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jected to official and academic hospitality, he will regard Mr. Millard's book as prejudiced and designed to disturb the friendly relations of the two countries. If his experience has been that of the average American or British business man in the Far East, he will accept the book as stating correctly conditions and tendencies.
The subjects discussed are: The Real Character of Japan, Japan's Policy in the Great War, China and the War, The Corruption of a Nation, China and Economic Imperialism, The Open Door, The Siberian Question, and The Solution. An appendix of 80 pages contains texts and other relevant matter which has not until recently been readily accessible. As the book was written before the Peace Conference completed its work, the Siberian and Shantung questions are, of course, not fully developed.
It is unfortunate that Japan has so conducted her foreign affairs as to forfeit much of the good will of the Western world. Her methods are criticized and condemned by practically every recent British and American writer on Far Eastern affairs. There must be some reason for this almost universal condemnation. It cannot be entirely without justification. The American people generally, while always ready to assume the worst of European monarchies, feel kindly toward Japan. They have always been rather proud of their country's part in forcing Japan on to the international stage. During her war with Russia the bravery and heroism of her soldiers were idealized and her Bushido philosophy was contrasted favorably with American materialism. They were indeed “a wonderful little people.” After the Treaty of Portsmouth a different note began to be heard. Possibly there was another side to the shield. The cherryblossom and chrysanthemum conception of Japan was shaken by the new foreign policy, and it finally dawned on Europe and America that there had arisen in the East a powerful military empire with definite political and economic ambitions and a will to realize them by methods learned in Germany.
The old relations between the United States and Japan came to an end with the Treaty of Portsmouth. The Japanese public believed that they had won a great victory and that Russia would be enforced to pay the expenses of the war. Although victorious in the field, Japan was, in fact, on the verge of defeat. Witte understood the situation and Komura knew that a renewal of the war meant ultimate disaster for Japan. On the advice of President Roosevelt, an indemnity was waived and Komura returned to face a Tokio mob and inaugurate the foreign policy which has since been consistently followed. Its object is beyond question the domination of the Far East through the economic and political control of China and the consolidation of the yellow races under the leadership of Japan. To this everything has been subordinated.
Mr. Millard makes it very clear that the United States has never had a definite policy in the East. Her influence has been negative rather than positive, and no one ever believed that she would back her protestations with force. However, her record is free from aggressive acts. She has joined with the other Powers in diplomatic pressure on China for equal treatment and commercial advantages. When the use of force became necessary, she always virtuously withdrew until the “outrage” was consummated and then coolly demanded her share of trade to the disgust of those who had borne the brunt of the battle.
The Manchurian neutralization suggestion was treated with scant respect. President Taft's administration supported American bankers in their demand to participate in Chinese loans. Russia and Japan, neither with any money to loan, edged into the combination. But after the inauguration of President Wilson, diplomatic support was withdrawn and America became again merely an interested spectator. The recent change of policy and America's participation in the new consortium encourages one to believe that the United States will have a serious part in the rehabilitation of China. There is no doubt but that Japan somewhat arrogantly resents this American activity. Millard shows that whenever brought face to face with Japan in the East, American diplomacy has failed. What will the future bring forth?
He finds no “democracy” in the Mikado's empire and no hope of there being any so long as the Japanese worship the head of the state as a divine being and submit to the leadership of a military caste. Japan's diplomatic strategy is directed to the control of China. Every major move so far made by her seems to have been successful; every demand on China has been granted or withdrawn to be resubmitted on a favorable occasion. By the Lansing-Ishii agreement, Japan secured recognition of her "special interests” in China. Her diplomacy is definite, positive and backed by force. According to Mr. Millard, the United States must abandon the Orient or fight for a position of equality. The reader will find all the arguments in favor of that view of the situation in this book.
CHARLES BURKE ELLIOTT.
The League of Nations. By the Rt. Hon. Sir Frederick Pollock, Bt. London:
Stevens & Sons, 1920, pp. xv, 251.
