Change It to Save It :Why and How to Amend Article 9
Craig Martin（Professor of Law, Washburn University School of Law）

INTRODUCTION

Article 9. The political forces are moving in favor of

Article 9 of the Constitution of Japan has beensome form of amendment, and thus there is an in-

the subject of considerable debate since the time ofcreasing risk that the ＂no amendment at any cost＂the very drafting of the Constitution in 1946. Factions

forces will lose. Thus, the champions of Article 9

within the Liberal Democratic Party (LDP) havemust develop meaningful and persuasive alternativesought to amend it, in order to weaken and dilute theamendment proposals to put before the Japaneseprovision＇s restrictions on Japan＇s military power,

people. If the left has no amendment proposals withthroughout the more than 60 years it has held power

which to respond to the LDP＇s dangerous proposals,

since 1955. A complex dynamic of political and publicthen if amendment comes, Japan will have only one

opposition,1 however, has until now prevented any

alternative to consider. What is more, even if the LDP

such amendment. The opponents of the LDP＇s efforts

fails to mobilize sufficient support for amendment into relax the constraints imposed by Article 9 havesome form, the recent ＂reinterpretation＂ of Article 9

historically thought that vehement and uncompro-

may stand the test of time and operate to radicallymising opposition to any amendment of Article 9 wastransform the meaning of the provision in any event.

the most effective way to defend the core values ofIn that case, the arguments in favor of amending Art-

the provision. The underlying fear has been that any

icle 9, for the purpose of preserving its core limits,

concession to some form of minor amendment to any

become that much stronger.

aspect of Article 9 will simply open the flood-gates to

In this article I lay out an argument for why andthe eventual elimination of the provision＇s constraints

how Article 9 should be amended, from the perspect-

altogether. While the political right views amend-

ive of those who think that the core limits of thement as essential to Japan becoming a ＂normal coun-provision should be preserved. It is an argument thattry＂, fulfilling its international obligations and develop-

is both grounded in constitutional law principles, anding a defense posture proportionate to increasing

one that aims to remain loyal to the purpose andregional national security threats, the political left has

spirit with which Article 9 was ratified. It suggests

viewed all such efforts with deep suspicion, and pre-that there are legal reasons why Article 9 ought to beferred a complete bar to any amendment rather thanamended, and there are ways in which Article 9

risk a slide to re-militarization, entanglements incould be amended that would nonetheless remain

American wars, and possibly even the militarism oftrue to the peaceful and internationalist objectives

the pre-war era.

that animated those who ratified the constitution in

In this article I suggest that the opponents of1946. It is an argument that is informed by principles

amendment can no longer afford to simply oppose allof international and constitutional law that are un-amendment efforts. I say this as someone who hasderstood to play a vital role in enhancing the peacefulspent years studying Article 9, who believes it has

tendencies of democracies. Such arguments stand inserved Japan well, and is sympathetic to the desire tocontrast with those proposals to amend Article 9 thatmaintain the core limits on Japanese involvement inare apparently based on purely political and policy

armed conflict. But dogmatic adherence to the cur-considerations, and which are designed to essentiallyrent provision will fail to preserve the core limits ofundermine2－ 47 －

theprovision＇s

effectivenessasa立命館平和研究第18号（2017.3）

meaningful legal constraint on Japan＇s foreign policy.

The provision has three distinct elements: First,

In considering ＂how＂ to amend Article 9, this article

in the first paragraph, it prohibits war and the use ofincludes an appendix with a specific amendment

force for settling international disputes; second, in the

proposal as the basis for serious discussion aboutfirst part of the second paragraph, it prohibits thealternatives. It is an amendment proposal that ismaintenance of armed forces or ＂other war potential＂;meant to serve as a starting point for discussion of aand third, in the final clause of paragraph two, it pro-more realistic and meaningful alternative than thevides that the rights of belligerency will not be rec-current position taken by pro-Article 9 advocates,

ognized. It is the first and second elements that have

which is simply to reject any and all talk of revision.

proved the most controversial, while the third is typ-

In laying out this proposal, I will touch on some of theically ignored and very often misunderstood. The

dangers inherent in both the proposals of the LDP,

first paragraph, what I will refer to as Article 9(1),as well as the recent ＂reinterpretation＂ effort of the

explicitly incorporates principles from the interna-

Abe government, but I will also emphasize that simply

tional law system that govern the use of force by

maintaining the status quo is no longer in the best

nation states against one another, the jus ad bellum

interest of the constitutional order or the normative

regime.3 An interpretation of this provision that was

power of Article 9 itself.

informed by both the meaning of those internationallaw principles, and the drafting and ratification his-I ‒ THE MEANING AND OPERATION OF
ARTICLE 9

tory, would likely conclude that the provision prohibited all use of force, including that employed in self-

In thinking about both why and how Article 9

defense.4 However, as will be discussed below, theought to be amended, it is necessary to have a base-long-established official interpretation is that it per-line understanding of what it means. This is the sub-mits the use of force strictly for the exercise of theject of considerable debate in the political, policy andright of individual self-defense.

academic spheres. Moreover, as is well known, theThe second paragraph, what I will refer to as

government has recently purported to change theArticle 9(2), is unique and rather odd. The first

meaning of Article 9 in the absence of any amend-clause is largely without precedent in any other con-ment—an issue that will be discussed below. None-

stitution. The plain meaning of the text, along with atheless, leaving aside the particulars of that debate, it

study of the history of the drafting and ratification ofis helpful to sketch out the broad concepts, as well as

the provision, would suggest that the first clause in

explain the formal and long-established government

Article 9(2) prohibits the maintenance of any mili-position.

tary forces whatsoever.5 But this too has been subject
to a more expansive and permissive official interpretation, as will be explained below.

9

The third element, being the second clause in

It is perhaps best to begin with the text. Article

Article 9(2), is typically ignored and frequently mis-

9 provides that:
Article 9 – Aspiring sincerely to an international

understood in most Article 9 discourse. It constitutes

peace based on justice and order, the Japanese

the incorporation of principles of international hu-

people forever renounce war as a sovereign rightmanitarian law (or jus in bello) to deny individualof the nation and the threat or use of force asmembers of the armed forces of Japan, as a matter ofmeans of settling international disputes.

domestic law, the privileges and immunities that they

In order to accomplish the aim of the preceding

would otherwise enjoy as belligerents in an armed

paragraph, land, sea, and air forces, as well as

conflict. This constitutional clause would not, ofother war potential, will never be maintained.

course, have any impact on the rights and obligations

The right of belligerency of the state will not beof Japanese armed forces as a matter of internationalrecognized.

law, and it is a curious provision with no parallel in－ 48 －

Change It to Save It : Why and How to Amend Article 9（Craig Martin）

any other constitution. As I will discuss in more detailfor individual self-defense, but also interpreted the

below, there is a competing theory that the clause issecond paragraph as therefore only prohibiting aa redundant restatement of prohibition in Article

maintenance of armed forces that exceeded the min-9(1), though for reasons I have provided elsewhere, I

imum necessary for such individual self-defense.12 At

would suggest that this is incorrect.6

the same time, while interpreting the provision as

While I cannot here review the drafting and rat-

permitting individual self-defense, the CLB also en-

ification history, it is important to note a number oftrenched the understanding that Article 9(1) prohib-

important features of the process. (a process whichited the use of force for collective self-defense underinvolved intense debate and revision over the course

Article 51 of the UN Charter, and for collective secu-

of more than a year in the Privy Council and each ofrity operations authorized by the United Nations Se-

the two chambers of the Diet). The Japanese gov-

curity Council under Article 42 of the Charter.13

7ernment itself took the position during the revision

The Supreme Court of Japan, which has signifi-

and ratification process that Article 9 precluded allcant and clear powers of judicial review under the8

use of force and maintenance of any armed forces.

Constitution, and is the primary authority for inter-

The government was, of course, under some pressure

preting the Constitution, has largely abdicated its

from the staff of General MacArthur, which had

responsibility for enforcing Article 9. The Sunagawa

drafted the provision, but the Diet members whocase, decided in 1959 in the midst of negotiations forconsidered it for purposes of ratification, and who

renewal of the U.S.-Japan Security Treaty, is the only

were then unaware of the U.S. role in its creation, also

case in which the Court has directly addressed theembraced this position. This was not animated solely

meaning of Article 9. In obiter dicta the majority en-

by a desire to ensure against the militaristic errors

dorsed the view that Article 9(1) did not prohibit thethat had led to national disaster. In both houses of theuse of force for individual self-defense.14 As will be

Diet and in the Privy Council, members of the gov-

discussed in more detail below, however, the Court

ernment and rank and file Diet members made im-

invoked the political question doctrine in dismissing

passioned speeches about how Japan would, throughthe claim that the treaty and the presence of U.S.

9

its adoption of this constitution, come to represent theforces in Japan violated Article 9(2). Moreover, somevanguard of nations in establishing a new and moretwenty years later, in a direct challenge to the con-peaceful international order.10 It was in this process

stitutionality of the Japanese Self Defense Forcesthat Article 9 began to be embraced not only by seg-(the SDF), the Court narrowed the standing require-ments of the political elite (though there were strongments to the point that constitutional challenges of

opposing forces among these as well, to be sure), butgovernment law or policy for violating Article 9 are

also by the people of Japan. It was the beginning of a

now all but impossible.15

process by which Article 9 would become a powerful

The CLB, however, stepped into the institutional

constitutive norm, providing the legal foundation forrole of maintaining a consistent interpretation of Art-11

a new national identity centered on pacifist ideals.

icle 9 over the years, and effectively ensuring gov-

This is important in thinking about how to retain theernment compliance with the provision.16 It has success-essential purpose and spirit of the provision.

fully done so, right down until the ＂reinterpretation＂

Notwithstanding the early understanding andof 2014. While the clarity of the government＇s posi-

apparent intent, the first formal government inter-tion, and thus the precise scope of Article 9(1), has

pretation, established in 1954, was that the first para-

been undermined by policy statements such as thegraph of Article 9 permits the use of force for the

U.S.-Japan 1997 Guidelines, and some of Japan＇s mili-individual self-defense of Japan. This interpretation

tary deployments since 9/11, as a formal matter thiswas based upon an opinion provided by the Cabinet

legal interpretation—limiting the permissible use ofLegislation Bureau (CLB), which not only interpret-

force to only individual self-defense, and prohibitinged the first paragraph as permitting the use of force

collective self-defense and collective security operations－ 49 －

立命館平和研究第18号（2017.3）

authorized by the United Nations Security Council—

istic missile defense systems, and is developing in-has been consistently maintained.

creasing force projection capabilities.19 It is widely

17

It is important to understand the extent to whichargued that such military capability is far in excess of

Article 9(1), and the government＇s interpretation ofwhat is permitted by Article 9(2).20 The official inter-it, goes further than the jus ad bellum regime in in-pretation of Article 9(2) relies upon the first sen-ternational law, in the sense that it imposes greater

tence of the paragraph, which refers to fulfilling theconstraints on the use of force than does the UN

purposes of Article 9(1), to mean that the clause only

Charter. It was precisely because of this that there

prohibits armed forces or other war potential thatwas considerable concern among Japanese politicians

could be used for the type of force that is renounced

during the ratification process as to whether Article

in Article 9(1)—that is, any use of force above and9 would make it impossible for Japan to comply withbeyond individual self-defense.21 It is thus understood

what were then understood as legal obligations underto prohibit the kind of military capability that could

the UN Charter to contribute forces and participate

enable not only acts of aggression, but also participa-in collective security operations. But given thetion in collective self-defense or collective security

manner in which the international collective security

operations.

system has developed, Article 9 does not put Japan

Whether or not one can really make meaningful

at odds with international law. It deprives Japan of

distinctions between military capability that is strict-rights it would otherwise have under internationally for individual self-defense and that which exceeds

law, namely the right to use force in collective self-such requirements is the basis for much criticism.22

defense or in collective security operations—but

As a constitutional constraint Article 9(2) is highly

there is no legal duty on Japan to engage in such

ambiguous and not really capable of enforcement, as

operations. And states, like other legal entities, areI will return to below. But even on the basis of thisalways at liberty to waive their own rights. It may be,interpretation, there is a wide and growing chasmas Ozawa Ichirō and others have argued, that Article

between that which is permitted by the constitution,9(1) constrains Japan in ways that prevent it fromand the reality on the ground. Nonetheless, many18

contributing to international peace and cooperation tohave argued that Japanese military capability would

the extent that many would like, or to the degree

have been much greater had Article 9(2) not pro-expected by its allies, but it does not cause Japan tovided some foundation for political and popular op-

violate the principles of international law. Moreover,position to the SDF and defense spending.23 It cannot

the provisions of Article 9(2) do not have, as a matterbe said that it has not had any effect, but as will beof law, any relevance to the jus ad bellum regime

discussed further below, Article 9(2) has not oper-

whatsoever, even though they were no doubt con-ated as a clear constitutional rule effectively con-ceived to limit Japan＇s ability to use force, and thus tostraining government policy.
In contrast to the ambiguity and ineffectivenessprevent Japan from violating the principles of thatof Article 9(2), however, the government interpreta-regime.

tion of Article 9(1) provides much clearer and more

9

enforceable limits, and the provision has operated to

An important question remains, however, re-effectively constrain government policy over the six

garding how effective Article 9 has been as a mean-

decades since its promulgation.24 In the early 1950s

ingful constraint on national policy. Much of the con-

Yoshida Shigeru＇s government used the Article 9(1)troversy surrounding Article 9 has been related toconstraints as a useful shield against American pres-the existence and increasing size of the SDF. Japan＇s

sure to contribute more to the alliance and to par-defense budget ranks seventh or eighth in the world,

ticipate in international peace and security opera-

it has one of the most sophisticated naval forces intions. While cynical at the outset, this use of Article

Asia, it is cooperating with the United States in ball-9(1) nonetheless strengthened the normative power－ 50 －

Change It to Save It : Why and How to Amend Article 9（Craig Martin）

of Article 9(1), and helped reinforce the growing

question is whether the champions of Article 9 willsocial, political and legal norms that were anchored inhave any proposals ready to shape the nature of that

the Article 9(1) renunciation of the use of force. Overchange. But while those reasons provide an impor-time, Article 9(1) thus came to comprise a real con-tant context and impetus for my arguments, in thisstraint on policy. This was most clearly illustrated

article I am primarily focused on the legal and consti-

during the Gulf War. The government felt a powerfultutional reasons for suggesting that champions of Art-

need to participate militarily in the coalition opera-

icle 9 develop and support an alternative amendment

tions to drive Iraqi forces out of Kuwait, but the Di-

proposal. These reasons are, in short, that Article 9

rector of the CLB advised that the government＇s pro-suffers from increasing weaknesses that are under-

posed actions would constitute a use of force and thus

mining the normative power of the provision and theviolate Article 9. When the government proposedconstitution as a whole; the LDP amendment propos-

legislation for the contribution of non-combat related

als are dangerous, and thus demand a viable alterna-

logistical support, it was defeated in the Diet on

tive; and finally, in the absence of any amendment,

grounds that it too would violate Article 9. Notwith-the ＂reinterpretation＂ of Article 9 will fatally erode

standing the enormous pressure from Washington

the core restraints of Article 9(1).

