Treaty Revision Research Articles

Japan's Imperial Underworlds: Intimate Encounters at the Borders of Empire by David R. Ambaras

Reviewed by: Japan's Imperial Underworlds: Intimate Encounters at the Borders of Empire by David R. Ambaras Kerry Smith (bio) Japan's Imperial Underworlds: Intimate Encounters at the Borders of Empire. By David R. Ambaras. Cambridge University Press, Cambridge, 2018. xvi, 281 pages. $99.99, cloth; $31.99, paper; $26.00, E-book. Nakamura Sueko, "pirate queen" of the Taiwan Strait in the late 1920s, is just one of the figures whose experiences at the frayed edges of Japan's empire make up the narrative framework of this impressive book. How Nakamura—a Hokkaido native—became a pirate after eloping to Fujian with her new husband and how the Japanese media chose to tell that story are fascinating developments in their own right; so too are David Ambaras's detailed accounts of other Japanese women who relocated to southeastern China after marriages to Fujianese men, of children trafficked both domestically and between Japan and the continent, and of the journalist Andō Sakan, whose often sensationalist articles and books alerted readers in the metropole to the vulnerabilities of the nation's ongoing imperial project. Historians have up to this point largely overlooked the people and practices that populate Japan's Imperial Underworlds, and one of this book's several interventions [End Page 487] is that it shows us how important both were to the shaping of the Japanese public's perception of the nation as still "fundamentally enmeshed in the networks of the Sinosphere" (p. 210) in the 1920s and 1930s. The networks Ambaras is most interested in are ones that moved people between Japan and Indochina, Hainan Island, Taiwan, and, most prominently, communities in Fujian's Fuqing County. As he points out, it has been the more deliberate and explicit of Japan's imperial agendas in China that have tended to attract the most attention from scholars, which has in turn meant that settler colonialism and initiatives firmly under state control—in northeastern China particularly—loom largest in our analyses of the empire's parameters. By taking seriously discourses and mobilities that developed outside official structures, Ambaras shows how sites in southeastern China and Indochina were important touchstones for the public's understanding of Japan's connections to Asia. In a similar move, Japan's Imperial Underworlds concerns itself not only with the protagonists that typically populate studies of the edges of empire—adventurers, laborers, settlers, and sex workers—but also with trafficked children, with women like Nakamura Sueko who joined their husbands or lovers abroad, and with other Japanese nationals whose roles as intermediaries between Japan and the rest of Asia have been given little attention by historians. To be clear, the book never suggests that the focus of prior scholarship on northeastern China or on empire's more familiar actors was misplaced. Rather, it shows that the more tangible expressions of imperial infrastructure the field has focused on to date existed alongside other less visible but still meaningful discursive and personal relationships, ones that by definition operated outside the channels most legible to the state. Chinese traders operating in Japan, and those from Fujian Province in particular, are at the nexus of many of these relationships. Like other non-Japanese in the late nineteenth century, these traders had a limited ability to travel and conduct business outside of Nagasaki or other treaty ports. In 1899, in the wake of treaty revisions that lifted some of the existing restrictions on the employment of foreigners, regulations enacted by the Japanese authorities to keep Chinese laborers out of the country included provisions that allowed Chinese peddlers in and permitted them to move about relatively freely. Traveling salesmen of cloth and other goods soon arrived in such numbers that they quickly became a "ubiquitous presence" throughout Japan. The book goes on to show how their activities created new forms of entanglement between the two countries. The expansion of Japan's longstanding child trafficking networks to include Chinese brokers and buyers is one such development, and the growth in the number of marriages (or other affective relationships) between Chinese men and Japanese women is another. Ambaras devotes a chapter to each phenomenon, and in both he shows how [End Page 488] different forms...

The Commission’s initiative on the passerelle clauses – Exploring the unused potential of the Lisbon Treaty

The Treaty of Lisbon introduced general and special passerelle or bridging clauses into primary law. They can be used to alter voting arrangements from unanimity to qualified majority in the Council or from a special to the ordinary legislative procedure. This is to enable a shift to more supranational decision-making without the need for a full-fledged treaty revision. The European Parliament called on the European Council and the Council to make use of the passerelle clauses, also to involve Parliament as a co-legislator under the ordinary legislative procedure. The former Commission had started a discussion on the use of the passerelle clauses in four policy areas and it appears that the incumbent Commission President has endorsed this ambitious project. This article aims to explore the potential and the shortcomings of the bridging clauses as part of the unused potential of the Lisbon Treaty and discusses the enhanced cooperation procedure as a possible alternative.

