Schmitt and Foucault on the Question of Sovereignty under Military Occupation

Annmaria Shimabuku
University of California, Riverside

Volume 5, 2014

1. A Violation or Production of Sovereignty?

This essay examines the geopolitical underpinnings of Carl Schmitt’s well-known definition of the sovereign as “he who decides the exception” (Political Theology 5) mainly through The Nomos of the Earth (1950). It is in this later work, written after Schmitt had borne witness to the liberation movements of Europe’s colonial territories alongside Germany’s defeat in both world wars, that he contextualized the historical formation of sovereignty in terms of the colonization of the New World and occupatio bellica within Europe from the 16^th century onward. In reading The Nomos of the Earth, one cannot help but sense nostalgia for days past—a romanticization of the jus publicum Europaeum that grounds his critique of a new global (dis)order characterized by the transnational flow of capital and concomitant espousal of universal human rights moderated respectively by the American dollar and U.S. military as “world police.” His vitriolic critique of “American imperialism” that violates the sovereignty of postwar European and postcolonial states certainly carries political clout for critics of American Empire (“Modern Imperialism in International Law” 31). However, what exactly is this violated sovereignty? Is this a violation of the traditional form of territorial sovereignty, or a violation of a new form of sovereignty that has given way to an order of globalization? If so, what are its contours?

These questions point to the continued relevance of Schmitt’s definition of sovereignty positioned within a very different geopolitical configuration from which it was originally conceived. Schmitt himself gave three new possible accounts: 1) America, the victor of the Cold War would become the “sole ruler of the world”; 2) “regional blocks would form, ultimately subject to American supervision”; 3) “several regional powers or blocks could be formed, which would bring about a balance of power” (Rasch, “Human Rights as Geopolitics” 121). It is not unreasonable to assume that in this assessment from 1955, Schmitt saw the chips falling somewhere between the first and second scenarios, i.e., a dominant American power that makes decisions over the rest, while the third is posited as the hopeful alternative. To this end, Schmittian scholars such as William Rasch have re-deployed Schmitt’s decisionism in terms of a critique of American supremacy: a situation in which the U.S. monopolizes the decision of who is excludable from the law, but does so through an “invisibilization of the exception” by cloaking it in moral claims (130). In this way, the New World that had once occupied a zone of exception for Europe is replaced by new outsiders that the U.S. decides are exceptions to the law (such as “terrorists”) who threaten the American way of life.

The most conspicuous difference between this configuration of sovereignty and its traditional precursor is that the former leans toward unilateralism while traditional sovereignty existed in a tightly knit network of sovereignties that together fabricated the jus publicum Europaeum. While these recent critiques of American supremacy are certainly illuminating, this essay asks if it is possible to also conceive of the fabrication of a new network of sovereignty in the postwar era that emerges from military occupation in addition to American decisions that exclude others from the law.

This is where Michel Foucault becomes a useful interlocutor for Schmitt. Foucault’s raison d’État comes the closest to Schmitt’s jus publicum Europaeum precisely on the point of articulating a network of sovereignties forged through military occupation within Europe that may have been collectively imperial but never the product of a single Empire. Past this point of intersection, however, the two depart on the status of sovereignty when the European spatial order caves into the spacelessness of globalization. Whereas Schmitt complained that globalization invites an erosion of sovereign formations, Foucault showed how it provides the very ground for the fabrication of sovereignty in a new political order governed by a market rationality. Furthermore, precisely because of the nature of capital that necessitates circulation for growth, this implies not only the fabrication of a single sovereignty in isolation, but also the inauguration of a network of sovereignties.

After tracing geopolitical discussions offered by Schmitt and Foucault on the point of sovereignty, I borrow from both to show how sovereignty in the aftermath of the postwar and postcolonial present is fabricated—not violated—as an effect of market liberalization.

2. Colonial and Military Occupation under the Jus Publicum Europaeum

Writing from the position of a subject who had experienced occupation of a defeated nation first hand, Carl Schmitt traced the emergence of territorial sovereignty toward the end of the 16^th century mainly through two senses of occupation: occupatio of the colonies and occupatio bellica of another European state.

