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Australian Journal of Asian Law

Abstract from Volume 12 No 1 (2010)

Emergence of the Right to Live in Peace in Japan

Hudson Hamilton is a JD Candidate, University of Washington School of Law.

The Constitution of Japan enshrines pacifism in two provisions: the Preamble, which recognises the right of all peoples to live in peace, and art 9, which renounces war and prohibits the maintenance of war potential. As sweeping as these provisions appear, the Supreme Court of Japan has largely undermined their legal effect. On 17 April 2008 the Nagoya High Court breathed new life into the pacifism of the Constitution when it found a violation of art 9 in the deployment of Japan’s Self-Defense Forces to Iraq, and further held that the right to live in peace is enforceable in certain situations. Less than a year later, the Okayama District Court followed the Nagoya High Court in recognising the right to live in peace, and provided more detail about the right’s substance. Although both cases were ultimately dismissed for lack of standing, their recognition of the right to live in peace is a significant development in art 9 litigation. As recognised by the Nagoya and Okayama courts, the right to live in peace can function as a means to enforce art 9.

(2010) 12(1) Asian Law 35

   
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