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THE LAW OF THE REVERSAL OF TENDENCIES

by Klaus Schlichtmann

 

ART. IX / 九条

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Article Nine in Context – Limitations of National Sovereignty

and the Prevention of War in 20th Century Constitutional Law

The updated article as it appeared in the March issue of SEKAI (日本語/Deutsch)  by K. Schlichtmann

 

I.          When we discuss Article 9 of the Japanese Constitution, we have to take into account the history of postwar constitutions in other countries as well. Central issue here is the collective security of the United Nations that should enable all countries to disarm, and resolve their conflicts peacefully.

On 20 February 1946, while the Japanese Constitution was still in the making, The New York Herald Tribune reported that “France became the first nation today to take up the question of World Peace in its Constitution,” which approves “the restriction of its National Sovereignty” to abolish war as a means for the resolution of international conflicts. The article in the constitution was welcomed as “a first step and preparation for the day when hopefully all states will accept such laws and … make such determination … to participate in a world-wide organization” that would be based on binding legal norms as a guarantee for peace. A half year earlier, U.S. President Truman had declared in his V-J (Victory over Japan) Day speech to the Armed Forces, beginning of September 1945: “War must be abolished from the earth if the earth, as we know it, is to remain.”  

Following the victory of the United Nations over the Axis powers – the term “United Nations” was proposed by Franklin D. Roosevelt and first officially employed in the Declaration of the United Nations signed by 26 states on 1 January 1942 –, central concerns of liberated France were national security and a durable peace in Europe and the world. The first constitutional draft, originally proposed by the French socialists, had been approved in February 1946, and the constitution was finally adopted on 27 October after a public referendum. In the new Constitution, France renounced war as a political means and subjected herself to the rules of public international law (Paragraph 14 of the Preamble). The pivotal Paragraph 15 of the Preamble prescribes that France “on condition of reciprocity accepts the limitations of sovereignty necessary for the organization and defense of peace.” With this France had, “once and for all,” defined its position within the community of nations. The renunciation of sovereignty, which was essential for an effective system of collective security, was linked to Article 24 of the UN Charter, which stipulates in its first paragraph that “in order to ensure prompt and effective action by the United Nations” all nations “confer on the Security Council primary responsibility for the maintenance of international peace and security.” In this way individual nations eventually could be relieved of their traditional obligation to look after their own peace and security, each nation by itself, to defend its interests and be safe from foreign attack and intrusion.

The French therefore concluded that the international community “[could] not advance without [reliable and effective, global] ‘institutions.’ To create these was only feasible and made sense only when states delegated to [these institutions] certain competencies which they had earlier exercised themselves….” (REUTER: 97) Consequently it was the obligation of other states, according to the stated principle of reciprocity, also to take the steps needed on their part for putting into practice the security system of the U.N. Germany was seen as a potential partner to be won for this task, and as a hope for achieving this goal. “So long as the dogma of sacrosanct national sovereignty is not overthrown,” a delegate said before the European Congress in The Hague in May 1948, and so long as the nations have not yet “thrown together their governments,” as Monsieur [Paul Henri] Spaak expressed it, peace would not be achieved.

André Philip, the chairman of the Constitutional Commission of 1946, later remembered (in Le Monde, 9 June 1954): “We still had no precise ideas about the conditions for European unity, but we did feel the need to create supranational authorities, if possible at the global level, but if not, [at least] at the regional level.” Churchill, in his famous Zurich University address of September 1946, a few weeks before the entry into force of the new French Constitution, had similarly declared: “Our constant aim must be to build and fortify the strength of UNO … and within that world concept … recreate the European family in a regional structure …” To do so would be, according to Churchill, above all a matter of cooperation between France and Germany. (CHURCHILL: 198)

This principle – agreement to limitations on sovereignty in the interests of a common, collective security system –, was one of several reasons why the French National Assembly in 1954 rejected France’s accession to the proposed European Defense Community (EDC). Will it again be one of the reasons for rejecting the new European Constitution, which pacifists criticize for its militaristic orientation, authorizing the EU to carry out world-wide military interventions, and pursuing an aggressive armaments policy, with the aim to “strengthen the industrial and technological base of the defence sector.” It would be more in accordance with their claim to put “right over might” if the Europeans give the UN the powers to function effectively as a system of collective security, and to disarm and abolish their arms industries.

