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Die Gestaltung des Völkerrechts nach dem Weltkrieg. By Otfried Nip
pold. Zürich: Art. Institut Orell Füssli. 1917. pp. 285.
The author of this work is widely and favorably known as a distinguished Swiss publicist on international law. His first important book entitled Der völkerrechtliche Vertrag was published in 1894. In 1907 there appeared Die Fortbildung des Verfahrens in völkerrechtlichen Streitigkeiten. This was followed in 1911 by a scholarly study on Die zweite Friedenskonferenz. Nippold was also one of the first writers to collect evidence demonstrating the chauvinistic tendencies of modern Germany. This he did in a small book entitled Der deutsche Chauvinismus first published in 1913 and republished in 1917.
Die Gestaltung des Völkerrechts nach dem Weltkrieg is certainly deserving of the most careful consideration. It was originally intended to form the closing chapter of a larger work on international law during the present war. But, owing to the great interest in the subject at this time, the author wisely decided to publish this part as a separate volume.
It deals particularly with the international law problems of the future which have arisen as a consequence of the present gigantic struggle. The most important of these problems, as Nippold sees them, are related to the fundamental principles which should govern the future development of international law.
In the first place, Nippold makes a distinction between international law proper and the law of war (Kriegsrecht) which must be regarded as very questionable. The latter is governed by the law of military necessity and must therefore be regarded as a negation of law which is not subject to regulation by juridical rules. "Render unto war that which belongs to war, and unto international law that which belongs to international law."
That such a liberal and enlightened mind as Nippold's should take this position furnishes a sad illustration of the harm to the human spirit done by Germany through her methods of conducting this war. To take this position means, of course, a surrender to the German point of view; and its acceptance would involve the triumph of the ideas voiced by Clausewitz and his school. It would imply a complete break with the historical development of international law in the past, and an abandonment of many centuries of effort to set bounds to the
application of force on the part of those in control of a powerful military machine. That the main military machine in existence in the dim and distant future may be the product of a world or international organization and be directed by those in control of a so-called League of Nations only increases the menace of such potential power.
However, with our author's belief that the conception of a purely military war is impossible and that, in the future perhaps even more than in the past, belligerents must needs resort to commercial as well as military means and methods of warfare, we have no quarrel. Nor do we disagree with the view that the first condition for future improvement is to get rid of the “military mentality" as well as the military system which possesses modern Germany.
In his discussion of the new postulates for the future improvement of international law proper (or what we have been wont to call the law of peace), Nippold emphasizes as of first importance the development of procedure for the settlement of international disputes. This we believe to be sound doctrine, though we should not forget that there is something which is of even greater importance, namely, the prevention of international controversies by the establishment of justice in international dealings and the discovery and removal of the many deep and often complex causes of modern war, whether these be racial, psychological, economic, or political in their nature. Such problems lie, however, beyond the province of international law proper or of the international jurist as such, and must be left mainly in the hands of statesmen, politicians, journalists, and diplomatists.
It is interesting to note that Nippold has substantially changed his former views with regard to the future improvement in procedure for the settlement of international disputes. Whereas he, in common with most authorities on the subject, had apparently believed in the rule of unanimity or quasi-unanimity in international conferences, he now seems to favor the principle of majority rule in international as in ordinary political relations.
Our author has also become an advocate of the idea of a League of Nations and is now convinced of the necessity of real sanctions or guarantees to secure the actual observance of international regulations. He sees the inadequacy of mere paper pledges or so-called moral guarantees. However, he would not restrict the enforcement of these sanctions or guarantees to mere military methods. He justly characterizes that mentality which sees nothing but military means or methods as nothing
less than pathological. Among the nonmilitary methods which he especially recommends are those of reprisals (in the forms of embargo and pacific blockade) and the economic boycott.
More than one-third (or about one hundred pages) of this important volume consists of an appendix which includes various projects for world organization or the future basis of international law, such as the Declaration of the Rights and Duties of Nations adopted by the American Institute of International Law, the American Project for a League of Peace, the French Project of a League of the Rights of Man, etc., etc.
Amos S. HERSHEY.
Early Diplomatic Relations between the United States and Japan: 18
1865. By Payson Jackson Treat, Ph.D. Baltimore: The Johns Hopkins Press. 1917. pp. viii, 459.
This volume contains the Albert Shaw Lectures on Diplomatic History at Johns Hopkins University for the year 1917. Dr. Treat has selected one of the most interesting periods in the history of American relations with Japan and has treated it in a very painstaking and withal attractive manner, with the result that we are given in a little more than four hundred pages an accurate account of the work of Commodore Perry and Townsend Harris in opening the Empire of Japan to western intercourse, and a clear insight into the political condition of Japan during the eventful years reviewed. The author shows a sympathetic understanding of the difficult position in which the Shogunate was placed, harassed as that government was by the intrigues of jealous daimios at home and pressed by the unyielding demands of American and European Powers.
