Abstract
Can Japanese policy makers, while continuing to make their first priority Japan’s own security as an independent sovereign state, steer a more innovative course toward building and strengthening community systems? Also, can they change their thinking regarding international relations, which is currently based on state sovereignty and the cumulative effects of many bilateral relationships in which stronger nations dominate weaker ones, to a new approach based on community systems, in which the goal is to realize regional or global interests, and in which the opinions of subnational actors as well as states are respected and taken into account?
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On April 17, 1996, the governments of these two nations issued a document titled ‘JapanU.S. Joint Declaration on Security: Alliance for the 21st Century.’ This suggests new possibilities for the U.S.-Japan security agreement, which is one of the United States’ strongest bilateral agreements in Asia. Two mutually opposing vectors are present in the Joint Declaration, namely, the desire to achieve regional security in Asia, and the desire to strengthen the bilateral alliance. In 6.2, I will utilize concepts of the sociology of law and systems theory to explain the theoretical background that accounts for the coexistence of these opposing factors.
Ministry of Foreign Affairs, Gaiko seisho (Blue book of diplomacy) 1991, pp. 48–50. Ministry of Foreign Affairs, Gaiko seisho (Blue book of diplomacy) 1992, pp. 53–55.
The United Nations Forces in Korea differed from the United Nations forces envisioned in the Charter in the following ways: (i) The Soviet Union did not vote on Security Council Resolution 83 (June 25, 1950). (ii) That resolution called for the immediate cessation of hostilities and withdrawal of North Korean forces, and recommended all member states to render every assistance to the United Nations to that end; however, it was not binding. (iii) The forces in Korea were not UN forces based on special agreements under Article 43; although their use of the UN flag was authorized by Security Council Resolution 84 (July 7, 1950), the forces provided by sixteen nations were under the unified command of the United States.
During the Gulf Crisis, nearly all the nations of the world agreed that Iraqi President Saddam Hussein’s action, a use of force by one UN member state against another, violated Article 2 paragraph 4 and was subject to the provisions of chapter VII of the Charter. But although their response in the form of Operation Desert Storm was based on chapter VII, it is not clear on which provision(s) of that chapter it was based. Accordingly, it is not clear whether it was a response by a collective security system or a response of collective self-defense. See Hirose, K., “Wangan kiki ni okeru ho to seiji” (Law and politics in the Gulf Crisis), pp. 55–81; Matsui, Wangan senso to Kokusai Rengo (The Gulf Crisis and the United Nations), pp. 69–84; Schachter, “United Nations Law in the Gulf Conflict,” pp. 452–73; Rostow, “Until What? Enforcement Action or Collective Self-Defense?” pp. 506–16; Weston, “Security Council Resolution 678 and Persian Gulf Decision Making,” pp. 516–35.
In the complex system that I refer to as the global community, the processes of creating and maintaining peace and security also are complex. First, there is an interaction between issues affecting peace (which are situated in the international arena) and issues affecting human rights and development (which are situated in domestic arenas). Second, ‘static’ peace, the mere absence of war or use of force in a conflict, is not enough; there must also be ‘dynamic’ peace, i.e., grounds to believe that in any conflict efforts will be made to achieve a pacific settlement. Third, both substantive conditions and procedural conditions for peace must be in place, the former to prevent conflicts from arising and the latter to bring them to settlement if they do arise. (For a detailed discussion of this point, see Hirose, K., “Kokusai shakai no kozo to heiwa chitsujo keisei no mekanizumu” [The structure of the international community and mechanisms for international peace and security], pp. 112–14.)
Watanabe, “Sengo fukko kara togo ni mukete no Nishi Yoroppa” (Western Europe from its postwar recovery to the approaching integration), pp. 168–72.
Sato, T. “Reisengo no Kokusai Rengo Kensho ni motozuku Anzen Hosho Rijikai no katsudo” (The post-Cold War activities of the Security Council based on the United Nations Charter), pp. 142–55.
Royama, “‘Reisengo’ kokusai seiji no yukue” (Whither ‘post-Cold War’ international politics?), pp. 268–69.
I have made frequent reference to the consciousness, will, capability, and behavior of a nation or its people, without explicitly defining those terms. Within the conceptual framework of systems and behavior, I distinguish between them as follows. Behind Japan’s behavior as an actor there is Japan as a system, which can be understood as the set of the Japanese people. One aspect of that set can be understood as the consciousness of the Japanese people, which gives rise, in the aggregate, to the will of the Japanese people. The will of the Japanese people becomes the legal fiction of the national will or will of the state. If the state has the capability, power, or resources to achieve its will, that will is then manifested in the state’s behavior as an actor.
