[Initially published in The Japan Times, June 6, 2012 and reproduced with permission]
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 (my detailed analysis of the interpretation and operation of the provision can be found here).
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.
The well established interpretation of Article 9 as articulated by the Cabinet Legislation Bureau and by the Supreme Court, and accepted by successive governments since the 1960s, is that Japan is prohibited from any use of force above that strictly necessary for individual self-defense, and is prohibited from maintaining armed forces above the minimum necessary for such individual self-defense. Thus, use of force for purposes of collective self-defense, such as the invasion of Afghanistan after 9/11, or collective security operations authorized by the U.N. Security Council, such as the operations against Iraq after its invasion of Kuwait in 1990, are understood to be prohibited by Article 9.
Whether or not the Self-Defense Forces (SDF) constitutes the minimum necessary military force for individual self-defense continues to be a controversial subject. Many on the left believe that the maintenance of any military forces are a violation of Article 9, while many on the right argue that Japan must be able to engage in both collective self-defense and U.N. authorized collective security operations, for which a more robust military is required. But while Article 9 has been the subject of much controversy and political conflict over the years, paragraph one has operated to keep Japan out of all armed conflicts of the last 65 years, and Article 9 is understood to constitute one of three “pillars” at the core of Japan’s constitutional framework.
The LDP amendment proposals quite radically alter the existing provisions, and address some aspects of the current debate. The most obvious changes are to paragraph two, which is deleted entirely and replaced with several new provisions; but the most significant and potentially dangerous changes, though less obvious, are to the constraints in paragraph one. Let us begin a review of revisions with the replacement of paragraph two.
To give credit where it is due, the deletion of the current paragraph two is not only acceptable, but is necessary. The gap between the reality of the existing SDF and the language of paragraph two is huge, and the continuation of such glaring inconsistency undermines the normative power of the entire constitution. Those who seek to turn back the clock and abolish the SDF are simply being unrealistic. Moreover, the world has not evolved as it was envisioned at the time that the Diet ratified the provision, and the need for some armed forces is undeniable. Similarly, the denial of rights of belligerency, given that the SDF may be deployed for self-defense purposes, makes no sense. So the champions of Article 9 should not take issue with the deletion of paragraph two – this is not where the dangers lie or where the battle should be fought.
The LDP draft replaces paragraph two with two new paragraphs, one of which has five sub-sections. The proposed Article 9(2)(i) explicitly authorizes the maintenance of a “national defense military” (NDM), under the supreme command of the prime minister, for the purpose of ensuring the peace and independence of the country, and the safety of the state and its people. Article 9(2)(ii) provides that the NDM’s activities will be in accordance with law and the approval of the Diet. Again, to give credit where due, this is a laudable attempt to create clearer civilian control over the military, and to firmly condition all military activity upon Diet approval, though it arguably does not go far enough.
Article 9(2)(iii) stipulates that in the NDM’s activities to fulfill its mission in accordance with Article 9(1), it may support the public order and “international cooperation activities” for the purpose of ensuring the peace and security of the international community, as well as being able to engage in operations to defend the life and freedom of the Japanese people. This new provision, when considered in the context of the new Article 9(1), as I will explain below, is highly significant.
Article 9(2)(iv) provides that the activities of the NDM, as defined in the previous provisions, as well as the organization, control, and protection of the secrecy of the NDM, are all to be determined by law. Article 9(2)(v) provides for the establishment of military courts within the NDM for the purposes of prosecuting NDM personnel, as well as other public officials, for crimes connected to the execution of their duties, or relating to the secrecy of the NDM, though it preserves a right of appeal to the courts. This authority for military courts, entirely new, requires much further explanation and clarity. The notion that public officials could be prosecuted in military courts for offenses unrelated to national security issues is ominous indeed.
Finally, in the new paragraph three, Article 9(3), the state, in cooperation with the people of Japan, for the purpose of defending the independence and sovereignty of the state, is obligated to preserve the national territory, territorial waters, and airspace, and all resources therein. This provision too, like Article 9(2)(iii), takes on particular significance when considered in conjunction with Article 9(1), as will be explored below.
