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The Treaty-Making Power in Japan1

Published online by Cambridge University Press:  12 April 2017

Kenneth W. Colegrove
Kenneth W. Colegrove*
Affiliation:
Northwestern University
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Extract

Viewed from the functional attitude, few aspects of international government offer more difficult problems than the constitutional process for negotiating, ratifying, executing and revising interstate agreements. Defects in the organizations for international cooperation are matched by imperfections in the internal machinery for asserting the will of states in collective undertakings. Certainly the constitutional development of the control of foreign policy has not kept pace with recent progress in international government as typified by the League of Nations and the International Labor Organization. The World War brought a more liberal control of foreign affairs in Germany and Austria. But in most countries, constitutional development in the supervision of the foreign office moves more slowly than in other fields of public law; and in all countries proposed changes in the mechanism of the regulation of international relations meets the powerful resistance of conservatism and national prejudice.

Type
Research Article
Information
American Journal of International Law , Volume 25 , Issue 2 , April 1931 , pp. 270 - 297
Copyright
Copyright © American Society of International Law 1931

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Footnotes

1

Translations of Japanese sources used in this article were made by Mr. Sterling Tatsuji Takeuchi.

References

2 Commentaries on the Constitution of the Empire of Japan, by Count Hirobumi Ito, translated by Miyoji Ito (Tokyo, 1889), pp. 26-28.

3 Teiyo, Kempo or Principles of the Constitution (Tokyo, 1910), Vol. I, p. 766. Hozumi was professor of constitutional law from 1891 to 1912 and dean of the law faculty of the Imperial University of Tokyo from 1898 to 1912. He is not to be confused with Baron Hozumi- Nobushige, the well known professor of family law on the same faculty.Google Scholar

4 Teiyo, Kempo (Tokyo, 1927), p. 126. Minobe-Tatsukichi has served since 1903 as professor of administrative law and constitutional law in the law faculty of the Imperial University of Tokyo, becoming dean of the faculty in 1925.Google Scholar

5 Minobe's, article on “ Domestic Effect of Treaties” in the Kokka Gakkai Zashi, or Journal of Political Science,.July, 1905, Vol. XIX, No. 7, p. 187. Cf. Shimizu, Kempo Hen, or Constitutional Law (Tokyo, 1923), p. 1257.Google Scholar

6 Kempo Teiyo (1910), Vol. I, pp. 185-202.

7 Jutsugi, Kempo or Commentaries on the Constitution (Tokyo, 1927), Part III, p. 621.Google Scholar

8 Hoshijima-Jiro, (ed.), Kempo Ron, Saikin , or Recent Tendencies in Constitutional Law (Tokyo, 1927), pp. 60-61 Google Scholar. “ The theory that the Emperor as giver of the Constitution stands above it and is not bound by it does not hold today.” Ichimura-Kokei, , Kempo Ron, Teikoku or ommentaries on the Imperial Constitution (Tokyo, 1926), p. 232.Google Scholar

9 Gaiko Jiko, or Revue Diplomatique, March 1, 1929, Vol. 49, No. 5, pp. 51-68.

10 Kwampo gogai, or Imperial Gazette (Appendix), March 26, 1929, pp. 1026-1030.

11 For the views of Minobe, Yanagi, Tachi and Kamikawa, see a pamphlet entitled “ In the Names of Their Respective Peoples,” published in Tokyo in 1929. Cf. an article by Kasama in Gaiko Jiho, April 1, 1929, Vol. I, No. 1, pp. 33-53.

12 Tokyo Asahi Shimbun, Sept. 16, 1928, p. 6.

13 Cf. Minobe, Kempo Seigi, or Commentaries on the Constitution (Tokyo, 1928), pp. 268270; and his Kempo Teiyo (1927), pp. 472-473; Matsumoto, Kempo Genron, or Commentaries on Constitutional Law (Tokyo, 1926), pp. 937-939.

14 Joyakurlaan, or Collection of Treaties (Foreign Office, Tokyo, 1919), pp. 682-683.

15 Anson, Law and Custom of the Constitution (1907), Vol. II, pp. 296-300.

16 Esmein, A. , Droit constitutionnel (Paris, 1928), Vol. II, pp. 198-211 Google Scholar; Duguit, Leon, Traité de droit constitutionnel (Paris, 1924), Vol. IV, pp. 795-802 Google Scholar; Pierre, Eugène , Traité de droit politique, tlectoral, et parlementaire (Paris, 1908), sec. 550Google Scholar; Michon, Louis , Les tratiés internationaux devant les chambres (Paris, 1901), Ch. IIGoogle Scholar; Mérignhao, Alexandre , Traité de droit public international (Paris, 1905-1912), Vol. II, p. 652 Google Scholar.

