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Sovereignty and the Laws of War: International Consequences of Japan’s…
Sovereignty and the Laws of War: International Consequences of Japan’s 1905 Victory over Russia
II. International Publicists and Civilised Statehood
Japan's place among civilised nations was supported by public testimony of two groups of experts: diplomatic corps and legal counsel, and practicing lawyers or university professors specializing in international law
The diplomatic corps and legal counsel presented Japan's development by
1894
, leading to the revision of treaties with Japan
Publicists sponsored and publicised discussions on international law and its impact on international events.
-aimed to promote international law as a rising star of hope to reduce the suffering caused by war
The
International Law Association (ILA)
and the
Institut de Droit International (IDI)
were the main organizations where publicists gathered to discuss and expand the rule of law, particularly in warfare
acted independently and objectively, with no ties to state service, and sought to codify and expand the rule of law
These publicists were "centrists" committed to liberal reformism and moderate nationalism, using law to reform society and impose humanitarian limits on warfare
Japan had two groups of publicists during the Russo-Japanese War:
those writing in English-language publications in the US and Britain
legal experts in France
French publicists, including legal experts like
Sugimura Yōtarō
and
Nagaoka Harukazu,
crafted arguments to explain Japanese actions in terms of international law for a European legal audience
Motono Ichirō,
Japanese minister in Paris, played a significant role in supervising the international legality of war operations and had connections with Russian authorities and Japan's allies
Ariga Nagao,
a prominent Japanese scholar of international law, studied in France and published definitive works on international law during the Sino-Japanese and Russo-Japanese Wars
IV. Violations of Neutrality
As a belligerent in the Russo-Japanese War, Japan took advantage of the weakness of other countries, such as Korea and China, invoking military necessity as justification
sought support from its allies, particularly Britain and the United States, to enforce its will during the war and secure its interests, including the absorption of Korea
Japan's actions, including its offensive against France for hosting the Russian fleet, led to the redefinition of neutrality at the Second Hague Conference
violations of Korean and Chinese territory raised questions about the duty of neutrals to defend their neutrality and whether belligerents infringe upon the rights of neutrals
French assistance to Russia's Baltic Fleet raised questions about the obligations of neutral powers to shun all belligerents or offer aid equally to both sides
2. The Chefoo Incident
Chefoo incident in
August 1904
was seen as a violation of international law. The incident involved the Russian warship Ryeshitelni seeking refuge in the Chinese harbor at Chefoo, which was considered neutral territory.
Chinese authorities ordered the captain of Ryeshitelni to disarm the ship or leave the port within 24 hours
The ship began to disarm under the guard of Chinese marines but was discovered by Japanese warships the next day
Japanese and Russian commanders fought and both fell overboard. Shortly after, a series of explosions destroyed the ship's engines, and the Japanese captured the Ryeshitelni and took Russian prisoners
China strongly protested the incident as a violation of its territory and neutrality
Most British and United States publicists agreed that Japan had violated Chinese territory and neutrality.
Japanese supporters blamed China and Russia for the incident, stating that it was a result of China's weakness in enforcing its neutrality
official Japanese explanation highlighted three justifications:
ship carried the hostile character of the theater of war
Chefoo itself was not fully neutral due to Russia's telegraph station
Russians on board were the aggressors
Japan requested China to remove the telegraph station and the Ryeshitelni from Chefoo but received no response, leading Japan to take action against Russia
At the Second Hague Conference, some delegates acknowledged Japan's violation of international law at Chefoo and called for legal guidelines to prevent such situations in the future
Two legal guidelines were established:
one regarding land war prohibited belligerents from trespassing on neutral territory
the other regarding maritime war prohibited belligerent visits and captures in neutral waters
Neutrality became armed impartiality, requiring neutrals to use force to uphold their neutral sovereignty and enforce their rules of neutrality
4. French Neutrality and the Baltic Fleet
Japan's action regarding French neutrality during the Russo-Japanese War was a manifestation of state will through its diplomats overseas
utilised its good relations with Great Britain to put pressure on France to rescind its support for the Russian Baltic Fleet in French colonial ports as it sailed to the Asian theater of war
absence of a common rule in international law regarding neutral support for belligerents was a problem. Japan believed that neutrals like France should not offer unlimited coal and hospitality to belligerent vessels in its ports
France refused military operations in its ports but did not restrict belligerent ships regarding their length of stay or the quantities of food and coal they could take aboard in French ports
use of colonial ports gave significant advantages to maritime powers like Britain, as they could wage a global war from their home and colonial ports combined
late
19th
century, Britain and the United States sponsored a new doctrine of neutrality intended to restrict neutral support for maritime belligerents. Bilateral treaties were signed, and countries like Japan, Holland, and Spain began including restrictions on belligerents' stays in neutral ports and limits on coal quantities.
