Kazuhiro Hayashida exposes the sophistry behind Japan’s “most important ally,” arguing that the postwar U.S.–Japan alliance rests on a treaty structure fundamentally different from Japan’s relations with equal sovereign states.
The Treaty of Peace and Friendship between Japan and the People’s Republic of China explicitly establishes “mutual respect for sovereignty and territorial integrity, mutual non-aggression, mutual non-interference in each other’s internal affairs, equality and mutual benefit, and peaceful coexistence” as the foundation of relations between the two states. Article I obligates both countries to develop permanent relations of peace and friendship on the basis of these principles. Article II establishes a symmetrical relationship in which neither side shall seek hegemony and both shall oppose attempts by any other country or group of countries to establish such hegemony. Japan and China occupy the same legal position and assume the same principles reciprocally with respect to sovereignty, territory, internal affairs, the use of force, and hegemony—the core matters of interstate relations. Their relationship of friendship is fixed in the treaty itself through general principles governing relations between states, independent of goodwill or declarations by political leaders.
The Basic Treaty of Friendship and Cooperation between Australia and Japan likewise provides for the long-term development of bilateral relations on “an equitable and mutually advantageous basis.” The treaty covers a broad range of bilateral relations, including politics, economics, trade, investment, entry, culture, science and technology, and exchanges between their peoples. It positions Japan and Australia as stable suppliers, markets, and partners in cooperation. The two countries are placed on the same plane as states possessing mutual interests. It establishes no fixed division of roles under which one side provides security while the other provides territory.
The Japan–China treaty centers on political principles governing relations between states, while the Japan–Australia treaty centers on comprehensive cooperation. Their common foundations are equality, reciprocity, and mutual respect. These two treaties prove that Japan possesses the ability to design, conclude, and maintain relations of friendship between equal states by explicitly incorporating sovereign equality and mutual benefit into the texts of treaties. Japan’s relations with China and Australia therefore provide the comparative standard by which the legal form of Japan–U.S. relations can be judged.
Between Japan and the United States, the 1953 Treaty of Friendship, Commerce and Navigation provides reciprocal treatment for the entry, residence, business activities, investment, property, commerce, and navigation of the nationals and companies of both countries. The reciprocity created by this treaty centers on the economic activities of private individuals and corporations. It contains no provision establishing mutual respect for sovereignty and territorial integrity, mutual non-aggression, non-interference in internal affairs, equality and mutual benefit, or opposition to hegemony as the foundation of the bilateral relationship as a whole. The Japan–China Treaty of Peace and Friendship defines the political principles governing relations between states. The Japan–U.S. Treaty of Friendship, Commerce and Navigation defines reciprocal treatment in economic activity.
The political and military center of postwar Japan–U.S. relations is the Japan–U.S. Security Treaty. On September 8, 1951, Japan signed the Treaty of Peace with Japan in San Francisco and concluded the original Japan–U.S. Security Treaty that same afternoon. The end of the occupation, the restoration of Japanese sovereignty, and the continuation of the U.S. military presence were established as an integrated arrangement within the same peace settlement. The 1960 Treaty of Mutual Cooperation and Security between Japan and the United States provided for the U.S. defense commitment to Japan, prior consultation, and self-help and mutual aid. Through Article VI, it continued the right of the United States Army, Air Force, and Navy to use facilities and areas in Japan.
The geographical scope of Article V is “the territories under the administration of Japan.” The United States acts to meet the common danger, in accordance with its constitutional provisions and processes, in the event of an armed attack against territories under Japanese administration. Japan provides facilities and areas within its territory to U.S. forces. No corresponding right grants Japan the use of facilities and areas within the United States. The United States is positioned as the provider of military power and deterrence, while Japan is positioned as the provider of territory and the conditions for base use. This distribution of roles makes the rights and obligations between Japan and the United States asymmetrical.