Vanguards of Civilization: Police Education and Unequal Treaty Revision in Meiji Japan (1868–1912)

This essay examines the previously overlooked role of police in Japanese efforts to revise Japan’s unequal treaties with Western empires. During the 1880s and 1890s the Japanese government employed a range of political strategies in its efforts to renegotiate treaties and end extraterritoriality. As the most immediate representatives of the Japanese government and its justice system, police served as a valuable public relations tool. Accordingly, through police training and English education, Japanese policymakers sought to create idealized civil servants that could serve as mediators between Western visitors and their fears about an uncivilized Japan. At the same time, the Japanese police were positioned as gatekeepers who could pave the way for a smooth transition to mixed residence in Japan’s interior. By examining the multifarious roles of the Japanese police, this essay reflects on how modern nations employ police for more than state-building and the maintenance of social order.

A Holistic Approach to the Institutional Architecture of Financial Supervision and Regulation in the EU

A growing consensus has emerged in the post-crisis financial regulatory agenda that the European architecture of financial supervision and regulation is far from ideal. Rather than moving to a ‘holistic’, cross-sectoral regime such as the ‘twin peaks’ model, the post-crisis reform simply upgraded the previous supervisory colleges to EU agencies, resulting in the three sectoral bodies for banking (EBA), securities markets (ESMA), and insurance (EIOPA). The major risk of such a sectoral architecture is that separate agencies may fail to recognise any cross-sectoral problems and risks that are evolving, may fail to adequately address financial conglomerates, and may more generally encounter fundamental challenges in adopting a more holistic approach to financial regulation and supervision. This paper examines the case for adopting a more integrated architecture in the EU. We show that lawmakers were not only unable to seize opportunities for reform – largely, due to path dependencies – but have also let those opportunities pass by when they presented themselves – such as Brexit or the ESAs review. The present political climate does not leave us to expect any significant reform anytime soon. Therefore, we strongly argue that the reform architecture of the EU should be modified incrementally, and without need for Treaty revision. Hence, a bottom-up experimentalist approach appears as a viable path towards the implementation of a twin peaks model, or, possibly as a more viable and desirable path, a hybrid model that nevertheless preserves some of its main advantages.

THE “MORAL BASIS” OF RECONSTRUCTION? HUMANITARIANISM, INTELLECTUAL RELIEF AND THE LEAGUE OF NATIONS, 1918–1925

This article analyses the post-First World War emergence of intellectual relief. This is defined here as aid given to intellectuals and scholarly institutions. Relief included the provision of food and medicines to individuals as well as the supply of relevant scholarly literature and laboratory equipment to academic institutions. After 1918, significant humanitarian interventions targeted Central and Eastern Europe, which had been ravaged by war and its myriad consequences. The article argues that intellectual relief, while frequently using the language of the “crisis of civilization,” was part of the broader effort to safeguard the postwar liberal democratic order against Bolshevism. The article pays particular attention to the League of Nations' Committee on Intellectual Cooperation (CIC) to show how states like Hungary used intellectual deprivation to agitate for treaty revision. It argues that the CIC's development was shaped by the wider dynamics of intellectual relief.

Free Movement of Persons in the EU v. in the EEA: Of Effect-related Homogeneity and a Reversed Polydor Principle

When the EEA Agreement was concluded in the early 1990s, it reflected, in the fields covered, the state of the then Community law, also with respect to the free movement of persons. Since then, both EEA and EU law have developed further, though with certain marked differences. Notably, the EU Treaty revision of Maastricht led to the introduction of Union citizenship. The fact that there is no corresponding concept in the EEA Agreement had led to certain challenges within the EEA with respect to the free movement of persons, due notably to the double nature of Directive 2004/38 as a further development of the free movement law of the Communities and a Union citizenship instrument. Today, the EEA and the EU rules are identical with respect to the market access rights of economic agents. In contrast, it is debated whether and to what extent the incorporation of Directive 2004/38 into the EEA legal system is indeed limited for those purposes. This relates in particular to case law of the EFTA Court on persons who are not economically active, where the Court, in the EEA context, gives Directive 2004/38 a broader interpretation than the CJEU does in the EU context. The EFTA Court’s aim, despite the lack of Union citizenship in EEA law, is to arrive at the same level of protection. Commentators speak about a particular understanding of homogeneity and of the Polydor principle. This approach raises questions also with respect to the external relations of the EU with other non-Member States, including notably the United Kingdom of Great Britain and Northern Ireland following its withdrawal from EU membership (“Brexit”).

