{"id":50150,"date":"2017-05-29T09:46:40","date_gmt":"2017-05-29T00:46:40","guid":{"rendered":"https:\/\/www.waseda.jp\/top\/?p=50150"},"modified":"2018-10-19T16:01:44","modified_gmt":"2018-10-19T07:01:44","slug":"waseda-frontline-research-vol-15-aiming-to-organize-the-legal-system-related-to-state-responsibility-part-2-of-2","status":"publish","type":"post","link":"https:\/\/www.waseda.jp\/inst\/research\/news-en\/50150","title":{"rendered":"Waseda Frontline Research Vol.15: Aiming to organize the legal system related to state responsibility (Part 2 of 2)"},"content":{"rendered":"

Researcher on international law
\nHiroyuki Banzai, Professor, Faculty of Law<\/h3>\n

Ministry of Foreign Affairs
\nKimitake Nakamura, Director of the Treaties Division, International Legal Affairs Burea<\/h3>\n

Challenges for practitioners and scholars of international issues<\/h2>\n

\"bannzaisennsei2-1kai\"
\nKimitake Nakamura from the Ministry of Foreign Affairs teaches Advanced International Law (International\u00a0Security\u00a0Affairs), a third-year\u00a0administration course at the School of Law. He and Professor\u00a0Hiroyuki Banzai, who initially invited Mr. Nakamura to Waseda University, shared their respective perspectives as\u00a0practitioners and scholars of international law on the challenges in international issues.<\/p>\n

Division of roles of researchers and practitioners<\/h3>\n

Banzai:<\/strong>\u3000For researchers, treaties are research topics, but for someone like you involved in the practical affairs of\u00a0diplomacy, a treaty is something that needs to be written. When drawing up a treaty, how do you balance its legal\u00a0aspects with policy in order to reflect Japanese foreign policy interests?
\nNakamura:<\/strong>\u3000If Japan is to strengthen foreign trade while cooperating with other countries to remain a\u00a0peace\u00a0and stable nation, all important items must always be documented, and the most important ones are treaties. Asyou said, for us practitioners, a treaty is something we assertively\u00a0and proactively\u00a0go to write in order to realize\u00a0policies vital for Japan. In doing so, we must carefully follow the\u00a0general\u00a0rules of international law, which\u00a0have been created over time through the actions of countries around the world.
\nBanzai:<\/strong>\u3000The role of researchers is to analyze and accurately describe the circumstances of events in the real\u00a0world, as well their context and current state. In contrast, practitioners write treaties as a way to realize policies. In\u00a0your opinion, how does the work by researchers help practitioners?
\nNakamura:<\/strong>\u3000Let me give you an example. All over the world, there are conflicts and acts of terrorism in which even\u00a0Japanese people are sometimes harmed, making this not just somebody else\u2019s problem but a concern for\u00a0everyone living in this country, too. As the last resort to address these problems, military force may be used\u00a0against countries or organizations that violate international laws. But, under what conditions and to what extent is\u00a0this acceptable? Moreover, what kind of attitude should Japan take? Japan faces this kind of challenge from time\u00a0to time. Such international rules have been developed gradually through two world wars and over a long period of\u00a0time afterwards. Researchers study these rules and create systems based on theory. We practitioners study the\u00a0results of these systems while thinking about which policy to adopt. Then, the policy that the government decides\u00a0on, sometimes painstakingly, becomes the subject of new research by researchers\u2026\u00a0There seems to be this kind\u00a0of cycle. In your book, you clearly describe the development of a system which encourages compliance with\u00a0international laws on environmental protection by having political pressure be applied to states for\u00a0non-compliance. This kind of work is also extremely important for us in the real world.
\n

\"bannzaisennsei2-2kai\"