Ministry of Foreign Affairs, Gaiko seisho (Blue book on diplomacy) part 1, 1995, pp. 3134, and part 1, 1996, pp. 12–20.
Ministry of Foreign Affairs, Gaiko seisho (Blue book on diplomacy) part 1, 1995, pp. 3436, and part 1, 1996, pp. 20–21.
Office of International Security Affairs, Department of Defense, United States Security Strategy for the East Asia-Pacific Region; for a commentary by Nye on this strategy, see Nye, “The Case for Deep Engagement,” pp. 90–114.
Funabashi, “Nichibei anpo saiteigi no zenkaibo” (A complete anatomy of the redefinition of the U.S.-Japan Security Treaty), p. 28; Nye, “The Case for Deep Engagement,” pp. 94, 100–101.
The survey was conducted by the Institute of International Relations, Sophia University, in August 1995, to mark the fiftieth anniversary of the end of World War II. For full details and an analysis and theoretical interpretation of the findings, see Naya and Wessels (eds.), Gabanansu to Nihon (Governance and Japan), pp. 229–37.
Internationalism or transnationalism has existed as a given for Japan ever since it encountered, adapted to, and became a member of the international community toward the end of the nineteenth century. In other words, as a latecomer to that community, Japan has merely accepted its existing structure; it has lacked the dynamism either to actively maintain or to change that structure. In a sense, the pacifism of Japan’s 1946 constitution has had a negative effect on the country, inasmuch as even after becoming an economic power it has not awakened to its own potential to play a creative role in internationalism or transnationalism and it has remained unable to transcend one-state pacifism or the unilateral pursuit of prosperity. The analysis presented in 6.2 applies the methodology of 5.1 to Japan’s behavior.
A community cannot exist without common ideals of this kind (another example being the principle of the outlawry of war). A common ideal is formed, not through compromise among different views, but through a dialectical resolution of the tension among them. When, in May 1996, Japan presented to the World Trade Organization (WTO) a proposal concerning ‘trade and the environment,’ an issue regarding which developed nations and developing nations have very different views, a delegate from a developed nation is said to have complained privately that Japan had not ‘showed its face’ in the document (Mainichi Shimbun, December 4, 1996). The writer of the Mainichi article, Takeshi Kobayashi, commented, “That is because the proposal was merely a compromise produced by adding everything up and dividing by two,” implying—mistakenly, in my view—that the only way for Japan to ‘show its face’ would be to take a stand on either one side or the other.
Preventive Diplomacy Study Group, Funso kaiketsu ni okeru NGO no yakuwari ni kansuru kisoteki chosa (Basic study on the role of NGOs in conflict resolution), pp. 1824; Lean, Frank Buchman, pp. 341–62; Hamlin, Moral Re-Armament and Forgiveness in International Affairs, pp. 9–11; Mottu, The Story of Caux, pp. 114–16; Luttwak, “Franco-German Reconciliation.”
International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (July 8, 1996), General List, no. 95, p. 105.
A s ahi Shimbun, “Kaku shiyo ‘ippanteki niwa iho’” (The use of nuclear weapons is ‘generally illegal’), July 9, 1996, p. 1; Mainichi Shimbun, “Kakushiyo wa gensoku kokusaiho ihan” (Use of nuclear weapons a violation of international law in principle), July 9, 1996, p. 1.
For example, among the judges who voted against 2(E) of the dispositif, the reasons of negative voting were devided. Schwebel (U.S.) and Guillaume (France) did not support the second sentence because they felt that it ought to have explicitly recognized the legality of deterrrence for defence of the vital interests of States (ibid., “Dessenting Opinion of Vice-President Schwebel,” p. 1; ibid., “Separate Opinion of Judge Guillaume,” paras. 7,9). Shahabudeen (Guyana) also dit not support the second sentence, because of the opinion that it ought to have explicitly recognized the illegality of the nuclear weapons (ibid., “Dissenting Opinion of Judge Shahabuddeen,” pp. 1–3). Weeramantry (Sri Lanka) and Koroma (Sierra Leone) had the opinion that the threat or use of nuclear weapons is unlawful in all circumstances without exception. Therefore, they supported neither the first sentence nor the second sentence (ibid., “Dissenting Opinion of Judge Weeramantry,” pp. 1–3; ibid., “Dissenting Opinion of Judge Koroma,” pp. 1–3).
