"Article 9 of the Japanese Constitution...
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."
Article 9 of Japan's Constitution was created in 1946 as a post-WWII war-renunciation pledge by Japan.
The value of Article 9 is not just as a norm that dictates only the renunciation of war and ban on maintaining war potential as written, for it has during the 60 postwar years brought forth a variety of principles derived from it, and it is also arguable that it has universal value from a global perspective, and is an international norm.
1. Three Non-Nuclear Principles
During the 60 postwar years, Article 9 has influenced Japanese government policy.
In addition to the three principles banning arms exports and the limitation of defense expenditures to 1% of GNP, there are the three non-nuclear principles.
Since 1967 when then-Prime Minister Eisaku Sato responded to questions in the Diet saying that Japan does not possess, make, or allow the introduction of nuclear weapons, the three non-nuclear principles have, although not being made into law, become government policy.
The principles became government policy because of the special desire for peace of the Japanese people, the only ones ever attacked with nuclear weapons, and because Japan is a peaceful country that has Article 9. Therefore abiding by the three non-nuclear principles means abiding by Article 9.
Article 9 has not been observed as written over these 60 years because Japan has the Self-Defense Forces (SDF) and US military bases. But it is undoubtedly thanks to Article 9 that for these more than 60 postwar years the SDF have not used force abroad, and as is typically evident from this, Article 9 has had the minimum legal force as a constitutional norm. This is one example in which the three non-nuclear principles have manifested such normative force.
However, it has been revealed that when the Japan-US Security Treaty was amended in 1960, the Japanese and US governments made a secret agreement on bringing nuclear weapons into Japan. The current Democratic Party of Japan administration investigated it and reported that it does not recognize the secret pact as a definite agreement. But there is no doubt that past Japanese administrations have allowed the introduction of nuclear weapons into Japan.
This "secret nuclear agreement" clearly violates the third of the three non-nuclear principles, that Japan will not allow nuclear weapons into the country.
The Japanese government should not only reveal everything about the secret nuclear agreement and scrap it, but also explicitly declare domestically and internationally that it will enact a law for firm adherence to the three non-nuclear principles from now on, and that it will not allow nuclear weapons into Japan. By so doing, it can diminish the effectiveness of the US nuclear umbrella in Asia, and mitigate military tensions in Asia. Additionally, legislating the three non-nuclear principles would negate the concerns of some Americans that Japan would arm itself with nuclear weapons.
Shedding light on and scrapping the secret nuclear agreement, and legislating the three non-nuclear principles comprise one step in the process leading to nuclear weapons abolition, and are also part of the process of bringing about a peace policy derived from Article 9.
In addition to cancellation of the secret nuclear pact by Japan's government, the US government should negate the secret agreement with Japan in order to realize a "world without nuclear weapons."
2. Nuclear Weapons Convention, and Arms Trade Restrictions
Article 9 is effective not only in Japan, for it has also influenced international conventions and other countries' constitutions. This is because Article 9 is an anti-war legal norm that goes further than the UN Charter by banning the very cause of war - military forces, thereby giving it international value that is not confined to just one country's constitution.
Article 9's force extends to the prohibition of arms trading. Japan's government adopted the policy of the three principles banning arms exports (1967), and kept arms transactions within certain limits. Starting in 1976 those three principles banned arms exports in general. It is precisely because of the Peace Constitution and its Article 9 that such principles were established.
Such principles are found also in international conventions. The draft of the Arms Trade Treaty (ATT) submitted to the UN in 2006 bans the trading of arms. It was proposed to the UN under an initiative of the Costa Rican government, which has a constitutional provision (Article 12) that eliminates military forces, as does the Japanese Constitution.
Restricting arms trading has something in common with Article 9 of Japan's Constitution and Article 12 of the Costa Rican Constitution, which attempt to do away with military forces, the cause of war.
