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Kleinschmidt, Harald *
Prof. Dr. Harald Kleinschmidt, Professor für Geschichte der internationalen Beziehungen an der Universität Tsukuba (Japan)



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Establishing Peace and Making Peace Treaties. The Contradictoriness of the European Public Law of Relations between States and Big-Power Foreign Policy at the Middle of the Nineteenth Century

ISSN: 1867-9714

Gliederung:
1. Introduction: Free Trade, International Public Law and Colonialism in Mid-Nineteenth Century Europe
2. The British-Chinese Treaty of Nanjing and the Formulary of the Peace Treaties
3. History of the European Public Law of the Treaties between States in East Asia
4. The Japanese-US Treaty of Kanagawa
5. The British-Japanese Treaty of Nagasaki
6. The Japanese-Russian and the Dutch-Japanese Treaties
7. The Ansei Treaties
8. The Japanese-Prussian Treaty
9. The Japanese-Swiss Treaty
10. Further Unequal Treaties Concluded between 1866 and 1869
11. Summary on the Treaties between Japan and States in Europe and North America
12. Treaties between Japan, China and Hawaii in the Light of Western Conventions of International Public Law
13. Treaties between European Governments and Governments in Southeast Asia and Oceania
14. Conclusion
15. Literature

Anmerkungen
Zitierempfehlung

Text:

1. Introduction: Free Trade, International Public Law and Colonialism in Mid-Nineteenth Century Europe
 
In accordance with twenty-first century understanding, the conceptualization and implementation of global peace policy is difficult without the perceptual framework of an international system that is extending to the boundaries of the globe. Within this framework, peace is taken to be inseparable, it appears to come about not by itself but to have to be willed and set. If there has to be an agent willing and setting peace, who can that agent be? According to whose principles is peace to come about? The postulate that peace is inseparable throughout the world may be reasonable, but it raises questions about the cultural specificity of the perceptual framework within which peace is to be set. Hence, this framework cannot be taken for granted for all periods of history and for all cultures. Instead, it was boosted by the globalizing efforts through which European and the US governments undertook, around the middle of the nineteenth century, to expand the European international system. They then did so most notably through two strategies. The first strategy was the articulation of the demand that the European rules of free trade and norms of international public law should be made applicable everywhere on the globe. The second strategy was expansion of colonial rule.

  1

The association of peace policy and peace-making with the imposition of free trade rules and norms of international public law as well as colonial expansion may appear to be paradoxical. If Kant’s argument is tenable that peace cannot be imposed but can only come about if and when it is willed, the use of any form of military or political pressure to the end of imposing or enforcing peace will be counterproductive. Yet, the slightly more than two hundred years that have passed since Kant published his peace proposal, have witnessed various attempts of the use of force for the stated goal of the accomplishment of peace. Not only did the closing decades of the twentieth century experience a form of international intervention termed »Peace Enforcement Operations« through the deployment of military forces, but, around the middle of the nineteenth century, various European and the US governments resorted to a policy of expanding European rules of free trade and norms of international public law through the legal instrument of peace treaties. Specifically with regard to East Asia, they did so even in situations where they had not previously been engaged in warfare. In the following study, I propose to describe the historical context in which this peculiar form of treaty-making came into and remained in practice and subject to critical scrutiny the moral and political implications of the use of the formulary of peace treaties in attempts to impose culturally specific rules and norms.

  2

Prima facie, the demand for free trade sounds good. From the centres of global trade, the reasoning has emerged since the nineteenth century that free trade provides the basis for economic self-determination and entails economic growth. But why have there been increasingly many critics of free trade? The answer from the critics of free trade in a global international system is that free trade has to follow rules that governments of sovereign states will enforce in accordance with their own military and political interests. In the view of its critics, the imposition of free trade rules has thus smacked of colonialism. Yet these rules have been part and parcel of international public law. International public law has a good reputation. It has been classed as a neutral normative system, not biased to anyone’s particularist interests. At least, this has been the claim that Western legal and political theorists have articulated. But why has it often been difficult to put international public law into force? What is the cause of resistance against international public law? The answer of critics of international politics has been that international public law represents a system of norms dominated by state interest and military strategies. Enforcing norms of international public law at the global level thus has also smacked of colonialism. Thus, rules of free trade and norms of international public law have been at the centre of public debate about justice in the relations between states. Colonialism, military and political threats as well as war have historically been intertwined with the process of the global expansion of the European international system, rules of free trade and norms of international public law in the course of the nineteenth and the earlier twentieth centuries. I shall refer to the expansion of European free trade rules and European norms of international public law as regime colonialism.

  3

However, some historically minded theorists have taken a different view of the processes of the expansion of European fee trade rules and European norms of international public law. According to a mid-twentieth-century theory of economic history, European colonial expansion was exclusively related to the superimposition of various forms of rule and took place in two phases. According to this theory, the first phase, spanning from the late fifteenth to the early nineteenth century, consisted of the territorial conquest of the Americas, Australia and New Zealand while it affected merely the Atlantic and Indian Ocean coastal zones of Africa and Asia. With regard to Africa and Asia, it appeared to be driven by commercial interests and to be carried out by rival long-distance trading companies without much government interference. By contrast, theorists took the view that the second phase, taking place during the late nineteenth and early twentieth century, was global in kind, consisted of the establishment of some European governments as direct or indirect rulers of most of Africa, West, South and Southeast Asia as well as Oceania. The theory thus positioned an interval of approximately two generations between these two phases in which, theorists argued, there was no colonial expansion but an option of some European governments, most notably that of the United Kingdom, for a global free trade regime. Placing free trade and colonialism at the opposite ends of a scale of foreign policy strategies and goals, these theorists took for granted that colonial expansion would, as a rule, occur through the use of diplomatic pressure and the deployment of military forces, while the expansion of the free trade regime would take place peacefully and without government pressure.[1]
For the debate see PLATT, Imperialism of Free Trade 1968; PLATT, Further Objections 1973; PLATT, Finance, Trade and Politics 1968. Platt took issue with the objections that GALLAGHER / ROBINSON, Imperialism of Free Trade 1953 had raised against the theory. With regard to East Asia, Platt’s arguments could be based upon the instruction from the British Foreign Office of 20 April 1857, according to which the second British mission to Japan should have the purpose of imposing general rules of free trade for everyone’s benefit, while it was neither to provide spcific privileges for British merchants nor serve the goal of establishing British colonial rule in Japan. See National Archives (Public Record Office, London), FO 405/2, p. 23 = fol. 19r. However, at this time, few ships travelled in the Pacific under a flag other than the British, so that the imposition of general rules of free trade was in fact equivalent to privileging British traders. While Gallagher and Robinson took the view that the acts of colonial governments in Europe and the US imposing free trade rules were acts of economic imperialism, they shared with their opponents the common view that there is no noteworthy expansion of European colonial rule at the middle of the nineteenth century.For the debate see LOUIS, Imperialism 1976. Recently, Platt’s arguements have been restated in MÜNKLER, Imperien 2005, p. 230. For the discussion about nineteenth-century theories of free trade see ARMITAGE-SMITH, Free Trade Movement 1898; KINDLEBERGER, Rise of Free Trade 1975; MOULDER, Japan, China and the Modern World Economy 1977; SEMMEL, Rise of Free Trade Imperialism 1970.
The theory has been based on the observation that, during both phases, the establishment of colonial regimes was frequently connected with the introduction of tariff-based or non-tariff trade restrictions and attempts to direct trans-continental migration out of Europe to overseas destinations that were under the control of European governments. By contrast, the intervening period during which some European governments apparently adhered to the free trade regime, seemed to feature preference to laissez-faire policies and opposition to protective tariffs.[2]
On protective customs policy see BÖHME, Bismarcks Schutzzollpolitik 1968; FECHTER, Schutzzoll und Goldstandard 1974.

  4

However, the validity of this theory, impressive due to its simplicity, critically hinges on the policies used to enforce free trade regimes at the global level at the middle of the nineteenth century. Even advocates of the argument that the erection of global free trade rules should be recognized as the prime foreign-policy goal of mid-nineteenth century European governments have noted the source evidence that the rules of global free trade would not come into force, so to speak, by themselves, but through the imposition of rules by diplomatic pressure and military threat. But these advocates have failed to investigate more deeply into the political conditions under which globally applicable free trade rules could come into existence. According to standing convictions held by theorists of international public law at the time, the sole key factors required for the promotion of international public law, and with it, globally enforcible free trade rules, were governments of sovereign states. This theoretical position excluded non-government actors, such as private firms, from becoming regulators of international relations. Private firms could issue demands for free trade to constitutionally legitimized decision-making institutions within their state but could not by themselves expand the European free trade rules to the boundaries of the globe.[3]
WHEATON, Elements 1889, § 252, p. 356. For requests to impose free trade rules that private citizens addressed to governments of sovereign states see COBDEN, Political Writings 1867, pp. 285–339. Therefore the supposition, current in international relations theories is untenable that treaties between states are concluded as agreements between sovereign signatory parties for mutual or general benefit, whereas interventions are unilateral violations of the state sovereignty. For this supposition KRASNER, Sovereignty 1999, pp. 33–37. Against Krasner’s supposition, interventions may well take place in accordance with treaties by international public law.
As a consequence, the legitimate capability of enforcing free trade rules at the global level was a substantial feature of government activity. When private firms sought government assistance in the promotion of free trade rules, they accepted the argument that market-regulating mechanisms were insufficient. When European governments chose to give in to requests for the controlled expansion of European free trade rules beyond the borders, first of Europe, then, at the middle of the nineteenth century, beyond the Atlantic world, they decided to act purposefully in international relations and opted against leaving the expansion of these rules to the equilibrating forces of the world market. The government-controlled expansion of European free trade rules was thus regime colonialism in the sense that it entailed the dissemination of European normative frameworks through other means than the occupation of overseas territory and the execution of direct or indirect rule. The globalization of the European free trade rules and colonialism were not necessarily in opposition against each other.

  5

The same regime colonialism accompanied the attempt to globalize the range of applicability of the core feature of European international public law, namely the European law of relations between states, through diplomatic and military measures that European governments and the government of the USA sought to implement. Specifically European governments took steps aiming at imposing the European law of relations between states onto humankind at large. They demanded the global recognition of this law, first and foremost to the end of protecting citizens under their control when acting in overseas areas, and constructed the desire and the capability to impose their ideas about the proper conduct of relations between states as an indicator for their self-claimed great power status. They took the making of treaties by international public law as the central part of the law of relations between states and set the notion of sovereignty as the core condition for their willingness to recognize other governments as potential signatory parties.

  6

In some cases, governments deemed the imposition of free trade rules and norms of the European law of relations between states as similar or alternative to the expansion of direct or indirect colonial rule. Specifically the British government reserved for itself not only – and not merely towards states in East Asia – the option of military intervention but also that of territorial conquest and the establishment of direct colonial rule. This becomes evident from statements by its appointed representatives at the middle of the nineteenth century.[4]
OLIPHANT, Narrative 1859, vol. 2, pp. 248–249.
In some cases, the British and other European governments did not limit themselves to the issue of military threats but took military action. Thus the Kurile island of Urup became the target of a short-termed and ill-fated joint British and French military occupation in 1855,[5]
On this rarely known incident see MORMANNE, La prise 2004.
while the Prussian government attempted the occupation and colonization of Taiwan in the course of its expedition to East Asia from 1859 to 1862.[6]
See SIEMERS, Preußische Kolonialpolitik 1937.
Even though these adventures did not endure to convert into lasting colonial rule, they documented the consciousness of those diplomats, representing European governments in East Asia, that colonial rule was an option ready for choice at the middle of the nineteenth century. Therefore, these short-term adventures should not be underestimated. Max August Scipio von Brandt, successively the Prussian, later German envoy to Japan and China, proposed to his government in 1867 to occupy Hokkaido for colonization by Prussian farmers. Even after the end of his long tenure as diplomatic agent in East Asia, he continued to have a voice as a leading German expert on politics in and towards East Asia and restated his regret that his government had then rejected his colonization proposal.[7]
Maximilian August Scipio von Brandt, [Denkschrift betreffend Kolonien in Ostasien], Januar 1867, edited by WIPPICH, Japan als Kolonie 1997, pp. 29–42; BRANDT, Dreiunddreißig Jahre 1901, vol. 2, p. 148. On German colonial policy towards East Asia see also MARTIN, Fatal Affinities 1995, p. 25.
Against the economic theory, according to which there should have been some free-trade interval between two successive periods of European colonialism in the middle of the nineteenth century, colonialism through direct or indirect rule and regime colonialism coexisted throughout the nineteenth and the early twentieth centuries as two options ready for choice at European government discretion whenever they deemed themselves to be in a position to make the choice.
 
Moreover, the treaties concluded between governments in East Asia on the one hand and some European and the USA governments on the other between 1842 and 1869, appear in a different light when associated with the expansion of European regime colonialism. In many of these treaties the formulary of peace treaties found application even when no war had taken place among the signatory parties before the treaties were concluded and even when the European drafters gave the title of »treaties of amity« to these instruments. Regardless of title, the formulary of peace treaties becomes transparent from the wording of the preambles and the general articles both of which passages commonly referred to the intention of establishing a lasting peace.

