, rather than implementing international cooperation "in combination with the use of force" I think we should arrange a framework to implement international cooperation "based on United Nations resolutions" and that the criteria for international cooperation based on this standard should be clearly stated in the Constitution. What is your opinion about this?

>> (To Prof. MORIMOTO) By presenting a written legal expression, the national emergency legislation averts an excessively broad interpretation of the limitations on citizens' rights during states of emergency, and thus prevents violations of human rights. Taking this point into consideration, what is your opinion regarding the emergency legislation?

>> (To Prof. MORIMOTO) Considering that Japan's response to terrorism and emergency is within the context of the Japan-U.S. Security Treaty, I think that the Status of Forces Agreement must therefore be revised to gain citizens' understanding. Do you agree?

>> (To Prof. IGARASHI) Through my involvement with the relief efforts following the Great Hanshin-Awaji Earthquake, I became painfully aware of the lack of a clear command system between the central and local governments during emergencies. Do you believe that this problem will be resolved by establishing the type of "emergency management agency" that you proposed, transferring authority and establishing ties with the local governments?


SUTO Nobuhiko (Democratic Party of Japan and Club of Independents)

>> (To Prof. IGARASHI) I think that we need to discuss limitations on private rights and other constitutional issues as part of our deliberations on legislation for emergency circumstances. You have presented your proposals for responding to emergency circumstances and for the establishment of a Japanese version of FEMA. I think that these efforts must be predicated on revision of the Constitution. Do you agree?

>> (To Prof. MORIMOTO) There are U.S. military bases in Japan, and in the event of an emergency, the relationship between Japanese sovereignty and the activities of U.S. forces stationed in Japan will become a problem. I think that the national emergency legislation should make stipulations regarding this relationship from the perspective of defending Japanese citizens. What is your opinion?


AKAMATSU Masao (New Komeito)

>> (To Prof. MORIMOTO) Since the September 11 terrorist attacks, it is no longer possible to respond to terrorism based solely on the concept of the right of self-defense, and we need to devise new policies to deter terrorism. To these ends, we must build up a new international cooperation system to eradicate terrorism based not on the right of self-defense, but rather on what should be called "the right to combat terrorism." And in this case, I think the response can take place outside the conventional framework of Article 9. Do you agree?

>> (To Prof. IGARASHI) It seems that you are negative toward the three national emergency legislation bills. Am I right in assuming that you believe that we should presently place priority on our response to natural disasters instead? Do you see no need to prepare national emergency legislation just in case some sort of emergency breaks out?


FUJISHIMA Masayuki (Liberal Party)

>> (To both Informants) Do you think that the Department of Homeland Security established in the United States will function well? What is the potential for establishing a similar organization in Japan, what problems would become obstacles to this, and would such an organization be effective here?

>> (To both Informants) During states of emergency, the cooperation of heads of local government bodies will be essential. Do we not need to enact binding legal provisions that would prevent the heads of local government bodies from refusing to offer cooperation based on their personal viewpoints?

>> (To Prof. MORIMOTO) The United States has voiced the new concept of "negative deterrence" and it seems that there is now a need for a new international legal framework to combat terrorism aside from the right of self-defense. Could you tell us about the recent developments in the international debate concerning this issue?

>> (To Prof. IGARASHI) Is there a fixed pattern among foreign countries in their approach to emergencies, or does this basically vary from country to country?


HARUNA Naoaki (Japanese Communist Party)

>> (To Prof. MORIMOTO) You have written that Japan's emergency legal system is a response to demands under the Guidelines for Japan-U.S. Defense Cooperation. I believe that the national emergency legislation that Japan is now considering is based on assumptions regarding Japan-U.S. relations. What is your opinion regarding the recent U.S. trends, and especially regarding the relationship between the U.S. strategy that even permits preemptive strikes and the Japanese national emergency legislation?

>> (To Prof. IGARASHI) Would you please explain, once again, your point that the emergencies supposed under the three emergency-response bills are unrealistic?


KANEKO Tetsuo (Social Democratic Party)

>> (To Prof. MORIMOTO) U.S. Secretary of State Powell made a statement at the UN about Iraqi obstruction of UN inspections; however, the international community believes that this statement by Mr. Powell does not by itself constitute grounds for military action. Do you agree? I also believe that if military activity is to be conducted against Iraq it should at least require an additional UN resolution approving use of force. What is your opinion?

>> (To Prof. MORIMOTO) Considering that a vast amount of nuclear weapons are being maintained in the name of deterrence, the dangers of the deterrence argument are patently clear. Do you not agree with the concerns that the concept of "negative deterrence" may similarly foster "counter-offensives" and otherwise just generate new problems?

>> (To Prof. IGARASHI) I think we need to separate natural disasters from man-made events when we are discussing states of emergency. Based on that perspective, building a separate organization, other than the Self-Defense Forces, to respond to natural disasters would be a more effective and practical approach. Do you not agree?


INOUE Kiichi (New Conservative Party)

>> (To Prof. MORIMOTO) Constitutional provisions are necessary to address emergency management, and to stipulate the use of authority by the state and the limitations on citizens' rights under various emergency conditions, and these stipulations should cover comprehensive responses under the various types of emergencies. Do you feel that different constitutional provisions are required for separate responses to emergencies, emergency circumstances and states of emergency?

>> (To Prof. MORIMOTO) What types of items do you think should be covered under the "Basic Security Law?"

>> (To Prof. MORIMOTO) I believe that Article 9 is one major reason why the preparation of Japan's emergency management system has been delayed. What is your opinion regarding this?


KONDO Motohiko (Liberal Democratic Party)

>> (To both Informants) Do you think that national emergency rights should be stipulated in the Constitution? Also, under the present situation whereby the Constitution contains no provisions for emergency circumstances, do you think it is possible that the government could respond to emergency circumstances in a manner that transcends the Constitution?

>> (To both Informants) I believe that the abductions of Japanese nationals to North Korea have violated Japanese national sovereignty. Could this be categorized as a state of emergency, or as emergency circumstances? Moreover, since the abductions were state crimes, should not Japan pursue these incidents via the United Nations?


KUWABARA Yutaka (Democratic Party of Japan and Club of Independents)

>> (To both Informants) Under Germany's Basic Law, the Federal Assembly is to be deeply involved with the certification of emergencies and with the mobilization of armed forces when emergencies are recognized. In contrast, the involvement of the Japanese Diet is rather weak, with ex post facto approval of Self-Defense Forces deployments in certain cases. What is your opinion about the proper role of the Japanese Diet during emergencies, in comparison with the German system?

>> While the national emergency legislation protects the rights of citizens, there is still a danger that it may also violate their rights. Considering this, in Germany the Basic Law clearly stipulates which rights must be protected during emergencies, come what may, and which rights may be restricted. I think this provides a good reference for Japan. What do you think about this?


TANIMOTO Tatsuya (Liberal Democratic Party)

>> (To both Informants) Some nations are presently supporting terrorism, and it is conceivable that they might also utilize terrorists as mercenaries by providing them with financial support. In such cases the terrorist acts conducted by the terrorist organizations may be considered as outright war. How can Japan respond to such circumstances under its present laws?


Main point of comment by a member of the Subcommittee

NAKAYAMA Taro (Liberal Democratic Party), Chairman

>> The Informants, who are specialists, have harshly noted the Diet's responsibility for preparing a system to respond to emergency situations. This has reminded me, as a Diet member, of the extreme importance of discussions across political parties to ensure that the residents of Japan can live safely and happily. I would like to continue deepening our deliberations on these types of issues.