Abstract
Modern international law is understood to be a law applicable among all the States in equal measure in their relations with each other. It is defined as “the body of rules which are legally binding on states in their intercourse with each other.”1 It contains “principles and rules of conduct which states feel themselves bound to observe, and therefore, do commonly observe in their relations with each other.”2 It is defined by scholars as a law, which makes no distinction between large and small States, east or west, north or south countries. As Oppenheim’s latest edition declares: “International law does not recognize any distinctions in the membership of the international community based on religious, geographical or cultural differences.”3 Despite all the differences in their size and economic strength, political orientation or religious and cultural identity, they are all bound by its rules and are supposed to conduct their international relations on the basis of its tenets. Indeed, sovereign equality of States is supposed to be a fundamental principle of international law. In spite of wide and glaring inequalities amongst States, the equality of States is one of the most familiar and frequently reiterated principles of modern international law. Indeed, equality is traditionally accepted, along with sovereignty and independence, as an “absolute” and “unquestionable” principle upon which international law is based. As Vattel, in his classical exposition, declared:
*The author gratefully acknowledges his deep appreciation and indebtedness to the Max Planck Institute for Comparative Public Law and International Law, especially to its Directors, Professor Doctor Jochen Abr. Frowein and Professor Doctor Rudiger Wolfrum for all their help in providing him with a scholarship and an opportunity to work at the Institute in the summer of 2001, and collect material for this paper which is part of his project on “A Fresh Look at the History of International Law: Asian Perspective.”
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References
Oppenheim’s International Law, Vol. I, Peace (edited by Sir Robert Jennings and Sir Arthur Watts), 9th edn. (London, 1997), p. 4.
Starke’s International Law, (edited by I. A. Shearer) 11th edn., (London, 1994), p. 4.
Oppenheim, note 1, p. 87.
See quoted in R. P. Anand, “Sovereign Equality of States in International Law”, Recueil des cours, vol.197 (1986–11), p. 53.
Quoted in Anand, pp. 53–54.
Oppenheim, note 1, p. 87.
Ibid., pp. 87–88. R.P. Anand, p. 3.
See Starke, note 2, p. 7.
Ibid., pp. 7–8.
Ibid., p. 8.
See R.P. Anand, Origin and Development of the Law of the Sea: History of International Law Revisited, (The Hague, 1983), Chapter 2 on “Freedom of the Sea and commercial shipping in the Indian Ocean”, pp. 10–39.
See K. M. Panikkar, Asia and Western dominance (London, 1954), pp. 24–25.
In the ancient world India was the only pepper producing country and had no rivals. It was only in later centuries that Indonesian Islands became famous as pepper-producing regions. See O. W. Wolfers, Early Indonesian Commerce (Ithaca, N.Y., 1967), p. 66.
See quoted in J. A. E. Morley, “The Arabs and the Eastern Trade”,Journal of the Royal Asiatic Society, Singapore Branch, vol. 22, part I (March 1949), p. 146.
See for details Anand, note 11, Chapter 3, pp. 40 et seq.
See Auguste Toussaint, History of the Indian Ocean (Trans, by June Guicharnaud) (Chicago, 1966), p. 98; see also Panikkar, note 12, p. 28.
See for a detailed discussion of the European motives and efforts to reach India Anand, note 11, chapter 3, pp. 40–50.
See for more details about the struggles and fighting amongst the European countries for domination in Europe and Asia, Anand, note 11, Chapter 4, pp. 72 et seq.
See Gerrit W. Gong, The Standard of ‘Civilization ’ in International Society (Oxford, 1984), pp. 130 et seq.; see how the Portuguese went to China but could not settle there and were thrown out in G. B. Sansom, The Western World and Japan (New York, 1951), pp. 99–105.
Gong, ibid., pp. 136 et seq.; see also Daniel R. Headrick, The Tools of Empire: Technology and European Imperialism in the Nineteenth Century (Oxford, 1981), pp. 43 et seq.
See Sansom, note 19, p. 168. Twice, in 1274 and 1281, the Mongol Emperor tried to invade Japan but failed for want of naval competence.
