Monday, August 31, 2015

Japan: Farewell to ‘One Country Pacifism’ -Why it is time to part ways with the traditional interpretations of Article 9 of Japan’s Constitution

Why it is time to part ways with the traditional interpretations of Article 9 of Japan’s Constitution.

The current and ongoing parliamentary debates about the proposed National Security legislation have exposed the closed and self-indulgent mindset that has perpetuated Japan’s notion of what is commonly referred to as “one country pacifism” in international relations. It is unreal to listen to and read about the never-ending futile discourse on whether Article 9 of the Japanese Constitution permits the use of the right of collective self-defense. The real culprit for this futility is Article 9 of the Constitution itself, which provides:      

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 a 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.

In fact, the provisions of Article 9, paragraph 1 should pose no problem, given that similar provisions have been found in many other constitutions since the 1928 Kellogg-Briand Pact. The real villain of a postwar Japan’s “One Country Pacifism” is rooted in the provisions of paragraph 2, which were designed to render Japan so vulnerable as to become no threat to the United States in the future. The combined effect of these two provisions has spawned problems in every interpretation given to them by Japanese governments trying to deal with changing international circumstances. Today’s question about the lawfulness of the use of the right of collective self-defense is just the latest milestone in the long meandering flow of interpretations.

This article considers how the Japanese government has managed to build up its security apparatus in the face of Article 9, a symbol of Japan’s pacifism; analyzes the way in which a series of constitutional interpretations of Article 9 permitted the progressive development of Japan’s armed forces; explains why the status of the Self-Defense Forces remains essentially the same as that of the police; shows that the Japanese notion of collective self-defense is an anomaly under international law; and concludes that the basic tenet that has sustained a series of interpretations of the use of force is rooted in national egotism and should be rejected.

Postwar Period

After the war, a vanquished Japan began to rebuild, relinquishing some of the fundamental rights of sovereign states recognized by international law. The path to reconstruction was not smooth. Japanese policymakers had to ensure that new policies not only conformed to the wording of Article 9, but also responded effectively to the changing reality of Japan’s international environment. Often, these tasks seemed mutually contradictory.

Over the decades, security debates in Japan have left, in their trajectory, traces of the twists and turns of a sophistry marked by a constant anguish. After 70 years, that sorry state of affairs remains unchanged, because Japan has avoided any mention of the core issues of Article 9, paragraph 2 of the Constitution.

The emerging Cold War and the outbreak of the Korean War in 1950 fundamentally altered U.S. expectations of a disarmed Japan. That change took place only after the Constitution was adopted in 1946, when Japan was still under occupation and subject to the authority of the Supreme Commander of the Allied Forces in Japan, General Douglas MacArthur. Contrary to his own wishes, MacArthur had to rearm Japan in order to deal with the changing circumstances of international politics.

The San Francisco Peace Treaty in 1951 and the U.S.-Japan Security Treaty the same year attest to that seismic change. Japan’s “inherent right of individual or collective self-defense” was recognized in these treaties, as referred to in Article 51 of the United Nations Charter. That created a nagging concern in Gen. MacArthur’s mind about the future of Article 9 upon Japan regaining sovereignty in 1952. He encouraged “progressive” political parties in Japan, helping them gain and retain, at minimum, more than one-third of the seats of at least one House of the Diet. That meant that constitutional amendments could not be initiated by the Diet in accordance with Article 96 of the Constitution, which requires “a concurring vote of two-thirds or more of all the members of each House.” The consequence is that Japan has not made a single amendment to any provision of the Constitution.

Given the constitutional prohibition so explicitly laid down in Article 9, how can the Self-Defense Forces (SDF) be allowed to exist in the first place, and how has the Japanese government managed to make the SDF one of the most respected militaries in the world? The Diet approves and allocates the world’s sixth largest budget to the SDF each year to equip, develop and maintain fighting units of high caliber, mobility, and strength. Even the 1994 coalition government headed by Prime Minister Tomiichi Murayama (chairman of the Japan Socialist Party) was no exception. The government has deliberately interpreted the provisions of Article 9 to enable Japan to, as set out in the preamble of the U.S.-Japan Security Treaty of 1951, “increasingly assume responsibility for its own defense against direct and indirect aggression, always avoiding any armament which could be an offensive threat or serve other than to promote peace and security in accordance with the purposes and principles of the United Nations Charter.”

