Subcommittee on Security and International Cooperation (First Meeting)

Thursday, February 5, 2004

Meeting Agenda

Matters concerning security and international cooperation (Article 9 of the Constitution, with a focus on the deployment of the Self-Defense Forces to Iraq, collective security, and the right of collective self-defense)

After keynote statements concerning the above matters were heard from Subcommittee members Mr. NAKATANI Gen and Mr. MATSUMOTO Takeaki, members put questions to them and made comments. This was followed by free discussion among the members.

Keynote speakers

Members who put questions or made comments

Main points of the keynote statement by Mr. NAKATANI

1. The significance of Article 9

>> Article 9 played an important role in the reconstruction of Japan.

2. Changes over time

>> As the international situation has changed, Article 9 has become dissociated from the realities of the international community. As a result, the Japanese public no longer finds it persuasive and has become less comfortable with it.

>> As a result of the government's having repeatedly patched over the gap with reality by means of doctrines derived by interpreting the Constitution, it is no longer taken seriously and has been reduced to a mere formality.

3. Problems of the Self-Defense Forces under the Constitution

>> Because the Self-Defense Forces are permitted to exist only as the minimum armed force necessary for self-defense, they are by their very nature weak, and when sent overseas they face difficulties in defending themselves.

>> The Self-Defense Forces sent to Iraq are there to provide humanitarian reconstruction assistance; they are not there for the purpose of using force, and their operations are limited to noncombat areas. Accordingly, their dispatch does not amount to acting in concert with the use of force by other nations, and it is therefore not a violation of Article 9, Paragraph 1.

>> The interim government in Iraq has a basis of legitimacy in Security Council Resolution 1483, and, moreover, the Self-Defense Forces are not under its command. Thus, they are not participating in an occupation government.

>> Under the existing Constitution, (a) Japanese troops cannot escort forces of other nations or conduct similar operations; (b) they cannot use weapons in order to carry out their duties; (c) they cannot respond to an attack on U.S. forces; (d) they cannot participate in UN forces; (e) Japan is restricted from participating in an Asian security organization; and (f) even if we concluded a defense treaty with the Republic of Korea, it would inevitably be unilateral in nature. We should therefore take steps to improve Japan's security environment by revising the Constitution.

>> For the future, Japan should aim to gain a permanent seat on the Security Council and take the initiative in the United Nations. Also, as security policies are becoming increasingly complex, involving everything from monitoring ceasefires to maintaining order and humanitarian missions, we should become a nation that is able to participate and cooperate in these areas.

4. Conclusion

>> Rather than changing the government's interpretation of the existing provisions, we should make explicit provision for the existence and role of the Self-Defense Forces in a new Constitution.

>> We should provide explicit powers in the Constitution that will enable us to make international contributions in accordance with international law and international common practice.

>> We should situate pacifism and the centrality of the United Nations at the heart of Article 9 as Japan's ideals.


Main points of the keynote statement by Mr. MATSUMOTO

1. The rule of law

>> "The rule of law" means that the will of the people imposes restraints on the power of the state. While we should meet the needs of the times, we should not overstep the bounds of the law in doing so.

2. Justification for the Iraq war under international law

>> The question of whether there was just cause for the Iraq war is at issue, but the proper procedure in terms of the rule of law should be followed.

>> There are various positions regarding the grounds for the war, including the view that it was an invocation of the right of self-defense and the view that it was authorized by Security Council Resolution 1441, but none of these positions can be said to have gained international acceptance.

>> International law currently does not permit nations to exercise the right of self-defense by launching a preemptive attack. Even if this were to be permitted in order to address the new situation represented by nonconventional threats such as terrorism, strict conditions should be imposed.

>> The inspections for weapons of mass destruction should have been continued. We should determine whether there was just cause for the war in Iraq, including the presence or absence of weapons of mass destruction, and hold those who chose war responsible for the outcome.

3. The dispatch of the Self-Defense Forces to Iraq

>> The arguments being put forward on a number of points in the Special Measures Law for Iraq are unreasonable; these include the concept of noncombat areas and the lumping together of the issues of transportation of weapons and ammunition and the use of force.

>> There is a need for debate on such questions as the constitutional status of operations to assist in providing security, which are one of the aims of the Special Measures Law for Iraq.

4. Collective security

>> We should choose the course of trying to approach the ideals set forth in the UN Charter while squarely facing the actual situation of the United Nations.

