1. Regarded as an isolated vessel, she was liable to be stopped, visited, and taken in for adjudication by a Japanese Prize Court. If, as was the fact, it was practically impossible for a Japanese prize crew to be placed on board of her, the Japanese commander was within his rights, in using any amount of force necessary to compel her to obey his orders.[043]
2. As one of a fleet of transports and men-of-war engaged in carrying reinforcements to the Chinese troops on the mainland, the Kowshing was clearly part of a hostile expedition, or one which might be treated as hostile, which the Japanese were entitled, by the use of all needful force, to prevent from reaching its destination.
The force employed seems not to have been in excess of what might lawfully be used, either for the arrest of an enemy's neutral transport or for barring the progress of a hostile expedition. The rescued officers also having been set at liberty in due course, I am unable to see that any violation of the rights of neutrals has occurred. No apology is due to our Government, nor have the owners of the Kowshing, or the relatives of any of her European officers who may have been lost, any claim for compensation. I have said nothing about the violation by the Japanese of the usages of civilised warfare (not of the Geneva Convention, which has no bearing upon the question), which would be involved by their having fired upon the Chinese troops in the water; not only because the evidence upon this point is as yet insufficient, but also because the grievance, if established, would affect only the rights of the Belligerents inter se; not the rights of neutrals, with which alone this letter is concerned. I have also confined my observations to the legal aspects of the question, leaving to others to test the conduct of the Japanese commander by the rules of chivalrous dealing or of humanity.
Your obedient servant,
T. E. HOLLAND
Athenæum Club, August 6 (1894)
The controversy caused by the sinking of the Kowshing in 1894 was revived by the manner of the Japanese attack upon Port Arthur, in 1904 (see Professor Takahashi's International Law applied to the Russo-Japanese War, 1908, p. 1), and led to a careful study of the subject by a committee of the Institut de Droit International, resulting in the adoption by the Institut, at its Ghent Meeting in 1906, of the following resolutions:—[044]
(1) "It is in conformity with the requirements of International law, to the loyalty which the nations owe to one another in their, mutual relations, as well as to the general interests of all States, that hostilities ought not to commence without previous and unequivocal warning.
(2) "This warning may be given either in the shape of a declaration of war pure and simple, or in the shape of an ultimatum duly notified to the adversary by the State which wishes to begin the war.
(3) "Hostilities must not commence until after the expiration of a delay which would suffice to prevent the rule as to a previous and unequivocal warning from being thought to be evaded." See the Annuaire de l'Institut, t, xxi. p. 292.