Article 9 of the Japanese Constitution

Article 9 of the Japanese Constitution (日本国憲法第9条, Nihon koku kenpō dai kyū-jō) is a clause in the Constitution of Japan outlawing war as a means to settle international disputes involving the state. The Constitution came into effect on 3 May 1947, following the surrender of Japan in World War II. In its text, the state formally renounces the sovereign right of belligerency and aims at an international peace based on justice and order. The article also states that, to accomplish these aims, armed forces with war potential will not be maintained. The Constitution was imposed by the occupying United States (Supreme Commander for the Allied Powers) in the post–World War II period.[1]

There are the post-occupation U.S. military stationed in Japan under the U.S.-Japan Mutual Cooperation and Security Treaty and Japan Self-Defense Forces (JSDF) which was founded in 1954 as de facto postwar Japanese military. Prime Minister Shinzo Abe approved a reinterpretation which gave more powers to the JSDF in 2014, which was made official in 2015.

Text of the article

The full text of the article in Japanese:[2]

第二章　戦争の放棄

第九条　日本国民は、正義と秩序を基調とする国際平和を誠実に希求し、国権の発動たる戦争と、武力による威嚇又は武力の行使は、国際紛争を解決する手段としては、永久にこれを放棄する。

②　前項の目的を達するため、陸海空軍その他の戦力は、これを保持しない。国の交戦権は、これを認めない。

The official English translation[3] of the article is:

Article 9. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.
In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized.

Overview

Form of national security

On the form of national security, more jurist argue that is one of which world federalism, non-armed neutralism , or by the United Nations, because the constitution expect from its absolute pacifism.[4] But some jurist support local/partial form by the U.S.-Japan Security Treaty and admit the JSDF, that choiced by the government.[5]

Historical background

The failure of the collective security of the League of Nations led to the realization that a universal system of security could only be effective if nations agreed to some limitation of their national sovereignty with regard to their right to belligerency, and if the Security Council which had been a "closed shop" during League of Nations times, would open itself up to UN Members who would cede constitutional powers in favor of collective security. Like the German Article 24, which was incorporated in the post-war German Constitution, and which provides for delegating or limiting sovereign powers in favor of collective security,[6] Article 9 was added to the 1947 constitution during the occupation following the defeat of Japan in the World War II.

The source of the pacifist clause is disputed. According to the Allied Supreme Commander Douglas MacArthur (in statements made at a time when the U.S. was trying to get Japan to re-arm), the provision was suggested by Prime Minister Kijūrō Shidehara,[7] who "wanted it to prohibit any military establishment for Japan—any military establishment whatsoever".[8] Shidehara's perspective was that retention of arms would be "meaningless" for the Japanese in the post-war era, because any substandard post-war military would no longer gain the respect of the people, and would actually cause people to obsess with the subject of rearming Japan.[9] Shidehara admitted to his authorship in his memoirs Gaikō Gojū-Nen (Fifty Years' Diplomacy), published in 1951, where he described how the idea came to him on a train journey to Tokyo; MacArthur himself confirmed Shidehara's authorship on several occasions. However, according to some interpretations, he denied having done so,[10] and the inclusion of Article 9 was mainly brought about by the members of the Government Section of the Supreme Commander for the Allied Powers, especially Charles Kades, one of Douglas MacArthur's closest associates. There is, however, another theory by constitutional scholar Toshiyoshi Miyazawa, which is supported by significant evidence provided by other historians, that the idea came from MacArthur himself and that Shidehara was merely a pawn in his plans.[11] Most recent research, however, has conclusively corroborated Shidehara's authorship.[12]

The House of Representatives amended the Article and added “Aspiring sincerely to an international peace based on justice and order,” to Paragraph 1 and “In order to accomplish the aim of the preceding paragraph,” to Paragraph 2. Hitoshi Ashida made this tenor. SCAP did not object to this amendment. Many scholars think the Government of Japan does not renounce the right (to have power) of self-defence because of this amendment.[nb 1][13][14][15][16]

The article was endorsed by the Imperial Diet of Japan on 3 November 1946. Kades later made statements, like MacArthur at a time when the U.S. was trying to get Japan to rearm, that suggested he had initially rejected the proposed language that prohibited Japan's use of force "for its own security", believing that self-preservation was the right of every nation.[17] The historical record, however, casts doubt on this revisionist interpretation. [18]

Interpretation
Sailors of the Japanese Maritime Self-Defense Force, one of the de facto military forces ostensibly permitted under Article 9

