일본의 집단적 자위권 행사와 평화헌법의 위반 문제

Abstract

This article consists four parts : 1) Right of collective self-defense in international law, 2) Its exercise &review concerning Violation possibility of Preamble and Aricle 9 of Japanese constitution(1947), 3) TheGuidelines for U.S.-Japan Defense Cooperation and Its Legal issues concerning Japanese Pacifist Constitution, 4)Evaluation. In as much as the essence of the exercise of the right of self-defense is use of armed force, which mayendanger the international peace and security, that should be subject to some limitations. For an exercise ofarmed force to be justified as self-defense, It should meet, in particular, two most important requirements:necessity and proportionality. On July 1,2014,on the 60th anniversary of establishment of Japan’s Self-defense Forces, Shinzo Abe decidedon the reinterpretation of its constitution to allow its collective self-defense through a cabinet council decision. The current japanese constitution(1947) which is commonly called the pacifist constitution denies the Japanesepeople national forces, the use of force collective self-defense alongside in principle. According the initialinterpretation of constitution by the Japanese government, even a war for ‘individual’ self-defense wasrenounced to dispell the disgrace of a warlike country as confirmed in the National Assembly records. Article 9Clause 2 does not recognize any armaments and right of belligerency, thereby a war to exercise self-defenseand the right of belligerency are renounced. Two Legal instruments for the exercise of the right of self-defense in Japan are The Guidelines forU.S.-Japan Defense Cooperation(1997) and the Situations in Areas surrounding Japan Law(1997) based on thenew revised guidelines in 1997. The defense guidelines set forth general roles for the U.S. military and theSelf- Defense Forces to engage in joint operations. They mainly forcus on the defense of Japan andemergencies in the nearby region, presumably including the Korean Peninsula,though this not stated explicitly. Controversies arose out of its rear area support, which was questioned to be collective self-defense and thusunconstitutional. Japan and the United States released interim report quite recently (October 8, 2014) on revising their bilateraldefense cooperation guidelins by the year’s end, in which they call for more global military cooperationbetween two countries that will benefit the Asia-pacific region and beyond.” The new interim report emphasizethe “global nature” of the Japan-U.S. military alliance. But this means expansion of military role of JapaneseSDF. which could be unconstitutional against the pacifist constitution. It implies that Japan pushes for collectiveself-defense by circumventing the amendment of the Constitution which even Japanese people oppose.