Photo: Kimitake Nakamura. When asked what makes Professor Banzai special, he replied, \u201cOf course his research, but also the fact that he contemplates carefully the future of each of his students and guides them.\u201d<\/p><\/div>
\nBanzai:\u00a0<\/strong>\u3000Would you say that by having researchers sort out the past problems which practitioners had difficulties\u00a0with or the direction of social order which the international society attempted to create, it could act as a brake on\u00a0reckless politics in the future or as a guideline when conducting political affairs?
\nNakamura:<\/strong>\u3000Yes. International laws are unique in a sense that questions asking whether or not if it is an actual law\u00a0still comes up. Nevertheless, international laws are rules that check the behavior of countries. Without them, the\u00a0world could never be stable and people\u2019s livelihood would not be protected. It is very important that researchers\u00a0sort through and organize the behavior and performance of countries in a scientific manner, and show the extent\u00a0to which\u00a0international actions of individual countries\u00a0are permitted by law.<\/p>\n

Ruling by positive laws and dealing with situations beyond the scope of law<\/h3>\n

Banzai:\u00a0<\/strong>\u3000Although the\u00a0phrase \u201crule of law\u201d is used\u00a0in a broad concept, it does not mean that positive international\u00a0laws are complete. This raises the question of how to respond to a situation that falls outside the scope stipulated\u00a0by positive laws. In extreme cases, there is even a threat for politics to go out of control. Do you feel such gap inthe area of international cooperation
\nNakamura:<\/strong>\u3000The world of cyber defense currently seems to apply to this situation. The concept of cyberspace is anew one, and there are still not many examples of treaties that mention it. Some claim that it is a space where\u00a0international laws have not been reached yet. But, if we accept such a claim, people might be able to get away\u00a0with anything.\u00a0Existing international laws can play an important\u00a0role, even in cyberspace, and perhaps this is\u00a0something Japan should advocate.
\nBanzai:\u00a0<\/strong>\u3000For researchers, dealing with problems aside from those that can be actually proven by positive laws\u00a0tends to be difficult. Nonetheless, just because the law has not been organized, law scholars must address\u00a0problems such as cyber attacks, which are actually taking place in reality.
\nNakamura:<\/strong>\u3000Yes, that\u2019s right. In any country, practitioners have to resolve incidents occurring daily, and it is not\u00a0easy to find time to research the fundamental areas of law in depth and reflect on daily activities from an\u00a0academic perspective. For practitioners and researchers to work toward the same goals while taking on their\u00a0distinctive roles is preferable.
\n

\"bannzaisennsei2-3kai\"

Photo: Engaging discussion on the subject of Professor Banzai\u2019s book and the way international law works<\/p><\/div><\/p>\n

Concerns regarding the trend\u00a0to undermine the rule of\u00a0\u201cagreements must be kept\u201d<\/h3>\n

Banzai:\u00a0<\/strong><\/p>\n

The idea underpinning international law is\u00a0pacta sunt servanda<\/i>, which means \u201cagreements must be\u00a0kept.\u201d With this in mind, how should we view the movements associated with last year\u2019s Brexit vote and the\u00a0American presidential election? It has been assumed until now that agreements between governments would\u00a0remain stable, even after a change in administration. Yet recently, a trend of agreements being revoked under the\u00a0influence of public opinion has become prevalent. In spite of this, researchers have not yet looked at the power of\u00a0public opinion as a subject for analysis. From the point of view of realizing policies, the impact of public opinion\u00a0cannot be ignored. Being involved in practical affairs, what do you think about the effect of public opinion on a<\/div>\n
governmental decision-making process?<\/div>\n