Soon after the adoption of the Constitution of Japan on 3 May 1947, the Chinese Civil War ended in victory for the Chinese Communist Party in 1949 and the establishment of the People's Republic of China (PRC). As a consequence, the United States was left without the Republic of China (ROC) on Mainland China as a military ally against communism in the Pacific. There was a desire on the part of the United States occupation forces for Japan to take a more active military role in the struggle against communism during the Cold War.[19]

If Article 9 is looked upon as a motion to abolish war as an institution—as envisaged in the 1961 McCloy–Zorin Accords—then the Korean crisis was the first opportunity for another country to second the Japanese motion and embark on the transition toward a true system of collective security under the United Nations. In fact, however, in 1950, following the outbreak of the Korean War, the U.S. 24th Infantry Division was pulled out of Japan and sent to fight on the front lines in Korea, and so Japan was left without any armed protection. MacArthur ordered the creation of a 75,000-strong National Police Reserve (警察予備隊, Keisatsu yobitai) to maintain order in Japan and repel any possible invasion from outside. The NPR was organized by United States Army Col. Frank Kowalski (later a U.S. congressman) using Army surplus equipment. To avoid possible constitutional violations, military items were given civilian names: tanks, for instance, were named "special vehicles".[20] Shigesaburo Suzuki, a leader of the Japan Socialist Party, brought suit in the Supreme Court of Japan to have the NPR declared unconstitutional: however, his case was dismissed by the Grand Bench for lack of relevance.[21]

On 1 August 1952, a new National Safety Agency (保安庁, Hoancho) was formed to supervise the NPR and its maritime component. The new agency was directly headed by Prime Minister Shigeru Yoshida. Yoshida supported its constitutionality: although he stated in a 1952 Diet committee session that "to maintain war potential, even for the purpose of self-defense, [would] necessitate revision of the Constitution". He later responded to the JSP's constitutionality claims by stating that the NSF had no true war potential in the modern era.[20] In 1954, the National Safety Agency became the Japan Defense Agency (now Ministry of Defense), and the National Police Reserve became the Japan Self-Defense Forces (自衛隊, Jieitai).

In practice, the Japan Self-Defense Forces (JSDF) are very well equipped and the maritime forces are considered to be stronger than the navies of some of Japan's neighbors. The Supreme Court of Japan has reinforced the constitutionality of armed self-defense in several major rulings, most notably the Sunakawa Case of 1959, which upheld the legality of the then-current U.S.–Japan Security Treaty.

2014 reinterpretation
Main articles: Article 9 of the Japanese Constitution Referendum and 2015 Japanese military legislation
See also: Article 96 of the Japanese Constitution

In July 2014, Prime Minister Shinzo Abe (coalition government of the Liberal Democratic and Komeito Party) approved a reinterpretation of Article 9. This reinterpretation allows Japan to exercise the right of "collective self-defense"[22] in some instances and to engage in military action if one of its allies were to be attacked.[23] The Japanese National Diet made the reinterpretation official in September 2015 by enacting a series of laws allowing the Japan Self-Defense Forces to provide material support to allies engaged in combat internationally. The stated justification was that failing to defend or support an ally would weaken alliances and endanger Japan.[24]

It is considered by some parties as illegitimate since the Prime Minister circumvented the constitutional amendment procedure, dictating a radical change to the meaning of fundamental principles in the Constitution by way of Cabinet fiat without Diet debate, vote, or public approval.[25] International reaction to this move was mixed. China expressed a negative view of this reinterpretation, while the US, the Philippines, Vietnam, and Indonesia reacted positively. The government of South Korea did not oppose the reinterpretation, but noted that it would not approve of JSDF operations in and around the Korean peninsula without its request or approval, and called upon Japan to act in a way that would win the trust of neighboring states.

In May 2017, Japanese Prime Minister Abe set a 2020 deadline for revising Article 9, which would legitimize the JSDF in the Constitution.[26][27][28][29] Abe retired in 2020 due to health problems without revising Article 9.[30]

Debate
A demonstration in favor of maintaining Article 9, in front of Tabata Station, in Tokyo (2012)

Article 9 of the Constitution of Japan is best understood as having three distinct elements: (1) a provision that prohibits the use of force (paragraph one); (2) a provision that prohibits the maintenance of armed forces or "other war potential" (paragraph two, clause one); and (3) a denial of the rights of belligerency. [31] It is helpful to keep these distinct elements in mind in considering the operation and effect of Article 9. Paragraph one, which prohibits the use of force has been highly effective in constraining Japanese foreign policy, with the result that Japan has not used force or been engaged in armed conflict since the promulgation of the Constitution. During the Gulf War of 1991, the government of Japan sought to join the U.S. coalition formed to drive Iraq out of Kuwait, but was informed by the Director of the Cabinet Legislation Bureau that doing so would constitute a use of force in violation of Article 9 paragraph one - so Japan was limited to providing financial assistance. [32]

