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Can the Nation's Survival Be Entrusted to this Administration?
The Right of Collective Self-defense—Problems with Changing Constitutional Interpretation

Yasuo Hasebe
Professor, Faculty of Law, Waseda University

Prohibiting the right of collective self-defense

The Japanese government has taken the position that Article 9 of the Constitution does not forbid Japan from retaining and using the minimum required force for its defense. The right of self-defense as prescribed in Article 51 of the Charter of the United Nations includes the ability to exercise one's right to individual self-defense in order to defend one's own country. On the other hand, the right of collective self-defense, that is the use of force in response to an attack on a foreign country closely allied to Japan, is not taken as being permitted under the Constitution, because it would be in excess of the minimum force required to defend Japan. To give further context, concerns about this concept of the right of collective self-defense have increased due to its utilization to justify the unreasonable use of military force, such as when the Soviets invaded Czechoslovakia and the US attacked Vietnam.

Some say it is odd that a right recognized by the Charter of the United Nations are denied by Japan's Constitution, but there is nothing particularly strange about it. To give a similar example, even though all adults have the right to smoke, it is quite reasonable for me to give up for health reasons. Also, the efficacy of the Constitution as a domestic law outweighs that of treaties, and the Charter of the United Nations is a treaty of sorts. Asserting that the prohibition of something under the Constitution is strange based on the Charter of the United Nations is a back-to-front argument.

In previous responses in the Diet and other occasions, the government has claimed that not only is exercising the right of collective self-defense forbidden by the Constitution, but such a constitutional interpretation cannot be changed and so executing the right of collective self-defense would require an appeal for constitutional amendment.

Movement toward authorizing use

The present Abe administration is trying to change this constitutional interpretation, a move that is seriously flawed. Firstly, such a change would undermine constitutionalism, under which political power is limited by the Constitution. The Constitution should be preserved in the medium- and long-term as it restricts the authority of any government, whatever its political composition, but this move is trying to change its meaning according to the ideas of the people in power at a given moment.

Although authorizing the use of the right of collective self-defense could possibly lead to the strengthening of Japan's alliance with the US, it is not clear whether it would be in Japan's national interest. Rather than saying, “we cannot cooperate because we cannot use the right of collective self-defense,” it would be more seriously damaging to Japan's alliance with the US to say, “we can use the right of collective self-defense but our government chooses not to cooperate.” In other words, rather than taking a step toward the use of the right of collective self-defense, Japan would find itself with no choice but to go along with American military operations, however unreasonable they seem from a Japanese perspective. Also, as seen in the Iraq War and the military attacks on Libya, the US is a nation that does not necessarily act in accord with the principles of international law.

The delusion of the argument for restricted authorization

Some say that attaching conditions to the use of the right of collective self-defense could be a good thing, and that it would not damage Japan's security. But, first of all, this assertion is not grounds for turning what is probably unconstitutional into something constitutional. On delicate issues where it is difficult to judge whether something is constitutional or not, attaching conditions could lead to a ruling of it being just barely constitutional. This is the view that has been expressed by the government in regard to official visits to Yasukuni Shrine. However, it is impossible to understand assertions that attaching conditions to something deemed clearly unconstitutional would make it constitutional.

On the other hand, whether or not a condition is a meaningful and effective restriction depends on the content of that condition. For example, receiving aid requests from victimized countries, acquiring consent from third-party countries to pass through their territorial waters or airspace, using force to the minimum required degree to repel an attack, and so on, are of course requirements under international law and do not merit being specially called “restrictions.”

Also, the prime minister deciding the rights and wrongs of using force or seeking approval from the Diet to dispatch the Japan Self-Defense Force is already a requirement for defensive mobilization under the current Self-Defense Forces Act, that is, exercising the right of individual self-defense, and it would be unreasonable if it is removed on the grounds that it is the exercise of the right of collective self-defense.

Aside from the obvious conditions of international law, even the unique conditions attached to Japan's exercise of the right of collective self-defense would not form a restraint required under the Constitution. The people who assert that the use of the right of collective self-defense should be allowed are the same people who have said that it is idiosyncratic for rights recognized under international law to be restricted by the Constitution. Surely they cannot say now that the use of the right of collective self-defense has been restricted by the Constitution. Or to put it another way, even a “condition” is merely something based on the present government's political judgment and can easily be removed at the discretion of the government. So it would probably not act as a restraint. But then, such a difference may be of little significance to those who say even the interpretation of the Constitution can be changed by the government at a given time.

The question is this: should we continue to indefinitely entrust such people with decisions on issues that concern the very survival of our nation? Can we trust them that much?

Yasuo Hasebe
Professor, Faculty of Law, Waseda University


Professor Hasebe was born in 1956. He graduated from the Faculty of Law, University of Tokyo in 1979. He served as professor at the Faculty of Law, Gakushuin University and at the Faculty of Law, University of Tokyo before taking up his current position in 2014. His previous positions include visiting scholar at the University of London, visiting professor at New York University, vice-president of the International Association of Constitutional Law, and Dean, School of Law, University of Tokyo.

Main research themes: Theoretical basis of constitutionalism; Broadcasting and communications legislation

Main publications in English: “Constitutional Borrowing and Political Theory”, in International Journal of Constitutional Law, Volume 1, Number 2 (2003); “The Rule of Law and its Predicament”, in Ratio Juris, Volume 17, Number 4 (2004); “War Powers”, in Oxford Handbook of Comparative Constitutional Law, eds. Michel Rosenfeld and András Sajó (2012); “Constitutions”, in Routledge Handbook of Constitutional Law, eds. Mark Tushnet, Thomas Fleiner and Cheryl Saunders (2013) (with Cesare Pinelli)