Sansom, at p. 106.
Ibid., pp. 106–107.
Ibid., p. 169.
See Yohiyuki Noda quoted in A. J. G. M. Sanders, “The reception of western law in Japan”, The Comparative and International Journal of Southern Africa, vol. XXVIII, No. 2 (March 1995), pp. 286–287.
See Sansom, note 19, pp. 106, 171.
See Hidemi Suganami, “Japan’s entry into international society”, in Hedley Bull and Adam Watson, The Expansion of International Society (Oxford, 1984); p. 186.
See Sansom, note 19, pp. 172–173.
See F. C. Jones, Extraterritoriality in Japan and the Diplomatic Relations resulting in its Abolition 1853–1899 (New York, 1970), p. 6; Sansom, note 19, pp. 171–172.
See Sansom, note 19, p. 171.
See Suganami, note 27, p. 186.
See Jones, note 29, pp. 6–7.
See Suganami, note 27, pp. 186–187; J. E. Hoare, Japan’s Treaty Ports and Foreign Settlements: The Uninvited Guests 1858–1899 (Kent, 1994), p. 1.
See Suganami, note 27, pp. 187–189.
See W. G. Beasley, “The foreign threat and the opening of the ports”, Chapter 4 in Marius B. Jansen (ed.), The Cambridge History of Japan vol. 5,The Nineteenth Century, (Cambridge, 1989), pp. 267–268.
See President Fillmore’s letter in Jones, note 29, pp. 7–8; see also Jansen, note 35, p. 269.
See Jones, note 29, pp. 8–9.
See Beasley, note 35, pp. 269–270.
See Jones, note 29, pp. 10–11.
See Beasley, note 35, p. 270.
Quoted in ibid., p. 270.
See Jones, note 29, pp. 12–13.
Ibid., p. 14.
See Sansom, note 19, pp. 282–283.
See ibid., p. 283.
See for a detailed and interesting account of Townsend Harris negotiations with the Japanese, Sansom, note 19, pp. 283–292; Gong, note 19, pp. 168–169; Jones, note 29, pp. 15–19.
See Gong, note 19, pp. 169; Sansom, note 19, p. 300–301.
See Gong, note 19, p. 169.
See Jones, note 29, p. 21; Sansom, note 19, p. 292.
Sansom, note 19, p. 295.
See ibid., p. 297.
See ibid., pp. 298–299.
See Jonss, note 29, pp. 23–24.
Sansom, note 19, pp. 299–300
See Jones, note 29, p. 24.
See Gong, note 19, p. 172.
Sansom, note 19, p. 307.
Quoted in Jones, note 29, p. 27.
Ibid., p. 47. 16
Quoted in Gong, note 19, p. 25.
Jones, note 29, p. 47.
See Gong, note 19, p. 173.
See Sansom, note 19, pp. 378–385.
See Hiarakawa Sukehiro, “Japan’s turn to the West”, in Marius B. Jansen,The Cambridge History of Japan vol. 5, The Nineteenth Century (Cambridge, 1989), pp. 448–460.
Ibid., pp. 463–465.
See ibid., pp. 470–472.
See Gong, note 19, pp. 186–187.
See Gong, note 19, pp. 14–35.
The French legal system was the one which first of all came to the attention of the Japanese when a Tokugawa official traveled to France in 1867 and praised it in his writings. They greeted the French law with enthusiasm and, in 1869, the Meiji Government ordered the translation of all five French law codes, hired an eminent French lawyer to adapt these laws in Japan and to teach Japanese lawyers, but later it was abandoned. See Sukehiro, note 64, pp. 473–75.
See A.J.G.M. Sanders, “The reception of Western law iili Japan”, The Comparative and International Law Journal of Southern Africa, vol. 28, no. 2 (March 1995), pp. 281–283.
See for an interesting account of Harris’ negotiations with the Japanese Hirohiko Otsuka, “Japan’s early encounter with the concept of the ‘Law of Nations’”, in Japanese Annual of International Law, No. 13 (1969), pp. 42–43; Shigeru Kuriyama, “Historical aspects of the progress of international law in Japan”, Japanese Annual of International Law vol. 1 (1957), p. 1.