The second element of Article 9, which prohibits Japan from maintaining an army, navy or air force, has been highly controversial, and arguably less effective in shaping policy. From one perspective, one implication of the provision is that in strictly legal terms, the Japan Self-Defense Forces are not land, sea or air forces, but are extensions of the national police force. This has had broad implications for foreign, security and defense policy. According to the Japanese government, "'war potential' in paragraph two means force exceeding a minimum level necessary for self-defense. Anything at or below that level does not constitute war potential."[33] Apparently when the JSDF was created, "since the capability of the JSDF was inadequate to sustain a modern war, it was not war potential".[34] Seemingly, the Japanese government has looked for loopholes in the wording of the peace clause and the "constitutionality of the Japanese military has been challenged numerous times".[35] Some Japanese people believe that Japan should be truly pacifist and claim that the JSDF is unconstitutional. The Supreme Court, however, has ruled that it is within the nation's right to have the capacity to defend itself. Scholars have also discussed "constitutional transformation ... [which] occurs when a constitutional provision has lost its effectiveness but has been replaced by a new meaning". The use of private military companies is also ambiguous in nature and subjected to various interpretations. [36]

The Liberal Democratic Party has advocated changing the context of Article 9 since 1955, when Article 9 was interpreted as renouncing the use of warfare in international disputes but not the internal use of force for the purpose of maintaining law and order. However, the LDP's longtime coalition partner Komeito have long opposed changing the context of Article 9. The LDP have never had the necessary supermajority (two-thirds of votes in both Houses) in the National Diet to change the Constitution, despite it having a supermajority with Komeito from 2005 to 2009 and from 2012 to the present day.

The opposing party, the Constitutional Democratic Party of Japan, tends to concur with the LDP's interpretation. At the same time, both parties have advocated the revision of Article 9 by adding an extra clause explicitly authorizing the use of force for the purpose of self-defense against aggression directed against the Japanese nation. The Japan Socialist Party, on the other hand, had considered the JSDF as unconstitutional and advocated the full implementation of Article 9 through the demilitarization of Japan. When the party joined with the LDP to form a coalition government, it reversed its position and recognized the JSDF as a structure that was constitutional. The Japanese Communist Party considers the JSDF unconstitutional and has called for reorganization of Japanese defense policy to feature an armed militia.

Nobori flags held by a group of pro-Article 9 demonstrators and their police escort, near Ginza (2014)

At present, the government interprets Article 9 to mean that Japan cannot possess offensive military weapons; this has been interpreted to mean that Japan cannot have ICBMs, all types of weapons of mass destruction (i.e. nuclear weapons), aircraft carriers or bomber fleets. This has not inhibited the deployment of submarines, AEGIS-equipped destroyers, helicopter carriers (including a plan to have at least two helicopter carriers operate V/STOL fighters), fighter aircraft, and a plan for land-attack cruise missiles and unmanned aerial vehicles,[37] all of which have substantial, and multi-mission, combat potential. Offensive cyberwarfare operations has been ambiguous in nature and subjected to various interpretations.[38][39][40]

Since the late 1990s, Article 9 has been the central feature of a dispute over the ability of Japan to undertake multilateral military commitments overseas. During the late 1980s, increases in government appropriations for the JSDF averaged more than 5% per year. By 1990 Japan was ranked third, behind the then-Soviet Union and the United States, in total defense expenditures, and the United States urged Japan to assume a larger share of the burden of defense of the western Pacific. (Japan has a guideline of a limit of 1% of GDP on defense spending; however, Japan defines a number of activities as non-defense spending.) Given these circumstances, some have viewed Article 9 as increasingly irrelevant. It has remained, however, an important brake on the growth of Japan's military capabilities. Despite the fading of bitter wartime memories, the general public, according to opinion polls,[41] continued to show strong support for this constitutional provision.

The different views can be clearly organized into four categories:

  • The current pacifists believe in maintaining Article 9 and claim the JSDF is unconstitutional, and would like to detach Japan from international wars. A stricter interpretation could also include peacekeeping operations.
  • The mercantilists have divided opinions about Article 9 although the interpretation is broadened to include the JSDF, and believe that the JSDF's role should be retained to activities related to the United Nations and for non-combat purposes. They advocate minimal defense spending, and emphasize economic growth.
  • The normalists "call for incremental armament for national defense and accept using military force to maintain international peace and security". They support the revision of Article 9 to include a clause explaining the existence and function of the JSDF.
  • The nationalists assert that Japan should remilitarize and build nuclear capabilities in order to regain pride and independence. They also advocate revision or, in extreme cases, the repeal and abolishment of Article 9 to promote renewed rearmament.

