Article 9 of the Japanese Constitution

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Article 9 of the Japanese Constitution is a "No War" clause. It went into effect on May 3, 1947, immediately after World War II. In the article text, the Japanese Government formally renounce war as a right of sovereignty and the refusal to settle disputes using military force. The article also states that military forces with war potential will not be maintained.

Contents

[edit] Text of the article

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) 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. ”

[edit] 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 go to war. 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 article is disputed. According to Allied supreme commander Douglas MacArthur, the provision was suggested by Prime Minister Kijūrō Shidehara, who "wanted it to prohibit any military establishment for Japan—any military establishment whatsoever."[1] Shidehara's point of view 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.[2] 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,[3] 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 of 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 assented to by the Diet of Japan on November 3, 1946. Kades rejected language that would have prohibited Japan's use of force "for its own security," believing that self-preservation was the right of every nation.[4]

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 "No War" clause weakened their arguments for abolishing the throne or trying the emperor as a war criminal.

[edit] Interpretation

Sailors of the Japanese Maritime Self-Defense Force, one of the de facto military forces possibly permitted under Article 9.
Sailors of the Japanese Maritime Self-Defense Force, one of the de facto military forces possibly 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.[5]

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, leaving Japan 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."[6] Shigesaburo Suzuki, a leader of the Japan Socialist Party (JSP), 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.[7]

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.[6] 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.

[edit] Debate

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 an army, navy and air force, but are extensions of the national police force. This has had broad implications for foreign, security and defense policy. The ruling Liberal Democratic Party (LDP) government 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 main opposition party, the Democratic Party of Japan (DPJ) tends to concur with the government'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 now-defunct Japan Socialist Party (JSP), 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 (JCP) considers the JSDF unconstitutional and has called for reorganization of Japanese defense policy to feature an armed militia.

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 percent 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. 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 majority of Japanese citizens approve the spirit of Article 9 and consider it personally important.[8][9] 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.[10][11] 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.[12] Prime Minister Shinzo Abe marked the 60th anniversary of the Japanese Constitution in 2007 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.[13]

[edit] International comparisons

In the Italian Constitution the Article 11 is very similar to the Japanese analogue, but the use of military forces is permitted for peace keeping purposes, if agreed with international organizations:

"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." ("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.")[14]

[edit] See also

[edit] External links

[edit] References

  1. ^ Douglas MacArthur, Reminiscences (1964), p. 302.
  2. ^ Kijūro Shidehara, 外交の五十年 ( Gaikō Gojū-Nen, that means Fifty Years Diplomacy ) (1951), pp. 213-14.
  3. ^ 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.
  4. ^ 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.
  5. ^ Hayes, Louis D. (2001). Japan and the Security of Asia. Lexington Books, 81-82. 
  6. ^ 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).
  7. ^ 6 Minshu 783 (October 8, 1950).
  8. ^ 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
  9. ^ 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
  10. ^ 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.
  11. ^ 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)
  12. ^ Marsh, Chuck. "Japanese air defense forces begin U.N. missions", Air Force Link, United States Air Force, 2006-09-08. Retrieved on 2007-12-27. 
  13. ^ Abe calls for a 'bold review' of Japanese Constitution - International Herald Tribune
  14. ^ Constitution of Italy (1947-12-22). Retrieved on 2007-12-27.