1. The Outbreak of Hostilities and State Will

In spite of the support for Japan's civilized status, the outbreak of hostilities in February 1904 was controversial. Although many wars in previous decades had erupted without declarations, the Russo–Japanese War captured the public's attention for several reasons. The exotic ferocity of “war in the east” encouraged tremendous journalistic coverage of the war. As the newest member of the civilized community and a noted participant at The Hague Conference in 1899, Japan was viewed with optimism among publicists and public opinion, and this now seemed challenged by the war. But perhaps the most important reason was the vigor of Russia's international protest: it demanded a hearing. Given all of the effort dedicated to reiterating Japan's status as a civilized state during the months leading up to and through the start of the Russo–Japanese War, it is striking that the war began in much the same manner as the Sino–Japanese War had a decade earlier, with a similar international response: the Japanese had precipitated hostilities by means of a surprise attack, without a declaration of war and therefore without regard for the international community. Which party had the support of the law—Russia or Japan?Footnote ²¹

The facts of the case are relatively clear. Japan had grown increasingly exasperated with Russia's tardy inconclusiveness in responding to Japanese proposals for negotiations over the disposition of Russian forces in Manchuria, and with Russia's growing interests in Korea—among other things, Russia had purchased mining and timber rights. Russia had, after all, agreed at the end of the Boxer war in 1901 to remove its troops from Manchuria but then, under what many considered the pretext of a separate declaration of war upon China, had insisted that it was fighting a new war with China that necessitated the continued occupation of sections of Manchuria by Russian troops. On February 5, 1904, Japanese Prime Minister Katsura Tarō instructed Foreign Minister Komura Jūtarō to notify the Russian government that Japan was formally breaking diplomatic relations and intended to remove its ambassador from St. Petersburg. Komura accordingly sent two notes to Minister Kurino Shin'ichirō in St. Petersburg on February 5, which were delivered to Russian Foreign Minister Lamsdorff on the afternoon of February 6. The first announced that the Japanese government was terminating negotiations and reserved the right “to take such independent action as they may deem necessary to defend our position menaced by Russia and to protect our rights and interests”; the second announced that the Japanese government was breaking off diplomatic relations with Russia and that Minister Kurino would be leaving St. Petersburg (which he did on February 10).Footnote ²²

Was this an ultimatum and implicitly a declaration of war? Japan and its allies would argue that it was; Russia and its allies would argue that it was not. In any case, the notes were unquestionably a legitimate manifestation of Japan's state will, and a majority of the powers recognized the first note as a just expression of Japan's sovereign right, because many among the powers understood that Russia was interfering with Japan's interests in Korea and with everyone's interests in China's Manchuria. Moreover, a majority of the powers believed that Russia was behaving obstructively and that Japan had only one remaining course of action—to proceed with war. In the sober judgment of Francis Rey at the University of Paris, based upon his systematic analysis of all the Japanese and Russian charges and countercharges, Japan's actions had been regrettable but entirely legitimate.Footnote ²³

At this point, however, the facts have been muddled in the historical record. Historians typically overlook details that were central to the Japanese interpretation of events: on the morning of February 6, a Japanese squadron sailed from Sasebo naval base and, two hours later, commenced hostilities against Russia by capturing a Russian steamer, the Ekaterinoslav, in Korean coastal waters. The ship was eventually taken to the Japanese Prize Court in Sasebo, where it was condemned as prize of war. The important point, as Charles Leroux painstakingly reconstructed, is that this action occurred several hours before Lamsdorff in St. Petersburg received Kurino's two notes from Tokyo and therefore well before Russia was aware of Japan's decisions to break off negotiations and formal diplomatic relations. Consistent with their interpretation of the laws of war, Japanese authorities subsequently declared that the departure of Japanese warships from Sasebo marked the official commencement of hostilities, so that the seizure of the Ekaterinoslav was a legitimate act that occurred after the official start of the war.Footnote ²⁴ Questions of Korean neutrality, the vulnerability of merchant vessels, and the existence of a legal state of war depended for their satisfactory resolution upon this official version of the start of the war.

Nonetheless, a majority of historians erroneously state that the war began two nights later, on February 8, when the Japanese navy attacked the Russian fleet stationed in Port Arthur and damaged many vessels. As would be the case decades later at Pearl Harbor, the attack was not fully successful as a military operation but was quite controversial as to whether or not it constituted a surprise attack and whether or not such an attack substituted for a declaration of war. Two days after the attack, on February 10, the Japanese emperor issued a formal declaration of war against Russia, and on the same day, the Russian emperor publicized a manifesto that declared that he had ordered Russian armies to respond to Japan's challenge with force. On February 22, in a circular letter to the family of nations, Russia denounced the Japanese attack as an act of treachery and a violation of international law, in response to which Japan issued a pair of diplomatic notes explaining and justifying its actions.Footnote ²⁵ Two debates dominated this public exchange. First was Russia's assertion of its purely peaceable intentions, which Japan refuted by pointing to Russian increases in naval and ground forces during the six months prior to February 1904. Second was the neutrality, independence, and integrity of Korea, which, Russia charged, had been violated by Japan. In its defense, Japan admitted that it had landed its troops in Korea “before the declaration of war was issued, but not before a state of war actually existed between Japan and Russia,” and insisted that it had done so because one of its aims was to maintain the independence and integrity of Korea.Footnote ²⁶ Other defenses of the invasion of Korea were subsequently offered, a point to which we return. But Japan's initial explanations, of course, begged the question prompted by the course of events: When does a state of war begin—with a declaration of war or with a hostile act or with something else?

2. International Law and Declarations of War

Japan's night attack at Port Arthur galvanized the international community of publicists and legal experts, because many recalled the equally problematic start of the Sino–Japanese War in 1894.Footnote ²⁷ Generally, the international legal discussion revolved around two sets of questions. First was the specific start of the Russo–Japanese War: did Japan's two diplomatic notes constitute a declaration of war and if not, what could be reasonably construed from them? Had Japan violated international law, and what was the international community to do in light of surprise attacks? Second was the more general issue of announcing hostilities: what were the specific effects of a manifesto, an ultimatum, and a declaration of war, particularly in relation to a conditional state of war, a de facto state of war, or a de jure state of war? And were these meaningful and legitimate distinctions? In addition to the many publicists writing on the matter, the Council of the IDI formed a committee to examine the opening of hostilities in September 1904 and eventually produced the IDI's resolution of 1906. This resolution was in turn taken up by the Second Hague Peace Conference in 1907 and incorporated in part into its Convention III.

