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No, Japan’s Constitution Does Not Prevent it from Defending Itself or its Allies

Japan F-35 Rollout Ceremony
Japan F-35 Rollout Ceremony.

Tokyo recently revealed that it would develop long-range strike capabilities, including cruise missiles and ballistic missiles, and would request funding to develop hypersonic missiles to keep pace with the challenges posed by China, Russia, and North Korea.

Whenever Japan announces a new defense policy or military milestone, inevitably, there are media reports asking how the new defense endeavor will comport with Article IX, the war-renouncing clause of Japan’s Constitution.

Japan’s highest law is often called “the pacifist” or “war-renouncing Constitution.”  Media and academic documents will refer to Japan as “officially pacifist” when discussing Japanese security issues.  Commentators will note that Japan’s Constitution imposes “restraints” or “restrictions” on Japan’s ability to defend itself. Commentators assume that the generalized support among the Japanese public for the ideal of pacifism translates into support for the practice.

On the surface, these are legitimate questions and statements.  The text of Japan’s Constitution seems authoritative:

“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.”

“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.”

Now, some elements of the Japanese polity respect, sometimes overzealously, the official pacifism of the Japanese state.

In 2014, a Japanese man set himself on fire to protest Japan’s plan, ultimately adopted, to recognize the right of collective self-defense (the doctrine by which a state can defend an ally under attack). A far-left terrorist group, Kakurokyo-ha, has lobbed improvised explosives at U.S. military facilities ostensibly to protest the military presence in Japan.

When Shinzo Abe was assassinated, many media outlets immediately assumed it was by someone who was opposed to a rebirth of Japanese militarism. Official Chinese and mainstream South Korean commentators received the news of his death and interpreted it through that lens.

Later, of course, we learned that the confessed assassin was motivated by his mother’s bankruptcy, which he blamed on the ruling Liberal Democratic Party’s (LDP) ties to the South Korea-based Unification Church. The assassin was actually a former member of Japan’s Self-Defense Forces.

Japan’s LDP prime minister did some public introspection and issued public apologies for his party’s relationship with the deep-pocketed, staunchly anticommunist Unification Church. Notably however, they did not, and will not, make any apologies about Abe’s lifelong push to amend Art IX.

In truth, Art IX has no appreciable impact on Japan’s defense policy or modernization. Ever since the prime ministership of Koizumi Junichiro (2001-06), the Japanese government has treated Art IX as an aspirational clause. Rather than restricting Japanese defense policies and capabilities, they view it as a statement of what a just and ideal world would look like.

Article IX does not, as it is often asserted, prevent Japan from sending forces overseas, defending an ally, developing offensive strike capabilities, or anything else. Instead, it is the government’s current interpretation of the Article that matters.

Recent political developments reinforce this assessment.  The Supreme Court of Japan, which is explicitly charged with the right of judicial review, has never ruled that a defense policy violates the Constitution. To be fair, Japan’s Supreme Court has historically been reluctant to do this in any matter and typically shows broad deference to the government. This despite the fact that Japanese courts have had many opportunities arising from Japan’s left-wing parties and suits brought by residents of Okinawa.

The body with the most practiced authority in Japan’s system is the Cabinet Legislative Bureau which, as the name implies, is an executive-legislative organ staffed with politicians and lawyers.  Among its duties is the right to advise the Diet on proposed legislation and administrative policy. When Japan’s leaders want to adopt a new policy on defense, the Bureau will dutifully amend its standing interpretation of Art IX to allow for it.

Japan’s success in this salami-slicing approach is, in part, because the LDP tracks the Overton Window on defense issues and is always ready to pull the trigger on a policy change.  The LDP’s most hawkish members are cautious to lead, but not get ahead, of Japanese public opinion.

An excellent example are the “helicopter-carrying destroyers” of the Japan Maritime Self-Defense Force. When initially launched and unveiled, they were clearly rotary wing aircraft carriers more akin to the USS WASP amphibious assault ship than what their DDH hull code would imply: a long and lean destroyer with a helipad.

Japan analysts at the time, myself included, understood clearly that Tokyo was playing rhetorical games with its warships to maintain some plausible deniability with the Japanese voting public. No one was fooled.

Now Japan has stated that its DDH will carry the most modern F-35 aircraft. Last September, the JS IZUMO conducted successful takeoff and landing practice for F-35Bs on the deck of its “helicopter destroyer.” There are long-term plans to convert the entire DDH fleet. Looking at the design of Japan’s DDH, it is entirely unbelievable that Tokyo did not initially design them for this purpose decades ago during the initial planning stages.

If that is the case, readers may wonder, why have so many Japanese politicians devoted so much rare political capital to amending the Constitution? There are a few reasons for this.

First, the Japanese Constitution has never been amended. It remains the same textually (if not judicially) from when it was first imposed on the surrendered state by the United States at the end of World War II. There is an element of asserting independence, moving on from World War II, and proclaiming sovereignty in this desire to amend the highest law.

Second, Japanese leaders are cognizant that the “constitutional amendment via official reinterpretation” model is effective only so long as the LDP is in charge. The LDP has ruled Japan almost uninterrupted since the restoration of sovereignty – with emphasis on the “almost uninterrupted.”

The opposition Constitutional Democratic Party, formerly the Democratic Party of Japan (DPJ), governed from Sep 2009 to Dec 2012. At the beginning of the DPJ’s tenure, it was in coalition with the Social Democratic Party, which held Art IX nearly sacrosanct. The DPJ’s policy chief was Ozawa Ichiro, a noted defense iconoclast who argued in his book Blueprint for a New Japan for a restored Japanese military that was subject to direct UN control.

Even though the LDP is in a very strong position, and the opposition parties are in disarray, Japan’s defense reformers want to remove any chance for an opposition government that can roll back Japan’s defense and security reforms.

Finally, there is no doubt that Japan’s defense hawks want the option to move faster and further on defense issues than they have historically.  They do not want to move the Overton Window, they want to obliterate it.  They want to obviate any argument against Japan’s defense that relies on Art IX as a pretext.

Art IX has been a factor only in how long it takes Japan to realize a defense goal, not in whether to pursue it. In fact, Art IX was invalidated almost immediately upon enactment when the U.S. and Japanese authorities created the National Police Reserve, the forerunner to the Self-Defense Forces. Abe once famously said that even Japanese possession of nuclear weapons would be permissible under Art IX “so long as they are small.”

It is time to recognize that debate over Art IX’s impact on Japan’s defense modernization for what it is: an academic one with little remaining practical applicability.

Expert Biography: Anthony W. Holmes is a senior non-resident fellow at Project 2049.  He was Special Advisor to the Assistant Secretary of Defense for Indo-Pacific Security Affairs from 2017-2021.  He lives in Florida.

Written By

Anthony W. Holmes was a special advisor for North Korea in the Office of the Secretary of Defense from 2017-2021. He co-represented the Department of Defense at the first summit between the United States and North Korea in Singapore. He is a senior non-resident fellow at the Project 2049 Institute.  The views expressed are the author’s alone and do not necessarily represent the views of any agency. He currently lives in Florida.