The first four chapters of this volume treat respectively of "The Older European Order," "Methods of International Arbitration,” “The Hague Tribunal,” and “The League in Sight." The four remaining chapters consist of a commentary on the Covenant of the League, article by article. There is an appendix containing the draft of February, 1919, the text of the Covenant as finally adopted, the official commentary, and several other documents bearing on the subject.
Anything on the League of Nations from so eminent a jurist as Sir Frederick Pollock is worthy of attention. It should be said at the outset that he is in full sympathy with the League of Nations. He traces the origin of the movement for a League from the first organization of the American League to Enforce Peace, for which he gives credit to Ex-President Taft and Mr. Theodore Marburg, to the failure of the last German offensive in the autumn of 1918, when, he says, “it was clear that the speculative stage of the great problem was already past,” and the only question was whether the League should be a part of the Treaty of Peace or reserved for future consideration. The plan of the American Government, he says, prevailed when the terms of the armistice were agreed upon. He says in this connection that “If no one had thought of the League of Nations before, it would none the less have been needful, about the end of 1918, to invent something of the kind.” The author says that General Smuts’ pamphlet was the most important single contribution made to the constitution of the League, and that this was probably due to the fact that he had the advantage of knowing a great deal more than any previous writer about the discussions that had already taken place on the subject between the Allies.
The commentary on the various articles of the League is sympathetic and clarifying. On Article X, which has been made the bone of contention in this country, he calls attention to the fact that the words “as against external aggression" are of the first importance, and afford no ground for the fear that the League will be used as a Holy Alliance to suppress national or other movements within the boundaries of the member States. Commenting on the rest of Article X, he says:
In the second sentence the words are "the Council shall advise-not prescribe. They are plain enough, but there is a disposition in some quarters to ignore them. Some Americans are afraid of the United States being compelled under this article to do police work in Europe or Asia, which may be foreign to American interests. They forget that the United States has a permanent place and vote in the Council, that nothing can be done without the unanimous advice of the Council, and that even then the Council has no compulsory power. We have even seen an apprehension expressed that Canada might be called upon to join in operations against Great Britain. Such fears are, to speak frankly, midsummer madness. Still less is there any interference with any constitutional provision in any member State requiring the consent of the legislature to a declaration of war.
Sir Frederick Pollock is a staunch advocate of the establishment of an International Court of Justice. He says: “The League stands for peace among nations assured by justice. But there can be no settled justice without judgment and no judgment without a tribunal.” He concurs, however, in the wisdom of Article XIV, which did not undertake the immediate organization of a court, but directed the Council to submit plans for its establishment. Referring to the provision that the court may give an advisory opinion upon any question referred to it by the Council or by the Assembly, he says: “There is European precedent in the statutory authority of the Judicial Committee of the Privy Council to advise the Crown on questions officially referred to it." He calls attention to the fact that American courts have held that it is beyond their competence, in the absence of special constitutional provision, to give advice to executive authorities.
The volume, as a whole, is a valuable contribution to the subject, and should be of particular interest to Americans who are interested in jurisprudence and political science.
John H. LATANÉ.
Das Völkerrechtliche Delikt. By Dr. Karl Strupp. V. III, part la of Handbuch
des Völkerrechts, edited by Professor Fritz Stier-Somlo. Berlin: W. Kohlhammer, 1920. Pp. 223.
This is a scholarly work of first rank. It deals with the international responsibility or legal liability of the state for torts committed by authorities of the state upon aliens or foreign states. This subject, although of primary importance in the theory and practice of international law, is almost neglected by the writers of general treatises on international law; it is discussed by certain specialists in monographs, of which that by Triepel (1899) was the first of note. This neglect is the more surprising in that the subject makes a peculiar appeal to the lawyer, involving the relation between international law and municipal law, the principles of agency in the relation between the state and its officers and organs of government, the legal status of aliens, due process of law in the concept “denial of justice,” and the subjects of damages and means of redress.