French legal scholars were the most thorough of Japan's critics. Writing in 1907 and in preparation for the Second Hague Conference, Marius Maurel noted that the events of February 1904 drew the protests of international lawyers throughout Europe, because they judged that Japan had negated what a majority understood to be a generally accepted principle: the need for a formal declaration of war prior to the opening of hostilities. Moreover, they feared that Japan had jeopardized the progress achieved in the course of the nineteenth century, and that Japan's conduct threatened a return to natural law, or worse, outmoded tradition—the very principles that international law had sought to reform.Footnote ²⁸ Both Maurel and Charles Leroux drew particular attention to the two Japanese diplomatic notes, the first warning Russia about its failure to negotiate and the second announcing the official rupture of diplomatic relations. Did either of these constitute an ultimatum or an implicit declaration of war? Maurel and Leroux insisted, no. Neither note performed the important function of notifying neutral powers of a war in northeast Asia and, as each side subsequently issued a formal declaration of warfare on February 10, neither note could be considered a Japanese declaration of war.Footnote ²⁹ Even more reprehensible, to Leroux and to Frédéric de Martens, a leading Russian authority on international law, was the timing of the notes and the opening of hostilities on February 6. They concluded that Japan's conduct had been underhanded. Although both conceded that, historically, many wars in the previous two centuries had begun without formal declarations of war, they expressed their disappointment in Japan's provocation of an “unjust war” and its lapse as a civilized nation.Footnote ³⁰ They concluded that Russia had been correct in denouncing the attack as an act of treachery and a violation of international law.

Japanese legal experts responded to this argument by protesting that the attack of February 8 had not been a surprise, nor had Japan violated international law. Nagaoka Harukazu, from the Japanese embassy in Paris, reiterated the historical argument that was repeated by every Japanese writer and Japan's supporters in Britain and the United States. The historical record demonstrates that most modern wars have begun without a formal declaration of war. There may well be an “English” custom, shared by the United States and Japan, such that a declaration of war is unnecessary, and a “continental” custom such that a formal declaration of war is preferred. But the facts show that only one war in the past century had begun with each belligerent issuing a formal declaration of war prior to hostilities—the Franco–Prussian War in 1870—and it was a prominent exception to common practice. In recent times, neither Japan nor Russia had issued formal declarations of war prior to the opening of hostilities, and therefore it could not be said that Japan had violated international law. Moreover, all argued, the attack of February 8 was neither unexpected nor a surprise. Japan had warned Russia repeatedly that it sought a satisfactory conclusion to negotiations; Russia had been building up its troops in Manchuria and along the Korean border; and foreign legations in the area had been making preparations in case of war as early as January 1904. Accordingly, Nagaoka insisted, Russia should have taken the first Japanese note as an ultimatum: war was bound to follow.Footnote ³¹ Ariga Nagao, legal advisor to the Japanese army, outlined the official argument that the war had begun with the departure of the Japanese fleet from Sasebo on the morning of February 6. That fact reinforced the position that the attack which occurred two days later was no surprise.Footnote ³²

All publicists in the United States and Britain supported the Japanese position; so did postwar accounts by United States and British international lawyers. They first dismissed the claim of a surprise attack. In agreement with Nagaoka, many admitted that a formal rupture of diplomatic relations is a strong indication that military action will follow. To the dismay of IDI members, these United States and British writers argued that such a rupture constituted sufficient notification of war—as if all withdrawals of diplomats led to war!Footnote ³³ Meanwhile, Suematsu Kenchō disseminated the dubious “fact” that the Russian fleet had not been anchored in the harbor at Port Arthur on the night of February 8, but was in battle formation outside the harbor as if awaiting a Japanese action.Footnote ³⁴ There was no surprise. Second, American and English publicists argued that a declaration of war was useless. Given the speed of modern communications and the open organization of modern societies, it would be impossible for a military unit to act in secret; accordingly, a declaration of war issued by telegraph, for example, might well precede a military action only by minutes. In keeping with this line of reasoning, the third argument for many publicists was that a declaration of war is simply unnecessary. Invoking the historical argument, they insisted that, to the degree that international law is based upon a description of the behavior of states, the preceding century of warfare demonstrated that states usually opened hostilities without a declaration of war. Hostile action was itself a sufficient declaration of war.Footnote ³⁵ As Takahashi Sakue put the point, a formal declaration of war might invoke de jure war, but hostile action was itself a declaration of de facto war, and the majority of wars in the past century had begun in a de facto manner.Footnote ³⁶

This disagreement merely underscored the perceived need for some common approach to declarations of war, which was on the agenda for both the IDI annual meeting in 1906 and the Second Hague Conference in 1907. In spite of the overwhelming support for Japan's position in the United States and Britain, the fact remained that the majority of publicists in Europe and the Americas supported the “continental” position—that a formal notification of war should precede the opening of hostilities. They did not find Japan in violation of international law, nor could they judge Japan's opening of hostilities to be legally wrong, but this pair of conclusions inspired a collective desire to reform expectations and practices. Ellery Stowell presented the general rationale with admirable simplicity. There is a longstanding sense of chivalry, shared by both primitive and civilized peoples alike, such that a fight must be fair. The problem in recent decades has been a “growing feeling that the state must secure its victories at the least cost” and hence, standing armies, fortified frontiers, and a readiness for attack have become normal conditions. Japan upset the status quo when it struck first and managed to defeat Russia; consequently, public opinion shifted in favor of a declaration prior to hostilities.Footnote ³⁷

Henri Ebren and Marius Maurel put forth the best argument for the necessity of a declaration of war. First, the absence of a declaration of war is contrary to the notion of an international community organized by the rule of law. Insofar as a declaration formally marks the opening of hostilities, it serves an eminently practical set of purposes: it marks the assumption of the rights and duties of both belligerents and neutrals; it alerts neutral powers and their subjects to new conditions of conduct, particularly regarding trade with the belligerents; and it invokes the legal relations and obligations that follow from international treaties and conventions. In that regard, a declaration of war conforms to recent developments in international law. Second, the absence of a declaration of war is often contrary to the notion of national sovereignty, insofar as constitutions generally intend some joint action on the part of the executive and legislative powers to indicate the people's will to go to war. The efforts of impulsive or passionate individuals may be checked by an examination of the people's will in a legislative assembly, and therefore a formal declaration of war would encourage reasonable deliberations prior to such an expression of national sovereignty. And third, the absence of a declaration of war undermines the notion of war as a last resort (ratio ultima)—that war can only be legitimate when it is absolutely necessary. To treat hostile action as a legitimate start to war threatens to normalize the violence of belligerent aggressors, and such a development would undermine the security of human livelihoods and public finances and would go against all progress made in the laws of war during the nineteenth century. The effort to normalize conduct in war as a systematic group of requirements was intended to treat war in the context of law and obviate traditional arguments between “just” and “unjust” wars. Therefore, Ebren and Maurel argued, a declaration of war must precede hostilities.Footnote ³⁸

