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【#190】Denying Right of Belligerency Runs Counter to Sovereignty

Rikiwo Shikama / 2013.04.25 (Thu)

April 22, 2013


     Japan recovered its sovereignty as the San Francisco Peace Treaty between Japan and most Allied powers took effect on April 28, 1952. The Japanese people should have then launched efforts to create their own constitution. But policymakers and the people have failed to do so. When thinking of our posterity, we are ashamed for having failed in our responsibility
     Japan is about to mark the 61st anniversary of its sovereignty recovery. As the government will hold a ceremony to celebrate the recovery for the first time on Sunday, I hope our efforts to create a new constitution will gain momentum.

Japanese Constitution created for a subordinate country
     The present Japanese Constitution was created when Japan was a subordinate country under Allied occupation. The legal ground for placing Japan in such a status was the Japanese instrument of surrender signed in 1945. It said, "The authority of the Emperor and the Japanese Government to rule the State shall be subject to the Supreme Commander for the Allied Powers..." This means that Japan became a subordinate country with its sovereignty restricted.
     Japan now should create its own constitution promptly, although it may be too late to do so. If we choose a path of amending the Constitution in force, rather than drafting a new constitution, we must immediately consider provisions to be amended. Here, I would like to take up the issue of the right of belligerency that was denied under the second paragraph of Article 9.
I would stress the provision runs counter to Japan's sovereignty.
     Formally, Article 9 has two paragraphs. But, in fact, it consists of three different points providing for (1) the renunciation of war, (2) a ban on the maintenance of war potential and (3) the denial of the right of belligerency.

A core component of sovereignty
     "The right of belligerency of the state will not be recognized" , the article says. This provision is composed by a simple sentence without any qualification. Consequently, it is quite different from the other two provisions in the article. This means that there is no room to manipulate the interpretation of the provision on the right of belligerency.
     Japanese Government has so far devised interpretations of constitutional provisions to address problems regarding the exercise of the self-defense right and the creation of the Self-Defense Forces. But the denial of the right of belligerency, though amounting to a ban even on self-defense war, might have been effectively ignored.
     The right of belligerency under international law is one of the core components of sovereignty. But, the right cannot be recognized for any subordinate country. Accordingly, it was natural that Japan's right of belligerency was not recognized before the recovery of the sovereignty, so that the Constitution did not have to specify the denial of the right of belligerency. Well, then, why was the denial specified? The reason is still unknown.
     The provision to deny the right of belligerency for Japan runs counter to its sovereignty and should have been eliminated when Japan recovered its sovereignty.
     However, Prime Minister Shinzo Abe has recently called for establishing national defense forces. If the present Constitution is to be amended, the second paragraph of Article 9 should be entirely deleted. The deletion may simultaneously resolve the two problems of the right of belligerency and national defense forces.


Rikiwo Shikama is a former Japanese ambassador to Chile, and Guest Researcher of JINF.