Issue:
November 2023
An extract from The Annotated Constitution of Japan: A Handbook, edited by Colin P.A. Jones, a professor at Doshisha Law School in Kyoto. It was published in June 2023 by MHM Limited, Tokyo.
The extract is reprinted in the Number 1 Shinbun with the permission of the publisher and the author. For brevity all notes have been omitted.
Article 9: Renunciation of War and War Potential
Colin P.A. Jones
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.
Language and overview
In addition to creating a range of linguistic issues around terminology for SDF equipment and personnel, the Japanese version of Article 9 has certain aspects that are not apparent in the English. First, the “sovereign right” (kokken) in paragraph (1) is the same term as is rendered “state power” in the English version of Article 41. Second, there is no clear corollary to the English “never” in the Japanese version of paragraph (2).
Third, “the right of belligerency” in paragraph (2) in Japanese is kōsenken—which could be more literally translated “the right to conduct war.” This means that it is a concept more closely related to the “war” (sensō) renounced in paragraph (1).
More substantively, the “right of belligerency” is a right that, at the time Article 9 was written, was in the process of dramatic change. The idea of nations having a “right” to engage in war and that doing so triggers various rights and duties vis à vis other countries when they exercise that right harks back to 19th century European thinking about international law. To the extent this view of international law was what was learned by the first generations of postwar constitutional scholars writing on Article 9, it may have been a factor in the various theories about what the clause means. However, insofar as the framework of the international law of conflict was already being restructured under the UN system at the time the constitution was being drafted, “right of belligerency” may describe a right that had been drastically changed. Paragraph (2) does not “renounce” the right, but refuses to recognize it in the first place.
This also demonstrates a subtle but important feature of Article 9 that makes it special; it addresses a sphere where domestic law interfaces with international public law. Thus, it is possible to conceptualize Article 9 as addressing both jus ad bellum (the conditions under which nations are permitted by international law to conduct hostilities) and jus in bello (the rules which must be followed by nations engaged in hostilities, now commonly called “International Humanitarian Law”), with paragraph (1) addressing the former, and paragraph (2) the latter. Moreover, although the two regimes of international law are generally considered separate, it is possible to conceptualize Article 9 as containing a unique waiver of jus in bello belligerency and other rights in paragraph (2) to backstop the waiver of jus ad bellum rights accomplished through paragraph (1).
Judicial interpretations of Article 9
Article 9 received its first—and only—significant judicial interpretation by the Supreme Court in the Sunagawa Case, which was decided in 1959. The Sunagawa Case arose from a large-scale protest over government efforts to expropriate farmland in order to expand the runway at a US air base in Tokyo. In the course of this protest, several demonstrators entered the base and were arrested for trespassing under special criminal provisions established in connection with implementing the US-Japan security treaty as well as the Minor Offenses Act. The defense argument was that the US military constituted “war potential” prohibited by Article 9(2), and that the special criminal statute used to prosecute the defendants thus violated Article 31.
This argument had a receptive audience at the initial trial; the Tokyo District Court agreed with the constitutional arguments and acquitted the defendants, resulting in a highly unusual prosecutorial appeal directly to the Supreme Court. The court overturned the acquittals, finding that it was a high-order political question with implications to Japan’s continuing existence as a sovereign nation and that such matters were not amenable to judicial resolution unless “obviously unconstitutional and void.”
With this articulation of the Japanese version of the “political question” doctrine, the Supreme Court essentially effectively recused itself from the business of interpreting Article 9 absent obvious constitutional violations, and has maintained this policy ever since. Its approach to Article 9 can also be reflected in some of the techniques Japanese courts have used to avoid issuing rulings on constitutionality in other contexts as well.
At the same time, however, the view that the Court abdicated its role overshadows other aspects of its ruling in the Sunagawa Case. Among other things, the court held that since Article 9 does not address foreign military forces, and US forces in Japan were not under Japanese control, they did not constitute war potential, that nothing in Article 9 denied “the right of self-defense inherent in our nation as a sovereign power,” and that the constitution did not prohibit Japan from seeking a security guarantee from another country, even outside the scope of the UN framework. None of these views is inconsistent with Japan’s security policy in practice.
A few lower court decisions have addressed the SDF and Article 9-related disputes, and even generated excited headlines in doing so, but none have resulted in meaningful interpretive changes. For example, the Naganuma Nike Case involved challenges by local residents to the issuance of a permit to use part of a forest designated for conservation for the construction of an SDF missile base. The Sapporo District Court accepted the residents’ claim on the grounds that the SDF was war potential prohibited by the constitution. On appeal the Supreme Court avoided the constitutional issue by finding the residents lacked standing to challenge the permit issuance. This case is also famous in the context of judicial independence (see Article 76).