17 Liszt, Franz von , Völkerrecht (ed.Fleischmann, Berlin, 1925), p. 256 Google Scholar.

18 Genko Horei Shuran, or Compilation of Laws and Ordinances in Force (Tokyo, 1927), Vol. I, Book III, p. 5. An English translation of this ordinance was published in the Japan Weekly Mail, May 12, 1888, pp. 444-445, and is reprinted in W. W. McLaren, “ Japanese Government Documents” (Transactions of the Asiatic Society of Japan, Tokyo, 1914), Vol. XLII, Pt. I, pp. 127-132.

19 Tokyo Asahi Shimbun, Aug. 13, 1930, p. 2; Osaka Mainichi Shimbun, Aug. 13, 1930, p. 2; Japan Weekly Chronicle, Aug. 21, 1930, p. 231.

20 See Imperial Ordinance No. 22 of 1888, Ch. III.

21 Tokyo Asahi Shimbun, Aug. 20,1930, p. 4; Japan Weekly Chronicle, Aug. 28,1930, p. 261.

22 Kempo Teiyo (1910), Vol. II, pp. 560-571. Cf. Uyesugi, Kempo Jutsugi (1927), pp. 648-649, 664-672, 701-704; Shimizu, Kempo Hen (1923), pp. 1099-1106.

23 Cf. Minobe, Kempo Seigi, or Commentaries on the Constitution (Tokyo, 1928), pp. 553-558, and his Kempo Teiyo (1927), pp. 501-508; Ichimura, Teikoku Kempo Ron (1926), pp. 294r-295; Royama's article on “ Reform of the Privy Council” in Kaizo, Aug. 1928, Vol. X, No. VIII, pp. 50-55.

24 Tokyo Asahi Shimbun, Sept. 4, 1930, p. 2. Cf. Tokyo Jiji Shimpo, Sept. 4, 1930, p. 2; Japan Weekly Chronicle, Sept. 11, 1930, p. 316.

25 Japan Advertiser, April 15, 16, 17, 1929; Tokyo Asahi Shimbun, April 18, 19, 20, 1929; Tokyo Jiji Shimpo, April 20, 1929, p. 1; Japan Weekly Chronicle, April 25, 1929, p. 480.

26 Tokyo Asahi Shimbun, Aug. 9, 1930, p. 2; Tokyo Jiji Shimpo, Aug. 14, 1930, p. 1; Japan Weekly Chronicle, Aug. 21, 1930, p. 231.

27 Cf. Gaiko Jiho, Vol. XXXII, Jan. 15, 1923, No. 2, p. 415.

28 Tokyo Asahi Shimbun, Jan. 24, 1923, p. 1; Tokyo Nichi Nichi Shimbun, Jan. 24, 1923, p. 2. Cf. Admiral Kato's reply to Representative Seki, Kwampo gogai, Feb. 2, 1923, pp. 120-121; and Miyata, Admiral Kato Tomosaburo Den, or Life of Admiral Kato-Tomosaburo (Tokyo, 1928), pp. 163-165.

29 Gikai Shugiin Iinkaigiroku, or Proceedings: Budget Committee of the House of Peers, 46th Diet, Part I, No. 2, pp. 4-6.

30 Ibid., Part I, No. 5, pp. 13-14.

31 Cf. Tokyo Asahi Shimbun, April 11,1929, p. 1; Osaka Mainichi Shimbun, April 11,1929, p. 1; Tokyo JijiShimpo, April 11, 1929, p. I; Japan Weekly Chronicle, April 18, 1929, p. 455.

32 Tokyo Asahi Shimbun, April 13, 1929, p. 6.

33 This passage occurs in Professor Hozumi's well-known article “ Various Questions relating to Treaties” in reply to an earlier article by Professor Minobe, published in Hogaku Kyokai Zashi, or Journal of Studies in Public Law, Oct. 1905, Vol. XXIII, pp. 1359-1360. Cf. his Kempo Teiyo (1927), Vol. II, pp. 766-786.