Ibid., p. 46.
See Fujio Ito, “One hundred years of International Law Studies in Japan”, Japanese Annual of International Law vol. 13 (1969), pp. 20–21.
See Otsuka, note 71, p. 44.
See Susumu Yamauchi, “Civilization and International Law in Japan during the Meiji Era (1868–1912)”, Hitotsubashi Journal of Law and Politics vol. 24 (1996), p. 1–2; also Otsuka, note 71, p. 45.
See Otsuka, note 71, pp. 48–49.
He had even been unsuccessfully invited by the Government of Japan to become its legal advisor. SeeYamauchi, note 75, p. 3.
Thomas Erskine Holland, Lectures on International Law (London, 1933), p. 88. Also quoted in Yamauchi, note 75, pp. 4–5.
William Edward Hall, A Treatise on International Law 8th edn. (Oxford, 1924), p. 47.
Henry Wheaton, Elements of International Law (The Literal Reproduction of the Edition of 1866 by Richard Henry Dana, Jr.), (Oxford, 1936), p. 15.
Henry Wheaton, Elements of International Law with a Sketch of the Science 1st edn. (1836), p. 44, quoted in Mark Weston Janis, “American versions of the International Law of Christendom: Kent, Wheaton and the Grotian Tradition”, Netherlands International Law Review, vol. XXXIX (1992/1), pp. 56–57.
Wheaton, p. 57.
James Lorimer, The Institutes of the Law of Nations, vol. 1 (Edinburgh, 1883), pp. 1101–1102.
See Yamauchi, note 75, p. 2.
See Iwakura Ko Jikki or The Record of Duke Iwakura, quoted in an excellent historical paper by Onuma Yasuki, “’Japanese International Law’ in the Prewar Period - Perspectives on the Teaching and Research of International Law in Prewar Japan”, in Japanese Annual of International Law, no. 29 (1986), pp. 28–29.
Quoted in Hisashi Owada, “Japan, International Law and the International Community”, in Nisuke Ando (ed.), Japan and International Law: Past, Present and Future, (The Hague, 1999), p. 353; see also Onuma Yasuki, note 85, p. 29.
Ibid.
See’ibid., pp. 29–31.
See ibid., pp. 33–35.
See Gong, note 19, pp. 177–180.
Quoted in Gong, note 19, p. 190.
The Korean peninsula was regarded by the Japanese “as a dagger pointed at Japan’s heart, a source of constant irritation and menace to Japan’s security”, Hidemichi Akagi, “Japans’s Foreign Relations, 1542–1936”, quoted in M. A. Aziz, Japan’s Colonialism and Indonesia (The Hague, 1955), p. 5.
See Akira Iriye, “Japan’s drive to great-power status”, in The Cambridge History of Japan vol. 5, Nineteenth Century (Cambridge, 1989), chapter 12, pp. 745–746.
See ibid., p. 747.
See Mark R. Peattie, “The Japanese Colonial Empire, 1895–1945” in Peter Duus, The Cambridge History of Japan vol. 6, The Twentieth Century (Cambridge, 1989), pp. 224–225.
Akira Iriye, note 93, pp. 766–767.
See ibid. p. 756.
Quoted in Yamauchi, note 75, p. 11.
See Fukuzawa Yxikichi, quoted in Yamauchi, note 75, pp. 6–8.
Uchimura Kanzou, quoted 4n Yamauchi, note 75, p. 8.
See Sakuye Takahashi, Cases on International Law during the Chino-Japanese War (Cambridge, 1899), p. 2; Takahashi later wrote another book in Japanese, The Precedent Practices of the War-Time International Law (1904), and came to be regarded as “the founder of international law studies in Japan”.See Fujio Ito, note 73, p. 25.
See quoted in Yamauchi, note 75, p. 10.
Ibid., p. 10.
Takahashi, note 101, p. viii.
