1 Introduction
This chapter explores how Japan perceived the concept of âterritoryâ when it acquired so-called gaichi (overseas territory of Japan or colony) and how that impacted legislation. The term ryÅiki (domain; especially territory) is a translation of the English word âterritory,â is considered a Japanese-made Chinese word derived from ryÅchi (appanage),1 and is believed to differ from a traditional understanding of territory consisting of hanto (territory), kyÅdo (territory within a boundary), and kyÅiki (territory). As will be discussed below, the Constitution of the Empire of Japan (hereinafter, âMeiji Constitutionâ) did not stipulate the limits of Japanâs territory, nor did it mention anything about the gain or loss of territory after its promulgation. Therefore, whether it was the cession of Taiwan in 1895 or the annexation of Korea in 1910, the question of whether the Meiji Constitution would apply to Taiwan and Korea became a matter of debate both practically and academically. Furthermore, the decision of what type of legislation to be established in gaichi was the basis of controlling such gaichi. Japanâs acquisition of gaichi is often described as (national) imperialization or imperial(istic) expansion, and one of its characteristics is that âthe home country and the territory under control [colony] exist as a union of different jurisdictions based on the principle of disparity and integration.â2
An examination of this from the perspective of âsovereigntyâ can be summarized as follows. First, sovereignty is transferred through treaties. In chronological order, this is the Treaty of Shimonoseki in 1895, the Treaty of Portsmouth in 1905, and the Japan-Korea Annexation Treaty in 1910. In addition, the Mandate for the German Possessions in the Pacific Ocean Lying North of the Equator of 1922 can also be added here, but as will be described below, the question of sovereignty over the mandated territories was a great source of international debate at the time, and no conclusion was ever reached. In any case, through these, Japan acquired gaichi and exercised its sovereignty domestically. Although it is difficult to firmly define what constitutes sovereignty, if considered in terms of internal supremacy and external independence, sovereignty means the basis under international law on which a State exclusively exercises domestic governance.
The sovereign State under (modern) international law is premised on the exercise of effective control over territory and the exercise of jurisdiction based on the principle of territoriality. In addition, the different branches of the federal State may have different legal systems, and, as a whole, it may be a State with more than one system of law. In the rule of a colony, however, for several reasons, a legal system that is different from the suzerain State and intrinsically discriminatory may be promulgated, resulting in the creation of different laws (or jurisdictions) in one whole state. This condition was also described in German Staatsrecht4 at the time as âdomestic under international law but foreign under the constitution.â Since the enactment of laws over colonies (the
Prompted by Commodore Perryâs arrival in 1853, Japan demarcated territories by drawing âbordersâ under the (modern) international legal sense and established a system of effective control based on sovereignty. For Japan, this involved a process of translating, understanding, interpreting, and applying (hereinafter collectively referred to as âaccepting,â etc.) international law, as well as the task of repositioning the traditional system of rule in East Asia within the framework of international law based on Japanese logic. Typical examples are RyÅ«kyÅ« (Okinawa), Hokkaido, the Kuril Islands, and Sakhalin. After the âincorporationâ of these regions, the space that made up Japan was demarcated both domestically and internationally.
This process involved Japanâs participation and accession to the international order of Western origin, as well as the conflict, coordination, and reorganization of the East Asian regional order headed by China (Qing and the Republic of China). After the Opium Wars, Qing continued to adhere to the Chinese order and accepted international law based on its own understanding thereof. At the same time, Western States established settlements in East Asia and placed Southeast Asia under colonial rule except for Thailand. The question of how to position Taiwan and Korea, which were on the periphery of Japan geographically, had been major issues in Japanâs domestic and diplomatic affairs since the early Meiji Era, taking the form of the seitairon and seikanron debates, respectively, and both of these issues related to relations with China. Japan and China showed different levels of acceptance towards international law, with Japan deemed to have been more proactive.5 This manifested itself in the difference of views between Japan and China regarding the status of Korea, as will be discussed later.
