著者

佐藤 潤一

出版者

大阪産業大学

雑誌

大阪産業大学論集. 人文・社会科学編 (ISSN:18825966)

巻号頁・発行日

vol.9, pp.81-106, 2010-06

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In almost all modern states, anti-terror legislation was concerned with domestic public order except for police action by the armed forces. However, after the September 11 terrorist attacks in 2001, the United States and United Kingdom created a permanent anti-terrorist legislation. The UK has had a long history of temporary anti-terror legislation, e.g., the Prevention of Violence (Temporary Provisions) Act 1939, and the Civil Authorities (Special Powers) Act 1922 (Northern Ireland). However the UK recently created permanent legislation. Especially from 2000 to 2008, the UK has created considerable amount of legislation, e.g., the Prevention of Terrorism Act 2005 (c.2), the Terrorism Act 2006 (c.11), and the Counter Terrorism Act 2008. International security experts have pointed out repeatedly in anti-terror legislation that military power is not appropriate. In light of this problem, we must consider that UK has used the derogation clause, Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms, usually called the European Convention of Human Rights (ECHR). I discuss Article 15 case laws of the ECHR, and of the UK domestic courts. From this point of view, Legislation for emergency situation (yuji-hosei) in Japan has the same problem. Many commentators argue that contingency legislation in Japan violates Article 9 of the constitution. In recent years, Japan has transformed the legislation regarding the Japan Self Defense Forces (JSDF). In this context, counter-terrorism measures are gradually shifting from police control to that of the JSDF. The Japanese government seems to be justified with the interference with all the human rights, and to which corresponded the constitution by the "public welfare" stipulated in Article 13 of the constitution. Moreover, could have the "public welfare" provided therein justified the JSDF? On this point, we must consider the derogation clause, Article 4 of the International Covenant of the Civil and Political Rights. The government may create contingency legislation for the purpose of national security, but almost all such legislation would interfere with human rights.