Ibid., p. 3–4.
Ibid., p. 12.
Ibid., pp. xv-xvi.
Ibid., p. vi.
T. E. Holland, Studies in International Law (Oxford, 1898), pp. 113–115.
Ibid., pp. 128–29.
See Gong, note 19, pp. 185–186.
See Fujio Ito, note 73, p. 23.
See note 97 above and text relating thereto.
See Gong, note 19, p. 195.
See quoted in ibid., p. 196.
Ibid., pp. 197–198.
Storry, Japan and Decline of the West in Asia, p. 29, quoted in Gong, note 19, pp. 196–97.
Storry, A History of Modern Japan, p. 127, quoted in Gong, ibid.
See Gong, note 19, p. 197.
See quoted in Hisashi Owada, note 86, pp. 354–355.
See Akira Iriye, note 93, p. 769; Aziz, note 92, pp. 7–9.
See ibid., pp. 769–770.
Ibid., pp. 773–774.
Ibid., pp. 774–775.
Seven professors from the prestigious Tokyo Imperial University asserted in a memorial they submitted to the Prime Minister Katsura Taro in June 1903 that “a fundamental settlement” of the Manchurian problem was needed if Japan were to secure its position in Korea. See Akira Iriye, note 93, p. 775.
Ibid., pp. 775–777.
Dr. Ariga wrote La Guerre Russo-Japanaise us point de vue continental et la droit international in 1908 with a preface by Professor Paul Fauchille, which he later translated into Japanese in 1911. Likewise, Takahashi wrote International Law applied to the Russo-Japanese War with the Decisions of the Japanese Prize Court in 1908. See Fujio Ito, note 73, pp. 23–24.
Viscount Kikujiro Ishii, “The Permanent Bases of Japanese Foreign Policy”, Foreign Affairs,V61. II, No. 2 (January 1933), p. 225.
See Akira Irye, note 93, p. 777; Aziz, note 92, p. 6; Mark R. Peattie, “ The Japanese Colonial Empire 1895–1945”, Chapter 5 in Peter Duus (ed.), note 95, pp. 226–229.
See quoted in B.V.A. Roling, International Law in an Expanded World (Amsterdam, 1960), p. 27.
See Gong, note 19, p. 197.
L. Oppenheim, International Law (London, 1905), pp. 32, also quoted in Gong, note 19, p. 30.
Wheaton,Elements of International Law, 6th edn. (1929), p. 30. See also Gong, note 19.
Wheaton,Elements of Intenational Law, 4th edn. (London, 1904), pp. 22–23. See also Gong, note 19, pp. 27–29.
See Aziz, note 92, pp. 7–12.
Gong, note 19, p. 183.
Koreans were effectively deprived of freedom of assembly, association, press and speech. It was said by a Japanese journalist in Korea that “so completely were the people’s liberties restricted that the entire peninsula could be said to have militarized”. See quoted in Peattie, note 95, p. 231.
Aziz, note 92, p. 16.
Ibid., pp. 13–21.
Japanese colonial policy was said to be “European in origin and orientation, and its adoption by Japanese administrators and publicists had much to do with the fact that Japan entered its colonial tasks at the zenith of European colonialism. Its characteristics thus stemmed from the assumptions and predilections common to the ‘New Imperialism’ of the late nineteenth-century Europe and derived largely from European colonial empires whose territories were geographically dispersed and racially diverse.” Peattie, note 173, p. 238.
See for a general description of Japan’s colonial policy Peattie, note 73, pp. 244–270.
Onuma, note 85, p. 41.
See ibid.
See Ikuhiko Hata, “Continental Expansion 1905–1941”, Chapter 6 in Peter Du us, note 95, p 280.
See Peattie, note 95, pp. 227–228.
See quoted in Gong, note 19, p. 174.
See Akira Iriye, note 93, pp. 777–779.
Quoted in Aziz, note 92, p. 23.
See Hata, note 144, p. 280.
