Gegenwärtige Diskussion über Artikel 9 der japanischen Verfassung – Die „Neuinterpretation“ als Rechtsproblem

Abstract

What kind of state activity is prohibited by Article 9 of the Japanese Constitution? Is it legally permissible to send the Self-Defense Forces to foreign territories? If so, for what purpose and to what extent? Could maintaining the Self-Defense Forces as such not be seen as a violation of Article 9? Such questions are regarded as “classic” problems in Japanese constitutional law today. However, it does not mean that these questions have lost their relevancy. On the contrary, they are now becoming more and more pertinent in constitutional debates in Japan. The cause was the cabinet decision on July 1, 2014, which changed its previous official interpretation of Article 9, without amending the constitutional text itself. The new interpretation permitted the exercise of collective self-defense, which the government had declared to be unconstitutional for more than 50 years. Subsequently, on March 29, 2016, new national security bills came into force, which expanded the scope of operations of the Self-Defense Forces. According to the government, these new bills comply with constitutional requirements. While most Japanese constitutional law scholars regard them as unconstitutional, it is by no means clear from the wording of Article 9 whether the exercise of the right of collective self-defense is prohibited or not: the Article itself says nothing about individual or collective self-defense. To comprehend this problem clearly, it is essential to understand the extensive debate on Article 9 up to today, and also the history of the national security policy of Japan. In this article, the author sketches a short history of the political debate over the last few years, culminating in the new national security bills. Then he describes the 70-year-long academic controversy surrounding the interpretation of Article 9, and analyses the diverse interpretations critically. Next, he outlines the history of the rearmament of Japan, the further development of the Self-Defense forces, and the huge gap between written promise and reality, which has great relevance to the legal debate. After illustrating some important court decisions on Article 9, the author compares the “classic” interpretation with the “new interpretation,” and relates the criticism by scholars. Finally, he illuminates some peculiarities of the debate on Article 9, and shows a possible way to a constructive discussion in the future.