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International Law as Interpreted During the Russo-Japanese War. By F. E. Smith, M. A., B. C. L., and N. W. Sibley, B. A., LL. M. The Boston Book Co., U. S. A. 1905.
The International Law and Diplomacy of the Russo-Japanese War. By Amos S. Hershey, Ph. D., Professor of Political Science and International Law in Indiana University. New York: the MacMillan Co. London: MacMillan & Co., Ltd. 1906.
These valuable and interesting volumes cover the same ground to quite an extent, but each has a particular interest and value of its own, and, taken together, they afford a minute and extensive view of the material facts and legal aspects of the most gigantic and momentous conflict of modern times.
In the introduction to Smith and Sibley's work there are some suggestive remarks on the deficiencies of International Law which the authors summarize as follows (p. 5):
International law consists of rules to regulate relations which have a legal rather than a moral character; its treaties and controversies have assumed a legal guise, encouraged by a general willingness to increase their apparent obligatoriness. But it none the less remains broadly true that it is deficient in that coercive side of the term law which is above all others essential and characteristic. All civilized nations agree that they are bound by its principles, and in the majority of cases find it convenient to observe them. On the other hand, they are not infrequently broken, and breaches may be consecrated by adding successful violence to the original offense. In reality the sources of its strength are three: (1) A regard which in a moral community often flickers but seldom entirely dies; for national reputation is affected by international public opinion; (2) an unwillingness to incur the risk of war by any but a paramount national interest; (3) the realization by each nation that the convenience of settled rules is cheaply purchased on the whole by the habit of individual compliance.
Referring to the moral nature and evolutionary growth of international law, Professor Hershey says:
The usages observed during the Russo-Japanese war may serve to strengthen such customs as are in a state of imperfect development or to weaken still further such as are in a state of decay. In any case they are an index to the present condition of international morality.
Speaking of the object of their work, Smith and Sibley remark that many points of novelty have arisen, and, what is more important, one or two questions of far-reaching principle; and that "the real significance of the war from the point of view of public law lies in the indifference with which Russia has treated the rights of neutrals as those rights have been hitherto understood." The conduct of Japan is also examined and the authors are thus led into a discussion the scope of which is indicated by the titles of the various chapters, namely, "Belligerent Operations in Neutral Territory; ""Russia and the Passage of the Bosphorus; ""Declaration of War and Manifesto;""Rights of War with Respect to Persons of Enemies; " " Espionage and Wireless Telegraphy in War;""Laying Mines in Midocean and Use of Balloons in War; ""The Principles of Neutrality and Special Usage Prohibiting the Construction and Outfit of Vessels of War; " " Belligerent Operations in Neutral Waters and the Chemulpho and Chefu Incidents; ""Reception of Belligerent Cruisers in Neutral Ports; ""The Rule of the War of 1756;" "The Right of Visitation and Search; ""The Destruction of Neutral Vessels; "" International Arbitration, The Hague Convention and International Incidents Exhibiting Analogy to the North Sea Crisis, with a History of the North Sea Incident;" "The Law and Practice of Blockade;" and several chapters on contraband. There are also quite a number of appendices, including discussions of Prof. T. E. Holland's letter to the "Times" on the British Proclamation of Neutrality, and the Foreign Enlistment Act, 1870 (British), with special reference to the fact that a large fleet of German vessels was engaged in supplying Welsh coals to the Russian fleet.
This work was published prior to Professor Hershey's and he refers to it on several occasions, in one of which he characterizes it as "that bulky and pretentious volume," and he dismisses the author's opinion that the decision of the case of the Allanton by the prize court at Vladivostok is to be regarded as "an extension of the doctrine of continuous voyage as "absurd as well as erroneous." There are occasional infelicities and obscurities of expression in the work, but it will well
1 On page 14, the authors say: "It is difficult not to regard her action in 1895 as not merely the overbearing, but even the exclusive, cause of the great war of 1904." On page 81: "As Vattel considered a person to be shot a spy,
repay a careful perusal by the student of international law and the reader who is interested in the history of his time.
Referring to Japan's conduct throughout the war with Russia, and especially to the cutting-out of the Reshitelni at Chefoo in August, 1904, Smith and Sibley say (p. 8):
Japan has only once been brought into direct collision with public opinion, and even on that occasion the voice of authority was almost equally divided. The considerations involved in what is commonly known as the cutting-out incident are discussed in detail elsewhere. It may be fully conceded that the curiously artificial situation created by the partial neutralization of China by the belligerents lent strong support to the contentions put forward in the official Japanese apologia, but it is none the less permissible to regret that Japan should even for a moment have stood in the debatable land of international subtilities. Throughout the war her attitude has been one of intelligent correctness, giving nothing away," in the current phrase, but taking no liberties with accepted international practice.
Professor Hershey severely censures Japan's conduct in the Reshitelni affair (pp. 260, 261), but he regards it as the only serious charge brought against her during her struggle with Russia.