Nowhere is “the right of self-defense” mentioned in the Constitution; nor is any reference or allusion made even to the notion of self-defense. In fact, positive references to the term “the right of self-defense” began appearing mode only after MacArthur pronounced in his New Year’s message of 1950 that the Constitution of Japan did not deny the country the right of self-defense. The American general, too, had to face the reality of the changing conditions surrounding Japan.

It is therefore understandable that Japanese decision-makers – intoxicated with the idealism of “non-armament and pacifism” at the time of adopting the new Constitution in 1946 – would consider that Japan had forfeited even the right of self-defense. Prime Minister Shigeru Yoshida was a good example. In March 1952, he testified before the budget committee of the House of Councilors that “armed forces and other war potential” – even for self-defense – would mean re-armament, which would necessarily require a constitutional amendment. He made that statement even after the creation of the “National Police Reserve” in 1950 in response to the outbreak of the Korean War “to complement national and local government police forces.”

In December 1954, the government of Ichiro Hatoyama, which had succeeded Yoshida’s government, formalized the government’s position on the right of self-defense, which has become the basis for the policy today: The Constitution does not deny the right of self-defense. Any state that is independent has ipso facto the right of self-defense, and it is obvious that Japan has that right under the present Constitution. The Constitution renounces war, but not resistance in self-defense. The renouncement of war and the prohibition of the use or threat of force concern the use of force for the settlement of international disputes. In the event of an armed attack, to desist and block that attack is self-defense, which is essentially different from settling an international dispute. Therefore, the use of force as a means for defending one’s own country is not in violation of the Constitution.

More Than a Police Force, Less Than a Military

The political circumstances in which the National Police Reserve was established thus ensured the ambiguous, half-baked nature of the National Police Reserve as something more than a police force, but less than a military. There was no alternative but to apply mutatis mutandis the extant Police Officers Duties Law to the newly created police reserve unit. The practice persists for the SDF today, and that usage reinforced bureaucrats’ habitual obedience to syntax that seeks to maintain linguistic consistency and conformity in the use of words without regard to the goals or purposes of the ideas embedded in the words.

The application of any principle of law or any texts of law to a certain set of factual circumstances demands interpretation by human beings. A body of rules is not an autonomous organization. No correct answer automatically emerges simply by feeding just the right amount of information and data into a body of rules; nor will you obtain your answer from legal texts, however closely and often you read them. You need to interpret these texts or words with the purposes of policy in mind. Interpretation is an integral part of decision-making.

The anchor of the new interpretation was the “inherent right of individual or collective self-defense” recognized in the San Francisco Peace Treaty in 1951, as referred to in Article 51 of the United Nations Charter. Although no amendment has been made to Article 9, the need and rationale for armed forces were interpreted differently, from the establishment in 1950 of the National Police Reserve through the reorganization of the reserve in 1952 as the National Safety Forces, to the establishment of the SDF in 1954. Each major reinterpretation allowed the progressive expansion of the duties and tasks of armed forces and the corresponding improvement and reinforcement of their armaments. On each occasion no relevant decision-maker seriously alleged that the new interpretations were creating a “constitutional crisis.”

In the fictional world of “trusting in the justice and faith of the peace-loving peoples of the world,” as depicted in the preamble of the Constitution, Japan’s lost the means “to preserve [its] security and existence” itself. As the forces needed to ensure the country’s “security and existence” did not exist, the U.S.-Japan Security Treaty plugged the institutional deficiencies and lacuna of Japan’s constitutional system. The U.S. military filled in for the absent Japanese forces, and the Japanese Supreme Court opined in the Sunagawa case that “the forces which are prohibited” by Article 9(2) of the Constitution “are those forces over which Japan is capable, on its own right, of exercising command authority and the administrative rights, and such forces are in the end our own forces. It is, therefore, to be understood that foreign military forces, even if they are stationed in Japan, are not considered included in such prohibited forces.” It could be argued, then, that Japan’s Self-Defense Forces, being “those forces over which Japan is capable, on its own right, of exercising command authority and the administrative rights,” could be deemed unconstitutional. Under such circumstances, Japan’s increasing assumption of defense responsibility requires a new creative way of interpreting paragraph 2 of Article 9.