Returning to Article 9(1), the changes seem, deceptively, far less radical, but they are profound. This paragraph, in the revised version, is divided into two sub-sections. To take these in reverse order, the entirely new Article 9(1)(ii) provides that the constraints in Article 9(1)(i) do not impede the exercise of the right of self-defense. This move to clarify explicitly the scope of Article 9 is a step in the right direction, but it is insufficient – the provision does not stipulate whether it is individual self-defense or collective self-defense, or both, that is permitted, and thus rather than resolve the debates surrounding interpretation, will likely exacerbate the conflicts over the scope of permissible activity under Article 9.
Article 9(1)(i) looks little changed from paragraph one of the current Article 9. The words remain virtually the same. Yet the slight revision contains the basis for unraveling the binding power of the constraint, like a Trojan horse smuggling in the forces of destruction. While Article 9 now reads, in part: “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;” the proposed revision reads: “the Japanese People renounce war as a sovereign right of the nation, and the threat and use of force as a means of settling international disputes will not be used.”
In other words, the clause “threat or use of force”, which is drawn from Article 2(4) of the U.N. Charter, is no longer subject to the “renunciation” (the eternal nature of which has also disappeared). Rather, the clause is now qualified by the feeble and passive phrase “will not be used.” Not the mandatory prescriptive language of “shall not,” or “must not,” but merely “will not.” So war is renounced, but the use of force is subject only to a weak statement of intent. Particularly in light of the debates during the drafting in 1946 over the nature of the verbs to be employed in Article 9, this revised provision would likely be interpreted as being merely aspirational or hortatory, and certainly not as creating a binding legal prohibition on the use of force. That would be a radical change from the current provision, which is understood to operate as a legal prohibition.
Even the change of the word “or” to “and” in the clause “threat or use of force” – which is part of a clause in international law that is interpreted as prohibiting both the threat of using force and the actual use of force, separately or together – suggests an attempt to undermine the legal force of the clause, by subtly distancing it from its international law origins, and creating ambiguity over precisely what action is subject to the constraint. Is a threat to use force now only prohibited when accompanied by an actual use of force, for instance?
What is more, the operation of the revised Article 9(1) would be further hampered once its meaning is considered in the context of the new provisions of Article 9. Not only does the new Article 9(1)(ii) carve out the right of self-defense, perhaps collective as well as individual, but Article 9(3) creates an affirmative obligation on the state to preserve the nation’s territory and natural resources. What if another country is said to be extracting resources from the territorial waters of Japan? That is not a sufficient basis for the use of force in self-defense under international law, but here in this new Article 9, in the Chapter on National Security, is an apparent constitutional obligation on the state to preserve the nation’s resources, with the implication that it do so with the use of force if necessary.
Similarly, Article 9(2)(iii) provides that the NDM may support “international cooperation activities” for the purpose of ensuring international peace and security. This sounds potentially like authority to participate in UN authorized collective security operations – which is above and beyond the use of force permitted by Article 9(1). But in actual fact, the clause “international cooperation activities” is not a term with any meaning in international law. Thus, the clause would appear to authorize the NDM to participate in any military operations involving more than one other country, whether such operations are UN sponsored or otherwise, and whether they are lawful or not.
In sum, the LDP proposal for the amendment of Article 9 contains some provisions that at first glance appear to be positive steps towards clarifying the scope of the provision’s limits, while legitimating the SDF and imposing some civilian control over the military. Indeed, it will no doubt be argued that the intent was to make such changes while essentially preserving the limits on the use of force. This is not to be believed. Upon close inspection, it is clear that the operation of the subtle but pernicious changes to Article 9(1), in combination with the new provisions, would lead to further conflicts over interpretation, and effectively eviscerate the current constraints on the use of force.
As such, the changes would utterly undermine the normative power of the third pillar of the Japanese constitutional order – that is, the principle of pacifism and non-use of force. For those who believe that this core principle of Japan’s constitution has served it well over the last 65 years, it is important to understand the ramifications, and indeed the real intent, of the LDP’s amendment proposals.
–Craig Martin, Washburn University School of Law