  7

 
2. The British-Chinese Treaty of Nanjing and the Formulary of the Peace Treaties
 
The British-Chinese treaty of Nanjing, concluded on 29 August 1842,[8]
Treaty of Nanjing between China and the United Kingdom 29 August 1842, in: CTS 93, pp. 466–75. The British Foreign Office authorized the reproduction of the treaty through the then novel calotype technology of photography. The original of the treaty was removed from the Beijing State Archives, apparently in 1949, before Chiang Kai-Shek’s troops retreated to Taiwan. On the manuscripts of the the treaty see: SCHAAF, Henry Collen and the Treaty of Nanking 1982–1983; WOOD, Photocopying 1995; WOOD, Treaty of Nanking 1996; WOOD, Photocopying the Treaty of Nanking 1994–1997. On the treaty see also FAIRBANKS, Chinese Diplomacy and the Treaty of Nanking 1940; FAIRBANKS, Trade and Diplomacy on the China Coast 1954. Fairbanks used the then common Orientalist argument that the Chinese government had not been in a position to respond firmly to the British advance because it had tied itself to traditions of Confucianism. On the Opium Wears see BEECHING, Chinese Opium Wars 1975; GELBER, Opium, Soldiers and Evangelicals 2004; INGLIS, The Opium War 1976); ZHENG, Social Life of Opium 2005, pp. 87–115.
was a manifest peace treaty ending the military engagement now named the First Opium War. In the protocol,[9]
I use the terms protocol, eschatocol and disposition in the sense of diplomatics. In this sense, protocol stands for preliminary matters, eschotocol for concluding matters and disposition for those parts of a treaty that contain provisions and regulations respecting the relations between the signatory parties.
the two signatory parties recognized each other mutually as sovereigns and in Article I declared their determination to be willing to conclude a lasting peace after ending the acts of war and to conduct friendly relations in the future.[10]
Treaty of Nanjing between China and the United Kingdom 29 August 1842, Art. I, in: CTS 93, p. 466.
The further, dispositive part of the treaty verbalized agreements that, in renouncing reciprocity, manifest this part as unequal. In drafting the dispositive part of the treaty unequally, the British government followed the established conventions of the European law of international treaty-making. These conventions established the freedom of treaty-making among sovereigns, inclusive of the possibility to convert peculiar and time-bound military victories into positions that were expressed in the terms of lasting obligations according to international public law.[11]
Thus already GROTIUS, De jure belli ac pacis 1939, pp. 827–30.
The Treaty of Nanjing has become noteworthy for obliging the Chinese government unilaterally to transform its foreign trade policy in accordance with British rules of free trade and to agree to the transfer of perpetual control over the island of Hong Kong to British rule (Article III). Yet the treaty contained further stipulations which positioned China lastingly as an unequal state in its relations with the United Kingdom. Among them were the obligations to grant the right of settlement to British traders in Guangzhou, Xiamen, Fuzhou, Ningbo and Shanghai (Article II), the release of Chinese subjects who had been imprisoned after charges of maintaining relations with British agents (Article IX) and the limitation of the Chinese government to collect dues on imports from abroad (Article X). These stipulations were unequal because they were imposed only on the Chinese side.[12]
Treaty of Nanjing between China and the United Kingdom 29 August 1842, Art. III, in: CTS 93, p. 467. It was supplemented by the additional treaty of Hu-mun Chase concluded between China and the United Kingdom on 8 October 1843, which (in Art. VII) conceded the freedom of the choice of residence to British subjects at the treaty ports under the supervision of British consular agents. See CTS 95, p. 325.
In being unlimited in their temporal dimension they resulted in obligations differing in caliber from those that amounted to the finite payment of the total sum of 21 million Mexican Dollars as war compensation.

  8

Within the conventions of European international public law, the British government displayed some consistency in applying the principle of sovereignty as the platform for the making of the treaty. According to these conventions, no treaty could be concluded between states without their mutual recognition as sovereigns. Hence, the single most important condition for the conclusion of the treaty was, from the British point of view, the recognition of the Chinese government as the government of a sovereign state. Likewise, the British government was consistent with European conventions of international law in drafting the Treaty of Nanjing as an unequal instrument because it could legally claim to have won the previous war in military terms. As the Chinese side had sought for a truce, the British side could feel justified in seeking to impose its own terms for peace and, by consequence, draft the dispositive part of the treaty in terms of non-reciprocal stipulations. In the same vein, peace treaties were unequal when concluded between European governments.[13]
FISCH, Krieg und Frieden 1979, pp. 15–16. Despite its restriction to the history of the notion of amnesty, Fisch’s study has remained, even for the nineteenth century, the sole comprehensive work on the history of the formulary of treaties by international public law. As a rule, the research literature has investigated the treaties that Western governments concluded with the governments of China and Japan in the course of the nineteenth century, within analyses of the specific bilateral relations.
The fusion within one and the same treaty of a protocol, expressing the equality of the sovereign signatories, with a dispositive part comprising mainly unequal stipulations, was a condition for the enforcement of a peace treaty, because only governments of sovereign states were seen as capable of enforcing obligations by international law within the territoiries under their control, specifically when these obligations were detrimental for the affected populations. Without recognizing China as a sovereign state, the British government would have had to continue its war to the point where China would be completely defeated and power wrested from its government. But the British government had neither the military means to totally defeat China nor (at that time) the willingness to rule China.

  9

Contrary to these stipulations that were largely positioned within the conventions of the European law of treaties between states, the provision that the Chinese government should open the country for »free trade« represented a legal innovation. This request was not limited to the bilateral relations between China and the United Kingdom but was to affect the totality of Chinese foreign trade relations with all other trading partners. In this case, the enforcement of the free trade regime thus followed an act of war and was implemented through government agencies. Moreover, the Chinese side was solely obliged to accept free trade rules while the British government granted no privileges concerning free trade to China. A sharp distinction thus existed between the reciprocal equality of expressions contained in the preamble and stipulations featuring in the general articles on the one side and unequal provisions making up the stipulations of the dispositive part. Reciprocity was a legal category defining equality. It was mandatory in the general parts of a treaty as a condition for the treaty itself and, within the framework of a peace agreement, could coexist side by side with non-reciprocal and thereby unequal dispositive provisions. The Treaty of Nanjing featured only unequal dispositive stipulations. Like most peace treaties, it was therefore equal in legal form and unequal in the legal substance of its specific dispositions. Next to reprocity as a legal category, it is principally possible for signatory parties to agree upon sets of non-reciprocal, unequal provisions while setting their sum as equivalent. Equivalence, however, does not render non-reciprocal dispositive stipulations equal. Instead, equivalence results from the political decision to reckon the sum of non-reciprocal provisions as balanced in terms of gains and losses. As the Treaty of Nanjing contained mostly unequal dispositive stipulations, it can not be termed equivalent within the European conventions of international public law.

  10

Within the Chinese perspective, however, the Treaty of Nanjing had a fundamentally different status. In China, there were then no conventions of European international public law or law of treaties between states, even though treaties by international public law had been signed between China and Russia in 1689 and in 1727.[14]
Treaty of Nertschinsk between China and Russia of October 1689, in: CTS 18, pp. 505–507; Treaty of Kiachta between China and Russia of 1727, in: CTS 33, pp. 25–32. The latter replaced by the treaty of 18 October 1768, in: CTS 44, pp. 229–231. On the historical background of the treaties see BAUER, China und die Fremden 1980.
Even though these treaties contained agreements about the Chinese-Russian border, China was not a state like all others within the Chinese perspective but an empire with no more than temporarily fixed external borders. The British demand that China should cede territory to the United Kingdom for all times, was thus incomprehensible within Chinese legal traditions. Within these traditions the transfer could only take the form of the temporary lending of land, even though the text explicitly stated the opposite. Moreover, the very notion of sovereignty was absent from the Chinese traditions and, by consequence, had no legal quality there. This was so because Chinese political theory obliged the government to conduct its relations with other governments within a tributary and thus hierarchically structured system, wherein the Chinese government held the top position of the sole tribute-receiving institution. According to Chinese political theory, the government had the obligation to enforce ranking differences in its relations with other governments. Accordingly, these relations were managed within the government agency in charge of controlling the ceremonies, whereas a foreign office was non-existing in the Chinese government system at the time of the conclusion of the Treaty of Nanjing. Hence, it was not the lack of reciprocity that posed the major problem for the Chinese government at the time of the conclusion of the treaty but the fusion of the unequal stipulations with an equality-generating protocol. The treaty became fully unbearable for the Chinese side because the British government insisted on the implementation of European rules of free trade, with regard to trading goods such as opium that were known by the Chinese government to cause problems of physical and mental health of the population under its control. The treaty obliged the government to partly waive its obligation to protect the population against hazards, thus to use its power to the end of reducing its own competences. The Treaty of Nanjing thus posed serious problems of domestic implementation.

  11

However, through the Treaty of Nanjing, the Chinese government not merely reduced its own competences vis-à-vis the population under its sway but waived two principles of foreign policy that had long been in practice. The first principle given up through the treaty was the policy of denying equality to any other government. As a consequence of the treaty, the Chinese government admitted the equality of rank to the government of the United Kingdom. Already this admission had grave consequences for the conduct of relations between China and states in East and Southeast Asia. In consequence of the Treaty of Nanjing, the Chinese government lost its position as a protector of other states in East and Southeast Asia, specifically Japan and Annam, thereby opening the entire region to military pressures exerted by foreign powers. Specifically in Japan, this consequence raised grave concerns for the security of Japan.[15]
For the Japanese foreign policy towards China during the Bakumatsu Period see JANSEN, China 1992; WAKABAYASHI, Opium, Expulsion, Sovereignty 1992.
 
Secondly, the Chinese government willy-nilly accepted the general principle of sovereignty, thus approving of the view that there was a pluralism of sovereign states in the world. Even if it would have been conceived as possible to revise some of the unequal stipulations of the Treaty of Nanjing through some later sweeping military victory of the Chinese side over the United Kingdom, the protocol of the Treaty of Nanjing precluded a return to the previous structure of the Chinese international system. As a consequence of the treaty, not merely was China equal to the United Kingdom in terms of international public law but also to its neighbours, most notably Japan and Annam. The imposition of the European law of treaties between states thus destroyed an international system in East and Southeast Asia that, at that time, had been in operation for a good deal of 1500 years. The Chinese government tried to compensate for this consequence by hastily introducing European international public law. Thus, in 1864, it authorized the translation into Mandarin of Henry Wheaton’s Elements of International Law and, for the purpose of this translation, coined Chinese equivalents of European technical terms in international law, such as that of sovereignty. However, neither in China nor elsewhere in East Asia did these early Chinese versions succeed but the Japanese forms created only a few years later.[16]
See HOWLAND, Translating the West 2002, pp. 64–66; LEE, Traduction et circulation des termes de droit 2004.

  12

 
3. History of the European Public Law of the Treaties between States in East Asia
Between 1854 and 1869[17]
For a discussion of the discrepancies in perception see ZÖLLNER, Verschlossen wider Wissen 2003. Mizuno Tadaakira, Director of Financial Administration, issued an edict only in 1825 according to which all foreign vessels had to be repelled which were not travelling with a landing permission for Nagasaki. Even vessels with a landing permission could only land in Nagasaki port. See Chukai 1932. Accordingly, the 1846 expedition by Commodore James Biddle failed to accomplish its goal of landing in Japan to »open« the country for trade. Japanese port officials in Nagasaki turned away Biddle’s ship on account of the edict.
the governments of the USA and some European states concluded treaties of peace and amity with Japan under the declared intention of entering into friendly relations and of laying the legal foundations for trade. In attempting to do so they materially combined peace and amity agreements with treaties of trade. Treaties thus came into existence which, in as far as they contained a somewhat elaborate protocol, had the task of »opening« trade between Japan and its partners after peace and amity had been established. The supposition underlying these treaties derived from the long standing European and North American view that Japan had been »closed« to the outside world, even though in Japan itself, there was no constitutional provision in force that »closed« the country as a whole. The fusion of the formulary of peace treaties with that of treaties of trade entailed texts that put together legal principles that required specific regulations in separate legal instruments. While peace treaties, as in the case of the Treaty of Nanjing, were prone to associating reciprocity of general provisions with inequality of special dispositive stipulations, treaties of trade ought to comprise reciprocal specific provisions in order to establish mutually beneficial free trade rules. Yet the treaties concluded with Japan during the period between 1854 and 1869 featured mostly unequal specific dispositive stipulations. In doing so, they followed the conventions of making peace treaties, even though none of the American and European signatory parties had previously been engaged in war with Japan. That these treaties followed an established formulary is still today recognizable from the fact that even later treaties that the governments of the USA, the United Kingdom, Russia and the Netherlands concluded in succession to their first treaties with Japan, continued protocols establishing a lasting bilateral peace and amity. Hence, although the treaties signed between these governments and the Japanese side between 1854 and 1856 had already constituted peace and amity, their successor treaties did so again without any legal necessity whatsoever.[18]
For the subsequent treaties see below, notes 36–53.
Moreover, some governments were explicit in denying reciprocity and equality to Japan with the declared aim to continue to be able to act as self-claimed great powers and write the political distinctions in rank into the legal stipulations of their treaties with Japan.[19]
On the denial of reciprocity as an instrument of great-power politics see OLIPHANT, Narrative 1859, vol. 2, pp. 248–249. ANAND, Family of »Civilized« States and Japan 2003 provides an overview without recognizable use of Japanese sources and in total confinement to the European perspective. Thus the report does not touch upon the issue of the globalization of the European law of treaties between states.

  13

The choice of the formulary of peace treaties, combined with the conclusion of treaties of trade, followed a convention that the government of the USA and some European governments had established in their relations with governments in West and Southeast Asia during the first half of the nineteenth century. The same conventions had already been used in treaties signed between European and African governments in the seventeenth and eighteenth century. Thus Article I of the Siamese-US Treaty of 20 March 1833 contained the general reciprocal provision that there should be perpetual peace between Siam and the USA, while the following articles stipulated unequal regulations concerning the trade relations between Siam and the USA to the benefit solely of the US side. These stipulations focused on the security of US shipwrecks stranded in Siamese waters and the settlement of US citizens in Siam.[20]
Treaty between Thailand and the USA, dated 20 March 1833, in: CTS 83, pp. 211–215, especially Art. I. Likewise the treaty between Muscat and the USA, dated 21 September 1833, in: CTS 84, pp. 38–40.
Already in the treaty concluded on 20 May 1604, King Henry IV of France and the Ottoman Sultan Ahmed established trade relations and agreed that the Sultan was bound to rescue French shipwrecks.[21]
The Republic of Venice concluded treaties of peace and trade with the Turkish Sultan as early as on 20 October 1540, 7 March 1573 and 10 August 1579. See DUMONT, Corps universel diplomatique 1726–1731, vol. 4, part 2, pp. 197–200, vol. 5, part 1, pp. 218–1219, 244–247. French-Turkish Treaty, dated 20 May 1604, in: ibid., vol. 5, part 2, pp. 39–43.
On 10 August 1746, the King of Denmark and Norway and the Bey of Algiers agreed upon regulations for the visit of Danish ships in the port of Algiers. Article I of this treaty established a »perpetual and sincere peace« whereas the following specific dispositive unequal stipulations gave expression only to the rights of Danish crews in Algiers.[22]
Treaty between Algiers and Denmark, dated 10 April 1746, in: CTS 38, pp. 27–35.