>> While I do not deny the value of the work that the Self-Defense Forces have done overseas, under the present interpretation of the Constitution it is extremely difficult for them to participate in a broad range of collective security operations, including UN forces, multinational forces, and peacekeeping operations. Thus, the institutional framework should be reformed.

>> There are three ways in which Japan could play an active part in collective security consistent with the rule of law: (a) an interpretation of the Constitution which places collective security operations outside the scope of Article 9; (b) enactment of a Basic Law for Security; (c) revision of the Constitution.

5. The right of collective self-defense

>> There is a need for review of the asymmetry of the Japan-U.S. Security Treaty and the ideal form that burdens assumed under the treaty should take.

>> In my view, one policy option is to establish a security network centered on the Pacific and East Asia while, at the same time, aiming to bring UN-mediated collective security closer to the ideal. In working toward these goals, I think Japan's inability to exercise the right of collective self-defense might hamper its diplomatic efforts.

>> Japan is said to possess the right of collective self-defense under international law but to be unable to exercise it because of constitutional restraints. We should confirm whether we do in fact possess the right of collective self-defense under the Constitution, and what reasoning leads to the conclusion that we cannot exercise it even if we possess it.

>> The right of collective self-defense is an inherent right of sovereign nations.

Main points of questions and comments

OMURA Hideaki (Liberal Democratic Party)

(To Mr. MATSUMOTO)

>> Recognizing the post-Cold War international situation as it affects Japan, we should put in order our basic principles concerning the nation's security and international cooperation and should locate them in the Constitution. What are your views in regard to making explicit provision for the status of the Self-Defense Forces, and for their defense duties and international peace cooperation missions? Also, what is your view of stating explicitly in the Constitution that Japan possesses and can exercise the right of collective self-defense?

(To Mr. NAKATANI)

>> I believe that it is certainly worth considering the idea of changing the government's interpretation regarding the exercise of the right of collective self-defense, after first debating the question in the Diet with a time limit and in parallel with the debate on constitutional revision. Do you agree?

>MATSUMOTO Takeaki (Democratic Party of Japan and Club of Independents)

>> In my view, it is desirable to make explicit provision in the Constitution for the right of self-defense and the Self-Defense Forces, and for Japan's active participation in international cooperation and collective security. With regard to recognizing the exercise of the right of collective self-defense, I believe there is political demand for this in order to facilitate the creation of a security network in the Asia-Pacific region, but even in that case, I think we should make explicit legal provision.

>NAKATANI Gen (Liberal Democratic Party)

>> Because the exercise of the right of collective self-defense is an important matter of state, it should be dealt with by revising the Constitution, not by a change of interpretation.


TAKEMASA Koichi (Democratic Party of Japan and Club of Independents)

(To Mr. NAKATANI)

>> It is my understanding that there are three mainstays of Japan's foreign relations and defense under a policy of international cooperation, namely, our alliance with the United States, the centrality of the United Nations, and regional cooperation. But it seems to me that in sending the Self-Defense Forces to Iraq or reviewing the Three Principles on Arms Exports, for example, we are acting as though our alliance with the United States were the be-all and end-all of our foreign policy. Would you like to comment?

(To Mr. MATSUMOTO)

>> In my view, the problem with interpretation of the Constitution is that it is done by the Cabinet Legislation Bureau, which is an arm of the executive branch of government. I would like to hear your views on the need for a Constitutional Court.

>> In my view, the Anti-Terrorism Special Measures Law and the Special Measures Law for Iraq do not provide accountability, since the Diet's approval of measures taken by Self-Defense Force units or other relevant government agencies is required only after the fact. I would like to hear your views on the ideal form of civilian control.

>> What are your views on reform of the United Nations?

>> What are your views on recognizing the exercise of the right of collective self-defense by means of constitutional interpretation?

>NAKATANI Gen (Liberal Democratic Party)

>> It has always been said that the Japan-U.S. Security Treaty will remain pivotal to Japan's defense policy until the United Nations becomes fully functional. Thus, while endeavoring to achieve a UN-centered structure, in practice Japan supports the United States. But I believe that the principle of the centrality of the United Nations is crucial if Japan is to achieve self-reliance in the future.

>MATSUMOTO Takeaki (Democratic Party of Japan and Club of Independents)

>> The Constitution should be interpreted by a Constitutional Court, not by the Cabinet Legislation Bureau. We should make explicit provision in the Constitution for a Constitutional Court.