25

and the deeply felt sense that inaction was causing amajor diplomatic crisis for Japan, Article 9(1) mobi-

9

lized sufficient institutional compliance to prevent

As explained earlier, Article 9(1) has operated

government action that would have violated the pro-consistently and effectively as a relatively clear con-vision.

stitutional rule, prohibiting the use of force for any

26

purpose other than individual self-defense. But the

II ‒ WHY AMEND ARTICLE 9?

Article 9(2) prohibition on the maintenance of armed

With this brief introduction to the establishedforces or ＂other war potential＂ has been historicallymeaning and operation of Article 9, we can now turninterpreted in such a way that it cannot operate as a

our attention to the questions of why it should beclear constitutional rule. It is, at best, an ambiguouschanged. Some of the important reasons are more

standard. This is due primarily to two aspects of thepolitical and strategic than legal. This is so because

way in which it was interpreted. First, the idea that

all the indications are that the tide is in the direction

it permits such levels of military capability that wouldof inevitable change. There is growing public concern

be necessary for individual self-defense, creates aabout increased threats and insecurity in the region,

sliding scale that depends on the perceived external

emanating from North Korea and China, coupled withnational security threat. The level of armed forces

increasing doubts about American commitments tonecessary for defense is thus relative to the capability

Japan＇s defense, all of which is leading to an erosionof other countries. Tied to this is the idea that theof the traditional public opposition to any amendment

prohibition only really applies to military capabilityof Article 9. At the same time, none of the major po-

and weapons systems that are inherently offensive,

litical parties sitting in opposition to the LDP are

which in turn depends on the notion that there iscommitted to defending Article 9 at all costs the way

some intrinsic difference between offensive and de-the old Socialist Party was, and there is no other or-

fensive weapons systems or levels of military capa-

ganized institutional resistance that is likely to pre-bility.27

vent LDP amendment initiatives. Finally, there is theThis relative and elastic interpretation of theincreasing likelihood that the LDP will for some timeprohibition on the maintenance of armed forces andhave the two thirds majority in the Diet necessary toother war potential has allowed for Japan＇s slow but

initiate constitutional change. All of these develop-

inexorable development of a formidable militaryments point to the likely failure of any effort to simply

force. While most Japanese continue to insist that theblock amendment. So change is likely coming, and the

SDF is not a military, it is most certainly a military in－ 51 －

立命館平和研究第18号（2017.3）

all but name. What is more, while the number ofapparent gulf between the stated norm and the real-

troops in the Ground Self Defense Forces is small

ity that it is supposed to govern is acutely dangerous

compared to China or the Koreas, Japan＇s armed

for a constitutional provision. When the very exis-

forces comprise one of the best armed and most so-tence and power of a government institution repre-

phisticated militaries in Asia, with a military budget

sents proof of the meaninglessness and impotence ofthat ranks Japan in the top seven or eight military

a fundamental constitutional norm, there is signifi-

spenders in the World.28 While Japan has always in-cant risk that the normative power of the constitution

sisted that it does not have power projection capabil-

as a whole will be undermined. If Article 9(2) can beity, and thus its military capability is inherently de-so easily disregarded, if it exercises such little control

fensive rather than offensive, even those claims areover government action, what confidence should westarting to sound hollow in the wake of its launch ofhave that other provisions of the Constitution will re-29

a ship that is a small aircraft carrier in all but name.

spected or enforced? And indeed, in my view, thisIn any event, the very notion of a clear distinction

failure of Article 9(2) has already served to under-

between offensive and defensive armed forces ormine and erode the power and effectiveness of Art-

military systems is rather nonsensical.

icle 9(1) in many ways. Of course, many of the cham-

There are two major problems arising from thispions of Article 9 will wholeheartedly agree that thesituation. The first is that this clause of Article 9(2)existence and capability of the SDF constitutes a vio-

is an inherently non-justiciable and unenforceable

lation of Article 9(2), but will argue that the solution

standard. While there can be little doubt that Article

is to either disband or, at minimum, significantly

9(2) has operated over the decades to constrain the

reduce the size and capability of the SDF. But that isdevelopment of Japan＇s military capability, it provides

simply not a tenable argument. In the current geo-

no clear guidelines for government action. It is im-political and strategic context, it is simply utopian topossible to determine with any precision if the gov-

cling to such proposals. As I will discuss below, theernment has violated the provision. If the courts were

solution has to be found in amending Article 9(2) toever to consider the merits of a claim that the current

bring the Constitution back into alignment with thesize and capability of the SDF violated Article 9(2),reality, in order to save the more important con-they would be unable to meaningfully assess thestraints imposed by Article 9(1).

claim—how is a court to determine whether the size

A final word should be said about the secondand capability of the SDF is more than is necessary

clause of Article 9(2), which constitutes the third el-for individual self-defense in relation to current

ement of Article 9. This clause, which provides thatthreat levels? It is not a reasonable task for a judi-

the right of belligerency will never be recognized, isciary, and thus the interpretation of the provision

typically ignored and very frequently misunderstood.

renders Article 9(2) unenforceable and relatively

As mentioned earlier, there are two different theories

meaningless. That is dangerous for a constitutional

in Japanese constitutional discourse on what thisprovision specifically designed to constrain govern-means.31 I have argued in more detail elsewhere thatment action.

both the drafting and ratification history of Article 9,

Similarly, there is the larger problem posed byand the distinct meaning of the rights of belligerency

the huge and growing gulf between the explicit lan-in international law, make very clear that only one ofguage and obvious intent behind the first clause of

these theories is correct—that is, that as a matter ofArt. 9(2), and the reality of the SDF being a very

Japanese domestic law there will be no recognition or

sophisticated and powerful military with considerable

enforcement of the rights of belligerency that are ex-

war-fighting capability. It is indeed this inconsistency

tended to members of Japanese armed forces underthat has tended to drive much of the most bitter con-international humanitarian law (IHL, also known as

troversy over Article 9, and to fuel the allegations

jus in bello, or the law of armed conflict).32 The rightsthat the government is violating the provision.30 Thisand privileges of belligerency under IHL include the－ 52 －

Change It to Save It : Why and How to Amend Article 9（Craig Martin）

authority for lawful combatants in internationalrights will not be recognized as a matter of Japanese

armed conflict to use lethal force and to destroy legit-

law.34 This seems both an unjust result, and inconsis-

imate military objectives, and an immunity fromtent with the established interpretation of Article

prosecution or liability under other legal regimes for

9(1), and so should be amended.

such actions.

On the other hand, the second meaning attrib-

33

This clause poses two distinct problems, which

uted to this clause is that it merely restates in differ-

are grounds for amending it. The first is that there isent terms the prohibition in Article 9(1), denying

again some ambiguity and uncertainty as to what it

Japan the right to engage in ＂belligerent＂ or aggres-means, which is cause for confusion. This is evidenced

sive uses of force. I have argued elsewhere in detailby there being two competing and very different

why this cannot be correct.35 That is not the meaning

theories as to its meaning. This is good enough reasonof the word ＂belligerent＂ in international law, nor

to amend it, if other aspects of Article 9 are being

does Aritcle 9(1) only prohibit the ＂aggressive＂ useamended in any event. Constitutional provisions thatof force in any event. But leaving aside such argu-

are of uncertain and disputed meaning, and thereby

ments, and the drafting history of Article 9, this in-cause confusion, are problematic. But in this case,terpretation suggests that this clause of Article 9(2)both possible meanings of the clause call out foris entirely redundant. It is a trite principle of consti-

amendment, even if we could decide once and for all

tutional interpretation that provisions should not be

which one was correct.

construed as being purely redundant. But if it wereOn the one hand, if, as I have argued, the clausetrue that this clause does no useful work whatsoever,denies the rights and privileges of belligerence tothat it is entirely redundant yet nonetheless the cause

members of the SDF engaged in armed conflict, thatfor confusion, then for that reason alone it should be

has profoundly problematic implications. If we accept

deleted.

that Article 9(1) permits Japan to use force and thus
engage in armed conflict for purposes of individual
self-defense, then we must also accept that such

As is well known, there has been agitation forarmed conflict will be governed by IHL. It seems in-

the amendment of Article 9 almost since the promul-

congruous that Japanese law would refuse to recog-

gation of the Constitution. But more recently in justnize the rights and privileges under IHL afforded to

the last decade there have been a number of consti-

members of the armed forces engaged in that con-tutional amendment proposals published. The mostflict. To be clear, the members of the SDF would, ofcomprehensive and serious of these was that of thecourse, have all the duties, obligations, rights and

LDP, published in 2005, 36 and then a revised version

privileges under IHL as a matter of international law,of this proposal that was published in April, 2012.37

and Article 9 cannot have any impact on their status

Earlier this year, as political discussion of constitu-

or treatment under international law. But consider

tional amendment became more intense, there was

the situation of a combatant member of the SDF en-some suggestion by the LDP that it might not pro-gaging in lethal operations in the context of an armed

ceed on the basis of the 2012 proposals,38 but it isconflict. That SDF member would have been autho-

entirely unclear how genuine such statements were,rized by IHL to conduct such action, and would beor what the LDP intentions are. For now, it is theimmunized by international law from prosecution for

only complete proposal on the table, and it is the pro-having caused civilian deaths collateral to those lethal

posal that the opposition must address.

attacks. But Article 9(2) raises the prospect that if

In summary, the 2012 LDP proposal provides

such an SDF member were either prosecuted orthat Article 9(1) would be revised to clarify thatmade the defendant in a civil suit for wrongful death

Japan retains a right of self-defense (without speci-

in Japanese courts, he would have that defense denied

fying whether individual, collective, or both), and theto him by reason that Article 9(2) provides that suchlanguage prohibiting the use of force would be－ 53 －

立命館平和研究第18号（2017.3）

significantly relaxed. Article 9(2) would be entirely

prime minister, for the purpose of ensuring the peace

replaced, and it would begin by making explicit theand independence of the country, and the safety ofauthority to maintain a ＂national defense military＂

the state and its people. Article 9(2)(ii) provides that(kokubōgun – the NDM), for the purpose of, among

the NDM＇s activities will be in accordance with law

other things, defending the peace and independence

and the approval of the Diet.45 Again, to give creditof the country, and to engage in ＂international coop-where due, this is a laudable attempt to create clear-eration activities＂ (kokusai kyōchō kastudō)39 to guar-er civilian control over the military, and to firmly

antee the peace and security of the international so-

condition all military activity upon Diet approval,

ciety.

though it arguably does not go far enough.

Moreover, an entirely new Article 9(3)40provides that the state, in cooperation with the

The mischief begins in the rest of the new pro-people, shall protect the land, territorial waters, andvision. Article 9(2)(iii) stipulates that in the NDM＇s

air space of the country, together with all resources

activities to fulfill its mission in accordance with Art-

therein.

icle 9(1), it may support the public order and ＂inter-

41

While the LDP proposal for Article 9(2) does in-national cooperation activities＂ for the purpose of en-

troduce new provisions to establish greater civilian

suring the peace and security of the international

control, placing the NDM under the control of thecommunity, as well as being able to engage in opera-

prime minister, with several of its specified activities

tions to defend the life and freedom of the Japanese

being subject to the approval of the Diet, the overall

people.46 This new provision, when considered in theeffect of the revisions would be to significantly un-context of the new Article 9(1), as I will explain

dermine the constraints that Article 9 currently ex-

below, is highly significant.

ercises on the use of force. Not only does the revision

Article 9(2)(iv) provides that the activities of

to Article 9(1) itself weaken the explicit constraint

the NDM, as defined in the previous provisions, as

imposed, but the proposed changes to Article 9(2),well as the organization, control, and protection of theand the new Article 9(3) would operate in a mannersecrecy of the NDM, are all to be determined by law.

that would necessarily require a change to the cur-

Article 9(2)(v) provides for the establishment of

What is more,military courts within the NDM for the purposes ofthese changes are insidiously subtle, so that in theprosecuting NDM personnel, as well as other publicabsence of careful analysis it is not immediately obvi-

officials, for crimes connected to the execution ofous how much of a change they would cause to thetheir duties, or relating to the secrecy of the NDM,

meaning and operation of Article 9(1).

Let us,though it preserves a right of appeal to the courts.47

therefore, explore these proposals in more detail, andThis authority for military courts, entirely new, re-in order to understand how these changes affect Art-quires much further explanation and clarity. The

icle 9(1), let us begin with the new Article 9(2) andnotion that civilian public officials could be prosecut-9(3).

ed in military courts for offenses unrelated to na-

rent understanding of Article 9(1).

