Article 9 of Constitution of Japan: A need for purposive interpretation basing itself on history of war between Allied powers and Axis powers

Every constitution has a story to tell which has preceded its birth.

The story of Japan was violent. Yes, Japan did violence and others retaliated, and confirmed that Japan remains impotent to wage any further violence.

The story is as follows:

World War II: Then Imperial Japan was occupying territory after territory of other countries. It was unstoppable. The allied powers were finding routes to stop it.

The Potsdam Declaration of July 26, 1945, by the USA, China, and the U.K warned Japan to stop the war and if it does not, then they declared that the destruction of Japan is forthcoming. Clause 11 of such declaration declared that Japan has to rearm.

Clause 11: Japan shall be permitted to maintain such industries as will sustain her economy and permit the exaction of just reparations in kind, but not those industries which would enable her to re-arm for war. To this end, access to, as distinguished from control of raw materials shall be permitted. Eventual Japanese participation in world trade relations shall be permitted.

August 6-9, 1945- Japan did not accept the said declaration, and therefore, the world saw the inhumane episode of Hiroshima and Nagasaki.

August 14, 1945- Japan accepted the Potsdam declaration. Japan did not only lose its legs but its heart and soul were also eviscerated from it and everywhere there was unexplained pain which is humane not to explain, and Japan became ready to accept anything and everything from everyone and anyone.

October 11, 1945- The supreme commander of the Allied forces Douglas MacArthur, suggested to the new Prime Minister, Kijuro Shidehara to draft a new constitution.

Feb 1, 1946- The Constitution was drafted but Mr Douglas found that the objects of the Allied forces did not find a place in the constitution.

Feb 2-3, 1946- Douglas ordered General Courtney Whitney to draft a new Constitution in February mentioning three important points that were to be considered in the new Constitution. These points are known as the MacArthur note.

The second point was- ＂war as a sovereign right of the nation is abolished. Japan renounces it as an instrumentality for settling its disputes and even for preserving its security. It relies upon the higher ideals that are now stirring the world for its defense and its protection. No Japanese Army, Navy, or Air Force will ever be authorized and no rights of belligerency will ever be conferred upon any Japanese force.＂

1949- With this principle of renouncement of war in mind, the Constitution of Japan came into force.

 Therefore, the allied powers through Mr. MacArthur disarmed Japan; however, the west quotes a statement of then prime minister-Kijuro Shidehara to show that he also wanted Japan to be so. His statement:

the retention of arms would be “meaningless” for the Japanese in the post-war era, because any substandard post-war military would no longer gain the respect of the people, and would cause people to obsess with the subject of rearming Japan.

Here, the spirit of this statement is that the Allied powers will allow Japan to only have a substandard military which will attract the loath of the people; therefore better would be that Japan not to keep any armed forces. Therefore, the prime minister did not want armed forces because he will not be allowed to keep a powerful force.

Therefore the statement of the prime minister shall not be understood as that he was a proponent of arms less Japan.

1950s– The not-so-cold air of the cold war was warming the arms of the countries and the violence of the Korean War confirmed the emergence of two Koreas in one Korea which was against the intention of the United Nations which was in favor of a united Korea. All these events were detrimental to Japan and thereby to the U.S.A. which was in occupation of Japan.

Treaty of Peace, 1952- The treaty between allied powers and Japan agreed to recognize the sovereignty of Japan for the first time since post World War 2 by recognizing the inherent right of individual and collective defense of Japan.

It also agreed to end the occupation of the USA in Japan. However, article 6(a) thereof allowed the execution of treaties allowing the allied forces’ occupation of Japan.

Clause 5(c) of the Treaty of Peace agreed:

5(c) The Allied Powers for their part recognize that Japan as a sovereign nation possesses the inherent right of individual or collective self-defense referred to in Article 51 of the Charter of the United Nations and that Japan may voluntarily enter into collective security arrangements.

The

Treaty of mutual cooperation and security between the United States of America and Japan (JANUARY 19, 1960) between USA and Japan cemented the occupation of the USA in Japan, subject to termination which has not been terminated to date. This treaty made some startling departure from the status of Japan as a non-aggressive country. The relevant clauses are as follows:

ARTICLE
Ill

The Parties individually and in cooperation with each other, by means of continuous and effective self‑help and mutual aid will maintain and  develop, subject to their constitutional provisions, their capacities to resist armed attack.

ARTICLE
VI

For the purpose of contributing to the security of Japan and the maintenance of international peace and security in the Far East, the United States of America is granted the use by its land, air and naval forces of facilities and areas in Japan.