Below, this chapter summarizes how Japan understood sovereignty at the time. Needless to say, sovereignty is a concept in international law as well as a concept in domestic law, particularly at the constitutional law level. Given
2 Constitution and International Law, and Sovereignty
2.1 Introduction of the Concept of Sovereignty
It is not necessarily clear when shuken, used as a translation of âsovereignty,â became a widely accepted Japanese word. Supposing that the Chinese translation of Henry Wheatonâs Elements of International Law (1836) was subsequently translated into Japanese, shuken would have been derived from the Chinese language.6 In said work, shuken or âsovereigntyâ is defined as âthe supreme power by which any State is governedâ7 and its contents correspond to todayâs internal sovereignty (supremacy) and external sovereignty (independence); i.e., âthat which is inherent in the people of any State, or vested in its ruler, by its municipal Constitutionâ and âthe independence of one political society, in respect to all other political societies,â8 but there is no description of the territoriality of the State. Shuken also appears in The Laws of Western Countries by Tsuda Masamichi published in 1868.9 Therefore, it is necessary to conduct
2.2 Existence of the Theory of National Polity
The question of how to define the national polity, i.e., the constitutional foundation of the country or the fundamental system of the State, was related to the question of how to position Japan after the Meiji Era and how to build a system of governance through the ensuing Meiji Constitution. What should be confirmed here is that the theory of national polity eventually converged on the âsovereign monarch,â and furthermore, the basis for this was sought in the myths of the Kiki mythology (the Kojiki [The Records of Ancient Matters] and Nihonshoki [Chronicles of Japan]). As a clear illustration of this understanding, an editorial published in the Tokyo Nichinichi Shimbun on January 27, 1882, for example, which claimed that âit is clear that the sovereignty of Japan has always been held by the Imperial Family since the time of the first emperor,â10 is deemed to have played an important role.11
The influence of this understanding on the provisions of the Meiji Constitution and its interpretation will be discussed below. It should be first established that the perception of the Emperor, belonging to an unbroken line of Imperial pedigree, as being eternal did not diminish thereafter, despite debate on the subject intensifying up to Japanâs defeat in World War ii. The
2.3 Sovereignty in International Law
Under international law, States have sovereignty, which is the basis upon which they control their territories. The rights afforded by sovereignty over land is generally called territorial sovereignty14 (or dominion). This is sometimes referred to as State possession or State dominion.15 The legal nature of territorial sovereignty has been the subject of much historical debate. This debate can be broadly divided into those that perceive territory either as dominium that can be used and disposed of freely by the State, or imperium over people, property, and facts within the territory.16 However, today, territorial sovereignty is commonly understood as having the properties of both dominium and imperium, and it is said that there are aspects of âownership (possession), governance, and disposition.â17
In addition, the term ryÅdoken (territorial rights) is generally used in Japan, including the debate between Minobe Tatsukichi and Tachi SakutarÅ triggered
2.4 Shuken (Sovereignty) and TÅchiken (Rights of Sovereignty) in the Meiji Constitution
In the Meiji Constitution, shuken was understood to be synonymous with the tÅchiken of the Emperor. The fact that ItÅ Hirobumi also used the two interchangeably can be seen in his Commentaries on the Constitution of the Empire of Japan.20 First, Article 1 stipulated that âThe Empire of Japan shall be reigned over and governed by a line of Emperors unbroken for ages eternal,â and Article 4 provided that âThe Emperor is the head of the Empire, combining in
Furthermore, that which was to be reigned over and governed was the people, and it is not clear to what extent the possession and control of land and space in the international legal sense was envisaged, whether by the Meiji Constitution itself or by the âgovern the landâ in the Commentaries on the Constitution of the Empire of Japan. This point is evident in the Imperial Speech. In other words, what is emphasized as being reigned over and governed by the Emperor is âOur beloved subjects,â âthe very same that have been favoured with the benevolent care and affectionate vigilance of Our Ancestors.â23 The Imperial Speech further mentions that âThe right of sovereignty of the State, We have inherited from Our Ancestors, and We shall bequeath them to Our descendants.â These are the origins of the âone great family-like nation,â mentioned in Kokutai no Hongi [The Essence of Japanâs Polity].24 This led to a reliance on the âfictional historyâ25 that the Imperial ancestors created the land and space of Japan, and the Emperors of the unbroken Imperial pedigree expanded it and passed it down from generation to generation. This point had fundamentally different roots to the Christian and European beliefs that separate God from man and keep the creation of heaven and earth exclusively in the domain of God.
As mentioned above, the Meiji Constitution has no territorial provisions. Usually, the territory of a State has the possibility of expansion or contraction, and there are other countries with constitutions that include pre-determined
How does this spatial perception of Japan differ from the concept of âterritoryâ in international law? Also, what is its relationship with the perception of land in the East Asia region, such as hanto (territory) and kyÅdo (territory within a boundary)? Furthermore, despite both being located in East Asia, was the understanding of territory in China the same as in Japan? These issues are deeply related to those concerning East Asiaâs integration into the European
3 Formation of Gaichi (Overseas Territory of Japan) and Its Concept
3.1 Colonial Lands (Gaichi) and Legislation
While the Prussian Constitution, which served as the model of the Meiji Constitution, also did not contain territorial provisions, the cession of Alsace-Lorraine and the acquisition of colonies (protectorates) in non-European regions led to the implementation of a colonial system and control over local populations that were different from the domestic equivalents in Germany, and such a state of unconstitutional governance became difficult to explain.32 As will be discussed below, Japan found itself in the same situation with the cession of Taiwan in 1905.
As mentioned above, colonies are explained as having different jurisdictions, or legal status, to their colonial rulers. Moreover, different jurisdictions may exist even within the same colonial power itself.33 Generally, in Japan, the areas that have been under control before the promulgation of the Meiji Constitution are referred to as naichi (domestic territory), while areas acquired thereafter are referred to as gaichi (overseas territory). However, the âcenter and peripheryâ in Japan is not exactly the same as its ânaichi and gaichi.â This is because periphery areas such as RyÅ«kyÅ« (Okinawa) and Hokkaido also existed
In Kiyomiya ShirÅâs Introduction to Foreign Territory Law, published in 1944, the following five examples of the use of gaichi are as follows.36 (1) Taiwan, South Sakhalin, Korea, Kwantung Leased Territory and the South Sea Islands, which became territories or quasi-territories after the enactment of the Meiji Constitution; are positioned as âthe most common usageâ; (2) In addition, territories occupied by Japan as a result of the Second Sino-Japanese War and the Greater East Asia War are included; (3) âForeign countries that have special relations with Japanâ such as Manchuria are included; (4) The territory of foreign countries and foreign States themselves are gaichi; and (5) Only Honshu is naichi, while all other land is gaichi. Yamazaki TanshÅ shared the same understanding as (1) in Kiyomiyaâs classification, and defined âKorea, Taiwan, Sakhalin, the leased territory of Kwantung, and the mandated territory of the
Nevertheless, Kiyomiya separated Japanâs territory and its quasi-territory, while, as seen in Yamazakiâs definition, Kwantung is sometimes explained as âleased territoryâ and the South Sea Islands as âa mandated territory.â It is thus not clear how each author understood the difference in legal nature between cession, annexation, lease, and mandated territory. In any case, focusing on the degree to which sovereignty was transferred, it can be seen that it was implicitly recognized that there were three types of gaichi: Taiwan and Sakhalin (both ceded), as well as Korea (annexation), sovereignty over which can be understood to have been completely transferred; Kwantung, where the residual sovereignty of the lessor State was recognized; and the South Sea Islands (mandate), sovereignty over which was the subject of international debate.