>> The Diet's approval should be required before the fact, since it is necessary to place the use of military force under the control of the Diet as the representatives of the people.

>> Japan should secure a voice in the United Nations and the international community that is commensurate with its share of costs and other contributions, and it should pursue reform of the United Nations, both for Japan's own sake and for the sake of the international community. We should also discuss gaining a permanent seat on the Security Council.

>> Even if Japan is permitted to exercise the right of collective self-defense, it should be within the limits of what is necessary for its own self-defense.


FUKUSHIMA Yutaka (New Komeito)

>> In thinking about constitutional issues, the question is what we should do to ensure Japan's security in the future.

>> Japan has a negative legacy from war. The policies that led to its being called a "unique nation" were adopted for a reason.

(To Mr. NAKATANI)

>> In your view, was Article 9 imposed by the United States, or did the Japanese public and politicians themselves see it at the time as a precondition for acceptance in Asia? Also, isn't it true that we are still in the same circumstances today?

>> Do you think that we should take steps to enable Japan to exercise the right of collective self-defense?

(To Mr. MATSUMOTO)

>> You suggested that being unable to exercise the right of collective self-defense is hampering Japan diplomatically in connection with forming a security network centered on East Asia. Do you think that we should recognize the exercise of the right of collective self-defense?

>> I would argue that we do not, in fact, have many options in regard to security in East Asia, as our bilateral relationships with the United States and China are the axes of security in the region; do you agree? In the event of a military emergency in East Asia, can Japan exercise the right of collective self-defense?

>NAKATANI Gen (Liberal Democratic Party)

>> At the end of World War II, in view of the war weariness of the Japanese people themselves, together with Chinese and Korean sentiments toward Japan, the Japanese public and their leaders decided that renouncing war was a condition of acceptance in Asia.

>> There is no need for Japan to cooperate in the wars of other nations, but we should establish clear standards so that Japan can reliably do what is necessary to defend itself and to take part in UN-centered operations for world peace and stability.

>MATSUMOTO Takeaki (Democratic Party of Japan and Club of Independents)

>> While our relationship with the United States is important to our security, there is also the question of what kind of treaty to conclude with our neighbors in Asia in order to secure peace. A one-sided agreement like the Japan-U.S. Security Treaty would be unthinkable, but recognizing the exercise of the right of collective self-defense for the purpose of Japan's own self-defense is a possibility.

>> While it is true that we do not have many options under present circumstances, I suggest that a variety of options present themselves when we adopt a time frame of the next fifty to one hundred years.


YAMAGUCHI Tomio (Japanese Communist Party)

>> Sending the Self-Defense Forces to occupied Iraq is a violation of Article 9 and international law. They should be withdrawn.

(To Mr. NAKATANI)

>> You stated that the government's interpretation has reduced the Constitution to a mere formality, but do you mean that the government's interpretation up till now has been in error?

>> What are your views on the United States' involvement in the postwar rearmament of Japan?

>> You say that dispatching the Self-Defense Forces to Iraq does not constitute an exercise of "the right of belligerency under international law," but what do you mean by "international law"?

>> Under international humanitarian law, taking part in an occupation government means becoming a party to the conflict. Doesn't the present dispatch of the SDF to Iraq constitute taking part in the occupation government of Iraq?

(To Mr. MATSUMOTO)

>> I believe that the right of collective self-defense is not recognized under the Constitution. Also, there are many militarily nonaligned nations in the world; how do you view this worldwide trend?

>NAKATANI Gen (Liberal Democratic Party)

>> I did not mean that the government interpretation was in error.

>> Against the backdrop of the intensifying Cold War, the United States intended Japan, as the front line of defense, to put in place an adequate structure.

>> By "international law" in the phrase "the right of belligerency under international law," I was referring to the UN Charter and international customary practice.

>> There are a number of UN Security Council resolutions that provide the authority for sending the Self-Defense Forces to Iraq: Resolutions 678, 687, and 1441, and also 1483 which deals with postwar reconstruction.

>MATSUMOTO Takeaki (Democratic Party of Japan and Club of Independents)

>> Given the present situation in which Japan is placed, shouldn't we consider the right of collective self-defense as one option?


DOI Takako (Social Democratic Party)

>> I am not against changing the Constitution for the better; after all, it is not an immutable and eternal code. But it is difficult to change it for the better as long as a basic premise remains unrecognized, namely, that when reality becomes divorced from the Constitution, it is important to bring reality closer to the rule of law.