The comparison with China and Australia becomes decisive at this point. In its treaty with China, Japan explicitly affirmed mutual respect for sovereignty and territorial integrity, mutual non-aggression, non-interference in internal affairs, equality, and mutual benefit. In its treaty with Australia, Japan explicitly established an equitable and mutually advantageous relationship as the basis of bilateral cooperation. In relations with the United States, economic relations are governed by the Treaty of Friendship, Commerce and Navigation, while security relations are governed by the Japan–U.S. Security Treaty. Even when these two treaties are considered together, they do not constitute a comprehensive general treaty of friendship that fixes the bilateral relationship as a whole on the principles of sovereign equality, mutual non-aggression, non-interference in internal affairs, equality, and mutual benefit.
This comparison establishes that the absence in Japan–U.S. relations is selective. The claim that Japanese diplomacy lacks the treaty form of friendship cannot stand. Japan has actually adopted that form in its relations with China and Australia. Japan possesses the ability to design, conclude, and maintain treaties of friendship between equal states, and existing precedents prove it. Only between Japan and the United States is there no general treaty of friendship of the same type. This absence does not arise from any deficiency in Japan’s treaty-making capacity. It is sustained by the specific historical formation of Japan–U.S. relations and by the assignment of the United States as the security provider and Japan as the territorial provider.
The expression “Japan and the United States are each other’s most important allies” is political sophistry placed over this legal structure. “Most important” expresses a hierarchy of value defined by the Japanese government, while “ally” signifies membership in the Japan–U.S. security system. These two words are not treaty provisions guaranteeing sovereign equality, mutual non-aggression, non-interference in internal affairs, equality, and mutual benefit. Through the repeated use of “most important ally,” security dependence is represented as political intimacy, and that intimacy is converted through the language of friendship into the appearance of equality.
Intimacy, friendship, and equality belong to different legal and political layers. Intimacy is a political assessment made by governments. Friendship is diplomatic language used to describe interstate relations. Equality is the reciprocity of concrete rights and obligations. In Japan–U.S. relations, political intimacy is strongly promoted while a clear asymmetry remains within the rights and obligations of the security system. The use of facilities and areas by U.S. forces is described as “the foundation of the alliance.” Japan’s provision of territory is described as “a contribution to security.” U.S. military superiority is described as “deterrence.” This arrangement of vocabulary converts the asymmetry of rights and obligations into a narrative of friendship and protection.
Through this conversion, the absence of a general treaty of friendship becomes difficult to recognize as a problem. The assertions that Japan–U.S. relations are already paramount, strong, and unshakable are placed first, thereby suspending the question of the principles upon which relations between the two countries have been legally fixed. Political intimacy is used as a substitute for legal equality, while the emotional and political language of “alliance” conceals both the absence of a general treaty of friendship and the asymmetry embedded in the security relationship.
When this Japan–U.S. treaty system is measured historically, its continuity with the Treaty of Amity and Commerce concluded during the final years of the Tokugawa shogunate becomes visible. The 1858 Treaty of Amity and Commerce established the opening of ports and cities, free trade, unilateral consular jurisdiction over U.S. nationals, and treaty-fixed Japanese tariff rates. U.S. nationals remained within Japanese territory while being separated from Japan’s ordinary judicial jurisdiction. The Japanese state lost the authority to determine its own tariff rates independently. Unilateral consular jurisdiction and the loss of tariff autonomy were the central components of the unequal treaty imposed during the final years of the shogunate.
Under the present Japan–U.S. system, Article VI of the Japan–U.S. Security Treaty grants the United States Army, Navy, and Air Force the right to use facilities and areas within Japan. The specific conditions governing the use of those facilities and areas and the legal status of U.S. forces are regulated by the Japan–U.S. Status of Forces Agreement, the Agreed Minutes, and agreements of the Japan–U.S. Joint Committee. The relevant legal unit of comparison is therefore the integrated treaty system composed of the Japan–U.S. Security Treaty, the Status of Forces Agreement, the Agreed Minutes, and Joint Committee agreements.