  14

The fusion of the formularies of peace or peace-and-amity treaties with those of treaties of trade thus appears to be drawn on the ultimately medieval European notion that legal agreements binding rulers with different religions could only follow from an explicit declaration of peace between the signatory parties. This notion then existed in conjunction with the principle that the ius gentium should be tied to peoples adhering to the same religion and that there was no universally agreed public law of treaties. The people drafting the mid-nineteenth century European and US treaties with Japan were untrained in law and seem to have assumed that the medieval practice limited the validity of legal provisions of treaties between states to signatories with the same religion and thus used the formulary of peace treaties for the treaties of trade. They did so against the then position of legal theorists, who took for granted the universal validity and secularity of the law of treaties between states already in the first half of the nineteenth century.[23]
See MARTENS, Einleitung in das positive Völkerrecht 1796, p. 59; HEFFTER, Völkerrecht 1844, § 82, p. 155. On the law of treaties see also KLÜBER, Europäisches Völkerrecht 1851, §§ 149–151, pp. 169–172; WHEATON, Elements 1889, §§ 252–255, pp. 356–358. Even though Klüber continued to uphold the medieval religious conviction that treaties were »sacred«, he still regarded the making of treaties as acts of secular decision-making.
The fact that the German physician Philipp Franz Balthasar von Siebold, in his private attempts to contribute to the »opening« of Japan at the beginning of the 1850s, used the same formulary of the peace treaties, confirms the assumption that persons untrained in law took for granted that the formulary of the peace treaties was the given framework for agreements with Japan.[24]
For early cases of these treaties in the Middle Ages see FISCH, Krieg und Frieden 1979, pp. 533, 539, 651, 674; GIHL, Legal Character 1957, p. 54; LESAFFER, Westphalia Peace Treaties 1997, p. 94; LESAFFER, Medieval Canon Law of Contract 2000; STEIGER, Völkerrecht und Naturrecht 1997, p. 48; WEHBERG, Pacta sunt servanda 1959. For Siebold see below, note 47. The formulary of the peace treaty continued to be applied towards Japan even in treaties that the same European or US government concluded with the Japanese government after »peace« had already been established on the basis of a treaty between the same signatories. By contrast, the British as well as the US governments refrained from using the formulary of the peace treaty in their instruments with the Ottoman Turkish government during the nineteenth century. They appear to have acted in the consciousness that, by that time, the Ottoman Turkish Empire had already been included into the European system of peace arrangements. See the treaties concluded between Turkey and the United Kingdom on 16 August 1838, in: CTS 88, p. 77–84, and between Turkey and the USA of 7 May 1830, in: CTS 81, pp. 7–24.
As a matter of fact, the instructions issued to the negotiators from the governments of the USA, the United Kingdom, Russia and the Netherlands did not contain any demand that peace treaties ought to be concluded. Likewise, the correspondence between the negotiators and their respective governments displayed no such demands.[25]
The British-Siamese Treaty, dated 18 April 1856, went beyond the stipulation of non-reciprocal rules for bilateral trade, the treatment of shipwrecks and the rights of British subjects in Siam and included the non-reciprocal concession of consular jurisdiction for British subjects in Siam. See the Treaty between Siam and the United Kingdom of 18 April 1856, in: CTS 113, pp. 84–92. The treaty became the model for the Siamese-US Treaty of 29 May 1865, in: CTS 115, pp. 112–22, and for the French-Siamese Treaty of Friendship, Trade and Navigation, dated 15 August 1856 in: CTS 114, pp. 392–403. It needs to be recollected that the American-Siamese Treaty of 1856 was made out and signed by Townsend Harris as the US emissary, who was then on his way to Japan. See HARRIS, Complete Journal 1959, pp. 130–131, 156. FISCH, Krieg und Frieden 1979, p. 11, assumes that treaties of amity did not represent a class of legal instruments of their own but were a variant of the peace treaties. The arguments, however, encounters the difficulty that, as shown through the comparison of the Nanjing Treaty with the Japan treaties, treaties of peace usually contained specific regulations concerning the making and the maintenance of the peace concluded through the treaty, such as the obligation to resort to peaceful conflict solution in the future. By contrast, amity treaties would set peace in general terms and stipulate the modes of future bilateral political relations. The use of the formulary of the peace treaty in amity treaties did not necessarily flow from the intention of stipulating specific provisions of the conclusion and the maintenance of peace.

  15

In any case, the choice of the formulary of the peace treaties resulted in a discrepancy between the protocol manifesting the legal equality of the sovereign signatories, and the dispositions that contained mostly non-reciprocal and thus unequal stipulations. This discrepancy was common to all treaties signed with Japan between 1854 and 1869. The discrepancy also entailed a variety of difficulties of communication between the US and European emissaries and their negotiation partners on the Japanese side. These communicative restrictions touched upon but extended far beyond the ubiquitous problems of translation. The Japanese side could consider only Chinese and Dutch as viable languages of communication. As the emissaries from the USA, the United Kingdom and Russia, arriving in Japan from 1853 onwards, refused to accept Chinese or Dutch as means of communication, all negoatiations between the Japanese government and the negotiators from the USA, the United Kingdom and Russia had to be conducted through Dutch as the intermediate language. But the multiple translations did not only protract the negotiations but invoked the need to conduct special negotiations to the end of establishing community of opinion about the appropriateness of the equation of legal terms in the various languages. As much of the European legal terminology was absent from Japanese usage, establishing equivalence of meaning was a difficult task. While this difficulty became evident in the course of the negotiations, the negotiators on either side were, at the beginning of the negotiations, unaware of the resulting necessity to crosscheck the final versions of the treaties in the various coexisting versions. The Japanese-Russian treaty of 1855 was the first agreement containing a phrase according to which the preliminary versions that had been agreed upon had to be subjected to verification through further editorial procedures. Likewise, the early treaties did not contain stipulations about a third version in a language, such as Dutch, that was accepted as binding by both sides in the case that disagreement might arise about the meaning of a certain word or phrase. Moreover, the US and participating European governments remained unwilling to accept any deviation from the formal conventions of the European law of treaties between states and the legal terminology enshrined in these conventions.

  16

Nevertheless, the Japanese government conducted the negotiations with significantly less willingness to grant trading privileges to their treaty partners than the governments of Muskat and Siam some twenty years before and even the Chinese governent in 1842. The Japanese government did so despite the manifest military threat that the US and the participating European governments were issuing along with the negotiations. The threat was manifest in the number of US, British and Russian warships that arrived in Japanese waters and anchored off the coasts of Edo and Nagasaki. The Japanese government also refrained from attempting to close the seaborne approach to Edo Bay, even though it had launched some measures to fortify some stretches of the coasts in 1851. As late as in September 1860 the Prussian warship Arcona could reach Edo port without being noticed by Japanese coast guards. The conspicuous lack of willingness on the side of the Japanese government to respond defensively and with comprehensive protective measures to the saber-rattling of the US and European negotiators on business in Japan, does not lend support to the view that the Japanese government acted out of a consciousness of military weakness when it was first confronted with external pressure in the middle of the 1850s.[26]
For example see BEASLEY, Great Britain 1951, p. 104; MITANI, Escape 2006, p. 109.

  17

 
4. The Japanese-US Treaty of Kanagawa
 
The US government placed its expedition to Japan under the command of the experienced sailor Commodore Maththew Calbraith Perry, who launched the expedition in 1852 by first crossing the Atlantic to reach Japan via the Indian Ocean and the western Pacific. The government in Edo, who had received intelligence about the US expedition, made efforts to direct Perry to Nagasaki, most importantly because it sought to conduct negotiations with Perry indirectly through subordinate officials stationed in places remote from Edo. But Perry carried with him a letter by US President Millard Fillmore to the »Emperor of Japan«. He thus assumed that he had been instructed to deliver the letter directly to the supreme Japanese ruler whom he imagined to reside in Edo. Thus Perry anchored the ships making up the expedition at Uraga on the offside of Edo Bay on 8 July 1853. In the course of the entire negotiations, Perry would not deviate from his position that the head of the government in Edo was the »Emperor of Japan« and that this government should be regarded as in charge of the foreign relations of Japan. He was also unwilling to renounce his request that at least one port should be opened to US ships on the Pacific side of Honshu, the main island of Japan. Perry specifically insisted upon this request as it was the core goal of the US expedition to obtain access to a Japanese port for US ships on the newly to be established route from California to China. The port of Nagasaki, facing the Asian continent, seemed inappropriate as it would require US ships to spend more time on their trans-Pacific voyages before reaching a Japanese port. In both respects, Perry set precedents. The government in Edo itself conducted the negotiations on the Japanese side rather than asking subordinates to act as contact agencies towards the incoming foreigners. The government in Edo concluded all treaties with foreign governments in the name of the Shogun rather than involving the Tenno residing in Kyoto until 1868, even though the Tenno was constitutionally in charge of managing foreign relations. The main result of all negotiations that the government in Edo had to conduct with emissaries from abroad following Perry, was the »opening« of seaports in Hokkaido and Honshu that foreign ships could easily reach on Pacific routes. Perry decided to interrupt the negotiatons in Edo by making a cruise to the Ryukyu Islands and concluded a treaty with the government there.

  18

Upon his return from the Ryukyu Islands, Perry succeeded in signing a treaty between Japan and the USA at Kanagawa [part of present Yokohama] on 31 March 1854. This treaty contained fewest unequal dispositive stipulations compared to all subsequent treaties until 1869. The preamble specified the two signatory parties as sovereigns. Both the English and the Japanese version featured the same sequence in placing the President of the USA first and the Shogun second. The Shogun appeared as Nihon Taikun in the Japanese version and as »August Sovereign of Japan« in the English version, that is, without the use of the word Emperor in the title. The use of the same sequence for the signatory rulers in both the English and the Japanese versions was the lasting consequence of the genesis of the treaty itself. Perry wrote the first draft that Japanese officials then rendered into Japanese through Dutch. All later changes were inserted into that original draft. Hence the making of the Kanagawa treaty testified to the fact that the Japanese government, in 1854, had no formulary for treaties between states at its disposal. Instead, it then had to rely on Perry’s lay expertise for the draft of the treaty.[27]
In 1854, the Japanese government was thus in a position similar to that of the Chinese government when it made the Treaty of Kiachta with Russia in 1727 (see above, note 14). On that occasion, the Chinese government availed itself of the services of Jesuit missionaries doing work in China. Thus the original of the Treaty of Kiachta was written out in Latin.
As there was no formulary on which the government in Edo could draw, it had to take over the European conventions of the law of treaties between states.[28]
Perry refused to accept any Japanese request concerning the procedure of making bilateral agreements between states and insisted that US conceptions of human rights had to be recognized as universally applicable. Without the recognition of human rights as universal by the Japanese government there could not be amity between Japan and the USA. See PINEAU, Japan Expedition 1968, p. 105. Perry also refused to respect the Japanese request that the negotiations should be conducted at Nagasaki (ibid., pp. 168–169). On Perry’s first draft see HAWKS, Narrative 1856, pp. 409–410. Dai Nihon Ishin Shiryo 2, part 3 (1882), p. 402. On the negotiations see the recent study by MITANI, Escape 2006, pp. 182–198.
Nevertheless, the Japanese government understood the logic of these conventions very quickly. Already the following treaty with the United Kingdom featured the Shogun first in the Japanese version of the preamble, while the British Queen took the first place in the English version.

  19

Following the preamble, the Treaty of Kanagawa contained the statement that both signatory parties were willing to conduct their future relations in peace and amity.[29]
Treaty between Japan and the USA of 31 March 1854 [Treaty of Kanagawa], Preamble and Art. I, in: Treaties and Conventions Japan 1874, pp. 1–2. Also in: CTS 111, pp. 378–387. The edition of 1874 is official in character and has the treaties in the Japanese and the various vernacular versions. The US expedition gave incentive to a translation of an older historical inquiry into the relations between Europe and Japan. See MEYLAN, Geschichte des Handels der Europäer 1861. The Dutch government assisted the US government in the preparation process by making accessible to the US maps from the Siebold collection. Yet the Dutch government placed its assistance under the condition that mission would become a »friendly visit«. See Charles-Ferdinand Pahud, [Letter to Duymaer van Twist, dated 17 July 1852], in: SHEWMAKER, Papers of Daniel Webster 1983–1987, vol. 2, p. 304. George Folsom, US envoy to the Netherlands, received permission to consult the maps in the Hague in 1852. See Folsom’s letters to Daniel Webster, dated 20 March 1852 and 14 June 1852, in ibid., pp. 299–301, 301–302. The US government then had no access to an edition of Siebold’s multi-volume printed work on Japan.
To that end, there was reciprocal assurance that either side would rescue and provide shelter to shipwrecks from the other side,[30]
Treaty of Kanagawa, Art. III., IV., V. VIII. and X. in: Treaties and Conventions Japan 1874, pp. 2–3. The inclusion of this article may have been the result of the so-called Morrison affair. This US vessel had arrived from China in Nagasaki in 1837, seeking to repatriate three Japanese shipwrecks who had been driven across the Pacific and made landfall on the Northwest American coast. Daniel Webster, then Secretary of State for Foreign Affairs, emphasized in his diplomatic correspondence on the preparation of the Perry mission in the year 1851 that he had been advised to raise the treatment of shipwrecks as a US demand towards Japan. See Daniel Webster, [Letter to William Alexander Graham, dated 9 May 1851], in SHEWMAKER, Papers of Daniel Webster 1983–1987, vol. 2, p. 288. Perry referred to the Morrison incident in his negotiations with the government in Edo using the argument that the human rights of shipwrecks ought to be protected. See Perry‘s letter to the »Emperor of Japan«, dated 7 July 1853, in: PINEAU, Japan Expedition 1968, p. 105. Negotiators on the Japanese side responded by saying that human rights had always been protected in Japan. See [Report of the Amerika Osetsu to the Roju of 2 April 1854], in: Bakumatsu Gaikoku Kankei Monjo 5, pp. 478–485 [English version in BEASLEY, Select Documents 1955, pp. 122–127]. Nevertheless, it needs to be noted that the rescue of shipwrecks had previously been the issue of provisions in bilateral treaties, such as in the Turkish-Venetian Treaty of 1540 and in the French-Turkish Treaty of 1604, DUMONT, Corps universel diplomatique 1726–1731, vol. 4, part 2, pp. 198, and vol. 5, part 2, p. 40.
even though the Japanese act of 1633 preventing overseas travel was still in force in 1854.[31]
The prohibition was lifted in 1866.
The Japanese side granted the privilege to US crews to visit merely the ports of Shimoda and Hakodate, where they were entitled to acquire food, fuel and other necessity for the voyages on their steamships (Articles II and X). Articles VI and VII regulated that all further trading activities between US crew members and subjects of the Shogun were strictly conditional to specific license from the Japanese government as well as subject to laws that were to be enacted in the future. Moreover, there is a provision through which the US government received entitlement to dispatch a diplomatic envoy to Japan (Article XI). The Japanese side also accepted the obligation to grant most-favoured-nation status to the USA (Article IX). The US government, however, granted none of these three privileges to the Japanese government. There is no exemtion of US citizens from Japanese law. But Article V states explicitly that US citizens should not be governed to the same strict rules of conduct then applying to Chinese and Dutch residents in Nagasaki. The status of US citizens in Japan appears to have been placed above that of Chinese and Dutch residents in Nagasaki through the stipulation that US citizens received permission to move »freely« in a wider area than Chinese and Dutch residents.[32]
Treaty of Kanagawa, in: Treaties and Conventions Japan 1874, pp. 2–4. As a matter of principle, not only the US government was early to accept reciprocity of limitations regarding the freedom of travel within the territory of a signatory partner. Thus the British government respected restrictions of travel in the territory of the Ottoman Turkish Empire and the Kingdom of Siam in its treaties with the Turkish Sultan and the King of Siam of the early nineteenth century.
However, there is no reference to the »opening« of Japan in the Treaty of Kanagawa. Even in the treaty ports, trade remained severely regulated and thus far from »free«, as any unlicensed acquisition of goods beyond the specifically designated items and for trading purposes was strictly forbidden.[33]
In accepting these conditions, Perry followed Westster’s instructions. In his letter to John H. Aulick, Commander of the US East India Squadron, initially considered as the head of the US Japan expedition, Webster had given the instruction that the expedition should only search for possibilities to purchase coal in Japan for US steamships. See Daniel Webster, [Letter to John H. Aulick, dated 10 June 1851], in SHEWMAKER, Papers of Daniel Webster 1983–1987, vol. 2, pp. 290–291. However, John Glynn, Supreme Commander of the US Navy, argued, sidetracking Webster, that the US population would soon demand the conclusion of a general treaty of trade and therefore proclaimed the goal of »opening« Japan for world trade as the goal of the expedition. Glynn assumed that the demand for the »opening« of Japan for trade in general would also alleviate potential criticism by British traders active in China that the US might be trying to make arrangements with Japan to the disadvantage of British traders. See John Glynn, [Letter to President Millard Fillmore, dated 10 Juni 1851], in SHEWMAKER, Papers of Daniel Webster 1983–1987, vol. 2, pp. 292–293. See for the involvement of Siebold in the planning of the expedition BARROWS, The Great Commodore 1935, pp. 223–224; FRANZ, Siebold and Russian Policy 2005, pp. 74–81. Siebold made an effort to become a member of the expedition but the US government declined his request. See MORISON, Old Bruin 1967, p. 276.
The concessions that the Japanese government granted to Perry, remained confined to the general rules governing the hospitality for sailors. In 1854, the Japanese government successfully withstood the pressure of the US government to admit »free« trade. The Treaty of Kanagawa was a treaty of amity, not a treaty of trade and amity.