3.2 Cession of Taiwan
3.2.1 Background
As an outcome of the Sino-Japanese War, Taiwan Island and the Pescadores Islands were ceded to Japan from Qing (Paragraphs 2 and 3, Article 2 of the Sino-Japanese Peace Treaty signed on April 17, 1895, entered into force May 8, 1895). The Liaodong Peninsula was also to be ceded according to Paragraph 1, but it was returned by a further treaty with Qing in November of the same year following the Triple Intervention. Sino-Japanese relations after the Meiji
On the other hand, despite the fact that âthe question of how to govern modern Japanâs first colony was, for the Meiji Government, an important issue in relation to the constitutional system,â41 there was much confusion in the initial debate on the cession. One of the reasons for this was the situation on the ground in Taiwan, where Japan had no choice but to prioritize pacification âunconstrained by laws and regulationsâ42 in response to the fierce resistance of the Taiwanese people. However, as an even more fundamental issue, there was a difference of opinion on how to position Taiwan and how to govern it, both in terms of colonial (rule) policy and the legal system to support it. As part of the discussion on this point, Hara Takashi, who was Vice Minister of Foreign Affairs and a member of the Taiwan Secretariat, wrote, in Two Proposals on the Taiwan Issue,43 âA. Deem Taiwan to be a kind of âcolony.â B. Taiwan is somewhat different from the naichi, but it should not be regarded as a type of colony.â (Punctuation added by the author.) Hara himself âadvocatedâ the second proposal because Taiwan and its people ârepresented a completely different situation from the case of European countries controlling people of other races.â Rather than being based on any legal position, this stance can be appropriately
In reality, however, the âAct on Laws and Regulations to be Enforced in Taiwanâ (Act No. 63 of March 30, 1896; hereinafter referred to as âAct No. 63â) gave the Governor-General of Taiwan broad power to enact laws.
3.2.2 Establishment of Taiwanâs Legislation: Confusion over Act No. 63
Issues arose regarding what type of legislation to create for Taiwanâs territory, especially how to understand its relationship with the Meiji Constitution. Taiwan Materials includes documents by an unknown author entitled âPosition of Taiwan in Japanese Lawâ45 and âAuthority to Govern Territory.â46 First, âPosition of Taiwan in Japanese Lawâ can be summarized as follows.
Based on the premise that âTaiwan is a new territory acquired by the Empire in accordance with international law,â it is understood as being âa newly acquired territory, with the fact of its incorporation into the Empire meaning that the borders of the Empire will change.â However, since the Meiji Constitution does not provide any procedure for changing borders, Taiwanâs status under Japanese law has to be determined through the âOrdinary Principles of the Stateâ and the âSpirit of the Imperial Constitution.â The State is free to decide whether or not to incorporate a new territory. The existence of foreign constitutions that provide for procedures for changing borders means that the method of expressing the intention to incorporate a new territory after acquiring it has been stipulated. Then, in the case of Japan, how can it express its intentions? One would be to amend the Meiji Constitution, and the other would be to understand it as part of the prerogative of the Emperor. Whichever position is adopted, the conclusion is the same: âTaiwan is not part of the Empire even though it is under the sovereignty of the Empire,â and therefore, âthe Empireâs Constitution and its various laws and regulations cannot directly be promulgated in Taiwan.â
The following can be pointed out about these two documents. First, while they recognize the border change as a fact, if, due to the absence of a procedure for changing borders, Taiwan is ânot part of the Empireâ and neither the Meiji Constitution nor the laws and regulations are promulgated, then no legal restrictions would be imposed on the Emperorâs possession and control of Taiwan. This synonymous treatment of shuken and tÅchiken is the same as in ItÅâs Commentaries on the Constitution of the Empire of Japan, but it is a contradiction or circular theory to derive the authority to govern territory under the Meiji Constitution as a positive law through analogical inference from diplomatic authority. The diplomatic authority under Article 13 of the Meiji Constitution to âdeclar[e] war, mak[e] peace, and conclud[e] treatiesâ is believed to âbelong to the authority of the Emperor and does not require the consent of the Diet,â and the reason for this was âthe unity of the sovereignty of representing the State to foreign countries.â47 Although it is a trivial point, it is possible to infer the cession of territory (Taiwan and Sakhalin) and the acquisition of leased land through peace treaties in this diplomatic authority, but when this is âauthority ⦠under the Meiji Constitution,â then the argument for removing the need for the consent of the Imperial Diet would be extremely weak if the authority is regarded as being pre-constitutional in nature.
In response, William Montague Hammett Kirkwood, an adviser to the Ministry of Justice, summarized the arguments in his âOpinion on the Taiwan
- a)Since the authority of the Emperor is not restricted by the Meiji Constitution in Taiwan, it is constitutional to formulate laws concerning Taiwan without the approval of the Diet.
- b)As long as Taiwan is a Japanese territory, the Meiji Constitution applies, and laws concerning Taiwan require the support of the Diet.
Kirkwood then pointed out, as a legislative policy issue, that, âIn the current Japanese public opinion, there is a strong democratic tendency, and if my interpretation is carried out, it is difficult to predict whether a Diet that is not close to the existing Government may give rise to more aggressive arguments against the government or not.â49 Thus, he advised making a decision from a political and practical perspective rather than a legal one, placing emphasis on parliamentary strategy rather than constitutional interpretation.