The Law as Tool and Constraint of Differentiated Integration

In recent years, leading political actors and institutions have suggested further differentiation as a plausible scenario for the EU's future, in fields such as economic governance, social Europe, migration, tax harmonisation, and defence. One central question is to what extent such scenarios require revision of the current EU Treaties and which ones can, on the contrary, be implemented under the current Treaty text. As the chances for Treaty revision are very remote, the latter option is the more promising. This paper explores the main legal mechanisms allowing for further differentiation, namely enhanced cooperation and the conclusion of separate international agreements between a group of EU states. It examines their legal feasibility and the legal constraints that affect their potential use.

The Treaty of Versailles and Turkey: the Thorny Path to the Nation-State

In this article the context of institutional and discursive changes associated with the collapse of the Imperial structure and the formation of the nation state is analyzed. The article describes the contradictory processes of transition from the Imperial identity to the national Turkish identity. Many researchers of this process turned primarily to its domestic political aspects. They considered the rise of nationalism and the recognition of the principle of national self-determination as the main reason for the collapse of the Ottoman Empire. Given the undoubted importance of these approaches, a transnational perspective can lead us to a better understanding of the processes that have led to the fall of multinational empires. It is an interstate rivalry and a geopolitical competition in the conditions of radical transformation of the global world order that have become the determining factors of the collapse of the Ottoman Empire. The dynamics of the global interstate rivalry influenced regional agendas, undoubtedly contributing to the formation of new political identities. The policies of the victorious powers and the decisions of the Paris Peace Conference had global consequences and mobilized waves of hidden or open protest from various groups of the Turkish population. Turkey, with arms in its hands, was the only one of the Central Powers able to achieve a revision of the peace treaties imposed on it by the victorious countries. The protest potential was so great that it allowed M. Kemal and his supporters to make the transition from a loose Empire to an internally consolidated national state.

Why Revise? Presenting a New Dataset on Renegotiations in the International Trade Regime

International agreements are usually understood to help governments make credible commitments to future policy by limiting their ability to renege on their promises. Renegotiations of agreements, like the North American Free Trade Agreement (NAFTA), are therefore viewed as a threat to the stability of international regimes, since renegotiations call past commitments into question. But we know very little about the frequency or nature of treaty renegotiations. When are international agreements renegotiated, and what effect does renegotiation have on international cooperation? Do most renegotiations aim to backtrack on past commitments, or to deepen them? Using the topical context of the trade regime, I collect new data on international treaty revisions, covering preferential trade agreements signed since the year 2000. Around 40% of these agreements have been amended in some form, and most amendments result not in scaled back agreements, but in deeper commitments. Survival analysis shows that wealthy countries that are likely to be 'likeminded' (jointly democratic, cultural affinities, and membership in the OECD) are most likely to revise their commitments. An error-correction model shows revisions are generally associated with a long-run increase in export volumes, but that 'limiting' revisions aimed at backtracking on commitments act as a brake on exports. Renegotiations are not breakdowns in international relations, but opportunities for governments to renew their commitment to cooperation.

The Court of Justice and treaty revision: A case of strategic leniency?

Students of European Union judicial politics have debated the credibility of legislative override as constraint on the behaviour of the European Court of Justice. Yet because of the high political hurdles for the passage of treaty amendments, treaty revision has been dismissed as the ‘nuclear option’, exceedingly effective but difficult to use. However, when treaties are being renegotiated, the ability of member state governments to pass treaty amendments to either punish or reward the Court is greater. We argue that this may induce the Court of Justice to display more leniency towards member states in cases coinciding with ongoing treaty negotiations. To test this hypothesis, we examine the outcome of all infringement cases adjudicated between 1961 and 2016. We find that the European Court of Justice is significantly less likely to render adverse rulings in cases concomitant with the final, most salient stage of treaty negotiations. Our analysis suggests that the relationship between treaty revision and judicial behaviour may be more nuanced than commonly assumed in the literature.

