Shinzo Abe’s Biggest Failure Is His Greatest Legacy: Preservation of Japan’s Anti-Military Constitutional Provision

Posted in: International Law

Last week Shinzo Abe, who served as Prime Minister of Japan longer than any of his predecessors, resigned due to health concerns. Abe’s overall legacy is mixed. His economic policies probably played a constructive role in ending the hangover of his country’s “lost decade,” but he was in other respects a controversial leader, especially because of his longstanding goal of amending Japan’s Constitution, imposed on the country by Supreme Allied Commander Douglas MacArthur after World War II.

Abe sought to eliminate Article 9, which “forever renounce[s] war as a sovereign right of the nation and the threat or use of force as means of settling international disputes.” It provides further that “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.” Although that provision may sound extreme, it has served Japan extremely well. Under its post-war constitution—including Article 9—Japan emerged as among the world’s most prosperous, politically stable, and technologically advanced societies. Why tamper with success?

As I shall explain, one bad reason and two good reasons have been offered for a change in Article 9. Nonetheless, I shall also explain that the argument for retaining Article 9 is stronger. Japan is lucky to have withstood Abe’s effort to undermine one of its most distinctive constitutional features.

Reasons to Question Article 9

Why seek to amend Article 9? One very bad reason is nationalism. Abe has made no secret of his ambition to, as it were, make Japan great again. Yet if Donald Trump uses the domestic version of that catch-phrase in conjunction with an occasionally isolationist mindset, Abe and his political allies had in mind that Japan ought to once again take its place on the world stage as a major player that projects so-called hard power. Because Abe has been less than fully remorseful for Japanese atrocities committed during World War II, detractors understandably worried that Abe’s push to amend Article 9 would result in full-scale revanchism.

Although nationalism tinged with blinkered nostalgia provides a bad reason to amend Article 9, there are good reasons as well.

To be sure, some of the language of Article 9 could fit comfortably in the constitution of any nation that abides by international law. The United Nations Charter allows armed force in national or mutual self-defense or as authorized by the Security Council but not for acts of aggression. Insofar as Article 9 of the Japanese Constitution renounces force of arms for offensive purposes, it mostly states a truism. Yet the language of Article 9 pretty plainly goes further. By forbidding the maintenance, and not merely the aggressive use, of military forces, Article 9 precludes military preparedness for defensive and deterrence purposes.

That broad prohibition might have made sense when Japan was a defeated power shortly after World War II. At the time, it was imperative to prevent a repeat of Japanese war crimes against Chinese and Korean civilians. In imposing a (surprisingly effective) constitution on Japan, General MacArthur and his staff understandably expected Japan to be the aggressor in any renewed military conflict.

Yet today, Japan faces real military threats from its neighbors. As recently as 2017, North Korea fired missiles over Japan. Less than a year ago, Kim Jong-un called Abe a “perfect imbecile and a political dwarf,” while threatening to hit Japan with a “real ballistic missile.” Meanwhile, a dispute over the small Senkaku Islands could undercut Abe’s efforts to improve ties with China and even erupt into a military confrontation in which Japan would have no choice but to back down or—in a potential doomsday scenario—call for aid from the United States, thus risking great-power war.

Hence, we have one legitimate reason to question Article 9. It leaves Japan extremely vulnerable to attack from two of its three closest neighbors, one ruled by an at-best ruthless and mercurial dictator, the other the world’s largest authoritarian regime. Against this backdrop, who could blame a Japanese leader for seeking the ability to maintain at least a defensive force?

That brings us to a second legitimate ground for seeking to amend Article 9: It was breached in all but name long ago. Since 1954, Japan has maintained “Self-Defense Forces” that many Japanese constitutional lawyers regard as a violation of Article 9. Even many of those who think that such forces can be squeezed to fit within the language of Article 9 concede that they violate its spirit. According to one widely used index, the Japanese Self-Defense Forces comprise the world’s fifth most powerful fighting force (after the U.S., Russia, China, and India). Amending Article 9 to recognize that Japan has a de facto military would render politics and constitutionalism in Japan more honest.

The Hidden Benefits of Article 9

Nonetheless, despite the legitimate arguments for amending Article 9, the majority of Japanese voters who reject the idea are right to do so. Article 9, even if honored in the breach, may have an important impact.

Although Article 9 has not prevented Japan from building up a very substantial de facto military, in the absence of the Article, Japan might have an even larger military. There is certainly evidence that Article 9 plays an important role in public debate in Japan about whether and when to send troops to serve as part of UN peacekeeping missions and for other purposes. If one thinks (as I do) that countries ought to exercise extreme caution before committing troops to fight overseas, even in a just cause, then a provision like Article 9 provides a useful thumb on the scale that counteracts the jingoistic appeals that arise in times of apparent threat.

We might usefully compare and contrast the United States, which maintains a much larger military than does Japan—both in absolute terms and as a fraction of its economy. Is that because the U.S. faces greater security risks? Not really. Japan faces serious challenges from China and a potential existential threat from North Korea, whereas the U.S. enjoys friendly relations with Canada and Mexico. True, the U.S. has great-power adversaries like Russia and China, as well as not-so-great-power adversaries like Iran, North Korea, and Venezuela, but those antagonisms could be as much the product of U.S. policy as its cause. The comparison between the U.S. and Japan might well lead us to think that if there is to be a change, the U.S. should adopt something like Japan’s Article 9, not that Japan should abandon it.

Costa Rica is another useful example. Like Japan (and like some tiny nations around the world), Costa Rica has no formal military but skirts that commitment through creative interpretation. It has national police forces that serve as a substitute for a military force in many respects. Nonetheless, the national psyche in Costa Rica, as in Japan, turns away from war. Thus, even as there have been decades of bloodshed, civil war, and unrest in neighboring Honduras, Guatemala, El Salvador, and Nicaragua, Costa Rica has enjoyed relative peace and stability. Its constitutional renunciation of militarism is not the only reason, but it likely has played a part.

There may be a larger lesson here: Even imperfect constitutional provisions that are violated to a substantial extent could nonetheless act as a restraint on militarism and perhaps on other unwise policies. Article 9 ain’t broke, so don’t fix it.

Comments are closed.