For Schmitt, the “Roman legal and civil concept of occupatio” is inseparable from discovery (The Nomos of the Earth 130). In the attempt to break away from the nomos of the respublica Christiana of the middle ages—characterized by a joint maintenance of theological-political power between the emperor and pope who acted as katechon, or restrainers determined to keep an “eschatological paralysis” (60) at bay—the discovery of the Americas, backed by the “achievement of newly awakened Occidental rationalism,” justified a taking of the so-called “free space” of the New World (132, 140). That is, if a territory had become known through scientific investigation, then it was deemed claimable by its discoverer. At issue was the emergence of a new nomos of the jus publicum Europaeum in which jurists attempted to drive the theologians out of international law with their newfound rationalism and inaugurate, for the first time in history, a truly global world order that revolved around a European center of gravity. Here, Schmitt did not hesitate to recognize a point many postcolonial scholars after him belabored to make: what Europe discovered in its project of colonization was not the New World per say, but rather “Europe” itself:

… the elaboration of occupatio as the international juridical title of acquisition was designed to make each occupying power independent vis-à-vis its European rivals and to create an original juridical title independent of them. To the extent that juridical discussion focused on the legal title of occupatio, European legal consciousness had to forget the common European origin of the matter.
(131)

The “spatially closed territorial order” that arose in the 16^th century begged for the recognition of independent national identities that could not be achieved within Europe itself, but through the scramble for land appropriation in the New World that was “free to be occupied” (128, 198). Hence, individual European states were able to “forget” that the function of acquiring an “original juridical title” in the New World was not merely to compete with other European sovereign territories, but to establish a “common European origin”—the inauguration of Europe as the center of a global world. No a priori foundation to the law amongst territorial states can be found through European introspection but its emptiness is revealed in a colonial reverie. In the final analysis, the law rests on an empty fiction; it is unambiguously groundless.

Occupied as a space of the outside, the colonial other sealed the spatially enclosed territorial order of the jus publicum Europaeum that was able to obtain a “comprehensive, homogeneous spatial order” (203). Curiously, it was this field of homogeneity that foregrounded the sovereignty of individual states that confronted each other not only as friends, but even more importantly, as enemies. The friend/enemy distinction, articulated most explicitly in The Concept of the Political (1927), does not point to any substantive characteristic such as good, evil, beautiful, or ugly; furthermore, it can be argued by extension that it does not mark any cultural signifiers commonly associated with the particularistic character of individual states. Rather, the concept of the political emerges in a relationship of equality amidst extreme conflict that “can neither be decided by a previously determined general norm nor by the judgment of a disinterested and therefore neutral third party” (The Concept of the Political 27). Someone must break the stalemate and decide upon the exception; this is where sovereignty prevails. Here, Schmitt explicitly rejected any self-sufficient political order that is entirely sustained by internal dynamics. Immanence gives way to transcendence as the sovereign makes an ecstatic flight to the limits of the nomos occupying the ambiguous position of an insider-out. The sovereign “does not make any reference to the pre-existing” norms or laws, “but rather brings into existence”; he is an author who renders his fiction a legal reality (Prozorov 224). As creator, the sovereign who decides upon the “exception in jurisprudence is analogous to the miracle in theology” (Political Theology 36).

However, the sovereign’s ecstatic flight to transcendence cannot become permanent—he cannot remain god-like, because the homogeneous field of equality that foregrounds sovereignty must be restored. Simply put, if the sovereign constantly invoked a state of exception, then there would be no law constant enough to suspend, and the nomos would dissolve into chaos. While the sovereign monopolizes the decision, his power is paradoxically limited to the existential form from which it springs; his ability to suspend the law is limited to the extent to which the homogeneity of the nomos can be restored.

