[By Craig Martin, reprinted from 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: 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.
Public opinion on Article 9 is shifting in response. The reality is that the left can no longer count on the public rejecting all amendments of Article 9, and so it must start developing reasonable alternatives to the more dangerous proposals advanced by the right. If it loses the fight and Article 9 is to be amended, and the left has no viable alternatives to the proposals of the right to offer the nation, the Japanese people will be left to vote on amendments designed to gut the provision’s constraints on the use of force.
Even if the left is successful in preventing any amendments, shifts in policy have been chipping away at the constraints of Article 9 since 9/11, and there is a risk of it being disregarded to the point of becoming utterly ineffective. So either way, the more effective constraints of Article 9, that is the limitation on the use of force, is at risk of being undermined if the left insists on its position of outright rejection.
In addition to such strategic reasons, however, there are powerful legal arguments in favor of amending Article 9, in order to preserve the integrity and normative power of the constitutional order itself. Recall that Article 9 has two paragraphs, with three distinct 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. Paragraph two contains two clauses, the first providing that Japan will never maintain land, sea, and air forces, or any other war potential; and the second, providing that the rights of belligerency will not be recognized.
The long-accepted interpretation of paragraph one is that Japan retains a right of individual self-defense, but is prohibited from any other use of force, including for collective self-defense or collective security operations authorized by the U.N. Security Council, both of which are lawful under international law. This clause has effectively constrained Japanese policy, preventing Japan from engaging in any armed conflict for 65 years.
Nonetheless, the language of paragraph one has been interpreted in a way that leaves room for debate, such that there continues to be disagreement over precisely what is permitted and what not, and there have been recent efforts to evade the constraint in policy making. Thus, a revision of the provision to clarify, in terms consistent with concepts drawn from international law, would help reduce the ambiguity and conflict, and thus strengthen the effective constraint exercised by the provision.
This will require that some serious questions be addressed and finally resolved in the debate over amendment. Assuming that we can all agree that Japan should be entitled to exercise its right of individual self-defense, what other use of force should it be constitutionally authorized to engage in? Should Article 9(1) explicitly permit Japan to participate in collective security operations authorized by the United Nations, such as the international operation to expel Iraq from Kuwait in 1991? Ichiro Ozawa, for instance, argues that this would be consistent with language in the preamble of the Constitution, and is necessary for Japan to fulfill its international obligations.
But should Japan then also be permitted to engage in collective self-defense, such as the international invasion of Afghanistan in 2001 in response to the 9/11 attacks? Ozawa and others argue that collective self-defense, which does not require U.N. authorization, is a step too far. It could be that both options, neither option, or one but not the other are accepted, but these issues need to be debated fully and a decision made.
I do not here endorse any one position, but I do argue that a clear and intelligible provision is required. Fudging the issue with ambiguous language and using concepts with no meaning in international law, such as the LDP-proposed provision permitting the use of force in “international cooperation activities,” is a recipe for further political conflict, uncertainty, and ultimately the erosion of the constitutional constraint to the point that Japan could participate in unlawful wars of aggression without violating the provision.
Turning to paragraph two, I would suggest that both existing clauses should be deleted, as proposed by the Liberal Democratic Party. While many Article 9 supporters defend the validity and importance of the prohibition on the maintenance of armed forces, this clause is now a threat to the normative power of the Constitution as a whole.
Notwithstanding the official line to the contrary, under any functional and objective measure Japan has armed forces. And with the fifth largest military budget in the world, increasing power projection capabilities, and a highly sophisticated navy, it is hard to accept that the SDF is the minimum necessary for individual self-defense—which is what Japan is limited to under the official interpretation of paragraph two of Article 9.
The reality is that this clause has been largely ignored in developing the SDF. And given the strategic environment in East Asia, it is utopian to think that such developments can possibly be reversed. Moreover, arguments over whether military forces are “offensive” or “defensive” in nature are nonsensical, and a constitutional provision that would require determinations along such lines is unenforceable.