>> With regard to revision of the Constitution, since Article 96 calls for a referendum on constitutional amendments, first of all, it is important for the Diet to have the public's trust as a forum of debate.

(To Mr. NAKATANI)

>> In your statement, you began by rating highly the significance of Article 9 and the role it has played, but then you concluded that we should make explicit provision for the existence and role of the Self-Defense Forces in a new Constitution. Isn't this a contradiction?

>> The very fact that we have Article 9 gives meaning to Japan's pursuit of pacifism and the centrality of the United Nations. You concluded that we should situate these principles "at the heart of Article 9," but I think that, conversely, we should strive to realize many more principles while placing Article 9 at their heart. Would you like to comment?

>> The government has said that there is a difference in meaning between "personnel dispatch" (haken) and "troop deployment" (hahei). Is there any point in making this distinction when the two terms refer to essentially the same action?

>NAKATANI Gen (Liberal Democratic Party)

>> The ideals of pacifism and the centrality of the United Nations are important, and the spirit of Article 9 has been put into practice over the years. However, times have changed, and it has become necessary for Japan to take part in peace operations to help ensure the stability of the international situation, which is vital to the lives of the Japanese people.

>> I think that Japan should play a part in creating the global rules necessary for people to live securely and for the maintenance of international justice and order.

>> Although "deployment" and "dispatch" refer to the same action, the difference lies in the intentions of the nation sending a force. As I see it, "deployment" is intended as a punitive action against another nation; if the purpose is humanitarian aid or a similar mission, the correct term is "dispatch."

Main points of comments by members in the free discussion (in order of presentation)

KONO Taro (Liberal Democratic Party)

>> In keeping with the changing times, we should discuss such issues as the ideal form of Article 9, the right of collective self-defense, and the question of collective security, and we should reflect the outcome of this debate in the Constitution. Since there is, as yet, no law governing the procedure for constitutional revision, for the present we should handle the situation by enacting a basic law governing these matters.

>> Japanese and U.S. interests in the Middle East do not necessarily coincide. We should carry on a concrete debate before the public to determine, from the viewpoint of Japan's national interest, which side of any future conflict we should support.


TOKAI Kisaburo (Liberal Democratic Party)

>> We should first discuss our vision for the nation, and if the Constitution is not consistent with this vision, we should change the Constitution. The legislative branch has a responsibility to discuss Japan's future course and make proposals to the people, including constitutional amendments.

>> The right of collective self-defense is recognized by the UN Charter as an inherent right of nations, and we should therefore discuss the extent to which Japan can exercise this right in order to play a role in the international community.

>> In connection with the dispatch of the Self-Defense Forces to Iraq, we should bring the criteria for weapons use into line with international standards so that the SDF can provide humanitarian assistance and ensure their own safety, among other reasons. In the future, we should ultimately discuss the ideal form of the Constitution, after first considering how to reconcile international cooperation and pacifism.


ITO Kosuke (Liberal Democratic Party)

>> The terrorist attacks on the United States in September 2001 were described as "a new kind of war." The Constitution must address new situations of this kind.

>> Since we are sending the Self-Defense Forces to Iraq, I feel that there is a very real need to consolidate a proper legal basis for ensuring their safety, among other concerns.

>> We should provide Japan with the ability to exercise the right of collective self-defense, so that it will have an equal voice vis-à-vis the United States and will be able to conclude equal security treaties with other nations.


YAMAGUCHI Tomio (Japanese Communist Party)

>> The Self-Defense Forces should not be dispatched to Iraq because: (a) under international law, the American use of force constitutes an illegal war not authorized by the UN Charter, and it is also a war without cause since the weapons of mass destruction that were its direct justification have not been found; (b) under the Constitution, the deployment contravenes Article 9's nonrecognition of the right of belligerency and prohibition of the use of force.

>> The right of collective self-defense is recognized in Article 51 of the UN Charter on an exceptional basis, that is, only until the United Nations takes the necessary measures. Under Article 9, Japan cannot possess the right of collective self-defense.

>> Over the years, Article 9 has shown itself to be very powerful. Instead of adapting it to the realities, we should bring the realities back into line with the Constitution.


TANAKA Makiko (Democratic Party of Japan and Club of Independents)

>> The reconstruction of Iraq should be headed by the United Nations. We should take steps without delay to enable Japan to carry out true humanitarian reconstruction assistance.

