Japan v Shigeru Sakata

• Jurisdiction: Japón
• Court: Supreme Court (Japan)
• Date: 16 December 1959

Japan, District Court of Tokyo.

Supreme Court.

(Justice Kotara Tanaka, Presiding Judge; Katsushige Kotani, Tamotsu Shima, Yusuke Saito, Hachiro Fujita, Matasuke Kawamura, Toshio Irie, Katsu Ikeda, Katsumi Tarumi, Daisuke Kawamura, Masuo Shimoiizaka, Kenichi Okuno, Kiyoshi Takahashi, Tsuneshichi Takagi and Shuichi Ishizaka, Justices.)

Japan

and

Shigeru Sakata and Others.

Treaties — Conclusion and operation of — Constitutional limitations — Constitutional provision renouncing war as “a sovereign right of the nation”— Whether such State retains right of self-defence — Constitutional validity of conclusion by such State of mutual security treaty — Constitution of Japan, Article 9 — Whether Security Treaty between United States of America and Japan consistent with Article 9 — Inherent right of individual and collective self-defence — The law of Japan.

Treaties — Operation and enforcement of — Legislation to give effect to treaty — Constitutional validity of such legislation — Constitutional provision renouncing war as a sovereign right of the nation — Conclusion of mutual security treaty between that State and another State — Whether Treaty consistent with constitutional provision — Constitution of Japan, Article 9 — Security Treaty between United States of America and Japan — Special Criminal Law to implement Treaty — Provisions protecting United States Forces and property in Japan — The law of Japan.

Treaties — Special kinds of — Treaties of alliance and security — Security Treaty between Japan and United States of America — Whether compatible with renunciation by Japan of right of war — Constitution of Japan, Article 9 — Whether Japan retains right of individual and collective self-defence — The law of Japan.

States as international persons — Demilitarization — Effect of constitutional provision renouncing war as a “sovereign right of the nation”— Whether State retains right of self-defence — Nature of right of self-defence — Constitutional validity of conclusion by such State of mutual security treaty — Constitution of Japan, Article 9 — Whether Security Treaty between United States of America and Japan consistent with Article 9 — Inherent right of individual and collective self-defence — Legality of stationing of United States forces in Japan — The law of Japan.

The Procurator appealed to the Supreme Court.

Held (by the Supreme Court): that the appeal must be allowed. The judgment of the District Court must be quashed and the case remanded to that Court. Under Article 9 of the Constitution Japan renounced the right of war, but retained the right of self-defence. The Constitution did not prohibit the stationing of foreign armed forces in Japan for the purposes of contributing to the maintenance of international peace and security in the Far East and to the security of Japan from external attack.

The Court said: “The substance of the original judgment is that Article 2 of the Special Criminal Law Enacted in Consequence of the Administrative Agreement under Article III of the Security Treaty between Japan and the United States of America is null and void, as it contradicts Article 31 of the Constitution on the premise that the stationing of the United States armed forces in Japan contravenes the provisions of the first part of paragraph 2, Article 9, of the Constitution1 and, therefore, cannot be permitted to stand.

“1. The Court will first examine the meaning of the first part of paragraph 2, Article 9, of the Constitution. It may be stated at the beginning that Article 9 of the Constitution was promulgated with a sincere desire for lasting peace by the people of Japan who, in consequence of the acceptance of the Potsdam Declaration as a result of the defeat of our country and reflecting upon the errors of militaristic activities committed by the Government in the past, have firmly resolved that never again shall we be visited with the horrors of war through the action of the Government. In conjunction with the spirit of international co-operation expressed in the Preamble and paragraph 2, Article 98, of the Constitution,2 it is an embodiment of the concept of pacifism which characterizes the Japanese Constitution. The Constitution proclaims in paragraph 1 of Article 9 that ‘the Japanese people sincerely aspire to an international peace based on justice and order’, and that ‘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’. Under paragraph 2 of the same Article it is further provided that ‘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.’