With the entry into force of a new Constitution of the Fifth Republic on 4 October 1958, Paragraph 15 was incorporated in the Preamble of the new document, which “reaffirmed and complemented the Preamble of the Constitution of 1946.” It is legally binding and continues to be valid, and an essential component of the “political and social philosophy of the state.” (BURDEAU: 419-21) Similarly, Article 9 has been recognized as the “basic philosophy of the non-resort to the use of force,” e.g. by Prime Minister Hashimoto, on Sept. 24, 1996, before the UN General Assembly.

 

II.        Japan also gave itself a new Constitution after the Second World War, which ended with the dropping of the atomic bombs over Hiroshima and Nagasaki in August 1945. The victorious powers (without France) had decided in the Potsdam Declaration of 26 July 1945 upon the total disarmament of Japanese troops (Art. 9), the punishment of war criminals (Art. 10), the prohibition of industries which could make possible Japan’s rearmament (Art. 11), as well as the establishment in Japan of a peace-loving responsible government (Art. 12). The Declaration was signed by the United States of America, the United Kingdom, China, and later also by the Soviet Union. On 10 August 1945, the Japanese government accepted the Potsdam Declaration. On the following day the Allies communicated to the Japanese government: “…The ultimate form of Japan’s government will, in keeping with the Potsdam Declaration, be determined through the freely expressed will of the Japanese people.” On 14 August the Emperor ordered acceptance of the Potsdam terms, and with this the war in the East was ended and peace finally achieved. On 2 September the articles of surrender were signed on board the battleship Missouri.

It is well known that in order to discuss constitutional reform, at the beginning of October 1945 the Supreme Commander of the Allied Powers in the Far East, General Douglas MacArthur, met with Prime Minister Shidehara Kijūrō, a long-time diplomat distinguished for his services as Foreign Minister in the 1920s and “one of Japan’s most respected and experienced diplomats.” (MacARTHUR: 293) Shidehara was considered a pacifist and was known for his persistent policy of opposing militarism and refusing cooperation with the excesses of the military establishment. In a 12-point declaration of 4 October 1945 the Japanese government had already ordered (in Point 10) the elimination of any military influence over the government. A total revision of the old Meiji Constitution of 1889, however, was not yet an issue.

Also in October 1945, Shidehara set up a commission, the Kempō Mondai Chōsa Iinkai, which had the task of investigating constitutional reform and whose chairman was Matsumoto Jōji, a “minister without portfolio.” Up to its final meeting on 26 January 1946, this commission met fifteen times. In spite of having been given no specific mandate for writing a new constitution, the “Matsumoto Committee” came up with two drafts, representing two mutually contending opinions. One, known as “Draft B,” prepared by the whole committee, contained no stipulations about a military establishment, while the other, a less liberal “Draft A,” prepared by Matsumoto personally, stipulated: “The system of armed forces is retained” – though it was to be subject to parliamentary, democratic control. (James E. AUER in LUNEY/TAKAHASHI: 70)

            In any case Prime Minister Shidehara, who was to be ultimately responsible for any constitutional revision, had in the meantime given much thought to what role Japan should play in the world in the years to come. Between the end of 1945 and the first days of 1946 Shidehara was suffering from a lung infection. His friend Ōhira Komazuchi, after visiting him during his convalescence, wrote down what has come to be known as the Ōhira Memo, recording Shidehara’s “Thoughts about Various Things.” In the foreground of these thoughts were the “dread of future wars, in which horrible weapons like atomic bombs would be employed, and the question of how one can keep the world peaceful…” (TANAKA: 94) Shidehara wanted to retain the Emperor, who had supported his pacifist foreign policy of non-intervention and restraining Japanese military forces in mainland China in the 1920s. In his own later recollections titled Gaikō gojūnen, which were recorded in 1950-51 by reporters from the Yomiuri Shimbun, Shidehara told how the idea of Article 9 came to him during a train ride through a landscape devastated by the war:

