Japan’s Unchanged Constitution Impedes Collective Defense with the U.S., Other Allies

In the current sphere of Japanese politics the issue of constitutional revision figures very prominently. Arguably it is the single most significant political issue of the time.

In the heated debate that is already taking place, though, one critical factor seems to be missing — that is, how the United States sees Japan’s constitution and the idea of its revision. Although it might seem as though it should be entirely a Japanese decision, there are at least two good reasons why the U.S. view matters.

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Why the U.S. Cares

First, the current Japanese constitution was written by the United States. In February 1946, under the direction of General Douglas MacArthur, some 20 American military officers with legal backgrounds worked intensely for about 10 days and drafted a constitution for Japan. The draft was then handed over to the Japanese government that at the time did not have any recourse other than to simply accept it.

Second, it is the United States which fills in the gaps on Japan’s national defense created by the constraints in Article 9 of the constitution. This article states that the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes. It further says that 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.

While this article can be interpreted in more than one way, it has prevented Japan from possessing normal military forces capable of deterring threats, creating an inherent vulnerability in the country’s national security.

To make up for it, Japan has consented to let the United States be its security guarantor through the U.S.-Japan Security Treaty. As a result, any change to Japan’s constitution, especially Article 9, would have a fundamental impact on Japan’s security relationship with the U.S., its post-war defense partner.

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Intentions of the American Drafters

American views regarding Japan’s constitution should be understood by first going back to the origin, when the Americans drafted it.

It was my good fortune to have a lengthy four -hour interview in 1981 with the leader of the American drafting team, Charles Kades, at his Wall Street law firm. Mr. Kades was a colonel in the U.S. Army and a key staff officer to General MacArthur after the war and had been a full-fledged lawyer in the U.S. before the war’s start. Though 25 years had passed since he led his drafting team in Tokyo, he still had a meticulous memory and detailed records about this historic undertaking.

Kades spoke calmly and openly, revealing a mountain of information, some of which shocked me at the time, including his statement that he decided to write Article 9 himself because he considered what was to be written into as most important. In response to my question as to what he wanted to accomplish, he firmly replied, “So that Japan would permanently disarm.”

He also revealed that he had received brief orders in the form of a few lines of hand-written notes from his superiors that articulated the essential elements they wanted inserted in the constitution, including Japan’s renouncement of war even for the security of its own people.

He said he decided to leave out that particular limitation based on his own legal judgement that it was totally unrealistic, adding that every country has an inherent right of self-preservation if invaded. So he omitted that clause and gained approval from his bosses afterward.

It was clear from his comments that the United States intended Japan to be permanently disarmed by its new constitution, even if detrimental to its own self-preservation. It was only six months after the end of a long fierce war against Japan and perhaps a natural reaction to intend indefinite constraints on Japan’s military power.

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Impacts on Japan Today

It is now 73 years later. The constitution of Japan has remained completely unchanged, while the American expectations for Japan have changed drastically.

Article 9 bans Japan’s possession of any offensive weapons and prevents the country from exercising the right of collective self-defense, even though collective self-defense has been recognized as an inherent right of sovereign states since the days of the 17th Century Treaty of Westphalia. In modern times it was enshrined in Article 51 of the 1945 United Nations Charter as a right of all UN countries to use military force to defend themselves and other member nations from attack.

Japan’s constitution bans it from carrying out this inherent and universal right. Under Article 9, Japan cannot help to defend its ally the United States, unless the Japanese territory itself comes under armed attack.  

Japan also can’t act together with other countries in UN peacekeeping missions if it might entail any armed conflict. This makes Japan an international anomaly. Outrageous as it may seem, at one point the Netherlands armed forces were assigned to protect Japan Self-Defense Forces participating in the same multinational mission in Iraq — because under Article 9 the Japanese couldn’t be engaged in combat, even to defend themselves.

The downside carries over to ordinary Japanese citizens. The government cannot protect its citizens when they are threatened or kidnapped by bad actors on the world stage, for example the North Korean abductions.

Japanese Views

Meanwhile, even though Japanese did not write it, the constitution, including Article 9, has been embraced by the majority of Japanese people for several decades. In recent years, though, opinions have begun to divide on the subject.

The self-imposed pacifism benefitted Japan in some respects. Japan has been able to make smaller defense expenditures because of Article 9 constraints, allowing the government to focus on the economy. Some have also taken the view that it made it easier to carry on relations with countries such as South Korea or China.

This should bring us back to the present: What are American attitudes now toward Japan’s constitution?

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Changed Expectations

America is far from monolithic, and yet examination of a few specific examples reveals a clear trend.

First, President Donald Trump has expressed his frustration repeatedly over what he sees as unfairness in the U.S.-Japan alliance. He noted that when Japan comes under armed attack, the U.S. will come to fight to defend Japan, but when U.S. is attacked, Japan will not have to do anything. With a hint of sarcasm he remarked, “The Japanese people can stay home and watch their Sony televisions.”

He did not mention the right of collective self-defense or the constitution by name, but the implication is clear. The lack of reciprocity is a problem.

Under the constraints of Article 9, Japan can exercise its right of collective self-defense in the alliance — fighting jointly with American forces — only when Japanese territory is attacked. However, say an American vessel comes under armed attack while engaged in a mission for the U.S.-Japan joint defense, even if it’s just one kilometer outside Japan’s territorial water, Japan cannot help the U.S.

It’s important to note that this is different from every other bilateral defense alliance maintained by the United States with other countries in the region. American partners — such as South Korea, Australia, the Philippines, and New Zealand — have all bound themselves to come to assistance militarily if the U.S. comes under attack anywhere in the Pacific. These can be called reciprocal alliances, whereas Japan’s cannot.

Second, in March 2017 I witnessed Congressman Brad Sherman, a veteran Democratic member of the U.S. House of Representatives, openly demanded that Japan revise its constitution in a public hearing on Asian security held by the House Foreign Affairs Committee, which he chairs.

Sherman specifically criticized the Trump administration announcement that it would defend Japan’s Senkaku Islands, citing Japan’s failure to cooperate with the U.S. in the fight against the Taliban government in the wake of the 9/11 terrorist attacks. At the time, all NATO member countries had joined the U.S. to jointly declare war against the Taliban, while Japan pleaded its constitutional constraint. The congressman then added, “Then why not revise the constitution?”

Third, in May 2017 the Wall Street Journal, a major American newspaper, ran an editorial titled “Japan’s Constitutional Gamble.” The editorial called Article 9 “dangerous to Japan’s own national security,” adding that “Prime Minister Shinzo Abe is right that the constitution needs updating to meet new realities.” 

It added:

The staff of General Douglas MacArthur drafted Japan’s constitution during the postwar occupation when the main concern was preventing a resurgence of militarism. Article Nine renounces war and forbids maintaining armed forces and “the threat or use of force.” Once Japan became a responsible democracy, those restrictions became unnecessary, but the country has been content to shelter under the U.S. security umbrella.

Article Nine is now becoming dangerous to Japan because it hampers collective defense with its allies. North Korea’s nuclear weapons threaten Tokyo and the world, and China is expanding its military reach. Japan needs a military with offensive capabilities that can take part in joint military action when Japan isn’t directly under attack.

These historical and contemporary factors should be part of the current Japanese debate on constitutional revision.

Author: Yoshihisa Komori