The fact is that there is a large and ever growing gap between the reality of Japan’s military capability and the legal prohibition in the Constitution, and regardless of what advocates may hope for, that inconsistency is not going to be resolved through reductions to the armed forces. Notwithstanding strained explanations to the contrary, the provision has been hollowed out. And a constitutional provision that is continuously violated and disregarded by the state erodes the credibility and normative power of the entire constitutional framework. It is time to recognize the constitutionality of the SDF, and impose clear controls on its operations.
As for the clause denying the rights of belligerency, it is a unique constitutional provision developed from principles of international humanitarian law. The clause would operate at the domestic level to undermine the rights and privileges that SDF members would normally enjoy as a matter of international law when engaged in armed conflict.
Since the SDF is now permitted to engage in U.N. peacekeeping operations, and is entitled to use force in self-defense, the clause is inconsistent with the accepted understanding of paragraph one.
In place of the deleted paragraph two, however, supporters of Article 9 should develop and promote a number of new provisions that would secure civilian control over the military and ensure adherence to the constraints on the use of force in paragraph one. First, in the draft proposal a new paragraph two would establish a clear civilian command structure, with the prime minister as commander in chief; create a standing committee in the Diet to exercise direct oversight of military deployment and operations; and provide limitations on the service of senior military officers in other areas of government.
Even more important, a new paragraph three would establish explicit requirements that the Diet provide approval for each and every use of force, as that term is understood in paragraph one and in international law, and for every deployment of the SDF for non-use of force actions such as U.N. peacekeeping operations.
Such constitutional war powers provisions, which date back to the U.S. Constitution, and which have theoretical origins in the writings of Kant, Madison and others, are becoming increasingly common in the constitutions of democracies all around the world.
Such provisions are based on the idea that it is important for the direct representatives of the people, who will be paying for and often dying in the wars decided upon by executive branch of government, to have a direct say in the decision-making process. Moreover, requiring legislative approval, and thus a separation of the power to decide on making war, ensures wide public debate with intense interrogation of the government’s rationales for wanting to use force. This makes for better decisions, and makes military misadventure less likely.
The convention for Diet approval already exists in Japan, and it is indeed criticized as being cumbersome and time consuming. But the decision to engage in armed conflict should be difficult, and if the government cannot convince the legislature that such use of force is necessary, then it suggests that the policy is indeed not required.
Finally, a new paragraph four would establish an explicit authority and responsibility for the courts to exercise their power of judicial review of government decisions or actions alleged to be in violation of Article 9. The Constitution already confers upon the Japanese courts robust powers of judicial review, and establishes that the courts are the ultimate authority for interpreting the Constitution, but the Supreme Court has largely abdicated this authority in the context of enforcing Article 9.
Through dubious application of the “political question” doctrine (a controversial doctrine developed by American courts to insulate certain types of issue as being non-justiciable by the courts, primarily because their resolution falls under the authority of another branch of government), and the creation of increasingly narrow grounds for “standing” (the legitimate legal basis upon which one can commence constitutional claims) the Supreme Court has almost entirely insulated Article 9 from any possible enforcement by the courts. This has greatly weakened the provision, and has more generally undermined the scheme of constitutional separation of powers. An explicit provision is thus required to establish judicial review powers with respect to Article 9 itself. It should provide for a broad range of possible remedies, and it should grant broad standing so that regular citizens could advance claims when the government is perceived to have violated the provision.
This is just the summary of one proposal, offered as a basis for further discussion. But such discussion among defenders of Article 9 is urgently required. When the language of Article 9 was being debated in the Diet in 1946, it was argued that Article 9 would put Japan in the vanguard of a new movement toward international peace. The constraint on the use of force in paragraph one has indeed effectively operated to shape Japanese foreign policy, such that it has not been in an armed conflict in 65 years. Moreover, Article 9 has helped to foster pacifism as a central strand of Japan’s post-war national identity.
Nonetheless, the international system has not evolved as envisioned in 1946. The world and Japan’s role in it have changed, and the conflicts over the proper interpretation of the Constitution have only grown over time. Article 9 itself must be amended in recognition of these shifting realities if it is not to be revised into oblivion or made utterly irrelevant by policies that violate it with impunity. In short, Article 9 must be amended to help preserve it.
–Craig Martin, Washburn University School of Law