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Published online by Cambridge University Press: 07 May 2025
Prime Minister Abe Shinzo announced in April 2007 that the government was planning to establish a “panel of experts” to examine the question of whether to “revise the current interpretation of the Constitution” in order to permit Japan to engage in certain specified collective self-defense operations. The Americans have long pressed for greater Japanese involvement in collective security, and the announcement came shortly before Mr. Abe's first trip to meet with President George W. Bush. Yet Article 9 of the Constitution of Japan, among other things, renounces “war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes”. This has been understood by the courts and all past governments of Japan to prohibit Japan's participation in collective self-defense operations, or engagement in any use of force, for any reason other than the direct defense of Japan.
[1] See for example, Asahi Shinbun-International Herald Tribune, “Collective Self Defense” Editorial, April 28, 2007; “Abe's Panel on Defense Dominated by Hawks”, Japan Times, May 6, 2007.
[2] “Abe Shapes Agenda for Defense Panel”, Asahi Shinbun – International Herald Tribune, May 19, 2007.
[3] To be perfectly fair, there is a minority view, represented by academics such as Bruce Ackerman, who do argue that a constitution can be transformed or amended through informal processes that do not conform to the amending process. But such theories have not found general acceptance in the area of constitutional law. Moreover, even Ackerman argues that such amendments are rare and only occur with a “constitutional moment” characterized by a broad based political change. There is no suggestion that Japan is undergoing any such “constitutional moment”, and indeed, as argued in the next section, it is in the process of considering formal constitutional amendment. See Bruce Ackerman, “Higher Lawmaking” in Sanford Levinson, ed. Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton: Princeton University Press, 1995). There is also some discussion among Japanese scholars of the theory of constitutional “transformation”, which has its origins in German law. See Kasuya Tomosuke, “Constitutional Transformation and the Ninth Article of the Japanese Constitution”, Paul Stephen Taylor, trans. (1986) 18:1 Law in Japan 1. It is not a generally accepted theory in Japan either.
[4] Donald S. Lutz, “Toward a Theory of Constitutional Amendment” in Sanford Levinson, ed. Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton: Princeton University Press, 1995).
[5] For a recent and outstanding account of the process of drafting, negotiating, and ultimately the debate and agreement upon the final version of the 1947 Constitution of Japan, see Ray A. Moore and Donald L. Robinson, Partners for Democracy: Crafting the New Japanese State Under MacArthur (Oxford: Oxford University Press, 2002)
[6] A copy of the draft bill that was passed by the Lower House in April, 2007, can be found here. The final version that was passed by the Upper House on May 14, 2007 does not appear to have been available as at May 17, 2007.
[7] Final Report of the Research Commission on the Constitution, House of Representatives, available here; and the Final Report on the Research Commission on the Constitution, House of Councillors, available here.
[8] The LDP draft proposal for Constitutional Amendment is available here. To the best of my knowledge, an official English translation has not yet been made available.
[9] Democratic Party of Japan, 2005 Manifesto, available here.
[10] See, for example, “Referendum Law Flawed”, Editorial, Asahi Shinbun-International Herald Tribune, May 14, 2007.
[11] See, for example, Ito Masami, “Article 9 in Abe's Sights”, Japan Times, April 14, 2007;
[12] The agreement was finalized in June, 2006, though planning and development of systems had been in progress since 2003. Joseph Coleman, Associate Press, “US, Japan Expand Missile Defense Plan”, Washington Post, June 23, 006, available here. The Ministry of Foreign Affairs official announcement on the exchange of notes evidencing the agreement is available here. Japan and the US are already working on a two tiered system of BMD, employing sea launched SM3 missiles for interception of ballistic missiles while in space, and ground based Patriot Advanced Capability (PAC-3) missiles to be deployed for final-phase re-entry vehicles. Martin Seiff, UPI, “US and Japan Plan New Missile Defense Base”, Space War, December 5, 2006, available here.