The Pursuit of Justice Through EU Security Strategies: Sisyphus Redux?

The EU has developed its role in global affairs through several treaty revisions, institutional developments, political statements and official strategic documents. The strategic documents and political statements embody both the EU’s more particular short-term interests and concerns, as well as its more universal and long-term normative aspirations or ‘milieu goals’. How the EU has sought to balance these and to project them globally through its formal strategy statements in the realm of security is the core research question of this paper. Furthermore, this paper assesses these attempts as part of a greater endeavour of the GLOBUS project to conceptualise global justice and the Union’s role therein. The EU is a (self-)proclaimed normative power that is seen in some quarters as promoting universal values and global justice. However, what is ‘just’, as this article will discuss, is contested even when it is (rarely) defined. The article will therefore review three related but distinct concepts of global justice and highlight the outlying indicators of these ideal types of justice. Based on these, the article develops hypotheses on the EU’s role in the pursuit of global justice and tests these against the EU’s dis-courses embodied in the three main strategic documents: ‘A Secure Europe in a Better World – European Security Strategy’ (European Council 2003), ‘Report on the Imple-mentation of the European Security Strategy – Providing Security in a Changing World’ (European Council 2008) and ‘Shared Vision, Common Action: A Stronger Europe – A Global Strategy for the European Union’s Foreign And Security Policy’ (EEAS 2016).

The need for the Netherlands and Belgium to further integrate police cooperation

The primary purpose of this study is to investigate the possibilities for improvement of bilateral police cooperation between Belgium and the Netherlands within the existing Benelux Police Treaty. Practical examples show there is a great deal of need in day-to-day police practice to further integrate police cooperation. Although a great deal is already possible on the grounds of the 2004 Senningen Treaty and the subsequent Prüm Convention, there is still a lack of broader authorizations, primarily in the area of cross-border criminal investigation. Since the Benelux Police Treaty will be revised in 2017, the sphere of operation can be expanded. This study shows that it is the intention of the Belgian as well as the Dutch authorities to achieve significant progress. Recommendations in the context of the treaty revision include scrapping small-scale police assistance in minor offences and mutual access to police registers and judicial documentation. In the future, Belgium and the Netherlands can draw up joint objectives on the basis of each side’s crime problems. Examples are joint analyses in areas such as border zone drug criminals, terrorism, mobile banditry or cocaine smuggling. The treaty revision referred to appears to be the perfect opportunity for both countries to find the limits and to take a truly innovative step in cross border police cooperation in Europe.

