Re-examining the discourse of the 19th century international law : a case study of the first Sino-Japanese War 1894-1895

Abstract

The international law of the 19th century distinguished civilised states from non-civilised states and asserted that international law should function exclusively within the civilised world. Any country desiring equal treatment under international law required formal admission from the original civilised members. Japan successfully inserted itself into the civilised world by presenting a civilised image of its role in the First Sino-Japanese War through media and academic publications. Positivist international lawyers in the 19th century did not make the distinction between just and unjust wars. According to the doctrine of inter-temporal rule, the nature of this war was not within the scope of legal discussion, and therefore the discourse of this war was constructed on civilisation–a proof of Japan’s civilisation and China’s barbarism. The Cairo Declaration of 1940s clearly reversed this discourse. Taking the example of the First Sino-Japanese War, this research examines primary sources, including memoirs of Japanese senior officials, along with British, American and Japanese diplomatic documents, to reveal the true nature of positivist international law.

First, the research demonstrates that Japan’s hidden agenda behind its pretext of protecting Korea’s independence and bringing civilisation to Korea was a premeditated plan of aggressive aggrandisement. This pretext is not only what the Cairo Declaration wished to reverse, but also what remains in the East Asian public memory to this day. This finding reveals the truly amoral nature of the positivist international law that rejected the distinction between justifiable grounds for war and pretexts for war, and at the time made itself complicit in colonial aggression. Besides, through investigating states’ minds, this research proves that the sense of the standard of justice had always been shared by states, even during the period of imperialism, which is in line with the spirit of the Cairo Declaration.

Second, this research demonstrates that many of Japan’s actions breached its treaty obligations and violated the international law of the time. Japan’s works presenting this war were valid neither in law nor in fact. Japan learned the Western way to manipulate international law to serve power politics. Western countries were aware of Japan’s intention of aggression, but finally gave up trying to stop the war. Despite the brutal Port Arthur Massacre, positivist international lawyers still recognised Japan’s civilisation by merely relying on public arguments and declarations. The divergence between the discourse and the real history proves the ahistorical nature of 19th-century international law.

Third, the research studies the Triple Intervention, which forced Japan to give up the Liaotung Peninsula, to re-evaluate the actual operation of international legal standards of Western countries. Western powers intervened in the name of protecting the independence of Korea and maintaining the peace of East Asia. However, the findings show that the powers all intervened for their own gain and aggrandisement. Japan was outraged and humiliated by the Triple Intervention, as it dampened Japan’s hopes and pride. This incident taught Japan a lesson that international law was not concerned with moral issues of right and wrong and that only might makes right; thereafter, Japan used military strength and aggressive nationalism. Even as late as World War II, the Japanese Emperor mentioned the Triple Intervention when declaring Japan’s surrender.

In general, the findings from the First Sino-Japanese War demonstrate the ahistorical and amoral nature of the 19th-century positivist international law. The discourse of civilisation, with the application of inter-temporal rule, rules out the nature of this war, and disregards Japan’s illegal actions.