34 Kempo Jutsugi (1927), pp. 629-630.

35 Cf. Professor Minobe's, article on “ Domestic Effect of Treaties” in Kokka Gakkai Zashi, July, 1905, Vol. XIX, pp. 173-201.Google Scholar

36 Kempo Seigi (1928), pp. 276-278.

37 Kempo Hen (1923), p. 268. Dr. Shimizu-Cho is a judge of the Gyosei Saibansho, or Administrative Court in Tokyo, and Secretary of the Home Office.

38 Dai Nippon Teikoku Gikaishi, or Parliamentary Record of the Imperial Japanese Diet, Vol. XI (Feb. 12, 1920), p. 1493.

39 Ibid., Vol. XI (Feb. 17, 1920), pp. 1777-1779.

40 Kempo Seigi (1928), pp. 278-279. Cf. his Gyoseiho Satsuyo, or Principles of Administrative Law (1929), Vol. I, p. 65; and his 41 “Domestic Effect of Treaties” in Kokka Gakkai Zashi, July, 1905, Vol. XIX, No. 7, p. 201.

41 Mr. Justice Field: “ By the Constitution a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. When the two relate to the same subject, the courts will always endeavor to construe them so as to give effect to both, if that can be done without violating the language of either; but if the two are inconsistent, the one last in date will control the other, provided always the stipulation of a treaty on the subject is self-executing.” Robertson, Whitney v. (1888), 124 U. S. 194. For citation of cases see Hyde, International Law (1922), Vol. II, pp. 59-60; Crandall, Treaties (1916), pp. 161-162.Google Scholar

42 Kempo Seigi (1928), p. 278.

43 Kempo Hen (21st ed., 1923), p. 1268.

44 Gyoseiho Kogi, or Lectures on Administrative Law (Tokyo, 1926), p. 31; and an article by Kimura-Motoo on “ Treaties” in Kokka Gakkai Zashi, or Journal of Political Science, Vol. IX, Sept.-Nov. 1895, pp. 709, 784, 906.

45 Article on “ Various Questions Relating to Treaties” in Hogaku Kyokai Zashi, Oct. 1905, Vol. XXIII, No. 10, pp. 1365-1366.Google Scholar Cf. his Teiyo, Kempo (1910), Vol. II, p. 780, and an article by Professor Sakutaro, Tachi-on “ Effect of Treaties” in Kokka Gakkai Zashi, Vol. XXXI, Dec. 1917, No.12, p.1803.Google Scholar

46 Ichimura, Teikoku Kempo Ron (13th ed., 1926), p. 875. Uyesugi, Kempo Jutsugi (1927), pp. 631-632.

47 Dai Nippon Teikoku Gakaishi, or Parliamentary Records of the Imperial Japanese Diet (Feb. 15, 1893), Vol. II, p. 904. The text of the resolution is found on p. 1579.

48 Dai Nippon Teikoku Gakaishi, Vol. II, pp. 1767-1769.

49 Teikoku Kempo Ron (1926), p. 881.

50 The Koshikirei was issued on Feb. 1, 1907, by Imperial Ordinance No. 6 of the year 1907, and amended by Imperial Ordinance No. 145 of the year 1921. Genko Horei Shuran (1927), Vol. I, Bk. I, pp. 45-46.

51 Cf. Minobe, Kempo Seigi (1928), pp. 280-281.

52 Commentaries (1889), p. 128. Attention should be called to the fact that this commentary refers not only to Article XIII of the Constitution regarding the Throne's treatymaking prerogative, but also to Article X which provides: “ The Emperor determines the organization of the different branches of the administration, and salaries of all civil and military officers, and appoints and dismisses the same. Exceptions especially provided for in the present Constitution or in other laws, shall be in accordance with the respective provisions bearing thereon.”

53 Department of Communications Ordinance No. 8 of 1927. Genko Horei Shuran (1927), Vol. I l l, Bk. XVII, pp. 916-931. The Aviation Law of April 9,1921 (No. 54 of 1921) makes no reference to the International Air Navigation Convention of 1919 which Japan signed and ratified. Ibid., Vol. Il l, Bk. XVII, pp. 914-916.