It is with these limitations in mind that Schmitt makes one of his few references to the state of exception in The Nomos of the Earth with respect to occupatio bellica, or the military occupation that occurs after battle between European states. The occupier explodes the “dualistic theory of the relation between internal and external” that is “neither purely intrastate nor a purely interstate law” (The Nomos of the Earth 130, 207). For Schmitt, military occupation was not the imposition of one state, culture, or legal system over another, but “merely a provisional and factual occupation of soil” that yielded the monotony of the same (205):

…the occupying state exercised state power in the occupied enemy territory; however, it did not exercise its own power, but rather that of the state of the occupied territory, and this exercise of foreign state power was based not on empowerment of the enemy state’s authority, but rather on its own original legal title in international law. The title in international law appears here to have an independent legal basis, and not to be derived from the existing state’s sovereignty.
(206)

The power the occupying state draws from is not its own, but that of the occupied state because it is the “existential form” of the state which is essential (204). A sovereign can only strengthen his power by strengthening the field from which his power originates, even if that entails exercising a power that belongs to another state, rather than his own. Hence, power is neither purely foreign, nor domestic, but stems from the nomos that underlies both. Whether it is an occupatio bellica of a foreign sovereign within a vanquished state, or a state of exception within a domestic setting, sovereignty in both cases is defined by the ability to decide in a “situation that demands extraordinary measures and, thus, breaches the constitution should obtain, yet with the goal of maintaining the validity of this same constitution” (209). Schmitt was compelled to place the emphasis at the end: the sovereign power to breach the law has the paradoxical goal of maintaining the law. Therefore, it need not matter who the sovereign is—foreign or domestic—for he is characterized by his existential form as someone who suspends the law with the goal of containing the legal, illegal, and by extension extralegal, under one spatial order that transcends individual state borders. This points to a transnational network of sovereignties that operate under the cover of each nation-state. The assumption that a victor-state can assert its will upon the vanquished as reward for proving the superiority of its power is radically displaced. In both cases, power is not substantive or normative, it is not a question of who rules, or of whether a legitimate or illegitimate sovereign rules, but a question of the existential form of the jus publicum Europaeum.

Compared to Schmitt’s development of sovereignty in On Dictatorship (1921) in which he analyzed commissarial and sovereign dictatorship, and Political Theology (1922) in which he sharpened his analysis on the decision, Schmitt’s emphasis on the sovereign’s need to restore the legal order in The Nomos of the Earth (1950) enabled him to execute a veiled critique of the rise of American imperialism carried out under military occupation. Schmitt too was an occupied subject as the Rhineland was occupied by Allied troops and Germany’s unconditional surrender after 1945 resulted in total occupation. Both the occupatio of the New World, i.e., colonialism that sealed an internal European nomos from the outside-in, and occupatio bellica that reinforced it from the inside-out, were nostalgic descriptions of the jus publicum Europaeum that collapsed into what Schmitt thought was one spaceless order of an American imperialism that takes on the guise of military occupation.

Schmitt was already writing about the “development of American imperialism” (“Modern Imperialism in International Law” 31) after the First World War, and as his commentators have noted, he found parallels between the occupation of Germany and the fledgling postcolonial order of the “newly formed protectorates, mandates, and even independent states in the non-European world [that] was a continuation of colonialism by other means” (Rasch, “Anger Management” 70). This sentiment came forth in its most naked form in a political pamphlet he wrote in 1925 entitled “The Rhinelands as an Object of International Politics.” In this pamphlet, written with the “anxieties of a hideous state of suspense,” he correctly identified an international community in which “annexation is tabooed” (14, 4). Instead, he argued that the U.S. promoted an openly “anticolonial” foreign policy in the sense that it renounced the “open territorial annexation of the controlled state” (The Nomos of the Earth 252). But for Schmitt, this was nothing but mere “camouflage” (“The Rhinelands as an Object of International Politics” 15). While colonization as annexation in the jus publicum Europaeum “had at least the merit of being frank and visible” (11), by contrast, Schmitt saw nothing but smoke and mirrors in the age of American imperialism:

… other forms of dominion have come into vogue, avoiding open political subjection, maintaining the political existence of the controlled country, nay, creating, if it appears expedient, a new independent State, whose liberty and sovereignty is expressly proclaimed, so that apparently just the reverse happens of what might be denounced as degrading a people into an object of foreign policy.
(6)

Here, Schmitt remained skeptically unmoved by the Wilsonian era of “self-determination claimed for all peoples,” and instead saw an American attempt to forge a new nomos with itself at center (5). Following Wilson’s universalization of the Monroe Doctrine in 1917, whereupon the U.S. interpreted interference in its spheres of influence as aggression requiring intervention, the U.S. succeeded in disengaging the delicate balance of the European nomos sealed by colonialism. Instead, Schmitt argued that the U.S. espousal of an anticolonial policy that recognizes sovereignty as regulated by the League of Nations through mandates, protectorates, trusteeships, and even independent statehood couched with security treaties that allow the right of intervention have “come into vogue, avoiding open political subjection.” (6)