42

43

To give credit where it is due, the deletion of thetional security issues is ominous indeed.

current Article 9(2) is not only acceptable, but as I

Finally, in the new paragraph three, Article 9(3),explained above and will return to below, it is in mythe state, in cooperation with the people of Japan, forview necessary. So the champions of Article 9 should

the purpose of defending the independence and sover-not take issue with the deletion of paragraph two –eignty of the state, is obligated to preserve the nation-

this is not where the dangers lie or where the battle

al territory, territorial waters, and airspace, and all

should be fought. The LDP draft replaces paragraphresources therein.48 This provision too, like Article

two with two new paragraphs, one of which has five9(2)(iii), takes on particular significance when con-sub-sections.

sidered in conjunction with Article 9(1), as will be

44

The proposed Article 9(2)(i) explic-

itly authorizes the maintenance of the NDM, as men-

explored below.

tioned above, under the supreme command of the－ 54 －

Returning then to Article 9(1), the proposed

Change It to Save It : Why and How to Amend Article 9（Craig Martin）

changes to this clause seem, deceptively, far lesshibits the use of force and governs armed conflict—radical, and almost inconsequential. But when inter-and there is certainly no ＂sovereign right＂ to engage

preted within the context of the changes to Articles

in war under international law. Thus, limiting the re-9(2) and (3), they turn out to be profound and indeed

nunciation to ＂war＂ makes it rather meaningless. But

insidious. This paragraph, in the revised version, isturning to the use of force, the only sovereign rights

divided into two sub-sections. To take these in re-to use force under international law are for purposesverse order, the entirely new Article 9(1)(ii) pro-of individual and collective self-defense, and for col-vides that the constraints in Article 9(1)(i) do notlective security operations authorized by the U.N.

impede the exercise of the right of self-defense.

49

Security Council. But the crucial phrase ＂threat orThis move to clarify explicitly the scope of Article 9

use of force＂ in Article 9 would now be divorced fromis a step in the right direction, but it is insufficient –both the renunciation and the concept of sovereign

the provision does not stipulate whether it is indi-rights, and it would only be limited by the feeble andvidual self-defense or collective self-defense, or both,passive phrase ＂will not be used.＂ Not the mandatorythat is permitted, and thus rather than resolve theprescriptive language of ＂shall not,＂ or ＂must not,＂ butdebates surrounding interpretation, will likely exac-

merely ＂will not.＂ So the non-existent Sovereign righterbate the conflicts over the scope of permissible act-of war is renounced, but the use of force is subject

ivity under Article 9.

only to a weak statement of intent. Particularly in

Article 9(1)(i) looks little changed from para-light of the debates during the drafting in 1946 overgraph one of the current Article 9. The words remain

the nature of the verbs to be employed in Article 9,

virtually the same. Yet the slightest revision that has

this revised provision would likely be interpreted as

in fact been made contains the basis for unraveling

being merely aspirational or hortatory, and certainly

the binding power of the constraint, like a Trojan

not as creating a binding legal prohibition on the use

horse smuggling in the forces of destruction. It willof force. That would be a radical change from thebe recalled that Article 9(1) now reads, in part, ＂thecurrent provision, which is understood to operate as

Japanese People forever renounce war as a sovereign

a legal prohibition, renouncing the use of force as aright of the nation and the threat or use of force as asovereign right of the nation.

means of settling international disputes.＂ In contrast,

Even the change of the word ＂or＂ to ＂and＂ in thethe proposed revision reads: ＂the Japanese People re-clause ＂threat or use of force＂—which is part of anounce war as a sovereign right of the nation, and theclause in international law that is interpreted as pro-threat and use of force as a means of settling interna-

hibiting both the threat of using force and the actual

tional disputes will not be used.＂ For purposes of em-

use of force, separately or together—suggests an at-

phasis it bears repeating this with the revisions il-

tempt to undermine the legal force of the clause. It

lustrated in typical editorial fashion: ＂the Japanese

does so by subtly distancing it from its international

People forever renounce war as a sovereign right oflaw origins, and creating ambiguity over precisely

the nation, and the threat or and use of force as awhat action is subject to the constraint. Is a threat tomeans of settling international disputes will not be

use force now only prohibited when accompanied byused.＂50an actual use of force, for instance? Or would a threat

In other words, the clause ＂threat or use of force＂,
which is drawn from Article 2(4) of the U.N. Charter,of the use of force similarly be subject to the now
weak ＂will not be used＂? It is unclear.

is no longer subject to the ＂renunciation＂ or identified

What is more, the operation of the revised Art-

as a sovereign right of the nation. Now only ＂war＂ isicle 9(1) would be further hampered once its mean-

identified as the sovereign right and only it has been

ing is considered in the context of the new provisions

renounced, with the eternal nature of that renuncia-

of Article 9. Not only does the new Article 9(1)(ii)

tion having also been deleted. War is no longer usedcarve out the right of self-defense, perhaps collective

as a legal term in international law, which only pro-as well as individual, but Article 9(3) creates an－ 55 －

立命館平和研究第18号（2017.3）

affirmative obligation on the state to preserve thefurther conflicts over interpretation, and effectively

nation＇s territory and natural resources. What if

eviscerate the current constraints on the use of force.

another country is said to be extracting resources from

The main point is that this and other proposed

the territorial waters of Japan? That is not a suffi-amendments to Article 9 would utterly hollow out

cient basis to justify the use of force in self-defense

the provision＇s constraints on the government＇s abil-

under international law (the use of force being only

ity to use armed force, and would be a marked de-permissible in response to an actual or imminent

parture from the pacifist principle that is thought toarmed attack), but here in this new Article 9, in the

be one of the three pillars of the Japanese constitu-

re-named Chapter on National Security, is an appar-

tional order. Yet these are concrete proposals, and it

ent constitutional obligation on the government tois increasingly likely that they will be the subject ofpreserve the nation＇s resources, with the implication

substantive debate as the prospect of amendmentthat it has authority to do so with the use of force if

becomes more real. Supporters of Article 9 cannot

necessary.

continue to simply stonewall the debate, and refuse to

Similarly, Article 9(2)(iii) provides that thediscuss the details of these amendment proposals.

NDM may support ＂international cooperation activi-

They cannot continue to leave the field to the re-ties＂ for the purpose of ensuring international peacevisionists, and refuse to submit some alternative pro-and security.51 This sounds potentially like authority

posals that are true to the underlying principles of

to participate in UN authorized collective security

Article 9. They must address the fundamental ques-operations—which is above and beyond the use oftion: how can Article 9 be amended in a manner thatforce permitted by Article 9(1). But in actual fact,addresses not only the very real security and diplo-

the clause ＂international cooperation activities＂ is not

matic concerns, but also the constitutional law im-a term with any meaning whatsoever in internation-

peratives for amendment, while nonetheless remain-

al law. In contrast to ＂collective self-defense＂ anding true to the spirit of the provision?

＂collective security operations authorized by the U.N.
“

Security Council＂, which are terms that reflect thetwo established exceptions to the prohibition on the”9

use of force in the U.N. Charter, this term has no

The dangerous amendment proposals of the LDP

basis in international law. Thus, this ambiguous

are not the only threat to Article 9. Whether or notclause would appear to authorize the NDM to par-the LDP can muster the support to amend Article 9

ticipate in any military operations involving moreremains uncertain, and some may be thinking that if

than one other country, whether such operations arethat effort can be opposed, all will be well. Such

UN sponsored or otherwise, and whether they arethinking is misplaced. Article 9 is under threat re-lawful or not.

gardless of the amendment efforts. The core meaning

In sum, the LDP proposal for the amendment ofof the provision is also undermined by the recent ef-

Article 9 contains some provisions that at first glance

forts of the Abe administration to ＂reinterpret＂ Art-

appear to be positive steps towards clarifying theicle 9. A great deal has been written on how both thescope of the provision＇s limits, while legitimating theprocess and substance of the reinterpretation effort

SDF and imposing some civilian control over the mil-

was unconstitutional, and why the implementing re-itary. Indeed, it will no doubt be argued that thevisions to the national security laws are in violation of

intent was to make such changes while essentially

Article 9.52 There is not room here to review in detailpreserving the limits on the use of force. But suchthe nature of the reinterpretation effort and all thearguments are not to be believed. Upon close inspec-ways in which it was illegitimate and unconstitutional.

tion, it is clear that the operation of the subtle but

But it is important to understand that unless thepernicious changes to Article 9(1), in combination

courts strike down the revised national security laws,with the new paragraphs in Article 9, would lead towhich is quite unlikely, or unless Article 9 is formally－ 56 －

Change It to Save It : Why and How to Amend Article 9（Craig Martin）

amended, the reinterpretation will over time come tofor coalition forces during the belligerent occupation

represent the new official, accepted and entrenchedof Iraq beginning in 2005, constituted action that wasmeaning of Article 9. Understanding how radicallyintegral to the use of force by coalition forces and wasinconsistent that reinterpretation is with the accept-

thus a violation of Article 9.57 The Cabinet Decision

ed and established meaning of Article 9, therefore,

purported to revise the interpretation of these limits,

53

should be an important step to accepting that someand particularly this concept of integration with theamendment of Article 9 is necessary in order to pre-use of force by other belligerents to an armed conflict

serve its traditional core meaning.

(known in Japanese as the ＂ittaika＂ doctrine). Under

It will be recalled that the so-called reinterpre-

the new revised understanding, according to the re-tation was announced in the form of a Cabinet Deci-interpretation, Japanese support for the armed forcession in July, 2014.

The Cabinet Decision purportedof other countries would only constitute an integral

to unilaterally change the meaning of certain aspects

component of their use of force if the support wasof Article 9. In concrete terms, it purported to add-

provided directly to foreign armed forces actuallyress three specific categories of policy for which

operating in active theatres of combat. Providing

legislation would be revised, and for which the mean-such support for armed forces behind the lines, or on

54

ing of Article 9 would have to be changed. It should

their way to the theatre of conflict, would not consti-

be noted at the outset that all of these changes relatetute a use of force under the new interpretation.58

to Article 9(1), not Article 9(2). The first category

The third category in the Cabinet Decision, therelated to the use of the SDF in response to ＂an infringe-＂Measures for Self-Defense Permitted under Article

ment that does not amount to an armed attack.＂ Such9＂, was the most controversial. Noting that ＂sufficientuse of the military is to be permitted in ＂situations

responses would not necessarily be possible if thethat are neither pure peacetime nor contingencies＂

constitutional interpretation to date were main-(with the word ＂contingencies＂ apparently meaning

tained,＂ the Cabinet Decision purported to expand＂hostilities＂). This would permit the use of force inthe scope of Article 9 to permit the use of force in thecircumstances that do not involve an armed attack,exercise of the right of collective self-defense.59 This,and would include responses to ＂infringements＂ thatof course, makes permissible a form of the use ofoccur in the areas ＂surrounding remote islands＂, andforce that was precisely understood to be prohibitedin circumstances in which the police are not able tounder the long-established interpretation of Article 9.

effectively respond.

The Cabinet Decision made some effort to justify this55

The second category of policy for which new

move in constitutional terms, by reference to the pre-legislation would be required is to further Japan＇s

amble and Article 13 of the Constitution. The pre-contributions to ＂the peace and stability of the inter-

amble refers to the ＂right to live in peace＂, and Art-

national community.＂ This policy development is to

icle 13 provides that the people＇s ＂right to life,

permit an expansion of the scope and nature of logist-

liberty, and the pursuit of happiness shall, to the56

ical and rear-area support to foreign armed forces

extent that it does not interfere with the public wel-engaged in hostilities. Japan has in the past imposed

fare, be the supreme consideration in legislation andstringent limits on such support, with the view that

other governmental affairs.＂60 Thus, the Cabinet De-

extensive logistical support and transport assistancecision argued, ＂Article 9 cannot possibly be interpret-

for the armed forces of belligerents may be deemed

ed to prohibit Japan from taking measures of self-＂integral＂ to the use of force by such foreign armed

defense necessary to maintain its peace and security

forces, and thus prohibited by Article 9. Indeed, in aand to ensure its survival.＂61 It suggested that thenotorious decision in 2008 the Nagoya High Court

only change now was that collective self-defense wasopined (in what was extensive obiter dicta, in a judg-

deemed necessary, in some circumstances, to main-

ment that ultimately dismissed the claim of the ap-

tain peace and security, ensure the survival of Japan,

plicants for lack of standing) that Japanese support

and preserve the people＇s right to life, liberty and－ 57 －

立命館平和研究第18号（2017.3）

that has attacked a third country, regardless of any

pursuit of happiness.62
In accordance with this logic, however, the gov-

threat posed to the state using force under this justi-

ernment developed a concept of collective self-de-

fication, or the nature of the relationship between thefense that is quite different in scope and contour fromvictim and the country exercising the right.67 But

the understanding of the concept in international law.

how the government＇s new conception of collective

The Cabinet Decision qualified the concept by adding

self-defense would operate in practice is unclear atcertain conditions precedent and apparent limita-

best, and indeed the actual intent of the language

tions, thus creating a sui generis concept of collective

itself is open to interpretation.

self-defense for the purpose of the reinterpreted

The Cabinet Decision itself, as well as the state-

substance of Article 9. Indeed, the Cabinet Decision

ments of Prime Minister Abe and others in the Cabi-

explicitly stated that ＂a legal basis in internationalnet, candidly recognized that the reinterpretation

law and constitutional interpretation need to be un-constituted a significant change to the long estab-

derstood separately.＂

Thus, the use of force in thelished and accepted meaning of Article 9. These pur-exercise of this sui generis right of collective self-

ported changes themselves were never voted upon in

defense is only permissible in circumstances in which

the Diet—rather, the changes were merely imple-

63

there has been an armed attack against ＂a foreign

mented through changes to national security laws.