“It was at the time that, without really so intending, I was appointed to the post of Prime Minister and was entrusted with the task of organizing a cabinet. What immediately came up in my mind were scenes I had viewed from the train. I firmly resolved that I must do what I could, in some way or another, to help realize the aspirations of those people crying out in the fields. So I decided to change the ways of government by putting into the Constitution that forever in the future [Japan] would never [again] engage in that kind of war. In other words, we had to give up war (sensō o hōki shi), completely discard armaments, and thoroughly carry out democracy in every way possible. I don’t know about other people but in my case this came from my deep convictions that I spoke with you about earlier. It was almost as if a sort of magic power (isshu no maryoku) -- a sort of invisible force -- had taken control of my mind. One often hears it said that after the Americans came to Japan this new Constitution was surely something that was forced on us by their General Headquarters against the will of the Japanese people; but as far as I am concerned that was not the case, and I was certainly not manipulated by anyone at all.” (SHIDEHARA: 213) 

On 24 January 1946, a month after the conclusion of the plans to demilitarize Japan, Shidehara paid MacArthur a visit to thank the American commander for the penicillin that he had arranged to have delivered, in response to Shidehara’s personal request, during his recent convalescence. This occasioned a 150-minute-long conversation, during which Shidehara, according to the Ōhira Memo, first of all brought up the question of the Emperor. Speaking about the Emperor’s idealism (risōron), they talked about abolishing war from the world; Japan should as a part of that endeavor renounce the right to make war. And for that purpose a renunciation of a part of its sovereignty was said to be necessary. (TANAKA: 94) In all likelihood Shidehara had also come to know about the new French Constitution. After their conversation MacArthur informed the head of the political section of his headquarters, General Courtney Whitney, about what he and Shidehara had discussed.

“I (Whitney) was not present during the discussions that followed. But I did go in to see MacArthur immediately after Shidehara’s departure at two thirty, and the contrast between the expressions on MacArthur’s face before and after the interview told me immediately that something of importance had happened.

“MacArthur explained what it was: Prime Minister Shidehara, after expressing his thanks for the penicillin, had proposed that when the new constitution was drafted, it contain an article renouncing war and the maintenance of a military establishment once and for all. By this means, Shidehara had said, Japan could safeguard itself against the re-emergence of militarism and police terrorism … Shidehara further pointed out that only if relieved from the oppressive burden of military expenditures could Japan have the slightest chance of providing the minimum necessities for its expanding population, now that all its overseas resources were gone. It was this that they had discussed for two and one-half hours. (WHITNEY: 257)

            MacArthur could not have agreed more. There is no doubt that the January 24 meeting between MacArthur and Shidehara took place. Both Shidehara and MacArthur have stated that it was Shidehara himself who suggested that an article similar to the later Article 9 be included in the Japanese Constitution. In his memoirs MacArthur wrote: “It has frequently been charged, even by those who should be better informed, that the ‘no war’ clause was forced upon the [Japanese] government by my personal fiat. This is not true…” (p. 302) Most likely Shidehara, the trained jurist, had put to MacArthur a specific wording which MacArthur wrote down, (SCHLICHTMANN 1997: 464) and which was put into the famous “MacArthur Memo” of 3 February 1946, which reads under Point 2:

“War as a sovereign right of the nation is abolished. Japan renounces it as an instrumentality for settling its disputes and even for preserving its own security. It relies upon the higher ideals which are now stirring the world for its defense and its protection.

No Japanese Army, Navy, or Air Force will ever be authorized and no rights of belligerency will ever be conferred upon any Japanese force.”

            The second paragraph especially prohibits any permanent institutionalized military establishment, like a War or Defense Ministry. Shidehara must have spoken in greater detail of those “higher ideals” on which he based his position to abolish war as an institution. Article 9 was, in Shidehara’s view, to become a cornerstone of the United Nations system of collective security that would enable all nations to disarm. In the present discussions in Japan, any change to the second paragraph of Article 9 and the lifting of the Defense Agency to the status of a Ministry, which would also come to pass – as would probably also compulsory military service –, will annul that purpose and have grave consequences with regards to maintaining peace in the Japan area and the world. Furthermore, changing the second paragraph would be contrary to the spirit of Article 10 of the US-Japan Security Treaty which stipulates that the alliance will no longer be necessary and therefore may be relinquished if and when the UN System of Collective Security becomes operative in the Japan region.