T. Takeuchi, War and Diplomacy in the Japanese Empire, (New York, 1935), p. 189, quoted in Aziz, note 92, p. 24.
George W. Keeton, China, the Far East and the Future (London, 1949), p. 147, quoted in Aziz, note 92, pp. 24–25.
See Hata, note 144, pp. 280–281.
See Aziz, note 92, p. 25.
See George H. Blakeslee, “The Japanese Monroe Doctrine”, Foreign Affairs vol. II, no. 4, (July 1933), pp. 673–674.
See Hata, note 144, p. 281 ; Aziz, note 92, p. 25.
Quoted in Blakeslee, note 157, p. 671.
Quoted, ibid.
Quoted, ibid.
Ishii, note 128, pp. 224–225.
Ibid., p. 227.
Ibid., p. 228.
Blakeslee, note 157, p. 675.
Ibid., pp. 675–676.
Ibid., p. 676.
Ibid.
See ibid., pp. 680–681.
The Four-Power Treaty was concluded between Great Britain, United States, France and Japan; the Five-Power Treaty between Great Britain, United States, Japan, France, and Italy; the Nine-Power Treaty between Great Britain, United States, Japan, France, Italy, China, Belgium, the Netherlands and Portugal. See Aziz, note 92, p. 26.
See ibid., pp. 26–27; Hata, note 144, pp. 282–283.
See quoted in Hata, note 144, p. 283.
Ibid.
Quoted in Aziz, note 92, p. 27.
See ibid., pp. 27–28.
See quoted in ibid., p. 29.
See Hata, note 144, pp. 290–295.
See for details about the establishment of the so-called State of Manchukuo and its relations with Japan, Aziz, note 92, pp. 30–45; Hata, note 144, pp. 296–298.
See Hata, note 144, pp. 295–297.
See ibid., pp. 297–298.
See Peattie, note 95, pp. 243–244.
See ibid., pp. 263–266.
See quoted in Aziz, note 92, p. 51.
Quoted in Aziz, ibid. pp. 51–52; see also C. J. Chacko, “The Japanese Monroe Doctrine”, Indian Year Book of International Affairs, 1953, pp. 114–115.
Aziz, note 92, pp. 52–56.
See Hata, note 144, pp. 300–302.
See Aziz, note 92, p. 54.
Hata, note 144, p. 302.
See Hata, note 144, pp. 302–305.
Hata, ibid., pp. 306–307.
See Aziz, note 92, pp. 65–66.
Ibid., pp. 77–78.
See Alvin D. Coox, “ The Pacific War”, Chapter 7 in Peter Duus, note 95, pp. 338–339.
Quoted in ibid., p. 136.
Besides loss of nearly half of the 231 US Army and 89 naval aircraft in Oahu, eight battleships damaged or sunk, several destroyers and other ships crippled, American casualties numbered 4,575. See Coox, note 190, pp. 342–343.
See scathing criticism of the attitude of the Japanese Government during the 1930s and 1940s by eminent Japanese scholar of international law, Onuma Yasuki note 85.
Ibid., pp. 345–346.
Ibid., pp. 347–348.
Ibid., pp. 348–349.
Ibid., pp. 370–377.
See Charles L. Kades, “Introduction: Representative Government in Japan”, Political Reorientation of Japan, September 1945 to September 1948, Report of the Government Section Supreme Commander of the Allied Powers (1949), p. 89.
See Yasuo Ishimoto and Kazuya Hirobe, “Development of Post-war Japanese Studies in Public International Law, Part 1: 1945–1964”, Japanese Annual of International Law, vol. 30 (1987), pp. 93–95.
Quoted in Kades, note 198, p. 89.
See Ishimoto and Hirobe, note 199, p. 96.
Yasuaki Onuma, “Japanese War Guilt, the ‘Peace Constitution1, and Japan’s Role in Global Peace and Security”, in Machael K. Young and Yuji Iwasawa (eds.), Trilateral Perspectives on International Legal Issues: Relevance of Domestic Law and Policy (1996), p. 525; see also Ishimoto and Hirobe, note 199, pp. 96–97.
See Ishimoto and Hirobe, note 199, p. 97.