country that is in a close relationship with Japan,＂As is well known, the government in September 2015

and when such an attack is one that ＂threatens Japan＇s

passed two bills, which enacted one entirely new law

survival and poses a clear danger to fundamentallyand contained substantial revisions to other existing

overturn [the] people＇s right to life, liberty and pursuit

national security laws, all of which significantly al-of happiness, and when there is no other appropriate

tered Japan＇s national security posture and themeans available to repel the attack.＂

The Cabinet

authority for action of the SDF.68 The government

Decision also noted that the use of force in response

openly acknowledged that these national security law

must be the minimum necessary for the defense ofchanges were only made possible by the so-called

Japan. Finally, it specified that the enabling legisla-reinterpretation. Put another way, this was an

64tion would include the condition that ＂in principle＂

acknowledgement that the reinterpretation and thethe Diet should be required to approve any such use

resulting revisions to the national security laws wereof force.65 These limits were subsequently articulatedinconsistent with the established meaning of Article

by the government as constituting three clear and

9—and that the national security laws would be un-distinct conditions precedent to the use of force forconstitutional unless the reinterpretation was thecollective self-defense, namely: (i) an armed attack

accepted meaning of Article 9. Indeed, that was theon a country with close relations to Japan, and suchvery purpose of the reinterpretation—to make pos-attack poses a threat to Japan＇s survival and thesible the changes to the national security laws. And

rights of the people to life, liberty and the pursuit ofindeed, most constitutional law scholars in the coun-happiness; (ii) there is no other means available totry were reported to be of the opinon that the newprotect against the threat to Japan and its people; andnational security laws were in fact inconsistent with(iii) the use of force is the minimum necessary forthe established and accepted interpretation of Article

such defense and proportionate to the threat.66

9, and for that reason unconstitutional.69

This limitation of the use of force to situations in

The reason for this becomes clear upon a closer

which Japan or its people are threatened by the

analysis of the changes. In order to analyze these,

attack on a foreign state was, according to govern-

however, we have to consider not only the Cabinet

ment representatives, designed to make for a narrow-Decision and statements about it by members of theer or more limited concept than the right of collective

government, but also the reports of the ad-hoc andself-defense under international law. The latter, of

extra-constitutional body established to advise thecourse, permits the use of force against an aggressor

Cabinet during the reinterpretation process. It will be－ 58 －

Change It to Save It : Why and How to Amend Article 9（Craig Martin）

recalled that Prime Minister Abe had first establishedible, as it would then not be for the ＂settlement of

this committee, the ＂Advisory Panel on the Re-

international disputes to which Japan is a party.＂74

construction of the Legal Basis for Security＂ (theThe background to this argument is not new,＂Advisory Panel＂, also known as the ＂Yanai Committee＂)and indeed the Advisory Panel quotes testimony of ain 2007.

It was re-convened when Prime Minister

former Director General of the SDF to the Diet on the

Abe formed returned to power in 2012, It thus pro-issue.75 The claim is often made by conservative pro-

duced two different reports, one in 2008,71 and one inponents of expanding the meaning of Article 9 that2014.72 It is not entirely clear what role these advi-

this interpretation mirrors the language and accept-

sory reports might play in any judicial or other inter-ed meaning of the Kellogg-Briand Pact, but that ispretation of Article 9 subsequent to the ＂reinterpre-

entirely inaccurate—not only is the language in thetation.＂ Depending on whether the Advisory Paneltreaty actually quite different, but the relevant clause

reports are to be considered as part of the reinter-has never been accepted as having the meaning thatpretation, we have two distinct problems with its va-

Japanese conservatives attribute to it in any event.76

lidity. On the one hand, if we look at the Advisory

What is more, there is simply no foundation whatso-

Panel reports as being part of the reinterpretation orever for the idea that the jus ad bellum regime in

informing how it is to be understood, then the rein-international law makes a conceptual distinction be-

terpretation could be said to render the renunciation

tween different uses of force based on whether theyin Article 9(1) meaningless, which offends basic

are for ＂settlement of international disputes＂ as opposed

canons of constitutional interpretation. On the otherto for any other purpose. It does not recognize self-hand, if we look at just the Cabinet Decision, thendefense as being somehow distinct from an inter-

there is sufficient ambiguity and vagueness as tonational dispute, nor for that matter accept that amake the new interpretation of the provision non-state is not ＂a party to a dispute＂ if it is acting in self-justiciable. I will explore each of these in turn.

defense.77 What this argument in effect attempts to70

73

Beginning with the 2014 Advisory Panel report,do, while studiously avoiding the language itself, is to

it initially described how the established interpreta-

reinterpret the clause ＂settling of international dis-tion of Article 9 has consistently denied and prohib-

putes＂ as meaning ＂engaging in acts of aggression＂.

ited any use of force beyond that for the exercise ofThis harkens back to older reactionary arguments

individual self-defense. From there it went on to notthat have been made within conservative circles in

only explicitly recommend a reinterpretation thatJapan, to the effect that Article 9 should be under-

would allow for the exercise of collective self-defense,stood as only prohibiting aggressive war—arguments

but also collective security operations authorized bythat were rejected with the official interpretation of

the UN Security Council. Indeed, it recommended a

1954, and consistently rejected ever since, for reasons

construction that would permit any use of force thatthat I turn to next.78

would be permitted by public international law. It did

Leaving aside all of these detailed objections to

so on the fallacious argument that the clause ＂asthe basis for the Advisory Report argument, how-means of settling international disputes＂ in Article

ever, a more fundamental constitutional interpreta-9(1) qualifies and limits the scope of the prohibition

tion problem is posed by the broader implication of

on the use of force, in that neither the exercise of

its argument. If, as the Advisory Panel report argued,

individual nor collective self-defense constitutes ＂aArticle 9 is to be now understood as permitting alluse of force for settling international disputes＂. The

uses of force that are permitted by the jus ad bellum

report goes even further, for good measure, by sug-regime in international law, or to put it a different

gesting that the words ＂to which Japan is a party＂

way, if Article 9 only prohibits ＂aggressive war＂, thenshould be simply read into the clause. As such, so the

we are left with Article 9(1) renouncing exactly

argument went, any use of force for self-defense or

nothing. It will be recalled that the provision states

UN collective security operations would be permiss-that ＂the Japanese people forever renounce war as a

－ 59 －

立命館平和研究第18号（2017.3）

sovereign right of the nation and the threat or use ofdefense to responses to an armed attack on a state

force as means of settling international disputes.＂ It iswith which Japan has close relations, and where theprohibiting certain uses of force that constitute sov-armed attack is viewed as a threat to Japan＇s sur-ereign rights under international law. While it is true

vival or its people＇s rights to life, liberty and the pur-that the English language version of the clause could

suit of happiness. These additional conditions werebe construed as identifying only ＂war＂ and not ＂theprovided as a sop to mollify the Komeitō, the rulingthreat or use of force＂ as the sovereign rights thatparty＇s coalition partner, as they create an impression

have been renounced, the Japanese language version

that the bar for using force is higher, or the right ofmakes it much more clear that it is both war and thecollective self-defense is narrower, than it is in inter-threat or use of force that are being renounced asnational law.81 But, as will be explained below, in real-

sovereign rights.79 But if Article 9 is construed as

ity the conditions and criteria are ill-defined and dif-prohibiting only that which is already prohibited by

ficult to either interpret or enforce, they make theinternational law, then it has renounced nothing, andconcept inconsistent with international law, and thethe interpretation renders at least part of the text ofgovernment pronouncements on the subject havethe provision meaningless—which offends basic prin-further exacerbated the problem.

ciples of constitutional interpretation. The meaning

In discussing the operation and scope of the newgoes from a clear rule that renounces and prohibits

right of collective self-defense, Prime Minister Abe

the exercise of certain sovereign rights, to a provision

and Defense Minister Nakatani have both made com-that renounces nothing, and merely confirms in am-ments about the possibility of Japan conducting

biguous terms the country＇s adherence to the jus admine-sweeping operations in the Straits of Hormuz if

bellum regime—which is entirely and categorically

it were mined by Iran.82 If, as they have suggested,inconsistent with the original purpose of the provi-

the authority relied upon for such action would besion, precedent, and the consistent understanding

this right of collective self-defense as defined (rather

and operation of the provision for over sixty-fivethan on other international law principles that mightyears.

authorize the clearing of mines from international

Such is the problem with the Advisory Panel＇s

straits),83 the comments reveal even greater uncer-

report. If, on the other hand, we consider only the

tainty about the meaning of the new standard. They

Cabinet Decision as articulating the substance of thesuggest that the armed attack on a country in close

reinterpretation, we are presented with a different

relations with Japan (however that relationshipproblem. As discussed earlier, the Cabinet Decision

might be determined) may be uncoupled from thedoes not go so far as to suggest that all uses of force

threat to Japan＇s survival and the people＇s rights topermitted by international law are to be henceforth

the pursuit of happiness, such that each is a separate

constitutional under the new understanding of Arti-

trigger for exercising the right of collective self-

cle 9(1), and indeed it even creates a sui generis con-defense. Because in Abe＇s comments on the issue

ception of collective self-defense. But therein lies part

there has been no reference to how Iran＇s mining theof the problem—this conception of collective self-

straits of Hormuz might even constitute an armed

defense is vague, ambiguous, and non-justiciable, if

attack, but has instead focused on how such a block-ever it came to be the basis of a constitutional chall-

ade would pose a threat to the livelihood of the Japan-

enge. Collective self-defense under Article 51 of theese people, and a threat to the ＂people＇s right to life,

UN Charter permits states to use force against an

liberty, and the pursuit of happiness＂ in the language

aggressor state in response to an armed attack onof the clause. This not only uncouples the exercise of

any other member of the United Nations, upon noti-

collective self-defense from an armed attack on an-fying the UN Security Council that it is exercising theother country, but even from a threat to the survival

right.

As explained earlier, the Cabinet resolutionof Japan, and potentially conditions it solely upon a

purports to limit the use of force in collective self-

threat to the livelihood of the people of Japan—

80－ 60 －

Change It to Save It : Why and How to Amend Article 9（Craig Martin）

Bush Doctrine of preventative self-defense, which

however, that might be measured or defined.84
Finally, if the ambiguity of these conditions were

has been roundly rejected in international law.88

not enough, representatives of the government have

The reinterpretation does not, however, poseactually stated publicly that not all the conditions forthis problem only with respect to the use of force inthe use of force have been or will be disclosed, there-

collective self-defense. A careful review of the otherby quite explicitly suggesting that there are addi-

two major elements of the Cabinet Decision reveals

tional secret criteria for the use of force.85 Secret con-that it contemplates other possible uses of force that

ditions for the operation of laws of course flies in theare also not at all consistent with international law.

face of fundamental notions of the rule of law. But

The most serious of these, is the stipulation thatleaving that aside, this ambiguity and uncertainty inJapan could use force in response to ＂an infringement

the standard makes it arguably non-justiciable. Inthat does not amount to an armed attack,＂ in ＂situa-

the event that the national security legislation thattions that are neither pure peacetime nor contingen-implements this part of the reinterpretation, or somecies＂.89 The use of force in individual self-defense in

specific deployment authorized by it, is challenged ininternational law is permitted under Article 51 of thecourt as being a violation of Article 9, how is a court

UN Charter, and customary international law, when

to interpret the provision in light of this ambiguous

either an armed attack has been carried out against

new understanding?86 The reinterpretation has thethe state exercising the right; or, under a more lib-

potential of rendering the provision, which was aeral interpretation that is widely accepted, when therelatively clear rule capable of enforcement, non-launch of such an armed attack against the state isjusticiable and thereby unenforceable.

imminent.90 Depending on how the Cabinet Decision

The other problem posed by the reinterpretationand implementing legislation is interpreted and acted

as articulated by the Cabinet Decision, is that it isupon, it could conceivably authorize Japanese mili-potentially inconsistent with the principles of jus adtary operations that would constitute a use of force inbellum in international law. It has been argued thatthe absence of any armed attack, actual or immi-

because the principles in Article 9(1) were drawn

nent—circumstances that would not come close tofrom international law, the interpretation of the pro-satisfying the international law conditions for thevision should be informed by, and be consistent with

lawful use of force under either Articles 51 or 42 of

the principles of jus ad bellum.87 The Cabinet Deci-

the UN Charter. The Advisory Panel actually sound-sion＇s articulation of collective self-defense is obvi-

ed a note of sage caution in this regard, but was ap-

ously a marked departure from any requirement toparently ignored.91

interpret the concepts in Article 9(1) in a manner

The second major part of the Cabinet Decisionconsistent with the jus ad bellum, but the problem isdeals with the authorization for increased logistical

far greater than that. The Cabinet Decision, and theand transportation support for the armed forces ofresulting national security legislation, could authorize

allied forces engaged in armed conflict. The Cabinet

state action that would result in Japan being in actualDecision suggests that Japan＇s increased support forviolation of the principles of jus ad bellum. This is

the armed forces of belligerents is to be simply

true with respect to the contemplated use of force indeemed as not integral to the use of force by suchcollective self-defense as indicated above—a use of

belligerent forces unless it is within actual theaters offorce in response to conduct that does not constitutecombat,92 however that might be determined, and soan armed attack on a third country, but is responding

will not constitute a use of force by Japan in violation

to a perceived threat to the future survival of Japan,of Art. 9.93 In a sense, this is not so much a reinter-or even worse, merely to the Japanese people＇s rightpretation of Article 9 as it is an attempted reinter-to life, liberty, and the pursuit of happiness, would

pretation of what constitutes support for and in-

obviously not fall within the accepted exception forvolvement in the actions of belligerents so as toself-defense. This is more radical than the infamous

attract state responsibility under international law.

