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Journal of the History of International Law Revue d’histoire du droit…

- - - - However, it exploited the ambiguity in the law to justify certain actions, such as the sinking of the Kowshing, which were excessive but not explicitly illegal. The presentation of international law in diplomatic discussions helped legitimize such actions. Other instances, like the Port Arthur massacre, were both excessive and illegal, but were portrayed as exceptional, allowing Japan to avoid accountability.
- - - - Chinese and Japanese historians have offered contrasting perspectives on these events
        
        Chinese historians tend to attribute all wrongdoing to Japan, while Japanese historians debate the integrity of Japanese motives, with some emphasizing Japan's adherence to international law and others criticizing it as an expression of imperial militarism
- - - - Japan's adherence to international agreements, such as the Geneva Convention and the maritime regulations of the Declaration of Paris, demonstrated its commitment to the moral values represented by the legal code
    - - China's alleged hostile actions towards Japan, such as offering bounties for Japanese officers and firing on truce-bearing ships and soldiers, were highlighted
        
        However, presenting Japan as the opposite of China raised concerns about Japan's own acts of questionable legality during the war. Specifically, the lack of a formal declaration of war by Japan and incidents like the sinking of the British steamship Kowshing and the Japanese massacre at Port Arthur were seen as potentially problematic
  - - - first question addresses the necessity of a formal declaration of war
        
        Nineteenth-century authorities had differing views on this matter, with British writers generally believing that a declaration was not necessary, while French and continental writers argued for its importance. The historical argument was also considered, which stated that most wars since the late eighteenth century began without a formal declaration
        
        The absence of a declaration was seen by some as contrary to notions of national sovereignty, international community, and war as a last resort. However, the speed of telegraph communications and the act of hostility itself were cited as reasons to discount the need for a formal declaration. In the Sino-Japanese War, Japanese officials aligned with the British position
      - second question deals with determining the official commencement of hostilities
        
        Two proposed dates were suggested retroactively. Ariga argued that the war began due to China's threat to Korean independence, while Takahashi emphasized Chinese acts of war, specifically the battle of Fengdao and the sinking of the S.S. Kowshing
        
        The Japanese government officially adopted Takahashi's analysis, and the British government followed suit, considering the conflict imminent even without a formal declaration
  - - - The Japanese officers stopped and inspected the British ship, demanding that it follow them to their naval base. However, the Chinese troops on board prevented the British captain from complying, leading to the Japanese sinking the ship
        
        Around 900 crew members and Chinese soldiers died in the incident. The Japanese government apologized to the British government and promised an investigation
    - - According to legal experts, the Kowshing was not a neutral vessel but acting in China's belligerent interests, justifying its sinking. The liability was attributed to the captain of the Kowshing, and the British ship owners suffered the loss.
        
        The legal discussions largely overlooked the treatment of Chinese soldiers on board. While the 1864 Geneva Convention required medical assistance for captured combatants, it did not apply to naval warfare, and Japan was not obligated to provide assistance to the Chinese soldiers.
        
        The majority view was that there was no rule obliging belligerents to care for enemy combatants in naval warfare, making the deaths regrettable but not illegal.
  - - - Japanese publicists, including prominent figures like Fukuzawa Yukichi, defended Japan's actions and portrayed the war as a progressive step for civilization. The Japanese officials provided explanations for the massacre, suggesting that the dead were soldiers posing as civilians and had engaged in sniping at Japanese troops
        
        They justified the excessive behavior as a response to the barbaric treatment of Japanese dead bodies by Chinese troops. The defenders of Japan argued that the Port Arthur massacre was an exception and not reflective of Japanese army orders or state policy
        
        In contrast the sinking of the British ship Kowshing by a Japanese cruiser was treated as a legitimate act of war, as the ship was seen as acting in the belligerent interests of China
        
        The legal discussions surrounding these incidents were influenced by the perception of Japan as civilized and China as barbaric, leading to different justifications for the actions of the respective parties. The exception in both cases served the rhetorical function of establishing a pattern of legality that aligned with the preconceived judgments about the character of the combatants.
  - - - Prize law, which was prominent in 19th century international law, dealt with the procedures for capturing neutral ships suspected of trading with an enemy during war
        
        Japan emphasized its creation of prize courts and its adherence to prize law during the conflict, showcasing its commitment to fairness and equity. (it is noted that Japan's enforcement of prize law was largely symbolic, as only one ship appeared in Japanese prize court out of the 79 apprehended during the war)
        
        Despite this misrepresentation, Japan's adherence to prize law served as a diplomatic strategy to highlight its overall commitment to international law and its respect for the rights of British citizens engaged in trade and shipping
        
        Additionally, it aimed to emphasize Japan's unity and authority compared to China, which had a disunited policy during the war. By elevating Japanese prize law, the presentation aimed to demonstrate Japan's fairness, consistency, and adherence to international legal principles, establishing it as an equal and sovereign state committed to the international community.
  - - - The English language discussion, involving British scholars John Westlake and Thomas Erskine Holland, was particularly significant due to Britain's dominance in the international community
        
        Westlake and Holland defended Japan's conduct, establishing precedents and arguing that Japan acted in a civilized and legal manner
        
        Their efforts contributed to Japan's recognition as a sovereign state, leading to them being decorated by the Emperor of Japan in 1902
- - - - a civilised form of government, defined as such by a constitution
        
        civilised codes of civil and criminal law, which required, for example, provisions for bankruptcy that accorded with European standards, and the elimination of barbaric practices such as torture and the punishment of beheading by the sword
        
        adherence to international agreements such as the Geneva Convention of 1864, which created international standards for the treatment of prisoners of war and formalized the International Red Cross.
        
        If Japan could conform to these international standards of statehood, which it did by the early 1890s, its unequal treaties could be renegotiated so as to grant Japan equal standing with the western powers as a sovereign state.
        
        The first of these renegotiations was concluded with Britain on 16 July 1894, with the restoration of Japanese sovereignty scheduled to proceed in stages beginning in 1899
        
        Japanese sovereignty was not simply a property that was recognized or an assertion that was made. By the late nineteenth century, the determinants of sovereignty included an array of processes
        
        self-determination, a principle informed by notions of popular sovereignty
        
        A second was the set of provisional rights within natural law – particularly self-protection – which validates the power behind notions of raison d’état
        
        international law, which both informs modern manifestations of state sovereignty and creates the apparatus for the consensual recognition of the legitimacy of states