The present work constitutes an analytical and critical discussion of state liability for tort, including in its source material the theories of jurists and writers, the decisions of international tribunals, and the practice of states. It is strictly legal in character and evidences not only a mastery of the data of the subject, but a profound analytical mind to be welcomed in the field of international law. The work is perhaps, like Anzilotti's and Triepel's, more important for the theorist in the subject than for the practitioner, although ample citations of cases, made available by previous research, are not lacking. It is on the theoretical side that contributions were needed by the profession, and the author has met the need satisfactorily. The book, he says, was for the most part written before the war, although it has but just been published (1920).
The book is divided into four main parts: (1) The international tort in general, including the theories of liability with and without fault; (2) state responsibility in particular types of cases and for particular classes of agents; (3) factors limiting the conception of wrongdoing in acts inflicting injury on other states, embracing (a) an exhaustive discussion of the history, theory and practice of acts justified under the guise of self-preservation or “law of necessity,” and (b) a brief discussion of the subject of reprisals in international law; and (4) the consequences of international tort and the method of obtaining reparation.
It is of course a fact that there are but few positive rules of international law of universal application. But the author builds his study on the maxim pacta sunt servanda as the measure of international duty and the test of liability, including the rules binding upon a group of states or individual states, whether based on treaty or custom. He examines the various theories of liability, such as Anzilotti's, who does not believe that injury is necessary, in addition to violation of law, as a foundation of state liability—which most authorities maintain—but predicates liability on the mere violation of international law, whether resulting in injury or not. That raises the question whether all states, including the one directly affected, may not claim reparation for breach of a rule of international law, analogous to municipal theories of criminal law.
Dr. Strupp criticizes Oppenheim's distinction between the direct responsi
bility of the state for its own agents and the so-called indirect responsibility for the acts of private individuals. He shows, correctly, we believe, that mere failure on the part of the state to prevent or punish the injury to the alien is not participation in the wrong, but an independent ground of liability. It is liable for its failure to perform an international duty, not for the injury inflicted by the private individual, between whom and the state there is no privity.
Again, he criticizes sharply the many arbitral awards and the supporting opinion of writers making a distinction between the liability of the state for acts of superior and of inferior officials. As a rule, only acts of the former have been deemed to express the state will, those of the latter (unless ratified or unreproved) being deemed merely unauthorized private torts upon aliens, which, if corrected and rebuked by superior officers, have been held to relieve the state from international liability. The author applies this same criticism throughout to the various classes of state agents—inferior judges, soldiers whether under command of officers or not, and administrative authorities. He regards the distinction as unlegal; he asserts that the suppression or removal of the effects of the tort by superior officers still leaves it a tort from the moment of commission by the inferior officer. This is the view also that seems to have been taken by President Wilson when he deemed the alleged insult to our flag at Tampico by two subordinate officers of Mexico a ground for international hostility against the Mexican national Government. It is not, however, the view entertained by most arbitral tribunals, nor by most Foreign Offices, which in this respect would accord the alien no greater claims to redress than the citizen, even in countries where the citizen can sue. The author's view, while more strictly legal than is the actual practice, would impose upon the state a greater measure of guaranty to aliens for the efficient operation of all parts of its state machinery than international practice has yet recognized. The author admits that the minor official must, as a condition of invoking state liability, have been acting within the scope of his authority, but does not satisfactorily dispose of the question whether a tort committed by him upon an individual could ever be deemed within the scope of his authority. It is on this point that some of the cases denying state liability actually turn.
Dr. Strupp also expresses vigorous dissent from a modern theory sustaining state liability for the acts of successful revolutionists from the beginning of the revolution, on the theory that “the revolution represents ab initio a changing national will, crystallizing in the final successful result." See Bolivar Railway Co. v. Venezuela, February 17, 1903 (Ralston, 394). He claims, with some merit, that this is inconsistent with the theory that the state is also liable for the acts of the titular government up to the time it is displaced, and asserts that there cannot at the same time be two organs representing the state. He claims that a date line must be drawn at which the old government terminates, and the new government begins, its representative character. He disputes sharply the writer's criticism of the Didier decision before the Chilean-American arbitral tribunal of 1892, in which the commission dismissed a claim against Chile for goods supplied to the successful revolutionary party of Gen. Carrera in 1816, on the ground that Chile was not recognized by the United States until 1822.