  20

After the treaty had been signed, some controversy arose about the regulation concerning the dispatch of a US diplomatic envoy. The controversy arose from differences in wording between the Japanese and Chinese versions on the one, the Dutch and English versions on the other side. The versions in the East Asian languages ruled that »both governments« (in Japanese: ryogoku seifu) would have to agree, if, after the lapse of eighteen months from the signing of the treaty, the US government should decide to dispatch the envoy. By contrast, the two versions in European languages prescribed that the US government was entitled to send an emissary eighteen months after the signing of the treaty »provided that either of the two governments deem such arrangement necessary«. The US government derived from the English version its claim that it was entitled to dispatch the envoy even without agreement from the Japanese side. But that claim contradicted not only the Japanese and Chinese versions but also the logic of the stipulation itself. This was so because an agreement according to which – literally understood – a right was granted unilaterally not only to the US side but also to the Japanese side to dispatch a diplomatic envoy, made no sense at all. Such a stipulation would have had to read in the English version that both sides had agreed that the US government was entitled to send the envoy should it deem such act necessary. Therefore, the reason for the controversy was not merely the superficiality of the check of the Chinese version that the US translator Samuel Wells Williams and his teacher of Chinese Luo Shen were undertaking. Instead, both sides were not familiar with the legal base for the dispatch of diplomatic envoys,[34]
Treaty of Kanagawa, in: Treaties and Conventions Japan 1874, p. 4. WILLIAMS, Journal 1910, p. 152. There are the following printed travel reports related to the US expedition: HEINE, Reise nach Japan 1856; HILDRETH, Japan 1860; HAWKS, Narrative 1856; PINEAU, Japan Expedition 1968; TOMES, Japan 1859; BEASLEY, Perry Mission 2002. On the expedition see BEASLEY, Great Britain 1951, pp. 87–112; LAFEBER, Clash 1997, pp. 9–17; GRIFFIS, Perry 1890; MITANI, Escape 2006, pp. 117–41, 179–220; MORISON, Old Bruin 1967; STATLER, Black Ship Scroll 1963; WALWORTH, Black Ships off Japan 1966; WILEY / KOROGI, Yankees in the Land of the Gods 1990. Perry concluded a similar treaty in the name of the US government with the government of the Ryukyu Kingdom on 11 July 1854, in: CTS 112, pp. 78–79.
even though this base had long been established in the seventeenth and eighteenth centuries.[35]
See WICQUEFORT, Embassador 1716, pp. 2, 121–122, 246, 275, 277, 279, 281, 335, 337, 371.

  21

 
5. The British-Japanese Treaty of Nagasaki
 
Already in the 1820s, the British government had launched projects to establish official relations with the government of Japan. The Japanese government had consistently rejected these attempts. It had done so not merely because of the order of 1825 demanding to turn away all foreign ships except those coming from China and the Netherlands but also because of the negative experiences resulting from the Phaeton incident at Nagasaki in 1808. In that year, the British warship HMS Phaeton had sought to enter Nagasaki port, the crew claiming that the former Dutch stronghold at Batavia had been transferred to the government of the United Kingdom. The British crew insisted that it had taken over privileges from the Netherlands regarding colonial settlements and should therefore also be allowed to do landfall at Dejima Island in Nagasaki. The Nagasaki authorities rejected the request arguing that they had no intelligence of the transfer and continued to regard the Netherlands as in existence. The British ship withdrew only after attempting to use force, when the crew was convinced that it had no prospect of winning a military engagement.[36]
See ASTON, Phaeton in Nagasaki 1879.
 
The government in Edo forced the Daimyo of Saga, into whose jurisdiction Nagasaki fell, to take responsibility and the relations between the Daimyo and the central government remained strained well into the 1850s. Still at the time when the Perry expedition arrived in Japan, the Phaeton incident was well remembered in Edo.[37]
WILLIAMS, Journal 1910, p. 220; MITANI, Escape 2006, p. 225.
In the meantime, the British Admiralty had claimed the Ogasawara (»Bonin«) Islands for the United Kingdom already in 1827 and, from the signing of the Treaty of Nanjing in 1842, added pressure to its request that ports on Japanese territory should be »open« for British ships cruising in the Pacific. The main concern on the British side then was not trade but protection of the recently founded and still poorly developed Crown Colony of Hong Kong against Russian vessels operating in the northern Pacific. However, when the British government decided in 1853 to launch a joint campaign with the French government against Russia in the Black Sea, which subsequently has come to be known as the Crimean War (1853–1856), it issued an order to the administration of its Crown Colony in Hong Kong to postpone the quest for the »opening« of Japan and give priority to measures for the protection of Hong Kong Island against possible Russian reprisals. Moreover, the British government wished to keep a low profile in the western Pacific as it had neither the willingness nor the means to open a further front against Russia off the East Asian coasts.

  22

However, James Stirling, a naval officer stationed in East Asia who knew of Perry’s arrival in Japan, staged an expedition to Nagasaki at his own discretion and ignoring government instructions. In 1854 he sailed to Nagasaki under the post-factum constructed intention of inquiring with the Japanese government about its position in the conflict between the United Kingdom and Russia. As Stirling gave no prior information about his intentions, they have remained in the dark. In any case, Stirling reached Nagasaki in September 1854 to submit a formal request to the Governor of Nagasaki (Nagasaki Bugyo). The document contained the question how the Japanese government intended to reply in the case that it received request to open its ports for the parties contending in the Black Sea. The document was produced and submitted in English. It was rendered into Japanese with the assistance by the director (Opperhoofd) of the Dutch settlement on Dejima, Jan Henrick Donker Curtius. Curtius had already conveyed intelligence to the government in Edo that British ships were planning an expedition to Japan. The English text was first translated into Dutch and then from Dutch into Japanese. In the eventual Japanese version, Stirling’s inquiry took the form of a formal British request for the »opening« of Japanese ports for British warships. In his original text, Stirling had presented the argument that the British government had to make sure that Japanese ports would not be available for Russian ships at the disadvantage of the British side. The Nagasaki Bugyo passed the matter on to the government in Edo which concluded that Stirling was pressuring the Japanese government to side with the United Kingdom in its conflict with Russia. The Japanese government thus replied with a concession to Stirling saying that British ships could use the ports of Nagasaki and Hakodate, the latter of which had become available for US ships, and the port of Shimoda when requested. The British government could receive entitlement to use these ports at the same conditions that had been granted to US ships. The Japanese government took this stance because it did not want to add to its difficulties with Russia. While Stirling was at Nagasaki, negotiaitions between the Japanese and Russian governments were ongoing, and the Japanese government was reluctant to make concessions to the British side that the Russian government might find offending.[38]
The most significant source on Stirling’s negotiations are: Correspondence Japan 1856, pp. 220–221, 225. Dai Nihon Komonjo. Bakumatsu Gaikoku Kankei Monjo 7 (1915), Nr. 18, pp. 39–63, Nr. 55, pp. 147–150, Nr. 79, pp. 214–217, Nr. 85, pp. 247–253, Nr. 133, pp. 374–383, Nr. 137, pp. 385–390, Nr. 141, pp. 408–410, Nr. 142, pp. 410–418, Nr. 148, pp. 425–427, Nr. 151, pp. 439–441. VOS-KOBAYASHI, Bakumatsu Dejima mikokai monjo 1992, pp. 90–100. Following Beasley, historians have often traced the differences of wording between the English and the Japanese versions of Stirling’s letter to the lack of language competence of the only Japanese person then present in Nagasaki and having some command of the English language. The person was Otokichi, one of the survivors whom the Morrison crew had sought to repatriate in 1837. The British government had employed Otokichi in Shanghai and arrived at Nagasaki on board of Stirling’s vessel. See BEASLEY, Great Britain 1951, p. 116. MITANI, Escape 2006, pp. 223–226. It is not possible to prove this postulate. By contrast, it is possible to point to records showing that the Nagasaki Bugyo as well as the government in Edo recognized the danger of being drawn into a conflict not concerning Japan. As Stirling’s initial intention has remained unascertainable, the assumption remains possible that the Japanese government could have been justified in believing that Stirling wanted to conclude a British-Japanese alliance against Russia. Close contemporary reports on Stirling’s mssion are in OLIPHANT, Narrative 1859; OSBORN, Cruise 1859; OSBORN, Japanese Fragments 1861; RENNIE, British Arms 1864; TILLEY, Japan 1861; TRONSON, Personal Narrative 1859; WESTFIELD, The Japanese 1862. On British-Japanese relations in the 1850s see BEASLEY, Great Britain 1951, esp. pp. 113–193. BEASLEY, Collected Writings 2001; CORTAZZI, Victorians in Japan 1987; CORTAZZI / DANIELS, Britain and Japan 1991; CORTAZZI, Sir Rutherford Alcock 1994; CORTAZZI, British Envoys 2004; DANIELS, Sir Harry Parkes 1996; ECKEL, Crimean War and Japan 1944; FOX, Anglo-Japanese Convention 1941; FOX, Great Britain and Japan 1969; FRANZ, Siebold and Russian Policy 2005, pp. 81–84; MITANI, Escape 2006, pp. 221–234; NISH, Britain and Japan 1994–2005; STEPHAN, Crimean War 1969. Despite the views articulated by Beasley, Eckel, Mitani and Stephan (see above) British sources on Stirling’s expedition do not yield unequivocal evidence that, in the view of the British government, specifically the Admiralty, the »opening« of Japan had any connection with strategic planning in the context of the Crimean War. Solely the negative argument is on record that the British government was unwilling to open a new front in its conflict with Russia.
 
Stirling, who had travelled without government instruction, had to return with a result, unless he wanted to face the risk of disciplinary prosecution. Therefore, he accepted the Japanese offer without much hesitation but under the condition that the government of Japan would also refuse to grant the general use of Japanese ports to Russia as well. The treaty that Stirling signed eventually on 14 October 1854, still bears the marks of the substantial haste in which it had been concluded. It features no preamble determining its purpose and consists of a minimal protocol naming the persons signing the treaty but not the signatory parties. By then as by current standards of the European law of treaties between states, it has been an invalid instrument as it is not a formal agreement between states and was negotiated and signed by a person who had not been appointed as a representative of the United Kingdom.[39]
For normative statements relating to the requirement that signatory parties should be represented by formally appointed agents see SCHMELZING, Grundriss 1818–1820, §§ 373–383, vol. 2, pp. 294–315, HEFFTER, Völkerrecht 1844, § 84, pp. 159–160; KELSEN, Staatslehre 1925, p. 123; REUTER, Introduction 1989.

  23

While the Japanese-US Treaty of Kanagawa featured more reciprocal than non-reciprocal dispositive articles, the British-Japanese Treaty of Nagasaki contained no reciprocal articles at all. The dispositive stipulations were thus totally unequal, even though the rudimentary protocol stipulated equality of the treaty. The Treaty of Nagasaki was the first agreement stating for the Shogun the title »His Imperial Highness the Emperor of Japan« in the preamble to the English version. The Japanese version has the title Taikun as in the Treaty of Kanagawa. The dispositive provisions remained confined to general regulations concerning hospitality for sailors (Article III), the most-favoured-nation clause (Article V) and the admission of British ships to the ports of Nagasaki and Hakodate for the acquisition of food and fuel for the crews (Articles I and III). Moreover, the treaty explicitly placed British subjects in Japan under the rule of Japanese law (Article IV) and ruled that violations of the treaty by higher ranking officers would entail the closure of Japanese ports for British ships. Although before Stirling’s mission, the British government had displayed more determination than the US government to impose conditions similar to those of the Treaty of Nanjing but without resorting to military force, it had only limited success. The Japanese government did not even grant the privilege of the dispatch of a diplomatic envoy from the United Kingdom, even though, as this privilege had been granted to the USA, the British government benefited in this respect from the most-favoured-nation clause. Yet, contrary to the Treaty of Kanagawa, the Treaty of Nagasaki restricted the range of the most-favoured-nation clause in stating explicitly that British subjects would not be granted the privileges that Chinese and Dutch settlers in Nagasaki were enjoying.[40]
Treaty between Japan and the United Kingdom of 14 October 1854 [Treaty of Nagasaki], Preamble, in: Treaties and Conventions Japan 1874, pp. 6–7. Also in: CTS 112, pp. 246–250. The articles of the dispositive part contain only rules relating to British subjects in Japan. BEASLEY, Great Britain 1951, p. 127, was wrong in maintaining that the provision comparing the status of British subjects to that of Chinese and Dutch settlers at Nagasaki was only contained in the English and not in the Japanese version. In fact, this provision is also in the Japanese version. See Treaty of Nagasaki, Art. V, in: Treaties and Conventions Japan 1874, p. 7.
British settlers in Japan thus appeared in a position that was weaker than that of Chinese and Dutch settlers. The Japanese government continued to succeed in its refusal to concede general rules of free trade.

