Declaring War on the Japanese Constitution: Japan's Right to Military Sovereignty and the United States' Right to Military Presence in Japan

Authors

Derek Van Hoften

Abstract

An analysis of the Japanese military and its relationship with the United States military necessarily involves an analysis of historical events, legal issues and international law. Specifically, it involves a detailed examination of the United States' post-war occupation of Japan and the new U.S.-drafted Japanese constitution that followed; of the intricacies of that constitution, including its renunciation of the right to belligerency or to maintenance of armed forces; of internal and external pressures to amend or reinterpret that constitution; of practical realities such as diplomacy, self defense and economic growth; of the legitimacy of a document called a constitution, for both its own citizens and the international community; of the validity of international treaties; and of the character or existence of international law.

This note first analyzes the right of Japan to amend its constitution or to maintain armed forces without amendment, and what that means for constitutional legitimacy; and second, the right of the United States to maintain a military presence in Japanese territory, and what that means for international treaties and international law. The author concludes by arguing that "might does make right," at least insofar as it dictates the United States' right to continued military presence in Japan and the Japanese right to amend its constitution and maintain military forces.

Recommended Citation

Derek Van Hoften, Declaring War on the Japanese Constitution: Japan's Right to Military Sovereignty and the United States' Right to Military Presence in Japan, 26 Hastings Int'l & Comp. L. Rev. 289 (2003).
Available at: https://repository.uclawsf.edu/hastings_international_comparative_law_review/vol26/iss2/4