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Vancouver World Peace Forum 2006 Lecture - Roberto Zamora's Handout

The legal similitude between the Costa Rican constitutional system and the Japanese Constitution

  1. Introduction.

The written and non-written constitutional rights existing within Costa Rica grant people living in the country, regardless of what country they are originally from, the right to peace: to have peace and to live in peace, in a country with no army.
In Japan, the constitution has Article 9. This set of principles is so good that their legal implications are even better and deeper than those in the Costa Rican legal system, and go further towards completely granting the right to peace.

  1. The first Principle:
    Aspiring sincerely to an international peace based on justice and order.

As it is explicitly included within the text, the right to peace has been granted very obviously here. This means that since joining the UN in 1953, Japan is under the obligation to respect any mandatory resolutions from UN organs. Herein lies the first difference with the Costa Rican legal system.
In Costa Rica, a case was set in the constitutional hall of the Supreme Court of Justice. On the basis of violation of International Law, being against the UN Charter regulations, the government was forced to withdraw the support it was giving the US-UK so-called “coalition of the willing” when the court decided for the applicant in this case.
Article 48 of Costa Rica's Constitution sets the right of every single person, without any form of discrimination, to defend their fundamental and human rights. Article 7 of Costa Rica's Constitution, as well as setting the State's obligation to respect international obligations, consequently sets a Right for the inhabitants to order the State to fulfill these obligations. This is what occurred in this specific case, in which the right of people to intervene in public affairs was also exercised, as granted in Article 23 of the Interamerican Convention on Human Rights, to which Costa Rica is Party.
In Japan, people tried to apply the valid, right and constitutional measures to protect the same right under similar constitutional schemes, and the Supreme Court rejected it. The Court “washed their hands,” saying that it was a political resolution out of its jurisdiction. However this is a false excuse, as no Governmental act is out of the Right of the Constitution.

  1. The Japanese people forever renounces war as a sovereign right of the nation.

The declaration of a sovereign right is so fundamental and so powerful that it is only THE NATION that can derogate it. No single governmental act can overpower this, and no government can make any action concerning war without the approval of the Nation, namely the people. This creates a procedural rule with the effect that any governmental resolution or decision taken cannot be valid if the government never sought the people's opinion or vote. This even includes the self defense treaty. The message here is that self defense forces are illegal, and as this is a sovereign right, it is by nature inalienable, perpetual and unbeatable. In the case of Costa Rica, somehow, this right is granted by the Constitutional Law as a whole. According to the Costa Rican Constitution, State Organs can only act within the powers and attributions given in the Constitution. Since the constitution does not give the power or attribution to any of the State Organs to engage in or go to war, the people, by claiming this in the court, can exercise their right to renounce war.

  1. The Japanese people forever renounces the use or the threat of use of force as means of settling international disputes.

There is not much to say here, as a renouncement is a renouncement. This goes together with one of the most respected principles of international law, which is precisely the renunciation of the use or the threat of use of force as a way of settling international disputes. How can you renounce the threat of use of force while maintaining an army? If you understand this under the good faith principle included under the Vienna Convention on the law of treaties, since it is an international act under international law, this means that Japan renounced having an army, as seen in the next and final principle.
Costa Rica, having created a Customary Rule of Law under International Law, is bound to renounce the use or the threat of use of force as a way to settle international disputes. This Customary International Rule is, according to the Supreme Court, integrated into the constitution.

  1. Land, sea and air forces, as well as other war potential will never be maintained.

This is quite clear. As far as I know, never means never, and as far as I know Japan has the so-called “self defense force” which is in any case a force. This clearly shows that such forces cannot be maintained under the constitution. This applies not only to Japan but also to the US military presence, as the only way to change this declaration is through the consent of the people. This is also based on the fact that this resolution definitely concerns war, implying again that US bases cannot be located in Japan. In Costa Rica, Article 12 of the Constitution abolishes the Army, and in actuality Costa Rica does have no army.

The main point is that in Japan, the magnificent constitutional development of Article 9 exists, and yet it is being trashed. The Court and the totalitarian government of Junichiro Koizumi are trying to destroy it, modifying Article 9 to legalize the forces. Because of the constitutional procedural rule, this means that we are in one of the most important moments of Japanese postwar history. The Japanese people will have to choose between war, death, destruction, Hiroshima and Nagasaki; or peace, life, and the benefits of living in a country which apparently and until some years ago, wasn't wasting so much money on the nonsense of an army.

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