Article on Why and How to Amend Article 9 of Japan’s Constitution

Ritsumeikan-webIn April I published an article on why supporters and defenders of Article 9 of the Japanese Constitution, the war-renouncing provision, should be developing proposals for how to amend the provision. The article was published in the Ritsumeikan Journal of Peace Studies, in both English: Change It to Save It: Why and How to Amend Article 9, 18 Ritsumeikan J. Peace Studies (2017), and in Japanese: 憲法9条を再生させるための改正論ーなぜ、どのように9条を改正するのか、立命館平和研究18号(2017). The abstract in English is as follows:

Defenders of Article 9 of the Constitution of Japan, which renounces the use of force and prohibits the maintenance of armed forces, have consistently worked to block any and all attempts to amend the provision. The government of Japan, having purported to “reinterpret” the provision in 2015, is now well positioned to finally achieve its goal of forcing some form of amendment. This article argues that the champions of Article 9 must, in order to save its most successful and core features, begin to develop alternative proposals for its amendment.

The article begins with a review of the meaning and operation of Article 9. It notes that the first paragraph, Article 9(1) (which is the prohibition on the use of force), is a clear constitutional rule that has effectively constrained government policy, but that the second paragraph, Article 9(2) (which prohibits the maintenance of armed forces and denies the rights of belligerency), has been transformed into an ambiguous standard that has been increasingly ineffective, and has given rise to a dangerous gap between norm and reality.

In arguing why Article 9 should be amended, the article explains the weaknesses in the provision that arise from the ambiguity and ineffectiveness of Article 9(2), analyzes the significant dangers inherent in the government amendment proposals, and the harm that will be done by the “reinterpretation” if it is not replaced by way of amendment. In explaining how to amend Article 9, the article provides draft language as a starting point for debate. It is designed to preserve and clarify the constraints on the use of force; eliminate the harmful gap between the current reality and the constitutional language, and establish civilian control and clear separation of powers in national security decision-making; and clarify the role of judicial review in enforcing the provision.

Article Examining Japan’s “Reinterpretation” of Article 9 Through the Lens of Informal Amendment Theory

Fordham-webMy latest big law review article has just been published: “The Legitimacy of Informal Constitutional Amendment and the ‘Reinterpretation’ of Japan’s War Powers,” 40 Fordham International Law Journal 427 (2017). It analyzes the “reinterpretation” of Article 9 of the Constitution of Japan for what insights it can offer our understanding of theories of informal constitutional amendment. At the same time it examines what those theories can tell us about the legitimacy of the Japanese “reinterpretation.” The abstract is as follows:

The government of Japan has purported to reinterpret the famous war-renouncing provision of the Constitution in a controversial process that deliberately circumvented the formal amendment procedure. This article argues that these developments should be of great interest to constitutional law scholars in America because they bring into sharp focus issues that remain underdeveloped and unresolved in the debate over informal amendment. Theories on informal amendment suggest that there are some constitutional changes that exceed the reasonable range of normal interpretive development, but which are not implemented through formal amendment procedures. The existence, scope, and legitimacy of such informal amendments remains hotly contested.

This article focuses on the key issue of legitimacy. It uses the Japanese reinterpretation as the context in which to explore the relationship among three suggested factors affecting the legitimacy of informal amendment, namely: the public ratification of the change; the intent of the agents of the change; and the passage of time. It also suggests a new way of conceptualizing the relationship among authority, legitimacy, and time in thinking about informal amendments, in that the level of constitutional authority and degree of legitimacy that may be enjoyed by contested changes will begin to diverge with the passage of time.

The article argues that deliberate attempts to effect significant constitutional change in a manner calculated to circumvent the formal amendment process—such as the Abe government’s reinterpretation effort in Japan—are prima facie unauthorized and illegitimate at the time they occur. Moreover, only the most explicit and deliberate expressions of popular sovereignty can serve to legitimate such changes. But while such deliberate informal change will always remain unauthorized, it may be legitimated with the passage of time. I argue that this legitimation may, and should, take longer than for less contested forms of change.

Jus ad Bellum Implications of Japan’s New National Security Laws

(Published in Opinio Juris, Apr. 21, 2016; re-published in The Asia-Pacific Journal: Japan Focus, Vol. 14, May 15, 2016)

Far-reaching revisions to Japan’s national security laws became effective at the end of March. Part of the government’s efforts to “reinterpret” Japan’s war-renouncing Constitution, the revised laws authorize military action that would previously have been unconstitutional. The move has been severely criticized within Japan as being a circumvention and violation of the Constitution, but there has been far less scrutiny of the international law implications of the changes.

The war-renouncing provision of the Constitution ensured compliance with the jus ad bellum regime, and indeed Japan has not engaged in a use of force since World War II. But with the purported “reinterpretation” and revised laws – which the Prime Minister has said would permit Japan to engage in minesweeping in the Straits of Hormuz or use force to defend disputed islands from foreign “infringements” – Japan has an unstable and ambiguous new domestic law regime that could potentially authorize action that would violate international law. … Read more…

Speaking with Yanai in The Hague

Speaking in February on a panel with Judge Shunji Yanai, on the constitutional and international law issues arising from the Japanese government’s “reinterpretation” of the war-renouncing Article 9 of the Constitution. Shunji Yanai, who is a judge on the International Tribunal for the Law of the Sea, was the chairman of the Advisory Panel on the Reconstruction for the Legal Basis of Security, which made recommendations to the Japanese government on how and why to “reinterpret” Article 9. The one-day conference was held at the Asser Institute in The Hague, with Judge Hisashi Owada of the International Court of Justice giving the keynote address.

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