After the conversation with Baron Shidehara, MacArthur was, as he himself described it, “confronted with a time problem,” (MacARTHUR: 300) and all the more conscious of his own responsibilities. He was determined to bring the question of reforming the constitution quickly to a resolution. The constitutional draft – i.e., the less liberal “Draft A” of the Matsumoto Committee was presented on 8 February. On February 1 there had appeared, however, an unauthorized advance publication of “Draft B” in the Mainichi Shimbun, which prompted MacArthur’s immediate rejection of this draft on the same day, since it also differed little from the old Meiji Constitution. (Political Reorientation of Japan: 101) It may well be that Shidehara himself or someone close to him planted the evidence, since the draft was apparently found in the room which was Shidehara’s “favorite napping spot.” (HELLEGERS: 478, 515, 518)

Two days later, on February 10, MacArthur put forward a draft written by the Political Section of GHQ, which largely corresponded to the proposal of the nongovernmental Kempō Kenkyūkai which had earlier been translated by GHQ in its entirety, and used by the Americans as they made the Government Section draft. This draft was printed on February 12 and accepted by the Japanese government on February 22. MacArthur, at a meeting at the residence of Foreign Minister Yoshida Shigeru on February 13, also suggested putting the question of the constitution directly to the Japanese people in such a way that there would be adequate time for discussions. MacArthur’s and the American occupiers’ popularity among the population generally worked in favor of the latter’s necessary support in carrying out the democratization process. Thus, Japanese public opinion directly and indirectly had an influence on both the Japanese and the American efforts and found its expression in the new constitution even against the will of the more conservative forces.

On March 6 the Shidehara cabinet made public the English and Japanese texts. Between early March and the opening of the parliamentary debates in June 1946, there was lively discussion among the populace. On March 27, Shidehara expressed himself as follows on Article 9 at a meeting of the War Investigation Commission, which had been established by the Japanese government in November 1945 and whose chairmanship he had assumed:

“No precedent for this kind of constitutional stipulation can be found in the constitution of any other country. Furthermore, at a time when research on atomic bombs and other powerful weapons is continuing unabated, there may be people who think that the renunciation of war is utopian nonsense. However, no one can guarantee that, with the subsequent technological advance and development, new destructive military weapons tens or even hundreds of times more powerful than the atomic bomb won’t be discovered. If such weapons are discovered, the possession of millions of soldiers and thousands of warships and airplanes will still not ensure national security. When war starts the cities of the fighting countries will be totally reduced to ashes and their residents will be annihilated in a few hours. Today we hold aloft our declaration renouncing war and go forward alone on the vast plain of international politics. But a new day will surely come when the world will awaken to the horrors of war and march with us under the same banner.”[1]

With the opening of the 90th session of Imperial Diet the Government Draft was debated in parliament, and alterations were made. The new Constitution was accepted August 24 by a vote of 421 to 8 – six Communist representatives as well as two independents voted against it – and subsequently submitted to the Privy Council, which endorsed it on October 29. On November 3, the birthday of the Meiji Emperor, the new Constitution was promulgated in a solemn ceremony and published in the legislative gazette. The London Economist of 9 November 1946 highly assessed of the new Constitution with these words:

“The new Con­stitution is … quite admi­rably demo­cratic and corrects the notably undemocra­tic features of its predecessor. But this merely brings Japan tardily into line with the parliamenta­ry-demo­cratic states of the world, and gives it no occasion for moral superio­rity over other nations. It is otherwise with the clauses by which Japan renounces to wage war even in self-defence. No nation has ever before thus adopted complete non-violence as part of its poli­ti­cal structu­re; not even Mr. Gandhi’s India is proposing to do so. The Japa­nese Prime Minister has spoken of the example Japan is setting to the world, and the Jap­anese are apparently almost as pleased with themselves as if they had won the war... Japan has moved to a higher moral plane … The cynic may say that, as Japan has been disarmed anyway by the Allies and is to be kept dis­armed, this spec­tacular re­nunciation of war is only making a virtue of necessity. But, after all, there is a skill in making a virtue of necessity; it is judo, the ‘soft art’, in which the wrestler throws his opponent by yielding quickly in the direc­tion of pres­sure.