This argument informed the consensus reached by the IDI in 1906 and the Second Hague Conference in 1907. William Hull aptly summarized the argument at The Hague, when he asserted that an international agreement requiring a declaration of war was desirable because it was not yet required by positive international law. Such a requirement would serve

Accordingly, Hague Convention III provided that hostilities “must not commence without previous and explicit warning, in the form of either a reasoned declaration of war or of an ultimatum with conditional declaration of war.” States that choose war must give their reasons for doing so, whether directly or in the form of the condition specified by an ultimatum. Moreover, the Convention took pains to guarantee that neutrals would be duly informed of the existence of a state of war. Neutrals must be informed “without delay” and the existence of a state of war “shall not take effect in regard to them until after the receipt of a notification, which, may, however, be given by telegraph.”Footnote ⁴⁰

Much more controversial was the matter of a mandatory delay between the declaration of war and the commencement of hostilities. The IDI had resolved such a measure in 1906, with the hope that such a delay might embolden cooler heads to change the course of events, especially if third parties offered to mediate, and might better protect neutrals in the vicinity of the theater of war. But IDI members could not agree upon a suitable length for the delay, and acknowledged that the longer the delay, with armies poised for action, the greater the opportunity for some precipitous hostile action. Their resolution thus recommended merely “a delay.”Footnote ⁴¹ Delegates to The Hague Conference, by contrast, refused the measure. To their reasoning, the requirement that belligerents formally state their reasons for war was a sufficient limitation upon their actions, and neutrals were adequately protected by formal notification. As the second article was written, the rights of neutrals were safeguarded because the article specified the exact point at which their responsibilities began. The Japanese delegation, along with those of Germany and France, were specifically opposed to a mandatory delay because it might be utilized by neutrals to commit acts contrary to rules of neutrality, such as the sale of warships to belligerents.Footnote ⁴²

Ratification of Hague Convention III thus promised to assuage the shock dealt to the international community by the commencement of the Russo–Japanese War. Although formal announcements would thenceforth precede acts of war, questions lingered. Recalling the invasions of Beijing in 1860 and 1900, for example, the Chinese delegation voted against Hague Convention III in committee because, they argued, the committee could not provide an accurate definition of war. China “had had its navy destroyed, its ports bombarded, and its capital occupied by foreign troops, when the perpetrating nations declared their acts not war, but only expeditions.”Footnote ⁴³ Such technicalities were not easily ignored. Takahashi Sakue, for example, dismissed Hague Convention III as irrelevant. Drawing on the authority of his friend John Westlake, Takahashi noted a loophole in the Convention: where a contractual arrangement might have guaranteed that contracting parties would issue a declaration, the wording of the Convention committed parties merely to a recognition that such conduct was preferred. Therefore the opening of hostilities without a declaration remained a possibility.Footnote ⁴⁴ In spite of Japan's ratification of Hague Convention III, Takahashi remained apparently committed to the historical argument: history shows that declarations of war are not necessary. Even James Brown Scott and other observers were somewhat unsettled; Scott admitted that “the convention is very modest, for it leaves the Powers free to declare war at their pleasure, provided only that the pretext can be capable of formulation.”Footnote ⁴⁵

3. Sugimura Yōtarō's “Declaration of Conditional War”

Sugimura Yōtarō approached the problem in a more sophisticated fashion. He presented Japan's behavior in the Russo–Japanese War in relation to a principle that he borrowed from earlier authorities of international law—Hugo Grotius and Christian Wolff, who had described a state of “conditional war.” Sugimura developed a novel theory of conditional war, such that a declaration of conditional war opened a state of conditional war. In fact, Sugimura's declaration of conditional war developed what Wolff had presented as a “conditional declaration of war” in 1749: it stated clearly the aggressor's demands, the response expected, and the time frame within which the response was expected.Footnote ⁴⁶ The ultimatum recommended by Hague Convention III of 1907 required only the aggressor's demands, and to Sugimura, this was an inadequate notification to the enemy and therefore an inferior legal form.

Whereas other publicists at the time might have minimized Sugimura's contribution to legal theory, by finding his “declaration of conditional war” to be roughly equivalent to a manifesto or an ultimatum, Sugimura was in fact posing a critique of the development of international law. He did not approve the nineteenth-century trend toward distinguishing between “acts of war” and a “state of war,” and the fact that legal organizations such as the IDI and the Hague Conference approached the laws of war from such abstract perspectives. In particular, he criticized the practice of legally defining war as the “state of war,” because such a practice meant that “acts of war” committed during what was technically peacetime were purely criminal and illegal acts. Moreover, such a definition of war begged the question of whether or not a belligerent could produce a state of war by declaring war against an enemy.Footnote ⁴⁷ As the Chinese delegation had asked at the Second Hague Conference: What if the enemy refused to respond in kind to its aggressor? Would this constitute a war, legally defined?Footnote ⁴⁸

Sugimura insisted that his “declaration of conditional war” offered the best solution. It forced the aggressor to state its demands clearly to the enemy and to provide guidelines as to how and within what time frame the enemy was expected to satisfy those demands. Moreover, by providing a public announcement of how and when the demands were to be satisfied, the declaration of conditional war alerted other states to consider their choices in declaring themselves allies or neutrals and in informing their subjects of their neutral obligations and when those would go into effect. In fact, this interval of the time limit demanded by the declaration of conditional war was what Sugimura defined as the “state of conditional war.” This was a special moment: a clearly demarcated passage from peace to war in which all parties could attend to their legitimate defenses. Sugimura realized that this state of conditional war put the aggressor at a military disadvantage, because the time interval allowed the enemy to make preparations, but he argued that such a potential disadvantage was reasonable compensation for what many considered at the time to be the overwhelming rights of belligerents. To Sugimura, the state of conditional war improved upon several efforts undertaken by international lawyers in the nineteenth century: it created a special state of peace in which a principle of armistice dominated. Military action was delayed until the time limit expired, and this invited the good offices and mediation of third parties. Moreover, it maintained the freedom of commerce: neutrals could anticipate the future interference of contraband rules, but the time delay allowed neutrals to plan in advance so that the damage done to commerce might be minimized.Footnote ⁴⁹

