FISHING VESSELS

Evening Post, Volume CXXIV, Issue 90, 13 October 1937, Page 9

FISHING VESSELS

SINKING BY JAPAN

THE LEGAL POSITION

Evil communications corrupt good manners, writes Professor A. H. Charteris in the "Sydney Morning Herald.' In her former wars so punctilius was Japan in conforming with the laws and customs of warfare that the Professor of International Law in the University of Tokio, Mr. Sakye Takahashi, served as Legal Adviser to the Com-mander-in-Chief of the Japanese Fleet I in the war against China in 1896, and further served on a Legal Commission of Three appointed by the Japanese I Foreign Office as advisers during the. war against Russia in 1904-5. In 1908 this learned man published in excellent English an excellent work on "International Law in the RussoJapanese War." It is evidence of the temper of Japan in those far-off days when she felt that the eye of the world was upon her, that, having dated his preface "April 10, 1908," the professor added the words "the 325 th anniversary of Hugo Grotius's birthday." Much water has flowed under the bridges since then; and today the Father of International Law may well turn in his grave.

The latest Japanese outrage, be it observed—the sinking at sight by a submarine of a large number of Chinese fishing sampans near Hong Kong—is precisely the kind of incident which has called forth the Anglo-French-Italian anti-submarine patrol in the Mediterranean, as arranged at Nyon. THE LONDON PROTOCOL. No later than November 6 last, Japan was one of the signatories to the London Submarine Rules Protocol which declared that: "The following are accepted as established Rules of International Law:— "(1) In their action with regard to merchant ships, submarines must conform to'the rules of cruiser-warfare. "(2) In particular, except in case of persistent refusal to stop on being summoned or of active resistance to visit and search, a warship, whether surface vessel or submarine, may not sink or render incapable of navigation a merchant vessel without having first" placed passengers, crew, and ship's papers in a place* of safety; for thia purpose the ship's boats are not to be regarded as a place of safety unless'... (the rest of the article is omitted as not relevant to the present case)." In this obligation there was nothing new for Japan. She had accepted it first in {he Naval Treaty of London, 1930, which contained these rules in Part IV, Article 22. And it was only because the Treaty of 1930. was to come to an end on January 31, 1936, that the Submarine Rules' were\fransferred to the London Submarine Rules Protocol and: signed afresh On November 6 by the parties to the Treaty, viz., Great Britain, the United States, and Japan, as well as by certain new signatories: France, Italy, Germany; and others. - For securing general accepts ance of the, Rules Great Britain undertook to invite the adherence; of other Powers. •;As compared with the Treaty, (provisions, the only change made by the Protocol is that the obligation to, observe the Rules is now. perpetual. Moreover, as the Protocol is not on terms contractual, it enures to the benefit of all merchantmen,' whether flying the flag of a signatory or not. China, so far as is known, has not given her adherence, but this,, it; is submitted, is without effect on the obligation of Japani COASTAL FISHING VESSELS. Moreover, if Ike sampans in question were coastal fishing boats in contradistinction to boats engaged in deepsea fishing," they should'have been accorded, by a general; although not universal,, rule of international law, immunity from capture in maritime wan —and a fortiori from destruction at sea. This is a customary rule which originated in the Middle Ages. Although Great Britain did - not always recognise it, she consented at The Hague Conference in 1907 to its incorporation in Article 3 of Convention No. XI concerning certain restrictions on the right of maritime capture, in the following terms;— "Vessels employed exclusively in, coast fisheries and small boats employed in local trade are, together, with appliances/rigging, tackle, and cargo, exempt from capture."

This convention was never ratified by China; but it was ratified by Japan without reservation on November 13, 1911. Although The Hague Conyen- | tions differ from the London Protocol in being contractual in character and [therefore only of binding force when I all the belligerents are ratifying parties, 'it is hardly to be thought that, in the present abnormal hostilities, Japan is | disposed to take her stand on this technicality. But in the contrary event, no difficulty can stand in the way of Great Britain, if so disposed, claiming damages from /Japan, should the victims of the outrage,have included, as reported, sampans on the British register. For Great Britain, which, incidentally, ratified the convention on November 17, 1909, is neutral in the present struggle, and cannot therefore call the convention in aid. As regards ships under the British flag, the sinking is an international delict calling for reparation. ''