We shall note that Japan was not prohibited to develop the facilities of its Naval Base and Air force as Article VI declared that U.S.A forces shall be allowed the use of the facilities of Japan for the maintenance of peace and security. Therefore the very use of the basses of Japan by the U.S.A. show that Japan was not threat free and another country has to protect Japan therefore why not in 2023 a sovereign Japan shall have the power to protect itself by the maintenance of full-fledged forces?

The post-1950, which is after the making of the Japanese Constitution, has reshaped the existence of Japan as a country; therefore, cannot we argue that after the making of the Japanese Constitution, the subsequent events have invested Japan with the power to be aggressive if needed which was prohibited in Pre 1950? The self-preserving forces of Japan which were initially financed by the U.S.A. now sought to be made powerful day by day by the government of Japan.

I, therefore, argue that post-1950 treaties, as cited, have moulded the status of Japan from arms less to empowered Japan.

Let us now turn to Article 9 and the preamble of the Japanese constitution to find out whether the very article 9 prohibits any maintenance of armed force by Japan, and if it does at all, under what circumstances it prohibits so. 

Article 9. Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.

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

The expression ‘Aspiring sincerely to an international peace based on justice and order’ shows that Japan aspires to establish international peace based on justice and order and for achieving that aspiration, Japan renounces war, therefore if there is no international peace, let us say that there is a third world war, then would not Art 9 become silent?

The very basis of Article 9 is that the sovereign right of Japan to wage war will continue to remain inoperative till the time there is international peace as no constitution can be made to tie a country’s hands in times of crisis or weaken the country therefore Art. 9 cannot be interpreted to mean that Japan cannot be proactive when it finds itself in imminent danger. I further argue the sovereign right to wage war is not granted by the constitution, it is inherent in a country which is having territory at its command.

Furthermore, I argue that the principle that during war every law becomes silent( Inter arma enim silent leges) is also imperative to note as if Japan declares war, the whole constitution of Japan will become silent, and for exercising that right to make the constitution hibernate during War, Japan shall, as a matter of preventing war, have the right to maintain forces without which it cannot be proactive.

The expression– ‘In order to accomplish the aim of the preceding paragraph,’ shows that for achieving the said aspiration said in the first paragraph, Japan will not maintain any force but if the world as a whole fails to achieve that aspiration then would the Japanese people be bound to follow Art 9?

If North Korea plans to attack Japan, and Japan on receiving such a plan through intelligence becomes ready to fire the first bullet at Korea, would Art 9 stare in the face of Japan which the preamble shows that the people of Japan have made by themselves? Can it be possible to imagine that the Japanese have envisaged that they will be hammering the death knell on their coffin in times of war through Art.9?

The preamble of the Japanese Constitution records the will of the Japanese people as to war in these words:

We, the Japanese people, acting through our duly elected representatives in the National Diet,………  resolved that never again shall we be visited with the horrors of war through the action of government, do proclaim that sovereign power resides with the people and do firmly establish this Constitution.

The Japanese people do not want to face the horrors of war but if any war brings fruits instead of horrors, then cannot we argue that the people of Japan will allow such war to take place?

The Japanese people further will that they do not want to face the horrors of war through the action of the government that means that when the action of the government brings any war but if the action of the government was to secure peace and the consequence of such has been some collateral horror which is always annexed to war then cannot we argue that the Japanese will allow such war to take place?

The Japanese people have never surrendered their sovereignty as evident from the words of the preamble, and therefore, with sovereignty, the precious and exclusive right to wage war resides henceforth I argue the Japanese people emphatically declared that the Japanese people, in the first place, shall not make themselves responsible for any war and for that they limit their sovereign right to wage war to the effect that it will first try to resolve the disputes via arbitration but if everything fails then the war which is the last resort shall take place. Therefore, war has been made the last resort by the Japanese people.

The preamble further records:

………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 peoples of the world have the right to live in peace, free from fear and want.

The security and existence of Japanese people are preserved by their trusting in the justice and faith of the peace-loving people of the world, therefore the moment the justice and faith of the world will be unable to preserve the security and existence of Japan thereby betraying the trust of Japan, Japan can exercise its sovereign right to wage war for preserving its existence. What is important is the preservation of security and existence of Japan but not who is preserving so. 

The Japanese people have not only willed to protect themselves but also to eliminate oppression and slavery and recognize that no people shall live with fear, therefore the quotient of collective security is coming into play thereby allowing Japan to protect other countries whose security will determine the security of Japan.

The 1950s and 60s may have wanted Japan to go arms less but now it is 2023 things have changed and reshaped.

Therefore now in 2023 cannot we give a purposive interpretation to Art.9 thereby I ask three questions:

Can Japan occupy another country’s territory when the latter has initiated war?

 Can Japan occupy another territory through force when the people of Japan will need more territory which the present-day territory of Japan is unable to fulfill?