Unlike the abstract direction taken by international law in the late nineteenth century, Sugimura argued, a declaration of conditional war was based upon practice and custom—how states had behaved in the past. Sugimura thus understood his proposal to constitute a return to the empirical grounding for international law more typical of the eighteenth and early nineteenth centuries. Rather than quibble over abstractions such as the proper commencement of war in order to validate the legality of belligerent and neutral rights, Sugimura sought to establish a legal principle that would have corrected what Japan had done in February 1904 and promised a sound basis on which international law and state practice could proceed. For Sugimura regretted Japan's opening of hostilities in the Russo–Japanese War. Japan's action of breaking diplomatic relations with Russia and warning Russia that it would take independent action in Manchuria and Korea did not constitute a declaration of conditional war: Japan had failed to clearly provide Russia with the response Japan expected and the time frame within which its demands were to be met. Had Japan done so, it would have created a state of conditional war that compelled an unambiguous response from Russia. When that response failed to occur, Japan could have proceeded with acts of war that drew no protest from the international community.Footnote ⁵⁰

Charles Dupuis at the University of Nancy had anticipated this empirical turn of thought. Dupuis took seriously the historical argument that minimized declarations of war, and concluded in 1906 that declarations of war were not necessary. The only remedy was to establish an international convention. Like Sugimura, Dupuis was concerned about the putative illegality of acts of war during formal peacetime. When, for example, he considered events of the Russo–Japanese War such as the capture of the Ekaterinoslav on February 6, Dupuis noted that contrary to what one would expect, such seizures of ships prior to a declaration of war had never been and would likely never be considered acts of piracy. On the one hand, it was precisely the great maritime powers—Britain, the United States, and Japan—who were opposed to mandatory declarations of war and whose power dissuaded other countries from treating such captures as acts of piracy. On the other hand, the 1856 Declaration of Paris had abolished privateers and established national responsibility for ships flying those national flags. National states enjoyed a monopoly on violence and their acts were accordingly acts of war (if not accidents or errors).Footnote ⁵¹ In the same manner, a mandatory and formal declaration of war would eliminate any confusion. As a member of the IDI committee on declarations of war, Dupuis advocated an agreement of positive international law.Footnote ⁵²

If Dupuis and Sugimura agreed on the need for a positive law, Sugimura took Dupuis and his colleagues to task for their language of international morality. Dupuis and members of the IDI spoke repeatedly on the need for “international loyalty” among the civilized nations. As a strong alternative to uncertainty, a formal notification of war would support their solidarity and common interests, and encourage their confidence in each other. Community building, in other words, was central to their motives.Footnote ⁵³ Sugimura, by contrast, suspected that this French valorization of loyauté resembled the British valorization of custom: both esteemed past moralities and practices and both substituted political for legal concepts. Loyalty was a moral and political notion insofar as it appealed to confidence and solidarity, and custom represented a political affront to legal argument—it was its own justification in league with British power. Sugimura saw his work with international law as the forging of a new legal ethos, committed to treating the legal nature of war as a fact and making judgments according to standards of justice and humanity.Footnote ⁵⁴ The turn to positive international law should suspend all precedent practices—whether British, French, or Japanese—in order to forge a new legal order truly common for all nations. Such a belief would animate his subsequent work as one of Japan's preeminent diplomats at the League of Nations in the 1920s.Footnote ⁵⁵

In sum, the argument regarding the opening of hostilities, which had been generated by Japan's behavior in the Russo–Japanese War, validated Japan's practice of state sovereignty. Japan had justified its behavior with an expert understanding of international law and then, as an equal among the civilized family of nations, had participated in deliberations that led to a change in international law, one which promised to foreclose Japan's prior practice yet with which the Japanese state agreed. This was exactly how the advocates of international law had imagined legal progress.

1. The Chemulpo Incident

We might think that the inviolability of neutral territory is a primary principle of neutrality in international law, but the Russo–Japanese War was peculiar in that it was fought mainly upon the neutral territory of non-belligerents—Korea and China. Both Russia and Japan claimed to have only honorable motives toward Korea and Manchuria; both declared their intentions to protect the sovereignty and territorial integrity of China and Korea. Yet the war began, in the official Japanese version, on February 6 with what many observers judged a violation of Korean territorial waters—the seizure of the Ekaterinoslav. It continued with further violations: the landing of a Japanese army on Korean soil on February 8, and a Japanese naval action in the Korean port of Chemulpo (Inchon) on February 9—the “Chemulpo incident.”

The Japanese government was hard-pressed to justify these actions. Takahashi Sakue simply noted the precedents of colonial actions of the European powers, and asserted that Japan was free to march its troops into uncivilized territory.Footnote ⁵⁷ Nagaoka Harukazu and Hishida Seiji, by contrast, based their argument on the opening of hostilities: Japanese troops went to Korea in order to protect it from Russia, and therefore, with the landing of those troops, everyone should have known that a state of war existed and that Chemulpo was no longer a neutral port.Footnote ⁵⁸ But such reasoning belied the fact of Korea's recognized independence—marked by several bilateral treaties with western powers—and its official position of neutrality, announced earlier on January 25. As a result, European opinion tended to coalesce against Japan.Footnote ⁵⁹

Ariga Nagao offered an official Japanese explanation. He began by noting that the three main theories for a Japanese presence in Korea were based upon the neutrality or non-neutrality of Korea: that Japan had disembarked troops on Korean territory in violation of Korean neutrality; that Korea had consented to the presence of Japanese troops and ceased to be neutral; and that Korea was simply not neutral, so that Japan's actions were right and just. Contrary to these three theories, Ariga asserted the principle of military necessity: In the manner of the “extraordinary detachments” sent by the international community to Beijing in 1900, Japan was authorized to land troops in Korea in order to protect Japanese nationals in Korea. Like other legal scholars writing at the time, Ariga declared that a state has the right to protect its interests and its security. In order to protect both Japan and Korea from Russia, Japan had undertaken a military occupation of Korea and had sent its armies to guard Korea's ports and its northern border.Footnote ⁶⁰ Soon thereafter, Korea's position shifted: as the site of a temporary Japanese military occupation, it became Japan's ally for the duration of the war and eventually Japan's protectorate. From the start of the war, it was never neutral.

