How and Why Japan Should Amend its War-Renouncing Article 9

(Published in The Japan Times, Aug. 4, 2012)

The pressure is mounting to either amend Article 9, the war-renouncing provision of Japan’s Constitution, or to increasingly disregard it and so make it irrelevant. In April the Liberal Democratic Party (LDP) published its proposal for amending the Constitution, and the dangers it posed for Article 9 was analyzed here on June 6 (“LDP’s dangerous proposals for amending antiwar article”). But the response to such amendment proposals by the supporters of Article 9 continues to be one of complete denial — that is, a categorical argument that Article 9 should not be amended at all.

This position is misguided. There are both strategic and legal reasons why the left must develop realistic alternative amendment proposals that would preserve and strengthen the core elements of the provision, but eliminate those elements that undermine it. In a chapter in the book “A Time for Change? Japan’s ‘Peace’ Constitution at 65,” published last month by the Woodrow Wilson Center for International Scholars (the chapter is available online: http://bit.ly/MWGF8T), I explain why Article 9 should be amended, and provide draft language that can serve as a basis for beginning a discussion on alternate amendment proposals.

Flat out rejection of any and all possible amendments to Article 9 is dangerous as a strategic matter. The national security environment of Japan has shifted in the last couple of decades, with the emergence of a nuclear-armed North Korea, and the growing military strength of China. In addition to these perceived threats, there is an increasing sense that Japan should be doing more to fulfill its international responsibilities. Moreover, the Japanese Self-Defense Force (SDF) has participated in non-combat roles in such conflicts as Afghanistan and Iraq with no adverse consequences. … Read more…

LDP’s Dangerous Proposals for Amending Antiwar Article

(Published in The Japan Times, June 6, 2012, and in Comparative Constitutions blog, June 11, 2012)

The Liberal Democratic Party (LDP) published its new draft constitutional amendment proposal in late April. The draft reflects a number of significant changes above and beyond those advanced in the proposal unveiled by the LDP in 2005. The proposal includes a complete overhaul of Article 9, the war renouncing provision of Japan’s so-called Peace Constitution. These changes to Article 9 are important, and on balance, dangerous. The nature of these proposed revisions, and how they would likely operate, deserve to be examined in some detail.

Before addressing the changes, it is helpful to recall the meaning of the current provision. Article 9 has two paragraphs, which contain three essential elements. Paragraph one provides that the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes. This represents an incorporation of international law principles on the use of force into the Japanese constitution, to constrain future governments of Japan from ever again dragging the nation into a disastrous war of aggression.

Paragraph two contains two clauses. The first provides that Japan will never maintain land, sea, and air forces, or any other war potential. This is a unique provision, purporting to prohibit the maintenance of any military forces, and was designed to reinforce the prohibition on the use of force by making such use of force impossible. The second clause of paragraph two, which provides that the rights of belligerency will not be recognized, is even more novel. This was the incorporation of principles of international humanitarian law relating to belligerency, to further ensure that as a matter of constitutional law Japanese forces would not enjoy the rights and privileges of combatants in armed conflict. … Read more…

Revising Japan’s Nonnuclear Principles

(Initially published in The Japan Times, Aug. 18, 2010).

The prime minister’s advisory panel on national security has recommended a reconsideration of Japan’s adherence to the so-called three nonnuclear principles. The panel specifically urged that the third principle, the prohibition on the introduction of nuclear weapons into Japan (which forbids not only the stationing of weapons in Japan, but even the transit of weapons through Japan), be relaxed in order to permit the U.S. greater freedom in deploying nuclear weapons in Japanese territory.

This is a bad idea for many reasons, but for one it would be inconsistent with the Constitution.

As is well known, Article 9, paragraph 1 of the Constitution renounces war and the threat or use of force as sovereign rights of the nation, while paragraph two prohibits the maintenance of armed forces or other war potential, and denies to Japan the right of belligerency. The long established official understanding of paragraph 1 is that Japan can only use the minimum military force necessary for its individual self-defense. It cannot use or threaten the use of armed force for collective self-defense, or for U.N. collective security operations.

Even this understanding, long embraced by successive governments, the courts, and the Cabinet Legislation Bureau, is a strained interpretation of a clause that clearly prohibits those uses of force that remain sovereign rights under international law — which are limited to individual and collective self-defense, and collective security operations. But the proposed changes to the nonnuclear principles would violate Article 9 under even the official interpretation.

The three nonnuclear principles were articulated by the government of Prime Minister Sato in 1967, and formally adopted in a Diet Resolution. Japan went on to sign the Nuclear Nonproliferation Treaty in 1970 and ratified it in 1976. The nonnuclear principles caught the imagination of the Japanese people and quickly became powerful elements of the broader pacifist identity associated with the constitution. As the only victim of nuclear weapons, this stance also made Japan a powerful symbol for the nonproliferation movement. Sato won the Nobel Peace Prize for his efforts. … Read more…

The “Yanai Report” on Article 9, Part 4

The next segment of my analysis of the Yanai Report is long overdue. The final two posts were supposed to be the critical analysis of the report, from both a constitutional and international law perspective. The constitutional criticism was briefly explained in my Op-Ed piece in the Japan Times, which can be found here. Before posting a more developed version of that, together with the international law critique, I am posting below the Japanese translation of the Op-Ed piece. It was declined by the Asahi Shinbun (ostensibly because it was too narrow in focussing exclusively on one fundamental flaw in the report), but I thought that it should be made available somewhere for wider consumption, since there has been little debate on this aspect of the report in the Japanese media. The eloquent translation is thanks to Prof. Norimoto Setsuko.

第9条の新解釈を押し付けようとすることの致命的な欠陥

一般に柳井報告として知られている「安全保障の法的基盤の再構築に関する懇談会」報告は、日本が集団的自衛および集団安全保障活動に参加することを可能にするためには、日本国憲法第9条の再解釈が必要であると主張している。現在は、いずれの活動も、第9条第1項で禁止されていると解されている。しかし、この報告書は、懇談会の分析の正当性を根底から覆す根本的欠陥を明らかにしている。

懇談会は20074月に、安倍晋三内閣(当時)によって、憲法の「再解釈」の必要性を検討するために設置された。懇談会は、13人の著名な学者、元外交官、その大部分は国際関係、政治、国家安全保障の専門家である官僚たちで構成されたていた。懇談会のメンバーの中に憲法学者は一人しかいなかった。懇談会は、憲法改正に賛成していることが公に知られているタカ派によって占められていると批判された。座長の柳井俊二は、元アメリカ大使であり、現在は中央大学教授であるが、6月に内閣に懇談会報告を提出した。

当時の福田康夫首相は、この報告書すなわち憲法の「再解釈」にはほとんど興味を示さなかった。しかし麻生首相は、第9条は「再解釈」されなければならないと、国連で繰り返し述べた。さらに柳井報告書が、官僚たちの間で歓迎され、政府内において次第に影響力を行使しそうな証拠がある。したがってこの報告書は、もっと公に吟味の対象とならなければならないのである。Read more…