Nakamura:<\/strong>\u3000Fortunately, Japan is an exceptionally stable, democratic country compared to others around the\u00a0world, but looking at trends since the Brexit vote, it has become clear that, whether multilaterally or bilaterally, the\u00a0idea of pacta sunt servanda<\/i>\u00a0could actually be toppled as a result of democratically-made decisions. It is not\u00a0exactly a desirable situation, but we have to accept the reality that it could happen and develop tactics based on\u00a0that premise.
\nBanzai:\u00a0<\/strong>\u3000In democracy, there are times when it is acceptable for majority opinion to override the rules and times\u00a0when it is not. On the question of whether to determine such a standard, the international society is currently\u00a0searching for an answer. But, if this situation is neglected and the values of pacta sunt servanda<\/i>\u00a0themselves are\u00a0weakened as a result, the fundamental principle of international law will be lost. Both researchers and\u00a0practitioners alike need to realize that this would be an alarming state of affairs.
\nNakamura:<\/strong>\u3000Some countries are more powerful than others. Accepting\u00a0attempts to change status quo by\u00a0coercive means would mean returning to the law of the jungle. As you\u00a0said, widely disseminating the rule of pacta sunt servanda<\/i>, \u201cagreements must be kept,\u201d is important for world\u00a0peace. If international order strays from this rule, albeit in a democratic way, many countries\u00a0might\u00a0end up\u00a0digging their own grave. We need to speak out\u00a0to bring the rule of law to people\u2019s attention.
\nBanzai:\u00a0<\/strong>\u3000The reason for questioning state responsibility is the consent between sovereign nations. Simply put, itmeans that,\u00a0\u201cA promise was made then, and now, we must keep it.\u201d\u00a0However, if the regime and the nation\u2019s leaderchange because of particular opinions, the will of the nation vanishes and all consent go to waste. We shouldgreatly fear such situation in which the rule of law itself could collapse.<\/p>\n

For readers who are less exposed to international law on a daily basis<\/h3>\n

Banzai:\u00a0<\/strong>\u3000The world of international law and foreign diplomacy may be distant from your everyday life. However,what would happen if a missile was launched at Japan, or if agricultural crops were impacted by climate change?Although such things do not usually cross our minds, they could threaten the prerequisites underpinning daily life.Those prerequisites are maintained by the formulation and observation of international laws. I wonder whether\u00a0people might see things differently if they realized that international law, like any other infrastructure, is a part of\u00a0the foundation supporting their daily lives.
\nNakamura:<\/strong>\u3000For example, many\u00a0fish sold at conveyor belt sushi bars\u00a0are\u00a0imported, and\u00a0the custom duty\u00a0determined by international trade agreements\u00a0greatly affects\u00a0their\u00a0prices.\u00a0In addition, the Japanese economy benefits from inbound\u00a0foreign\u00a0tourists\u00a0buying lots of Japanese electrical goods, and international laws related to intellectual property rights protect the\u00a0competitiveness of Japanese products. Meanwhile, I think that our efforts to conserve energy and concerns about\u00a0CO2 emissions reflect our awareness of standards in international law, such as the UN Framework Convention\u00a0on Climate Change.\u00a0In other words, international laws\u00a0even\u00a0impact our lifestyle. Japan cannot survive without\u00a0interacting with the rest of the world, and Japanese people are protected by international laws, allowing them to\u00a0lead comfortable lives. That\u2019s what I want people to know.
\n\"bannzaisennsei2-4kai\"
\n

\"bannzaisennsei2-5kai\"

Photo: Professor Banzai\u2019s Seminar (Top: Visit to Embassy of South Korea, Bottom: International law seminar (Both photos from Waseda University\u2019s Banzai Seminar \u201cInternational Law & International Organization Law\u201d (Taken from https:\/\/twitter.com\/banzaiseminar)<\/p><\/div>
\n

\uf76d<\/span>Part 1<\/a><\/p><\/p>\n

Profile<\/h5>\n

\"banzaisennseiHiroyuki Banzai<\/strong>
\nProfessor Hiroyuki Banzai obtained his Master\u2019s degree from the Graduate\u00a0School of Law at Waseda University. He worked at Surugadai University as a\u00a0full-time lecturer starting in 2003, then associate professor in 2006 before\u00a0joining Waseda University\u2019s Faculty of Law as an associate professor in 2009.Professor Banzai was appointed Professor, Faculty of Law in 2011.
\nResearch key words: Theories on sources of law, international responsibility ofstates, disarmament and non-proliferation<\/p>\n

Major achievements<\/h5>\n

Books<\/strong><\/p>\n