Changing Interpretations

There is a long flow of constitutional interpretations of Article 9 since 1947, beginning with “total disarmament” and “the right of self-defense without the use of force,” through “the minimum amount of force necessary for self-defense” and the interpretation in the immediate pre-Abe years that the use of the right of collective self-defense is prohibited by the Constitution, to the latest interpretation that the use of the right of collective self-defense is lawful under the Constitution. Anybody who argues that we now have a constitutional crisis is simply refusing to acknowledge that Japan’s entire security arrangement has been developed through, and built upon, a series of constitutional interpretations that have been meandering, to say the least, yet moving, however slowly, in the appropriate direction of re-molding Japan into a normal country that is internationally responsible for its conduct.

I suspect there is a case of “intellectual vested interest” in the arguments of the so-called guardians of Article 9. It must be unbearable for those who have spent their entire productive lives studying and expounding on the safeguarding of Article 9, only to witness it all come crumbling down.

Since the 1959 decision of the Supreme Court on the Sunagawa case, the lower courts have followed its judgment that the question as to whether the existence of the SDF violated Article 9 belonged to the realm of “act of state” and “unless its unconstitutionality is patently obvious at first glance, it is not subject to judicial review.” According to the Supreme Court’s Sunagawa decision, “such judgment should ultimately be left to the political critical judgment of a sovereign nation.” Therefore, the Supreme Court dismissed the case stating that whether the SDF would meet the “war potential” (戦力 ) of paragraph 2 of Article 9 was beyond the reach of the judicial review of the Court, and terminated the proceedings without rendering any judgment on the constitutionality of the SDF.

As Max Weber said, a sovereign state is sovereign because “the state is considered the sole source of ‘the right’ to use violence.” Therefore, the military of a state is, in principle, unrestricted in its ability to act in defense of the country. With that understanding, the power of the military is subject to particular prohibitions in international law. That has long been common and general practice across cultures. Unfortunately, it is not the practice Japan followed.

The National Police Reserve and the National Safety Forces were organizations designed to complement the country’s police forces. Their respective legal systems were, as for the police, a positive list approach premised on the express authorization of each action to be taken and each power to be exercised. The SDF, which succeeded the National Safety Forces, carries that same legal constraint. Consequently, each time a new activity is required, a new piece of legislation needs to be passed. According to this legal doctrine, without the express statement of authority in a piece of legislation, the state cannot do anything. It exposes the state itself to danger, with the SDF unable to take prompt, responsible action. This abnormal situation forces commanding officers in the field to take on unreasonable responsibility. How many similar pieces of legislation do we have to enact to satisfy ourselves? Despite the proliferation of legislation, unforeseen situations do occur, not anticipated in any of the laws enacted to date. The more the legislation multiplies, the more complicated it will become to ensure consistency among existing laws.

The fundamental problem of today’s SDF, then, is that they do not have the legal status or treatment normally accorded to the military forces of an independent state. SDF personnel are all subject to civilian civil and criminal jurisdiction because no military tribunal can be established under Article 76, paragraph 2 of the Constitution. The use of weapons is thus heavily restricted, as the conduct of the SDF is regulated by the Police Officers Duties Execution Law. The enormity of firepower at its disposal notwithstanding, the SDF are legally indistinguishable from the police force. Under normal circumstances, a military should operate in a legal system based on the negative list approach and subject to international law. Japan’s SDF are a make-believe military force.

‘Linguistic Clarifications’ 

Short of amending the provision of paragraph 2 of Article 9, the current proposed security legislation is designed to cure the deficiencies of the existing piecemeal security legislation. It is a sad commentary that the most important pieces of draft legislation have been mired in nit-picking discourse on linguistic clarifications. The real question of why Japan needs comprehensive security legislation has not been raised; rather, discussion seems to be trained on generating unwarranted fear, increasing anxiety, exaggerating risks, and unnecessarily heightening apprehension, all generated from the prepared texts of Diet members and all unrelated to the reality of Japan’s security concerns.