Indeed, as a Dutch scholar and war veteran and a very good friend of mine who died last year, Martin Knottenbelt, declared: Japan “staked a claim, as of right, to enforceable world law.” The Constitution entered into force on 3 May 1947, carrying, among others, Shidehara’s signature.

 

III        In Germany, Carlo Schmid, the “superb enlightener, … statesman … [and] advocate of humanity” (as publicist Walter Jens has called him), had argued in 1948-49 before the Parliamentary Council for putting limitations on sovereignty into the Bonn Constitution (Basic Law). Carlo Schmid, who was then Professor at the University of Tübingen and State Minister of Justice, had also the United Nations Organization in mind. The committee under his chairmanship dealing with questions of peace and its safeguarding was “unanimously of the view that the Constitution should provide that the Federation can, through a law passed and adopted by a simple majority vote, delegate sovereign rights to international institutions.” (Der Parlamentarische Rat – hereafter PR: 206) This would be a suitable follow-up to the Japanese precedent, which many see as a “motion” to abolish war waiting to be “seconded” by some other country or countries.

A report of the German Constitutional Convention referred to Paragraph 1 of Article 24 in these words:

“This [provision] is meant to facilitate the creation of international organs which might be set up in order to, with application to the territories of the participating states, look after matters which previously were left to the various national sovereignties. The German people resolve to henceforth renounce war as a means of policy and to draw the necessary conclusions therefrom.” (PR: 207)

The delegates were well aware that a mere declaration of intent to renounce war as a policy means was insufficient, but that with it should come a delegation, or giving up, of certain sovereign powers in favor of a system of collective security. Thus in order

not to be defenseless and subject to alien force, what is required is the inclusion of the territory of the Federation in a system of collective security which guarantees the peace. In the unanimous opinion of the committee the Federation should be prepared, in the interest of peace and of a durable order of European relations, to consent to those limitations of its sovereign powers (Hoheitsrechte) which would result from such a system.” (PR: 207)

That the creation of an effective global security system had a definite priority over the “organizing of [purely] European relations,” is made clear also by the wordings of some of the proposals, which stated that the limitation of national sovereignty is the precondition “through which a peaceful and lasting organization of European relations can be attained and put securely in place.” (Dr. Theo Kordt, Nordrhein-Westfalen) (PR: 207) Or:

“The Federation may consent to limitations of its national sovereignty if it is made part of a system of collective security through which a peaceful and lasting organization of European relations will be put securely in place.”

According to one delegate, Dr. Kurt Seebohm, this transfer of sovereign rights was “the most important thing” which the German Federation should aim to accomplish, to achieve a permanent peaceful order in Europe and the world. The inspiration for Paragraph 2 of Article 24 “drew on the corresponding provision of the French Constitution,” whereby it was to be given special weight. (PR: 353) However, in contrast to the French Constitution, the constitutional convention delegates omitted in the Bonn Constitution the “condition of reciprocity.” This was because the committee was “aware of the fact” that Germany was expected to take the initiative, i.e. the committee was “of the view that after the things that have happened in the name of the German people, such an initiative, which [would] bring in its train corresponding actions by other countries, is appropriate…” (PR: 207) As far as security is concerned it is clear that a system of reciprocal and collective security is to be understood as something “essentially different” (FORSTHOFF: 335) from “collective self defense,” granted to all member states under the UN Charter’s Article 51. The chairman of the constitutional committee, Prof. Hermann von Mangoldt, stated what the majority opinion was: “The system of mutual collective security [we have in mind] is the world system of the United Nations.” (Stenographic Minutes: 772) Prof. Carlo Schmid declared with urgency and conviction: “We must definitely join such organizations; otherwise we will perish (sonst gehen wir zugrunde).” (Stenographic Minutes: 454) In practice, Article 24 has until now, been applied only in regard to European integration and not in connection with measures to prevent and abolish war.

