Article 9 of the Japanese Constitution

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Article 9 of the Japanese Constitution is a clause in the National Constitution of Japan outlawing war as a means to settle international disputes involving the state. The Constitution came into effect on May 3, 1947, following 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, although Japan maintains de facto armed forces, referred to as the Japan Self-Defense Forces which may have originally been thought of as something akin to what Mahatma Gandhi called the Shanti Sena (soldiers of peace) or a collective security police (peace keeping) force operating under the United Nations.

Text of the article[edit]

The full text of the article in Japanese:

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。

二 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 of the article reads:

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. (2) 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.

Historical background[edit]

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,[1] Article 9 was added to the Constitution of Japan during the occupation following World War II.

The source of the pacifist clause is disputed. According to the Allied Supreme Commander Douglas MacArthur, the provision was suggested by Prime Minister Kijūrō Shidehara,[2] who "wanted it to prohibit any military establishment for Japan—any military establishment whatsoever."[3] Shidehara's perspective was that retention of arms would be "meaningless" for the Japanese in the postwar era, because any substandard postwar military would no longer gain the respect of the people, and would actually cause people to obsess with the subject of rearming Japan.[4] 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 ride to Tokyo; MacArthur himself confirmed Shidehara's authorship on several occasions. However, according to some interpretations, he denied having done so,[5] and the inclusion of Article 9 was mainly brought about by the members of Government Section (民政局 Min-Sei-Kyoku?) of Supreme Commander for the Allied Powers (GHQ) (連合国軍最高司令官 Rengō-Koku-Gun-Saikō-Shirei-Kan?), especially Charles Kades, one of Douglas MacArthur's closest associates. The article was endorsed by the Diet of Japan on November 3, 1946. Kades 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.[6]

The article's acceptance by the Japanese government may in part be explained by the desire to protect the imperial throne. Some Allied leaders saw the emperor as the primary factor in Japan's warlike behavior. His assent to the "anti-war" clause weakened their arguments for abolishing the throne or trying the emperor as a war criminal.[citation needed]

Interpretation[edit]

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 in 1947, the Chinese Civil War ended in victory for the Communist Party of China in 1949 and the establishment of the People's Republic of China. As a consequence, the United States was left without the Republic of 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.[7]

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."[8] 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.[9]

On August 1, 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.[8] In 1954, the National Safety Agency became the Japan Defense Agency, and the National Police Reserve became the Japan Self-Defense Forces (JSDF).

In practice, the 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.

Debate[edit]

Article 9 of the Japanese Constitution not only forbids the use of force as a means to settling international disputes but also forbids Japan from maintaining an army, navy or air force. Therefore, in strictly legal terms, the 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.”[10] Apparently when the SDF was created, “since the capability of the SDF was inadequate to sustain a modern war, it was not war potential.”[11] 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.”[12] Some Japanese people believe that Japan should be truly pacifist and claim that the SDF 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.”[13] The Liberal Democratic Party has interpreted Article 9 as renouncing the use of warfare in international disputes but not the internal use of force for the purpose of maintaining law and order. The opposing party, the 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 Japan Self-Defense Forces (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.

The interpretation of Article 9, has been determined that Japan cannot hold offensive military weapons — this has been interpreted to mean that Japan cannot have ICBMs, nuclear weapons, aircraft carriers or bomber fleets. This has not inhibited the deployment of submarines, AEGIS equipped destroyers, a helicopter carrier, and fighter planes.

A small demonstration in favor of maintaining Article 9, in front of Tabata Station, in Tokyo.

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. (Please note that 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, continued to show strong support for this constitutional provision.

The different views can be clearly organized into four categories: pacifists, mercantilists, normalists, and nationalists. The current pacifists believe in maintaining Article 9 and claim the SDF is unconstitutional, and would like to detach Japan from international wars. The mercantilists have divided opinions about Article 9 although the interpretation is broadened to include the SDF, and believe that the SDF’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 SDF. The nationalists assert that Japan should remilitarize and build nuclear capabilities in order to regain pride and independence. They also advocate revision of Article 9 to promote armament. Evidently, opinions range from one extreme of pacifism, to the other extreme of nationalism and complete remilitarization.[14] The majority of Japanese citizens approve the spirit of Article 9 and consider it personally important.[15][16] 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.[17][18] Additionally, quite a few citizens consider that Japan should allow itself to commit the Self-Defense Forces to collective defense efforts, like those agreed to on the UN Security Council in the Gulf War, for instance.[19] Japan’s ability to “engage in collective defense” has been argued.[20] 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.[21] 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 September 11 attacks led to increased U.S. demands for Japanese security cooperation.”[22] On October 29, 2001 the Anti-Terrorism Special Measures Law was passed, which “further broadened the definition of Japan’s self-defense.”[23] 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 SDF troops to Iraq and to confirm the unconstitutionality of such a dispatch,”[24] 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.”[25] 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.[26]

In May 2007, the then Prime Minister of Japan Shinzo Abe 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.[27] 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.[28] A constitutional amendment would require a 2/3rds majority to effect it (as per Article 96 of the Japanese Constitution). Despite numerous attempts by the LDP to change Article 9 of the Japanese constitution, they have never been able to achieve the large majority required, as revision is opposed by a number of Japanese parties including the Japanese Socialist Party and the Japanese Communist Party.

International comparisons[edit]

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:

"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."

