A Constitutional Case for Amending Article 9

Brooklyn Law Review, Vol. 76, No. 2, 2011

This article develops an argument for increased constitutional control over the decision to use armed force or engage in armed conflict, as a means of reducing the incidence of illegitimate armed conflict. In particular, the Model would involve three elements: a process-based constitutional incorporation of the principles of international law relating to the use of force (the jus ad bellum regime); a constitutional requirement that the legislature approve any use of force rising above a de minimus level; and an explicit provision for limited judicial review of the decision-making process. The Model is not designed with any one country in mind, but address issues raised in recent debates and calls for reform of executive war powers in various liberal democracies. The article begins by looking at the causes of war, which operate at the decision-making level, at the level of state structure, and at the level of the international system. The history of the development of legal constraints on the use of force, however, reveals that while there was an apparent understanding of the need to address the causes of war at both the domestic and international level in the pre-modern period, since the early twentieth century we have almost exclusively relied upon the jus ad bellum regime in international law to constrain armed conflict. Constitutional democracy has spread throughout the world, and international law is increasingly implemented within the domestic legal systems of the world. Yet in most liberal democracies in the world there has been little domestic implementation of the principles of the jus ad bellum regime, the very core of the international law system, or further development of the constitutional principles creating the separation of powers in relation to the decision to use force. The article reviews the theoretical support for the three elements of the Model. Various strands of international law compliance theory, as well as aspects of constitutional theory, provide support for the idea that the incorporation of jus ad bellum principles would further the achievement of both constitutional goals, and enhance compliance with the international law regime. In short, such incorporation would engage the causes of war at the domestic level, and strengthen the compliance with the laws that engage the causes of war at the international level. Similarly, the requirement for legislative approval of decisions to use force would further the realization of the separation of powers envisioned by Madison and Kant. Bringing to bear the representative and oversight functions of the legislature would not only enhance democratic accountability, but would engage the domestic causes of war in significant ways, reducing the factors that lead democracies to wage war with illiberal states, while not undermining the features that help give rise to the democratic peace. Finally, the establishment of explicit jurisdiction and standing for judicial review of the process would help ensure that the other branches comply. The courts would not be second-guessing the substance of executive decision-making, and such judicial review of the process is entirely consistent with theories regarding the role courts play in resolving the agency problems inherent in the democratic system. All three elements of the Model operate in mutually reinforcing ways to engage the causes of war at all three levels, thus reducing the likelihood of illegitimate uses of armed force. The analysis includes some discussion of the likely objections to the Model and its theoretical assumptions.

University of Pennsylvania Journal of International …, 2008

Force, to counter opposing force, equips itself with the inventions of art and science. Attached to force are certain self-imposed, imperceptible limitations hardly worth mentioning, known as international law and custom, but they scarcely weaken it. Carl von Clausewitz, On War 1 Article 9 of the Constitution of Japan famously renounces war and the threat or use of force to settle international disputes, prohibits the maintenance of armed forces or other war potential, and denies all rights of belligerency. Much has been written about this provision over the years, and it has received renewed attention due to recent debate over the need to amend the Constitution. But the significance of Article 9 from the perspective of international law, and in the context of the relationship between constitutional and international law, has not been the subject of much analysis, particularly in English. This Paper examines the origins of Article 9 and the subsequent Japanese experience with this provision in order to assess the extent to which Article 9 constituted an incorporation of certain principles of international law on the use of armed force, the jus ad bellum, and the degree to which the principles so incorporated may have operated to effectively constrain Japanese defense and foreign policy during the sixty years that the Constitution has existed. It will suggest that the American drafters relied upon the renunciation of war provision in the Kellogg-Briand Pact, and the prohibition on the use of force from the newly signed U.N. Charter, in designing Article 9(1) of the Constitution. Moreover,

With the controversial overseas dispatch of the Japanese Self-Defense Force to Iraq, Japan seems to be seizing the real opportunity to amend the famous war-renunciation provision – Article 9 of the Japanese Constitution. The ambiguity inherent in Article 9 might have rendered itself unhelp-ful for testing the Government’s decisions. It also might have helped illegitimate military actions being undertaken secretly. However, a viewpoint from the international legal perspective will throw light on the rationale of Article 9 to ascertain the envisaged scope of restriction. It may well redeem the ambiguity in Article 9 and reassert its significance in the modern context.