The “crisis” cited by critics of the legislation is an imaginary constitutional crisis, which they have concocted from nothing. They are unconcerned about unlawful activities taking place in and around Japan’s territorial seas and economic exclusive zone (EEZ). They are unconcerned about the incessant unlawful incursions by Chinese Coast Guard vessels into Japanese territorial waters, contiguous zone, and EEZ. They remain utterly indifferent to the inability of the Japanese Coast Guard to take any effective measures to prevent Chinese vessels from undertaking unlawful activities within the former’s own jurisdiction. All that Japan’s Coast Guard can do today is issue warnings. The Chinese vessels ignore those warnings and continue their unlawful activities, and the Japanese Coast Guard merely continues to watch and monitor what the Chinese vessels are doing. They accomplish their purpose; the Japanese Coast Guard fails in its mission. Yet for Japanese Diet members deliberating the proposed legislation in august chambers, these unlawful activities in the real world of the East China Sea or the South China Sea are not registering in their mind as a crisis. No question has been asked how the proposed legislation could improve the situation around the Senkaku Islands, enable the Coast Guard to deal with Chinese vessels violating Japan’s jurisdiction, or allow the SDF to discharge its tasks more effectively in UN PKO missions.

Instead of dealing with the real problems Japan is facing today, self-appointed “Article 9 Guardians” would rather indulge in an almost theological discourse in expounding what is permitted in the phrase of prohibiting “the threat or use of force as means of settling international disputes.” And their theological conclusion is, of course, unrelated to any reality on the ground: The use of force is permitted only in self-defense, namely, the defense of Japan proper only when attacked. Force may not be used even for UN Peacekeeping Operations (PKO) because it is the exercise of state power for the settlement of international disputes. As a result, SDF troops deployed as part of UN PKO contingents are required to be protected by their colleagues in other UN member countries. Those self-appointed “Article 9 Guardians” do not find that anomaly to be strange and unreasonable. For them it is a matter of faith akin to Creation Theology. It defies reason and scientific evidence.

The problem is that the present interpretation says that Japan has the right of collective self-defense, but cannot use it because the Constitution allows only the individual self-defense of Japan. On what theological premise do the guardians of Article 9 conclude that Japan has the right of collective self-defense? For them, there is no contradiction because they are not in a position to challenge Article 51 of the UN Charter and Article 5(c) of the San Francisco Peace Treaty. These provisions recognize that Japan has “an inherent right of individual or collective self-defense.” Recognition of the right is one thing, but the use of it is another. They have to abide by their theological tenet that the use of force is prohibited. So they insist that the use of force in the defense of other countries is unconstitutional. In their kind of creation theology, they have to restrict the scope of “self” in the concept of self-defense to Japan only, even though the Japanese criminal code recognizes the defense of other individuals as the lawful exercise of self-defense. In the present strange interpretation, the concept of “collective self” does not exist. “Collective self” means the expanded self-system by broadening the scope of self-identification from an individual through family, friends, alumni, home town, city, country, and region to the world, a planet and beyond. The collective self develops in the process of shaping and sharing of purposes, interests, emotions, expectations, crises, and so on. It is a community in which you are a member and share common interest with the rest of the community members. To defend that collective self is the right of collective self-defense because an armed attack against any member of the community is considered an armed attack against the entire community including your own country. That is the notion of collective self.

An authoritative interpretation of the inherent right of collective self-defense was given by the International Court of Justice (ICJ) in its judgment on the Nicaragua Case of 1986. The ICJ says that the right of collective self-defense is customary law “even if its content has been confirmed and influenced by the [UN] Charter.” The ICJ underlined that it existed long before the UN Charter and “customary international law continues to exist alongside treaty law.” The right of collective self-defense exists in a continuum of the right of individual self-defense, in that the individual self closely identifies itself with other entities in the defense of their common enterprise. The notion of collective self-defense is for a third state (State A) to come to the defense of the victim state (State B, State A’s close ally) of an armed attack by State X when State A is not directly attacked by State X. The ICJ is explicit in stipulating that two conditions must be met for the use of the right of collective self-defense to be lawful: the requirement of a request by the state which is the victim of the alleged attack and the requirement that the state should have declared itself to have been attacked because “there is no rule permitting the exercise of collective self-defense in the absence of a request by the State which regards itself as the victim of an armed attack.” It also reminds us that customary international law does not permit “another State to exercise the right of collective self-defense on the basis of its own assessment of the situation.”