“Thus, this Article renounces so-called war and prohibits the maintenance of so-called war potential, but certainly there is nothing in it which would deny the right of self-defense inherent in our nation as a sovereign power. The pacifism advocated in our Constitution was never intended to mean defenselessness or non-resistance.

“As it is clear from the Preamble of the Constitution, we, the people of Japan, desire to occupy an honored place in international society, which is striving for the preservation of peace and the banishment of tyranny and slavery, oppression and intolerance for all time from the earth, and affirm that we have the right, along with and in the same manner as all the people of the world, to live in peace, free from fear and want.

“In view of this it is only natural for our country, in the exercise of powers inherent in a State, to maintain peace and security, to take whatever measures may be necessary for self-defense, and to preserve its very existence. We, the people of Japan, do not maintain the so-called war potential provided in paragraph 2, Article 9, of the Constitution, but we have determined to supplement the shortcomings in our national defense resulting therefrom by trusting in the justice and faith of the peace loving people of the world, and thereby preserve our peace and existence.

“This, however, does not necessarily mean that our recourse is limited to such military security as may be undertaken by an organ of the United Nations, such as the Security Council, as stated in the original decision. It is needless to say that we are free to choose whatever method or means deemed appropriate to accomplish our objectives in the light of the actual international situation, as long as such measures are for the purpose of preserving the peace and security of our country. Article 9 of the Constitution does not at all prohibit our country from seeking a guarantee from another country in order to maintain peace and security of the country.

“Now, therefore, let us consider the legal intent of paragraph 2 in the light of the purport of Article 9 elucidated above. It is entirely proper to interpret that the prohibition of the maintenance of war potential contained in this paragraph was intended for the purpose of preventing Japan from maintaining the so-called war potential of its own, exercising its own control and command over the same, and thereby instigating a war of aggression renounced forever in the first paragraph of the Article. Putting aside the question of whether paragraph 2 prohibits the maintenance of war potential even for self-defense, what has been prohibited by this paragraph is the possession of war potential of our own over which we can exercise the right of command and supervision. In final analysis, it means the war potential of our country; and consequently, it may be properly construed that the provision of paragraph 2 does not include foreign armed forces even if they are to be stationed in our country.

“2. The next point in issue is whether the stationing of the United States armed forces in Japan is contrary to the purport of Article 9, paragraph 2; Article 98; and the Preamble of the Constitution. Inasmuch as the stationing of the United States troops in Japan is predicated upon the Security Treaty between Japan and the United States, now under consideration, determination of the constitutionality of this Treaty must of necessity precede the determination of this point.

“The Security Treaty was concluded on the same day as the Treaty of Peace with Japan (Treaty No. 5, April 28, 1952), and it maintains a very close and inseparable relationship with that Treaty. That is to say, under the proviso contained in Article 6 (a) of the Treaty of Peace, it is stated that ‘Nothing in this provision shall, however, prevent the stationing or retention of foreign armed forces in Japanese territory under or in consequence of any bilateral or multilateral agreements which have been or may be made between one or more of the Allied Powers’, thus, recognizing stationing of foreign troops within the territorial limits of Japan. The Security Treaty is a treaty concluded between Japan and the United States regarding stationing of the United States armed forces, the foreign armed forces recognized in the above provision of the Treaty of Peace. This provision was approved and signed by a majority of forty countries out of sixty United Nations countries.

“According to the Preamble of the Japan-United States Security Treaty, the Treaty of Peace recognizes that in consideration of the fact that Japan will not have the effective means to exercise its inherent right of self-defense at the time of coming into force of the Treaty of Peace, and since there is a necessity of coping with the danger of irresponsible militarism, Japan, as a sovereign nation, has the right to enter into collective security arrangements. Further, the Charter of the United Nations recognizes that all nations possess an inherent right of individual and collective self-defense. It is clear, therefore, that the purpose of the Japan-United States Security Treaty is to provide, as a provisional arrangement, for the defense of...