But the Chemulpo incident caused much international protest. Japanese admiral Uryū had threatened a pair of Russian cruisers in the harbor at Chemulpo, the Variag and Korietz—he would attack them if they did not depart the port. Uryū also requested the captains of four other neutral warships in the harbor—flying the flags of Britain, France, Italy, and the United States—to leave the port as well, lest they suffer harm. When the Variag and Korietz attempted to escape, they were fired upon and seriously damaged, and the British, French, and Italian warships took on board the shipwrecked and wounded men from the Russian warships. Admiral Uryū refused the neutrals permission to take the Russian wounded to the Red Cross hospital in Chemulpo and demanded that they take the Russians to Shanghai and intern them there for the duration of the war, in order to prevent them from returning to combat. Although the captains of the three neutral warships complied with the demand, they loudly denounced the Japanese action as a violation of Korean neutrality.Footnote ⁶¹

However, the international legal response collectively dismissed the complaint, on two grounds. Several international legal scholars, as well as the United States naval commander on the scene, declared that the ship captains had no grounds for protest. The matter concerned only the power whose sovereignty had been violated—Korea—and the two belligerents. Moreover, these legal authorities doubted the gravity of Japan's infraction of Korean territory. On the one hand, Korea was not a member of the family of nations; on the other, its sovereignty and independence were so marginal as to be fictive. Takahashi's assertion of the privileges of civilized states and Ariga's assertion of military necessity apparently held sway; Korea was not in a position to defend itself and therefore its rights of neutrality were negligible.Footnote ⁶²

But Japan's interference with the neutrals' rescue of Russian sailors—because it involved the great powers—received more significant international attention. Did a belligerent's rights extend to the enemy shipwrecked and wounded? Did neutrality prohibit neutrals from rescuing belligerent forces? Could Japan compel the neutral captains to hold the Russian sailors for the duration of the war or to turn the sailors over to Japan as prisoners of war? These questions were formally taken up at the Second Hague Conference in 1907, whose Convention X reflects a quite technical compromise: belligerent warships may demand that any rescue ship hand over shipwrecked, sick, or wounded men, but a neutral warship that takes on board such men must see that they do not again take part in military operations. When such men fall into the hands of an enemy belligerent, they become prisoners of war and the belligerent captor decides whether to place them in a home port, a neutral port, or even an enemy port; but in the last case, repatriated prisoners may not take part again in military operations.Footnote ⁶³

This compromise spoke to two prior issues: One was the general wish motivating both Hague conferences to extend to naval warfare the Geneva conventions operable in land warfare. Thus captured sailors, like their soldier counterparts, could be repatriated or kept as prisoners of war. They could also be placed in neutral territory, but neutral powers did not welcome the responsibility of maintaining either belligerent soldiers or sailors and preferred that they be repatriated. The other was the ongoing dispute between the rights of belligerents and those of neutrals. A majority of states were willing to grant belligerents the right to demand rescued enemy sailors, lest the belligerent enforce its more invasive right to search, seize, and confiscate neutral ships carrying enemy combatants. But the neutral warship was an exception—a point insisted upon by French delegates as a result of the Chemulpo incident: As neutral territory, the neutral warship possessed an extraterritorial right to freedom from belligerent search, and therefore it was free to choose whether to take on board belligerent sailors or not. The only restriction placed on that choice by the Hague Conference participants was that the neutral warship was obliged to keep rescued sailors out of further combat for the duration of the war.Footnote ⁶⁴ As we have seen with declarations of war, Japan's assertion of state will in the absence of standard practices led to a debate and general agreement at the Second Hague Conference.

2. The Chefoo Incident

The incident at Chefoo (Zhifu), by contrast, was generally seen to be a violation of international law. This incident took place in August 1904 and involved the Russian warship Ryeshitelni, docked in neutral Chinese territory. The Ryeshitelni had fled to the Chinese harbor at Chefoo on the night of August 10; Chinese authorities ordered the captain to disarm the ship or to depart the port within 24 hours. Reportedly, the ship began to disarm under a guard of Chinese marines. However, the Ryeshitelni was discovered by Japanese warships on August 11, whose commander reiterated the demand that the ship disarm or depart Chefoo. On August 12, the Japanese returned to board and search the ship, and a scuffle broke out between the Japanese and Russian commanders, who fell overboard. Shortly thereafter, a series of explosions destroyed the ship's engines. The Japanese then captured the Ryeshitelni, towed it away, and took Russian prisoners. Eyewitness accounts could not be certain whether Russians or Japanese had caused the explosions—although each belligerent blamed the other—but Russian bodies subsequently washed ashore proved to have died by gunshot, presumably the victims of Japanese guns.Footnote ⁶⁵

Unlike the Chemulpo incident, the Chefoo incident was strongly protested by the neutral power whose territory had been violated—China. Most British and United States publicists agreed that Japan had violated Chinese territory and neutrality, and Kaneko Kentarō's efforts to defend Japan in the United States press reportedly came to no avail.Footnote ⁶⁶ Japan's supporters publicly regretted Japanese actions, but instead of criticizing Japan's error in judgment, they blamed China and Russia. Hershey minimized Japanese actions in Chefoo, for they paled by comparison to Russia's violations of Chinese territory in Manchuria. Lawrence declared that the problem was less a matter of Japanese excesses than of the weakness of China, which was unable to defend its neutral territory.Footnote ⁶⁷ One eyewitness reported that the Chinese naval officer Sa, in charge of the Chinese fleet at Chefoo, had ordered Japanese ships to stay away from the port when their patrols dramatically increased in August 1904, but he was unable to enforce his command. Had the United States or France or Britain given such an order, the Japanese ships would have been sunk for violating neutrality. China was simply too weak to enforce its neutrality.Footnote ⁶⁸

The official Japanese explanation highlighted three justifications, starting with the charge that China did not have full control over all of its territory. The ambiguities arising from Russian-occupied territories in Manchuria and Liaodong, which in the course of the war were falling to Japanese occupation, meant that a Russian ship sailing from Russian-occupied territory such as Port Arthur to a Chinese port such as Chefoo carried with it the hostile character of the theater of war. The Ryeshitelni could reasonably be construed as hostile territory, even in a neutral port. Second, the Japanese government argued that Chefoo itself was not fully neutral. Russia had already violated the neutrality of the area when it set up a telegraph station connecting the Russian consulate in Chefoo to the Russian base in Port Arthur, Liaodong. Indeed, witnesses in Chefoo noted both the presence of the telegraph station and repeated Japanese requests that the Chinese authorities shut it down. (In the wake of the Chefoo incident and under threat of Japanese bombardment, the station was dismantled on August 31.) And third, the Japanese government argued that the Russians on board the Ryeshitelni had been the aggressors in the struggle; instead of relying on the power of Chinese authorities in the port, they had lawlessly attacked the Japanese who visited the ship. Japan could only respond in the interests of self-preservation and proceed to capture the ship.Footnote ⁶⁹