It is just fifty years since the Shogunate was abolished and the Mikado restored to actual control of the empire. It was in November, 1867, that the Shogun announced his resignation, and in January, 1868, that his enemies succeeded in having the office of Shogun abolished and a provisional government inaugurated. This movement led to civil war, but the struggle was brief and within a few months the direct rule of the Emperor was reëstablished.
It would be a serious mistake, however, to assume, as some hasty writers appear to have done, that the Shogun was disloyal to the Em
peror or that he usurped the authority of the Emperor in negotiating the treaties with Perry and Harris.
The Shogunate had existed since 1192 A.D. and had been for nearly seven hundred years in full control of the administration of the government. As Dr. Treat says: “The authority of the Mikado was nominal, though present. He invested the Shogun with his office, but the Shogun was not called upon to secure approval for his actions” (p. 5). The Shogun, therefore, was fully empowered to negotiate the treaties and was under no obligation to obtain the imperial approval before signing them. It is proof of its decline and weakness that the negotiation of the treaty with Perry was referred to the Mikado.
Dr. Treat points out that it was the Shogun, lemitsu, who, without imperial approval, took “the momentous decision to close the country" (p. 5) to foreign intercourse. It was, therefore, quite within the power of his successor to rescind that action and bring the empire once more into relations with the western world. Gubbins appears to be entirely correct in believing that the first weakening of the Tokugawa authority was seen in the Shogun's referring Perry's request to Kyoto instead of taking the decision himself. Had he taken the latter course, Gubbins says, "the nation, it is generally held, would have accepted the decision without a murmur, the Shogun's authority being ample to meet the
“This decision," he adds, "must have been in favour of the opening of the country for the simple reason that Japan was not prepared for war."
This relegation of the real Emperor to seclusion and the exercise of his authority by a minister, the Shogun, or, as Perry knew him, the Tycoon, was simply an extreme development of the Chinese practice, or perhaps one should say an oriental practice, which was and is seen all over Asia. It is not merely the Emperor or chief ruler who is thus left to the enjoyment of an empty honor, devoid of all real power, but even subordinate officers are often in like manner but figureheads in their respective offices, the authority being exercised by secretaries and clerks. Even in western countries, however, we are not wholly unaccustomed to the figurehead monarch who reigns but does not rule.
Dr. Treat perhaps stresses too much the signing of the treaty of 1858 before the sanction of the Emperor had been obtained. Dr.
1 The Progress of Japan, by J. H. Gubbins, C.M.G. Oxford, Clarendon Press, 1911, p. 90.
2 Ibid., p. 91.
Treat says truly that in doing so the Regent, Lord Ii, did so "out of no disrespect for the Throne.” The fact is that in signing the treaty before obtaining the sanction of the Mikado, the Shogunate was merely following an age-old custom. As a mere formality the Shogun was accustomed to report such actions to Kyoto, but was not accustomed to seek approval before action. Had it not been for the precedent established in a moment of weakness in 1853 by the reference to Kyoto of the requests of Perry, no attempt would have been made to compel the Shogun to obtain the sanction of the Throne before signature of the treaty of 1858 and approval after signature would have come without discussion.
As it was, the enemies of the Shogun, even before Perry's arrival, had been scheming for his overthrow and were alert to take advantage of any incident that would enable them to weaken his authority. The chapter in which this subject is discussed, Chapter IV, is devoted to a consideration of "the effect upon the foreign policy of the Shogunate of the political situation within the empire.” This, of course, is the natural statement of the question as seen by the American or European, but to the Japanese it would appear rather as the effect of the foreign policy of the Shogunate upon the political situation within the empire. Viewed from this angle, it is seen at once that the contending parties were much less interested in the treatment of the foreigner than in defeating one another. The court at Kyoto was not anti-foreign and many of the daimios arrayed on the side of the court, although nominally opposing the Shogunate's foreign policy, did so merely because they desired to embarrass him and were really not opposed to the opening of the country to foreign intercourse. This was true of the Prince of Choshiu, whose forts in Shimenoseki Straits fired upon the U.S.S. Wyoming and other foreign vessels in the summer of 1863. He protested afterwards to the British Admiral that he was but carrying out imperial orders; that originally he had had no objection himself to foreign intercourse. Later he expressed a desire for more intimate relations (pp. 343 and 359). The Satsuma Clan, too, was decidedly in favor of opening the country, yet it united with Choshiu to overthrow the Shogun. On the other hand, the most bitter opposition to foreign intercourse came from the family of the Shogun himself, i.e. from the Prince of Mito, a member of the Tokugawa Clan. Domestic politics, in other words, entirely overshadowed questions of foreign relations. These facts make it easy to understand how it was