After that, the government began to formulate the âAct on Laws and Regulations to be Enforced in Taiwan.â After many twists and turns, it was promulgated as Act No. 63 of 1896 (March 30), commonly known as âAct No. 63.â The law was intended to settle the question of what powers should be given to the Governor-Generalâs Office and how to harmonize it with Japanâs own system of governance, in light of the ongoing but sporadic uprisings on the island of Taiwan, despite it having been pacified.
Taiwan has only just been included in the Japanese Empire, and not only are all matters still in their infancy, but there are also concerns about uprisings by armed groups in the region. Despite this, this island is located far from the capital of Tokyo and transportation between the two lands is still completely undeveloped. The emotions and social customs of the people of this island are also completely different from those of Japan, so they should not be governed by the same laws and regulations as the home country. This is why we are submitting this proposal.50
This was ânothing more than a bill with provisions concerning the legislative power of the Governor-General, which were included in the draft bylaws of the Governor-Generalâs Office,â51 but, at the same time, it also contained an element of danger in that âgranting legislative power to the Governor-General, who is the bearer of administrative authority, and recognizing administrative ordinances as having the same power as laws clearly runs counter to the principles of constitutional government.â52 Even in the Imperial Diet, which deliberated Act No. 63, there was debate about whether the Meiji Constitution would extend to Taiwan, and, if so, how it would be extended, but it is unlikely that either the Government or the Diet fully understood and digested the issues. Below, the author will cover the background to the lawâs enactment using historical reference materials.53
Attending the Diet as a Government committee member (since March 17, 1896) was Mizuno Jun, Director of the Civil Affairs Bureau of the Office of the Governor-General of Taiwan. First, Mizuno explained the reasons for the proposal to almost the same effect as above. In response, Nakamura Katsumasa asked,54 âAs stated in Articles 8 and 9 of the Meiji Constitution, in Japan, no one but the Emperor has the authority to issue laws and ordinances, but does this actually apply to all matters under civil administration?â Article 8 of the Meiji Constitution is a provision concerning âImperial Ordinances in the place
If it has nothing to do with the Meiji Constitution, the basis of the Emperorâs rights of sovereignty under Article 4 is lost, and it means that Taiwan would be ruled based on a pre-constitutional authority. On this point, Sakurai Yoshiki once again asked, âYou have said that the Meiji Constitution has not been enacted in Taiwan, but it is a matter of course that the Meiji Constitution would be enforced once a land comes into the possession of the Empire of Japan, no matter where it is, and I believe there is something mistaken in your assertion that the Meiji Constitution is not even partially enforced in Taiwan.â In response, Mizuno replied, âThe Meiji Constitution has, in its entirety, not been promulgated there. To put it another way, even within the Constitution, the âRights and Duties of Subjectsâ do not apply to Taiwanese subjects. However, it goes without saying that the authority of the Emperor under the Meiji Constitution is exercised over Taiwan.â The relationship between authority and the Meiji Constitution was also extremely unclear.56 However, if the âEmperorâs authorityâ extended to Taiwan, then some form of the Emperorâs rights of sovereignty extended there and Taiwanâs status as a âterritoryâ of Japan were confirmed.
The Government temporarily withdrew the bill (March 24), but resubmitted it (March 26) with a provision (Article 6) that the bill would be legislated for a period of three years, and it was passed by the House of Peers.
3.2.3
It is not clear where the true intention of removing the need for the consent of the Imperial Diet through Act No. 63 lay. Ariga Nagao shared an episode about the budget related to Taiwan saying, âIt is troublesome to have to get approval for each and every matter, so we decided that Taiwanese matters would be decided at the discretion of the Governor-Generalâs Office, and that there is legal power in these decisions made at its discretion.â57 Based on the opportunistic idea that âItÅ would take on Itagakiâs Liberal Partyâ and âit would be convenient later if the delegated power were to be passed at that time,â58 a precautionary front was set up in preparation for the emergence of a âDiet that is not close to the Government,â as Kirkwood was concerned about.
Since then, the relationship between Act No. 63 and the Meiji Constitution has been a controversial topic among scholars of constitutional law and Staatsrecht.
Act No. 63 was subsequently prolonged by revisions in 1899, 1902, and 1905. In addition, Act No. 31 of 1906 required the Governor-General of Taiwan to obtain âImperial sanction through the competent ministerâ (Article 2) when prescribing ordinances. On top of that, according to Act No. 3 of 1922, when all or part of the law was enforced in Taiwan, an Imperial Ordinance would be required in principle (Article 1). Furthermore, the authority of the Governor-General to issue ordinances was exceptional, and there was a shift to naichi extensionism (Article 2).
3.3 Background of the Sakhalin Cession
As a result of the Russo-Japanese War, in September 1905, Japan was ceded Sakhalin south of the 50th parallel (Article 9, Paragraph 1 of the Treaty of Portsmouth). The Treaty of Portsmouth also stipulated that, âThe Imperial Russian Government, acknowledging that Japan possesses in Korea paramount political, military and economical interests engages neither to obstruct nor interfere with measures for guidance, protection and control which the Imperial Government of Japan may find necessary to take in Koreaâ (Article 2). The Russo-Japanese War was about the hegemony of both countries on the Korean Peninsula. More details will be covered in the next section, but first a brief description of Sakhalin will be provided here.
Partly because of these circumstances, Sakhalin was completely incorporated into the naichi on April 1, 1943.