Australian Journal of International Affairs, 2010

A Referendum Law took effect in Japan in May 2010. Since a referendum isa prerequisite to any change to the Japanese ‘Peace Constitution’, this is anevent with potentially far-reaching consequences. By gauging the Demo-cratic Party of Japan’s views on the issue of revision of the constitu-tion * / particularly revision of the famous Article 9, with remains afoundation of Japanese security policy * / and by extrapolating on thefindings, this article aims to further the understanding of the new government’s security policy more generally. After finding that the prob-ability that the Japanese government will capitalise on the coming into forceof the Referendum Law to reopen the constitutional debate is currently low,the article advances a number of hypotheses as to why this is the case, and discusses scenarios under which the status quo could change. Finally, it draws out the implications (a) of the preceding analysis for DPJ security policy, and (b) of DPJ security policy for the interpretation of theconstitution where Article 9 is concerned.

Advocates for the Article 9 revisionism can be largely dissected into the two popular modes. The first, dubbed 'Kaken' 1 such as LDP's Ozawa and DPJ's Hatoyama in 1999, were for constitutional updating 2 , favoring collective military security over individual security. The incumbent premier Shinzo Abe is the archetypical second type 'Kaiken' 3 , or constitutional revision, whom advocates both collective defense and military parity with other states 4 .

The origin and purpose of Article 9 of the Japanese Constitution has been controversial ever since its inception. While critics claim the provision was imposed to curtail Japan’s war-making powers, it is in fact the Japanese people aiming at “an international peace based on justice and order”—an adage inserted into the text later during Diet debates. For decades politicians have been discussing ways to reconcile/align the ideal with the reality: can the reality be raised to the level of the ideal, or is it perhaps necessary to adapt the ideal to the reality and change the Article. The involvement of the then Prime Minister Kijuro Shidehara in drafting the Article, however, was never questioned. This paper aims to reconfirm the facts concerning the authorship and meaning of Article 9 in the hope that this may finally put the matter to rest.

The Hinckley Institute of Politics Vol.23 (page 39-46), 2023

The Authorization for Use of Military Force passed at the onset of the 21st century in response to attacks from the militant Islamist terrorist group Al- Qaeda against the United States on September 11th, 2001. Despite the bill's narrowly tailored text and mechanisms for legal military engagement, executive authorities since the Bush Administration have continually utilized the bill to justify lengthy interventionalist operations abroad. Civilian death, drone strikes, military operations, resource shortages, and conflation of international legal regimes have all arisen from these operations. While statutory restrictions through congressional repudiation have been presented as a solution to the mentioned problem, this paper will argue that such a solution is not only unlikely but insufficient. Instead, Gundy v. United States offers us a unique opportunity to explore how a Supreme Court ruling against the Authorization for Use of Military Force would unfold. The Court could rule on the basis of nondelegation to rein in executive power and rule the Authorization for Use of Military Force as legally indefensible.

This Article considers how the Obama administration’s policies toward Japan implicate Article 9 of the Japanese Constitution. More specifically, it argues that the Futenma base dispute (as it has come to be known) jeopardizes the very existence of Article 9 by threatening to render it moot and by expanding the already expansive interpretations of Article 9. Part I provides a brief history of the Futenma base dispute during the Obama years, and Part II explains the effects of the Futenma base dispute on Article 9. More specifically, Part II contextualizes the Futenma issue by way of the legislative and judicial history of Article 9 and suggests that the intermingling of Japanese people and resources with the U.S. military allows Japan to circumvent Article 9 without massive public outcry. The fact of the matter is that Japan is relying on American troops to perform actions (maintaining combat troops and weapons, conducting military exercises and operations, and establishing armed defensive zones) that Japan could not do on its own because of constitutional restraints. Japan is permitting and in some cases encouraging the U.S. military to carry out actions that Japan is forbidden by its constitution to carry out. One thing this article does not do is suggest that Japan should or should not amend Article 9. Issues of internal Japanese politics are not the concern of this piece; the concern of this piece is the U.S. military presence that threatens to undermine the constitution of a sovereign nation. A secondary concern is for the people of Okinawa who want the U.S. troops off their island. The obiter dictum of this article suggests that not just the Futenma air station but all U.S. forces on Okinawa should be withdrawn from the island not only because the U.S. military jeopardizes the import and impact of Article 9, but also because the people of Okinawa generally oppose the presence of U.S. troops in their territory. The recent court decision in Mori v. Japan provides Okinawans with a constitutional argument for challenging the presence of U.S. bases like Futenma. That decision established a concrete “right to live in peace” that, to be actionable, must bear a “legal relationship” to military activity that violates Article 9.

Under Attack makes a new contribution to the field of international relations in general and the study of international law and armed conflict in particular, in two core ways. First, it links information from varying disciplines, most notably international relations and international law, to form a comprehensive picture of state practice and the challenges it poses to the legal rules for the use of force. Secondly, it organises the information in such a way to identify two core groups of contemporary justifications used by states: humanitarian reasons and self-defence, both with their sub-categories. At the core of this book is the question of how state practice since 1990 has challenged the long-established legal regime on the international use of force. Are we merely witnessing a temporary and insignificant challenge to international law or are the rules genuinely under attack?