Evidently, opinions range from one extreme of pacifism, to the other extreme of nationalism and complete remilitarization.[42] The majority of Japanese citizens approve the spirit of Article 9 and consider it personally important.[43][44] But since the 1990s, there has been a shift away from a stance that would tolerate no alteration of the article to allowing a revision that would resolve the discord between the JSDF and Article 9.[45][46] Additionally, quite a few citizens consider that Japan should allow itself to commit the Japan Self-Defense Forces to collective defense efforts, like those agreed to on the UN Security Council in the Gulf War, for instance.[47] Japan's ability to "engage in collective defense" has been argued.[48] The involvement of Japan in the Gulf War of 1990, or lack of involvement, has provoked significant criticism. Despite U.S. pressure on Japan to assist America in Iraq, Japan limited their involvement in the war to financial contribution primarily because of domestic opposition to the deployment of troops.[49] As a result of the painfully ardent disapproval from the U.S. during the Gulf War, Japan was quick to act after the September 11 attacks in 2001. It was clear that "the 11 September attacks led to increased U.S. demands for Japanese security cooperation".[50] On October 29, 2001, the Anti-Terrorism Special Measures Law was passed, which "further broadened the definition of Japan's self-defense".[51] The law allowed Japan to support the U.S. military on foreign territory. This law provoked "citizen groups [to] file lawsuits against the Japanese government in order to stop the dispatch of JSDF troops to Iraq and to confirm the unconstitutionality of such a dispatch",[52] though the troops sent to Iraq were not sent for combat but for humanitarian aid. Japan has actively built U.S.-Japan relations precisely because of Article 9 and Japan's inability to engage in an offensive war. It has been debated that, "when [Koizumi] declared support for the U.S.-led war on Iraq in March 2003, and when he sent Japanese forces to aid the occupation in January 2004, it was not Iraq that was in the Japanese sights so much as North Korea".[53] Japan's unstable relations with North Korea, as well as other neighboring Asian countries has forced Japan to batter and bend Article 9 to "permit an increasingly expansive interpretation" of the constitution in the hopes of guaranteeing U.S. support in these relations.[54]

Former Prime Minister Nobusuke Kishi said in a speech, he called for abolishing Article 9, saying if Japan were to become a: "respectable member (of) the community of nations it would first have to revise its constitution and rearm: If Japan is alone in renouncing war ... she will not be able to prevent others from invading her land. If, on the other hand, Japan could defend herself, there would be no further need of keeping United States garrison forces in Japan. ... Japan should be strong enough to defend herself."[55]

In May 2007, the then Prime Minister of Japan Shinzo Abe (Nobusuke Kishi's grandson) marked the 60th anniversary of the Japanese Constitution by calling for a "bold review" of the document to allow the country to take a larger role in global security and foster a revival of national pride.[56] Aside from Abe's Liberal Democratic Party, as of 2012, the Japan Restoration Party, Democratic Party of Japan, People's New Party, and Your Party support a constitutional amendment to reduce or abolish restrictions imposed by Article 9.[57]

On 7 September 2018, candidate in the 2018 LDP Leadership Election, Shigeru Ishiba criticized Shinzo Abe for shifting his stance on Article 9 revision. Ishiba advocates the removal of Paragraph 2 of Article 9 which denies Japan's "right of belligerency." This is based on a LDP draft of changes for the law in 2012. In May 2017, Abe changed his stance to keep both the first and second paragraph of article 9 while adding a reference to the Japan Self-Defense Forces.[58]

In January 2019, then-Prime Minister Shinzo Abe said in the National Diet that long-range cruise missiles are not banned under Article 9 of the Constitution.[59]

On 21 October 2019 a senior U.S. military officer in Tokyo said that "Japan’s avoidance of offensive weaponry under its constitution is no longer acceptable." The officer stated that Japan needs to rethink its rejection of offensive weapons and that the government should discuss it with the public. The officer said that the government of Japan should inform the public about the threats of China and North Korea.[60]

A constitutional amendment would require a two-thirds majority and pass referendum to effect it (as per Article 96 of the Japanese Constitution). Despite numerous attempts by the LDP to change Article 9, they have never been able to achieve the large majority required, as revision is opposed by a number of Japanese parties including the DPJ and the Japanese Communist Party.