Internationally the most important convention for restricting arms is the Nuclear Weapons Convention (NWC), which is currently before the UN. This was submitted to the UN in 1997 and 2007 by the governments of Costa Rica and Malaysia. It has the most powerful legal restrictions seeking a total ban on the manufactureproduction, possession, and use of nuclear weapons, and setting forth a process leading to their abolition. The NWC is one international restriction on arms that also links with controls on weapons of mass destruction, such as the Chemical Weapons Convention and Biological Weapons Convention, and with controls on conventional weapons such as the Convention on Cluster Munitions, and it is the most important international legal instrument.
Just as one of the effects of Article 9 is arms controls such as the three principles banning arms exports, an effect of Article 9 extends even to controls on the existence of weapons. The reason that peace activists in Africa, whose countries import arms, show strong support for Article 9 of Japan's Constitution is that they focused on Article 9's control over weapons.
The three principles banning arms exports are being violated in ways such as the exception treatment with regard to Japan-US missile defense development. It is the opposition to such attempts by the lawyers and citizens of Japan and the US that will lead to the creation of a world without weapons, including nuclear weapons.
3. Negation of Nuclear Deterrence
The reason that various effects arise from Article 9 is that it is based on the concept that "peace that does not depend on military force."
Like Article 2.4 of the UN Charter, Article 9.1 prohibits the use and threat of force. Article 9 prohibits the use and threat of force as means of resolving disputes, and for that reason its second paragraph prohibits having a military force. Therefore Article 9 is arguably a constitutional provision that fully implements the idea of resolving disputes with peaceful means and without relying on military force. The Preamble of Japan's Constitution, which forms an integrated whole with Article 9, prescribes national security with a method that trusts "in the justice and faith of the peace-loving peoples of the world." Truly Article 9 and the Preamble are pointing us toward that very "peace that does not depend on military force."
But now we have a situation which flies in the face of Article 9.
On April 5 2009 in Prague, President Obama delivered a speech in which he declared a "world without nuclear weapons," but in the same speech he stated that as long as nuclear weapons exist, the US would maintain its "nuclear deterrent." Additionally, the return and relocation of Futenma Air Station in Okinawa is currently a major issue, but the US and Japanese governments cite maintaining the "deterrent" of US military bases as the reason that those bases cannot be removed.
Recognizing the deterrent force of nuclear deterrence and military bases flies in the face of "peace without relying on military force," which is the core concept of Article 9. Because "deterrence" (nuclear or otherwise) signifies using military power to threaten adversaries and thereby suppress counterattacks, it is none other than "intimidation with military force." Because Article 9.1 of Japan's Constitution and Article 2.4 of the UN Charter prohibit not only the use of force but also the threat of force, the thinking behind nuclear deterrence clearly violated these provisions.
It is clear from the wars in Iraq and Afghanistan that international problems cannot be solved by armed force and militaries. Surely now is the time for peace-loving people to spread the concept of Article 9's "peace that does not rely on military force" throughout the world.
4. Conclusion
As we can see from this discussion, Article 9 of the Japanese Constitution is not just a provision of one country's constitution. It has a strong life force that has brought forth various policies and effects, and it embodies the peace concept of "peace that does not rely on military force." In that sense, Article 9 is, even when considered internationally, a legal norm that should be an ideal, and should be incorporated by other countries in various ways.
Events including the 1999 Hague Appeal for Peace Civil Society Conference and the 2008 Global Article Nine Conference to Abolish War confirmed the effort to have other countries incorporate Article 9. In the area of lawyers' gatherings, the Hanoi Declaration, which was adopted at the 2009 XVIIth Congress of the International Association of Democratic Lawyers in Hanoi, established that, as a guideline for lawyers striving for world peace, members implement Article 9 of Japan's Constitution in other countries.
I hope that peace-loving lawyers and citizens of Japan and the US will henceforth advance even further the Global Article 9 Campaign for disseminating Article 9 and its approach, and as part of that effort, join forces to strive for the abolition of nuclear weapons. |
