Of the ability and capacity of China to form binding international engagements there can be no doubt, but how far she has even now entered within the pale of public law is another matter. She lacks certain attributes essential to regular and complete membership of the family of States, governed by, and enjoying the privileges of, the system of general international law. All jurisdiction civil and criminal over foreigners within the bounds of the Chinese Empire is carefully reserved to tribunals of their own nationality, and the refusal or inability of China to adopt the rules of war prescribed by the rules of civilized States for some time formed a grave if not an insuperable bar to her full recognition as a subject of international law. In the words of Professor Holland: "The Chinese have adopted only the rudimentary and inevitable conceptions of international law. They have shown themselves to be well versed in the ceremonial of embassy and the conduct of diplomacy. To a respect for the laws of war they have not yet attained." It is true that China was invited by the Czar to send representatives to the Hague Conference of 1899, and that she is a party to the Convention for securing the pacific regulation of international disputes and to some of the subsidiary conventions, including that for the application to maritime warfare of the principles of the Convention of Geneva. But the gross contempt for the comity of nations shown by the assault on the Pekin Legations in the following year, and the murder of the German Minister and the Chancellor of the Japanese Legation, went far towards depriving her of what credit and status she had acquired. However, considering her rapid development of late, her increasing relationships with the West, her efforts to regularise her government, and to fall in line with the conceptions of international intercourse entertained by the civilized communities of the world, it may be said that, notwithstanding certain restrictions imposed upon her, she is now a member of the international circle. In 1907, too, China despatched representatives to the second Hague Conference. Japan, prior to 1854, had succeeded in maintaining absolute political isolation as regards non-Asiatic powers. In that year Commodore Perry on behalf of the United States, and subsequently Admiral Stirling on behalf of Great Britain, concluded conventions for regulating the admission of ships bearing their respective flags into certain ports of the Empire of Japan. In 1858, a treaty of "peace, friendship and commerce" was concluded between Great Britain and Japan, and in the same year the consular jurisdiction over British subjects trading or residing in the latter country was established. Similar treaties were concluded with the United States, with France and with Holland. Since the Revolution of 1868 the Powers owning the obligations of international law have, without exception, entered into diplomatic relations with Japan. In 1886 Japan notified her adherence to the Geneva Convention. In 1894, after prolonged negotiations, the European and American Governments agreed, largely on the initiative of Great Britain, to the abolition at the expiration of five years of the consular jurisdictions, and since 1899 all persons of whatever nationality within the confines of Japan have been subject to the Japanese tribunals; as a return for this all limitations imposed upon foreigners in respect to trade, travel and residence, have been removed. In the latter year Japan was invited to the Hague Conference, and her representatives signed the various conventions there adopted. In the Chinese war of 1894, with the grave exception of the Port Arthur massacre, Japan had striven scrupulously to comply with the highest civilized standards. Her soldiers were equally conspicuous for efficiency and humanity during the military operations which 'followed the Boxer rising in 1900. To her prompt despatch of a division of 21,000 splendidly equipped troops, the relief of the Legations may be largely attributed. In 1902 an offensive and defensive treaty of alliance was concluded between Great Britain and Japan (2). In the Russo-Japanese war, 1904, Japan showed herself not only fully conversant with the rules of international law, but disposed throughout to apply them in a conscientious and enlightened manner (a). In 1907 she sent delegates to the second Hague Conference, and indeed was acknowledged as the eighth Great Power in the World Concert, inasmuch as she received the right of a summons for her chosen judge to participate in the judicial functions of the International Prize Court (b). Again, in 1909, she took part in the London Naval Conference. Thus, we may say that Japan now occupies a position in the community of States and in relation to international law equally with the leading Powers of the West. () See Hall, International Law (5th ed.), pp. 41-2; Holland, Studies in International Law, p. 112; Hertslet, Commercial Treaties, ix. p. 977, 1. pp. 468, 1075; Wharton, Digest of International Law, §§ 67, 68, 141a, 144, 158. (a) Cf. N. Ariga, La guerre russo japonaise au point de vue de droit international (Paris, 1907); S. Takahashi, International Law applied to the Russo-Japanese War (London, 1908). (b) E. A. Whittuck, International Documents (London, 1908). Definition of international law. Sources and evidences of International law, as understood among civilized nations, may be defined, from one point of view, as consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations, subject to such definitions and modifications as may be established by general consent (c). In 1896 Lord Russell of Killowen (the Lord Chief Justice of England) gave this simple definition: the rules accepted by civilized States as determining their conduct towards each other; and as such it has been adopted judicially (d). A distinction is sometimes drawn between the customary, unwritten, or common law' of nations, based on long-established usages and customs, and the written or conventional law, based on express international declarations, treaties, and conventions. The various sources and evidences of international law in these international different branches are the following: law. Writings of jurists. The authority of textwriters. 