 

IV.       A year earlier Italy had also specified a similar article for its own new postwar constitution. Article 11 of the Italian Constitution of 1 January 1948 reads:

“Italy renounces war as an instrument of offense to the liberty of other peoples or as a means of settlement of international disputes, and, on conditions of equality with other states, agrees to the limitations of her sovereignty necessary to an organization which will ensure peace and justice among nations, and promotes and encourages international organizations constituted for this purpose.”

As earlier in France and Japan, and a good year later in Germany, with the wording of this Article 11 of its Constitution, Italy felt that after the inferno of the Second World War the Italian state must be assured an honorable place in the family of nations. Already prior to the founding of the United Nations Organization there had been a strong public interest in the new global organization. The Allies had concluded an armistice with Italy in September 1943, and in early 1945 numerous detailed reports in the Italian press dealt with the upcoming UN conference in San Francisco (25 April through 26 June 1945). “Liberated” Italy was deeply disappointed not to be invited to the conference.

In March and April 1947 the Constitutional Assembly had discussed the proposals for the new constitution. A court decision was later required, to determine that the laws of the European Community did not contravene Article 11, even if strictly speaking European integration was not an original purpose of the provision. (PERGOLA/DUCA: 598) Like in Germany, the universalist objectives of Italy’s Article 11 were temporarily subordinated to the aims and purposes of European integration. In the words of the chairman of the commission that had in 1947 elaborated the constitutional draft:

 “The burning desire for European unity is very much an Italian principle, but in this historical moment an international organization can and must, in view of the fact that other continents, like America, wish to take part in international organizations, extend beyond the borders of Europe.” (Atti dell’Assemblea Costituente: 243)

This was the view generally expressed at the time. In spite of relatively little resistance to membership in NATO, the later proposal for a European Defence Community treaty was rejected also in Italy. In December 1955, one year before Japan, Italy became a member of the United Nations, after the Soviet Union – ever since Italy’s first application for membership in 1947 – had repeatedly used its veto to prevent Italy’s joining the world body.

 

V.        We should also mention some the other, mostly European constitutions in which a similar transfer, limitation or delegation of sovereign powers is specifically envisioned for the purpose of preventing and abolishing war and of creating, in the course of this endeavor, the necessary suprastate institutions. Here the Danish Constitution, which entered into force in June 1953, is likewise of exemplary significance for the postwar period.

Of relevance to its preliminary history, there had taken place in Bern (28 August - 2 September 1952) a Conference of the Interparliamentary Union (IPU), an international association of elected members of national parliaments founded in 1889 as a model for a future world parliament. (Japan became a full-fledged member in 1910.) At the 1952 IPU Conference it was resolved that the participating states should adopt in their national constitutions provisions aimed at effective international cooperation in the fields of economics, politics and culture. Toward this goal the parliamentary delegations were to submit proposals.

Principal issues of the IPU Conference debates were limitations on the sovereignty of individual countries and the question of how to legitimately represent the various nations at the global level in an eventual world parliament. The members of a Danish constitutional commission had already proposed a text in 1946, which ultimately was adopted in the course of making the new constitution of 1953:

 “Article 20. (1) Powers which according to this constitution rest with the authorities of the kingdom, can, through a bill, to a specifically defined extent, be transferred to international authorities, which are instituted by mutual agreement with other states to promote international legal order and cooperation…” (ANDERSON: 654) 

As in the German and Italian constitutions, lawmakers are given special executive powers to shape the future international organization and to prevent war, by the transfer of specified legislative, judicial and executive powers to an international institution such as the UNO. In the report of the constitutional commission the control of atomic energy was given particular attention in this context.

Also as a result of the 1952 IPU Conference, in the Netherlands a similar Article entered into force in 1953, and was reconfirmed in the constitution of 1983. (PANHUYS: 540-541; 551-552) Executive powers to effect a universal system of collective security and peaceful cooperation are also granted to parliamentarians in the following constitutions, in alphabetical order: Argentina (1994), Austria (1981), Belgium (1971); Burundi (1981), Republic of Congo (1979), Costa Rica (1968); Greece (1975); Guatemala (1985), Ireland (1937); Luxembourg (1973); Norway (1814/1905), Portugal (1982), Singapore (1980), Spain (1978), Sweden (1976), East Timor (2002), and Zaire (Democratic Republic of Congo, 1978). A frequently recurring constitutional formula (e.g., in Antigua and Barbuda, Barbados, Belize, Brunei, Jamaica, Lesotho, Malawi, Vanuatu, Zimbabwe) is: “The parliament may make laws for the peace, order and good government [of the state].”