A parallel transformation occurred under military occupation. Occupatio bellica in the jus publicum Europaeum was supposed to first, clearly establish a direct administration in the occupied area; second, be only provisional and temporary; and third, preserve the existing spatial order. However, what Schmitt saw occurring was the exact opposite. In place of direct administration, the “real master” “deliberately skulk[ed] in the dark” by “prefer[ring] to make the native civil servants their agents” (16). Without a clear purpose, “the meaning of ‘occupation’ is perverted into one of those deliberately vague categories” and dragged on for indefinite periods of time, leading areas such as the Rhineland to “evaporate among the anxieties of a hideous state of suspense” (18, 14). Finally, as we have already seen, the occupier of the jus publicum Europaeum was able to invoke the state of exception and act as the sovereign, but this power did not belong to the foreign state as it stemmed from the common nomos itself. For Schmitt, the design of this was intended “to circumvent the actual spatial problem: foreign state power in the territory of a continuing sovereign state” (The Nomos of the Earth 207). By contrast, Schmitt protested the encroachment of this Eurocentric spatial order by what he perceived to be a new Americentric spatial order. He writes in The Nomos of the Earth,

…the controlled state’s territory is absorbed into the spatial sphere of the controlling state and its special interests, i.e., into its spatial sovereignty. The external, emptied space of the controlled state’s territorial sovereignty remains inviolate, but the material content of this sovereignty is changed by the guarantees of the controlling power’s economic Groβraum.
(252)

The traditional sense of territorial sovereignty is completely destroyed. The controlled state’s territory is left intact while its sovereignty is absorbed into the spatial sphere of the controlling state. Schmitt is one of the first to identify an American Empire without colonies. No longer would there be an invasion and occupation of a foreign state, but now a permanent military occupation established by bilateral security treaties that combined a “right of garrison with a right of intervention” (“The Rhinelands as an Object of International Politics” 8).

In a more recent formulation, this is akin to what Chalmers Johnson has called an empire of military bases: “…in more modern times, unlike many other empires, we did not annex territories at all. Instead we took (or sometimes merely leased) exclusive military zones within territories, creating not an empire of colonies but an empire of bases” (The Sorrows of Empire 23). Johnson tells the story of an American Empire of military bases that compromise the sovereignty of states by calling the controlled state “satellites” that he defines as “ostensibly independent nations whose foreign relations and military preparedness revolve around an imperialist power” or “another variant…the client state” (31).

But before we rush to the conclusion that the postcolonial moment of postwar occupation is U.S. imperialism in disguise, it is important to separate two threads that can easily become entangled: Schmitt’s angst over the replacement of a Eurocentric order for an Americentric one, and the fabrication of sovereignty through evolving practices of colonialism and occupation. Schmitt is correct in identifying the imposition of a new nomos as a spaceless globalized order in which territorial sovereignty is eviscerated by the military backed “right of intervention” and transnational economic influence. However, before we charge the U.S. with compromising the sovereignty of “controlled,” “client” or “satellite” states, it would be misreading Schmitt to assume that this sovereignty preexists on solid ground. Just as he showed how territorial sovereignty of the jus publicum Europaeum was fabricated through practices of colonialism and occupation, he must answer the question of how sovereignty in the new configuration is fabricated before any argument against sovereignty betrayed can be made.

3. “Institutional Framework X”

Enter Foucault. Territorial sovereignty is but one variable in the political equation that is overshadowed by the population—the “fundamental element…that conditions all the others” (Security, Territory, Population 68). No longer is power measured merely in terms of territorial acquisition, but now in terms of developing a certain fitness of the population that acts as a conduit for the development of other elements of the political economy such as natural resources, territorial size, wealth, and so forth. Unlike the static boundaries of a territory, the population is a fluid organism that reproduces sexually, succumbs to illness, and dies naturally in a way that is impervious to the arbitrariness of any sovereign law. Precisely because of its “nature,” management of the population entails a careful appreciation of it as positioned within a constellation of a “series of variables,” both man-made and naturally occurring, that are constantly in flux: climatic change; the intensity with which wealth circulates; the velocity of human mobility (70). Contingent on x variables of change, it is no longer a problem of simple addition, but rather a complex calculus. More than an aggregate sum of wills obedient to the sovereign, the population is a force unto itself that must be managed in order to ensure good government by working within the ever-changing dynamics of nature itself. This is what Foucault calls the “art of government” or governmentality.

