広島平和科学 41巻
2020-03 発行

現代国際法と日本国憲法の整合性の解明 : 従来の憲法学通説の9条解釈の問題点

An Exploration of the Relationship between International Law and the Constitution of Japan: Critical Examinations of the Flaws of Traditional Interpretations of Article 9 by Constitutional Lawyers
篠田 英朗
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This essay provides an interpretation of Article 9 of the Constitution of Japan by illustrating the fact that the provision was originally designed to require Japan to comply with contemporary international law. This essay thus criticizes the traditional interpretation of Japanese constitutional lawyers, who sought to emphasize the distinctiveness of the provision by ignoring contemporary international law. This essay emphasizes that Article 9 (1) is intended to reinforce the Kellogg–Briand Pact of 1928 and the Charter of the United Nations of 1945. The Prohibition of“ war potential” in Article 9 (2) should be understood in line with the first clause.“ War” of“ war potential” of the second clause is in the end the illegal action in contemporary international law. Thus, the second clause only indicates the prohibition of the possession of the means to conduct illegal actions. The renunciation of “the right of belligerency of the state” of Article 9 (2) is the provision of non-recognition of the illegal concept in the eyes of international law. “The right of belligerency of the state” does not exist in contemporary international law. Article 9 (2) only repudiates the conception of the period of the Japanese Empire. In conclusion, Article 9 cannot be regarded as a provision to renounce the legitimate right of self-defense and the military means to exercise it.
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