Japanese officials reminded their allies that Japan had heeded the encouragement of the United States and Britain in agreeing to respect the neutrality of China—on condition that Russia do so too. Ariga Nagao pointed out that in international law, there are two modes of redress when a belligerent violates the neutrality of a third party. The violated belligerent can ask the government whose neutrality has been violated to take some measure against the violator of neutrality, in order that the violator make some redress or to cease the harmful activity. Or the violated belligerent can act directly against the violator. Japan had requested of China both the removal of Russia's telegraph station and the Ryeshitelni from Chefoo, to no avail, and therefore it acted against Russia.Footnote ⁷⁰ Although Russia lodged strong diplomatic protests through its ministers overseas, the French minister in Tokyo dismissed the Russian protest out of hand and United States Secretary of State John Hay, declining to adopt any “individual course of action,” deferred to some future international conference.Footnote ⁷¹ In the turmoil of war, Russia and China could only suffer Japanese actions at Chefoo.

At the Second Hague Conference, however, some delegates noted that Japan had violated international law at Chefoo and that no apology or satisfactory response was ever made.Footnote ⁷² Accordingly, conference participants set out to forestall such future situations with a pair of legal guidelines. These represent the general effort on the part of the Hague Conferences to expand the rights of neutral powers vis à vis the rights of belligerents. The convention on neutrals in war on land began with an assertion of the inviolability of neutral territory, and the convention on neutrals in war on sea began by binding belligerents to respect neutral territory and neutral waters.Footnote ⁷³ It is important to note that this work proceeded with the encouragement and assistance of the Japanese delegation.

The first effort, regarding land war, prohibited belligerents from trespassing on neutral territory. More specifically, and with direct reference to the Russian trespass at Chefoo, belligerents were prohibited from erecting any installation either for military or communication purposes, such as “a wireless telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea.” Footnote ⁷⁴ Although Japan and Britain wanted to go further and prohibit neutrals from permitting any and all communications on behalf of belligerents, a majority of delegates found such a position extreme and agreed that neutrals were obliged to be impartial in permitting belligerents access to neutrals' communications facilities.Footnote ⁷⁵

The second effort, regarding maritime war, sought to establish what James Brown Scott called a “modern theory of neutrality”: belligerents were bound to respect the sovereign rights of neutral powers and abstain from all acts in neutral territory or waters which would violate that neutrality.Footnote ⁷⁶ The Second Hague Conference prohibited all belligerent visits and captures in neutral waters, so that incidents such as those at Chemulpo and Chefoo, and that involving the Ekaterinoslav, would no longer be allowed. The problem that concerned delegates, of course, was how injured belligerents and neutrals might redress violations of both neutral territory and the law. They turned to prize court as a remedy. A ship seized within neutral waters was legally under the jurisdiction of the neutral power, who would have to employ whatever means at its disposal to force the belligerent to relinquish the ship. As had always been the case, ship owners and belligerents could make their respective claims in prize court.Footnote ⁷⁷ The important point is that a neutral such as China was now obliged to use force to redress violations of its neutral sovereignty. According to the international community, neutrality became an armed impartiality—not only must neutrals make no rule that favored either belligerent, but it must be prepared to use its own force against a belligerent who did not comply with its rules of neutrality.

3. Japan's Absorption of Korea

Unlike the Chemulpo and Chefoo incidents, the final two issues with neutrality in this article highlight the role of diplomacy and the participation of Japan's allies in the legitimization of Japan's state will. The first, Japan's absorption of Korea, was a logical outcome of the argument that Korea was not neutral. Japan's actions did not violate international law, but followed a course of colonization that had been agreed upon by the western powers at the Berlin conference of 1884-86.Footnote ⁷⁸ The second, Japan's effort to force France to cease its assistance of the Russian Baltic fleet as it traveled eastward, addressed not a case of action contrary to international law but a difference in general practice: where Britain, the United States, and Japan did not permit belligerents to coal at a neutral's ports within ninety-day intervals, France and Russia did. In both of these cases, the support of the United States and especially Britain legitimized Japanese action.

Japan's absorption of Korea occurred at a point when nearly all of the “uninhabited land” or “backward territory” in the world had been claimed by the western powers. As M.F. Lindley noted in his analysis of the issues, none of this terminology had any standing in international law—uninhabited land, backward territory, or acquisition by conquest or discovery. Where the Spanish had once asserted possession by right of conquest, and the English by right of discovery, these were in the nineteenth century matters of fait accompli. International law did not say that acquisition of territory was legitimate or not, but simply recognized the results of such acquisition.Footnote ⁷⁹ By the time of the Russo–Japanese War, two developments were underway. First, the great powers had begun to negotiate bilateral treaties that recognized “spheres of influence” in overseas territories. This measure was intended to minimize conflicts among the great powers. Second, the international community was developing a formal method of “occupation” (or “cession”) as a legitimate means of acquiring backward territory. This involved the concluding of a bilateral treaty that assigned sovereign rights to the western power and the status of protectorate to the “uncivilized” territory. As the practice evolved, effective administration of the protectorate became the minimal criterion for the legitimacy of the protectorate. But because international law had no rules protecting the rights of “backward” peoples, it faced a conundrum that unsettled any protectorate arrangement: To deny legal rights and sovereignty to “backward” peoples in order to absorb and improve their territory contradicted the assumption of legal rights and sovereignty vested in those putatively “backward” peoples as independent parties to a treaty. International lawyers debated several resolutions of the conundrum, to no solution because, ultimately, such acts of colonialism were effects of state will and not international law.Footnote ⁸⁰ As it happened, Japan's absorption of Korea was one of several such transfers of territory at the turn of the twentieth century. It was facilitated by Korea's “uncivilized” status in the world of states, the general recognition among the powers of Japan's special interests in Korea, and a widespread belief, shared by Japan and the western powers, that Koreans were a “backward” people.Footnote ⁸¹