The Japan–U.S. Status of Forces Agreement regulates the granting and return of facilities and areas, control within and around them, the entry and movement of U.S. military vessels and aircraft, the entry and departure of military personnel, civilian components, and their dependents, customs duties and customs inspections, taxation, criminal jurisdiction, compensation for damages, and the allocation of costs. Many implementation matters, including the conditions governing individual facilities and areas, are determined through agreements of the Japan–U.S. Joint Committee. Japanese sovereignty continues to exist formally, while a special legal sphere covering U.S. military facilities, activities, personnel, and property is incorporated within it. Within this special legal sphere, Japan’s ordinary territorial authority, judicial authority, administrative authority, and fiscal authority are partially suspended.
The treaty imposed during the final years of the shogunate created a special sphere centered on ports, open cities, foreign residence, commerce, and tariffs. The present treaty system creates a military special sphere centered on bases, training areas, ports, airfields, U.S. military personnel, and civilian components. Both systems perform the same function: they give priority to the activities of a foreign power within parts of Japanese territory and subordinate Japan’s ordinary exercise of sovereignty to special rules. The special commercial sphere formed during the final years of the shogunate has been converted under the present Japan–U.S. system into a special military sphere. The institutional object has changed, while the principle of allocating part of Japan’s territorial sovereignty preferentially to a foreign power has been inherited.
In the field of jurisdiction, the unilateral consular jurisdiction established by the treaty during the final years of the shogunate personally excluded U.S. nationals from Japanese jurisdiction. Article XVII of the Japan–U.S. Status of Forces Agreement divides jurisdiction between Japan and the United States and grants the United States the primary right to exercise jurisdiction over offenses committed by members of the U.S. armed forces or civilian components while performing official duties, among other categories. Even under the present system, jurisdiction exercised by a foreign power takes precedence over acts committed within Japan on the basis of the offender’s status and the official character of the act. Both systems use the special status of foreigners to exclude or subordinate Japan’s ordinary jurisdiction.
The same principle of inequality operates in the field of fiscal authority. The treaty concluded during the final years of the shogunate bound Japan’s national tariff rates by treaty. The Japan–U.S. Status of Forces Agreement provides tax exemptions for property held, used, or transferred by U.S. forces, customs-duty and customs-inspection exemptions for specified goods, and tax exemptions for certain income and property of U.S. military personnel and related persons. The legal operation is inherited: foreign property, goods, and income that would ordinarily be subject to Japanese taxation and inspection are removed from the ordinary system through a special treaty-based status.
An unequal treaty can be identified through five conditions: the creation of a special legal sphere for a foreign power; restrictions on the ordinary legal authority of the territorial state; the non-reciprocal character of the privileges; the requirement of the other state’s consent for revision; and conclusion under an asymmetry of military and political power. These criteria measure which components of state sovereignty are preferentially allocated to a foreign power through treaty. The present Japan–U.S. security and status-of-forces system satisfies all five conditions.
Consular jurisdiction and tariff privileges under the treaty imposed during the final years of the shogunate were granted to the United States, while no corresponding special sphere for Japanese nationals was established within the United States. Under the present Japan–U.S. system, U.S. forces use facilities and areas within Japan and possess special status in matters of entry, jurisdiction, customs duties, and taxation. No mirror-image system permits the Japan Self-Defense Forces to maintain equivalent facilities and areas permanently within the United States or allows Japanese authorities to exercise the same primary jurisdiction, tax exemptions, and entry privileges there. These privileges are established in one direction, from the United States into Japan.
The U.S. defense commitment provides Japan with a security benefit. The provision of defense and the authority inherent in territorial sovereignty are distinct legal interests. The relationship consists of an exchange: the United States provides military power and deterrence, while Japan provides territory, facilities and areas, and legal privileges. This relationship does not create sovereign reciprocity under which both sides guarantee the same rights to each other. It fixes an asymmetrical division of roles between a security-providing state and a territory-providing state.
The 1858 Treaty of Amity and Commerce was negotiated under U.S. military pressure and signed by the shogunate without imperial sanction. The original 1951 Japan–U.S. Security Treaty was signed on the same day as the peace treaty that ended the Allied occupation. The restoration of sovereignty and the continuation of the U.S. military presence were established within the same peace process. The 1960 treaty was ratified through Japan’s constitutional procedures and provides a right of unilateral notification to terminate the treaty. Japan, however, cannot preserve the treaty system while unilaterally abolishing the individual restrictions on its sovereignty concerning the use of facilities, jurisdiction, taxation, and entry. Revision of the Status of Forces Agreement requires U.S. consent. The structure under which Japan requires U.S. approval to remove restrictions on Japanese sovereignty remains in force.