[13] For a more optimistic view on the strength of the courts in this context, see John O. Haley, “Waging War: Japan's Constitutional Constraints” (2005) 14:2 Constitutional Forum at 28. Prof. Haley argues that the Supreme Court has deferred to governmental discretion to define constitutionally permissible defense policy, but only within limits that the Court has established, particularly in the Sunakawa case.
[14] The case concerned an application made directly to the Supreme Court by Suzuki Yoshio, leader of the Socialist Party, for a declaration that the recently established Police Reserve Force (predecessor to the SDF) was unconstitutional. Supreme Court, Grand Bench, October 8, 1952, 6 Minshu 783.
[15] Sunakawa case, Supreme Court, Grand Bench, December 16, 1959, 13 Keishu 3225.
[16] Naganuma case, Sapporo District Court, September 7, 1973, 712 Hanrei Jiho 24
[17] Naganuma case, Supreme Court, September 9, 1982, 36 Minshu 1679.
[18] Yasukuni Shrine case, Supreme Court, 2nd Petty Bench, June 23, 2006. The decision emasculates the normative power of Article 20(3), which provides that the government shall not refrain from any religious activity, since under the Court's interpretation of standing requirements, virtually no one could satisfy the “direct legal interest” requirement to challenge the government's actions, even if they were in flagrant violation of the provision.
[19] For similar arguments in the context of questioning the continuing validity of the political question doctrine in the US, and its application by courts in constitutional challenges to the presidential war powers, see John Hart Ely, War and Responsibility: Constitutional lessons of Vietnam and Its Aftermath (Princeton: Princeton University Press, 1993), at 55-57.
[20] For a good overview of these issues, see Richard J. Samuels, “Constitutional Revision in Japan: The Future of Article 9”, the Brookings Institution for North East Asia Policy Studies, December 15, 2004; and Richard J. Samuels, “Politics, Security Policy, and Japan's Cabinet Legislation Bureau: Who Elected These Guys, Anyway?”, Japan Policy Research Institute, Working Paper No. 99 (March 2004) available here.
[21] For a good analysis of these arguments in the context of Japanese constitutional law, see Ashibe Nobuyoshi, Kenpo, 3rd ed. (Tokyo: Iwanami Shoten, 2002), chapter 4.
[22] See, in particular, Kokusai Rengo Heiwa Iji Katsudo-to taisuru Kyoryoku ni kansuru Horitsu, [Law Concerning Cooperation for United Nations Peace-Keeping Operations and other Operations] Law No. 79/1992, as amended by Law No. 157/2001; Heisei 13 nen 9 gatsu 11 nichi no Amerika Gasshukoku ni oite Hassei Shita Terorisuto ni yoru Kogeki-to ni Taio shite Okonawareru Kokusa Rengo Kensho no Mokuteki Tassei no tame Kokusai Rengo Ketsugi-to ni motzuku Jindoteki Sochi ni kansuru Tokubetsu Shochi-ho [The Anti-Terrorism Special Measures Law], Law No. 113/2001; and Iraku ni okeru Jindo Fukko Shien Katsudo oyobi Kakuho Shien Katsudo no Jisshi ni kansuru Tokubetsu Sochi-ho [Law Concerning the Special Measures on Humanitarian and Reconstruction Assistance in Iraq], Law No. 137/2003.
[23] See, for example, Anthony Faiola, “Japan Plans to Bring Troops Home as Iraqis Take Over”, Washington Post, June 20, 2006; Norimitsu Onishi, “Japan Commits Itself to Sending Up to 600 Ground Troops to Iraq”, New York Times, December 10, 2003; “Japan's Troops Proceed in Iraq Without a Shot Fired”, New York Times, October 6, 2004.
[24] Fujita Naotaka, “Collective Self-Defense Panel to Study 4 Scenarios”, Asahi Shinbun – International Herald Tribune, April 28, 2007.
[25] “Collective Self-Defense” Editorial, Asahi Shinbun – International Herald Tribune, April 28, 2007.
[26] International Institute for Strategic Studies, The Military Balance, 2002-2003 (Oxford: Oxford University Press, 2002), at 332-337.
[27] Sunakawa case, supra.
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