Article 9 of the Constitution of Japan (日本国憲法第9条, Nihon koku kenpō dai kyū-jō) is a clause in the Constitution of Japan outlawing war as a means to settle international disputes involving the state. The Constitution was drafted following the surrender of Japan in World War II. It came into effect on 3 May 1947 during the occupation of Japan by the Allies, which lasted until 28 April 1952. In its text, the state formally renounces the sovereign right of belligerency and aims at an international peace based on justice and order. The article also states that, to accomplish these aims, armed forces with war potential will not be maintained. The Constitution was imposed by U.S. military occupation (Supreme Commander for the Allied Powers) to prevent rearmament of Japan in the post–World War II period. This condition was a similar prohibition placed on post-war Germany, to be overseen by the United Kingdom, after World War I. However, Germany remilitarized anyway in the decades following despite this prohibition under the Weimar Republic and later Adolf Hitler's regime. This was a leading call for the Allied mandate, and the continuing US defense agreements that would render aid in maintaining Japanese sovereignty in the event of a foreign attack.
There are the post-occupation U.S. military stationed in Japan under the U.S.–Japan Mutual Cooperation and Security Treaty and Japan Self-Defense Forces (JSDF) which was founded in 1954 as de facto postwar Japanese military. Prime Minister Shinzo Abe approved a reinterpretation which gave more powers to the JSDF in 2014, which was passed by the Legislation for Peace and Security in 2015.
Contents
Text of the article
The full text of the article in Japanese:
The official English translation of the article is:
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.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.
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 belligerency, and if the Security Council which had been a "closed shop" during League of Nations times, would open itself up to U.N. Members who would cede constitutional powers in favor of collective security. 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 1947 constitution during the occupation that lasted until 28 April 1952 following the defeat of Japan in the World War II.
The source of the pacifist clause is disputed. According to the Allied Supreme Commander Douglas MacArthur (in statements made at a time when the U.S. was trying to get Japan to re-arm), the provision was suggested by Prime Minister Kijūrō Shidehara, who "wanted it to prohibit any military establishment for Japan—any military establishment whatsoever". Shidehara's perspective was that retention of arms would be "meaningless" for the Japanese in the post-war era, because any substandard post-war military would no longer gain the respect of the people, and would actually cause people to obsess with the subject of rearming Japan. 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 journey to Tokyo; MacArthur himself confirmed Shidehara's authorship on several occasions. However, according to some interpretations, he denied having done so, and the inclusion of Article 9 was mainly brought about by the members of the Government Section of the Supreme Commander for the Allied Powers, especially Charles Kades, one of Douglas MacArthur's closest associates. There is, however, another theory by constitutional scholar Toshiyoshi Miyazawa, which is supported by significant evidence provided by other historians, that the idea came from MacArthur himself and that Shidehara was merely a pawn in his plans. Most recent research, however, has conclusively corroborated Shidehara's authorship.
After World War II, the Japanese government began revising the Constitution. However, it initially intended only limited changes to the Constitution of the Empire of Japan, such as consolidating the Army and Navy under the single term “military” and requiring parliamentary approval for military actions.
Interpretation
Soon after the adoption of the Constitution of Japan on 3 May 1947, the Chinese Civil War ended in victory for the Chinese Communist Party in 1949 and the establishment of the People's Republic of China (PRC). As a consequence, the United States was left without the Republic of China (ROC) on Mainland 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.
If Article 9 is looked upon as a motion to abolish war as an institution—as envisaged in the 1961 McCloy–Zorin Accords—then the Korean crisis was the first opportunity for another country to second the Japanese motion and embark on the transition toward a true system of collective security under the United Nations. In fact, however, 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, and so Japan was left 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". Mosaburō Suzuki, a leader of the Japan Socialist Party, 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.
On 1 August 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. In 1954, the National Safety Agency became the Japan Defense Agency (now Ministry of Defense), and the National Police Reserve became the Japan Self-Defense Forces (自衛隊, Jieitai).
In practice, the Japan Self-Defense Forces (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.
2014 reinterpretation
In July 2014, Prime Minister Shinzo Abe (coalition government of the Liberal Democratic and Komeito Party) approved a reinterpretation of Article 9. This reinterpretation allows Japan to exercise the right of "collective self-defense" in some instances and to engage in military action if one of its allies were to be attacked. The Japanese National Diet made the reinterpretation official in September 2015 by enacting a series of laws allowing the Japan Self-Defense Forces to provide material support to allies engaged in combat internationally in an "existential crisis situation" for Japan. The stated justification was that failing to defend or support an ally would weaken alliances and endanger Japan.
It is considered by some parties as illegitimate since the Prime Minister circumvented the constitutional amendment procedure, dictating a radical change to the meaning of fundamental principles in the Constitution by way of Cabinet fiat without Diet debate, vote, or public approval. International reaction to this move was mixed. China expressed a negative view of this reinterpretation, while the US, the Philippines, Vietnam, and Indonesia reacted positively. The government of South Korea did not oppose the reinterpretation, but noted that it would not approve of JSDF operations in and around the Korean peninsula without its request or approval, and called upon Japan to act in a way that would win the trust of neighboring states.
In May 2017, Japanese Prime Minister Abe set a 2020 deadline for revising Article 9, which would legitimize the JSDF in the Constitution. Abe retired in 2020 due to health problems without revising Article 9.
Debate
Article 9 of the Constitution of Japan is best understood as having three distinct elements: (1) a provision that prohibits the use of force (paragraph one); (2) a provision that prohibits the maintenance of armed forces or "other war potential" (paragraph two, clause one); and (3) a denial of the rights of belligerency. It is helpful to keep these distinct elements in mind in considering the operation and effect of Article 9. Paragraph one, which prohibits the use of force has been highly effective in constraining Japanese foreign policy, with the result that Japan has not used force or been engaged in armed conflict since the promulgation of the Constitution. During the Gulf War of 1991, the government of Japan sought to join the U.S. coalition formed to drive Iraq out of Kuwait, but was informed by the Director of the Cabinet Legislation Bureau that doing so would constitute a use of force in violation of Article 9 paragraph one - so Japan was limited to providing financial assistance.
The second element of Article 9, which prohibits Japan from maintaining an army, navy or air force, has been highly controversial, and arguably less effective in shaping policy. From one perspective, one implication of the provision is that in strictly legal terms, the Japan Self-Defense Forces are not land, sea or air forces, but are extensions of the national police force. This has had broad implications for foreign, security and defense policy. According to the Japanese government, "'war potential' in paragraph two means force exceeding a minimum level necessary for self-defense. Anything at or below that level does not constitute war potential." Apparently when the JSDF was created, "since the capability of the JSDF was inadequate to sustain a modern war, it was not war potential". Seemingly, the Japanese government has looked for loopholes in the wording of the peace clause and the "constitutionality of the Japanese military has been challenged numerous times". Some Japanese people believe that Japan should be truly pacifist and claim that the JSDF is unconstitutional. The Supreme Court, however, has ruled that it is within the nation's right to have the capacity to defend itself. Scholars have also discussed "constitutional transformation ... [which] occurs when a constitutional provision has lost its effectiveness but has been replaced by a new meaning". The use of private military companies is also ambiguous in nature and subjected to various interpretations.
The Liberal Democratic Party has advocated changing the context of Article 9 since 1955, when Article 9 was interpreted 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 LDP's longtime coalition partner Komeito have long opposed changing the context of Article 9. The LDP have never had the necessary supermajority (two-thirds of votes in both Houses) in the National Diet to change the Constitution, despite it having a supermajority with Komeito from 2005 to 2009 and from 2012 to 2021.