The Reception and Use of International Law in Modern Japan, 1853–1945

Abstract

Japan takes a special place in global history as the only non-western power among the great powers which shaped the course of world politics during the late nineteenth and early twentieth century. Within less than half a century, Japan rose from a peripheral power in the shadow of China to the hegemonic power in Northeast Asia and was accepted as equal power (at least on the formal level) into the hitherto all-European family of nations. As such, it also played a significant role in the development of the modern international legal order as it is today. Japan’s accession to the hitherto all-European concert of powers in 1905 demonstrated that the competent use of international law was not the exclusive domain of western powers anymore and that international law had shed its last vestiges of being a merely “European public law” and become a truly universally applied law. And yet, studies of the reception of international law in Japan, which largely focus on the early period between 1853 and 1905, often conclude their analysis with a mixed appraisal of the process, as they characterize it as being overly passive, Euro-centric and “positivistic” (a word of negative connotation in the Japanese context) and therefore merely derivative. An alternative interpretation, however, places Japan at the vanguard of a revisionist movement that challenged the hegemony of western international legal discourse and sought to establish an autonomous order in East Asia in the second phase of its engagement with international law between 1905 and 1945. This discourse ties in with the so-called “Asian values” debate and postmodernist criticism of international law in recent times. However, both narratives, as the inherent contradiction indicates, are misleading in their representation and analysis of the role which international law played in modern Japanese internationalist relations. This article aims to present a more coherent and consistent picture of international law in Japan by pursuing the whole trajectory of its reception and application in Japan’s foreign politics, from the opening up of the country in 1854 until the final demise of Japan’s imperial project in 1945. It argues that western international law during the initial phase of its reception had a purely functional role, as a signal of “civilization” and co-operation towards the western power, and as an argumentative weapon of expansion towards its East Asian neighbours. As such, it served its overall purpose well, as Japan managed to renegotiate the odious “unequal treaties” twenty-five years after the last was concluded and by 1905 had established itself as the hegemonic power in Northeast Asia. Considering this functional role, it is therefore not surprising that Japanese experts and politicians took a passive, Euro-centric and “positivistic” attitude towards the law. It did not serve Japan’s interests to criticize international legal practice until 1919, nor would it be realistic to expect that Japan had the power to change it, even if it wanted to. However, it is also for the same reasons that Japan was inwardly reluctant to go along with the “Wilsonian” changes of international law in the 1920s, as multilateral institutions and the outlawry of war served Japan’s purposes less than the classical law. It is merely for reasons of prestige and fear of abandonment that Japan would go along with these developments until 1933. Moreover, it would be erroneous to confuse Japan’s apparent “positivism” with a lack of criticism in general. Feelings of estrangement and inner reservations co-existed with the apparent compliance right from the start and were carefully nurtured by successively felt slights and discriminations on the political side, whatever their claims to reality. This estrangement engendered a tradition of critical studies of international law in Japan which specifically addressed the political, economic, social and historical contingency and particularity of “universal” international law. This approach had its heyday during the war years between 1931 and 1945, when Japan actively challenged the political status quo of the international order and tried to carve out its own autonomous sphere in East Asia. However, contrary to expectations, international lawyers, although advising the Japanese authorities and justifying Japan’s aggressive policy with their arguments, were not its most ardent supporters, but argued from a defensive and losing position. Faced with the challenge of inventing an “East Asian International Law”, they warned against an irrational iconoclasm that would uncritically destroy the normative status quo and argued for a gradual evolvement of normative concepts on the basis of the existing order. Thus they tried to defend the law and their profession against a rising tide of criticism and contempt of international law in the public, with diminishing success. The frequent violations of international law in the theatres of war gave testimony to the eroding forces of “total war” that undermined their position and would have swept them away if surrender had not intervened in 1945. However, it is also for this reason that Japan’s reception of international law does not serve as an historical example of “challenging the normative hegemony of the West”, as more recent commentators would have it with a view to other rising powers, but rather as a warning reminder of the necessity of rational and constructive negotiation of concepts of normative order today.