The explanation of this singular example of a so-called "heathen " country in the practice of a legal and moral system which (although so largely derived from Roman jurisprudence) has been deemed peculiar to so-called "Christian" nations may be found, in part at least, from what follows (Smith and Sibley, pp. 8, 9):
Few subjects in the astonishing curriculum of Japanese education have proved more attractive than the study of law. The law students in the University of Tokio are far more numerous than those of any other faculty, and it is stated that public law and international law are the favorite subjects of research. From the moment that Japan successfully asserted her claim to enter the concert of civilized nations she set aside some of the finest minds in the country to
it is impossible to cite him as disapproving of the manner of Major Andre's execution." On the same page: "As the disguise is admitted even by General Halleck to have been accidental, it is impossible to consider that Andre was a spy who is liable to a felon's death." On page 437: "This result is unsatisfactory and is contradictory to the practice of Lord Stowell. No decision of that great admiralty lawyer ever decided that a vessel which like the Allanton had genuine papers disclosing a neutral destination, and which was exactly in its proper course, could be confiscated. But it is astonishing to observe from the argument of M. Sheftel, of the Russian bar, that this conclusion can be supported by the principles of modern continental maritime law, and, in great part, from the Russian naval regulations." The decree of confiscation was reversed by the Russian Admiralty Council.
become the vigilant guardians of her international legality. She left as little as possible to the international law of the quarterdeck, and it is reported that jurists were attached to the staffs of her marshals to instruct and advise them in the subjects of their particular study.
Thus, in the Chinese war, Professors Takahashi and Ariga were appointed, respectively, to advise the navy and army, and in their accounts of the questions which arose for discussion made a permanent addition to the literature of the subject.
From the books which have been published by these Japanese professors it appears how completely the most advanced of the modern laws of war were adopted and with what characteristic thoroughness they were applied by Japan, ten years earlier, in her struggle with China, although the Chinese prosecuted the war on a much lower plane. From the outset to the close of operations the military and naval authorities of Japan protected the persons and property of Chinese noncombatants in Japanese territory and applied the same rules to private property on sea as to private property on land, although a contrary policy was pursued by her enemy. The following example of this distinct advance, which we failed to follow in our war with Spain, is given by Professor Takahashi on pages 163 and 164 of his interesting little volume in the chapter entitled "The Japanese Requisition Regulations: "
On the 25th of October, 1894, when the Japanese navy was busily engaged in landing the second expeditionary army on the peninsula of Liao-tung, a good instance of naval requisition was furnished.
At the time nearly 20,000 troops had to be put ashore through the shallow water near the coast, and that so quickly and quietly as to be unnoticed by the enemy. A large quantity of timber was therefore required at once, to make rafts for facilitating the landing of horses, ammunition, provisions, etc.
Most conveniently a considerable number of Chinese ships laden with large balks of lumber passed off the place where the Japanese army was landing. The Japanese man-of-war Oshima and some other vessels were at once sent to bring them in to the coast. Thirteen of them were brought in and the timber on board was requisitioned, but the Japanese admiral was generous enough to pay a large price for it.
2 Cases on International Law during the Chino-Japanese war by Saknye Takahashi, Professor of Law in the Imperial Naval Staff of Japan, Legal Adviser to the Admiral Commanding the Japanese Squadron during the Chino-Japanese war, etc., etc., with a preface by Professor T. E. Holland, D. C. L., and an introduction by Professor Westlake, Q. C., LL. D. Cambridge: At the University Press, 1899; London: C. J. Clay & Sons, Ave Maria Lane, and Stevens & Sons, Chancery Lane.
La Guerre Sino-Japonaise au point de vue du droit international. Par Nagao Ariga (le Professeur). Preface par Paul Fauchille. Paris: Pedone, 1896.
This generous principle was always followed during the whole of the war, as at Sa-lien, Port Arthur, Wei-hai-wei, Liu-king-tau, Sho-ping-tau, Yung-cheng, etc., wherever it was absolutely necessary to procure provisions or enlist labor for coaling and watering.
The most interesting feature of the above facts is that they furnish additional proof of Japan's resolve to conduct the war in accordance with the most civilized modern principles; and it must be noticed how honorable these actions are to Japan, especially when we remember that she was fighting against a nation which acknowledges no law of war, makes no provisions whatever for the proper treatment of the private property of the subjects of a hostile state, and does not attempt by a resolute effort to restrain its troops from pillage and incendiarism, even within its own territories.
It thus appears that ten years before her war with Russia, Japan took the lead in the application of the idea that war is a contest between the armed forces of the belligerent states and not between their noncombatant individual members on land or sea.
Referring to the Japanese requisition regulations in force during the war with China, Professor Takahashi says:
The general principle underlying them is that the peaceful inhabitants of an enemy's country must not be required to discharge any services other than those essential to the maintenance of the invading army or the promotion of its military capacity, and that all services rendered by the people under such requisitions must be duly recompensed.
This is the accepted modern doctrine as to private property of the enemy on land, not contraband of war, but, as well known, it has not been applied to private enemy property under the enemy's flag at sea, which is still subject to capture and confiscation; and the proceedings at The Hague have shown that there is powerful opposition to the proposed immunity of private enemy property at sea.
In one of the most interesting chapters of Professor Hershey's book ("Russian and Japanese Rules of Warfare," pp. 267-294) is found another remarkable illustration of the civilization to which Japan has attained, namely, a note which was addressed by the Minister of Public Instruction to the school teachers of Japan in the following terms:
Although the Imperial Government is at present at war with Russia with the purpose of later securing a permanent peace, the students and pupils should make it their special aim to show themselves in no wise hostile toward Russian subjects. Such hostility on their part would give foreign nations a bad opinion of us. Besides, this is an important point to be considered in the education of boys and girls.