3.4 Korea
3.4.1 Background to the Korean Annexation61
One issue in Japanese diplomacy in the Meiji Era, or an issue of concern between Japan and Qing and between Japan and Russia, was the handling of
However, Korea itself did not believe that this established a sovereign State relationship, at least in terms of its relations with Japan, but rather recognized it as a restoration of the old relations between the two. Thus, there was a gap in understanding between Japan and Korea.63 Through the subsequent Treaty of Peace, Amity, Commerce and Navigation between the United States and Korea (1882), Western countries opened their legations in Hanseong (present-day Seoul). Based on these facts, it can be assumed that other countries regarded Korea as a State in the sense according to international law. However, for Qing, Korea continued to be a vassal State but retained a relationship as an âautonomous vassal Stateâ whereby its autonomy in the handling of ordinary political affairs was recognized.64
Subsequently, with the Sino-Japanese Peace Treaty (1895) eliminating traditional Qing-Korean relations and the Treaty of Portsmouth (1905) establishing Japanâs supremacy over Russia in Korea, Japan made Korea a protectorate. Article 1 of the Japan-Korea Protocol of February 1904 stipulated that
On August 22, 1910, the Japan-Korea Annexation Treaty was signed (promulgated on August 29). Article 1 stipulated that âHis Majesty the Emperor of Korea makes the complete and permanent cession to His Majesty the Emperor of Japan of all rights of sovereignty over the whole of Korea,â and Article 2 stipulated that âHis Majesty the Emperor of Japan accepts the cession mentioned in the preceding article and consents to the complete annexation of Korea to the Empire of Japan.â
3.4.2 Structure of the Korea Governance Act
The question of what kind of legislation should be used to govern Korea was also an issue. In the Cabinet decision of June 3, prior to the signing of the Japan-Korea Annexation Treaty, entitled âAdministrative Policy for Korea after the Annexation,â it was decided that âthe Constitution shall not be enforced in Korea for the moment and Korea shall be ruled based on the Emperorâs prerogativeâ; âThe Governor-General shall be directly subordinate to the Emperor and have the power to preside over all political affairs in Koreaâ and âThe Governor-General shall be empowered to issue orders on legal matters in accordance with the authority (omitted).â65 In other words, the principle of governance over Korea was based on prerogative.66 One month later, however,
In response to this, Article 1 of the âAct on Laws and Regulations to be Enforced in Koreaâ68 stipulated that âmatters in Korea for which laws are required shall be prescribed by ordinance of the Governor-General of Korea,â and such ordinances were collectively referred to as âRegulationsâ (Article 6). Article 1 is the same as the aforementioned Act No. 63. However, while Act No. 63 was revised by Act No. 3 of 1922 and shifted to naichi extensionism, Korea continued to be ruled by the Emperorâs prerogative until the end. According to Unno, there was an ambiguous handling of the matter as, âAccording to the âInterpretation,â the Meiji Constitution was enforced in Korea, but it was not enforced in reality, and the title of Korean rule is based on the prerogative of the Emperor, not the Meiji Constitution.â69
3.5 South Sea Islands
The South Sea Islands (the Marianas, Caroline and Marshall Islands) became subject to the League of Nations mandate system as a result of World War i, and was placed under the administration of Japan by the âClass C Mandate Clause Imperial Mandate Clause for the South Sea Islandsâ (Ministry of Foreign Affairs Notification No. 16 of April 29, 1922) of 1921. Article 22 (6) of the Covenant of the League of Nations stated that it âcan be best administered under the laws of the Mandatory as integral portions of its territory.â Therefore, at first glance, it can be immediately determined that it is a territory to which the sovereignty of the mandatory extends. However, the Cabinet Decision entitled âDecision on Matters Concerning the Governance of the South Sea Islandsâ70 stated with regard to the South Sea Islands, which were governed by the South Sea Islands Agency under the Cabinet, âIt shall be interpreted that, as in the case of the Kwantung Leased Territory, the Meiji Constitution shall be exercisedâ (Paragraph 6). Even before addressing the issue of whether or not to apply the Meiji Constitution, there were conflicting theories regarding the sovereignty over the mandated territories. According to the summary in Taoka RyÅichiâs The Essence of the Mandate, there were the âLeague of Nations
Although it is not possible to go into the details of each theory here, the author would like to summarize the understanding of the Japanese Government by focusing on the fact that Japan continued its mandate over the South Sea Islands even after its withdrawal from the League of Nations (notification of March 27, 1933, effective on the same day in 1935). Immediately before the notice of withdrawal, the Japanese Government compiled the âCabinet Decision on the Policy Determination Method of the Imperial Government Concerning the Consequences of the South Sea Islands Mandate after the Empireâs Withdrawal from the League of Nations.â72 The sovereignty of the mandated territories was determined by the Treaty of Versailles, as âGermany renounces in favour of the Principal Allied and Associated Powers all her rights and titles over her oversea possessions,â (Article 119) expressing the understanding that the territories belonged to the Principal Allied and Associated Powers, including Japan. Therefore, withdrawal from the League of Nations would not affect Japanâs sovereignty over the mandated territories in any way. Based on this premise, Minister for Foreign Affairs Uchida KÅsai (Yasuya) stated, âSince our mandate is a Class C Mandate, we can carry out all forms of administration as part of our territory. Therefore, there is absolutely no need to return it to the League, even after our withdrawal therefrom. Simply submitting an annual report shall suffice.â73 It was not always clear whether âterritoryâ under the Covenant of the League of Nations and territory under domestic law (Meiji Constitution) were considered to be the same thing. This was because, âthe view is taken that laws are not implemented in the South Sea Islands, but on the other hand, there is no delegation of law and even matters which should be stipulated by law are stipulated by ordinance,â so the view that âcontrary to the clear fact that the Imperial Constitution extends to Korea, Taiwan, and Sakhalin, the situation of the South Sea Islands is completely different; that is, the South Sea Islands is not recognized as territory under the application of the Meiji Constitution,74 also exists.â75 In addition, TÅmatsu Haruo, after analyzing the discussions at
