Lawful and just are two separate things that may be irreconcilable. A good example that offers plenty of material to fathom this out was the annexation of Korea by Japan.
Both in Japan and Korea the legality and legitimacy of the annexation has been discussed repeatedly at great length. Predictably, the received answers on both sides of the Tsushima Strait do not concur. While Japan insists on the legality of its acts, Korea emphasizes the unjustness of the colonial project. Both have a point.
This shows that international law is an instrument not to create justice but rather to make interstate relations manageable. The similarity among nationalities that have difficulty benefiting from the application of international law at the beginning of the 20th century and at the beginning of the 21st century — in Kurdistan, Bosnia-Herzegovina and Palestine, for example — makes it hard to refute those who argue that international law is an instrument of domination designed to promote the survival of the fittest.
The Japanese annexation of Korea is one example of how the rules of the international order were changed to the detriment of a weak nation that fell prey to a stronger one, being eradicated as an autonomous political entity as a result. The role that international law played in the process that led to the dissolution of the Korean state and its incorporation into the Japanese empire is the subject of this informative book.
In a skillful narrative, Alexis Dudden, a professor of history at Connecticut College, unravels the web of bilateral contracts and international covenants that Meiji Era politicians tied in order to secure Japan’s ascent to the ranks of international powers and to support its claim on Korea. As she convincingly demonstrates, both of these objectives were inseparable; for there was no more effective way of manifesting independence than by denying it to others. According to the logic of imperialist thinking, a “sovereign,” “independent” nation was defined by the ability to control colonial space, to govern people unfit to govern themselves.
Against this background, Japan’s colonial experience is a classical case of howling with the wolves, and wolves the imperialist powers most certainly were. Unified in ethnic and linguistic terms, in control of its own territory and self-governed for many centuries, Korea was an unlikely victim of colonial subjugation. Korea’s tributary relationship with the Chinese court, which did not mean much in terms of actual influence on the Korean government, offered the only point of attack. And accordingly, it was China’s position that Japan first undermined. Japan’s expansion was in accord with the spirit of the time, and the world; the then-recognized independent nations looked on without much interest or as active accomplices.
Dudd shows how by translating and using Western legal terms in international negotiations, Japan invalidated China’s long-held position in East Asia as definer of terms and thus established itself as the champion of international law in the region. “Protectorate,” “sovereignty,” “independent state,” “treaty port,” “mandate territory” and many other terms had no obvious counterpart in the legal language of Chinese. They were elements of a new “vocabulary of power” that transformed international relations in the Far East. Japan was the arbiter of this process.
Ito Hirobumi and other leading politicians realized early on that Japan’s best chances to survive the onslaught of Western imperialism lay in an adoption of the terms under which the “Powers,” as the imperialist countries of the West referred to themselves at the time, operated. They were shrewd diplomats who clearly understood both the language of power and the power of language. Western law was phrased in Western languages, French and English in particular. If Japan was to engage in the power politics of the day and participate in shaping the international order to its advantage, these languages with their specialized terminologies had to be mastered. For the Meiji government’s ultimate goal, the revision of the “unequal treaties,” this was an indispensable prerequisite.
In a remarkable example of Japan’s deft language diplomacy, Hirobumi negotiated the Tianjin Convention with China in 1885 in English, the European language he knew best. This choice of language demonstrated to the Qing Court and the world that Chinese terms were no longer suitable for defining international relations.
Empire building was a legal endeavor, and although it was largely perceived as the “white man’s burden,” resistance against Tokyo’s claims to engage in like pursuits faltered after Japan’s victorious war against Russia in 1905. Passing the ultimate test of being a sovereign nation, Japan became a protective power, seizing control of Korea’s foreign relations. The Koreans had never asked to be protected, but the Powers recognized that Japan was acting in accordance with their precepts of international order and, therefore, actively participated in robbing Korea of its autonomy. In a 1905 secret agreement with Japan, the Americans traded the Philippines against Korea, and the British acknowledged Japan’s interest in Korea in exchange for Japan’s recognition of British rule in India.
Dudden reconstructs the diplomatic history of Japan’s encroachment on Korean independence advancing step by step along a path acceptable to the imperialist powers. European legal advisers the Meiji government had brought to Japan, most notably French legal scholar Gustave Boissonade, played an important role instructing the Japanese “in the practice of civilized states,” a practice that emphasized legally codified relations between “civilized states” and did not obligate Japan to act in a morally justifiable manner. When Japan’s formal annexation of its protectorate was eventually made official in 1910, it was perfectly legal and met with no objections by the Powers.
The Meiji leaders had thus accomplished their objective, but at a price. The legacy of Japan’s imperialist adventure is still felt. By establishing an iron-fist colonial regime that was legal, but never morally acceptable or legitimate, the Japanese fostered deep-rooted resentment in the Korean population that continues to beset relations between Tokyo and Seoul, not to mention Pyongyang, to this day. At the same time, the annexation of Korea transformed Japan from within. By submitting to international law as defined by and for the benefit of the imperialist powers, Japan irreversibly changed its outlook on the world. Foreign relations were to be framed in terms of international law. Since “international terms empower the strong,” as Dudden pointedly puts it, and since Japan’s foreign policy is predicated on international law, it is at times hard to reconcile with accepting moral responsibility for past wrongs and making friends with neighbors.
The recent sovereignty row over the Takeshima/Tok-do islands — when South Korean President Roh Moo Hyun warned against a “diplomatic war” — is a bitter reminder that the legacies of the colonial past lurk just below the surface. Dudden’s book greatly contributes to our understanding of this part of East Asian history and of how international law was used to establish an unjust regime.