Article 9 of the Japanese Constitution

Article 9 of the Japanese Constitution (日本国憲法第9条, Nihonkokukenpō dai kyū-jō) 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. The Constitution was imposed by the United States in the post-World War II period.[1]

However, 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 (peacekeeping) force operating under the United Nations.

In July 2014, instead of using Article 96 of the Japanese Constitution to amend the Constitution itself, the Japanese government approved a reinterpretation which gave more powers to the Japan Self-Defense Forces, allowing them to defend other allies in case of war being declared upon them, despite concerns and disapproval from China, South Korea and North Korea, whereas the United States supported the move. This change is considered illegitimate by some Japanese political parties and citizens, since the Prime Minister circumvented Japan's constitutional amendment procedure.[2][3][4] In September 2015, the Japanese National Diet made the reinterpretation official 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.[5]

Text of the article

The full text of the article in Japanese:[6]

日本国憲法第九条 第1項　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。

第2項　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[7] of the article is:

ARTICLE 9. (1) 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) 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.

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,[8] 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,[9] who "wanted it to prohibit any military establishment for Japan—any military establishment whatsoever".[10] 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.[11] 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,[12] 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 that the idea came from MacArthur himself and that Shidehara was merely a pawn in his plans.[13] 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.[14]

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 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 (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.[15]

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".[16] 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.[17]

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.[16] 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.

In July 2014, Japan introduced a reinterpretation which gave more powers to its Self-Defense forces, allowing them to defend other allies in case of war declared upon them. This move potentially ends Japan's long-standing pacifism and drew heavy criticism from China and South Korea, while the United States supported this move.

In September 2015, the Japanese National Diet made the reinterpretation official 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.[18]

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

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 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."[19] Apparently when the JSDF was created, "since the capability of the JSDF was inadequate to sustain a modern war, it was not war potential".[20] 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".[21] 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".[22]

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. Also, the LDP never have 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 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.

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

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 aircraft, which have substantially more defensive potential.

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,[23] 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.
  • 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 of Article 9 to promote armament.

Evidently, opinions range from one extreme of pacifism, to the other extreme of nationalism and complete remilitarization.[24] The majority of Japanese citizens approve the spirit of Article 9 and consider it personally important.[25][26] 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.[27][28] 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.[29] Japan's ability to "engage in collective defense" has been argued.[30] 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.[31] 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".[32] On October 29, 2001, the Anti-Terrorism Special Measures Law was passed, which "further broadened the definition of Japan's self-defense".[33] 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",[34] 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".[35] 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.[36]

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."[37]

In May 2007, the then Prime Minister of Japan Shinzō 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.[38] 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.[39]

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.[40]

On October 21, 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.[41]

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:[42]

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[43]:

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.

Reinterpretation in 2014
See also: Article 96 of the Japanese Constitution

In July 2014, Japan's government approved a reinterpretation of this article. This reinterpretation would allow Japan to exercise the right of "collective self defense"[2] in some instances and to engage in military action if one of its allies were to be attacked.[3] It is considered by some parties as illegitimate, posing a serious danger to Japan's democracy 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.[4] International reaction to this move was mixed. China expressed a negative view of this reinterpretation, while the US, 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.[44][45][46][46][47]

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See also

References

 This article incorporates public domain material from the Library of Congress Country Studies website http://lcweb2.loc.gov/frd/cs/. - Japan

  1. "Resurgent Japan military 'can stand toe to toe with anybody". CNN. 7 December 2016. Archived from the original on 2018-12-04.
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  12. 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.
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  17. 6 Minshu 783 (October 8, 1950).
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  23. https://www.japantimes.co.jp/news/2020/06/22/national/japan-oppose-change-article-9-constitution/
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  26. Hikaru Ōta and Shin-Ichi Nakazawa, 憲法九条を世界遺産に (Kenpō-Kyū-Jō wo Sekai-Isan ni, "Let's Register Article 9 of the Japanese Constitution as a 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
  27. Hajime Imai 「憲法九条」国民投票 (Kenpō-Kyū-Jō Kokumin-Tōhyō, "A Referendum on Article 9") 集英社新書 (Shū-Ei-Sha-Shin-Sho), October 10, 2003, pp. 11–38.
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  30. Chinen, 59
  31. Hirata, 139
  32. Hirata, 146
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