Furthermore, the situation was unique in that the residents of the South Sea Islands (islanders) were not granted Japanese nationality. As a background to this, a resolution at the Council of the League of Nations was passed in April 1923 to the effect that native inhabitants of Class C Mandates could voluntarily naturalize, but that they would not necessarily acquire the nationality of the mandatory.77 In the report presented by the chairman at the first session of the pmc in 1922, it was stated that âthe mandate system was established because it was recognized that there was a strict distinction between higher civilizations and mandated territories, and if the nationalities of the two are equated, there would essentially be no distinction made between them.â78 Thus, the Japanese Government simply referred to the inhabitants of the South Sea Islands as âislandersâ and distinguished them from âsubjects.â
In this regard, as in the case of the Kwantung Leased Territory, there were statements that cited, as evidence, the fact that the mandated territories were ânot pure territories of Japan under international lawâ79 or that they âwere quasi-territories.â80 Certainly, views were divided on whether the sovereignty of a mandated territory had been completely transferred to the mandatory, but the debate at the League of Nations was only about whether or not to grant nationality based on the difference in the degree of civilization, not the difference in the legal status of the area in question. If one considers that the intention of this discussion was not to prohibit the granting of nationality, it is reasonable to assume that it was only a policy measure. In addition, in the Common Law of 1918 (Act No. 39 of 1918), Paragraph 1, Article 1 and others were revised by Act No. 25 of 1923 five years later to add the South Sea Islands.81
4 Systematization of the Laws of Gaichi and Their Problems
4.1 Questions Raised by Minobe Tatsukichi
The first call for systematic study of the laws of gaichi or colonial law (hereinafter âcolonial lawâ) was probably Minobe Tatsukichiâs report82 at the Jurisprudence Research Seminar on May 18, 1911, and his essay83 based on said report. Minobe points out, as evidence of the necessity of colonial law research, that âthe laws applied to people in the naichi and to indigenous populations are often different ⦠that is to say, in a sense, the nationality principle is applied.â84 He points out that, as a result, âa relationship similar to private international law has formed between the laws of naichi and colonial law, as well as between indigenous laws and the laws of naichi, and there is a need to alleviate potential conflicts between them according to certain rules.â85 Minobe then defines âthe legal concept of a colonyâ as âa part of the territory of the naichi, in principle, whose laws differ from those of other places in the naichiâ or âland within the territory of a country to which, in principle, a jurisdiction other than that of the naichi applies.â The term hÅiki, a Japanese translation of the German Rechtsgebiet (jurisdiction), is said to have been established by Yamada SaburÅ, a scholar of private international law.86 Minobe made the point that, while âhÅiki (Rechtsgebiet; jurisdiction) and ryÅiki (Staatsgebiet; domain) are usually compatible,â87 further research of colonial law had become necessary due to
The emergence of jurisdictions that differed from that of the naichi, i.e., a different jurisdiction, was semi-inevitable. This was because the gaichi of Japan were acquired as part of a State or as its whole via treaty, rather than by occupation of terra nullius. They were thus already territories, with inhabitants, under some form of domestic legal system. For this reason, it was necessary to respect the existing legal system and longstanding customs. In addition, in the cases of say Taiwan or Korea, since there were forces opposing their cession and annexation, it was necessary to have harsh laws for maintaining public order, such as the âOrdinance for the Punishment of Banditsâ88 in Taiwan (Ordinance No. 24 of 1898) and the âOrdinance for the Summary Judgment of Criminal Matters in Koreaâ89 (Imperial Ordinance No. 240 of 1909), which existed before Japanâs annexation of Korea. The application of these laws was geographically limited to Taiwan or Korea. In effect, however, it was inconceivable that they would be applied to the Japanese (from the naichi), and were effectively only applied to the Taiwanese and to Koreans. In this way, elements of the nationality principle accompanied Japanâs colonial law (gaichi law), both formally and practically, until the end.
4.2 Minobeâs Theory on Constitutional Law and Gaichi
Under Minobeâs formerly held theory, the annexation of Korea would have plunged the Japanese Empire into a crisis of identity, and depending on the circumstance, the previous Meiji State would have ended and a new âEmpireâ would have to be established on August 29, 1910. However, under the theory newly advocated by Minobe, ryÅdoken as real rights were simply transferred from the Korean Empire to the Japanese Empire, and the identity of the Meiji State would not be impaired. This amounts to no less than a theoretical shift towards Taisho âImperialism,â which envisioned the further acquisition of new territories in future.94
This is because, by defining territorial sovereignty as having both elements of possession and control, and positioning them as one aspect of tÅchiken, the acquisition (possession) of any gaichi and the control (governance) of any acquired gaichi would be free from the Meiji Constitution. Whether or not to apply the Meiji Constitution to gaichi (i.e., to possess and govern them in accordance with the provisions of the Meiji Constitution) would be a matter of policy, not a matter of jurisprudence.