It has sometimes been said that “in substance” the traditionally uninhibited ‘right of belligerency’ of continental European coinage was hardly any different from Anglo-Saxon doctrine. There was and is, however, in the Anglo-Saxon countries – and also in France and the ‘Latin’ countries – a much greater interest in institutionalizing the international ‘rule of law’, despite resistance from some European countries where international law does not automatically precede domestic law. Thus, in the countries of the Anglo-Saxon “legal orbit” such as the United States and the current or former British Commonwealth states, the relevant formula is that “The law of nations is a part of the law of the land” (BLACKSTONE: 67) and thus a component of “common law” – which is automatically given priority over “domestic law.” In states which are outside the Anglo-Saxon legal orbit, international law must be first transposed, or “transformed,” to become effective. In the Bonn Constitution (i.e., Basic Law), Article 25 specifically states, for example:

 “The general rules of public international law constitute an integral part of Federal law. They take precedence over statutes and directly create rights and duties for the inhabitants of the Federal territory.”

As far as Japan is concerned, it has already made a lasting contribution by adhering to Article 9 of the Constitution, which is indeed a ‘cornerstone’ of the collective security of the United Nations.

 

VI.       An afterthought

Article 9 Japan clearly is a positive factor when we discuss whether Japan deserves a permanent seat in the UN Security Council. Japanese post-war governments have to be given credit for upholding Article 9 for so long, more than 60 years, and keeping its core provision about the non-use of force, intact. No doubt, in this respect the Japanese people also have played a crucial role in keeping politicians “on track”.

As far as UN Security Council reform is concerned, however, for the time being – and if no consensus can be reached by September this year – it may be advisable to only give a permanent seat to a prominent member of the ‘Global South,’ which is not represented at all so far. This country could be India, which might also be able and willing to initiate nuclear and general and complete disarmament under effective international control. If Japan and China could support India and ensure India's commitment to nuclear disarmament – granting that the other nuclear powers go along – comprehensive UN reforms could be scheduled for a second stage in the reform process, say five years from now, when the resolution of some of those issues vital for preserving world peace, like disarmament and the pacific settlement of disputes, have been brought well under way. Such selfless attitude of Japan would surely reap the highest benefit.

 

Literature cited:

ANDERSON, Stanley V., “Article Twenty of Denmark’s New Constitution,” The American Journal of International Law, vol. 50, no. 3 (1956) 

BLACKSTONE, William, Commentaries, vol.. IV (1769)

BURDEAU, Georges, Droit Constitutionnel et Institutions Politiques, Paris 1978

CHURCHILL, Randolph S., The Sinews of Peace. Post-War Speeches by W.S. Churchill, Cambridge 1949

Der Parlamentarische Rat 1948 – 1949, Akten und Protokolle, vol.. 2 – Der Verfassungskonvent auf Herrenchiemsee

FORSTHOFF, Ernst, in: Institut für Staatslehre und Politik (ed.), Der Kampf um den Wehrbeitrag, vol. 2., München 1953

HELLEGERS, Dale M., We, the Japanese People: World War II and the Origins of the Japanese Constitution. 2 volumes. Stanford: Stanford University Press, 2001

Italy and the United Nations, Report of a Study Group set up by the Italian Society for International Organization, New York 1959

LUNEY, Percy R. Jr., and TAKAHASHI Kazuyuki (ed.), Japanese Constitutional Law, Tokyo 1993

MacARTHUR, Douglas, Reminiscences, London 1964

van PANHUYS, Jonkheer H.F., “The Netherlands Constitution and International Law,” The American Journal of International Law, vol. 47 (1953)

La PERGOLA, Antonio and Del DUCA, Patrick, “Community Law, International Law and the Italian Constitution,” The American Journal of International Law, vol. 79 (1985)