  24

The British government was thus dissatisfied with the result of Stirling’s mission. After the end of the Crimean War, it decided to try again. According to the instruction by George William Frederick Villiers, 4th Earl of Clarendon, then Secretary of State for Foreign Affairs, to the director of the new expedition, the Earl of Elgin, the purpose of the new mission was to conclude a treaty on the same footing as the Treaty of Nanjing. That goal explicitly included the acquisition of privileges for the British side equal to those that the Chinese government had granted in 1842. That meant the »opening« of Japan for generally free trade without restriction to the nationality of the traders. Clarendon insisted that the British government was giving priority to the recognition of the freedom of trade as an act of the promotion of »civilization« throughout the world and that, by consequence, if was in British interest if the Japanese government could be pressured to »open« the country to the world at large. Elgin who did business in Japan from 17 to 31 August 1858, replied in his report that he had succeeded in accomplishing this goal, even though he had merely succeeded in arranging for the opening of a few more ports for British ships. Nevertheless, he insisted that the door for an incremental establishment of trade and friendship relations between Japan and Western nations had been opened. And he displayed his optimism that relations between Japan and the United Kingdom would become intimate if the West refrained from unjust and aggressive acts against the »natives«.[41]
Instruction of the Earl of Clarendon to the Earl of Elgin, dated 20 April 1857, London, National Archives, FO 405/2, p. 23. Elgin’s report to the Earl of Malmesbury, dated 20 August 1858, ibid., pp. 630–631. The treaty has been printed in: Treaties and Conventions Japan 1874, pp. 111–129. Also in CTS 119, pp. 402–412.
 
Still, the British side remained reluctant to view its relations with Japan in exclusively positive terms. Laurence Oliphant, the Scottish secretary to Elgin’s mission, gave vehement expression to the widely existing feeling of unease. Oliphant who had survived an assassination attempt during his second stay in Japan in 1861, continued to suffer from the injuries throughout the rest of his life and thus bore some grudge against Japan. However, even before his suffering began, his semi-official report on the Elgin mission, published five years after the signing of the Treaty of Nagasaki, had complained that the British government had failed to succeed in »opening« Japan for free trade. He gave advice to the British government to reserve for itself the military option to subject Japan to British colonial rule.[42]
Oliphant suffered from a cut of his arm by a sword, in consequence of which three fingers remained lame. He returned to the UK in the same year 1861 with a letter of apology that the Shogun had addressed to Queen Victoria. He then moved on to the USA. He reported on the incident in his autobiographical writings. See OLIPHANT, Episodes 1887, pp. 185–211. On Oliphant see OLIPHANT, Memoir 1892. Oliphant‘s positions concerning British political attitudes towards Japan are recorded in OLIPHANT, Narrative 1859, vol. 2, pp. 248–249. Oliphant’s contemporary Osborn was no less optimistic. See OSBORN, Cruise 1859, p. 47.
In fact, the deployment of military forces could then appear as a realistic option towards Japan, as 31 foreign ships arrived in Hakodate port in 1855,[43]
Hakodate-shi 1990, p. 52. MORMANNE, La prise 2004, pp. 209–210.
nineteen of which were warships, while fifteen ships were anchoring in Yokohama port in 1862.[44]
Caspar Brennwald, [Tagebuch], edited by IMMOOS, Eidgenossen 1982, pp. 35–36.
Yet Oliphant left no doubt that he expected British trade with Japan to flourish and that he did prefer peaceful means as the cheaper way to accomplish the goal of enforcing the principles of free trade. He insisted that the British government should, and would be able to, make use of its self-claimed competence to enforce the general principles of free trade, of international public law and of public diplomacy in its relations with East Asian states.

  25

The first British minister resident in Japan, Rutherford Alcock, arriving in 1859, was more skeptical than Oliphant. While on home leave in 1861, Alcock gave a lecture to the Royal Geographical Society, then a thinktank for government colonial policy. In his lecture, Rutherford gave his assessment of the prospects for British trade in Japan. He differed fundamentally from most of his contemporaries in renouncing the otherwise common optimism. Instead, he predicted low profits for British traders doing business in Japan, because Japanese craftsmen, in Alcock’s opinion, were capable of producing by themselves the main commodities required in Japan and had an effective distribution system at their disposal. At the same time, however, Alcock opined that there was a traditional warrior caste reaping much of the profit generated by the craftsmen and the traders. He believed that the common population would have little capability of purchasing expensive foreign products. Moreover, Alcock predicted, in 1861, a period of fundamental domestic instability in Japan, expecting that what he termed the »feudal« social order would undergo thorough changes, equivalent of a bourgeois revolution. He thus concluded that there was little prospect for big capital gains from trade with Japan. The established government goal to lead Japan into the world market appeared to Alcock to be of lesser significance than the generating of profits for individual traders.[45]
ALCOCK, Extracts 1861; ALCOCK, Capital 1863, pp. 282–283.

  26

 
6. The Japanese-Russian and the Dutch-Japanese Treaties
 
Since the end of the eighteenth century, the Russian government had launched repeated attempts to establish relations with Japan.[46]
On the history of Japanese-Russian relations leading up to the treaty see ADAMI, Schwierige Nachbarschaft 1990; BARRATT, Russia in Pacific Waters 1981; LENSEN, Importance of Tsarist Russia 1957; LENSEN, Russian Push 1959; RAMMING, Über den Anteil der Russen 1926.
From the beginning of the 1850s, private initiatives are on record requesting the Dutch and Russian governments to persuade the government of Japan to »open« the country.[47]
Already the years 1851 and 1852 witnessed efforts to induce the Dutch and the Russian governments to request the »opening« of Japan. They appear to stem from Philpp Franz Balthasar von Siebold who initially pressured the Dutch government to conclude a treaty with Japan and, once this initative had been fruitless, sent two drafts for a treaty to the Russian government. Siebold’s drafts have been preserved in the Algemeen Rijksarchief in the Hague, Kolonien Geheim Verbaal 5831 # 38, in the private archives of the Earl of Brandenstein-Zeppelin at Schloss Brandenstein, Ms 5, Ms 40, Ms 45, and in the Central Archive of the Russian Navy in St. Petersburg, 296 f. 75a, fol. 1566r–v. Japanese versions have been edited by Masahide Miyasaka in MIYASAKA, Various Works 1994-1995. FRANZ, Siebold and Russian Policy 2005, pp. 154–161, prints English versions of Siebold‘s German texts. On Siebold’s activities see FRANZ, Siebold’s Endeavors 2002; FRANZ / YOSHIDA, Siebold’s Correspondence 2003; FRANZ, Siebold’s Influence 2003; FRANZ, Siebold and Russian Policy 2005, passim; HENKER, Siebold 1993; KOUWENHOVEN / FARRER, Siebold and Japan 2000; KURE, Siebold 1997; KUTSUZAWA, Activities of Siebold 2000; MACLEAN, Siebold 1978; PLUTSCHOW, Siebold 2007, pp. 47–101, 149–164; RAMMING, Einige Mitteilungen 1982.
The expedition that the Russian government entrusted to the leadership of Evfimii Vasilevich Putiatin early in 1853 was part of that tradition. Putiatin journeyed to Japan via the Baltic and the North Sea. Because of the need to repair ships on the way, he arrived in Nagasaki only after Perry, on 21 August 1853. The negotiations Putiatin wished to conduct with the government of Japan proved to be thorny as the Japanese side had to face the expeditions from the USA and the United Kingdom simultaneously. These difficulties resulted in the negotiations with Russia being suspended at Nagasaki. They were resumed at Shimoda only towards the end of 1854, after the treaties with the USA and the United Kingdom had been concluded. The Japanese side was thus in a position to base its final negotiations with Putiatin on the precedents that the previous treaties had set.

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The Japanese-Russian Treaty of 7 February 1855 used the title »Zyne Majesteit de Groote Heerscheer van geheel Japan« in the preamble (again Taikun in the Japanese version). The use of the Dutch language in lieu of Russian was due to two factors, first the lack of availability of translators familiar with Russian and, second, the existence of treaty drafts made in Russia before the departure of the Putiatin mission. The Dutch resident and physician Philipp Franz Balthasar von Siebold had submitted these drafts early in the 1850s using Dutch as the means of communication. The title used in the Dutch version for the Shogun is a variant of the title used in the Treaty of Kanagawa. However, even though the Japanese-Russian Treaty drew on some formulae enshrined in previous treaties, it did contain a number of new stipulations. For the first time, one of the stipulations referred to trade in general terms, turning the entire agreement into a combined treaty of peace, amity and trade.[48]
Treaty between Japan and Russia of 7 February 1855 [Treaty of Shimoda], Preamble and Art. I, in: Treaties and Conventions Japan 1874, pp. 9–10. Also in CTS 112, pp. 468–471.
Article IV prescribed the mutual obligation to rescue shipwrecks, while Article VIII stipulated the capability of movements of Russian subjects in Japan and Japanese subjects in Russia. The article granted to local government institutions the right to arrest persons found to have infringed upon the law, while determining that the law according to which these persons were to be sanctioned should be the law of their country of origin. As the range of Article VII was explicitly restricted to criminal law, the law of the territory was to be applied to other cases, specifically those of civil law. Both articles were reciprocal, as Japan and Russia were treated in the treaty as having a common border. Hence subjects of either government could be envisaged as coming under the sway of the provision enshrined in these and other (II, VIII) articles. Yet beyond these articles, the divide between the reciprocal protocol and non-reciprocal dispositive articles was fully applied. The treaty thus obliged only the Japanese side to implement the rules of free trade dictated by the Russian side, which could control the implementation process through its diplomatic envoy (Articles VI, VII). By contrast, the Japanese-Russian Treaty, like its predecessor treaties, did not provide for the possibility of the dispatch of a Japanese envoy to Russia. Although the Japanese government continued to adhere to its stance that only a limited number of ports should be »opened« for Russian vessels, namely Shimoda, Hakodate and Nagasaki, it did consent to allowing Russian crews to engage in trade beyond the mere provision of food and fuel in the treaty ports. An additional provision featured in the appendix to the treaty explained Article VI to the extent that Russians could live in their consular residence according to Russian customs and laws. The formula made possible the interpretation that Russians had been granted extraterritorial status on Japanese soil. The most-favoured-nation clause, contained in the previous treaties, allowed the other two treaty partners to claim the same privilege (Article IX).[49]
Treaty of Shimoda, in: Treaties and Conventions Japan 1874, pp. 10–12. On the personality of law see FRANZ, Siebold and Russian Policy 2005, pp. 160–161. MITANI, Escape 2006, p. 251, mistakingly equated personality of law with extraterritoriality. Therefore, his statement that the treaty was reciprocal in terms of extraterritoriality is wrong.
Still, the Japanese-Russian Treaty of 1855 was a border recognition treaty, clad in the formulary of a treaty of peace, amity and trade.

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The Dutch-Japanese Treaty of 30 January 1856 took a special place in this series as there was a long tradition of communication and exchange among these two signatory parties. Since the establishment of the Kingdom of the United Netherlands early in the nineteenth century, these relations had taken the shape of relations between states.[50]
As long as the Dutch East India Company (VOC) existed, that is until 1798, the relations between Japan and the Netherlands were perceived differently on either side. Whereas they were relations between states from the point of view of the Japanese government, which treated the VOC as an agent of some Dutch kingdom, from the point of view of the VOC they were relations between a chartered private trading company and Japan, that did not involve the States General as an actor. See CROISSANT, Japan und Europa 1993; SCHMITT, Kaufleute 1988. The forced inclusion of Japan into the European dominated world market gave reason to several publications seeking to document the historical depth of Dutch-Japanese relations as well as Dutch government efforts to »open« Japan. See BLEY, Politik der Niederlande 1855; CHIJS, Neêrlands streven 1867; DOREN, Openstelling van Japan 1861; POMPE VAN MEERDERVOORT, Vijf jaren 1867–1868; SIEBOLD, Geschichte der Entdeckungen 1852; SIEBOLD, Urkundliche Darstellung 1854.
The treaty remained within the established practice of stipulating the legal equality among the signatory parties but deviated from the predecessor treaties in expanding upon the general formulary of the treaty of peace and amity.[51]
Treaty between Japan and the Netherlands of 30 January 1856, Preamble, in: Treaties and Conventions Japan 1874, p. 15. Also in: CTS 114, pp. 226–229 (Dutch version), pp. 230–233 (English version).
The Dutch-Japanese Treaty became the first to explicitly establish consular jurisdiction for the Dutch government over its citizens residing in Japan. It did so through the unequal Articles II and III in its main part, so that consular jurisdiction became a privilege reserved to the Dutch government and denied to the Japanese side.[52]
Dutch-Japanese Treaty, in: Treaties and Conventions Japan 1874, S. 16 Art. II and III. On consular jurisdiction in Japan see CHANG, Justice 1984; HOARE, Extraterritoriality 1983; JONES, Extraterritoriality 1931.
Similarly unequal were the concessions by the Japanese regarding the privileges of the freedom of movement of Dutch citizens in designated areas, of trading with citizens or subjects from other countries as well with Japanese subjects within the city of Nagasaki, and of the right to carry weapons (Articles I, V, XII, XII and XXIII). For the rest, the treaty confirmed earlier regulations stemming from the period of Dutch privileged trade in Japan, concerning the construction of residential buildings and warehouses on Dejima (Article XII), the storage of trading goods on Dejima (Article XIX) and presents (Article XXVI).[53]
Dutch-Japanese Treaty, in: Treaties and Conventions Japan 1874, pp. 16, 18, 20, 21. The Dutch side interpreted the provision in Art. XI as the guarantee of a free-trade zone on Deshima and, in the negotiation for a new treaty in 1858, insisted upon maintaining this alleged privilege. See MACLEAN, Siebold 1978, p. 64.

