Monday, August 31, 2015

Law and Power in International Politics and Japan’s Security Bill

Japan’s debate on the security bill poses a fundamental and universal question to international politics, which is the relation between law and power. Therefore, I would suggest that both academics and practitioners pay more attention to the debate in Nagatacho, even if they are not well associated with Japan. Ever since Hugo Grotius published “On the Law of War and Peace”, human beings have been elaborating to control and restrict wars and conflicts. During the interwar period, US Secretary of State Frank Kellogg and French Foreign Minister Aristide Briand even tried to illegalize the war through the Kellogg Briand pact. However, it failed to stop World War II. In international politics, no authorities are above the sovereign state, which makes it extremely difficult to restrict the war through entirely legal approaches. Quite importantly, Japan is revising such legal restrictions of the domestic constitution, in order to adapt to a power oriented world, while preserving the rule of law.

In order to understand such unprecedented endeavor, we need to review the differences between in law application and enforcement to an individual citizen’s crime in a domestic case and a state crime in an international case. While individuals are subject to the three branches of state authority, none of sovereign states are subject to supranational bodies. Domestic laws are applied through technocratic processes, but political interactions are involved occasionally in international law applications. In case of domestic law violation, individual criminals are captured by the state authority. However, the state cannot be captured and detained by the supranational authority. There is no single and centralized world government that enforces international law. Therefore, law enforcement in international politics depends on the use of military force by powerful and responsible nation states.

In view of this, the constitutional testimony regarding the security bill, at the House of Representatives on June 4, was too simplistic. In the session, three constitutional scholars, Professor Emeritus Setsu Kobayashi of Keio University, and Professor Yasuo Hasebe and Professor Eiji Sasada of Waseda University, stated bluntly that the bill was unconstitutional, which would impair legal stability. However, even international law is imperfect to restrict wars and conflicts. Why should Japan bind her actions so strictly by the domestic constitution? There is no question that Japan is a country of the rule of law, and it is understandable that the above three scholars use the word of “unconstitutional and “legal stability” as a card to stop the bill. But it seems that they hardly care power oriented nature of international politics.

In our exploration of law and power in international politics, Robert Kagan, Senior Fellow at the Brookings Institution, presents very well known and compelling arguments in his famous book “Of Paradise and Power”. Applying Kagan’s logic to the security bill debate, opponents believe in a Kantian world of “perpetual peace” ruled by law and transnational cooperation, proponents believe in a Hobbesian world where peace is dependent on military power of the hegemon of liberal order rather than unreliable international law and supranational organizations. The law is no assurance of peace in nation state rivalries to maximize their interests with power. Of course, we all understand that Japan is a rule based and law abiding nation, but there is no guarantee that enemies act so Kantian. Legal stability is primarily for domestic affairs. Opponents to the security bill chant a spell of "legal stability", but this is viable in the domestic ground, not in the Hobbesian international politics. The world has needed Pax Britannica and Pax Americana for "political stability". The security bill will enable Japan to act beyond self imposed restrictions in a Hobbesian world.

In view of such Hobbesian reality, the Abe administration is so cautious as to strike delicate balance between Kantian legal stability and security requirements for the new era. Typically speaking, as to the Persian Gulf, Prime Minister Shinzo Abe is so restrained as to mention that Japan sends minesweepers only, though fleet air defense is more critical as Iran’s A2AD capability is rising. As I have repeatedly argued on this blog, this is still insufficient to fulfill Japan's security role, though. Furthermore, Abe says clearly that this mine sweeping mission is a rare exception for the Self Defense Forces to be deployed beyond logistic support for the coalition. Despite a controversial comment about legal stability by Special Adviser to the Prime Minister Yosuke Isozaki (“The truth in Isozaki’s candid words”; Japan Times; August 6, 2015), Abe’s approach is extremely, or even excessively cautious.

The three scholars blame that unconstitutional security bill will destroy the foundation of Japanese democracy and the rule of law. But empirically speaking, the United States, NATO allies, and Asian democracies welcome the new bill. If Abe’s bill is so dangerous as opponent scholars say, why democratic nations support this? Remember, when democratic values are critically at risk, Western nations denounce authoritarian regimes. China is often blamed for human rights oppression, despite growing business ties. Even Saudi Arabia faces bitter criticism when the regime acts too repressively to the public, despite deep rooted strategic partnership. But Japan’s “unconstitutional” security bill never meets such antagonism. Currently, the media watch keenly whether the security bill passes or not, but it is also important to think of how to apply and enforce this bill. That is the question of theory and policy of international politics for people all over the world, and national security for the Japanese public.