The 1858 Treaty of Amity and Commerce and the present Japan–U.S. security and status-of-forces system govern different subjects and fields of application. They nevertheless possess an equivalent structure of sovereignty: a foreign power is granted a special sphere of activity within Japan; Japan’s ordinary judicial, administrative, and fiscal authority over that sphere and its personnel is partially suspended; and these privileges are established unilaterally rather than through reciprocity. The treaty imposed during the final years of the shogunate granted the United States special rights in commerce, jurisdiction, and tariffs. The present Japan–U.S. treaty system grants the United States special rights concerning military facilities, base operations, military personnel and civilian components, criminal jurisdiction, entry, customs duties, and taxation. The present Japan–U.S. security and status-of-forces system is an equivalent unequal treaty: a military and territorial reorganization of the unequal treaty imposed during the final years of the shogunate.
During the final years of the shogunate, the words “amity” and “commerce” wrapped consular jurisdiction and the loss of tariff autonomy in the language of friendship and prosperity. Today, the terms “mutual cooperation,” “security,” “deterrence,” and “most important ally” wrap the provision of territory, base use, divided jurisdiction, and special fiscal status in the language of cooperation and protection. Amity and commerce concealed inequality during the final years of the shogunate; alliance and deterrence conceal inequality today. The names and political language have changed, while the structure incorporating the superior position of a foreign power into Japan’s domestic legal order has been inherited.
The central issue in the treaty structure is how Japan has legally fixed its relationship with the other state: as a general relationship of friendship between two equal states, or as a relationship of roles between a security provider and a territorial provider. Japan’s relations with China and Australia possess a legal form based on equality, reciprocity, and mutual respect. Japan’s relationship with the United States possesses an unequal legal form based on the provision of security by the United States and the provision of territory, bases, and legal privileges by Japan. The political and emotional expression “most important ally” serves to conceal this difference in legal form.
The chain of evidence is continuous. The equal treaties of friendship with China and Australia prove Japan’s treaty-making capacity and provide precedents. Comparison with those treaties exposes the absence of a general treaty of friendship of the same type between Japan and the United States. At the legal center of Japan–U.S. relations lies an asymmetrical assignment of roles: the United States as the security-providing state and Japan as the territory-providing state. This assignment reorganizes into a military and territorial system the foreign privileges and restrictions on Japanese sovereignty contained in the unequal treaty imposed during the final years of the shogunate. The political explanation of the “most important ally” has concealed this absence and these restrictions on sovereignty beneath the emotional language of intimacy.
Japan can conclude treaties of friendship between equal states. Japan actually maintains such treaties with China and Australia. Between Japan and the United States, no general treaty of friendship fixes sovereign equality, mutual non-aggression, non-interference in internal affairs, equality, and mutual benefit as the foundation of the bilateral relationship as a whole. Japan–U.S. relations are legally fixed as an asymmetrical treaty system premised on the security treaty, the presence of U.S. forces, the use of bases, and the special legal status of the U.S. military.
The unilateral political valuation expressed by “most important ally” is sophistry that uses an emotional assessment of friendship to conceal the absence of a general treaty of friendship between equal states and the asymmetry of the underlying structure of sovereignty. The problem in Japan–U.S. relations lies in the structure of the state itself: it has not legally fixed its relationship with the United States on the basis of sovereign equality; it has fixed the United States as the security provider and Japan as the territorial provider; and it partially suspends the exercise of Japanese sovereignty through special rights granted to a foreign power. The present Japan–U.S. security and status-of-forces system is an unequal treaty equivalent to the Treaty of Amity and Commerce imposed during the final years of the Tokugawa shogunate.
(Translated from the Japanese)
Order MISHIMA’S FLAME: Samurai Ethics in Art and Action, with an foreword by the author of this essay, from Multipolar Press here.
Very redundant article! Brings in mind ecclesiastical literature of the XIXth century...