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7. The Ansei Treaties
 
Between July and October 1858, the government in Edo concluded a series of five treaties in rapid succession and after only short periods of negotiation in each case. The series consists of the second Japanese-US Treaty of 29 July 1858,[54]
Treaties and Conventions Japan 1874, pp. 52–70. Also in: CTS 119, pp. 254–280.
the second Dutch-Japanese Treaty of 18 August 1858,[55]
Treaties and Conventions Japan 1874, pp. 71–89. Also in: CTS 119, pp. 314–332.
the second Japanese-Russian Treaty of 19 August 1858,[56]
Treaties and Conventions Japan 1874, pp. 90–110. Also in: CTS 119, pp. 338–347.
the second British-Japanese treaty of 26 August 1858[57]
Treaties and Conventions Japan 1874, pp. 111–129. Also in: CTS 119, pp. 402–412.
and the first French-Japanese Treaty of 9 October 1858.[58]
Treaties and Conventions Japan 1874, pp. 130–150. Also in: CTS 120, pp. 8–20.
All five treaties have similar formularies, have been supplemented by appendices on trade and display articles with similar contents. All of them were treaties of amity and trade using the formulary of the peace treaty. As they came into existence during the Ansei Period in Japanese chronology (1854–1860), they have been collectively referred to as Ansei Treaties.[59]
See AUSLIN, Negotiating with Imperialism 2004. Auslin, p. 7, however, is incorrect in his assumption that Western governments were then in agreement not to colonize Japan.
The series began with the Japanese-US treaty, negotiated by Townsend Harris. This treaty set the framework for the following Ansei Treaties and beyond. The English version of the treaty named the Shogun »Tycoon of Japan« with a variant of the Japanese style Taikun, confirmed the privileges to the USA that the Japanese government had meanwhile conceded to other parties, specifically the consular jurisdiction for criminal cases among US citizens residing in Japan, for mixed cases of crimes committed by US citizens against Japanese subjects as well as for cases of civil law, in which Japanese subjects filed debt plaints against US citizens (Article VI). The treaty made possible the reciprocal dispatch of diplomatic envoys between both sides (Article I). It added the unequal concession that all types of coins may circulate in Japan (Article V), added Kanagawa [= Yokohama], Nagasaki, Niigata and Kobe to Shimoda and Hakodate as designated treaty ports (Article III) and permitted US citizens to take residence in the capital city of Edo from 1 January 1862 as well as in Osaka from 1 January 1863. An appendix on trade regulations specified the conditions under which the signatory parties could trade and imposed an export tax of five per cent on all goods leaving Japan. At the same time, it stipulated that gold, silver and all essential comsumption goods like apparell, household equipment and books could be imported to Japan without tariffs.[60]
Japan-USA Treaty, in: Treaties and Conventions Japan 1874, pp. 53–57 Preamble, Art. III, V, VI. Actually the ports of Kobe and Niigata were opened only on 1 January 1868, see Appendix on Trading Rules, ibid., pp. 69–70 Art. VII. Only Art. II featured a provision specific to this treaty. The provision states that, upon request by the Japanese government the US envoy can act as an intermediary between Japan and any European government. Harris himself took over this role as an intermediator only in the 1850s. By contrast, in the 1860s, the treaties between Japan on the one side and Prussia and Switzerland on the other, Harris acted as intermediator jointly with the Dutch emissary Polsbroek and the French envoy de Bellecourt. See Bundesarchiv – Militärarchiv, RM 1/2877, fol. 46r–46v, 44r–44v. MITANI, Escape 2006, pp. 290–291, argues apologetically that the provisions concerning consular jurisdiction was reciprocal. He supports this argument with the observation that Japanese courts were placed in charge of criminal acts committed by Japanese subjects on US citizens, and, for that matter, on subjects of European states, and the Japanese government had also reserved for itself the regulation of compensation in civil cases involving Japanese subjects on the one side and US citizens and subjects of European states on the other. Although this observation is correct, the Ansei Treaties were unequal because they denied the same regulations to Japanese subjects in the US and European states.

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The French-Japanese Treaty, coming last in the series of the Ansei Treaties, was the first concluded between these two states. It shall thus be discussed at some more detail.[61]
Contemporary reports on the French expedition are extant in works by CHASSIRON, Notes 1861, pp. 3–183; FRAISSINET, Japon 1864; MOGES, Souvenirs 1860; MONTBLANC, Japon 1867; ROSNY, Civilisation japonaise 1861. On French-Japanese relations see LI, Relations économiques 1977; MEDZINI, French Policy in Japan 1971; NARUIWA, Bakumatsu Nihon to Furansu gaikô 1997; NIIRO, L’image du Japon 2000; NISHIBORI, Japan’s Intercourse 1985; SIEFFERT, Japon et France 1974; SIMS, French Policy 1998.
The protocol of the treaty followed the established practice and gave expression to the legal equality of the signatory parties. As the British-Japanese treaty of 1854, but unlike the other Ansei Treaties, its French version referred to the Shogun under the title »Empereur du Japon«, thus replacing the Japanese title version with a circumscription in European political terminology. Up until 1869, this European-language version of the title for the Shogun appeared only in one further bilateral treaty concluded with Japan, namely in the Japanese-Portuguese treaty of 1860. Moreover, the French-Japanese Treaty differed in one further aspect not only from the other Ansei Treaties, but in fact from all predecessor agreements, namely in explicitly stipulating reciprocity between the two signatory parties. It did so through insisting that the two parties were concluding »un Traité de paix, d’amitié et de commerce basé sur l’intérêt réciproque des deux pays«.[62]
French-Japanese Treaty, in: Treaties and Conventions Japan 1874, p. 130. The same title was used in the British-Japanese Treaty, while the Dutch version of the Japanese-Russian Treaty of Shimoda and the Dutch-Japanese Treaty featured the title »Taikoen«, ibid., pp. 52–53, 71–72, 90–91, 111–112. Strangely for the year 1858, the Japanese version of the French-Japanese Treaty also names France first.
Even though this reference to the reciprocity of state interests did not reappear in any other bilateral treaty concluced with Japan until 1869, it did testify to the fact that the Japanese government was familiar with the concept of state interests already at the end of the 1850s. By consequence, the French-Japanese Treaty provides evidence that the Japanese government did then not merely conceptualize sovereignty in terms of personal rule but could link the concept of sovereignty to state institutions.[63]
Contra MARTIN, Preußische Ostasienexpedition 2002, who argues wrongly that according to what he termed »Japanese theories of the state«, bilateral treaties were thinkable only as being concluded between »one ruler and another ruler«.
Reciprocity did materialize in the French-Japanese Treaty as in all predecessor treaties merely in the preamble and the general articles of the dispositive part. These two articles prescribed that there shall be perpetual peace between the signatories and that diplomatic envoys may be exchanged (Articles I and II). Article III then kicked off a series of unequal provisions relating to the rights and obligations only of French citizens residing in Japan. Thus Article III obliged the government of Japan to open treaty ports in Hakodate, Kanagawa [= Yokohama] and Nagasaki, following the precedent of the second Japanese-US Treaty. It set 15 August 1859 as the deadline for the »opening« of these ports and added that the ports of Niigata and Kobe shall be »open« from 1 January 1860 and 1 January 1863 respectively.[64]
French-Japanese Treaty, in: Treaties and Conventions Japan 1874, pp. 131–133 Art. III. The ports of Niigata and Bobe were subject to the restriction specified in note 60 above.
Article IV followed with the stipulation of the freedom of religious practice. Articles V and VI related to jurisdictional issues, while Article VII granted mixed consular jurisdiction only to the French government over its citizens residing in Japan. Through Article VIII, the Japanese side granted unilaterally the freedom of trade to French citizens operating in Japan, while Articles IX through XIII regulated specific issues of trade. Articles XIV granted the unrestricted circulation of coins, while Articles XV through XVIII provided regulations on matters concerning customs and navigation and Article XIX contained the most-favoured-nation clause. Article XX then established the point of time from which on negotiations for the revision of the treaty could be launched and followed the earlier Ansei Treaties in setting 15 August 1872 as a terminus ab quo. Article XXI determined that French shall be the language of communication between the signatory parties. The article conceded a transition period of five years during which the French side would add a Japanese translation to its messages. Article XXII then had the concluding provisions.

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Specifically through the concession of further treaty ports, the Ansei Treaties levied high pressure on the government in Edo. Resistance by some Daimyo not only induced the Tenno to summon Shogun Tokugawa Iemochi to Kyoto for a report on the treaties but also to an eventual refusal to ratify the treaties already concluded. In his response to the Shogun, the Tenno not merely demanded the revocation of the treaties but also the taking of military measures against the foreign warships operating in Japanese waters. Instead of defending the country against outside aggression, the Shogun had allowed foreigners to enter the country. The treaty concessions raised popular resistance specifically among the Edo population. The Shogun returned to Edo on 30 June 1863, with the mandate to revoke the treaties. Already on 10 May 1863, a military unit stationed in the fortress of Shimonoseki in Western Japan opened fire on foreign ships passing by. Not authorized by the Edo government, the step led crews of western warships to open fire on the fortress. The incident aggravated the difficulties that the government in Edo was already facing, forcing the government to disclose the constitutional problems involved in the making of the treaties. The government in Edo had to admit to its treaty partners that the Tenno, backed up by some of the Daimyo specifically in Western Japan, was in charge of making agreements with foreign government and was refusing to accept the treaties as legally valid instruments. The government in Edo thus had to disclose to its signatory partners that the treaties had not been ratified yet in terms of Japanese law. For the purpose of circumventing the problem, negotiators on behalf of the Edo government asked the British representatives to agree to the postponing of the »opening« of further treaty ports that had already been agreed upon in the Ansei treaties. The British government accepted the plea under the condition that the Japanese government would abolish every existing restriction of trade of foreigners within Japan. Both sides signed an agreement on this basis in the form of the London Protocol on the implementation of the Ansei Treaties of 6 June 1862.[65]
London Protocol of 6 June 1862, in: Treaties and Conventions Japan 1874, pp. 223–226.
On the one side, the London Protocol testified to the success of the Japanese negotiation position. But on the otherside, the Protocol entailed the prelimary bilateral Paris Convention of 25 June 1864 between France and Japan as well as in the quadrilateral Shimonoseki Convention of 22 October 1864 between Japan on the one side, France, the Netherlands, the USA and the United Kingdom on the other. Both conventions fixed high compensations for the damage inflicted on foreign ships at the time of the Shimonoseki incident. The Paris Convention obliged the Japanese government to pay the amount of 140.000 Mexican Dollars, while the Shimonoseki Convention established the total demand of three million Mexican Dollars in compensation payable to all four signatory parties of the Japanese government. The Japanese government received entitlement to waive the payment under the condition that it »opened« the port of Shimonoseki for free trade. Even though the Simonoseki Convention referred to »indemnities of war« as the type of payable compensation, the Daimyo of Nagato and Suwo received responsibility for having started the military engagement at Shimonoseki, not the Japanese government. Consequently, Japan had not been in a state of war with the Western powers and the government in Edo received no accusation of having violated the treaties. Even then, the Japanese government turned down the request to »open« Shimonoseki port.[66]
Convention of Paris of 25 June 1864, in: Treaties and Conventions Japan 1874, pp. 227–229. Convention of Shimonoseki of 22 October 1864, in: ibid., pp. 230–233.
 
Despite the domestic troubles, one further treaty came into existence following the making of the Ansei Treaties. On 3 August 1860, the Japanese government signed a treaty with Portugal that followed the French-Japanese Treaty closely. It did so not merely with respect to the choice of the title »Imperado do Japão« for the Shogun[67]
Treaty between Japan and Portugal of 3 August 1860, in: Treaties and Conventions Japan 1874, pp. 151–170. Also in: CTS 122, pp. 306–316. On Japanese-Portuguese relations see FELDMANN, Moraes und Japan 1987; MATSUDA, Relations 1965.
but also in its inclusion of an article demanding the freedom of religious practice (Article IX). The inclusion of this article is remarkable because Portuguese traders had been excluded from Japan in the early seventeenth century on the ground of illegal missionary activity. The article shows that, in 1860, memories of the past had no effect on the use of international public law for the shaping of international relations in the minds of the government in Edo.

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8. The Japanese-Prussian Treaty
 
The following treaties expanded upon the model of the Ansei Treaties. Thus the agreement concluded between Japan and Prussia on 24 January 1861 continued the series of treaties of peace, amity and trade. It opened with the naming of the signatory parties, thereby setting them as sovereign equals. As in the previous agreements since the British-Japanese Treaty of 1854, the mutual recognition of equality extended into the sequence of the names of the sovereigns in the German and the Japanese versions.[68]
On German-Japanese relations at the middle of the nineteenth century see FREITAG, Japan und die Japaner 1942; KERST, Anfänge 1953; KERST, Ursachen 1960; KERST, Deutsche Expedition 1961; KERST, Deutsche Expedition 1962; KERST, Bedeutung Bremens 1965; MARTIN, Prussian Expedition 1990; MARTIN, Preußische Ostasienexpedition 1991; MARTIN, Öffnung Japans 1992; MARTIN, Preußische Ostasienexpedition 2002; MATHIAS-PAUER, Hansestädte und Japan 1983; MATHIAS-PAUER, Hansestädte und Japan 1992; OHRT, Preussische Expedition 1911; OSTWALD, Deutschland und Japan 1941; PANTZER, Japanische Impressionen 2007; PETTER, Überseeische Stützpunktpolitik 1975; SALEWSKI, Preussische Expedition 1988; SALEWSKI, Preußische Ostasienpolitik 1990, p. 104; SALEWSKI, Marine 1998; SCHUSTER, Vorbilder und Zerrbilder 1988; SIEMERS, Japans Eingliederung 1937; STAHNCKE, Diplomatische Beziehungen 1987; STAHNCKE, Lühdorfs Handelsexpedition 1988; STUMPP, Interkulturalität 2002; SUFFA-FRIEDEL, Preussische Expedition 1987; YÜ, Deutsch-chinesische Beziehungen 1981.
In the German version, the name of the King of Prussia came first, while in the Japanese version the agreement opens with the title Taikun for the Shogun. It is necessary to note that the name of the reigning Prussian king is given as »Friedrich Wilhelm IV.«, although he had died already on 2 January 1861.[69]
Treaty between Japan and Prussia of 21 January 1861, in: Treaties and Conventions Japan 1874, pp. 186–206. Also in: CTS 123, pp. 448–458.
Although the acting Prussian representatives in Japan could not have known of the death of the king at the time of the signing of the treaty, the mistake in the name of the ruler remained uncorrected in the subsequent ratification process. In nineteenth century administrative practice, the separation of the ruler’s person from the ruling office had proceeded far enough to allow a deceased ruler to feature as the representative of a state without raising questions about the legal validity of the treaty. The Japanese side does not seem to have been informed about the calamity.

