Japan, the SDF and Collective Security: Japan’s De Facto Amendment of its Constitution

Angela Ni, Vol. 37 Associate Editor

Since the end of World War II, Japan has been locked in an internal ideological struggle between normalization of its military capabilities and holding true to its Constitutional promises of refraining from the threat or use of force. In the past, post-War pacifism and geopolitical pressures from other East Asian countries, China in particular, have usually forestalled efforts by the ruling Liberal Democratic Party (“LDP”) to expand Japan’s military endeavors through Constitutional revisions of its Article 9, which expressly prohibits war and denounces the maintenance of land, sea, and air forces for the purpose of waging war.[1] However, regional security concerns stemming from China and North Korea, in addition to recent political efforts from Prime Minister Shinzo Abe, have pushed this long-standing issue to the forefront as Japan’s Parliament, the Diet, voted in favor of new security bills which will expand the Japan Self-Defense Force’s (“SDF”) defensive capacities as well as its role in international peace keeping.[2] Historically, the LDP have justified Japan’s military under the reasoning that, according to the Treaty of Mutual Cooperation and Security between the United States and Japan, Japan has an “inherent right to self-defense” in addition to its obligation to come to the aid of the United States under the doctrine of collective security.[3] Additionally, Japan’s judicial body has traditionally interpreted Article 9 with the view that it should not be taken to mean limitations upon its own choosing to do what is appropriate to accomplish objectives for the purpose of maintaining peace and security.[4] In its only instance of interpretation of Article 9 with respect to its military forces, Japan’s Supreme Court ruled that “it is only natural for our country, in the exercise of powers inherent in a state, to maintain peace and security, to take whatever measures may be necessary for self-defense, and to preserve [our] very existence” and that nothing under Article 9 was intended to prevent Japan from limiting its recourse in a military conflict to relying upon the UN.[5] Nevertheless, Japan’s Supreme Court in the Sunakawa Case still restricted Japan from exercising command of its own forces.[6] Other district court holdings have traditionally avoided the question of the constitutionality of the SDF or have been overturned by its High Court.[7] In July of 2015, the LDP, along with its coalition partner Komeito, propelled a security regulation through the Diet that would allow for broader deployment of Japan’s Self-Defense Forces, including an overturning of its previous military policy of fighting only in self defense.[8] Specifically, the new security bill establishes permanent authority for the government to “allow the SDF to use force in defending allies under armed attack and expands the scope of its use of arms in UN peacekeeping operations.”[9] This reversal came as a result of Prime Minister Shinzo Abe’s “re-interpretation” of Article 9. Under the re-interpretation, Japan would not only be allowed to have the SDF on grounds of self-defense; it would also be theoretically permitted to come to the aid of the United States in discharge of its collective security obligations so long as the purpose is to preserve and maintain peace.[10] While in the past, pacifist sentiments have always won out in Japan due to the long lasting humiliation of WWII, the recent passage of the security bill reforms signals a new era in Japan’s view of its duties under international law as well as its views toward its own Constitution. Strictly speaking, many constitutional law scholars throughout East Asia have interpreted Article 9 as forbidding having any sort of Japanese military forces.[11] Furthermore, the Treaty of Mutual Cooperation and Security between the United States and Japan stipulated that such obligations are subject to “constitutional provisions” of their respective nations in order to take effect.[12] However, real political and security concerns have upset the balance between the urgency of upholding constitutional provisions and practical military needs. There is a sentiment in Japan that perhaps the Constitution should stretch itself to meet emerging security concerns that were not contemplated during its drafting.[13] With the passage of this new security bill, and the demonstrated history of Japan’s judicial system, it seems that the success of Japan’s efforts in increasing the capabilities of its SDF may be inevitable. Assuming that its efforts are in violation of its Constitution, such non-resistance would be essentially a permanent change in the meaning of Article 9 rather than a simple re-interpretation. For a constitutional democracy like Japan, the implications of a de facto constitutional amendment loom large and are worthy of grave contemplation.

[1] Nihonkoku Kenpō [Kenpō] [Constitution], art. 9 (Japan), available at http://japan.kantei.go.jp/constitution_and_government_of_japan/constitution_e.html [2] See Justin McCurry, Japanese Soldiers Could fight Abroad Again After Security Bill Passed, The Guardian UK (Sept 18, 2015) http://www.theguardian.com/world/2015/sep/18/japanese-soldiers-could-fight-abroad-again-after-security-bill-passed. [3] Treaty of Mutual Cooperation and Security between the United States and Japan, Japan-U.S., January 19, 1960, 11 U.S.T. 1632, available at http://www.mofa.go.jp/region/n-america/us/q&a/ref/1.html. [4] See Sakata v. Japan, 13 Keishfi 3225 (Sup. Ct., G.B., Dec. 16, 1959), available at http://www.courts.go.jp/app/hanrei_en/detail?id=13. [5] Id. [6] Id. [7] Article 9 of Constitution (U.S. Library of Congress ed., 2006) available at http://www.loc.gov/law/help/japan-constitution/japan-constitution-article9.pdf. [8] See Craig Martin, Media Should Stop Legitimizing Abe’s Article 9 ‘Reinterpretation, Japan Times (June 12, 2015) http://www.japantimes.co.jp/opinion/2015/06/12/commentary/japan-commentary/media-stop-legitimizing-abes-article-9-reinterpretation. [9] See, e.g., Japan Set to Expand SDF Role in S. Sudan from May under New Laws, Nikkei Review (Sept 22, 2015) http://asia.nikkei.com/Politics-Economy/Policy-Politics/Japan-set-to-expand-SDF-role-in-S.-Sudan-from-May-under-new-laws. [10] Id. [11] Martin, supra note 8 [12] , Treaty of Mutual Cooperation and Security between the United States and Japan, supra note 3. [13] Defense Chief Opposed ‘Deceiving’ People with Constitutional ‘Interpretation Techniques’, Japan Times (June 8, 2015) http://www.japantimes.co.jp/news/2015/06/08/national/politics-diplomacy/defense-chief-opposed-deceiving-people-constitutional-interpretation-techniques.