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 3 May 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 occupying United States in the post-World War II period.

Despite this, Japan maintains the Japan Self-Defense Forces, a ''de facto'' defensive army with only strictly offensive weapons like ballistic missiles and nuclear weapons prohibited.

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 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. 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.

Text of the article

The full text of the article in Japanese:

The official English translation of the article is:

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, 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 (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, who "wanted it to prohibit any military establishment for Japan—any military establishment whatsoever". 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. 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, 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.

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.

The article was endorsed by the 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.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. The historical record, however, casts doubt on this revisionist interpretation.

Interpretation

Soon after the adoption of the Constitution of Japan in 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.

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 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".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). 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.

On 1 August 1952, a new 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, ouldnecessitate 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. In 1954, the National Safety Agency became the Japan Defense Agency (now Ministry of Defense), and the National Police Reserve became the .

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 North 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.

Debate

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. 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.

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." Apparently when the JSDF was created, "since the capability of the JSDF was inadequate to sustain a modern war, it was not war potential". 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". 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 ... hichoccurs when a constitutional provision has lost its effectiveness but has been replaced by a new meaning".

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.

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, 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, 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. The majority of Japanese citizens approve the spirit of Article 9 and consider it personally important. 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. 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. Japan's ability to "engage in collective defense" has been argued. 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. 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". On October 29, 2001, the Anti-Terrorism Special Measures Law was passed, which "further broadened the definition of Japan's self-defense". The law allowed Japan to support the U.S. military on foreign territory. This law provoked "citizen groups ofile 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", 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 oizumideclared 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". 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.

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."

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. 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.

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.

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

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.

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:

English translation:

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

English translation:

The German Constitution emphasizes the obligations of International Law as being part - and taking precedence within - federal law (Art. 25 GG) and forbids international acts of aggression, including offensive wars (Art. 26 GG). It does not, however, forbid a standing military.

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

English Translation:

Reinterpretation in 2014

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" in some instances and to engage in military action if one of its allies were to be attacked. 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. 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. Abe retired in 2020 due to health problems without revising Article 9.

See also

* Article 9 of the Japanese Constitution Referendum
* Article 12 of the Constitution of Costa Rica
* Golden Week
* Constitution Memorial Day
* The Nobel Peace Prize for Article 9 of the Japanese Constitution
* Japanese people who conserve Article 9
* 2015 Japanese military legislation
* Japan Self-Defense Forces
* Japanese Iraq Reconstruction and Support Group
* Japan and the United Nations
* Reform of the United Nations Security Council#Japan
* Japanese Peace Bell
* Perpetual peace
* Kellogg–Briand Pact

References

External links

* Article 9 of the Constitution of Japan at Wikisource

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(Official English translation of constitution)


(Official English translation of constitution)

{{DEFAULTSORT:Article 9 Of The Japanese Constitution
Government of Japan
Constitution of Japan
Politics of Post-war Japan
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1947 in Japan
1947 in international relations
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1947 in Japanese politics
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