Losing UNGASS? Lessons from civil society, past and present

PurposeThe purpose of this paper is to examine the role of civil society in the recent history of drug policy reform. It focuses on the UN drug control system, which is designed to regulate certain “scheduled” or listed substances internationally. It provides new light on recent reformist discourses and strategic agendas and how they related to the reality of UN politics and international relations. It questions the idea that the UN General Assembly Special Session on Drugs (UNGASS) in 2016 was a failure in terms of outcomes. It concludes by suggesting that the true outcomes of the UNGASS process will initially be obscured by the complexity of national-international drug policy dialectics, but may eventually prove more tangible and enduring than proposed formal systemic reforms.Design/methodology/approachThe paper examines the historical role of civil society in the UN drug control system. It highlights that although civil society played a key role in the early formation of the system, this role diminished over time as the system professionalised. Meanwhile, as a new reformist movement emerged in the 1990s challenging the status quo, the paper traces this movement through the early UNGASS process, the decline of the reformist era and the eventual UNGASS outcomes. It concludes with a critical evaluation of civil society strategies and the relationship between idealistic strategies and the realities of national and international politics.FindingsRather than a failure of outcomes, UNGASS represented a failure of assumptions, strategic vision and ultimately expectations on the part of reform optimists. These groups ultimately created and became captive to a goal of formal systemic reforms, or treaty revisions, underpinned by a dogmatic assumption of “the inescapable logic of reform necessity”. This logic argued that highlighting treaty “breaches” and contradictions would be a sufficient condition to drive a formal UN system-wide re-evaluation of drug control. These failures of strategic assumptions and vision ultimately resulted in the sense of “failure” of UNGASS 2016.Research limitations/implicationsThis research highlights the need to critically evaluate civil society strategies and desired outcomes with an eye to history, international relations and the realities of managing a complex global issue. The application of mono-causal explanations for individual state actions or international cooperation is shown to be vastly insufficient to explain, plan for or predict the outcomes of a complex multilateral framework. Furthermore, this paper highlights a research agenda on the role of civil society in drug policy formation and how this relates to the current policy and advocacy groupings among member states and interest groups at national and international levels.Practical implicationsThis paper highlights a more realistic appraisal of the determinants of and possibilities to change international drug policy. It thereby utilises an impressionistic historical narrative of the UNGASS process to enable an evaluation of the frontiers of policy reform at the UN level and provide some guidance on the failures of past strategies and potential future directions of international drug control and reformist strategies.Social implicationsAs highlighted in this paper, drug policy is an area where major policy failures are recognised within the current international approach. Experimentation with new tactics and strategies are needed to break out of the traditional prohibition-centric approach to this issue. The benefits of more successful policies would be felt though a lower level of harm from drug use, drug markets and drug policy. As such, a pragmatic understanding of how the international system might evolve to support new evidence-based approaches is crucial to developing a socially beneficial approach to drugs and drug policy.Originality/valueThe originality of this research lies in its blending of a historical evaluation of the role of civil society in the UN drug control system and the strategies of contemporary civil society actors around the UNGASS process. Thereby it allows a more critical evaluation of the strategic goals, assumptions and outcomes of reformist strategies in the recent era and potential strategies moving forward.

Strategic Leniency by the Court of Justice of the European Union: A Choice for Integration?

Students of EU judicial politics have debated whether the threat of legislative override can influence the behaviour of the European Court of Justice. Yet because of the high political hurdles for the passage of Treaty amendments, Treaty revision has been dismissed as the nuclear option, exceedingly effective but difficult to use and, therefore, unlikely to impact judicial decision making. However, in periods when Treaties are being renegotiated and until a formal agreement is reached on the details of the new provisions, the ability of member state governments to use Treaty revision to either punish or reward the Court should be greater. This, we argue, may induce the Court of Justice to display more leniency towards member states. We test this argument by comparing the outcome of infringement rulings coincident with revision to the outcome of infringement cases in normal periods. We find that the ECJ is significantly less likely to render an adverse ruling in years coinciding with a Treaty revision or, using an alternative unit of time, in the three months leading up to the formal signature of a Treaty revision. Because the Court tends, on balance, to have more to gain than to lose from a revision, we suggest that it has a strategic incentive to avoid antagonizing member states until the new institutional deal is finalized.

Challenging the Subnational Dimension of Subsidiarity in EU Law

This article, which forms part of the ‘New Voices’ series and is hence drafted as an essay rather than a proper academic article, examines the principle of subsidiarity in its application to local and regional authorities as they exist within the various Member States. While subnational authorities (‘SNAs’) have been studied extensively within the respective domestic contexts, their relation with other levels of public authority, such as the European Union, is less well-defined. Subsidiarity is often cast as the principle capable of recognizing the existence of subnational autonomies by the EU, and guiding their interaction with the latter. This is so in particular after Article 5(3) TEU has been amended on the occasion of the Lisbon Treaty revision to include an express reference to local and regional authorities. This short essay challenges this perception of subsidiarity, putting forward that the core legal provisions that deal with subsidiarity in EU law do not allocate any meaningful role for SNAs. This is so, it is argued, because subsidiarity remains anchored in an understanding of the European Union and its legal order as composed of and shaped by the EU and the Member States to the exclusion of any other actor.

Constitutional Dynamics in the European Union: Success, Failure, and Stability of Institutional Treaty Revisions

ABSTRACTDespite high institutional hurdles for constitutional change, one observes surprisingly many EU treaty revisions. This article takes up the questions of what determines whether a treaty provision is successfully changed and why provisions are renegotiated at subsequent Intergovernmental Conferences. The article presents an institutionalist theory explaining success and renegotiation and tests the theory using all core institutional provisions by means of Qualitative Comparative Analysis. The causal analysis shows that low conflict potential of an issue is sufficient for successfully changing the treaties. Furthermore, high conflict potential of an issue and its fundamental change are sufficient for it to be renegotiated.