Strangely, however, as evidenced in the interpretation given prior to the proposed security legislation, the Cabinet Legislation Bureau (CLB) has traditionally rebuffed the notion of a collective self to defend even though it has recognized the right of collective defense. That putative recognition turned out to be mere lip service. According to the CLB’s interpretation, collective self-defense is for State A to come to the defense of State B for State B’s benefit when State A is not being directly attacked. The use of force for the benefit of another state is not in self-defense, and not permitted under the Japanese Constitution.  It was a grand deception by the CLB which lost, to use Immanuel Kant’s phrase, “freedom to make public use of one’s reason in all matters,” but abided by “the private use of reason” to conform to, and perpetuate, the consistency and stability of the Office’s interpretations held by its predecessors.

Instead of acknowledging the notion of collective self, the theology developed by the CLB hinges on the dichotomy between Japan and foreign countries. This theological dualism does not recognize the idea of collective self. The CLB’s self-absorbed reasoning lacks even a basic understanding of shaping and sharing common interests and values with other nations, an understanding that is indispensable for international cooperation. In short, the CLB’s dualism has underpinned the idea of “One Country Pacifism,” which has contributed to justifying Japan’s non-participation in (i) UN Security Council sanctions, so long as they include the use of force; and (ii) UN PKO missions other than humanitarian assistance in non-combat zones. The CLB’s theology, like any other, is circular: The idea of “One Country Pacifism” does not support the development of identification with other entities by broadening the scope of the individual self, which in the end justifies the application of the use of force only in defense of Japan under the circumstances of an armed attack, and at the same time means a refusal to defend a foreign country being attacked by a third country. This is commonly referred to as “One Country Pacifism.”

The futility and hollowness of Japan’s security debates in the 70 years since the end of the war derive in part from the interpretation given by the theology of the Article 9 Guardians to the phrase “the threat or use of force as means of settling international disputes.” The CLB has surreptitiously interpreted this to mean that all types of “force” are unlawful.  This sort of theology conveniently adopts a false and self-serving device as a démarche to justify its conclusion. The CLB used it by ascribing one negative meaning only to the word “force.” But force is a means; it is neutral to the purpose and process of its use. It could be lawful or unlawful, depending on who uses it, in what circumstances, by what modality, and for what purpose. The CLB has ignored all of these variables of different contexts in its analysis, but has accepted that “force” (武力) is illegal and avoided even the use of the word “force,” choosing instead the ambiguous “capability,” ( 実力). It is a pointless exercise in syntax whose only policy goal is to dodge the real issue at stake.

The CLB’s theology rejects the notion of collective self despite the admonition laid down in the Preamble of the Constitution that “no nation is responsible to itself alone” and “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.” Judge Kotaro Tanaka’s supplementary opinion in the Sunagawa case correctly warned that pacifism in the Constitution should not be understood in the context of one country alone.

It is worth recalling the following dicta of Judge Tanaka’s supplementary opinion:

To defend one’s country is a moral obligation in the international community. The interdependent relations of nations today have so expanded that one nation’s crisis inevitably affects other nations directly. Thus, the self-defense of a nation should not be considered individually, that is, from the perspective of that nation alone. To defend one’s country from aggression is at the same time to defend other countries. It is thus the defense of one country to cooperate in the defense of other countries. In other words, in today’s world the notion of self-defense, as strictly understood, no longer exists. To defend oneself is “to defend others;” to defend others is thus to defend oneself. Accordingly, whether in self-defense or in cooperation with others in their defense, each country recognizes that it shares in its obligations with each other in this matter.

The CLB’s interpretation, backed by the theology of the Article 9 guardians, is rooted in national egotism. It is a betrayal of universal pacifism and must be rejected.

Eisuke Suzuki is Professor of Law, Ateneo Law School, Ateneo de Manila University, Manila, Philippines. He was Professor of Policy Studies, 2009-13, Kwansei Gakuin University School of Policy Studies, Kobe-Sanda, Japan. Formerly, he was Deputy General Counsel, 1994-2002; Special Adviser to the President, 2003; Director General, Operations Evaluation Department, 2003-04, Asian Development Bank. His latest publication includes “Non-State Actors in International Law in Policy Perspective” in Math Noortmann et al. (eds.), Non-State Actors in International Law (Oxford, Hart Publishing, 2015) 33-56.

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