While governmentality over a population starts to gain force in the raison d’État, in the end it remains limited under this geopolitical configuration. Literally meaning “reason of the state,” the population is recognized as a force to be managed to the end of the state form itself as it exists not only in its singularity, but also woven into an inter-state system that is invested in maintaining a “European equilibrium” (299). This sets the stage for two reinforcing dispositifs: “Polizeiwissenschaft” or science of the police and a “permanent military” (318, 300). On one hand, an “inter-state police” system collectively strengthens the population of all European states by opening up circuits of circulation while on the other, the military wages war in order to make sure “the balance is [not] jeopardized” (315, 301). This is precisely what Carl Schmitt before Foucault called the jus publicum Europaeum that may have been collectively imperial, but was never the product of a single Empire.

Given that their discussion dovetails on the point of a European balance of power, it is not surprising that Schmitt and Foucault come remarkably close in their accounts of sovereignty under military occupation during this period. Foucault simply gives a different name to what Schmitt calls occupation as an explosion of the “dualistic theory of the relation between the internal and external”—that is, the reversibility of power in which “the vanquished did not really regard themselves as having been vanquished and occupied by the victors” (Society Must Be Defended 104). It need not matter if the sovereign is foreign or domestic, for the ultimate aim of military occupation is to reinforce a transnational network of sovereignty that operates under the cover of each nation-state.

But nothing lasts forever. As the colonization of the New World external to Europe meets its point of saturation, the limitations internal to Europe are removed. The equation is effectively turned inside out. In the absence of the infinite expanse of the external space of the colonies, the internal space of European nation-states caves into the spacelessness of globalization. The key difference between Schmitt’s and Foucault’s discussions is that whereas Schmitt lamented that the global economy has a disorienting effect on territorial sovereignty of the past, Foucault showed how it spins the very threads from which sovereignty is fabricated in the postwar present.

Foucault’s differing reading of globalization rests on his articulation of a new form of governmentality that serves the market instead of the end of the state. This neo-liberal governmentality inverts classical liberalism that posits the state and market as occupying two separate spheres; rather, good government provides malleable institutional frameworks that not only constitute the ground of free competition, but also offset its undesirable effects. The equation is not determined from the beginning with the state as a set variable, but rather is expressed as “an institutional framework x” (The Birth of Biopolitics 82). The problem good neo-liberal government must solve, therefore, is not determining when to encourage or prevent state intervention in response to naturally occurring market conditions, but determining which institution framework (i.e., which variable of x), will best constitute the field of competition. Economic development verifies the validity of institutional framework x a posteriori; it functions “as a siphon…as a point of attraction for the formation of a political sovereignty” (83). And as will be apparent in the next section, it is postwar Germany under occupation to which Foucault turns in order to show what Terry Flew calls the “performative basis for legitimacy” of the state as it emerges from the ashes of defeat (53).

4. Germany and Japan

Geopolitically, the neo-liberal art of government provided the U.S. with the opportunity to enter a world order polarized by the failing imperial capitalism of Europe and the mounting communist resistance with a third possibility of globalization. In this way, it asserted itself as the inheritor of the imperial order after World War II, and differentiated itself from its successors by proclaiming an explicitly “anticolonial” policy that did not seek to curtail freedom through annexation, but rather to “liberate” areas as independent sovereign states in order to open them up to market exchange.

Specifically, the U.S. introduced forms of global governance based upon experimentation done on home ground. The New Deal policies of the 1930s hailed an expansion of the role of government into the market: banks were backed by the Federal Deposit Insurance Corporation (FDIC), laborers were given collective bargaining rights, and a system of Social Security was established. This was a testament to the dissemination of market values as the overriding political rationality of institutions and other spheres of social life. Precisely because the New Deal was not merely a domestic crisis, but a larger response to the global crisis of capital, the New Deal model had immense global purchase. As Hardt and Negri observe, “the U.S. entry into World War II tied the New Deal indissolubly to the crisis of European imperialisms and projected the New Deal on the scene of world government as an alternative, successor model” (243-244).