Minobeâs description of colonies (colonial law) in the Compendium of the Constitution is largely in line with the views he presented in his report at the Jurisprudence Research Seminar. He again states that a colony is a different jurisdiction, and even within the text of the Meiji Constitution, except for âlaws concerning the supreme body of government which by nature must be common throughout the country,â95 the Constitution itself can differ. Minobe was of the opinion that, as a result, the incorporation of a colony into the naichi was no longer a constitutional issue. Rather it would be sufficient to amend the laws in force in the colony to have the same content as laws in the naichi.96
5
The problems surrounding the laws of gaichi were subsequently taken up by scholars such as Kiyomiya ShirÅ of Keijo Imperial University and Nakamura Tetsu of Taipei Imperial University. However, with the loss of all gaichi on August 15, 1945, the subjects and significance of such studies had disappeared. As mentioned at the beginning of this chapter, the territory of Japan is rarely examined from the perspective of constitutional scholarship today. International legal scholarship also considers this issue within the context of the territorial issues that Japan is facing.
This chapter attempted to summarize how Japan as a colonial empire was formed by reviewing the formation of the laws of gaichi with a focus on the debate over the process of concluding treaties for acquiring gaichi and over the application of the constitution to gaichi. As Hatano Sumio points out, Japanâs colonial rule, unlike that of European countries, targeted areas close to Japan, including Taiwan and the Korean Peninsula.97 Since it opened itself up to the world, Japan had simultaneously undertaken modernization (acceptance of international law) and imperialization (the acquisition of colonies based on international law) in East Asia. Needless to say, the colonization of areas controlled by China (Qing), including not only Taiwan but also the Korean Peninsula, marked the beginning of various so-called âissues concerning the recognition of historyâ that continue to this day.
Setting that point aside, while the acquisition of colonies and what kind of legislation to promulgate there were theoretical issues, the issue of the application of the Meiji Constitution also involved political aspects, such as parliamentary strategy and factional strife within the Meiji Government. It is also important to note that under Japanese colonial rule, despite slogans such as âuniversal brotherhoodâ and âJapan and Korea as one,â the colonies, with the exception of Sakhalin, were considered to be different jurisdictions until the end, and no progress was made in incorporating them into the naichi. On March 26, 1945, at the end of World War ii, the House of Representatives adopted the âPetition for the Abolition of the Term Gaichi.â98 However, this
There has been a certain amount of research on (the history of) gaichi legislation up to the present day, not only in terms of history but also in the context of research on the âEmpireâ (research on colonies) and constitutional law in relation to Japan. Much of this work has essentially been conducted from a domestic perspective, and there are relatively few systematic studies conducted with international relations in mind, like that of Asano Toyomi. In addition, in relation to the degree of acceptance of international law in Japan at that time, even fewer have examined gaichi legislation. As mentioned at the beginning of this chapter, there were already Western settlements in the gaichi of Japan, especially Taiwan and Korea, and it was necessary for Japan to negotiate treaties with the Western powers before engaging in its own colonization. Modern international law, which allowed colonial rule, supported the unequal (treaty) system of securing the economic interests of Western Powers and their nationals who maintained a presence there. How did Japan, having accepted such modern international law and worked to revise the unequal treaties it had concluded on the one hand, utilize the logic of modern international law in the development of its own interests, including the acquisition of âcolonies,â and engage in negotiations with the States concerned on the other? Due to the limited space available here, the author wishes to further consider this point in future research.
Okamoto Takashi
Yamamuro Shinichi
Asano Toyomi
Staatsrecht was a distinctive field of 19th century German jurisprudence that sought to analyze the nature of States from a legal standpoint. In the Anglosphere, it generally equated to constitutional law and administrative law, but to avoid confusion, the term Staatsrecht will be used in this chapter.
See, for instance, Åhata TokushirÅ
Okamoto Takashi
Ministry of Justice Collection of Elements of International Law by Henry Wheaton (1883) (National Diet Library Digital Collections NDLBibID S00001116), 35 (last accessed on September 21, 2021).
Ibid., 36.
Tsuda Masamichi (ShinichirÅ)
âThe Fourth Sovereignty Deliberation,â Tokyo Nichi Nichi Shimbun, January 27, 1882.
See Yonehara Ken
Ministry of Education (ed.), The Essence of Japanâs Polity (National Diet Library Digital Collections ndl BibID 000000713777) (last accessed on September 21, 2021).
Ibid., 9.
Iwasawa YÅ«ji
Yanagihara Masaharu
Iwasawa, supra Note 14.
While it is not clear when this view took hold in the field of international law in Japan, this positioning can already be found in Yokota KisaburÅ
Tachi SakutarÅ
Previous research examining the history and discussion points of the Minobe-Tachi controversy include Nakahara Seiichi
ItÅ Hirobumi
Ibid., 27â28.
Ibid., 21.
Ibid., 223.
Ministry of Education (ed.), supra note 12, 9.
Okamoto KÅichi
Kokken KisÅ no Mikotonori
Okamoto, supra note 6, 228â232.
âRecords of the Privy Council Meeting, 1. Draft of the Constitution, 18th June to 13th July, 1888,â Center for Asian Historical Records, National Archives of Japan (jacar) Ref. A03033487900 (last accessed on September 21, 2021).
ItÅ, supra note 20, 21â22.
Ishimura Osamu
There is much previous research on these issues. See, for example, Yanagihara Masaharu
Ishikawa Kenji
A typical example in Japan is that the conscription ordinance based on the proclamation of conscription (DajÅkan Proclamation no.379 of November 28, 1872) was not enforced in Okinawa and Ogasawara until January 1, 1898.
On this point, see Okazaki Mayumi
Legal Affairs Division, Treaty Bureau, Ministry of Foreign Affairs, Gaichi HÅrei Seido no GaiyÅ (Gaichi HÅseishi Dai 2 Bu)
Kiyomiya ShirÅ
Yamazaki TanshÅ
Mukai Hidehiro
For example, see EndÅ Masataka
Okamoto also positions the Sino-Japanese War as a watershed moment in world history. Okamoto Takashi
Kurihara Jun
âNaikakusÅridaijin no Kunreiâ
Ibid., 32â34.