54 Alien Land Law of April 1, 1925 (Law No. 42 of 1925). Genko Horei Shuran (1927), Vol. II, Bk. XIV, p. 123.

55 Genko Horei Shuran (1927), Vol. II, Bk. XIV.

56 Minobe, Kempo Seigi (1928), p. 272.

57 Ibid. (1927), p. 273.

58 Conference Internationale du Travail, 1988 (Genève, 1928), Vol. I, p. 177. Cf. Scelle, Georges L'Organization Internationale du travail et le B. I. T. (Paris, 1930), pp. 164­175.Google Scholar

59 Kwampo gogai, Feb. 20, 1929, pp. 369-370. Cf. Japan Weekly Chronicle, Feb. 28, 1929, pp. 252-253. See also a speech by Nishio-Suyehiro, Kwampo gogai, April 27,1928, p. 32. Another attitude is revealed by the speech reported to have been made by Fujita-Kenichi, the Japanese employer's delegate, on his departure for the Conference of 1928, to the effect that: “ The decisions of the Conference are like unnegotiable promissory notes issued by unreliable merchants.” Conference Internationale du Travail, 1988, Vol. I, p. 178.

60 Cf. Scelle, pp. 173-174.

61 Attention also should be called to Article VII of the Ordinance concerning the Organization of the Cabinet, which reads: “ With the exception of military or naval affairs of grave importance which, having been reported directly to His Majesty the Emperor, may be submitted to the Cabinet for consideration, the Ministers of State for War and the Navy shall report to the Minister President of State.” Imperial Ordinance No. 135 of 1889, amended by Imperial Ordinance No. 7 of 1907. Genko Horei Shuran (1927), Vol. I, Bk. Ill, p. 1.

62 Tokyo Asahi Shimbun, April 3, 1930, p. 4; April 12, p. 3; April 13, p. 3; Jiji Shimpo, April 3,1930, p. 4; April 13, p. 4; Japan Weekly Chronicle, April 10,1930, p. 361; April 17, p. 390.

63 Cf. the speeches of General Shimizu, Admiral Sakamoto and Baron Ikeda in the House of Peers. Kwampo gogai, May 7, 1930, pp. 78-86; May 12, 1930, pp. 120-134.

64 Cf. his articles on “ The London Conference and the Scope of the Power of the Supreme Command” in Tokyo Asahi Shimbun, Mar. 2, 4 and 5, 1930; and his article on “ The Relation of the Military and Naval Authorities to the Government” in Kaizo, Vol. XII, July, 1930, No. 6, pp. 19-26.

65 Cf. Sasaki's, articles on “ The Power of the Supreme Command” in Osaka Mainichi, May 1, 2, 3, 4 and 5,1930; and his “ The Relation between the Government and the Military Authorities in the Determination of Military and Naval Strength” in Kaizo, Vol. XII, July, 1930, No. 7, pp. 104-126.Google Scholar Dr. Yoshino, , “ Controversy over the Supreme Command” in Chuo-Koron, June and July, 1930, Nos. 509 and 510, pp.129-140, 159-168Google Scholar. Dr. Nakano, , “Municipal Law and the Supreme Command” in Gaiko Jiho, Oct. 1, 1930, No. 620, pp. 122-134; Nov. 1, No. 622, pp. 34-47; Nov. 15, No. 623, pp. 33-43.Google Scholar

66 Kwampo gogai, May 7, 1930, pp. 79-84; May 8, pp. 88-91; May 12, pp. 126-130; May 14, pp. 179-183.

67 On introducing Ms motion of no-confidence against the Tanaka government on Feb. 9, 1929, Hamaguchi, leader of the Minseito, had indicated Tanaka's failure to come to terms with the Nationalist Government in China as first among the three indictments of the Seiyukai government. Kwampo gogai, Feb. 10, 1929, p. 279. Japan Weekly Chronicle, Feb. 21, 1929, p. 215.

68 Kwampo gogai, March 26,1929, p. 1035. Japan Weekly Chronicle, April 4,1929, p. 400.

69 Tokyo Asahi Shimbun, Aug. 3, 1930, p. 2; Aug. 7, p. 2. Cf. an article by Yoshino-Sakuzo on “ The Meaning of a United Country” in Chuo Koron, Oct. 1928, No. 489, pp. 63-67. For a discussion of the earlier Advisory Council on Foreign Affairs which existed from 1917 to 1922, see article by Professor Sasaki on “ The Advisory Council on Foreign Affairs and the Constitution” in Kokka Gakkai Zashi, Vol. XXXI, Aug. 1917, No. 8, pp. 1137—1169.