－ 61 －

立命館平和研究第18号（2017.3）

This is of course beyond the power and jurisdictionof the government of Japan—it cannot by Cabinet

III ‒ HOW TO AMEND ARTICLE 9

resolution or domestic legislation simply ＂deem＂ itsSuch are the arguments for why champions ofactions to be not complicit in the use of force by other

Article 9 should develop alternative proposals for thenations as a matter of international law. And underamendment of Article 9. But how, precisely, shouldinternational law, certain levels of support for or in-

Article 9 be amended? What form should such an

volvement in the operations of a belligerent state in aalternative proposal take? It is of course for Japanesegiven armed conflict, will be sufficient to make thejurists and, ultimately, for the Japanese people tosupporting state a belligerent to the conflict as well.

decide how Article 9 should be amended. But in thisIt makes no distinction as to whether the support isPart I offer some thoughts on what a preliminary

directly to forces within theatres of combat or not, as

proposal might look like, as a way of starting a con-the Cabinet Decision suggests. What is more, whereversation on the issue. In the Appendix at the end of

the actions of the first belligerent constitute an act of

this article I have attached actual draft language of aaggression, responsibility for such aggression can beproposal, and it will be noted that I provide various

attributed to the supporting state.

As mentioned

alternative options—requiring a choice, for instance,earlier, the Nagoya Hight Court in 2008 found thaton whether to permit collective self-defense, and / orJapanese support for coalition forces in Iraq in 2005

collective security operations, or neither. Those areconstituted a use of force in violation of Art. 9(1).95

choices for the Japanese people to debate and ulti-

Moreover, neither the Cabinet Decision nor the im-mately decide, but I offer some thoughts on why it isplementing legislation includes any conditions thatimportant to have clarity on what is prohibited andthe belligerents that are benefiting from Japanese

what is not. In this Part I develop some arguments

support are themselves complying with international

for each of the elements of the draft proposal.

94

law. Thus, such close logistical and transportation
support could lead to Japanese operations being integrated not only with a use of force conducted by

Article 9(1) is the most important and effective pro-other countries, but also acts of aggression in viola-vision of Article 9. It is at the core of the idea of Japantion of international law.

being a pacifist country, and it has operated to effect-

There is nothing, of course, that requires a con-ively constrain government policy. With the ex-stitutional provision in general to be consistent withception of Japan＇s marginal involvement in post-international law. But as mentioned earlier, Article

occupation Iraq, it has not used military force in jus

9(1) was drafted and ratified with the purpose of not

ad bellum terms since the end of World War II, andonly incorporating international law constraints intothat is due at least in part to both the direct operation

the Constitution, but also to add further limitations,and broader influence of Article 9(1).96 That is impress-

renouncing sovereign rights that Japan would other-ive. Nonetheless, as has been explained, Article 9(1)wise have under international law. That purpose andis not without legal ambiguity. There is tension be-

understanding was formalized by the CLB, obliquely

tween the government interpretation and the facialconfirmed by the Supreme Court in 1959, and com-meaning of the language, and the ambiguity inherent

plied with and acknowledged by every government

in the provision could be the source of considerable

for close to seventy years, until 2014. The provisionmischief depending on how Article 9(2) is amended.

operated to effectively constrain policy in accordance

The LDP＇s amendment proposal is clearly intended towith this understanding. The reinterpretation is abroaden the scope of permissible use of force, whileradical departure from that understanding, making

leaving Article 9(1) largely intact, which would

permissible precisely that which had long been for-merely provoke greater political and legal conflictbidden, and rendering the renunciation in Article 9

down the road. In the event that Article 9 is to beeffectively meaningless.

amended, Article 9(1) should be revised to provide in－ 62 －

Change It to Save It : Why and How to Amend Article 9（Craig Martin）

explicit terms precisely that which is prohibited, andin Afghanistan in 2002, but would have prohibitedthat which is permitted.

participation in the invasion of Iraq in 2003.

This would require, of course, some important

I am not here making a case for any particulardecisions about the scope of the prohibition that is toposition, such as revising the constitution to permit

be created. Rather than burying or avoiding the issue,

only UN authorized collective security operations, ora clear amendment proposal will need to explicitly

only collective self-defense, or indeed to permit both.

articulate that the use of force for the purpose of the

But I am arguing that Article 9(1) ought to be

individual self-defense of Japan, pursuant to Article

amended to make very clear what is to be permitted

51 of the UN Charter, is permitted. In addition, it will

and what not, in terms that have specific meaning

also have to make clear whether force is permitted

under international law. Seeking to amend Article 9

for either, both, or neither of, collective self-defense,

without making these hard choices, and trying toand collective security operations authorized by thefudge the issue with such ambiguous terms as ＂inter-

UN Security Council. Part of the debate in Japan has

national cooperation operation＂—which has abso-

been over precisely this question, with people like

lutely no legal meaning—is precisely the wrong way

Ozawa Ichirō, for instance, arguing that collective

to proceed. If the decision is made that Article 9

self-defense should be prohibited, but UN authorizedshould permit both collective self-defense and collec-

collective security operations permitted.97 On thetive security operations, then one option with respect

other hand, collective self-defense is at the core ofto the actual language would be to simply incorporate

the U.S.-Japan security arrangement, and there is

generally by reference that which is permitted by thepressure on Japan from Washington to broaden its

UN Charter and customary international law, so thatability to more fully contribute to the defense of U.S.

the constitutional provision would adjust with inter-

98

interests outside of Japan. Indeed, the efficacy of thenational law over time.101 (Sample language, withballistic missile defense system being jointly devel-

different possible options for a proposed Article 9(1),oped relies upon such commitments.

is provided in Appendix 1).

Given that collective self-defense can be exercised unilaterally, requiring no authorization by the-UN, many Japanese are justifiably concerned that

Turning to Article 9(2), I would endorse the LDP

permitting it could lead to Japanese involvement inproposal＇s move to delete the prohibition on the

military adventures that were in violation of interna-

maintenance of armed forces or ＂other war potential,＂

tional law. A constitutional prohibition on the use ofas well as the denial of rights of belligerency, and also

force for collective self-defense, while permitting

agree with its proposal to acknowledge the legitima-

participation in UN collective security operations,cy of the SDF. Moreover, credit is due for the at-would have the benefit of subjecting Japanese use of

tempt to add some degree of civilian control. None-

force (for anything beyond individual self-defense)

theless, there need to be stronger and more elaborate

to external checks, and would ensure it complied

constraints adopted in conjunction with these moves

with international law.99 Of course it would still denyto legitimate the existence of a military. This aban-

to Japan a right that exists in international law, but,doning of the renunciation of armed forces will, of

as is currently the case, the denial of the right would

course, be enormously controversial for many sup-not prevent Japan from fulfilling its legal obliga-

porters of Article 9, while the new constraints will betions.

Such a provision would still bring Article

objectionable to the political right. But as already9(1) into greater conformity with the jus ad bellum

argued, the left must come to recognize that the ex-regime, and allow Japan to better fulfill its perceived

istence of the SDF is a reality that cannot be realisti-international responsibilities. Such a provision would,

cally reversed. It is futile to argue for the disarma-

for instance, have permitted participation in the firstment of Japan in the current environment. Moreover,Gulf War in 1991, and in the UN mandated operations

the future that was envisioned when the constitution

100－ 63 －

立命館平和研究第18号（2017.3）

was ratified, in which UN forces would enforce a col-been significant incidents in which the Diet was

lective security system to maintain international

misled by the SDF regarding operations in support ofpeace and security, making the maintenance of na-

coalition actions in Iraq and Afghanistan, and the Diettional armed forces increasingly unnecessary, has notinquiry into those incidents was handcuffed by its

materialized. And as already argued, the ever grow-limited power to compel the disclosure of information

ing gap between the reality of Japan＇s military capa-

from the Ministry of Defense and the SDF.105

bility and the prohibition in Article 9(2) is increas-

Similarly, because Article 9(1) originally con-

ingly unhealthy for the constitutional order as atemplated that Japan was to be prohibited from using

whole. If Article 9(1) is amended to make clear thatany force at all, there are no constitutional provisions

Japan can use force in individual self-defense, as wellregarding how decisions are to be made regarding

as for collective security operations, it will be impossi-

the use of force. Assuming that the decision is to be

ble to meaningfully distinguish between a military

made by the executive, is it a decision of the prime

capability that is the minimum necessary for such

minister alone, or the cabinet as a whole? Is it apurposes, and that which exceeds the limit. Opaque

purely executive decision, or must it be also approved

and unenforceable provisions corrode the effective-by the legislature? Is there some threshold levelness and normative power of a constitution. It is,above which a decision to deploy military forces re-therefore, advisable to eliminate the general prohibi-

quires legislative approval? A convention has devel-tion on the maintenance of armed forces, and to put

oped in Japan pursuant to which the Diet is requiredin place important constraints that the constitution

to pass a law for each deployment of the SDF, butcurrently lacks.

there is no provision of the constitution that requires

The overriding purpose behind the first clause ofthis process. Beginning in 2007, the LDP government

Article 9(2) was to prevent the possibility of a Japan-

has been working on legislation that would provide

ese military again leading the country into a disas-

the government with permanent authority to deploy

trous war.

It was a response to the militarism of thethe SDF so long as prescribed conditions were satis-

1930s, and the ruin that a defeated nation suffered as

fied, thereby eliminating this very convention.106 The

a result. That militarism had been made possible pre-recent amendments to the national security legisla-

cisely because of fundamental flaws in the Meiji Con-tion introduced differing requirements for Diet app-stitution of 1889.103 Among other things, the Meiji

roval of SDF action, thus eroding the more general

Constitution was highly ambiguous on the nature ofconvention.107

102

the executive, it failed to identify the locus of su-

There is a growing trend among constitutional

preme command over the military, and it did not es-

democracies towards the establishment of constitu-

tablish civilian control over the military. While thetional or statutory provisions that require govern-

1947 Constitution of Japan corrected the problems

ments to obtain legislative approval for decisions toregarding the location and scope of executive power,

use armed force.108 As was observed by Immanuelit was largely silent on the issues of civilian control

Kant and James Madison over two hundred years

and supreme command, precisely because it did notago, such separation of powers with respect to thecontemplate that Japan would have any military atdecision to go to war is an important factor in notall, or that it would be able to use force. There is only

only satisfying the requirements of representative

one relevant provision (Article 66(2)), added late indemocracy, but also in reducing the risk of democra-

the ratification process, which requires that the prime

cies embarking on military misadventures.109 Whenminister and other cabinet ministers be civilians.104

the representatives of those citizens who will be

Beyond that, there are no provisions regarding su-

dying and paying for the war participate in the deci-preme command or civilian control. Moreover, there

sion-making process, there is less chance that wars

is nothing that provides for legislative oversight. It

will be fought for the benefit of narrow interests.

will be recalled that in the last ten years there have

Modern political theory has reinforced our under-－ 64 －

Change It to Save It : Why and How to Amend Article 9（Craig Martin）

standing of the various ways in which such legislative

patch of troops for collective security operations

involvement and oversight, as well as public debate

under Chapter 7 authority to use force. The provisionand deliberation within the legislative process, canshould include a mechanism for requiring further

enhance the decision-making process and reduce theapproval of the Diet in the event that a peacekeeping

risk of states engaging in ill-advised or illegitimate

mission morphs into a full-blown Chapter 7 ＂peace

wars.

110

enforcement＂ operation, as has happened with opera-

If we accept that Article 9 is to be amended in ations such as that in Somalia in the 1990s.

manner that contemplates the possibility of some use

This provision would merely build upon andof force, and formalizes the existence of an armed

constitutionalize a convention that has already oper-

forces, but also insist that Article 9 nonetheless re-ated in Japan, so in many respects it should not be

flect its pacifist origins, and continues to serve as anseen as a radical suggestion. Yet the constitutional-

avante garde model for other nations, I would suggest

izing of this convention is important, as it protects thethat any amendment must include some entirely new

current convention from capricious change. Even

provisions that address the foregoing problems. First,

more significant, such a provision entrenches princi-an entirely new Article 9(2) ought to include provi-

ples that are increasingly understood to be central tosions that would provide for civilian control and strict

explanations for the democratic peace, and which en-

neutrality of the military (in place of the current Ar-

hance democratic accountability and deliberation inticle 66(2)). Building on the LDP proposal, this could

respect of the most important decision a government

be achieved by establishing that the prime minister is

can make—that is, the decision to engage in armed

commander in chief, prohibiting the appointment ofconflict.112 It would, moreover, do much to reassureserving officers of the armed forces as ministers inJapan＇s neighbors in the region, who will be highly

the cabinet, and limiting other ways in which thesensitive to the ramifications of these amendments.

military might become involved in politics and policy.