For the relationship between policy on Taiwan before and after the possession of Taiwan and the Constitution, and Haraâs theory of colonial policy in general, see Haruyama Meitetsu
Taiwan Materials, (note 42), 71â74. Page numbers are omitted when quoting. (The same applies hereinafter for this reference material.)
Ibid., 75â77.
ItÅ, supra note 20, 43.
âMr. Kirkwoodâs Opinion on the Taiwan System, the Emperorâs Authority, and the Imperial Dietâ (July 24, 1895), Taiwan Materials (note 42), 78â107.
Ibid., 105.
Establishing ordinance on laws and ordinances to be enforced in Taiwan (jacar Ref. A01200843100).
Kurihara, supra note 41, 49.
Komagome Takeshi
As will be explained below in the main text of this chapter, Act no.64 was enacted as a three-year time-limited law. It was extended to four years by Law no.31 in 1906, and further revised according to Law no.3 in 1921. The relevant minutes of the Imperial Diet are summarized in Legal Affairs Division, Treaty Bureau, Ministry of Foreign Affairs, Minutes of the Laws Concerning Taiwanâs Enforcement Laws (Acts no.63, no.31 and No.3) (Journal of Foreign Legislation Part 3, Annex) (Tokyo: Bunsei Shoin, 1990 [reprint]). According to the preface of the same book, the original stenographic records of the proceedings were created and published by the Governor-General of Taiwan in 1921.
Ibid., 4.
Ibid.
Ibid., 6.
Ariga Nagao
Ibid., 5.
Legal Affairs Division, Treaty Bureau, Ministry of Foreign Affairs, Nihon TÅchika no Karafuto (Gaichi HÅseishi Dai 13 Bu)
Ibid., 5. According to the same book, by the end of 1941, the number of domestic Japanese and Koreans had increased to over 400,000, while the number of other residents was less than 1,000. In addition, the population density was about one-sixth that of the South Sea Islands (6â7).
With regard to the annexation of Korea, as symbolized by the stipulation of Article 2 in The Treaty on Basic Relations between Japan and the Republic of Korea, which declares that âIt is confirmed that all treaties or agreements concluded between the Empire of Japan and the Empire of Korea on or before August 22, 1910 are already null and void,â the debate over its legality and illegality under international law has not been resolved between Japan and the Republic of Korea, and between Japan and North Korea. In addition, controversy continues at the level of historical materials over the signature of Park Jae-sun, Minister of External Affairs (Foreign Affairs) of the Korean Empire, and the circumstances leading up to the signing of the Second Japan-Korea Agreement (Eulsa Treaty). However, regardless of the perceptions of the parties concerned, this chapter will not go into discussion on the legality or illegality of the annexation of Korea itself, based on the fact that the Potsdam Declaration and the San Francisco Peace Treaty were drafted on the premise that Japan actually ruled Korea.
As a matter of course, there are countless previous studies dealing with the annexation of Korea. Examples of research that analyzed the annexation in terms of the resonance between Qing-Korean relations with Korea as an âautonomous Vassal Stateâ and international relations include Okamoto Takashi
Okamoto, Sekai no Naka no Nisshinkan Kankeishi
Ibid.
Unno Fukuju
Ogawara Hiroyuki
Ibid., 22â23.
jacar Ref. A01200064500 (last accessed on September 25, 2021).
Unno, supra note 65, 353.
âDecision on matters concerning the governance of the South Sea Islandsâ (jacar Ref. A01200193500 [last accessed on September 25, 2021]).
Taoka RyÅichi
Legal Division, Treaty Bureau, Ministry of Foreign Affairs, Mandatory Territory of the South Sea Islands, Part 1 (Journal of Foreign Legislation Part 10) (Bunsei Shoin, 1990 [reprint]), 62â64.
Ibid., 65.
Ibid., 58â59.
As an example of evaluating this treatment as âcustom,â see Sakai Kazuomi
TÅmatsu Haruo
Ministry of Foreign Affairs, supra note 72, 59.
Supra note 39, 53â54.
Ibid., 52â53.
Ibid., 132.
jacar Ref. A03021426100 (last accessed on September 25, 2021).
For an overview of the report given that day, see âArticles of the Law Research Society,â HÅgaku KyÅkai Zasshi, vol. 29, no. 11 (November 1911), 162â168.
Minobe Tatsukichi
Ibid., 91.
Ibid., 92.
Ishikawa Kenji
Minobe, supra note 83, 99. As pointed out by Ishikawa in supra note 86, the ryÅiki here refers to the ryÅiki of Japan.
jacar Ref. A01200876000.
jacar Ref. A03020810800.
Supra note 18, 4 (note 2).
Minobe Tatsukichi
For a detailed outline of the controversy, see Ishikawa, supra note 32, 20â25.
On the other hand, Tachi did not change his position on the âreal rights theoryâ even after theories such as the âspatial theoryâ and the âauthority theoryâ were introduced. Tachi SakutarÅ, âThe Concept of a State under International Law and the Territory of a State,â Journal of International Law and Diplomacy, vol. 28, no. 3 (1929), 1â22.
Ishikawa, supra note 32, 25.
Minobe Tatsukichi
Ibid., 154.
Hatano Sumio
Mizuno Naoki
Ibid., 98.
Acknowledgement
This chapter partly includes the outcomes of the 2021 Nanzan University Pache Research Grant i-A-2.
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