Wednesday, July 21, 2010

Is There An August Surprise Regarding the Futenma-to-Henoko Deal?

On July 2, Sato Masaru, the extremely controversial former research analyst at the Ministry of Foreign Affairs, published a brief and rather annoyed opinion article in The Tokyo Shimbun. Sato, who is of Okinawan extraction, was complaining about the agreement that Foreign Minister Katsuya Okada and Defense Minister Kitazawa Yoshimi signed in Washington on May 28 reaffirming the promise to move the U.S. Marines elements currently based at MCAS Futenma to a so-called Futenma Replacement Facility (FRF) to be built offshore of Camp Schwab in Henoko, Okinawa.

What annoyed Sato was not the agreement. It was the translation.

Or lack of one, to be precise.

Sato begins his article with a recollection of his time in the Japanese Embassy in Moscow. Whenever bilateral agreements were being worked on, they were worked on in both Japanese and Russian simultaneously by the experts working for both sides. Every line, every word in each the text of an agreement in one language was checked aggressively against its counterpart in the other language, that nothing of possible detriment to Japan's interests sneak in due to a misused or ambiguous Russian term or construction. Both the Japanese and the Russian sides negotiated over every ambiguity, to nail down what every word of the bilateral agreement meant. In the end, the product would be two texts, one in each language, of equal validity, with Japan able to walk away with the confidence that in the case of any controversy, the Japanese side could point to the Japanese text as the definitive text.

To this, Sato contrasts the May 28 joint statement on the Japan Security Consultative Committee, where the government of Hatoyama Yukio acceded to the United States insistence that a Futenma replacement facility be built at Camp Schwab. Sato notes that contrary to the practices followed during his time in Moscow, the Japanese version of the text is not official. It is merely a "provisional translation" (kariyaku) of the English official text.

For Sato the lack of an equally valid official Japanese translation is a travesty -- a dereliction of duty by Japan's diplomatic corps.

The question is, when the Hatoyama Cabinet ratified via a Cabinet Decision (kakugi kettei) the May 28 agreement, what did it actually do? A basic principle of Japanese law holds that only texts written in Japanese have legal standing. If only a provisional translation of the Consultative Committee's was presented for ratification at the emergency Cabinet meeting held on May 28, after the forced resignation of Fukushima Mizuho, it does not follow that the agreement has legal standing inside Japan. In theory, in the absence of an official translation (seibun) the Cabinet ratified an unefforceable document.

At least, I think you can find a judge somewhere who would be willing consider the validity of this line of argument, and would be willing to issue a stay of any implementation of the May 28 agreement until an official translation has been produced and approved by the Cabinet.

Was the failure to submit an official translation to the Cabinet on May 28 really the result of sloppy work by diplomats? Or was this presumed spinelessness/laziness by design, an attempt to buy off the American side with a Potemkin ratification of what might indeed be a worthless piece of paper, taking the issue off the front pages until after the House of Councillors election?

To what extent can a Cabinet Decision can override a basic principle of law?

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