Since an initial series of problems between France and Korea from 1836 to 1866, when French missionaries attempting to proselytize in Korea were massacred, much fretful editorializing persisted in the western press over the “backward” state of Korea. Some solution was needed. Korea had been a focus of three armed conflicts, two already between China and Japan in 1882 and 1894, and then the Russo–Japanese War. As Terao Toru, Japanese professor of international law and the first Japanese associate of the IDI, put the matter to the international community in 1894, it was imperative that some administrative reform be undertaken in Korea so that society and government could be stabilized. Japan's international security depended upon that.Footnote ⁸² Great Britain agreed strongly with this viewpoint, and its subsequent alliances with Japan in 1902 and 1905 acknowledged Japan's special interests in Korea and encouraged Japanese leadership in Korea.Footnote ⁸³

With the Russo–Japanese War, Britain and the United States were quite willing to allow Japan to manage Korea. Given that both countries had signed treaties with Korea and thereby affirmed Korea's independence and sovereignty, the contempt that British and United States publicists and diplomats held for Korea is striking. T. J. Lawrence was surely most outspoken when he wrote, “I have no doubt that in the long run Korea will be annexed by one or the other of her powerful neighbours. It is the fate of small, weak, and corrupt states to fade out of the political map . . . But we may be allowed to hope that, if the Japanese receive her as the prize of victory, they will develop an aptitude for governing subordinate peoples which history shows to have been wanting to them in the past.”Footnote ⁸⁴ Lawrence boldly asserts the prerogative of civilized states to engage in colonial enterprises, and he understood that Japan's alliance with Britain encouraged Japanese colonialism in Korea. Accordingly, Japan's actions in Korea in 1904 and afterward went largely unchallenged. A number of American missionaries and educators working in Korea protested vigorously with the United States government, but they were soon silenced by Japanese colonial authorities.Footnote ⁸⁵

The British and United States governments, and Lawrence and other legal experts, fully supported and encouraged the Japanese absorption of Korea. Amos Hershey is worth quoting at length for his equivocations, which finally rest upon the natural law basis of sovereignty, state will

Hershey denies a theoretical Korean sovereignty and independence for the sake of the more potent reality: Korea was always within Japan's sphere of influence and must give way to military necessity and obvious practicality, which excuse Japan's apparent violation of international law. Korea became, in the judgment of these international legal experts, a legitimate prize of war.

Japan's allies were sufficiently convinced by the argument and forthwith annulled their treaties with Korea and vacated their diplomatic offices in Seoul. In a recent analysis of the diplomacy surrounding the event, Kim Ki-Jung underlines the eager support shown to Japan by United States President Roosevelt, the British Foreign Office, and many government personnel in both countries.Footnote ⁸⁷ Accordingly, Japan's absorption of Korea was accomplished in a visibly legal manner and with the public support of its allies. They made much of the February 23, 1904 protocol, which was signed two weeks after the Chemulpo incident and, because it created a formal Japan–Korea alliance, reinforced the belief that Korean neutrality had not been violated.Footnote ⁸⁸ With several additional protocols signed in the course of eighteen months, the Korean government gradually relinquished to Japan all rights of government, from foreign affairs to domestic administration. With the November 1905 Korea–Japan treaty, Korea became Japan's protectorate.Footnote ⁸⁹ Russia, too, was soon mollified. Having been defeated militarily in the region, Russia subsequently signed a 1907 agreement with Japan which acknowledged Japan's protectorate of Korea and solidified Russia's support for the new status quo.Footnote ⁹⁰ The powers were in support of Japan's “great power” status and the new balance of power in east Asia.

One dissenting voice was Francis Rey at the University of Paris, who denounced the November 1905 treaty on the basis of a “fundamental contradiction.” He carefully emphasized the legitimacy of protectorates, favorably comparing Japan's actions in Korea to France's actions in Tunisia, Madagascar, and Vietnam. Everything that Japan had done was in the spirit of and in keeping with western precedents—except for the treaty of November 1905 that established the protectorate. Rey argued that protectorates were a provisional arrangement that marked a transitional stage in the development of a people and territory; when the civilized stage was reached, the protectorate ended. The Japanese arrangement with Korea saw no such end. Rey was bothered by the weak position of Korea in signing the series of protocols, and was suspicious of the final treaty, having received reports that Korean diplomats had been coerced to sign the treaty and had subsequently renounced their agreement. But he was ultimately convinced of the illegitimacy of the final treaty because of its damning contradiction: it attempted to undo key provisions of the protocols signed in 1904—Japan's commitment to guarantee both Korea's independence and the sovereignty of the Korean emperor. The protocols marked a hypocritical intention to subvert Korea to Japan's domination; legal procedures could not mask the act of conquest.Footnote ⁹¹

Nonetheless, Rey's dissent was ignored and Japan went ahead with its plans. When a group of Koreans attempted to be seated at the Second Hague Conference in 1907, claiming to be an official Korean delegation, the loud protest of Japan, supported by Britain, prevailed and turned the group away. Korea was legally a Japanese protectorate.Footnote ⁹²

4. French Neutrality and the Baltic Fleet

Unlike Japan's absorption of Korea, which was a diplomatic nicety in the wake of a military occupation, Japan's action regarding French neutrality was a peaceable manifestation of state will through its diplomats overseas. This was the most effective deployment of Japanese diplomacy in the Russo–Japanese War. Japan used its good relations with Great Britain to maximum advantage, in an attempt to force France to rescind its hospitality to the Russian Baltic Fleet in French colonial ports as it sailed to the Asian theater of war. The main problem was the absence of a common rule in international law. Britain, the United States, and other powers agreed with Japan that neutrals such as France should not offer unlimited coal and hospitality in its ports to belligerent vessels. Although this was a growing understanding within the international club, a majority had simply not agreed to any limit—so a state was in fact free to enact whatever restrictions or accommodations it chose. France refused belligerents the use of French ports for military operations, but it did not restrict belligerent ships as to length of stay or quantities of food or coal taken aboard in French ports.Footnote ⁹³ Japan, having been ill-used by France during the Franco–Prussian War in 1870, was determined to marshal its allies against France on this point of neutrality.