The EU from a constitutional project to a process of constitutionalization

ABSTRACTTaking a longue durée approach to EU political legitimacy, the paper examines three successive constitutional models of European integration: the transnational political movement for a democratic federal constitution; the ‘constitutional moment’ of 2001–2005; and the European de facto constitutionalization through progressive treaty revision. The attempt to draft a Constitution for Europe showed the limits of supranational democracy in that it maintained the intergovernmental design of treaty revision, and finally crashed against the scepticism of a number of national voters. What is left is the mixed kind of legitimation that results from the successive treaty revisions: input legitimacy (through the European and the national parliaments, states’ governments representation in Council, social dialogue, and participatory democracy), output legitimacy, and rule of law. This mixed model is exactly what is now put into question. The multiple crises that the EU currently experiences seem open to three different developments: an unlikely new edition of the federal dream; the transformation of the EU into an ‘empire’ with one or more clear hegemonic countries; the reinforcement of informal, inclusive governance as a further implementation of the path inaugurated with the Lisbon Treaty. A mixed, but mainly intergovernmental strengthening of (economic) governance is still the most realistic path out of the crisis and towards enhanced political union.

Multi-arena players in the making? Conceptualizing the role of national parliaments since the Lisbon Treaty

ABSTRACTOver the last years, the role of national parliaments (NPs) in the European Union (EU) has been upgraded in several ways, most importantly through the Early Warning System (EWS) and a new role in Treaty revisions established by the Treaty of Lisbon (ToL). These provisions formally turn national legislatures into EU actors in their own right that can act both individually and collectively at the EU level, as well as independently of their national governments. As a result, the EU legislative process now presents them with multiple arenas in which they can be simultaneously active – a perspective so far neglected in the literature. The aim of this research agenda is therefore threefold: to take stock of the impact of these provisions by contrasting the formal structures and the actual involvement of NPs; to propose a conceptualization of this new role of NPs in EU affairs as ‘multi-arena players’; and to sketch new avenues for research.

Explaining differentiation in European Union treaties

Since the early 1990s, European integration has become increasingly differentiated. Analysing the conditions under which member states make use of the opportunity to opt out of, or exclude other countries from, European integration, we argue that different explanations apply to treaty and accession negotiations, respectively. Threatening to block deeper integration, member states with strong national identities secure differentiations in treaty reform. In enlargement, in turn, old member states fear economic disadvantages and low administrative capacity and therefore impose differentiation on poor newcomers. Opt-outs from treaty revisions are limited to the area of core state powers, whereas they also occur in the market in the context of enlargement.

Upper Houses and Constitutional Amendment Rules. In Search of (Supra)National Paradigm(s)

Notwithstanding recent interest in the study of constitutional amendment rules, there is very limited scholarship investigating the structure of formal amendment framework and little doctrinal debate on the role of upper houses, as sub-national units’ representatives, played in national amendment process and their capacity to strengthen the rigidity of constitutions. From an institutional framework perspective, this paper emphasizes the rules according to which the upper houses take part in constitutional revision processes, critically assessing the advantages and disadvantaged as well as the reasons of inclusion in these procedures. In this regard, firstly, it presents the theoretical rationales for their inclusion in the constitutional amendment process; secondly, it examines the amendment rules and identifies those mechanisms which gradually structure the constitutional rigidity. The analysis of amendment rules in different constitutions will allow for some remarks on the EU procedure of Treaty revision which encloses elements of rigidity. Although the EU is not a State and the Lisbon Treaty is not a Constitution, the comparison with the constitutional revision procedures of certain Member States, especially those with a decentralized structure, consents to analyze whether the mechanism of including national parliaments aggravates the Treaty amendment processes and to assess the impact on the quasi-constitutional configuration of the EU which deserves to be further developed in the perspective of the configuration of national legislatures as ‘territorial parliaments’ and their more incisive participation in the process of ‘formal European constitutional change’.