Future relations between the United States and Japan: article 9 and the remilitarization of Japan.

• Author: Gibbs, D. Bradley

1. INTRODUCTION II. BACKGROUND: HOW AND WHY THE "NEW" CONSTITUTION OF JAPAN WAS ADOPTED A. An Overview B. The Adoption Process III. THE REINTERPRETATION OF ARTICLE 9 AND THE REMILITARIZATION OF JAPAN IV. BOTH SIDES OF THE ARGUMENT FOR REMILITARIZATION A. Arguments in Favor of Remilitarization B. Arguments Opposing Remilitarization V. THE FUTURE OF ARTICLE 9 A. Debate and the Possibility of Constitutional Amendment B. A Historic Shift in Politics: The Future of Article 9 Under the Democratic Party of Japan VI. U.S.-JAPAN RELATIONS: NOW AND IN THE FUTURE VII. CONCLUSION I. INTRODUCTION

   In response to the recent threats emanating from China and North Korea, as well as the ongoing war in Afghanistan, the United States is urging Japan to rebuild its long-dismantled military forces. (1) In 2009, following a historic political shift within Japan's government, the controversial topic of amending Article 9 of Japan's Constitution emerged once again. (2)

   The irony of U.S. support of Japanese "remilitarization" is that the United States designed and wrote the framework for Japan's post-WWII pacifist Constitution (sometimes called the "Peace Constitution"), which expressly prohibited Japan from ever again maintaining an offensive military. (3) Since WWII however, the United States has dramatically changed its stance on the Japanese military because of Japan's economic strength and the strong U.S.--Japan bonds that have developed. (4) The ideological shift toward remilitarization has been met with mixed opinions both in Japan and abroad. (5)

   This comment will examine Article 9's history, the possibility of amendment under the Democratic Party of Japan, changing interpretations of Japan's constitutional potential for war, both sides of the remilitarization debate, and the implications on U.S.--Japan military and economic relations, both now and in the future.

   I propose that Article 9 be amended and remilitarization allowed in Japan. Japan is well aware of its aggressive military history, and although the Japanese people tend to support Japan's post-WWII pacifist stance, (6) the time has come for Japan to take greater responsibility for its own defense. The United States has not formally "occupied" Japan for quite some time, but it continues to bolster Japan's military resources by providing potential offensive capabilities should the need arise. (7) I further propose that remilitarization has already become a reality and that legal and political semantics are distracting attention from this truth.

   I will also examine the question of whether it is politically and economically feasible for the United States to continue to provide the level of military support it has been providing since WWII. In my opinion, the answer to this question is a resounding no, and a limited allowance for Japanese military buildup is the only realistic option at this point.

2. BACKGROUND: HOW AND WHY THE "NEW" CONSTITUTION OF JAPAN WAS ADOPTED

   1. An Overview

      Japan's Peace Constitution came into effect on May 3, 1947 and is uniquely pacifist in nature. (8) Article 9 renounces war, but has been interpreted to allow Japan Jieitai ([TEXT NOT REPRODUCIBLE IN ASCII]), which translates to "Self-Defense Forces" (SDF), a broad designation that includes the Air SDF, Maritime SDF, and Ground SDF. (9) The Peace Constitution is also sometimes referred to as the "MacArthur Constitution," because it was heavily influenced by General Douglas MacArthur, Supreme Commander for the Allied Powers. (10) After U.S. occupation of Japan began, MacArthur was instrumental to the architecture of Article 9, which was designed to ensure that Japan would never go to war again: Japan was to remain disarmed, and Japan's postwar military policies were to be subject to strict U.N. oversight. (11)

      Japan's new Constitution reflected significant changes in the views of the post-WWII international community, and was revolutionary at its inception. (12) At the time of its promulgation, nations began to accept a new philosophy that centered on the basic premise that war is illegal, and "the Japanese Constitution created what amounts to a kind of experiment in which one nation, Japan, explicitly manifested the aforementioned process of change." (13)