Many will of course resist this innovation on the

As part of both civilian control and legislative over-grounds that it makes decision-making cumbersome

sight, the new Article 9(2) ought to include provi-

and time-consuming, and may lead to the Diet actu-

sions that would require the establishment of institu-

ally preventing a contemplated use of force or mili-tions that would monitor military deployments, along

tary deployment, as it did during the Gulf War crisis.

the lines of the Armed Services Committee in the

But that is of course precisely the point. Engaging in

U.S. Congress, and the oversight mandated in thearmed conflict should not be easy, and ought to beGerman Basic Law.

possible only when the reasons are compelling enough

111

Second, a new sub-paragraph, Article 9(3),to mobilize the opinions and support of a significant

should include provisions that establish the formal

percentage of the polity. Decisions to engage inseparation of powers with respect to decisions toarmed conflict ought to be taken only after serious

participate in armed conflict or other military opera-

debate, with the assumptions and reasons of govern-tions. As reflected in the draft language in Appendix

ment exposed to interrogation and analysis, and chal-

1, this would include a requirement that the govern-

lenged from various perspectives.113 There will of

ment obtain approval in both houses of the Diet forcourse be possible scenarios, such as when the state

decisions to use force or deploy the armed forces foritself is under direct attack, in which the luxury ofinternational operations. It would require a super-time for such debate and analysis is impossible. But

majority in such votes with respect to decisions tomechanisms can be developed to deal with such cir-use force in jus ad bellum terms, but a simple major-

cumstances, permitting the executive to make deci-

ity for other operations. The deployment of militarysions to use force in an emergency, subject to ex post

forces for UN peacekeeping missions, for instance,

facto approval by the legislature within a defined

will typically not contemplate the use of force, and sotime frame, as the U.S. War Powers Act and theought to be subject to lower thresholds than the dis-constitutions of several other countries provide for.114－ 65 －

立命館平和研究第18号（2017.3）

and deliberative democracy will operate to reduce
The final element of the amendment required to fully

the risk of rash decisions to engage in armed conflict,establish civilian control over the military, and en-

this alone is not sufficient. It is recognized that there

force the separation of powers with respect to thewill be times when legislatures too can be carrieddecision to engage in armed conflict, would be a pro-away in irrational fervor for war. Political theory

vision providing for more specific judicial review ofsuggests that this risk is highest for democracies

government decisions, actions, or laws that might bewhen dealing with illiberal states. There is, therefore,in violation of Article 9. The Constitution of Japana real need for a further check in the democratic

already provides for considerable powers of judicial

system, a further separation of powers with respectreview,

but the Supreme Court has largely abdi-

to the decision to use force. The third branch of gov-

cated its responsibility and authority with respect toernment, independent and the least susceptible to thethe interpretation and enforcement of Article 9.

116

political pressure of the day, in the course of consti-

The lower courts have generally followed thetutional litigation plays a crucial role of monitoring

Supreme Court＇s lead by insulating Article 9 fromgovernment

judicial review through the application of excessively

about such conduct and coordinating public opinion

narrow standing requirements, such that virtually no

regarding decisions, and finally in actually enforcing

one other than a member of the SDF ordered into

the constitutional provisions governing the decisions

combat could establish the narrow legal interest

to use force.119 Over time the very possibility of suchdeemed necessary to ground a claim that govern-

judicial review exercises a powerful influence onment action is in violation of Article 9.

government conduct, and serves to internalize con-

115

117

conduct,disseminating

information

This of course means that Article 9, one of thestitutional norms. Conversely, the removal of any

three pillars of the Japanese constitutional system, ispossibility of judical review for certain constitutional

immunized from judicial scrutiny and is largely un-provisions will operate to completely undermine theenforceable, and that the third branch of government

normative power of those provisions. Judicial review

in the Japanese democratic system has opted out ofof war powers provisions is yet another but crucial

any involvement in the process of ensuring that deci-mechanism for moderating the tendency of democra-

sions to use force comply with the constitutionalcies to engage in illegitimate or unlawful armed con-limits. To the extent that one takes seriously the idea

flicts.120

that Article 9 is a fundamental component of the con-

As previously mentioned, there are a number of

stitutional system, and takes seriously the notion that

other countries that have constitutional provisions

constitutional limits ought to be binding and enforce-

requiring legislative involvement in decisions to use

able, then this situation ought to be considered un-force or deploy armed forces, and several that also

acceptable. If we understand one of the roles of consti-

have constitutional limits on the circumstances undertutions as being to operate as pre-commitment

which the state may engage in armed conflict.121

devices, serving to bind future governments to prin-

Courts have thus been called upon to consider these

ciples and values viewed at the outset as crucial for

issues in other countries. While many argue that thethe polity, then one role of the courts is to ensure thatdomestic courts of many countries do not and ought

those commitments are enforced.118

not to interfere in government decision-making on

Aside from broader constitutional theory, thenational security issues, there is increasing evidencerole of the judiciary is key to ideas that form part ofof a trend towards courts rejecting the notion thatliberal theories regarding the democratic peace.

questions relating to national security are somehow

While the separation of powers as between the ex-

non-justiciable or beyond the jurisdiction of the judi-

ecutive and legislature is central to republican ideas

ciary.122 In particular, many courts have not been re-of democratic accountability, and for creating the cir-luctant to engage in a review of specific questions

cumstances in which the benefits of representative

regarding the extent to which government decisions－ 66 －

Change It to Save It : Why and How to Amend Article 9（Craig Martin）

relating to national security were made in a manner

replace the established meaning of Article 9, and fun-that complied with clear and unambiguous constitu-

damentally alter the constraints imposed by Article

tional conditions, or were made by the branch of govern-

9(1). Thus, those who support Article 9 and the idea

ment that had the requisite constitutional authorityof a pacifist Japan can no longer afford to simply

to do so.

The Constitutional Court of Germany

reject all talk of amendment. The winds of change

illustrated this most famously with its 1994 decision

are moving against them, and they must develop re-relating to Germany＇s involvement in Bosnia, holding

alistic and feasible alternatives to the proposals beingthat the Bundestag had to approve each and every

developed by those on the political right. When thedecision to deploy the armed forces of Germany fordebate is finally joined in earnest, and questions ofinternational military operations.

amendment are being developed to lay before the

123

124

I would therefore propose a new clause for Art-

people of Japan, the champions of Article 9 will haveicle 9, Article 9(4), which would provide for explicit

to have some meaningful response. There are soundpowers of judicial review with respect to government

reasons to think that Article 9 ought to be amended,

compliance with the rest of Article 9. This sub-for the good of the constitutional order as a whole,section would also establish broad standing for citizens

and in the interests of preserving reasonable con-seeking to commence applications to enforce the pro-straints on Japan＇s ability to use armed force. I havevisions of Article 9. Such standing would not require

tried here to provide the outline of some of thoseexistence of a personal narrow legal interest, as cur-arguments, and to provide some revised language

rently serves to insulate Article 9 from virtually allthat may serve as the starting point for a discussion

judicial review. Rather, employing a standard similaron what form alternative proposals might take—to that established by the Supreme Court of Canada,

proposals that would remain true to the spirit andthe Supreme Court of Japan should merely require

purpose of Article 9.

that there be a serious issue to be determined, thatthe applicant has a genuine interest in the issue, even

APPENDIX 1 ‒PROPOSED AMENDMENTS TO ARTICLE 9

if only as a representative of the broader public, andArticle 9(1) ‒ (Option One) - Aspiring sincere-that there would be no more reasonable or effective

ly to an international peace based on justice andmanner for the issue to be brought before the court.125

order, the Japanese people forever renounce theSuch a provision would bring Article 9 back into thethreat or use of force as means of settling interna-

realm of enforceable constitutional provisions. In sotional disputes, except for the purpose of individual

doing, it would also provide some reassurance that

self-defense of the nation in the event of armed

the amendment of Article 9 to permit some use of

attack, or for the purpose of maintaining internation-

force would not be the beginning of a slippery slope

al peace and security as authorized by the United

towards unrestricted participation in military operat-

Nations Security Council.
Article 9(1) ‒ (Option Two) - Aspiring sin-ions of all kinds.

cerely to an international peace based on justice andCONCLUSION

order, the Japanese people forever renounce the

The LDP draft amendments and other proposals

threat or use of force as means of settling interna-being developed by those who are essentially hostile

tional disputes, except in accordance with that whichto the underlying premise of Article 9, would operate

is permissible under the United Nations Charter andto undermine the constraints that Article 9 has exer-

customary international law.

cised over Japan＇s use of force over the last sixty five

Article 9(2)(a) – The government may estab-years. As explained above they are potentially dan-lish land, sea, and air armed forces for the primary

gerous. Similarly, if there are no amendments to Art-

purpose of defending the territorial and political in-

icle 9, the illegitimate ＂reinterpretation＂ of Article 9

tegrity of Japan. In addition to the exercise of indi-that was implemented in 2015 will over time come tovidual self-defense, the armed forces of Japan may－ 67 －

立命館平和研究第18号（2017.3）

only be employed for such purposes as are permitted

event, the government shall immediately provide

by the exceptions provided for in the preceding

notice of its decision to each House of the Diet, and it

paragraph, and otherwise in accordance with theshall obtain approval from each House in accordance

provisions of the Constitution and other laws of Japan,

with the terms of sub-paragraph (a) of this para-and international law.

graph within twenty days thereof, failing which the

Article 9(2)(b) – The Prime Minister, acting

government shall immediately cease such hostilities.

through the Minister of Defense, shall be the com-

Article 9(3)(c) – Any decision by the govern-mander in chief of the armed forces of Japan. No

ment to deploy members of the Armed Forces forserving member of the armed forces may be appoint-

participation in peacekeeping operations, to provide

ed as a minister in cabinet, and no serving officer

logistical support for international collective security

with the rank of Colonel or higher may serve in any

operations, or other such activity that does not in-ministry of government other than the Ministry ofclude the use of force contemplated in paragraph one

Defense.

of this Article, shall be approved by a formal vote of

Article 9(2)(c) – No serving member of theeach of the House of Representatives and the House

armed forces may run for public office, be a memberof Counselors, by a simple majority of the votes castof any political party, actively participate in any po-by the members of each House.

litical campaign, or otherwise engage in public debate

Article 9(3)(d) – In the event that the characteror other activity designed to influence the formula-of any operations in which members of the Armedtion of public policy.

Forces are participating in accordance with sub-

Article 9(2)(d) – A Committee for the Armedparagraph (c) of this paragraph, should develop such

Forces shall be established by law in the House ofthat they will likely require a use of force contem-

Representatives and the House of Counselors in theplated in paragraph one of this Article, the govern-Diet, for the purpose of requesting and receiving re-ment shall obtain further approval for the continua-

ports from the Ministry of Defense and other branch-tion of such operations according to the terms of

es of government, on the deployment and operations

sub-paragraph (a) of this paragraph, failing whichof the Armed Forces, otherwise monitoring such op-

the government shall immediately discontinue sucherations of the Armed Forces, and generally provid-

operations.

ing legislative and civilian oversight over the Armed

Article 9(4)(a) – Any person in Japan may

Forces. The Committee for the Armed Forces shallapply to a court of competent jurisdiction to obtain ahave subpoena power over documents and may

declaration, injunctive relief, damages, or any othercompel testimony before it, and shall issue reports ofremedy for alleged violation of this Article that theits findings.

court considers appropriate and just in the circum-

Article 9(3)(a) – Any decision by the govern-

stances.

ment to use force consistent with and as permitted

Article 9(4)(b) – Any person who has made ap-

by paragraph one of this Article, shall be approved inplication under sup-paragraph (a) of this paragrapha formal vote by each of the House of Representative

shall be granted standing by the court so long as theand the House of Counselors, by a minimum of two

issue raised is a serious issue to be tried, the person

thirds of votes cast by the members of each House.

has a genuine interest in the issue, even if only as a

Article 9(3)(b) – In the event that the nation isrepresentative of the general public, and there would

under attack or the government has determined thatbe no other reasonable or effective means for thethere is a state of emergency threatening the territo-

issue to be brought before the court.

rial and political integrity of the state, making prior

Article 9(4)(c) – The Supreme Court has theapproval from the Diet impractical, the government

final authority with respect to the interpretation andmay use force in accordance with paragraph one ofmeaning of this Article.

this Article without such prior approval. In such

－ 68 －

Change It to Save It : Why and How to Amend Article 9（Craig Martin）

Notes
1

2

7

For a good analysis of these dynamics, see J. Patrick Boyd

Ray A. Moore and Donald L. Robinson, Partners for De-

and Richard J. Samuels, Nine Lives?: The Politics of Con-

mocracy: Crafting the New Japanese State Under MacAr-

stitutional Reform in Japan (2005). Please note that Japa-

thur (2002); see also Koseki Shōichi, The Birth of Japan＇s

nese names in the notes to this article are rendered in the

Postwar Constitution, (1997). There is a massive literature

traditional Japanese style, surname first, given namein Japanese, but see, e.g., Hara Hideshige, Nihonkoku Kenpōsecond, for all sources, whether originally in either English

seitei no keifu [The Origins of the Japanese Constitution]

or Japanese.

(2004); and Takayanagi Kenzō et al. eds., Nihon-koku

This article is a substantially revised, expanded, and up-

kenpō seitei no katei [The Making of the Constitution of

dated version of a chapter published in 2012: Craig Martin,

Japan] (1972).

＂A Constitutional Case for Amending Article 9,＂ in Bryce

38

ing questions during the committee deliberations. Seetion at 65 (2012).

Moore, Partners for Democracy, 212; Nishi Osamu, The

For my more detailed analysis of the meaning of Article 9,Constitution and the National Defense Law System in Japan

from an international law perspective, see Craig Martin,(1987), 5, 100-102; but see Yasuzawa Kiichirō, Kenpōdaikyūjō no kaishaku (1981), 156 and 186.

izing of Jus ad Bellum＂ 30 University of Pennsylvania Jour-

9

Moore, Partners for Democracy, 170, 212-216.

nal of International Law 267 (2008), 309-317.

10

Ibid.

Ibid, 309-312; There is, of course, an enormous literature

11Peter J. Katzenstein, Cultural Norms and National Secu-

on, and intense debate about, the interpretation of Article

rity: Police and Military in Postwar Japan (1996), 4-5, 44,

9. A few sources that approach the issue with a greater

112; and Martin, ＂Binding the Dogs of War,＂ 282, 304-305,

attention to the international law principles from which355-56.