>> The Japan-U.S. Security Treaty and Status of Forces Agreement have the objective of security in the Far East. However, with actions based on these agreements now extending all the way to the Middle East, the Far East clause no longer has any substance. Before debating revision of the Constitution, we should conduct a debate on the Security Treaty and Status of Forces Agreement, a subject which we have been neglecting for some time.


DOI Takako (Social Democratic Party)

>> We should be aware that even in the Liberal Democratic Party there are Diet members who wonder if the dispatch of the Self-Defense Forces to Iraq is unconstitutional.

>> The government keeps changing its interpretation of the Constitution with regard to the Self-Defense Forces, and Prime Minister KOIZUMI has yet to give an intelligible and convincing explanation to the public. For example, he attempted to explain the basic plan under the Special Measures Law for Iraq by quoting just one part of the Preamble.

>> In light of public opinion, since the majority does not want to change Article 9, we should correct the realities that have become distorted. If constitutional amendments are forced through, our constitutionalist system will break down.


MATSUMOTO Takeaki (Democratic Party of Japan and Club of Independents)

>> The right of collective self-defense is a right that exists to deal with imminent and unlawful situations; it was not granted for the first time by the UN Charter, but is an inherent right of nations. However, this right of self-defense should be exercised with restraint.

>> The Japan-U.S. Security Treaty contains a Far East clause because the treaty refers to the area of self-defense. Thus, it is not appropriate to use the treaty to justify sending the Self-Defense Forces to Iraq.

>> While recognizing the normative nature of the Constitution, the rule of law also allows it to be revised. In undertaking to revise the Constitution, however, we must not forget that Article 9 has elements of a braking function.


KONO Taro (Liberal Democratic Party)

(In connection with Mr. YAMAGUCHI's comment)

>> The right of collective self-defense stipulated in Article 51 of the UN Charter is not an exceptional right. It is an inherent right of nations.

(Comment)

>> Japan is almost entirely dependent on the Middle East for its oil supply. We should discuss thoroughly whether home defense is enough, and we should explain our conclusions in a way that is readily understandable to the great majority of the people.

>YAMAGUCHI Tomio (Japanese Communist Party)

>> Article 51 of the UN Charter should be construed as an exception, in part because of the historical evidence. The article was not present in the original draft of the Charter, but was subsequently added by the United States to provide a basis for military alliances.


TAKEMASA Koichi (Democratic Party of Japan and Club of Independents)

>> The government is not fulfilling its responsibility to explain the dispatch of the Self-Defense Forces to Iraq.

>> The lack of importance attached to the United Nations by the government is evident in the fact that it has reduced its budgetary allocation for winning a nonpermanent seat on the Security Council.

>> The Democratic Party of Japan is considering adopting an interpretation of the Constitution whereby collective security would be recognized on the basis of the principles of international cooperation set forth in the Preamble, as a separate case from the minimum use of force necessary for self-defense that is laid down in Article 9.


NAKATANI Gen (Liberal Democratic Party)

>> Based on the friendship and trust that exist between them as allies, Japan and the United States cooperate in a broader range of activities than those specified by the bilateral Security Treaty.

>> What the United States fears is the risk of collaboration between international terrorist groups and states like Iraq or Iran. Given the fact that a decline of American influence would lead to a loss of stability around the world, the maintenance of global security is a problem that must concern Japan too.


MATSUMOTO Takeaki (Democratic Party of Japan and Club of Independents)

>> In terms of the rule of law, it is inappropriate to make the Japan-U.S. Security Treaty the basis for sending the Self-Defense Forces to Iraq. We should set in order the question of policy decisions and the normative nature of law.

>> I understand that the Self-Defense Forces will not have an escort provided by the Dutch army, but it is regrettable if the reason for this is our insistence that they be "self-contained." Before we sent our personnel, we should have improved the laws affecting their security.

>> The right of collective self-defense is also recognized by the International Court of Justice as a right under international customary law.


OMURA Hideaki (Liberal Democratic Party)

>> I hope that this Commission will move in the direction of making explicit provision for the Self-Defense Forces in the Constitution. It is not appropriate that we cannot exercise the right of collective self-defense, which is a natural right, and which is also a necessity if we are to have the mobility to carry out overseas peace cooperation missions.

>> If it is going to take time to revise the Constitution, one possible approach would be to change the government interpretation for a fixed period while the revision process goes ahead, and to enact a "Basic Law on Security" as a sign of the changed interpretation.