 Can Japan occupy another country’s territory for strategic purposes

I argue that the constitution of Japan is an agreement between the allied powers dominated by U.S.A and Japan, and henceforth Article 31 of the Vienna Convention on the Law of Treaties will be applicable:

Article 31

The general rule of interpretation

A treaty shall be interpreted in good faith by the ordinary meaning to be given to the terms of the treaty in their context and the light of its object and purpose.

The context for the interpretation of a treaty shall  comprise, in addition to the text, including its preamble and annexes:

any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

The context in which the constitution of Japan was made is world war 2. The object was to make Japan powerless keeping in mind its ventures of expansionism during the war and hence made it arms less.

Therefore in 2023, the context has changed thereby changing the object to that now Japan no more poses any threat to the world. It is now a friend of the U.S.A who made it impotent as to war.

Therefore in good faith when I interpret article 9 with the preamble, I find that the arrangement that was made in the form of the constitution of Japan between the U.S.A. and Japan was a temporary measure as evident from the parties made post-constitution treaties, and also for the fact that the present constitution of Japan was the outcome of the activities of Japan in the second world war, and henceforth now Japan can have and shall have the power to maintain force and occupy territories for confirming the security and the existence of Japan.

What is good faith? R v Immigration Officer at Prague Airport ex parte European Roma Rights Centre [2004] UKHL 55, at para 19;

Taken together, these rules call for good faith in the interpretation and performance of a treaty, and neither rule is open to question. But there is no want of good faith if a state interprets a treaty as meaning what it says and declines to do anything significantly greater than or different from what it agreed to do. The principle that pacta suntservanda cannot require a departure from what has been agreed upon. This is more often where a state or states very deliberately decided what they were and were not willing to undertake to do.

The Japanese people never agreed to relinquish their sovereignty at the will of the U.S.A. The truth is that treaties were executed between USA and Japan for the occupation of the U.S.A. in Japan but that was a temporary measure because the world was unable to trust Japan after the Second World War. It can also be argued that such treaty-making was the tactic of the west to increase its colony under the garb of protecting countries. Now although the USA force resides in Japan, Japan has shown the world its capabilities and now we shall for the greater good of self-determination stop intervening in what Japan wants to do.

I, therefore, argue that the Japanese people cannot be compelled to omit those things which they have not agreed to omit.

Cheng, General Principles of Law as applied by International Courts and tribunals (London: Stevens and Sons, Ltd., 1953) , Chapter 4, in particular,p. 125 elaborates:

A reasonable and bona fide exercise of a right in such a case is one which is appropriate and necessary for the purpose of the right (i.e., in furtherance of the interests which the right is intended to protect). It should at the same time be fair and equitable as between the parties and not one which is calculated to procure for one of them an unfair advantage in the light of the obligation assumed. A reasonable exercise of the right is regarded as compatible with the obligation. But the exercise of the right in such a manner as to prejudice the interests of the other contracting party arising out of the treaty is unreasonable and is considered as inconsistent with the bona fide execution of the treaty obligation, and a breach of the treaty. …

Japan’s obligation not to wage war and maintain peace is coupled with the right to preserve its security and existence, and therefore exercising the right to preserve existence and security if needed by war is not incompatible with the obligation not to wage war and maintain peace.

A question is raised by the people why not the Parliament of Japan, the DIET, and amend article 9? I argue that there is no need to amend Art. 9 as the preamble read with art 9 allows Japan to take any steps for protecting the security and its existence of it.

The prima facie interpretation that Art.9 deprives Japan of the right of waging war cannot be sustained because, in the 21st century, peace can be secured by the power which emanates from arms and military, and no constitution can prevent a country to achieve peace. Accepting such a prima facie interpretation of Art. 9 will make Japan to go with no arms thereby making it impotent in waging war, when needed, thereby making it dependent on other countries and preventing Japan from securing peace for itself through itself. Therefore for achieving peace which is the very object of Art 9 and the preamble, Japan has to have arms, and therefore, the constitution of Japan cannot be used to make Japan powerless.

Conclusion

Assuming the constitution of Japan does not allow Japan to wage war then also the execution of post-constitution treaties makes it clear that Japan has the right to self-preserve itself and enter into collective security engagements thereby moulding Art 9.

The right of a country to wage war is not provided by the Constitution. It emanates from the territory within which a country exercises its sovereign command, and therefore, the independent existence of Japan as a geographical entity grants its the right of waging war.

Even forgetting about the post-constitution treaties, the preamble to the constitution of Japan makes it clear that security and the existence of Japan is one of the wills of the people, and for upholding such will, Japan can indulge in war.

Authored by Hritam Saha.