Article 9 was drawn, include: Hatake Motoaki, Kenpō 9 jō:

12the House of Representatives Budget Committee delibera-ed., 2005), chs. 12–14; Nasu

tions, on December 21, 1954. See Nishikawa Shinichi, Shi-

Kenpō to kokusai shakai (2Hitoshi, ＂Article 9 of the Japanese Constitution Revisited inrarezaru kanchō: naikaku hōseikyoku, [The Unknown

the Light of International Law,＂ 18 Journal of Japanese Law

Agency: The Cabinet Legislation Bureau], (2000), 40; see

50 (2004); and Nasu Hitoshi, ＂Japan＇s 2015 Security Legis-

also Richard J. Samuels, ＂Politics, Security Policy, and Ja-

lation: Challenges to its Implementation Under Interna-

pan＇s Cabinet Legislation Bureau: Who Elected Thesetional Law,＂ 92 International Legal Studies 249 (2016).

Guys, Anyway?＂ (Japanese Policy Research Inst., Working

James E. Auer, ＂Article Nine: Renunciation of War＂ inPaper No. 99, 2004), available at http://www.jpri.org/pub-

Percy R. Luney Jr. and Takahashi Kazuyuki, ed. Japaneselications/workingpapers/wp99.html., 6.

Constitutional Law (1993); and Kenneth L. Port, ＂Article 9

13

Nishikawa, Shirarezaru kanchō, 46.

dozo Journal of International & Comparative Law 127
14(2005).

John O. Haley, ＂Waging War: Japan＇s Constitutional Constraints＂ 14(2) Constitutional Forum 18 (2005), 28-29, 33;of the Japanese Constitution and the Rule of Law,＂ 13 Car-6

The interpretation was provided by Director Hayashi inkenkyū to giron no saizensen, ch. 6 (2006); Fujii Toshio,nd5

Even Prime Minister Yoshida took this position in answer-

Wakefield, ed., Time for a Change? Japan＇s Peace Constitu-＂Binding the Dogs of War: Japan and the Constitutional-

4

For a very detailed account of the process in English, seeSunagawa case, 13 Keishū 3225, (Supreme Court, Decem-

There are actually two theories as to the meaning of thisber 16, 1959); for more detailed discussion of this aspect ofclause. For an account of both theories, see Hatake, Kenpōthe case, see Martin, ＂Binding the Dogs of War,＂ 338-40;

9 jō, 87–88; Tamura Shigenobu et al., Nihon no bōeihōsei

and Haley, ＂Waging War,＂ 24 and 28.

(2008), 15; Ashibe Nobuyoshi, Kenpōgaku, Vol. 1 (1992),

15

Naganuma case, 36 Minshū 1679 (Sup. Ct., Sept. 9, 1982).

283-84; On the rights of belligerency in international law

16

See Nishikawa, Shirarezaru kanchō; Nakamura Akira, Sen-generally, see e.g., Yorum Dinstein, The Conduct of Hos-goseiji ni yureta kenpō kyūjō – naikaku hōsiekyoku no jishintilities Under the Law of International Armed Conflicttsuyōsa [Article 9 of the Constitution Rocked by Post War(2004), 27-33; for my more detailed analysis of this clause,

Politics: The Strength and Self-Confidence of the Cabinet

see Martin, ＂Binding Dogs of War,＂ 314-17.

Legislation Bureau] ch. 1 (1996); Nishikawa Shinichi,－ 69 －

立命館平和研究第18号（2017.3）

Korede Wakatta! Naikaku Hōseikyoku [Here Understood!

17

spond to it, see Pyle, Japan Rising, 290-293; Togo Kazuhiko,hiro, Hō no Banjin: Naikaku Hōseikyoku no Kyōji: Kaishy-

Japan＇s Foreign Policy 1945-2003 (2005), 305-307; Kat-

aku Kaiken ga Yurusanai Riyū [The Law＇s Gatekeeper –zenstein, Cultural Norms and National Security, 125-127.

The Dignity of the Cabinet Legislation Bureau: Reasons

26

Why the Reinterpretation is Unacceptable] (2014).

27

pretation again in 1981; see Samuels, ＂Who Elected These

tions, on December 21, 1954. See Nishikawa, Shirarezaru

Guys?,＂ 8, for the full formulation; on the 1997 Guidelines,

kanchō, 40; see also Samuels, Nine Lives, 5, 24–29 (tracing

see Joint Statement in Review of U.S.-Japan Defense Co-

the development of the ＂minimum necessary force＂ doc-

operation Guidelines, U.S.-Japan, September 23, 1997, 36

trine). It was further expanded upon by Prime Minister

I.L.M. 1621; For analysis, see Yamauchi Toshihiro ed.,Kishi in the House of Councilors Cabinet Committee on

Nichibei shingaidorain to shuhen jitaihō (1999); and see

May 7, 1957. See Nishikawa, Shirarezaru kanchō, 41.
28

database, with country military expenditures from 1988-

which all members would be required to contribute forces,

2015, available online at: https://www.sipri.org/sites/de-and the use of such forces in collective security operations,fault/files/Milex-constant-USD.pdf. (the other top coun-as contemplated by Article 43 of the U.N. Charter, nevertries include the U.S., China, Russia, the U.K., Germany,came to pass. See Yorum Dinstein, War, Aggression, andIndia, and Saudi Arabia. France spends less that Japan).

ed., 2005), 4th ed., ch 10, and Christine

29

Hughes, Japan＇s Remilitarisation.

ed.,

30

See Auer, ＂Article Nine: Renunciation of War.＂2008), ch. 7 and 8; for more on this point in the context of31

See Sources in and text associated with note 6, supra.

Article 9, see Martin, ＂Binding the Dogs of War,＂ 327-28.

32

See Martin, ＂Binding the Dogs of War,＂ 314-17.

For analysis of Japan＇s military capability and national de-33

See, e.g., Dinstein, The Conduct of Hostilities Under thethrdgence as a ＇Normal＇ Military Power, (2006); Christopher

Law of International Armed Conflict.
34

23

that the law governing the deployment of SDF members

See, e.g., Auer, ＂Article Nine: Renunciation of War,＂ 5; andto participate in the belligerent occupation of Iraq in 2005

Kenneth L. Port, ＂Article 9 of the Japanese Constitution

was so restrictive—the law essentially limited the indi-

and the Rule of Law.＂vidual use of force by SDF members to the right of indi-

This is the famous ＂Ashida amendment＂ — for my analysis

vidual self-defense that was permitted by domestic crimi-of this as it bears on the official interpretation of Article 9,

nal law. See Martin, ＂Binding the Dogs of War,＂ 317, fn. 127.

and some of the myths surrounding its origins, see Martin,

In interviews with lawyers from the CLB in August 2013,＂Binding the Dogs of War,＂ 303-06; see also Moore, Part-

it was confirmed to me that the CLB interpretation of Article 9(2) is consistent with the theory explained here.

Japan＇s Constitution, 195-202.

35

Martin, ＂Binding the Dogs of War,＂ 314-17.

Watanabe Yōzō, Nichibei Anpotaisei to Nihonkoku Kenpō,

36

Liberal Democratic Party, ＂Jiyūminshūtō shinkenpō sōan,＂(1991), 129–30.

Kenpōkaigi website (n.d.), http://www.kenpoukaigi.gr.jp/

Article 9 was the well-spring for such other limiting poli-seitoutou/051028jimin-sinkenpousouan.pdf. [hereinafter,

cies as that which limited defense spending to 1% of GNP,

LDP 2005 Amendment Proporsal]

the three non-nuclear principles, and the prohibition on

24

As I argued elsewhere, this is one reason for supposing

Huges, Japan＇s Remilitarisation (2009).

ners for Democracy, 248-50, and 275; and Koseki, Birth of

22

See Hughes, Japan＇s Remilitarisation, 19; also see the SIPRI

In particular, the establishment of a U.N. standing force, tofense policy, see Christopher W. Hughes, Japan＇s Re-emer-

21

This interpretation was provided by Director Hayashi inthe House of Representatives Budget Committee delibera-

Gray, International Law and the Use of Force (320Martin, ＂Binding the Dogs of War,＂ 346-47.

The CLB reinforced and elaborated upon its formal inter-

Self-Defence, (419For more on the crisis, the government＇s attempt to re-

The Cabinet Legislation Bureau] (2013); and Sakata Masa-

the sources in note 16.
18

25

37

＂Jiyūminshūtō shinkenpō sōan,＂ Liberal Democratic Party

the export of arms. See Kenneth Pyle, Japan Rising: The

website, April 27, 2012, http://www.jimin.jp/policy/policy_

Resurgence of Japanese Power and Purpose (2007), 273-76.

topics/116666.html [hereinafter, LDP 2012 Amendment

For a detailed argument to support this assertion, see

Proporsal]

Martin, ＂Binding the Dogs of War,＂ 329-56.

38－ 70 －

Osaki Tomohiro, ＂Abe Sidesteps Opposition Grilling on

Change It to Save It : Why and How to Amend Article 9（Craig Martin）

longer article.

LDP＇s Draft Constitution,＂ The Japan Times, Oct. 5, 2016.
39

40

LDP 2012 Amendment Proposal. Paraphrased from the full54

Cabinet Decision on Development of Seamless Security

clause ＂kokusai shakai no heiwa to anzen wo kakuhosuru

Legislation to Ensure Japan＇s Survival and Protect its

tameni kokusaiteki ni kyochōshite okonowareru katsudō.＂People (provisional English translation) (July 1, 2014),

Ibid. Also entirely new to the 2012 draft, as compared tohttp://www.cas.go.jp/jp/gaiyou/jimu/pdf/anpohosei_eng.

the 2005 LDP proposal, is the introduction of a provision in

pdf. The original Japanese language version is available at:

Article 9(2) establishing the authority for a military court

http://www.cas.go.jp/jp/gaiyou/jimu/pdf/anpohosei.pdf.

to try members of the military and other public officials for[hereinafter, Cabinet Decision]

offences committed in the performance of their duties, and55

Ibid., 3.

for crimes relating to the disclosure of military secrets.

56

Ibid.

41

Ibid.

57

See Nagoya High Court, 2056 Hanrei-jihō 74 (2008)

42

Reinterpretation of Article 9 was, of course, one of the[hereinafter, Nagoya Hight Court Decision], a translation ofprongs of prime minister Abe Shinzo＇s attacks on Article

which is available in 19 PACIFIC RIM L. & POL. J. 3 (2010),

9, and was the recommendation of the first Advisory Panel

http://papers.ssrn.com/sol3/papers.cfm?abstract_

Report: Report of the Advisory Panel on the Reconstruc-

id=1767658.

tion of the Legal Basis for Security, June 24, 2008, available

58

Cabinet Decision.

online (in English) at: http://www.kantei.go.jp/jp/singi/

59

Ibid., 6.

anzenhosyou/report.pdf.

60

The Constitution of Japan, ch. III, art.13

Report, 2008].

61

Cabinet Decision, 6-7.

This analysis is substantially drawn from an essay I

62

Ibid.

published in 2012: Craig Martin, ＂LDP＇s Dangerous

63

Ibid., 8.

Proposals for Amending Antiwar Article,＂ The Japan Times,

64

Ibid., 6-8.

Jun. 6, 2012.

65

Ibid., 8.

44

LDP 2012 Amendment Proposal.

66

See, e.g., Miwa Sachiko, ＂Diet Debate on Security Bills

45

Ibid.

46

Ibid.

47

Ibid.

48

Ibid.

24, 2015; Miwa Sachiko, ＂Conditions for Exercising Right to

49

Ibid.

Collective Self-Defense Open to Interpretation,＂ The Asahi

50

Ibid.

Shimbun, May 12, 2015.

51

Ibid.

52

For my own analysis of the reinterpretation effort, and the

Seibiho [Law for the maintenance of the peace and secu-

sources I rely on for that analysis, see: Craig Martin, ＂Therity legal system], and Kokusai Heiwa Shijiho [Interna-

Legitimacy of Informal Constitutional Amendment and thetional peace support Law], are available online at: http://＇Reinterpretation＇ of Japan＇s War Powers,＂ 41 Fordham In-

www.cas.go.jp/jp/gaiyou/jimu/housei_seibi.html.

ternational Law Journal (2016); and, Craig Martin, ＂Thepreliminary analysis of the legislation, see Hasebe Yasuo,

Jus ad Bellum Implications of Japan＇s New National Secu-

Kensho – Anpohōan: Doko ga kenpōihanka [Examined –rity Laws,＂ 14:10 The Asia Pacific Journal: Japan Focus

National Security Laws: Where are they Unconstitutional?](2016); Bryce Wakefield and Craig Martin, ＂Reexamining(2015).

43[hereinafter,

Advisory

PanelStarts with Confusion over Limits on Collective Self-Defense,＂ The Asahi Shimbun, May 26, 2015.
67

68＇Myths＇ About Japan＇s Collective Self-Defense Change＂

53

69＂Blurry Limits on SDF Missions,＂ The Japan Times, Apr.

The bills, the short titles of which are Heiwa AnzenhoseiFora

It was reported that as of the week following the testi-

The Asia Pacific Journal: Japan Focus (2014);

mony of three prominent constitutional scholars in the

For why this is so, see Martin, ＂The Legitimacy of Informal

Diet (Hasebe Yasuo and Sasada Eiji of Waseda University,

Constitutional Amendment.＂ Much of this section of theand Kobayashi Setsu of Keio University), in which they

analysis of the reinterpretation, and its inconsistency withtestified that the national security laws were unconstitu-

the traditional meaning of Article 9, is drawn from thattional, fully 225 constitutional law scholars had signed a－ 71 －

立命館平和研究第18号（2017.3）

310 n.114.

joint statement condemning the reinterpretation as unconstitutional: Yoshida Reiji, ＂Japan Security Bills Reveal

79

Ibid.

Irreconcilable Divide Between Scholars, Politicians,＂ The80

U.N. Charter, art. 51. See Dinstein, War, Aggression and
Self-Defence; Gray, The Use of Force.