See Lawrence W. Beer, “Peace in theory and practice under Article 9 of Japan’s Constitution”, Marquette Law Review, vol. 81 (Fall 1998) pp. 816–818; Kades, note 198, pp. xiii-xiv.
See Kade, note 198, pp. 82–90.
Mac Arthur suggested at the time that the Constitution had been drafted by the Japanese, over a period of five months, involving “painstaking investigation and frequent conference between the Japanese Government and his headquarters”. See “Political Reorientation of Japan”, note 189, p. 657; see also Koseki Shoichi, The Birth of Japan’s Postwar Constitution, (ed. and transi, by Ray A. Moore), Oxford, (1997), pp. xii, 4ff.
Philip Alston, “Transplanting Foreign Norms: Human Rights and other International Legal Norms in Japan”, European Journal of International Law, Vol. 10 (1999), pp. 628–629.
“Japan’s Commission on the Constitution: The Final Report”, quoted in Alston, note 207, p. 630.
Some 130 constitutions were ratified since 1970. See Lawrence W. Beer, “Peace in theory and practice under Article 9 of Japan’s Constitution”, Marquette Law Review, vol. 82 (1998), p. 818.
Quoted in Wakamizu Tsutsui, “Conceptions of Japan’s Security affecting cooperation with the United Nations”, Victoria University of Wellington Law Review vol. 27, no. 1 (April 1997), pp. 3–4.
Tsutsui, note 210, p. 4.
See ibid., pp. 4–5.
Ishimoto and Hirobe, note 199, pp. 102–103.
Ibid., pp. 110–113.
Ibid., p. 114.
See quoted in Yoshiro Matsui, “United Nations activities for peace and the Constitution of Japan”, in Machael K. Young and Yuji Iwasawa (ed.),Trilateral Perspectives on International Legal Issues: Relevance of Domestic Law and Policy (1996), p. 496.
See Onuma, note 202, p. 530.
Ibid., p. 529.
Ibid., p. 530.
See Yoshiro Matsui, note 216, p. 499, quoting the opinion of Yashaki Onuma. Emphasis added.
Ibid., pp. 499–500.
See quoted ibid., p. 596 fn.
See quoted ibid.
See Beer, note 204, p. 821.
See discussion on the basis of several Japanese cases, Beer, note 204, p. 821.
See for an extensive discussion of the Sunakawa case, Kisaburo Yokota, “Renunciation of War in the new Japanese Constitution as interpreted by the Supreme Court in the Sunakawa case”, Japanese Annual of International Law, vol. 4 (1960), pp. 16–31.
Matsui, note 216, p. 497.
Onuma, note 202, p. 531.
See quoted in Matsui, note 207, p. 498.
Quoted ibid.
See Robert M. Uriu, “Japan in 1999: Ending the century on an uncertain note”, Asian Survey, vol. 40, no. 1 (Jan-Feb. 2000), pp. 147–149;see also Michael J. Green and Katsuhisa Furukawa, “New ambitions, old obstacles: Japan and search for an arms control strategy”, Arms Control Today (July-August 2000), p. 17.
See Uriu, note 231, p. 147; Green and Furkawa, note 222, p. 17.
Quoted in Matsui, note 2 J 6, p. 500.
Ibid., p. 500.
See Akiho Shibata, “Japanese Peacekeeping Legislation and recent developments in UN Operations”, Yale Journal of International Law, vol. 19 (1994), p. 308.
See ibid., p. 308; see also Onuma, note 202, pp. 532–533.
Matsui, note 216, pp. 505–506.
See Professor John H. Jackson, “Western View of Japanese International Law Practice for the Maintenance of International Economic Order”, in R. P Anand, “Japan and International Law in Historical Perspective”, in Nisuke Ando, note 86, p. 395.
Yasuki Onuma, note 202, p. 528.
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Anand, R.P. (2004). Family of “Civilized” States and Japan: A Story of Humiliation, Assimilation, Defiance and Confrontation. In: Studies in International Law and History. Developments in International Law. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-5600-6_2
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