      The Japanese Constitution and the interpretation of Article 9 in particular have given rise to much controversy between scholars of international law and scholars of constitutional law. (14) It is best viewed in the modern context of international relationships and the U.N. Charter. (15)

      The fundamentals of the Japanese Constitution of Japan are built on the principles of "popular sovereignty, respect for human rights, and pacifism." (16) The pacifist principle is particularly important in the international context. (17) Article 9, the so-called "no-war" clause, is "basically a mutual pledge between [the international community] and the people of Japan that the State will never again use force as an instrument of national policy, and that the [Japanese] people will not be made to go to war against their will." (18) One factor that contributed to the general acceptance of such a revolutionary document was the avoidance of harsh reparations such as those imposed on Germany after World War I, which was one of the causes behind Germany's decision to wage war a second time. (19)

      Another factor that makes Japan's Constitution unique is that it puts Japan distinctively under the control of a world government, namely, the United Nations. (20) Kazuko Hirose Kawaguchi, a social theorist and professor emeritus at Sophia University, sums up these external aspects of the Peace Constitution by asserting that Japan's pacifism has always been tacitly supported by a system (the United Nations or the international community) that received it and made its existence possible, and the Peace Constitution officially declared its pacifism to the world. (21) I interpret Kawaguchi's analysis to mean that although Japan is a pacifist nation by law, it is still uniquely dependant on the rest of the world for protection, but is limited in its ability to involve itself in the military struggles of its political allies. This global military dependence is an ongoing point of tension and debate within Japan, the United Nations, and the international community. (22) It is time for Japan to accept a greater amount of responsibility for its own protection and to continue the process of cautious remilitarization.

   2. The Adoption Process

      It should come as no surprise that the Japanese Constitution went through a series of changes before it was ratified. (23) It is more surprising that, in more than fifty years, the Japanese Constitution has never been amended. (24) This lack of amendment has not, however, kept constitutional interpretation rigid over time. (25)

      The Constitution's pacifist intent is reflected in its Preamble:

      We, the Japanese people ... determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land, and resolved that never again shall we be visited with the horrors of war through the action of government.... (26) We ... desire peace for all time and are deeply conscious of the high ideals controlling human relationship, and we have determined to preserve our security and existence, trusting in the justice and faith of the peace-loving peoples of the world. We desire to occupy an honored place in an international society striving for the preservation of peace, and the banishment of tyranny and slavery, oppression and intolerance for all time from the earth. We recognize that all the peoples of the world have the right to live in peace, free from fear and want. (27) We believe that no nation is responsible to itself alone, but that laws of political morality are universal; and that obedience to such laws is incumbent upon all nations who would sustain their own sovereignty and justify their sovereign relationship with other nations. (28) We ... pledge our national honor to accomplish these high ideals.... (29) This eloquent and lofty language embodies Japan's sincere desire to make amends for past wartime actions and to avoid the sort of horror that followed nuclear bombings of Hiroshima and Nagasaki. (30) In a famous opinion, the Japanese Supreme Court acknowledged as much: "[I]n conjunction with the spirit of international cooperation expressed in the Preamble and paragraph 2, Article 98 of the Constitution, [Article 9] is an embodiment of the concept of pacifism which characterizes the Japanese Constitution." (31) This sentiment is still widely held by the Japanese people, as is evident from the general reluctance to remilitarize. (32)

      However, because of the Preamble's abstract language, it is not generally thought to be legally binding. (33) Instead, it is used primarily to guide interpretation of various articles of the Constitution--including Article 9. (34) The Article's language is more concrete:

      [1] Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.

      [2] In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential will never be maintained. The right of belligerency of the state will not be recognized. (35)

      Finalizing this language was no small feat, and the drafting process is illustrative of the Constitution's unusual legislative history. An understanding of the drafting process also helps to put the subsequent evolution of constitutional interpretation in context.

      Upon surrendering at the end of WWII, Japan accepted the terms of the Potsdam Declaration. (36) Among other things, the Potsdam Declaration called for an end to the "authority and influence of those who have deceived and misled the People of Japan into...