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By contrast, another aspect of Friedrich Wilhelm’s personality did become a matter of debate in the course of the negotiations. As Friedrich Wilhelm had been pronounced ill in the late 1850s, he was legally represented by his younger brother Wilhelm as the regent of Prussia. Wilhelm had signed the mandate to the Prussian envoy Count Friedrich zu Eulenburg. The Japanese side became aware of the discrepancy between the name of the reigning king and the office holder in whose name Eulenburg’s letter of accreditation had been made out. As the Japanese negotiators, the Bugyo Hori Oribe no Kami, Takemoto Jusho no Kami und Kurokawa Sachu, enquired with the Prussian side about the reasons for the discrepancy, Eulenburg first replied that the king was ill and needed to be represented by a regent. As the Japanese side insisted that, in this case, the king should resign, Eulenburg delivered a lecture on Prussian constitutional law saying that a resignation due to illness was not a possible consideration in terms of Prussian state law. The Japanese negotiators appear to have accepted Eulenburg’s argument and did not raise the issue any further. However, the Japanese government remained determined not to accept the further Prussian request that the treaty should be made out between Japan on the one side and Prussia together with the members of the German Customs Union on the other. Accomplishing a treaty on behalf of the German Customs Union had been Eulenburg’s explicit mandate on the grounds that legal protection should be given in Japan not only to Prussian subjects but to citizens of the member states of the German Customs Union. The proviso was specifically important for the trading cities of Hamburg and Bremen in northern Germany that were keen on becoming involved in the trade with Japan but were not included in the Prussian state. Jurists in the Prussian government assumed that no comprehensive legal protection could be extended to citizens of the entire German Customs Union without the Union being explicitly mentioned in the treaty. Yet the Japanese side refused to accept the request, arguing that the constitution of the German Customs Union appeared to be federalist and, in this respect, seemed to be similar to that of the USA. As the US government had been willing to enter into a treaty with Japan without explicit reference to the member states of the USA, the Prussian government should be satisfied with a treaty made out in the names of Japan and Prussia only. Eulenburg’s final reply that the member states of the German Customs Union were sovereigns while the member states of the USA were not, only increased the determination of the Japanese side not to make any concessions on this point. Hence, the treaty went into force with Prussia as the sole signatory on the German side.[70]
The diaries of the Prussian expedition have been preserved in Bundesarchiv – Militärarchiv, BA-MA, files RM 1/2350 and RM 1/2877, specifically in the latter file on fol. 171r–176r. The details of the negotiations have been analyzed by OHRT, Preussische Expedition 1911, pp. 227–235. Ohrt did not specify his sources but seems to have relied on the diaries.

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The German version of the treaty displays a tendency towards exoticism. For one, the Shogun’s title is represented in the German version in the graphic form of »Taikuhn«.[71]
The diaries of the expedition displayed the same lack of certainty regarding the spelling of the title in their early parts (Bundesarchiv – Militärarchiv RM 1/2877, fol. 47r, 5. 8. 1860: »Tycoon«; fol. 87r, 5. 9. 1860: »Taikun«; fol. 120v, 13. 10. 1860: »Taikuhn«; fol. 126v, 20. 10. 1860: »Taikuhne«; fol. 146r, 13. 10. 1860: »Taikuhn«), probably following English Tycoon, that had been popularized by Rutherford Alcock. See ALCOCK, Capital 1863, Title. Before Alcock, OSBORN, Cruise 1859, p. 31, had used the Japanese title in the form of »Tai-koon«, which he had equated with »Temporal Emperor«.
The -h- following the -u- indicates that the -u- should be read as a long vowel, even though the -u- is a short vowel in the original Japanese word. The wrongly placed diacritical signs expanded the length of the title and established an exotic graphic image. Moreover, the German version of the Japanese-Prussian Treaty reverted back to the established habit of using a variant of the Japanese title Taikun rather than employing the European styles »Emperor« or »Kaiser« for the Shogun.[72]
Thus already Bernhard Varen in his »Descriptio regni Japoniae«, Amsterdam 1649, Chap. IV. In the German version VAREN, Beschreibung 1974, p. 51.
More importantly, the Japanese-Prussian Treaty continued the established practice of naming the Shogun as the ruler of Japan. Like the other European and US envoys, Eulenburg still deemed the Tenno in Kyoto to be insignificant enough not to warrant consideration from the Prussian side. This is remarkable in view of the fact that, at that time, domestic problems in Japan concerning the validity of the measures enforcing the treaties had surfaced, and that research literature had long been available in Europe describing the constitutional position of the Tenno in fairly accurate terms.[73]
The verdict that the Tenno should be regarded as politically insignificant was based on Engelbert Kaempfer’s interpretation of the power relations between the Shogun and the Tenno. According to Kaempfer, the Tenno was the »presente pontificiale Abgott« (pontifical idol of the present) in charge of canonizations (KAEMPFER, Heutiges Japan 2001, p. 174), which Kaempfer’s translator Johann Gaspar Scheuchzer rendered as »Japanese Pope« (KAEMPFER, History of Japan 1727, vol. 1, p. 206). So still GOLOVNIN, Japan and the Japanese 1853, vol. 2, p. 118. Already at the beginning of the nineteenth century, Julius Heinrich Klaproth rejected Kaempfer‘s application of the imperial title upon the Shogun and positioned the Tenno as emperor and the sole legitimate ruler of Japan. See KLAPROTH, Account of Japan 1831, p. 196; KLAPROTH, Voyages au Japon 1833, pp. 95–96. On the problem of Western descriptions of the Japanese constitution of the Edo Period see MATSUMOTO, Beziehungen zwischen Mikado und Schogun 1931; POWLES, Myth of the Two Emperors 1968.
Yet, these observations completely failed to impress the involved governments on either side of the Atlantic who stubbornly continued to dispatch all of their envoys to Edo rather than to the Kansai area.
 
In the dispositive part, Article I enforced reciprocity for its provisions. Following established practice, the article stipulated a stable peace and lasting amity between the two signatories. Likewise, Article II signalled reciprocity in permitting the exchange of diplomatic envoys between both sides. With Article III, however, the series of unequal specific provisions began and continued to the end of the treaty. The main of these specific provisions related to the »opening« of three ports at Hakodate, Kanagawa [= Yokohama] and Nagasaki for Prussian vessels (Articles III, XII, XIII, XIV and XVI). Articles V, VI[74]
Japanese-Prussian Treaty, in: Treaties and Conventions Japan 1874, pp. 187–189, 190–195, Art. I.
and VII stipulated consular jurisdiction for the Prussian side and customs regulations as in the Ansei Treaties.[75]
Handels-Regulativ, Art. VII, in: ibid., pp. 204–205. The Ansei Treaties had set the model.
Further articles related to the freedom of religious practice and the freedom of trade in the treaty ports, grant to Prussian subjects the privilege of taking into service Japanese subjects, impose the obligations upon the Japanese side to act against smuggling, to provide pilots for incoming Prussian vessels, to admit all coins as currency in Japan, to provide assistance to Prussian shipwrecks, to allow crews of Prussian warships to purchase food and fuel, to grant most-favoured-nation status to Prussia, to start revision negotiations only after 1 Juli 1872 and to correspond with Prussian envoys in the German language. The latter provision included the proviso that the Prussian side would supply Japanese translations of their messages for a period of five years (Articles IV, VII, IX, XI, XV, XVII, XVIII, XIX, XX, XXI). The Prussian negotiators thus insisted that Prussia be treated equally to the other parties with which the Japanese government had concluded treaties. The political claim that the Japanese government should grant equal provisions to all its treaty partners was grossly at odds with the insistence of the European and the US governments that these specific privileges should not be granted reciprocally and that the Western governments could treat their Japanese treaty partner unequally.

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Like many members of previous expeditions to Japan, many among the staff of the Prussian expedition still had conventional ideas of Japan that can be traced as far back as to the late medieval reception of Marco Polo’s travel report. According to these conventions, Japan (or Zipangu according to Marco Polo’s naming) was an island (or group of islands) equipped with paradisical bounty, a well-ordered state solliciting expectations of profitable trade.[76]
See KLEINSCHMIDT, Demands for Free Trade 1997.
While the image of well-orderedness dominated in the seventeenth and eighteenth centuries – with the exception of some criticism applied to Japan among among late eighteenth-century Enlightened authors[77]
LE JEUNE, Observations 1780, pp. 1–11. For studies see SHACKLETON, Asia 1965; ZÖLLNER, Preussische Japan-Rezeption 2002, pp. 62–63.
–, exalted expectations regarding the profitability of trade with Japan gained the upper hand from the early nineteenth century. These expectations informed the preparations for official government missions from the USA and several European states and boosted requests for integrating Japan in the European-dominated world market.[78]
KERST, Anfänge 1953, p. 15.
Specifically, these expectations induced officials in the US State Department, engaged in the preparation of the Perry mission, to assume that Japan was rich in mineral resources, most importantly coal.[79]
In his draft of a letter by US-President Millard Fillmore to the »Japanese Emperor« [the letter was to be submitted to the Shogun], dated 10 May 1851, Daniel Webster defended the US pressure for the »opening« of Japan with the sentence »Your Empire has a great abundance of coal; this is an article which our Steamships, in going from California to China, must use.« See SHEWMAKER, Papers of Daniel Webster 1983–1987, vol. 2, p. 289. The same in PINEAU, Japan Expedition 1968, p. 221. In his retrospective account of the Perry expedition, the geographer and supporter of US colonial expansion Archibald Ross Colquhoun still held the same view early in the twentieth century, see COLQUHOUN, Greater America 1904, p. 412.
The year 1853 witnessed the appearance in print of a report that G. W. van Imhoff, the Governor General of the Dutch East India Company had written in 1744. In his report, Imhoff had described trade with Japan in optimistic terms, even under the conditions of the strict control with which the Japanese government administered trade relations with the Company.[80]
IMHOFF, Ordeel 1853.
 
The earliest European traders, visiting Japan on or in the aftermath of the Perry expedition, returned with euphoric descriptions of trading opportunities in Japan, the potential of profits from the trade, emphasising the economic affluence of Japan, the quality of the products available in Japanese markets and of the mineral resources waiting to be discovered from the soil. For one, the Bremen-based trader Friedrich August Lühdorf noted in his report, published in 1857, that there was gold everywhere in Japan, likewise silver in high quality and rich deposits, even more copper and lead, pewter in high quality, though not in rich deposits. He claimed to have acquired knowledge about three iron mines, left no doubt that many more were in existence, referred to rich and many coal mines, noted that sulphur was available everywhere in unspeakable quantities and expected precious stones such as marble to be ready for grab. He also believed that there were diamonds in large quantities although he had not seen any, and reported that there was pearl fishery everywhere in the archipelago. Moreover, Lühdorf described the high quality of manufactured products, among them wood and lacquer ware, metal ware, paper, silk ware, pottery, glass ware and straw products.[81]
LÜHDORF, Acht Monate 1857, pp. 198–200, 202–204. The same in: Kaiserreich Japan 1860, pp. 72–79, 85–96, 207–211. On Lühdorf see MEISSNER, Supercargo Lühdorf 1940; STAHNCKE, Lühdorfs Handelsexpedition 1988. Karl Friedrich Neumann, the Munich Orientalist, held the same view that Japan was rich in minerals. See NEUMANN, Reich Japan 1858.
Even Laurence Oliphant joined in with the optimistic comments conceding tolerance and liberality to the Japanese government regarding matters of trade.[82]
OLIPHANT, Narrative 1859, p. 48.
Finally, Eulenburg himself, who used one of the many intervals between the negotiations in Edo for a field trip to Yokohama, praised the quality of Japanese agriculture.[83]
Bericht über den Ritt nach Kanagawa und Yokohama vom 22. bis 24. September 1860, Ms. Freiburg, Bundesarchiv – Militärarchiv, file RM 1/2877, fol. 105v–108v [enclosed in the diary of the Prussian expedition, after the entry 24 September 1860]. As late as in 1863 the Venetian born entrepreneur Revoltella, living in Triest, advised the Austria-Hungarian government to regulate trade with Japan on the basis of a bilateral treaty, so that Austria-Hungarian traders could draw profits from that trade that Revoltella expected to be similar to those made by rival traders. See REVOLTELLA, Österreichs Betheiligung 1864, p. 16. In doing so he followed the view of the Austrian admiral Bernhard Freiherr von Wüllerstorf-Urbair, who had commanded the Austrian frigate Novara’s cruise around the world. The Novara had stopped over in Japan in 1859, see WÜLLERSTORF-URBAIR, Mittheilungen 1861.

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However, Eulenburg’s report may have been the last in the long series of optimistic accounts that Western observers issued about Japan. From the beginning of the 1860s, perceptions of Japanese economic achievement rapidly converted into harsh criticism in the minds not merely of Rutherford Alcock but also of most other foreign visitors. Thus, the skills of Japanese craftsmen turned from the cause of praise into the platform for curse, stimulating the expectation that imported products might become locally manufactured once they were selling well. Last but not least, the reluctance to agree upon concessions that the Japanese government displayed in the course of the negotiations with its treaty partners, converted into the European and US charge that the Japanese government was disrespectful of the treaties and lacked willingness to respect European norms of conduct.[84]
KOSSAK, Hildebrandt’s Reise 1872, vol. 2, pp. 87–88; KREYHER, Preußische Expedition 1863, pp. 140–142, 144; SPIESS, Preußische Expedition 1864, pp. 159–160. Similarly Eulenburg in the report on his arrival, Bundesarchiv – Miliärarchiv, file RM 1/2877, fol. 43r–43v. OLIPHANT, Narrative 1859, p. 249; ANONYMOUS, Neuere Mitteilungen über Japan 1861, p. 352 [review of publications by Alcock and Oliphant]. On the change of the European image of Japan see also BATY, Literary Introduction 1951–1952; FREITAG, Japaner 1939; LEHMANN, Image of Japan 1978.
 
The Prussian expedition returned from Edo in a mood of dissatisfaction.[85]
BRANDT, Dreiunddreißig Jahre 1901, vol. 1, pp. 135–136, was straightforward in his criticism of the Japanese government. The Austria-Hungarian Baron Raimund von Stillfried-Ratenicz emphasized towards his government as late as in 1868 that he was being tolerated as an Austrian subject in Japan only if he placed himself under the protection of a treaty power. Stillfried had himself employed by Brandt in the Prussian mission. See Stillfried’s report in Vienna, Haus-, Hof- und Staatsarchiv, Adminstrative Registratur, S. R. 1868–1872, 69/5. On the Prussian expedition see the following collections of reports and letters: BERG, Preußische Expedition 1864–1873, vols 1 and 2, specifically vol. 2, pp. 164–167. The passage records the Prussian claim that the expedition should have been required by demand to ensure diplomatic protection for subjects of members of the German Customs Union. See Karl von Eisendecher, [Brief von der Expedition], in TRAUTZ, Seekadettenbriefe 1941, pp. 147–51, 162; EULENBURG-HERTEFELD, Ost-Asien 1900; HEINE, Japan 1860; HEINE, Weltreise 1864; KREYHER, Preußische Expedition 1863, specifically pp. 91, 97, 125; MARON, Japan und China 1863, specifically pp. 25–27; RATZEBURG, Skizzen 1864; SPIESS, Preußische Expedition 1864; WERNER, Preußische Expedition 1864, specifically pp. 167–170. The essential passages on the Prussian East Asian expedition have been reprinted in STAHNCKE, Preussens Weg nach Japan 2000.
Within the Prussian perception, the Japanese government had been a difficult negotiation partner. As a result, the process of the ratification of the Japanese-Prussian Treaty encountered difficulties on the Prussian side. It continued well into the year 1864, even though the treaty itself had stipulated 1 January 1863 as the date of its enforcement (Article XXIII). Moreover, representatives of chambers of trade dispatched to the mission from states other than Prussia, reported skeptically on the prospects of trade with Japan.[86]
JACOB, Bericht 1861, in: Württembergisches Hauptstaatsarchiv Stuttgart, Bestand E 50/01, Bü 1684. KREYHER, Preußische Expedition 1863, pp. 124–125; OSBORN, Japanese Fragments 1861, p. 136.

