I recently had a welcome opportunity to hear Rikio Shikama discuss the problems pertaining to Japan’s flawed national defense structure – a subject the diplomat turned commentator has been pursuing from an international perspective over the years. During the discussion, Shikama raised a particularly intriguing point having to do with the difference between international law and domestic law.

　　　As is generally known, international law comprises peacetime laws and wartime laws, and all international laws, once ratified, must be interpreted within the context of the constitution and domestic laws of that country. The constitution, reflecting the fundamental values of a nation, takes precedence over any international law and treaty under all circumstances. However, in cases where international law and treaties contradict domestic laws, the former are given priority, necessitating a revision of domestic laws, according to Shikama.

　　　However, domestic laws haven’t just happened out of the blue. Rather, they have been formulated on the basis of the centuries-old, traditions of the people of that nation, and can be viewed as constituting the written code of what can be termed as fundamental national values. International laws and treaties can at times change the fundamentals of a society drastically, depending on the circumstances – all the more reason for a meticulous scrutiny of the laws involved.

　　　International law is interpreted under the grand principle of “favoring the sovereign state in case of doubt,” according to Shikama, who points out that a notable feature as regards war time laws and regulations is the need to define them as logically and narrowly as possible.

　　　As an example, Shikama referred to a protocol banning the use of poison gas – an international agreement concluded in 1925 that went into effect three years later in 1928. However, 21 years earlier, in 1907, mankind had already vowed to outlaw the “use of poison or poisoned weapons” – as Article 23 of the Hague Convention of 1907 on the laws and customs of war stipulates.

　　　Explains Shikama: “The Hague Convention certainly outlawed the use of poisoned weapons. And yet, Article 23 does not automatically ban the use of poison gas itself; that’s how international law works. As a matter of fact, the international community has unanimously interpreted the convention as not prohibiting the use of poison gas per se, and not a single nation has actually objected to such an interpretation. The world required a different international law to ban the use of poison gas itself. That was how the 1925 Geneva Protocol came about.”

Naivety of Believing in Mankind’s Innate Goodness

　　　In other words, a nation must interpret what international law stipulates as narrowly as possible. Absolutely invalid in today’s world is the starry-eyed  view – cherished by the likes of Premier Naoto Kan and former Chief Cabinet Secretary Yoshito Sengoku, now acting head of the ruling Democratic Party of Japan (DPJ) – that the world “is formed around the innate goodness of mankind, and therefore, it is possible for Japan to avoid war as well as other tragic happenings so long as it endeavors to face the world with goodwill.” On the contrary, the world is actually full of nations dead set on expanding their spheres of influence and satisfying their own desires even at the risk of violating peace and the sovereign rights of other nations. That is the very reason why a carefree interpretation of international laws and treaties is too risky – and inexcusable.

　　　Here, the reader must naturally come up with a question: why is it that some nations blatantly possess – and continue to manufacture – poison gas still today, despite the fact that mankind agreed on a protocol banning the use of poison gas in 1925? Comments Shikama further:

　　　“There is a principle applied to wartime laws and regulations, known as ‘the principle of reprisal,’ which grants a nation the right to brazenly engage in acts similar to those resorted to by its adversary when violating pertinent wartime laws and regulations – along with the right to engage in acts comparable in scope to those committed by the adversary. The reason why various nations still manufacture poison gas more than 80 years after its use was banned by international law is that they can use it in reprisal as necessary.”

　　　The nature of the international law governing the use of gas and the posture of various nations towards such a law can apply to nuclear weapons as well, notes Shikama. Even if mankind prohibits the use of nuclear weapons, such a measure will in no way lead to a complete ban – as long as the principle of reprisal exists. We all remember President Barak Obama’s vow, made in Prague in April of 2009, that he would make efforts towards realization of a nuclear-free world – a pledge enthusiastically welcomed by Japan. However, what international law realistically demonstrates is the hard-boiled reality of the contemporary world that realization of a nuclear-free world is hopelessly difficult, and that sweet-sounding words – like those of Obama’s in Prague – can hardly erase nuclear weapons from the face of the earth. Despite this state of affairs, however, disarmament is still possible. However, if one takes a hard look at today’s international community, he can see disarmament won’t fundamentally change the actual circumstances of a world unceasingly haunted by military threats. This will become evident, argues Shikama, if one cares to recognize the difference between wartime laws and disarmament, explaining:

　　　”Wartime laws and regulations are applied only after the start of war.  Meanwhile, disarmament is the result of peacetime political dealings among the governments involved, and vanishes into thin air as soon as war breaks out. Politicians and bureaucrats charged with national defense should have a full understanding of this reality. For instance, as with the ban on the use of poison gas, the theory of reprisal will inevitably be put to practice once the fighting starts, even though the use of nuclear weapons is prohibited under international law. In addition, any intra-governmental political agreement on disarmament – as well as legal restrictions – will become null and void. “

　　　On January 5 – about the time I heard Shikama speak – it was reported that the People’s Liberation Army’s strategic missile forces, the Second Artillery Corps, had made it known to its officers and soldiers, through internal documents, that China will “consider launching a preemptive nuclear strike,” depending on circumstances. The documents apparently stated that the Corps is expected to take first nuclear strike measures when “an adversary threatens to attack China’s nuclear and hydro power plans, as well as its key cities including the capital, or when an extremely unfavorable war situation puts the nation’s existence at risk.” (The Sankei Shimbun, January 6, 2011)

Needed: Strengthening One’s Own Military Forces of

　　　The Chinese Foreign Ministry immediately issued a statement to repeat China’s usual position:”The Chinese government has made a solemn pledge never to be the first to use nuclear weapons at any time under any circumstances.” A spokesman emphasized further: “China has lived up to this commitment.” Since 1964, when it conducted its first nuclear test successfully, China has pledged “no preemptive use” of nuclear weapons. However, China’s military policy, including its military budget, the size of its arsenal, and its intentions as a rapidly expanding power, have always remained “opaque,” to say the least. Six years ago, Zhu Chenghu, a major general and the Dean of the Defense Affairs Institute for China’s National Defense University, said China “will have to respond with nuclear weapons” if the United States government interfered with a military conflict over the Taiwan Straits.

　　　The extent of difficulties Japan faces in defending itself against its onerous neighbor can easily be imaginable in view of the fact that China has blatantly cooperated with proliferation of nuclear weapons in the third world – no matter how much Chinese authorities should try to deny it, and how stringently international law may be designed to regulate the use of nuclear weapons.

　　　China has provided Pakistan nuclear weapons, thereby binding India to its problems with Pakistan. The analysis in India is that China’s scheme to aid Pakistan has been a ploy to compel India to exhaust its resources in implementing countermeasures to cope with Pakistan’s nuclear capability, forcing India to turn its eyes away from the Chinese threat, while also making it more difficult for India to advance into the high seas, especially the Indian Ocean.

　　　In fact, the trap China has set on India has been so effective that it had the Development Concepts and Doctrine Centre, a British Ministry of Defense think tank, predict: Due to the heavy burden of coping with the threats from Pakistan and China, there is a possibility that India will end up by only being a regional power – not a world power.

　　　China has brazenly pushed nuclear proliferation in the third world despite being a signatory to the Nuclear Non-Proliferation Treaty (NPT) of the United Nations. A characteristic feature of China’s nuclear strategy is that it endeavors to see international laws and treaties applied to other nations to the fullest extent possible, while China itself neglects them totally.

　　　Shikama made another observation by pointing out that the difficulties facing contemporary international law derive from the evolution of mankind’s wars – from nation-to-nation conflicts to hostilities between nations and unlawful armed organizations, namely terrorists. Under the circumstances, while traditional wartime laws and regulations remain virtually useless, no new effective countermeasures have so far been worked out.

　　　When all is said and done, against the backdrop of the chaotic situation that the world faces today, nothing appears more trustworthy for a nation than a strong military forces of its own.

(Translated from “Renaissance Japan” column no. 446 in the February 3, 2011 issue of The Weekly Shincho.)