Judge Schwebel says “Fifty years of the practice of the States does not debar... the legality of the threat or use of nuclear weapons in certain circumstances.” Ibid.,“Dessenting Opinion of Vice-President Schwebel,” p. I
Judge Guillaume says “the Court... ought to have carried its reasoning to its conclusion and explicitly recognized the legality of deterrence for defence of the vital interests of States.” Ibid., “Separate opinion of Judge Guillaume,” para. 9.
Once the illegality of the use or threat of use of nuclear weapons has been established, the next goals likely will be to outlaw and abolish the development, production, and storage of such weapons (this aspect is referred to as the legality of nuclear weapons per se). In this book the discussion will center specifically upon the legality of the use of nuclear weapons or the legality of the use or threat of use of nuclear weapons. These issues could be discussed separately, even if the legality of nuclear weapons per se is not settled. Also, they could be a prerequisite to develop into the discussion of the legality of nuclear weapons per se.
There are, of course, some scholars of international law who recognize the raison d’être or role of nuclear deterrence under certain conditions. See Singh and McWhinney, Nuclear Weapons and Contemporary International Law, pp. 323–24. For details, see 6.3.6.1.
Nuclear Ethics by Joseph S. Nye, Jr. (especially pp. 42–58) is an inquiry into the morality of nuclear deterrence, which also makes thought-provoking comments on its relationship to international law. For details, see 6.3.6.2.
Technically, nuclear weapon is “a general term for a weapon that utilizes the radioactive energy released by nuclear fission or nuclear fusion to cause destruction, death, or injury” (Umesao, Nihongo dai jiten [Dictionary of the Japanese language], p. 335). The physicist Toshiyuki Toyoda proposes a basic definition of nuclear weapons that will not need to change as weapons technology progresses, viz., “devices that use nuclear energy, which is a million times more powerful than the energy of chemical reactions, to kill people or destroy property” (Goldblat and Toyoda, “Kakuheiki no ihosei to kakuhaizetsu no gutaian” [The illegality of nuclear weapons and a concrete proposal for their abolition], p. 56).
United Nations Secretary General, Report of the Secretary General: Effect of the Possible Use of Nuclear Weapons and the Security and Economic Implications for States of the Acquisition and Future Development of These Weapons, p. 1. Similar language has appeared in many subsequent General Assembly Resolutions and treaties among UN member states, and in the ICJ Advisory Opinion of July 8, 1996.
Professor Philip Morrison of the Massachusetts Institute of Technology, who participated in the Manhattan Project that developed the first atomic bomb in 1945, particularly emphasized this point when asked what characteristics of nuclear weapons make them qualitatively different from other weapons (personal communication, 1983).
Richard A. Falk, “The Shimoda Case: A Legal Appraisal of The Atomic Attacks upon Hiroshima and Nagasaki,” pp. 759–793.
The UN Charter gives the primary responsibility for maintaining international peace and security to the Security Council. The permanent members of the Security Council are all states that have been formally recognized by the NPT as possessing nuclear weapons. Therefore, it might be acceptable to think in this simplified way, and to extrapolate this idea to the subsequent discussion of the relationship between current international law and nuclear deterrence.
Here, by first strike I mean a first use of force that is contrary to the prohibition on the use of force in substantive law. This definition excludes the use of force for self-defense, which presupposes an illegal act by the other party. Scholars of international law generally agree that a ‘first use’ would not be a violation of international law if it were conducted preemptively, that is, in self-defense, but I have excluded such ‘first use’ from my definition because, in the conceptual scheme that I am developing here, a preemptive ‘first use’ cannot be situated within substantive law, but must be viewed as a concept of procedural law. See Cassese, Violence and Law in the Modern Age, pp. 57–58.
In particular, the general principles of humanitarian law prohibit a nuclear first strike. For more on this point, see ibid., pp. 50–52.