Political Reorientation of Japan, Report of the Government Section, Supreme Commander of the Allied Powers, vol. 1, Washington D.C 1949

REUTER, Paul, La Communauté européenne du charbon et de l’acier, Paris 1953

SCHLICHTMANN, Klaus, Shidehara Kijûrô (1872-1951), Staatsmann und Pazifist eine politi­sche Biographie (Shidehara Kijûrô, Statesman and Pacifist. A Political Biography), Hamburg 1997

SHIDEHARA Kijūrō, Gaikō gojūnen, Tokyo 1951

TANAKA Hideo, 憲法制定家庭の覚書 Kempō seitei katei no oboegaki, Tokyo 1979

WHITNEY, Courtney, MacArthur: His Rendezvous with History, New York 1956


* This article is based on my previous article published in German: Klaus Schlichtmann, ‘Artikel 9 im Normenkontext der Staatsverfassungen. Souveränitätsbe­schränkung und Kriegsverhütung im 20. Jahrhundert’, Gewollt oder geworden, Referate des 4. Japanologentages der OAG in Tokyo, ed. Werner Schaumann, Munich: iudicium, 1996, pp. 129-50. The Japanese translation has been made from an English version translated by William R. Carter, which I updated, checked and shortened.

[1] Cited in MARUYAMA Masao, Thought and Behaviour in Modern Japanese Politics, London 1969, p. 308 (my emphasis); see also loc. cit., “Shidehara’s statement foresaw the new meaning of Article IX in a thermonuclear age and he curiously assigned Japan the mission of being a vanguard in international society.” Chapter 10, ‘Some Reflections on Article IX of the Constitution,’ is an adaptation of a report delivered at the regular ninthly meeting of the Association for the Study of Constitutional Problems.

 

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Human, All too Human

284 The means to real peace. -

No government nowadays admits that it maintains an army so as to satisfy occasional thirsts for conquest; the army is supposed to be for defence. That morality which sanctions self-protection is called upon to be its advocate. But that means to reserve morality to oneself and to accuse one‘s neighbour of immorality, since he has to be thought of as ready for aggression and conquest if our own state is obliged to take thought of means of self-defence; moreover, when our neighbour denies any thirst for aggression just as heatedly as our State does, and protests that he too maintains an army only for reasons of legitimate self-defence, our declaration of why we require an army declares our neighbour a hypocrite and cunning criminal who would be only too happy to pounce upon a harmless and unprepared victim and subdue him without a struggle. This is how all states now confront one another: they presuppose an evil disposition in their neighbour and a benevolent disposition in themselves. This presupposition, however, is a piece of inhumanity as bad as, if not worse than, a war would be; indeed, fundamentally it already constitutes an invitation to and cause of wars, because, as aforesaid, it imputes immorality to one‘s neighbour and thereby seems to provoke hostility and hostile acts on his part. The doctrine of the army as a means of self-defence must be renounced just as completely as the thirst for conquest. And perhaps there will come a great day on which a nation distinguished for wars and victories and for the highest development of military discipline and thinking, and accustomed to making the heaviest sacrifices on behalf of these things, will cry of its own free will: ,we shall shatter the sword‘ - and demolish its entire military machine down to its last foundations. To disarm while being the best armed, out of anelevation of sensibility - that is the means to real peace, which must always rest on a disposition for peace: whereas the so-called armed peace such as now parades about in every country is a disposition to fractiousness which trusts neither itself nor its neighbour and fails to lay down its arms half out of hatred, half out of fear. Better to perish than to hate and fear, and twofold better to perish than to make oneself hated and feared - this must one day become the supreme maxim of every individual state! - As is well known, our liberal representatives of the people lack the time to reflect on the nature of man: otherwise they would know that they labour in vain when they work for a ,gradual reduction of the military burden‘. On the contrary, it is only when this kind of distress is at its greatest that the only kind of god that can help here will be closest at hand.  The tree of the glory of war can be destroyed only at a single stroke, by a lightning-bolt: lightning, however, as you well know, comes out of a cloud and from on high. (R.J. Hollingdale, transl., Human, All Too Human. A Book for Free Spirits, Cambridge Texts in the History of Philosophy (1996), pp. 380-81)

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