[29]

See also[edit]

References[edit]

 This article incorporates public domain material from websites or documents of the Library of Congress Country Studies. - Japan

  1. ^ Klaus Schlichtmann, Article Nine in Context – Limitations of National Sovereignty and the Abolition of War in Constitutional Law, The Asia-Pacific Journal, Vol. 23-6-09, June 8, 2009 - See more at: http://japanfocus.org/-klaus-schlichtmann/3168#sthash.6iVJNGnx.dpuf
  2. ^ Klaus Schlichtmann, JAPAN IN THE WORLD. Shidehara Kijűrô, Pacifism and the Abolition of War, Lanham, Boulder, New York, Toronto etc., 2 vols., Lexington Books, 2009. See also, by the same author, 'A Statesman for The Twenty-First Century? The Life and Diplomacy of Shidehara Kijûrô (1872–1951)', Transactions of the Asiatic Society of Japan, fourth series, vol. 10 (1995), pp. 33–67
  3. ^ Douglas MacArthur, Reminiscences (1964), p. 302.
  4. ^ Kijūro Shidehara, 外交の五十年 ( Gaikō Gojū-Nen, that means Fifty Years Diplomacy ) (1951), pp. 213-14.
  5. ^ See, e.g., Robert A. Fisher,"Note: The Erosion of Japanese Pacifism: The Constitutionality of the U.S.-Japan Defense Guidelines", Cornell International Law Journal 32 (1999), p. 397.
  6. ^ Edward J. L. Southgate, "From Japan to Afghanistan: The U.S.-Japan Joint Security Relationship, The War on Terror and the Ignominious End of the Pacifist State?," University of Pennsylvania Law Review 151, p. 1599.
  7. ^ Hayes, Louis D. (2001). Japan and the Security of Asia. Lexington Books. pp. 81–82. 
  8. ^ a b James E. Auer, "Article Nine of Japan's Constitution: From Renunciation of Armed Force 'Forever' to the Third Largest Defense Budget in the World," Law and Contemporary Problems 53 (1990).
  9. ^ 6 Minshu 783 (October 8, 1950).
  10. ^ Chinen, Mark A. "Article Nine of Japan's Constitution: From Renunciation of Armed Forces "Forever" to the Third Largest Defense Budget in the World." Michigan Journal of International Law 27 (2005):60
  11. ^ Hayes, Louis D. Japan and the Security of Asia. New York: Lexington Books, 2002:82
  12. ^ Port, Kenneth L. "Article 9 of the Japanese Constitution and the Rule of Law." Cardozo Journal of International and Comparative Law 13 (2004):130
  13. ^ Pence, Canon. "Reform in the Rising Sun: Koizumi's Bid to Revise Japan's Pacifist Constitution." North Carolina Journal of International Law and Commercial Regulation 32 (2006):373
  14. ^ Hirata, Keiko. "Who Shapes the National Security Debate? Divergent Interpretations of Japan's Security Role." Asian Affairs (2008): 123-51
  15. ^ Hajime Imai, 「憲法九条」国民投票 ( "Kenpō-Kyū-Jō" Kokumin-Tōhyō, that means, A Referendum About "the Article 9 of the Japanese Constitution"), 集英社新書 ( Shū-Ei-Sha-Shin-Sho) ( October 10, 2003 ), pp. 31-38. 「憲法九条」国民投票
  16. ^ Hikaru Ōta and Shin-Ichi Nakazawa, 憲法九条を世界遺産に ( Kenpō-Kyū-Jō wo Sekai-Isan ni, that means, Let's Register the Article 9 of the Japanese Constitution to World Heritage Site.), 集英社新書 ( Shū-Ei-Sha-Shin-Sho ) ( August 17, 2006 ), 憲法九条を世界遺産に
  17. ^ Hajime Imai 「憲法九条」国民投票 ( "Kenpō-Kyū-Jō" Kokumin-Tōhyō, that means, A Referendum About Article 9) 集英社新書 ( Shū-Ei-Sha-Shin-Sho ) ( October 10, 2003 ), pp. 11-38.
  18. ^ 憲法9条と自衛隊の現実 ( "Kenpō-Kyū-Jō to Jiei-Tai no Genjitsu", that means, The Article 9 of the Japanese Constitution and the actual conditions of the Japan Self-Defense Forces)
  19. ^ Marsh, Chuck (2006-09-08). "Japanese air defense forces begin U.N. missions". Air Force Link (United States Air Force). Archived from the original on 2012-06-30. Retrieved 2007-12-27. 
  20. ^ Chinen, 59
  21. ^ Hirata, 139
  22. ^ Hirata, 146
  23. ^ Pence, Canon. "Reform in the Rising Sun: Koizumi's Bid to Revise Japan's Pacifist Constitution." North Carolina Journal of International Law and Commercial Regulation 32 (2006): 335-89
  24. ^ Umeda, Sayuri (2006). Japan: Article 9 of the Constitution (PDF). Law Library of Congress. p. 18. 
  25. ^ McCormack, Gavan. "Koizumi's Japan in Bush's World: After 9/11." Policy Forum Online. Nautilus Institute, 8 Nov. 2004.
  26. ^ Dower, John W. Embracing defeat Japan in the wake of World War II. New York: W.W. Norton & Co., 1999. p 562
  27. ^ Abe calls for a 'bold review' of Japanese Constitution - International Herald Tribune
  28. ^ Cai, Hong (2012-11-29). "Japanese candidates debate China policy". China Daily. Retrieved 2012-11-29. 
  29. ^ "Constitution of Italy". 1947-12-22. Archived from the original on 22 December 2007. Retrieved 2007-12-27. 

External links[edit]