It is not in the nature of sovereign states to readily accept strict inspections or judicial proceedings conducted by external bodies. Most sovereign states will do their best to uphold the agreements into which they enter, for the sake of their honor or reputation. (This helps to explain the observation that the more difficult the process of building agreement among sovereign states, the greater the significance of what is attained.) However, because value-rational behavior of this kind cannot be expected from all states, and also because irrationality and accidents cannot be eliminated, a major part of the significance of law lies in its making available procedural law and enforcement measures as a final braking mechanism to prevent violations. See Yamada, Kakuyokushi senryaku no rekishi to riron (The history and logic of the strategy of nuclear deterrence), pp. 323–25.
For further discussion of the sociological characteristics of law and the characteristics of international law that are derived from these concepts, see Hirose, K., “Kokusai shakai to ho” (International society and law), pp. 12–13 and 29–30; and Kawashima, “‘Ho’ no shakaigaku riron no kisozuke” (The sociological foundations of law), pp. 339–45.
For the distinction between interest-oriented behavior and role-expected behavior, see 2.2 and 2.3. The use of nuclear weapons or other force for the sake of a state’s own security is interest-oriented behavior, but the same action performed as a sanction in response to an illegal act for the sake of the security of the community to which it belongs is role-expected behavior.
Because the UN Charter prohibits, in principle, the use of force as a means of implementing national policy between states (Article 2, paragraph 4), the procedural aspect of self-defense is even more explicit therein compared to the permissive interpretation of self-defense found in traditional international law. This is because (a) the procedure to be followed in the event of a violation of Article 2, paragraph 4, is stipulated in the provisions of chapter VII for a collective security system (Articles 3950); (b) self-defense under Article 51 is designed to function in case the collective security system does not function; and (c) that right is made conditional on the collective security system not having functioned and is placed under the control of the Security Council. See 5.5.3 and 6.2.2. See also Kelsen, The Law of the United Nations, pp. 791–93.
For a discussion of this thinking, see Cassese, op. cit., p. 57–58. However, it has been argued in the United States that the core function of that nation’s nuclear weapons should be confined to deterring nuclear attack, i.e., that the United States should no longer threaten to respond with nuclear weapons to conventional, chemical, or biological attacks. See National Academy of Sciences, op. cit., pp. 15–17.
The National Academy of Sciences, even while urging that nuclear weapons be prohibited, also proposes that nuclear deterrence be retained to prevent violations. However, it recommends that both the United States and Russia should reduce their nuclear arsenals to a few hundred warheads. Ibid., pp. 17–18.
Deterrence is fundamentally a reciprocal relationship. See Yamada, op. cit., p. 282. There are five nuclear-weapon states: the United States, the Soviet Union (now Russia), Britain, France, and China. However, in this book I am not only setting aside the historical process by which their number reached five, but am focusing on presenting the doctrine of nuclear deterrence in the abstract, and I will therefore pursue my discussion with regard mainly to the direct confrontation between the United States and the Soviet Union. However, I do not deny the political importance of the fact that, when China developed nuclear capability in the 1970s, the fixed concept of two-way deterrence gave way to a concept of tripartite deterrence involving the Americans, the Soviets, and the Chinese; for further discussion of this subject, see Kosaka and Momoi, op. cit., p. 33.
See Paul de Visscher, “Legal aspects concerning the installation of the first Nuclear Missiles on Belgian Soil,” pp. 145; Singh and McWhinney, Nuclear Weapons and Contemporary International Law, pp. 323–24.
For example, when asked about the legality of nuclear weapons, Eugene B. Skolnikoff, Director of the Center for International Studies at Massachusetts Institute of Technology, expressed the following reservations: “The only question... is what are its implications with regard to the morality or immorality of deterrence, or its legality or illegality. That is, based on the position you are taking, one could argue that deterrence threatening the use of nuclear weapons is itself totally immoral. In important ways, that is a defensible position, but at the same time I do not see the alternative to deterrence” (personal communication, October 14, 1983). Questions of this kind can be settled by distinguishing between uses of nuclear weapons that are illegal in substantive law and uses that fulfill a role in procedural law.
A system, such as a legal system, that has a clear goal, structure, and meaning(s) is a good object for analysis using the model of a role system. See Reisman, op. cit., pp. 54–57, for an interpretation of role differentiation in the NPT from the viewpoint of international law.
In fact, according to Yamada (op. cit., pp. 311–15), prior to an agreement being achieved between nuclear-weapon states and non-nuclear-weapon states, “the promotion of the NPT, mainly by the United States and the Soviet Union, actually resulted in the spread of nuclear weapons to France and China;” that is, it occasioned “the paradox that the effort to prevent the spread of nuclear weapons actually encouraged it, and that arms control, which was intended to increase the stability of nuclear deterrence, undercut it instead.”