Japan protested against powers that supplied coal to the Russian fleet during the Russo-Japanese War. Japanese diplomats in Europe coordinated diplomatic efforts, and complaints were raised against Britain, Denmark, and Spain for allowing Russian vessels to coal in their waters
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Japan's delegate presented the difference between humanitarian asylum and the abuse of hospitality, arguing that belligerent warships should not be allowed into neutral ports or permitted to coal and take provisions
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1. The Chemulpo Incident
Russo-Japanese War was fought mainly on the neutral territory of non-belligerents (Korea and China)
Both Russia and Japan claimed honorable motives and the intention to protect the sovereignty and territorial integrity of China and Korea
Japanese government struggled to justify its actions in violating Korean neutrality, with some scholars citing colonial precedents and others invoking military necessity
Japanese forces threatened Russian and neutral warships, caused significant international attention
interference with the rescue of Russian sailors by neutral ships raised questions about the rights of belligerents and neutrals (later addressed at the Second Hague Conference)
resulting compromise at the conference established that belligerent warships could demand the surrender of rescued men, but neutral warships must ensure that they do not return to military operations
reflected the desire to extend the principles of the Geneva conventions to naval warfare and addressed the ongoing dispute between the rights of belligerents and neutrals
3. Japan’s Absorption of Korea
absorption of Korea by Japan was a result of colonization that had been agreed upon by Western powers at the Berlin conference of
1884-86
Japan's actions in Korea did not violate international law but were legitimised by the support of the United States and Britain
concept of "uninhabited land" or "backward territory" had no standing in international law, but acquisition of territory was recognised based on the results of such acquisition
Bilateral treaties recognizing "spheres of influence" and the formal method of "occupation" or "cession" were developed to acquire backward territories
Korea's status as an "uncivilized" territory and the belief that Koreans were a "backward" people justified Japan's absorption of Korea and British and United States governments supported and encouraged Japan's actions in Korea, despite previous treaties affirming Korea's independence and sovereignty
Legal experts justified Japan's violation of Korean neutrality based on military necessity and practicality, in addition, Japan's allies annulled their treaties with Korea and vacated their diplomatic offices in support of Japan's absorption of Korea
November 1905
Korea-Japan treaty established Korea as Japan's protectorate and was criticized for contradicting previous commitments to guarantee Korea's independence and sovereignty
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III. The Conflict over Declarations of War
1. The Outbreak of Hostilities and State Will
The outbreak of hostilities in the Russo-Japanese War in February
1904
was controversial despite Japan's civilised status
received significant media coverage due to its exotic nature and ferocity in the East
overlooked important details:
Japanese squadron capturing a Russian steamer hours before Russia received Japan's diplomatic notes
official commencement of hostilities was marked by the departure of Japanese warships from Sasebo, according to Japanese authorities
historians state that the war began on
February 8
when the Japanese navy attacked the Russian fleet in Port Arthur
debates about whether it constituted a surprise attack and a declaration of war
Japan officially declared war on Russia on
February 10,
and Russia responded with a manifesto ordering its armies to retaliate
Japan argued that it had landed troops in Korea before the declaration of war but after a state of war actually existed
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Japan, as a newly recognised member of the civilised community, had been viewed optimistically before the war but was now challenged
Russia's international protest demanded attention and a hearing, raising questions about which party had the support of the law
Japan grew tired of Russia's delayed response to negotiations and its growing interests in Korea
Russia had agreed to remove its troops from Manchuria after the Boxer war but continued their occupation under the pretext of a separate war with China
majority of powers recognised Japan's first note as a just expression of its sovereign right, as they believed Russia was interfering with Japan's interests in Korea and China's Manchuria
February 5, 1904
, Japanese Prime Minister
Katsura Tarō
instructed the Foreign Minister to notify the Russian government of the termination of negotiations and the removal of the Japanese ambassador from St. Petersburg
2. International Law and Declarations of War
night attack at Port Arthur by Japan in
1904
sparked international discussion among publicists and legal experts.