Japan Times, June 12, 2015.
70＂Abe Shapes Agenda for Defense Panel,＂ The Asahi Shim-

81＂LDP Set to Limit Use of Collective Self-Defense,＂ The
Yomiuri Shimbun, Mar. 30, 2014.

bun, May 19, 2007.

＂Operations in Strait of Hormuz to Come Under New De-

71

Advisory Panel Report, 2008.

72

Report of the Advisory Panel on the Reconstruction of thefense Guidelines,＂ The Asahi Shimbun, Apr. 9, 2015; Mina

Legal Basis for Security, May 15, 2014, available online at:

Pollmann, ＂Could Japan Go Minesweeping in the Strait of

http://www.kantei.go.jp/jp/singi/anzenhosyou2/dai7/

Hormuz?,＂ The Diplomat, Feb. 18, 2015, http://thediplomat.

houkoku.pdf; and in English, at: http://www.kantei.go.jp/com/2015/02/could-japan-go-minesweeping-in-the-jp/singi/anzenhosyou2/dai7/houkoku_en.pdf. [hereinafter,

strait-of-hormuz/.

82

Advisory Panel Report, 2014].
73

74

75

83

The Advisory Panel report probably should play no role

International Law Applicable to Naval Mines (2014)

whatsoever in interpreting the revised meaning of Article

https://www.chathamhouse.org/sites/files/chatham-

9, given that it is an extra-constitutional body with nohouse/field/field_document/20140226NavalMines.pdf;

constitutional authority whatsoever. But Abe clearlySean Henseler, Project 2049 Institute, Clarifying U.S. –sought the report to bolster and lend legitimacy to theJapan Mine Warfare Roles, Missions, and Capabilities in

move, and it could be anticipated that it would form partthe Persian Gulf: An Examination of International Legalof the argument in subsequent judicial review, or in

Issues (2013) https://project2049.net/documents/counter-interpretations articulated by other branches of government.

mining_henseler.pdf.

Advisory Panel Report, 2014, 23-24. (page numbers are for

78

This discussion is drawn from an earlier essay on thisissue: Martin, ＂Jus ad Bellum Implications of Japan＇s New

Ibid., (citing Director-General of the Defense Agency

National Security Laws＂.
85

Miwa Sachiko ＂Diet Debate on Security Bills Starts with22, 1954).

Confusion Over Limits on Collective Self-Defense,＂ The

The language of the Kellogg-Briand Pact was to ＂condemn

Asahi Shimbun, May 26, 2015.

recourse to war for the solution of international controver-

77

84

English translation- pp.18-19 of Japanese).

Omura Seiichi, answering questions to the Diet, December

76

For a review of such principles, see, e.g., Chatham House,

86

This point was dramatically underlined in a decision released

sies, and renounce it, as an instrument of national policy injust as this article was going to press. In State of Washington

their relations with one another.＂ General Treaty for Re-

v. Trump, a case involving the legality of an Executive

nunciation of War as an Instrument of National Policy, art.

Order that barred foreigners from certain countries from

1, Aug. 27, 1928, 46 Stat. 2343, 94 L.N.T.S. 57, http://avalon.

entering the United States, the government had argued

law.yale.edu/20th_century/kbpact.asp. There werethat the Court should understand the Executive Order instrained interpretations at the time that suggested thatissue as not applying to lawful permanent residents of thewars not waged for the purpose of ＂national policy,＂ such

United States (Green Card holders), notwithstanding theas wars for religious or ideological ends, might thus beclear language in the Executive Order to the contrary,legal. This was not, however, the accepted view or inter-because the White House Counsel had issued an interpretation

pretation of the provision in international law: see, e.g.,of the Executive Order after it had been issued to exclude

Dinstein, War, Aggression and Self-Defence, 84. In any

it from affecting Green Card holders. The Court held thatevent, the language is not the same as that of Article 9(1).

such government guidance to interpretation had no authority,

See Dinstein, War, Aggression and Self-Defence, and Gray,and moreover can change at any time, and so must be ignored

The Use of Force, for sources analyzing the internationalby the court. State of Washington v. Trump, No. 17-35105

law principles of jus ad bellum.

(9th Circ. Feb. 9, 2017), 21-22.

For my more extensive analysis and rejection of these ar-87

guments, see Martin, ＂Binding the Dogs of War＂, 312-13,－ 72 －

See, e.g., Fujii [The Constitution and International Society],chs. 12–14 (2d ed., 2005); Sakamoto Masanari, ＂Buryokukōshi

Change It to Save It : Why and How to Amend Article 9（Craig Martin）

ihōka gensoku no naka no kyūjōron,＂ [The Article 9 Debate

able as Japan increasingly agrees to vaguely worded com-

Within the Criminalization of the Use of Armed Force] 1334

mitments regarding mutual defense, as in the 1997 Guide-JURISTO 50, 56 (2007); Nasu, ＂Japan＇s 2015 Security Legis-lines.

lation,＂ and Nasu, ＂Article 9 of the Japanese Constitution

101 A number of countries have adopted this approach to the

Revisited in the Light of International Law＂.

incorporation of human rights principles from internation-

Eyal Benvenisti, ＂The US and the Use of Force: Double-

al law into their constitutions; see Thomas Buergenthal,

Edged Hegemony and the Management of Global Emer-＂Modern Constitutions and Human Rights Treaties,＂ 36gencies,＂ 15 European Journal of International Law 677

Columbia Journal of Transnational Law 211 (1997).

(2004) (describing the ＂Bush Doctrine＂ as an effort to re-

102 I am here referring to the purpose as contemplated by thespond to various security challenges but criticizing it as

ratifiers. The American drafters, of course, had a similar

upsetting the existing UN regime and creating other risks

though slightly different purpose of preventing Japan fromto global stability).

ever again posing a military threat to the United States

89

Cabinet Decision, § 1, at 2.

and its allies.

90

U.N. Charter, art. 51; DINSTEIN, War, Aggression and Self-

103 George M. Beckmann, The Making of the Meiji Constitu-

Defence, GRAY, The Use of Force. See Military and Para-tion: The Oligarchs and the Constitutional Development of88

military Activities in and Against Nicaragua (Nicar. v.
U.S.), 1986 I.C.J. 14 (June 27).
91

92

Japan, 1868–1891 (1957).
104 Article 66(2) provides that ＂the Prime Minister and other

Advisory Panel Report 2014, 45 (＂Sometimes, the right toMinisters of State must be civilians.＂ It was added at the

take measures against infringements that do not amountinsistence of the Far Eastern Commission during the rati-

to an armed attack is referred to as ＇minor self-defense

fication process, after the Ashida amendment was added

rights＇; however, the use of this term is not advisable as it

to Article 9. There was uncertainty at the time as to how

has not been established in international law, and could

the English word ＂civilian＂ should be translated into Japa-

invite criticism from at home and overseas that Japan isnese, and the word bunmin was used, though with little

expanding beyond the concept of the right of self-defense

clarity on what its exact scope and meaning would beunder Article 51 of the Charter＂).

(would it restrict the appointment of retired officers, for

Cabinet Decision, 4 (the precise language is: ＂the scene

instance, or only serving members of the military?). Moore,

where combat activities are actually being conducted.＂).

Partners for Democracy, 306.
105 Yoshida Reiji, ＂MSDF Knew of Oil Error Since ＇03: Opposi-

93

Ibid., 3-4.

94

See generally GRAY, The Use of Force; U.N.G.A. Res. 3314

tion Demands Sworn Diet Testimony by Officials,＂ The(XXIX) (Dec. 14, 1974); Military and Paramilitary Activi-

Japan Times, October 23, 2007; ＂Ex-MSDF Officer Snubs

ties in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14

Diet Summons in Refueling Snafu,＂ The Japan Times, No-(June 27).

vember 6, 2007.
106 Craig Martin, ＂Permanent SDF Overseas Deployment Law

95

Nagoya High Court Decision.

96

Martin, ＂Binding the Dogs of War,＂ 346-47.

97

Ozawa Ichirō, Nihon kaizō keikaku, (1993), 114-137.

98

Togo, Japan＇s Foreign Policy, 78-85; Thomas A. Drohan,

the enactment of the one new law had the net effect ofAmerican-Japanese Security Agreements, Past and Presentchanging when, and under what circumstances, Diet ap-(2007), 61-70, 85.

proval is necessary. The new ＂International Peace Support

For more on the distinction, see Craig Martin, ＂Collective

Law＂ (Law No. 77, 2015) requires Diet approval for de-

Self-Defense and Collective Security: What the Differences

ployment of forces pursuant to this law, but revisions to

Mean for Japan,＂ The Japan Times, August 30, 2007. For

the ＂Self-Defense Forces Law＂ (Law No. 165, 1954, as

more on the scope and nature of each concept in interna-

amended), the ＂Resolving Contingencies Law＂ (Law No.

tional law, see Dinstein, War, Aggression and Self-Defence,

79, 2003, as amended), and the ＂Ensuring Security in Situ-

chs. 9 and 10.

ations of Serious Influence to Japan Law＂ (Law No. 60,

99

Endangers Democracy,＂ The Japan Times, May 21, 2008.
107 The revisions to ten existing national security laws and

100 Though, this proposition becomes somewhat more debat-－ 73 －

1999 as amended), for Diet approval in various circum-

立命館平和研究第18号（2017.3）

stances involving deployment of the SDF. For analysis ofquirement in the Naganuma case, 36 Minpō Hanreishū

the laws see e.g. Hasebe, Examined - National Security

1679 (Sup. Ct., Sept. 9, 1982).
118 Jon Elster, Ulysses and the Sirens: Studies in Rationality

Laws, supra.

and Irrationality (1979); See also, Stephen Holmes, ＂Pre-108 Wolfgang Wagner, Parliamentary Control of Military Mis-

commitment and the Paradox of Democracy,＂ in Jon Elster

sions: Accounting for Pluralism (2006).

and Rune Slagstad (eds.), Constitutionalism and Democ-

109 Immanuel Kant, ＂Perpetual Peace: A Philosophical Sketch＂racy (1988), 195.

(1795), reprinted in H.S. Reiss ed., H.B. Nisbett trans.,
Kant: Political Writings (2nd ed., 1991); James Madison,

119 See David S. Law, ＂A Theory of Judicial Power and Judi-The Federalist No. 41, 251-60 (James Madison, Clinton

cial Review,＂ 97 Georgetown Law Journal 723-801 (2009).

Rossiter ed., 1961); I analyze these arguments and develop

120 Much more could be said about this last assertion—but toa normative model for both constitutional incorporation of

the extent the Constitution incorporates principles of in-international law principles on the use of force, and great-

ternational law, adherence to the constitutional limits will

er constitutional control over such decision-making, in

help ensure that the state does not use force in violation of

Craig Martin, Taking War Seriously: A Model for Consti-

international law principles. See ＂Martin, Taking War Seri-tutional Constraints on the Use of Force in Complianceously＂; on the need for such checks to resist the tendencywith International Law, 76:2 Brooklyn Law Review 611-730

of democracies to engage in irrational wars with illiberal(2011).

states, see Michael Doyle, Ways of War and Peace: Real-110 On the functions of parliaments in this context, see, e.g.,ism, Liberalism, and Socialism (1997), 251-301.

Heiner Hänggi, ＂The Use of Force Under International

121 See Wagner, Parliamentary Control.

Auspices: Parliamentary Accountability and ＇Democratic

122 Aziz Z. Huq, ＂Against National Security Exceptionalism,＂

Deficits＇,＂ in Hans Born & Heiner Hänggi eds., The ＂Double

Supreme Court Review 225 (2009); Cass R. Sunstein,

Democratic Deficit＂ (2004); Owen Greene, ＂Democratic＂Judging National Security Post – 9/11: An Empirical In-

Governance and the Internationalisation of Security Policy:

vestigation,＂ Supreme Court Review 269-292 (2008); Kent

The Relevance of Parliaments,＂ in The ＂Double Democrat-

Roach, ＂Judicial Review of the State＇s Anti-Terrorism Ac-

ic Deficit＂; on the functioning of deliberative democracy

tivities: The Post 9/11 Experience and Justification for Ju-

more generally, see Amy Gutmann and Dennis Thompson,

dicial Review,＂ 3 Indian Journal of Constitutional Law 138-

Why Deliberative Democracy? (2004); for literature on the

167 (2009).

＂democratic peace,＂ (which is huge) see, e.g., R.J. Rummel,

123 For the analysis supporting this proposition, see Martin,＂Taking War Seriously,＂ 693-704.

Understanding Conflict and War (1979); Bruce Russett,Grasping the Democratic Peace: Principles for a Post-Cold

124 Bundesverfassungsgericht [Federal Constitutional Court]

War World (1993).

July 12, 1994, 106 I.L.R. 320 (Ger.); see also Georg Nolte,

111 German Basic Law, Article 45b.

＂Germany: Ensuring Political Legitimacy for the Use of

112 See authorities in notes 109 and 110 supra, and my analysis

Military Forces by Requiring Constitutional Accountability,＂ in Charlotte Ku & Harold K. Jacobson (eds.), Demo-of these issues in Martin, ＂Taking War Seriously.＂
113 Ibid.

cratic Accountability and the Use of Force in International

114 War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555

Law, (2003).

(1973) (codified at 50 U.S.C. §§ 1541-1548 (2006));

125 Thorson v. Attorney General, [1975] 1 S.C.R. 138 (Can.);for examples of such mechanisms or other exceptions in

Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265

the constitutions of other countries, which would include(Can.); see also, Peter Hogg, Constitutional Law of Canada,

Denmark and Sweden, see Wagner, Parliamentary Con-

(5th ed., 2007), 776-80.

trol.
115 Articles 76, 81, and 98, Constitution of Japan, 1947.
116 Martin, ＂Binding the Dogs of War,＂ 337-43; but see Haley,＂Waging War,＂ 24 and 28.
117 The Supreme Court established this narrow standing re-－ 74 －