Academic

Hamilton on M?ri v. Japan & the Constitutionality of Japan's Self-Defense Forces

By Lawrence Solum

Hudson Hamilton (University of Washington School of Law) has posted M?ri v. Japan: The Nagoya High Court Recognizes the Right to Live in Peace (Pacific Rim Law & Policy Journal, Vol. 19, No. 3, 2010) on SSRN. Here is the abstract:

The following is a translation of the Nagoya High Court?s decision in M?ri v. Japan, a case challenging the constitutionality of Japan?s deployment of its Self-Defense Forces (?SDF?) to the Middle East in connection with the U.S.-led occupation of Iraq. Beginning in December of 2003, Japan deployed ground and air forces of the SDF to the Middle East, including three C-130H ?Hercules? transport aircraft which were used to airlift coalition forces and supplies between Kuwait and Baghdad. In response, more than 5,700 citizens, represented by over 800 attorneys, filed lawsuits in eleven district courts across the country in one of the largest coordinated litigation efforts in modern Japanese history. In M?ri, the plaintiffs argued that the deployment violated their ?right to live in peace? [heiwateki seizonken], provided in the Preamble of the Constitution of Japan, which they defined as ?the right to live in a Japan that does not engage in war or the use of military force.? They also argued that the deployment violated Article 9 of the Constitution, which renounces war and prohibits the use or threat of force. They demanded an injunction against the deployment, a confirmation that the deployment was unconstitutional, and ¥10,000 each (approx. US$100) in damages.

The case turned on whether the right to live in peace is a ?concrete right? [gutaiteki kenri], meaning a right that can be enforced in court. The plaintiffs argued that the Preamble, Article 9, and the individual rights provided in Chapter III of the Constitution together guarantee the right to live in peace. The government argued that the right to live in peace is merely an abstract concept, not an enforceable right, and therefore the plaintiffs lacked a legal interest in the lawsuit necessary to establish standing.

The Nagoya District Court held that the plaintiffs lacked standing and dismissed the case without addressing the constitutionality of the deployment under Article 9. However, the district court recognized a concrete aspect of the right to live in peace, reasoning that because peace is the foundation of all human rights making their enjoyment possible, the right to live in peace is enforceable when combined with other human rights provisions.

The Nagoya High Court affirmed the district court and dismissed the appeal on standing grounds, holding that the deployment did not infringe on appellants? right to live in peace. However, the high court stated in dicta that, in certain situations, the right to live in peace is a concrete right. The high court also stated that the integration of the SDF?s air transport activities with the use of force by coalition forces in an international military conflict constituted the use of force by the SDF in violation of Article 9. The Nagoya High Court?s finding of a violation of Article 9 was the first since the Sapporo District Court?s decision in the Naganuma case 35 years before, and the first to be entered as a final judgment. The high court?s recognition of the right to live in peace was also the first since Naganuma, breaking from a series of lower court decisions that dismissed the right to live in peace as merely an abstract concept. Less than a year later, the Okayama District Court followed the Nagoya High Court in recognizing the right to live in peace in a similar SDF Iraq Deployment case, and provided further detail regarding the right?s substance. The Nagoya and Okayama decisions suggest the emergence (or revival) of a new human right in Japan: the right to live in peace.

Full post as published by Legal Theory Blog on February 25, 2011 (boomark / email).