Security Law in Japan

Members of the 374th Security Forces Squadron and the Japanese National Police-Fussa Division respond to a unexploded ordnance "incident" during a joint response training exercise March 27 at Yokota Air Base, Japan. (U.S. Air Force photo/Osakabe Yasuo)

By Cory Evans

Japan is the most powerful country in the world today to lack an official armed forces – all Japanese military units are formally considered self-defense forces only. How did this situation arise and what does it mean?

Japan adopted her Constitution in the immediate aftermath of World War II. Article 9 of the Constitution reads as follows:

(1) 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.

(2) 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.

The original public meaning here is clear: in Clause (1), Japan permanently surrenders her sovereign right to war. She also pledges not to use force to settle international disputes. If Japan ever has a dispute with another nation, she is here pledging not to use force to settle it. Similarly, sovereign rights are often thought to be alienable, so if Japan chooses to renounce her right to fight wars, that is her privilege.

Clause (2) contains two further pledges. First, Japan pledges (to the world, and to her own people) never to maintain land, sea or air forces. Second, Japan pledges (to the global community) that she will not recognize her own right to belligerency. Japan, therefore, pledges not to recognize her own right to be a party to a conflict in war.

There is much dispute about the original intention of the drafters of Article 9. However, this dispute is irrelevant to the original meaning of Article 9. Whomever wrote Article 9, and for whatever reason they chose to do so, it is clearly now part of the Constitution. Under the terms of this document, it seems clear that the self-defense forces currently based in Japan should be illegal. Yet they are not. What’s going on?

The first practical challenge to Article 9 came in 1950. After the outbreak of the Korean War, the 24th Infantry Division was deployed from Japan. Since Japan had no armed forces, that departure left a security vacuum. Supreme Commander MacArthur ordered Japan to create a 75,000 person National Police Reserve force to maintain order and to repel any possible invasion.

Repelling a possible invasion would seem to violate Article 9 and, in fact, socialist leader Suzuki Shigesaburo sued to have the Police Reserve declared unconstitutional. However, Japan unconditionally surrendered to the Allied Powers on August 14, 1945. Paragraph five of the signed Instrument of Surrender reads:

“[Japan] hereby commands all civil…officials to obey and enforce all proclamations, orders and directives deemed by the Supreme Commander of the Allied Powers”

In 1950, General MacArthur was the Supreme Commander of the Allied Powers. Japan was still under occupation. Therefore, Japan was obligated to comply with General MacArthur’s decree to create the National Police Reserve.

The Occupation of Japan ended with the signing of the Treaty of San Francisco in 1951. This Treaty, signed between forty-eight nations and Japan, formalized what is now called the San Francisco System. Chapter IV, Article Eight, Clause (a) of the Treaty reads, in part:

(a) Japan will recognize the full force of all treaties now or hereafter concluded by the Allied Powers for terminating the state of war initiated on 1 September 1939, as well as any other arrangements by the Allied Powers for or in connection with the restoration of peace.

The Instrument of Surrender is an example of the sort of treaty referenced in Clause (a), meaning that by this Clause Japan recognizes the orders of the Supreme Commander, including his order to create the Police Reserve.

These Treaty documents remain binding to this day. Subsequent treaty obligations determined by the Security Treaty between Japan and the United States of 1951 operate under this binding legal framework.

Japan was compelled to accept these Treaties as per the terms of her unconditional surrender in 1945. As a consequence of that surrender, from 1945 to 1952, Japan lacked the competence to determine her own security policy. She was bound then (and is bound now) to uphold the orders of the Supreme Commander and the Treaty of San Francisco, regardless of the legal wishes of her government. This is a special consequence of unconditional surrender under international law: for the duration of occupation the authority to set policy is yielded to the victorious power.

Japan’s 1949 pacifist constitution, then, is not a legally binding document with respect to her security policy, at least not where it conflicts with the orders of the Supreme Commander to create a Police Reserve.

The legal status of Japan’s armed forces is therefore as follows:

  1. Armed Forces: Right to maintain recognized under international law by the Treaty of San Francisco and other Treaties. Forbidden under 1949 Constitution.
  2. “Police Reserve” Forces: Right to maintain recognized under international law by the Treaty of San Francisco and other Treaties. Japan obligated to maintain by the Instrument of Surrender, orders of Supreme Commander MacArthur, Treaty of San Francisco and Security Treaty and other Treaties. Forbidden by 1949 Constitution; bar reversed by orders of Supreme Commander MacArthur.

This is the complicated legal basis for Japan’s Strategic Self-Defense Forces (JSDF). Efforts to bring clarity to this situation by amending the Constitution to bring it into line with the legal obligation to maintain the JSDF have recently dominated Japanese politics. They remain a highly controversial priority of the present administration of Prime Minister Shinzo Abe.

Japan is unique: a pacifist country maintaining a robust security presence due to decades-old legal obligations. Updating that legal status would bring additional political clarity to the situation, but would not change the character of Japan’s society, which remains profoundly skeptical of military force. It may seem like a contradiction to have a pacifist country with a self-defense force, but Japan’s government is just that.

About Cory Evans 5 Articles
Cory Evans is a professor at Baruch College. His research focuses on East Asia, classics, and mathematical game theory. E-mail him at: c.alexander.evans@gmail.com.