International comparisons

In the Italian Constitution Article 11 is similar to the Japanese analogue, but the use of military forces is permitted for self-defense (articles 52 and 78) and also for peace-keeping purposes, if agreed with international organizations:

Italian:

L'Italia ripudia la guerra come strumento di offesa alla libertà degli altri popoli e come mezzo di risoluzione delle controversie internazionali; consente, in condizioni di parità con gli altri Stati, alle limitazioni di sovranità necessarie ad un ordinamento che assicuri la pace e la giustizia fra le Nazioni; promuove e favorisce le organizzazioni internazionali rivolte a tale scopo.

English translation:[61]

Italy repudiates war as an instrument offending the liberty of the peoples and as a means for settling international disputes; it agrees to limitations of sovereignty where they are necessary to allow for a legal system of peace and justice between nations, provided the principle of reciprocity is guaranteed; it promotes and encourages international organizations furthering such ends.

The Article 12 of the Constitution of Costa Rica enacted in 1949 establishes:

Se proscribe el Ejército como institución permanente. Para la vigilancia y conservación del orden público, habrá las fuerzas de policía necesarias. Sólo por convenio continental o para la defensa nacional podrán organizarse fuerzas militares; unas y otras estarán siempre subordinadas al poder civil; no podrán deliberar, ni hacer manifestaciones o declaraciones en forma individual o colectiva.

English translation:[62]

The Army as a permanent institution is abolished. There shall be the necessary police forces for surveillance and the preservation of the public order. Military forces may only be organized under a continental agreement or for the national defense; in either case, they shall always be subordinate to the civil power: they may not deliberate or make statements or representations individually or collectively.

The German Constitution emphasizes the obligations of International Law as being part of the federal law and taking precedence above subconstitutional law - although not above constitutional law (Art. 25 GG[63]).

It also forbids international acts of aggression, including offensive wars, stating in Article 26, Section 1:

Handlungen, die geeignet sind und in der Absicht vorgenommen werden, das friedliche Zusammenleben der Völker zu stören, insbesondere die Führung eines Angriffskrieges vorzubereiten, sind verfassungswidrig. Sie sind unter Strafe zu stellen.

English Translation:

Acts tending to and undertaken with intent to disturb the peaceful relations between nations, especially to prepare for a war of aggression, shall be unconstitutional. They shall be criminalised.

Article 5 of the South Korean constitution, last amended in 1986, states:

① 대한민국은 국제평화의 유지에 노력하고 침략적 전쟁을 부인한다.
② 국군은 국가의 안전보장과 국토방위의 신성한 의무를 수행함을 사명으로 하며, 그 정치적 중립성은 준수된다.

English Translation:

1. The Republic of Korea shall endeavor to maintain international peace and shall renounce any war of aggression.
2. The national Armed Forces shall be charged with the sacred mission of national security and the defense of the land and their political neutrality shall be observed.

See also

References

Public Domain This article incorporates text from this source, which is in the public domain. Japan: A Country Study. Federal Research Division.

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  1. The interpretation of the Paragraph 1 is based on the Kellogg–Briand Pact.

books
  • 田畑忍 (1964). 憲法学講義 (in Japanese). 京都: 憲法研究所出版会.
  • 小林直樹 (1972). 憲法講義 (in Japanese). Vol. 上 (改訂版 ed.). 東京大学出版会.
  • 西修 (1978). 自衛権：奪われざる国民の生存権 (in Japanese). 東京: 学陽書房.
  • 芦部信喜 (1985). 憲法. 国家と法 (in Japanese). Vol. 1. 放送大学教育振興会.
  • 佐藤功 (1985). 日本国憲法概説 (in Japanese) (全訂第3版 ed.). 学陽書房.
  • 大須賀明 (1986). 有倉遼吉; 小林孝輔 (eds.). 憲法. 別冊法学セミナー 基本法コンメンタール (in Japanese) (第3版 ed.). 東京: 日本評論社. ISBN 4535401519.
  • 橋本公亘 (1988). 日本国憲法 (in Japanese) (改訂版 ed.). 有斐閣. ISBN 4641030979.
  • 有倉遼吉; 時岡弘, eds. (1989). 条解 日本国憲法. 学説・判例整理シリーズ (in Japanese). Vol. 1 (改訂版 ed.). 三省堂. ISBN 4-385-30860-8.
  • 野中俊彦; 戸松秀典; 江橋崇; 高橋和之; 高見勝利; 占部法穏, eds. (2000). 注釈憲法 (in Japanese). Vol. 1. 芦部信喜 監修. 有斐閣. ISBN 4641016917.
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