The Washington International Law Journal publishes global perspectives on international legal issues while fostering the development of student analysis. The Journal’s professional articles and student comments cover diverse legal and geographical terrain and offer novel approaches to international, foreign, and comparative law. To further cross-cultural dialogue on foreign law, the Journal publishes English-language translations of Chinese, Korean, and Japanese legal materials.
Volume 26 | Number 1 | January 2017
Article 9 in the Post-Sunakawa World: Continuity and Deterrence Within a Transforming Global Context
John O. Haley
26 WASH. INT’L. L.J. 1 (2017)
The 1959 Supreme Court Grand Bench (en banc) decision in Sakata v. Japan (the Sunakawa case) was the first Supreme Court decision on Article 9 and the constitutionality of Japan's defense policies. In the precedent-setting decision, all fifteen justices endorsed the view that under Article 9 Japan retained a fundamental right of self-defense and could enter into treaties for mutual security. In the absence of an apparent or "clear" violation, the courts, Sunakawa held, must defer to the judgment of the political branches on the issue of constitutionality. The Court thereby established the outer parameters for judicial review and the scope of legislative and executive discretion. For half a century the decision has remained the controlling interpretation of Article 9. Reserving the right to adjudicate future cases only in the event of an apparent violation, the Court enabled successive Governments to make defense policy decisions based on political and public consensus and policy concerns circumscribed by only a possibility of judicial review. The result has been remarkable. Since 1959 Japan has pursued a consistent set of policies that have both expanded Japanese defensive military capacity and enabled effective deterrence within a transforming global context.
The varied interpretations of Article 9 that have been expressed over the years, I would emphasize, have been political not legal—or at least not as constitutional law. Yet a political consensus has endured that enables Japan to possess, as detailed below, the most technologically advanced defensive military in East Asia. No amendment of the Constitution has been necessary for the consistent development of defensive forces and a security alliance with the United States that arguably has for three generations ensured peace in East Asia through deterrence. As recently expressed by Satsuki Eda, the chair of the opposition Democratic Party’s research commission on the constitution, under Article 9 Japan has both the legal right of individual self-defense, as well as the right of collective self-defense. Nonetheless, the political constraints have been significant as Japanese Governments with few exceptions have declined since 1960 to enter into any other collective security arrangements much less to exercise a right of individual or collective self-defense.
Contemplated Amendments to Japan’s 1947 Constitution: A Return to Iye, Kokutai and the Meiji State
Carl F. Goodman
26 WASH. INT’L. L.J. 17 (2017)
The post World War II American Occupation of Japan was a huge programmatic success. Its disarmament, repatriation, land reform, and health programs put a defeated Japan on the road to recuperation, while providing a military shield that enabled Japan to focus on recovery from the War and rebuilding the country and economy.
Constitution and Narrative in the Age of Crisis in Japanese Politics
26 WASH. INT’L. L.J. 75 (2017)
The most significant political issue facing the legal world in Japan is the drive for constitutional revision led by Prime Minister Shinzo Abe and his Liberal Democratic Party (LDP). This paper situates the revisionist movement within the context of postwar Japanese politics before drawing on theoretical literature in critical legal studies to analyze the LDP’s draft constituion to reveal the magnitude of the proposed changes and to assess the risk they pose to the rule of law in Japan. The paper argues that the proposed draft constitution eschews the languages of the current constitution like “a universal principle of mankind”, “individual”, or “ fruits of the age-old struggle of man to be free”, and forgoes the basic legal rationality in favor of a mythical narrative of national essence, thereby reducing law to the realm of politics and inhibiting the ability of the former to serve as a check against the latter.
Interpretation of the Pacifist Article of the Constitution by the Bureau of Cabinet Legislation: A New Source of Constitutional Law?
26 WASH. INT’L. L.J. 99 (2017)
This article analyzes recent change of Japanese governmental interpretation of Article 9 of the Constitution of Japan concerning the right of collective self-defense. This governmental interpretation of Article 9 has been elaborated by the Bureau of Cabinet Legislation. This article criticizes a recent critique of this situation by main stream Japanese constitutional scholars as “crisis of constitutionalism”.
The End of Constitutional Pacifism?
26 WASH. INT’L. L.J. 125 (2017)
On September 19, 2015, the National Diet of Japan enacted a series of statutes which enable the government to exercise the right of collective self-defense. One of the statutes also enables the government to dispatch the Self-defense Forces to take charge of logistics for foreign military forces waging wars. This enactment symbolises Japan’s turn of course regarding its long-held stance on constitutional pacifism. Pacifism maintained under the Constitution of Japan was not pure pacifism rejecting any use of force. The successive governments held that the right of individual self-defense, in other words, the right to use force in order to repel on-going or imminent, unlawful armed attack against Japan itself, could be exercised under the Constitution. However, past governments maintained that the right of collective self-defense, which is to be invoked when foreign states are under military attack and request support from Japan, is clearly prohibited under Article 9 of the Constitution.
A Review of Who Rules Japan?: Popular Participation in the Japanese Legal Process
26 WASH. INT’L. L.J. 137 (2017) (book review)
Who Rules Japan? is a valuable addition to the literature on Japanese law. Seven substantive chapters explore important recent developments in a wide range of fields. The ten authors—including leading experts in criminal justice, labor law and other fields—all are highly qualified and all have undertaken extensive research. Each of the chapters breaks new ground; and collectively they provide a wealth of new information, new methodological approaches, and new theoretical insights.
Supreme People’s Court Annual Report on Intellectual Property Cases (2015) (China)
Xiaohan Lou, Mingyuan Song, & Chao Yu
26 WASH. INT’L. L.J. 147 (2017).
The Supreme People’s Court of China began publishing its Annual Report on Intellectual Property Cases in 2008. The annual reports, published in April each year, summarize and review new intellectual property cases. This translation includes all 32 cases and 38 legal issues of the 2015 Annual Report. It addresses various areas of law related to intellectual property, including patent law, trademark law, copyright law, unfair competition law, antitrust law, new plant product patent law, and laws related to procedural and evidentiary issues in intellectual property cases. While China is not a common law country, these cases serve as guidelines for lower courts in adjudicating intellectual property disputes.
Garbage Day: Will Italy Finally Take Out Its Trash in the Land of Fires?
Jason A. Slaybaugh
26 WASH. INT’L. L.J 179 (2017)
The illegal dumping and burning of waste and toxic waste in southern Italy has caused such immense environmental damage that the disaster is now known as “Italy’s Chernobyl”. In early 2014, the Italian Senate passed the Land of Fires Decree, a sweeping new law aimed at solving a problem that Italy has historically failed to adequately address. Despite the broad grants of power and the new crime created, the lack of political will renders these new tools useless and means little will likely change. Italy can no longer put this fire out by itself. As such, Italy should look to its European neighbors and the EU for help with enforcement. A regional approach enables external accountability and prevents the bad actors from simply shifting the illegal waste disposal activity to a less regulated area like the Balkans.