See Naya, “Kaku Fukakusan Joyaku no kokyuka to arata na kadai” (The indefinite extension of the Nuclear Non-Proliferation Treaty and related new issues), pp. 2–15.
United Nations General Assembly, Declaration on the Prohibition of the Use of Nuclear and Thermo-Nuclear Weapons, Resolution 1653 (XVI), 1961. The vote was 50 to 20 in favor, with 26 abstentions.
Hirose, Y., “Kakuheiki shiyo no ihosei ni kansuru kosatsu” (A study of the illegality of the use of nuclear weapons), p. 33.
The Japanese government’s opinion, in the draft of its Written Statement to the ICJ, that “the use of nuclear weapons cannot be said to violate international law” caused a stir in Japan. In fact, this passage was deleted from the final version, which read: “... the use of nuclear weapons is clearly contrary to the spirit of humanity that gives international law its philosophical foundation.” In an interview, Minoru Tanba, then-Director of the Treaties Bureau of the Ministry of Foreign Affairs, commented, “In our original draft, we incorporated three points: ‘respect for humanitarianism,’ ‘determination of the legality of nuclear weapons by interpretation of positive international law,’ and ‘the hope that nuclear weapons will be abolished.’ In general, these three appear to be logically incompatible. When we look at the real world in terms of security, it is an undeniable fact that nuclear weapons serve as a deterrent that helps to maintain our peace and security. It is absolutely essential to create an era in which humanity does not have to rely on nuclear weapons. But it is also a fact that it will take time to eliminate them completely. In the process of achieving disarmament, also, a contradiction can be seen in the real world, namely, the fact that as long as nuclear weapons exist they are playing a certain role” (Asahi Shimbun, June 11, 1994).
Akira Hayashi, then the Ministry of Foreign Affairs’ Director-General for Arms Control and Scientific Affairs, used the word `dilemma’ to describe the situation of the Japanese government, because it favors the establishment of legally binding provisions requiring nuclear-weapon states to make efforts toward nuclear disarmament and prohibiting their use of nuclear weapons against non-nuclear-weapon states, but it must reconcile these wishes with the behavior required of it by political conditions, namely, the U.S.-Japan security partnership (Asahi Shimbun, April 29, 1995). His comment aptly expresses the difficulty of managing the problem in which law and politics must eventually be reconciled, and taking action in such a way as to gain the understanding of all of the various parties involved when faced with a complex international environment and an issue.
In this regard, India’s rationale for conducting underground nuclear tests on May 11 and 13, 1998, was that it needs nuclear devices in order to fully guarantee its own security. In the words of one commentator, the Indian government took the attitude “Why should only the existing nuclear powers have such weapons? If India is not permitted to have them, then no nation should be permitted to have them.” (Yamada, K., “Rakkan no Nihon seifu ni shogeki” [A shock to the optimism of the Japanese government]). When Takashi Hiraoka, Mayor of Hiroshima, paid a courtesy visit to Indian Vice-President Krishnan Kant on May 11 and called for the abolition of nuclear weapons, Kant replied that he should appeal to the nuclear powers first (Mainichi Shimbun, May 13, 1998). India’s ‘nuclear logic’ is that “the Non-Proliferation Treaty (NPT) and the Comprehensive Test Ban Treaty (CTBT), which firmly establish the U.S.A., Russia, the U.K., France, and China as the five nuclear powers, are unequal treaties. Although the abolition of nuclear weapons is the ultimate goal, for our own security we will not renounce the nuclear option as long as there are nations that possess such weapons” (Mainichi Shimbun, May 13, 1998).
Meanwhile, Pakistan responded to India’s challenge by conducting its own underground tests on May 29 and 31, 1998. Pakistani Foreign Minister Gohar Ayub Khan told Associated Press that his country would retaliate firmly in response to any attack by a neighboring country. Also, on May 29, a Pakistani Information Ministry official said that Pakistan would do what was necessary for its defense, security, and sovereignty (Mainichi Shimbun, May 30, 1998).
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Kawaguchi, K.H. (2003). How Can Japan Help to Change the World?. In: A Social Theory of International Law. International Law in Japanese Perspective, vol 10. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-4978-7_7
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