The postwar trans-Atlantic European and trans-Pacific Asian theaters both became testing grounds for this kind of global governance. Germany and Japan benefitted from the Government and Relief in Occupied Areas program (GARIOA) from 1946 onwards. But this emergency aid acted more as a temporary fix than a comprehensive overhaul of the economy. The situation quickly changed after the Cold War started to heat up in 1947 since the U.S. recognized that the stability in Europe and the Asia Pacific was contingent on the economic recoveries of the German and Japanese economies (Schaller, Altered States 12).

The New Deal model hit Europe with the 1948 implementation of the Marshall Plan that provided government assistance for the revitalization of industries. However, as Foucault points out, Germany was a curious exception. Even during the peak years of 1948 and 1949, Marshall Plan aid constituted less than 5% of the German national income (Henderson). Rather, the economy in the Anglo-American Bizonia was revitalized by deregulation of the economy through the removal of price controls and currency reform in 1948. This radical policy for market liberalization, informed by ordoliberalism, not only differentiated the new Germany from the old Nationalist Socialist state, it also allowed economic freedom to serve as the new ground from which the state could justify its legitimacy.[1] Far from simply being a blank slate for American global governance, the “American” and “German” national modifiers dissolved precisely at the point in which the “German” variant of neo-liberal governmentality struck an equilibrium with the “American” one.

In a remarkable move, Foucault works out the production of sovereignty in postwar Germany through a Weberian genealogy contra Marxist dialectic. Foucault asks: “The problem the Germans had to resolve was…: given a state that does not exist, how can we get it to exist on the basis of this non-state space of economic freedom?” (The Birth of Biopolitics 86). The good Protestant does not work to become rich. Through his ascetic renunciation of greed, he finds unintended wealth as a sign of God’s grace. Likewise, economic freedom produces “political signs” of good neo-liberal governmentality as an effect: “in contemporary Germany…economic development…produces sovereignty” (84).

When put into comparison with Japan however, the interlocking system of sovereignty under Schmitt’s jus publicum Europaeum still remains more useful than Foucault initially allows. While the first years of the occupation of Japan were marked by sweeping New Deal like reforms—the curbing of zaibatsu combines,[2] egalitarian land reform, and support for labor unions—much of Japan’s conservative big business that fueled the imperial economy was restored after the “reverse course” of occupation in 1947. But still, a liberalization of the economy was not enough. The U.S. was keenly aware of Japan’s need for regional economic integration that would provide a circuit of raw material imports and market for exports. As George Kennan stated: “We have got to get Japan back into, I am afraid, the old co-Prosperity Sphere” (Schaller, Altered States 20) that inspired proposals for a “Marshall Plan for the Far East” (Schaller, The American Occupation of Japan 144) designed to provide the infrastructure for regional exchange.

In Europe as well, the Marshall Plan did not merely aim to revitalize European industries. Rather, by underscoring it as an exception to the Marshall Plan, Foucault neglects to show how Germany indirectly benefitted from the creation of a network of “economic sovereignties in a unified and supranational system” that provided the conditions for the possibility of Germany’s miraculous growth (Hogan 35). The system of competing national sovereignties of the jus publicum Europaeum is resurrected—even as the reason of the state is subsumed to the reason of the market—as a community of “economic sovereignties” opened up to mutual trade that was mediated in large part by the American dollar and U.S. military presence.

However, different from Europe, the State Department ultimately dismissed proposals for an Asian Marshall Plan. Whereas European states were able to benefit from reconstruction, the former Japanese colonies primarily needed political and economic development. In short, Europe was able to draw on the legacy of the jus publicum Europeaum that left a developed economic infrastructure in place whereas the former Japanese colonies were not as richly developed.