In the background of this issue was the fact that neutral support of belligerent vessels potentially interfered with the advantages of the great maritime powers in prosecuting war, to whose ranks Japan aspired. The technological advance in the nineteenth century was the steamship, which meant that ships no longer moved by sail alone and required a supply of coal. Countries without colonial ports—such as Russia—needed to coal their ships on distant voyages, and a belligerent without colonial ports was at a disadvantage in fighting a long-distance war. As several international legal authorities noted, the control of colonial ports across the globe gave a significant advantage to powers such as Britain, who could fight a global war from its home and colonial ports combined. If belligerent vessels were allowed to coal freely in neutral ports, it would become possible for any state to make war anywhere across the major oceans.Footnote ⁹⁴

Accordingly, in the late nineteenth century, a new doctrine of neutrality was evolving under the sponsorship of Britain and the United States, one intended to restrict neutral support for maritime belligerents. In the 1871 Treaty of Washington, Britain and the United States agreed that neither state would permit a belligerent to make use of its neutral ports for offensive purposes. This was, however, a bilateral treaty and thus municipal law; it did not create international law.Footnote ⁹⁵ But Britain, the United States, and other countries such as Japan, Holland, and Spain, began to include in their neutrality declarations restrictions against belligerents remaining in a neutral port longer than twenty-four hours, and limitations on both asylum in neutral ports and the quantity of coal a belligerent vessel might take on board in a neutral port. The Spanish–American War in 1898 and a resolution of the IDI in the same year did much to promote such restrictions. As regards Japan's dispute with France during the Russo–Japanese War, a principle had begun to evolve, such that a belligerent vessel could load only enough coal to reach its nearest home port.Footnote ⁹⁶ But this was not yet a rule of international law, and Japan's pressure upon France contributed much to making it so at the Second Hague Conference in 1907.

When Russia deployed its Baltic Fleet in 1904, half of which proceeded through the Mediterranean, the Suez Canal, and along the east coast of Africa, while the other half proceeded down the west coast of Africa, Japanese diplomats in Europe protested the coaling of the fleet along the way. From November 1904 through January 1905, ambassadors Hayashi Tadasu in London and Motono Ichirō in Paris coordinated a diplomatic offensive against those powers who supplied the needed coal. Hayashi first raised the issue with the British Foreign Office in early November, as a request for information regarding the official policy of the Egyptian government on access to coal near the Suez Canal. Hayashi followed this query with a formal complaint in mid-December, after the Egyptian government had supplied coal to the Russian fleet. Yet in a formal memo to Hayashi, the British Foreign Office exonerated Egyptian authorities by pointing out that the canal regulations permitted all vessels to be sufficiently coaled in order to reach a next port.Footnote ⁹⁷ Later in November, Japan laid identical complaints against the governments of Denmark and Spain for having allowed Russian vessels weeks earlier to coal in Danish waters and the Spanish port of Vigo, respectively. Again, the Foreign Office advised both the Danish minister and the Spanish chargé d'affairs in London that each country had complied with its own neutrality proclamation and incurred no fault. Foreign Minister Lansdowne pointed out that the generous Spanish rule allowing warships of either belligerent to coal and make repairs in Spanish ports conformed to Japan's own declaration of neutrality during the Spanish-American War.Footnote ⁹⁸

While Hayashi insinuated the British Foreign Office into these arbitrations of neutrality, Motono in Paris increased the pressure on the French government to desist from supplying coal to the Russian fleet as it had in its African colonies of Dakar and Djibouti.Footnote ⁹⁹ Negotiations between Motono and French Foreign Minister Delcassé were stimulated by increasingly irate reports from Japan, where newspapers and public opinion charged France with violating neutrality and aiding Russia, and suggested that Japan too had a right to use French ports for warlike purposes. The Jiji shimpō raised the possibility of treating France as a third belligerent, while the Tokyo Asahi recommended that the Japanese fleet proceed to French Saigon in order to confront the Russian fleet there.Footnote ¹⁰⁰ This growing agitation alarmed the British Foreign Office, some members of which worried that Japan might formally invoke the Anglo–Japanese Alliance and demand British military support against France.Footnote ¹⁰¹

But courtesy and calm prevailed in Paris, where Suematsu Kenchō reminded readers of the longstanding friendship between France and Japan.Footnote ¹⁰² The French government argued that, in keeping with French neutrality regulations, they were furnishing the Russian fleet with coal not to reach the seat of war but to reach its nearest home port. The Russians were not using French ports as a base of operations, but merely as a consequence of unavoidable stays.Footnote ¹⁰³ Several international legal experts acknowledged that France was within its rights to define its neutrality as it saw fit, and the British government approved of French measures.Footnote ¹⁰⁴ However, as Nagaoka Harukazu pointed out, since the purpose of the Baltic fleet was entirely hostile, and France allowed Russian warships to maintain and prepare themselves in French ports, French behavior surely represented a failure to maintain a strict impartiality toward the two belligerents.Footnote ¹⁰⁵ In a gesture to mollify Japan, French authorities did agree to turn the Russian fleet away from Madagascar in January 1905 (although it anchored in international waters at Nosy Be, just outside Madagascar's three-mile limit), but French hospitality toward the Russian fleet in Saigon in April 1905 revived Japanese animosity against France and would have prompted a second dispute—had the entire fleet not been destroyed at the battle of Tsushima in May 1905.Footnote ¹⁰⁶

As we have seen with the Chemulpo and Chefoo incidents, the diplomatic review of neutrality generated by Japan's offensive against France promoted an international hearing of the issues at the Second Hague Conference in 1907. Japan insisted that neutrality means abstention from conflict, and in his impassioned speech to conference participants, Japan's first delegate Tsuzuki Keiroku presented the issue as the difference between humanitarian asylum and the abuse of hospitality. He argued that, except in cases of life-threatening distress to the crew and the security of the ship, a belligerent warship should not be allowed into neutral ports at all, nor should a belligerent ship be allowed to coal or take on provisions in a neutral port.Footnote ¹⁰⁷ This extreme definition of neutrality as abstention was duly tempered in discussion, as Britain and Japan argued for significant restrictions on belligerents in neutral ports and Russia and Germany opposed all such limits.Footnote ¹⁰⁸ As it happened, the compromises reached in 1907 approximated the general principle that had been evolving by 1898, and which Japan wanted to assert as normative during the Russo–Japanese War. Convention XIII of the Second Hague Conference restricted belligerent warships to a stay of twenty-four hours in neutral ports (with exceptions for extenuating circumstances) and limited a belligerent to loading only enough coal to reach its nearest home port (unless a country's neutrality laws specified otherwise). Moreover, such a ship could not coal at a neutral's ports more often than once every three months.Footnote ¹⁰⁹

Despite these caveats, Convention XIII largely represented the interests of the maritime powers, for states with colonial ports would remain better prepared for global warfare. More important, the agreement represents a significant victory for Japanese sovereignty. Japan had successfully used its status as a civilized state—its membership in the international community and its alliance with Britain—to impose its will on its fellows. Japan first persuaded France of Japan's view of neutrality during the Russo–Japanese War and then, at The Hague, Japan had lobbied for the enactment of an international rule that fit Japan's interests. Japan had enforced its sovereign will and demonstrated its equality within the international community.