two main questions:
the specific start of the Russo-Japanese War
the issue of announcing hostilities
specific start of the war was debated, questioning whether Japan's diplomatic notes constituted a declaration of war
French legal scholars:
criticised Japan for not adhering to the generally accepted principle of a formal declaration of war
Publicists in the United States and Britain:
supported Japan's position, arguing that a formal declaration of war was unnecessary
majority of publicists in Europe and the Americas, however, supported the "continental" position that a formal notification of war should precede hostilities
absence of a declaration of war was seen as contrary to the notion of an international community organised by the rule of law and undermines the notions of national sovereignty and war as a last resort
serves practical purposes, such as alerting neutral powers and invoking legal relations and obligations
The consensus reached by the
International Law Association (IDI)
in
1906
and the Second Hague Conference in
1907
emphasised the need for a declaration of war
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Japanese legal experts:
argued that the attack was not a surprise and that Japan had not violated international law
3. Sugimura Yōtarō’s “Declaration of Conditional War”
Sugimura Yōtarō
proposed a theory of conditional war in relation to Japan's behavior in the Russo-Japanese War
borrowed the principle of conditional war from earlier authorities of international law such as
Hugo Grotius
and
Christian Wolff
criticised the practice of defining war as the "state of war" and argued that acts of war committed during peacetime should not be considered purely criminal and illegal acts and believed that a declaration of conditional war provided clarity to the enemy and allowed other states to consider their choices as allies or neutrals
defined the interval of the time limit demanded by the declaration of conditional war as the "state of conditional war," which allowed all parties to attend to their legitimate defenses
recognised that the aggressor may be at a military disadvantage during the state of conditional war but considered it reasonable compensation for the rights of belligerents
proposed a return to an empirical grounding for international law based on practice and custom rather than abstract perspectives
argued that a declaration of conditional war created a special state of peace dominated by a principle of armistice, allowing for third-party mediation and maintaining freedom of commerce
Charles Dupuis
shared similar concerns about acts of war during peacetime and advocated for an international convention to address the issue
Sugimura
criticised the language of international morality and loyalty used by
Dupuis
and the
International Law Association (IDI),
emphasising the need for a new legal ethos based on justice and humanity, and believed that the turn to positive international law should suspend precedent practices and forge a new legal order common for all nations
Japan's behavior in the Russo-Japanese War validated its practice of state sovereignty and contributed to a change in international law through participation in deliberations
I. Sovereignty and International Law
sovereignty was understood as an attribute of states but had two different foundations
State sovereignty was defined in terms of civilized status, which was determined by the family of nations responsible for international law
also defined by state will, where a state exerted its sovereignty by defending itself in a hostile world
State will was seen as a legitimate venue for sovereignty
civilised statehood and state will
The family of nations consisted of western powers who denied sovereignty to China, Japan, and other subordinated peoples unless they adopted western-style constitutions and codes of law
The recognition of civilized statehood earned a state international recognition of its sovereignty and qualified it for treatment as a sovereign equal.
Positive international law sought to replace state will with civilized and progressive forms of sovereignty but had to recognize state will due to the historical context of conquest and the state of nature created by western powers
State will posed a limit to adherence to international law, as states were their own highest authorities and state will often trumped international law
Necessity played a role in the relationship between international law and sovereignty during the Russo-Japanese War
Military necessity and political considerations affected the interpretation of international law and sovereignty
Necessity was seen as a legal defense but was not considered a right in positive international law, which aimed to eliminate necessity
Political considerations influenced the interpretation of international law and compromises were made due to alliances and political interests
Japan's sovereignty prompted action from the international community and led to new agreements, as well as violations of Chinese and Korean territory and the absorption of Korea
prevailed in many matters, and international law was modified to accommodate Japan's actions