Japan needed an additional value as the profit-yielding institutional framework x became more pronounced. This value was the U.S. military, an institution (even as a “foreign” one) that cannot be separated from the production of sovereignty in the Asia Pacific. As early as 1945, military planners announced the need for a network of U.S. military bases that dotted the peripheries of the Pacific: Japan’s former South Pacific Mandate, the Ryukyus, and Japan.[3] Plans for this network must be contextualized by two pivotal events that also took place in 1947. First, the promulgation of Japan’s “Peace Constitution” that stipulates under its famous Article 9 the Japanese renunciation of war and a standing army. Second, the “Emperor’s Message” in which the Japanese Emperor Hirohito offered Okinawa to occupation authorities to serve as a U.S. military outpost in exchange for the recuperation of Japanese sovereignty (Gabe 51). This set the stage not only for a recuperation of Japanese sovereignty, but for the recuperation of a network of sovereignties in the Asia Pacific that reproduced the infrastructure of the Japanese Empire through the installation of a constellation of U.S. military bases in the region. In this way, the U.S. “restored” the sovereignty of Japan, Okinawa, and the mandates through the respective formations of independence, residual sovereignty, and strategic trusteeship, while making sure that each formation was configured in a way that facilitated the presence of the U.S. military. Accordingly, Japan became “independent” through the 1952 San Francisco Peace Accords with an accompanying U.S.-Japan Security Treaty that stipulated the conditions under which the U.S. military could remain in Japan. In turn, administrative rights over Okinawa were handed over to the U.S. through the San Francisco Peace Accords, and the island was occupied under the premise that its sovereignty was “residually”[4] present in Japan and hence did not constitute a colony. Finally, the Trust Territory of the Pacific Islands was placed under a U.N. “strategic trusteeship” administered by the U.S. until deemed mature enough for self-governance, while the U.S. carried out atomic bomb testing in the Bikini Atoll.

In this way, the U.S. resurrected the legacy of the Japanese Empire and established a network of military bases that operates under the cover of national sovereignty. Understandably, there is much ambiguity as to exactly what kind of Empire this is: an “American” one, a “Japanese” one, or better yet, a joint “U.S.-Japanese” one where both states work together collaboratively while somehow maintaining the autonomy of their respective sovereign spheres even if only in theory. The political left in both the U.S. and Japan favor a critique of American Empire while more well-read authors might suggest a pecking order in which the U.S. bullies Japan into bullying its former colonies. But if there is a colonial aspect to the U.S. military presence in the Asia Pacific, it is not merely an American one, but one that also encompasses the legacy of Japanese Empire. The fact that Okinawa today bears the burden of 74% of all U.S. military bases in the state of Japan even though it only makes up 0.6% of total Japanese state territory attests to the collaborative nature of this arrangement. The military in Okinawa may certainly be an American one, but it is the sovereign right of the Japanese government that not only chooses to station military forces there, but also generously covers 78.9% or $5.0 billion in basing costs to maintain them. This figure is unprecedented in the world, making it impossible for the U.S. not to maintain U.S. military bases in the Japanese state (Department of Defense). Yet to what extent can we say that the U.S. military violates the sovereignty of Japan when the inauguration of Japanese sovereignty is predicated on the re-colonization of Okinawa as an American military outpost in the first place?

Even if Japan is ultimately subordinate to the U.S., this is a position from which it has profited greatly. Japan grew into the world’s second largest economy by 1968 (currently third after being surpassed by China in 2010), followed by the U.S. However, the sheer size of the economy, calculated in terms of its Gross National Product does not take into account the fact that Japan is a country smaller than the state of California and has/contains half the population of the United States. When calculated in terms of per-capita GNP, the Japanese economy in fact surpassed the United States in 1986 (Ito 3).

5. Folding the Postwar into the Postcolonial

The system of sovereignty fabricated under practices of military occupation that both Schmitt and Foucault illustrate in their very different trajectories with remarkable points of agreement is just as relevant today as it was in Europe in the past. Occupatio bellica perhaps comes the closest to exposing Schmitt’s definition of sovereignty as tenuously predicated on a common nomos, or in other words, a grammatical structure evoked in the constitution of sovereignty as a performative speech act. For Foucault, however, this “tight field,” “grid of intelligibility,” or “homogeneity of…discourse” is not achieved through a docile submission to sovereign performances, it is achieved through a series of rebellions superficially coded as opposition that actually (re)produce the internal grammatical structure as an effect (Society Must Be Defended 208, 228, 208). Indeed, it is precisely the cry of sovereignty’s violation that reinforces the discursive field of sovereignty as an effect.

