Leiden Law Blog

Not a suicide pact: the transformation of Japan’s war-renouncing article 9

Posted on by Reijer Passchier in Public Law
Not a suicide pact: the transformation of Japan’s war-renouncing article 9

Last week the Japanese prime minister Abe announced a new defence policy. Part of his plans is a reinterpretation of the famous war-renouncing article 9 of the country’s constitution. The announcement has triggered a storm of protest in and outside Japan. I will argue, however, that some sympathy for Japan’s awkward situation is in order.

Let’s consider the issue first.

Two years after the end of the Pacific War (1947), Japan adopted a new constitution. The remarkable article 9 reads as follows:

  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.

The original meaning of this so-called ‘pacifism clause’ was quite plain: it was drafted to prohibit Japan from maintaining armed forces for all purposes, even for that of self-defence. It would soon be apparent, however, that the government could not follow article 9 to the letter. The 1950 Korea Crisis compelled Japan to create a minimum armed force for the purpose of ‘individual self-defence’. And thus, in 1954, the Japanese government, arguably at odds with the constitutional document, officially established the ‘Self Defence Force’ (SDF).

The establishment of the SDF marks the beginning of the military rearmament of Japan. Initially this led to major protests and opposition. But, because the organisation remained relatively small for decades and because it was not deployed abroad for quite some time, the majority of the Japanese people gradually became to recognise the SDF’s right to exist.

New controversies arose when the Japanese government started to send SDF troops abroad. Since  1992, Japan has joined peace keeping missions of the United Nations in places such as Cambodia, Mozambique, Rwanda, the Golan Heights, East Timor and Iraq. From 2001 to 2010, the country participated in the War in Afghanistan outside of a United Nations context. And in 2009, the Japanese government sent the Maritime SDF to the coast of Somalia in order to prevent piracy.

Today, the SDF has a quarter of a million soldiers. It has the most advanced (mostly US-made) military equipment at its disposal. In 2013, Japan was ranked the fifth military spender in the world. Increasing tensions with China, among other neighbours, will presumably press the country to raise its defence budget even further in the years to come.

As the gap between law and reality is getting wider and wider, the constitutionality of the SDF and its activities are more and more challenged. The Japanese courts, however, have refused to rule upon the matter arguing that the issue is better dealt with by the political process. Successive Japanese governments, for their part, have often proposed to amend the constitution. But it has appeared to be virtually impossible to textually alter Article 9. Also the current prime minister Abe vowed to change Article 9 when he assumed office. His efforts failed as well.

And now Mr. Abe is trying to do something else. He claims that a formal constitutional amendment, demanding a two-thirds majority in parliament and a national referendum, is not necessary. Instead, Abe is seeking to reinterpret article 9 in such a way that Japan henceforth has not only the right to ‘individual self-defence’, as the country has already asserted, but also the right to ‘collective self-defence’. 

If the proposal is approved by a majority in the Japanese parliament, the country will have some new possibilities in the military field. Among other things, Japan will be able to play a more active role in international military operations. It will have the possibility to join military alliances similar to NATO. And Japan will be able to send troops to come to the aid of friendly nations under attack.

This new chapter in the extra-constitutional development that has been going on for almost 70 years is highly contested in and outside Japanese politics and society. Part of the governing Liberal Democratic Party is opposed to Abe’s plans, as well as the small Buddhist party that is part of the coalition. More than half of the Japanese deem the proposed reinterpretation of article 9 as ‘improper’.  Around 10,000 demonstrators gathered in front of the prime minister’s residence on the day of the announcement. Some constitutionalists furthermore argue that the government is violating the rule of law and evading the proper democratic procedure for constitutional change. And in the East-Asian region the developments have aroused bitter memories of the country’s aggressive imperial history.

But the plan to transform Japan into a ‘normal’ country again, as Mr. Abe calls it, can also count on substantial support. The international community frequently requests Japan to contribute towards peacekeeping missions. Amongst other countries, the United States encourages Japan to contribute to peace and stability in the region. Many Japanese find the reinterpretation of article 9 a matter of necessity in light of the increasing threats from neighbouring countries such as China and North Korea.  

What to think? Japanese history provides ample reason to closely monitor the country’s increasing military activity. But it is also fair to take the security situation of Japan into account. As Abraham Lincoln once said: ‘a constitution is not a suicide pact’.

A slightly different version of this article appeared in Dutch newspaper de Volkskrant of 5-7-2014 (in Dutch).

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