When domestic interests and norms undermine the rules-based order: Reassessing Japan's attitude toward international law
| Published date | 01 December 2023 |
| DOI | http://doi.org/10.1177/20578911231168206 |
| Author | Pat Hein |
| Date | 01 December 2023 |
| Subject Matter | Original Research Articles |
When domestic interests and
norms undermine the rules-
based order: Reassessing
Japan’s attitude toward
international law
Pat Hein
Meiji Daigaku, Chiyoda-ku, Japan
Abstract
It has been widely acknowledged that Japan isa full and equal memberof the international legal order
as it stands, asserting its postwar identity as a responsible and law-abiding member of the inter-
national community. However, this essay argues that Japan’s external compliance with a rules-
based order and international legal norms is not reflected in corresponding domestic practices.
The article provides a social constructivist grounded in-depth analysis of the various interests and
constraints that have shaped Japan’s domestic response to international legal norms. The selected
five comparative case stu dies—Non-proliferation Treaty obligations, whaling policies, the detention
and deportation of asylum seekers, the dumping of radioactive waters into the high seas off
Fukushima and sovereignty claims over the Senkaku/Diaoyu islands—suggest that pragmatic nation-
alism and cultural norms undermine Japan’s commitment to the rules-based order.
Keywords
international law, Japan, norms and interests, domestic application
Introduction
Probably every state today proclaims itself to be a faithful follower of international legal norms
regardless of how faithful ly that country’s policies adhere to international legal norms. Japan has
been a vigorous and vibrant contributor to international law by concluding or ratifying hundreds of
international treaties; by dispatching judges to international courts; by participating in the diplomatic
negotiationsfor the establishment of theInternational Criminal Court(ICC); and in the proceedingsof
Corresponding author:
Pat Hein, Meiji Daigaku, Chiyoda-ku, Japan.
Email: heinpt@yahoo.com
Original Research Article
Asian Journal of Comparative Politics
2023, Vol. 8(4) 895–922
© The Author(s) 2023
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DOI: 10.1177/20578911231168206
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the UN International Law Commission and of the Vienna Convention on the Law of Treaties
(Horinouchi, 2022). Japan, like probably any other country, is quite selective in its application of
international norms and quite often chooses an interpretation that suits its interests. There is little
new in the argument that domestic politics play an important role in various foreign policy-related
decisions, including interpretations of international treaties. Yet it is puzzling that in the case of
Japan there exists a significant gap between the showcased compliance with international law and
strong commitmentto the rules-based order on onehand and the constraining domesticlegal behavior
and practice on the other hand. This raises a crucial question as it is a basic principle of international
law that a state-party must ensure that its own domestic law and practice are consistent with what is
required internationally. Specifically, which domestic institutions, legal theories or power structures
or ideologiesdrive Japan’s stance? Which domesticpractices constrainthe application of international
law in Japan? Some have argued that Japan’s stance toward interna tional law can be explaine d by
Japan’s submissive client state dependency on the US (Mogami, 2019).
1
Others have identified
“aggressive legalism”(Pekkanen,2001)assourceofJapan’s legal behavior: it exists where states
use internationalrules to counter what Japan deems tobe unreasonable trade practices of its partners.
Suffice is to say that international law may lose its credibility and authority if states, who are both
creators, subjects and objects of international law, fail to exercise good faith in implementing the
rules and norms they agreed upon. Japan has repeatedly insisted that it defends a rules-based order
and has urged other nations to respect the rule of law, which essentially means that conflicts
should be addressed by non-coercive, peaceful, legal and diplomatic means as advocated by
former primeminister Abe Shinzo at the ShangriLa dialogue in Singaporein 2014, when he defended
“the three principles of (i) making and clarifyingclaims based on internationallaw, (ii) not using force
or coercion in trying to drive (their) claims, and (iii) seeking to settle disputes by peaceful means”
(Abe, 2014). This statement-as it stands-is certainly true yet incomplete, because states have
certain pre-conceived expectations and when they feel that they cannot get what they want they do
not join a treaty, withdraw from an international framework, exploit existing loopholes, circumvent
them or—what will be explored in this article—fail to enforce international norms domestically.
The purpose of this article is to show that the effectiveness of international law and of a rules-
based order has been constrained by non-observance on the domestic level. Building on five case
studies, it will be examined how Japan has struggled with applying and observing international
legal principles such as non-refoulement (detention and deportation of asylum seekers); scientific
research requirements (whaling); independent monitoring mechanisms and environmental risk
assessment (Fukushima radioactive water release); diplomatic resolution of territorial disputes
(Senkakus/Diaoyu); and the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).
Drawing from the social constructivist approach of Dill (2015a), which posits that interests and
norms determine legal compliance and state behavior, I argue that “pragmatic nationalism”
(Funabashi and Ikenberry, 2019: 22)—which is attributed to former prime minister Abe Shinzo
—has shaped Japan’s response to international law. Pragmatic nationalism is a set of constructed
security or economic interests and cultural norms and beliefs that engages with the world in prag-
matic terms and embraces strong elements of nationalism (Hein, 2016). Commentators have praised
the pragmatism of Mr Abe but rejected the nationalist component of his vision.
2
Structure of the article
The article will first introduce the social constructivist theory of international law and discuss its
conceptual benefits compared with a positivist approach. After a brief discussion of the comparative
896 Asian Journal of Comparative Politics 8(4)
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