After Japan regained its sovereignty in 1952, a number of U.S. military bases still remained within its territory. Many from the political left charged that this was an ongoing manifestation of “American imperialism.” As a result, the Marines in Gifu Prefecture and Yamanashi Prefecture—bases geographically closer to the volatile Korean Peninsula—were shifted to the much more distant Okinawa in 1956 (Yara 58). The proportion of U.S. military bases continued to decrease in Japan while increasing in Okinawa after 1972 when Okinawa formally reverted to the Japanese administration (Arasaki 26-27). It was precisely this charge of a violation of Japanese sovereignty that (re)produced a U.S.-Japanese system of sovereignty in which Okinawa came to occupy a semi-extralegal space that falls through the cracks in international law and is constantly subject to a series of legal exceptions by both states.

Hence, in a curious turn, the continuity between Japanese Empire and postwar U.S. military occupation breaks down the “dogmatic exclusiveness of the so-called dualistic theory of the relation between internal and external” as Schmitt had originally characterized it, but in a slightly modified form. In other words, if the constitution of Japanese sovereignty is predicated on a U.S. military presence, then Okinawa is the simultaneous convergence of four vectors: 1) Japanese colonialism 2) American military occupation with 3) intrastate law (within Japan) 4) interstate law (between Japan and the U.S.). Okinawa dissolves into a void precisely at the point in which any discursive strategy attempts to separate these threads. For Okinawa, it matters little who the sovereign or colonial master is—foreign or domestic, American or Japanese—for sovereignty is characterized as the power to subsume the extralegal space back into the fabric of this law.

Notes:

01. As early as 1946, a U.S. Army officer trained in economics, William H. Draper, advocated the “economic magnet thesis” in Germany (Gimbel 112-113). Draper, who as Army Undersecretary later went on to push for similar deregulation policies in Japan, argued that a successful bizonal economy would serve as a magnet for the adjacent French and Soviet zones and lead to German unification while also relieving American taxpayers from the financial burden of occupation. Framing the Anglo-American bizonal unification in terms of the economic instead of the political so as to avoid offending the Soviets, Draper fostered an environment that was receptive to the ideas of the Sozial Marktwirtschaft (social free market) school coming out of the University of Freiburg. Members such as Wilhelm Röpke and Ludwig Erhard were radically anti-Nazi during the Nazi regime from an economic perspective. Erhard advised General Lucius Clay, the military governor of the U.S. zone, to execute their proposals for no price controls and currency reform (Henderson).

02. Zaibatsu, literally meaning “property agglomeration,” were a set of interlocking commercial enterprises closely held by the same family. The four most prominent—Mitsui, Mitsubishi, Yasuda, and Sumitomo—accumulated wealth during the Meiji era and profited from military procurement spending that drove Japanese imperialism.

03. The Joint Chiefs of Staff and the Secretary of State reached a “consensus on the need to create a comprehensive base system in both the Atlantic and Pacific oceans” although both disagreed on the political architecture of the arrangement. The former demanded outright annexation of Okinawa and the former Japanese mandates, while the latter advocated for trusteeship arranged by the United Nations so as to avoid charges of “aggrandizement” or colonialism explicitly denied in the 1943 Cairo Declaration and 1945 Potsdam Declaration.

04. Secretary of State John Foster Dulles promoted the concept of “residual sovereignty” after the San Francisco Peace Treaty officially ended the Allied occupation and established Japanese sovereignty in 1952. According to Article 3 of the Treaty, the U.S. had the right to place Okinawa under U.N. trusteeship, but because this posed a series of legal hassles for the U.S., Dulles instead mandated that Okinawa’s sovereignty “residually” reside in Japan. In effect, Japan had de jure sovereignty over Okinawa while the U.S. practiced de facto sovereignty over the area, thereby locking Okinawa into an effectual state of exception. This arrangement allowed the U.S. to escape charges of colonialism since it argued that Okinawa would ultimately revert to the Japanese administration. This was actualized in 1972.

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