Change It to Save It: Why and How to Amend Article 9

18 Ritsumeikan Journal of Peace Studies (2017)

39 Pages Posted: 12 Dec 2016 Last revised: 14 Mar 2017

Craig Martin

Washburn University - School of Law

Date Written: December 10, 2016

Abstract

Defenders of Article 9 of the Constitution of Japan, which renounces the use of force and prohibits the maintenance of armed forces, have consistently worked to block any and all attempts to amend the provision. The government of Japan, having purported to “reinterpret” the provision in 2015, is now well positioned to finally achieve its goal of forcing some form of amendment. This article argues that the champions of Article 9 must, in order to save its most successful and core features, begin to develop alternative proposals for its amendment.

The article begins with a review of the meaning and operation of Article 9. It notes that the first paragraph, Article 9(1) (which is the prohibition on the use of force), is a clear constitutional rule that has effectively constrained government policy, but that the second paragraph, Article 9(2) (which prohibits the maintenance of armed forces and denies the rights of belligerency), has been transformed into an ambiguous standard that has been increasingly ineffective, and has given rise to a dangerous gap between norm and reality.

In arguing why Article 9 should be amended, the article explains the weaknesses in the provision that arise from the ambiguity and ineffectiveness of Article 9(2), analyzes the significant dangers inherent in the government amendment proposals, and the harm that will be done by the “reinterpretation” if it is not replaced by way of amendment. In explaining how to amend Article 9, the article provides draft language as a starting point for debate. It is designed to preserve and clarify the constraints on the use of force; eliminate the harmful gap between the current reality and the constitutional language, and establish civilian control and clear separation of powers in national security decision-making; and clarify the role of judicial review in enforcing the provision.

Keywords: Japan, Constitutional Law, Comparative Constitutional Law, Use of Force, Armed Conflict, War Powers, Japanese Law, Jus Ad Bellum

JEL Classification: K10, K30

Suggested Citation

Martin, Craig, Change It to Save It: Why and How to Amend Article 9 (December 10, 2016). 18 Ritsumeikan Journal of Peace Studies (2017). Available at SSRN: https://ssrn.com/abstract=2883588

Craig Martin (Contact Author)

Washburn University - School of Law ( email )

1700 College Avenue
Topeka, KS 66621
United States

HOME PAGE: http://washburnlaw.edu/faculty/martin-craig.php

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