Another case, the Hyakuri Base Casearose from an effort to block the construction of an SDF base through the purchase by an opposition group of land in the planned location. One party who had contracted to sell his land to the group grew dissatisfied because of their failure to tender full payment, cancelled the contract and sold his land to the government instead. This was challenged in court on the grounds that inter alia, the entry into a contract to purchase land was both an “other act of government” under Article 98 of the constitution and thus also a void act of government due to the Article 9 violations allegedly arising from the establishment and existence of the SDF and the Defense Agency. A second argument was that the contract was void on public policy grounds under Article 90 of the Civil Code due to its unconstitutional subject matter. The Supreme Court rejected these arguments on the grounds that Article 9 did not apply to private law acts such as contracts even when the state was a party.
In 2008 the Nagoya High Court issued a ruling declaring the dispatch of the SDF to Iraq unconstitutional. Although it generated a lot of headlines, it was a classic example of a dasoku hanketsu (literally “snake leg judgment”). Such judgments involve dramatic dicta that is not reflected in the court’s disposition.The case involved a claim for nominal damages and an injunction from a citizens group claiming to have been harmed by the unconstitutional dispatch. The court agreed the dispatch violated Article 9, and recognized the preamble as articulating a right to live in peace, but found that since the plaintiffs had not suffered any actual damages their claims must be rejected. The plaintiffs got the headlines they presumably wanted, the government could not appeal—because it had won—but the judgment didn’t require it to change its behavior either: a win-win for everyone!
Other interpretations of Article 9
In the absence of post-Sunagawa Case judicial guidance, interpretation of what the various provisions of Article 9 mean have fallen to academics and other government branches. An overview of the scholarly interpretations of Article 9 could easily fill a large book while potentially misleading readers about constitutional reality. For example, some constitutional texts make a point of identifying interpretive theories to the effect that Article 9 has resulted in Japan abandoning the right to even self-defense, relying instead on “the justice and faith of the peace-loving peoples of the world” (Preamble) and being prohibited from having even latent war potential (such as nuclear power). Yet these viewpoints are not just academic but incompatible with reality. Accordingly, other than pointing out the existence of a rich body of academic literature on the meaning of Article 9, the discussion in this book will not delve into them deeply.
As with other constitutional issues and questions that have proven difficult to resolve through judicial review, the next most authoritative interpretation is that given by the government—cabinet members or high-level government officials. These interpretations may be generated through responses to questions asked at legislative committee meetings, press conferences or interpellations from (opposition) Diet members (see Article 63). This last category of questions is perhaps the most formal, and involves a well-established documentary process (reflected in part in Articles 74 and 75 of the Diet Act), and the responses are prepared and vetted by the Cabinet Legislation Bureau and other relevant government institutions before being formally approved by the Cabinet.
Thus, to the extent Article 9 creates constraints on the Japanese government’s scope and use of its military power, these constraints are most likely to manifest themselves in the contours of answers to questions that are often very specific in nature. To a distant observer it may seem that the government is able to “arbitrarily” announce a constitutional interpretation that is convenient at the time, but the interpretation is “binding” in the sense that future changes or diversions from that interpretation will be challenged and require explanation. For example, the government’s longstanding view was that three conditions had to be met for the constitutional use of force in self-defense: (1) the minimum use of force necessary, used to (2) eliminate an immediate threat to Japan, that (3) cannot be removed through other appropriate means. As discussed below, the process of interpretively changing these “three conditions for self-defense” was by no means easy or uncontroversial.
These question-answer based interpretations are diverse and widely dispersed as a source of information. For example, on November 9, 1990, Sumiko Shimizu, a socialist Diet Member, submitted a series of questions about the Japanese government’s contribution of funds to assist in the liberation of Kuwait, including whether funding the use of force by the United States outside the scope of the mutual defense treaty did not constitute “collective self-defense” prohibited by Article 9 (under the interpretation at the time). On November 27 the government issued its response which included its interpretation that merely providing money did not constitute overt acts comprising collective self-defense activities.
Participation in collective self-defense activities—using military force to assist allies and other friendly nations from attacks not made directly against Japan—has been a particularly controversial issue for decades. To the frustration of multiple prime ministers (some of whom preferred to expend political capital on economic development rather than resolving constitutional questions), the Cabinet Legislation Bureau, which, in addition to vetting cabinet legislative proposals, provides legal advice to the Cabinet, for decades held to the view that, even though collective self-defense was an inherent right of sovereign nations and anticipated by Article 51 of the UN Charter, Article 9 prohibited Japan from exercising this right.
{remainder of this section omitted for brevity}
Colin P.A. Jones is a professor at Doshisha Law School in Kyoto. A graduate of U.C. Berkeley, he did graduate work at Tohoku University (LL.M.) and Duke Law School (J.D., LL.M.). He is also a lawyer admitted to the bar in New York and the Republic of Palau (inactive status) He has published widely in both Japanese and English, with a particular focus on Japanese law. His books include The Japanese Legal System and The Japanese Legal System in a Nutshell (both from West Academic and co-authored with Frank Ravitch) and Obey, Not Know: Essays in Japanese Law and Society (Kurodahan Press).