1. Text writers of authority, showing what is the approved usago of nations, or the general opinion respecting their mutual conduct, with the definitions and modifications introduced by general consent. Without wishing to exaggerate the importance of these writers," or to substitute, in any case, their authority for the principles of reason, it may be affirmed that they are generally impartial in their judgment. They are witnesses of the sentiments and usages of civilized nations, and the weight of their testimony increases every time that their authority is invoked by statesmen, and every year that passes without the rules laid down in their works being impugned by the avowal of contrary principles. Jurists accustomed to the Common Law of England and America, where judicial decisions form a binding precedent, and are authoritative expositions of the law, are, as a rule, inclined towards resting international law on practice and precedent, and prefer to rely upon the decision of a court or the act of a government, rather than upon theory or the dicta of text-writers, however unanimous or eminent the writers may be. On the other hand, in France and other countries where the whole law is contained in a code, and where the decisions of the courts only settle the matter in dispute between the parties, and form no binding precedent, jurists place very great reliance on the theoretical speculations of text-writers, and frequently consider the rules they (c) Madison, Examination of the (d) West Rand Central Gold Mining Co. v. Rex, (1905) 2 K. B. 407. Cf. R. v. Keyn (The Franconia) (1876), 2 Ex. D. at 154. lay down as the highest authority. It is not too much to say that the influence of speculative writers in England is comparatively small. In the days of Grotius, when his own works, and a few other treatises, were almost the only source from which anything on the subject could be derived, text-writers had the greatest reverence paid to their opinions. But now that precedents are to be found upon so many points, a text-writer who ignores them, and appeals to theory or to other text-writers instead of to facts, must not expect to receive any great attention in this country. "Writers on international law," says Lord Chief Justice Cockburn, "however valuable their labours may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it. This assent may be express, as by treaty or the acknowledged concurrence of governments, or may be implied from established usage" (e). On the other hand, it has been pointed out that "the founders of international law, though they did not create a sanction, created a law-abiding sentiment. They diffused among sovereigns, and the literate classes in communities, a strong repugnance to the neglect or breach of certain rules regulating the relations and actions of States" (f). And it is very doubtful if the judgments of Sir Alexander Cockburn, and those who agreed with him in the Franconia Case, can be taken as correctly representing the law of England; for the opinion of the minority in that case has been since not only enacted, but declared by Parliament to have been always the law (g). In America also, at any rate, international law is regarded as founded upon natural reason and justice, the opinions of writers of known wisdom, and the practice of civilized nations, and is to be respected as part of the law of the land (h). “In cases where the principal jurists agree, the presumption will be very great in favour of the solidity of their maxims; and no civilized nation that does not arrogantly set all ordinary law and justice at defiance, will venture to disregard the uniform sense of the established writers on international law" (i). In The Paquete Habana, Mr. Justice Gray remarked that the works of jurists "are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law (e) R. v. Keyn (The Franconia) (1876), 2 Ex. D. 202. Cf. West Rand Central Gold Mining Co. v. Rex, (1905) 2 K. B. 391, 401-2, 407, per Lord Alverstone, L. C. J. (f) Maine, International Law, p. 51. (g) R. v. Dudley (1884), 14 Q. B. D. 273, 281, per Lord Coleridge, L. C. J. (h) Wharton, Digest, § 8. See also Heffter, ed. 1883, note by Geffcken, § 2, p. 3. (J. Kent, Commentary on International Law (1878), p. 19. Treaties. ought to be, but for trustworthy evidence of what the law really is" (k). With regard to private international law, the works of writers like Savigny in Germany, Story in the United States, and Westlake in England, have done much to establish a systematic branch of jurisprudence. 2. Treaties of peace, alliance, and commerce declaring, modifying, or defining the pre-existing international law. What has been called the positive or practical law of nations may also be inferred from treaties; for though one or two treaties, varying from the general usage and custom of nations, cannot alter the international law, yet an almost perpetual succession of treaties, establishing a particular rule, will go very far towards proving what that law is on a disputed point. Some of the most important modifications and improvements in the modern law of nations have thus originated in treaties (). "Treaties," says Madison, "may be considered under several relations to the law of nations, according to the several questions to be decided by them. They may be considered as simply repeating or affirming the general law; they may be considered as making exceptions to the general law, which are to be a particular law between the parties themselves; they may be considered explanatory of the law of nations on points where its meaning is otherwise obscure or unsettled, in which they are, first, a law between the parties, themselves, and next, a sanction to the general law, according to the reasonableness of the explanation, and the number and character of the parties to it; lastly, treaties may be considered a voluntary or positive law of nations" (m). Examples of treaties, which simply declare or emphasize the existence of certain rules, principles, or usages, are found in those of the Armed Neutralities of 1780 and 1800 (n) (though some of the rules contained therein were incompatible with what was considered by some to be established practice, followed by Great Britain). In the Treaty of Washington, 1871, the three rules laid down as a guide to the Court of Arbitration in considering the Alabama claims were maintained by the United States to be merely declaratory of previously existing law; the British Government, on the contrary, denied this contention, but in order that an amicable settlement might be reached, agreed to submit to (k) The Paquete Habana (1899), 175 U. S. Rep. 677, 700. Cf. also Hilton v. Guyot (1894), 159 U. S. Rep. 113, 163-4, 214-5. (7) Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 10. (m) Madison, Examination of the British Doctrine, &c., p. 39. (n) Cf. G. F. de Martens, Recueil des principaux traités, vol. i. pp. 193, 194; vol. ii. pp. 215-219. |