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9. The Japanese-Swiss Treaty
 
The background of the demand of the Swiss government to establish formal trade relations with Japan through the treaty of 6 February 1864 are well recorded.[87]
Sources on the preparation and implementation of the Swiss expedition to Japan are extant in Schweizerisches Bundesarchiv, Bestand E 6, vol. 36 and in the Neuchâtel Cantonal Archives, Humbert Papers, Dossiers 11–13. See also BIAUDET, Documents 1990, pp. 809–827. For the history of Japanese-Swiss relations see ADLER, Bilder der Schweiz 1994; IMMOOS, Eidgenossen 1982; BARRELET, Diplomatie 1986; BARRELET, Petit guide 1988; BARRELET, Horlogers suisses 1994; MOTTINI, Schweiz und Japan 1998; MOTTINI, Eidgenossen entdecken Japan 2001; MOTTINI, Schweiz in der Demokratie-Bewegung 2004; MOTTINI, Swiss-Japanese Treaty 1864; MOTTINI, Der lange Weg 2007; MOTTINI, Switzerland’s Way 2006; NAKAI, Aufnahme der diplomatischen Beziehungen 1964; NAKAI, Verhältnis 1967; ROMBERG, Schweizer in Japan 2004; SIGERIST, Schweizer in Asien 2001, pp. 228–247.
Swiss clock manufacturers from the Francophone cantons of Geneva and Neuchâtel took intiative to the dispatch of a Swiss expedition to Japan. Japan was an interesting market for Swiss clockmakers because Swiss watches had been available on the Chinese market already from the beginning of the nineteenth century, where they were manufactured at the request of the Qing government. From the end of the 1850s, Chinese-made Swiss watches were on sale in Japan through Chinese and Dutch traders. Aimé Humbert, then President of the Swiss Union Horlogère, used these informations about East Asian markets to demand that Swiss clockmakers should be entitled to ship their products directly to Japan on the basis of a treaty of trade.
 
The Department of Trade and Customs of the Swiss Government dispatched the Paris-based Prussian house teacher and literary author Rudolph Lindau to Japan in 1859 with the commission to conclude a treaty of trade. Lindau travelled privately and reached Japan on a merchant vessel on 28 April 1859. He soon reported on Japan in optimistic terms, specifying the goods that might be traded out from Japan with profit. He listed textiles, glass ware, zink, lead, pewter, books, maps and pictures. He also commented on the prospects of exporting Swiss clocks to Japan and expected moderate profits. Pocket watches might find buyers, if the sales prices were not too high. He thus recommended the exportation of cheap goods. Lindau did not report that Swiss watches were on sale in Japan already at the time when he was there. C. Jacob, a member of the Saxon Chamber of Trade who joined the Prussian expedition, reported upon his return in 1861 that Swiss watches would not sell well in the Japanese market. Jacob argued that, contrary to China, mechanical clocks had been manufactured in Japan since the sixteenth century.[88]
JACOB, Bericht 1861, p. 18.
Jacob noted that these clocks were of high quality and could compete successfully with Swiss watches. It was only in 1865 that the Swiss trader Caspar Brennwald confirmed Jacob’s skeptical judgment of the prospects for the trade in Swiss watches in Japan.[89]
BRENNWALD, Generalbericht 1865, pp. 45–48.

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Lindau also encountered unfavourable political conditions protracting his negotiations and obstructing the conclusion of the treaty. The domestic row over the alleged insubordination against the Tenno under which the Shogun had concluded the treaties with the European and the US governments, as well as public dissatisfaction about the concessions that the government in Edo had made to foreign governments, were boosted by the lack of consideration with which some of the Western emissaries and traders communicated with their Japanese counterparts. Lindau carefully noted the inappropriateness of these attitudes of his foreign colleagues and critically commented in his report to the Chamber of Trade at St. Gallen: »The foreign traders, having received large sums of money from China and Europe, would and could not wait until it might please the Japanese government to give justice to their claims. And as they used the Itzibu [one Bu, a current coin] to purchase Japanese products (Japanese merchants refused to accept Dollars at full value), they did no longer hesitate to respond to the unlawful measures of the Gorodjo [Roju, the State Council in Edo] with unlawful actions and to try to acquire Japanese currency by paying in Mexican Dollars.« This practice entailed much controversy between the foreign traders and Japanese officials, resulting quickly in a tense atmosphere between the former and the latter. The atmosphere moved from Yokohama to Nagasaki and then penetrated throughout all parts of Japan. And already towards the end of 1859, merely six months after the above-mentioned ports had been opened for foreign trade, Japanese people and foreigners were facing each other with hostility.
»There can be no doubt that Europeans and Americans did little to restore peaceful conditions and instead, from the highest to the lowest and with extremely rare exceptions, conducted a policy which was calculated to insert fear and respect and paid little consideration to whether it gained appreciation and trust.«[90]
LINDAU, Handelsbericht über Japan 1862–1863, erste und zweite Abtheilung, pp. 2–3.
 
In short, Lindau’s mission failed. He used the lack of consideration of his fellow European and US contemporaries as an excuse for the failure. Yet he continued to stay on in Japan until 1869, served as a Swiss consul from January to June 1864 and later became one of the founders of the Japan Times.[91]
The newsapaper has continued to exist as the most widely circulating English language daily newspaper in Japan.
Subsequently, he entered Prussian diplomatic service, was employed in Berlin as a press secretary from 1878 to 1892. In 1902 he went to Istanbul and eventually returned to Paris where he died in 1910. Commenting on the failure of his mission, Lindau passed a comprehensive negative verdict about the prospects of trade with Japan. In his report, Lindau confirmed that the »opening« of Japan to the world market had not occurred through the Treaty of Kanagawa of 1854 but several years later: »In consequence of the treaties it has concluded with Western powers, Japan has been opened to foreign trade in 1859, and European and American traders have since then taken up residence in Yokohama, Nagasacki and Hakodate. Although the traffic that has been conditioned through the treaties between the West and Japan, has reached a fairly important extension within a short span of time, it has by no means fulfilled the great expectations which one had been justified to hedge two and a half years ago.«[92]
LINDAU, Handelsbericht über Japan 1862–1863, erste und zweite Abtheilung, p. 1.

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At home in Switzerland, Aimé Humbert would not allow himself to be discouraged by Lindau’s verdict. On the contrary, he stepped up his efforts to dispatch another mission, this time with himself as the official envoy. Already in 1861, the Japanese government signalled to the Swiss side its willingness to reopen negotiations about a treaty through the Dutch Ministry of Foreign Affairs. Thus Humbert could easily succeed in winning approval from the Bern government, the clockmakers of the Canton of Neuchâtel and the silk makers of the Canton of Zurich for his intiative. He also secured confirmation from the Dutch government that it was willing to assist its Swiss counterpart in the effort to conclude a treaty with Japan.[93]
Schweizerisches Bundesarchiv, Bestand E 61, vol. 36, fasc. 168: The Swiss Director of Finances and the Chamber of Trade of the Canton of Zurich to the Swiss Department of Trade and Customs, no date [early May 1858]. The Department of Trade and Customs received recommendation to proceed with the treaty through the mediation of the Dutch government. Under these conditions, the Department recommended the dispatch of a mission to the Union horlogère on 23 August 1858.
The Bern government allocated the amount of 100.000 Swiss Franks partly covering the costs of the expedition. Humbert as the official envoy and Caspar Brennwald from Männedorf in the Canton of Zurich as secretary to the mission and the person in charge of commercial matters travelled at government expense, while four further gentlemen accompanied the mission as »attachees« at their own expenses: Major John Bringolf from Unterneuhaus in the Canton of Schaffhausen, Iwan Kaiser, an engineer from Zug, Edouard Bavier, merchant from Chur, and James Favre-Brandt, clockmaker from Le Locle in the Canton of Neuchâtel.
 
From the very beginning of the preparations for his mission, Aimé Humbert was determined to give more leverage to his desire for the conclusion of a treaty than his predecessor Lindau. To that end, he selected the Dutch warship Medusa for his voyage from Nagasaki to Yokohama. Humbert travelled alone on the Medusa, while the other members of the mission used other means of transportation for their way to Yokohama and Edo and arrived there before Humbert. The Medusa’s arrival with Humbert on board evolved into a military spectacle with the Medusa firing seventeen shot salute on the occasion. Brennwald, who had just returned to Yokohama from a visit to Edo, greeted the boss at the port and accompanied him to the residence of the Dutch Consul General Dirk de Graef van Polsbroek. Like Townsend Harris, Polsbroek was eager to take the position of an intermediator between the Japanese government and the newly arriving envoys, even though, contrary to Harris, Polsbroek did not have a legal entitlement to mediate. Brennwald reported on his visit to Edo and confirmed the warning that the Nagasaki Bugyo had issued while Humbert was staying in Nagasaki. At that time, the Nagasaki Bugyo had predicted that negotiations for a new treaty with another foreign state were unlikely to take place at all and, when resuming, would be time-consuming. Humbert remained umimpressed and decided that he would depart for Edo as soon as possible.

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The Medusa was ready for departure on 28 May 1863. Armed with eighteen canons, it steamed from Yokohama to Edo and arrived there at 11 a.m. At 3 p.m., Humbert entered the city with trumpets, escorted by one hundred armed sailors and marines commanded by officers and following the Swiss and the Dutch flags. Dozens of inhabitants observed the spectacle behind a guard of »saber-bearers«, François de Casembroot, Captain of the Medusa, reported,[94]
CASEMBROOT, Medusa 1865, pp. 29–31. The diary of the Eulenburg-Mission also featured a report on a similar parade (Bundesarchiv – Militarärchiv, file RM 1/2877, fol. 152v–153r) (on 19 November 1860).
and appeared to be amused rather than frightened by the strange men, stalking their way with remarkably long noses, breath-takingly tight jackets and narrow untidy trousers. The odd outfit draped the fact that not only the marines but also some of the civilians carried loaded guns under their jackets.
 
The armaments of the civilians had their own reason. Like Lindau, Humbert arrived in Edo at the least convenient time. While Shogun Tokugawa Iemochi, summoned to the Tenno’s court in Kyoto, negotiated the issue of the treaties, the mood in Edo and Yokohama continued to be tense and hostile towards the foreigners. Consequently, the meeting was short at which Humbert encountered Muragaki Awaji no Kami, the officer in charge of foreign relations (gaikoku bugyo), on 29 May 1863. Muragaki made it clear once again that negotiations about the treaty with Switzerland could not be resumed for the time being. He requested that Humbert should return to Yokohama immediately for his own safety. As Humbert refused to follow Muragaki’s advice, both men reached agreement that Humbert would stay over night on the ship Emperor, a gift to the Shogun from Queen Victoria that was anchoring in Edo port. Thus Humbert moved back and forth between the ship and the city, using his Edo days for extended photo tours through the city and the purchase of much printed material he intended to use for a printed picture book on Japan. Only on 8 June 1863 was he ready to return to Yokohama to wait there for further notice.[95]
HUMBERT, Japon 1867–1869; HUMBERT, Japon illustré 1870. Next to Humbert, Lindau published on his experiences in Japan in the »Revue des deux mondes« and had his texts reprinted as a monograph. See LINDAU, Voyage 1864. On the history of photography in Japan and European photographers working in Japan see BALEMI, Reisephotographie 2003; BAYOU, Felice Beato 1994; BENNETT, Early Japanese Images 1996; GOODRICH, Face of China 1978; COSTANTINI, Verso Oriente 1986; DELANK, Das imaginäre Japan 1996; DELANK, Samurai, Geisha und der große Buddha 1996; DELANK, Japanbilder 2000; DELANK / MARCH, Abenteuer 2002; EDEL, Mukashi Mukashi 1984; FREY-NÄF, Fremdenbild 1996; HAGA, The Diplomatic Background 1980; HAINARD, Temps Perdu 1985; HARRIS, Of Battle and Beauty 1999; KANEKO, Japanische Photographie 1993; MASSELOS, Beato’s Delhi 2000; MOESHART, Dutch Teachers 1986; PHILIPP, Felice Beato in Japan 1991; THEYE, Und überall blüht der Kirschbaumzweig 1989; WORSWICK, Japan 1980; ZANNIER, Beato 1978; ZANNIER, Leggenda 1995. The Japanese-Swiss treaty of 6 February 1864 has been edited in: Treaties and Conventions Japan 1874, pp. 207–222. Also in CTS 129, pp. 44–49.
 
However, the long days of waiting appeared to him like a war with the Japanese government. Without patience, he reported to his wife already on 18 September 1863 that he would soon end his stay in Japan and was happy to be able to return home quickly. The Swiss government lost patience as well and requested that Humbert should speed up the negotiation process. But Humbert took a different stance towards his government, responding that he was determined to stay on and would not return before February 1864.

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Meanwhile Polsbrosk took care of Humbert’s health and made efforts to advance the negotiations. On 20 December he advised the Japanese government that it should conclude the negotiations with Humbert. When the Japanese government hesitated to follow Polsbroek’s advice, he threatened that the planned visit of a Japanese delegation to the Netherlands would be cancelled unless a treaty with Switzerland could be signed quickly. Thus Humbert’s patience was not in vain. The Japanese government merely applied to Humbert the tactics it had already used since 1853, namely to wait and see whether the negotiation partners would lose their patience and return without accomplishing their goals or reduce their demands. Hence, what appeared to Humbert as an expression of Japanese malevolence vis-à-vis Switzerland appears to have been nothing more than negotiation tactics.
 
On 26 January 1864, the Dutch representative in Edo signalled to Humbert that the negotiations about the Japanese-Swiss Treaty could soon be completed. Humbert returned to Edo. To his surprise, the negotiations went on smoothly and fast. Already on 30 January 1864, Humbert could communicate to his wife the news that he would get the treaty. Without much ado, Takemoto no Kami, the official in charge of foreign relations, two further officials from the Japanese government and Humbert for Switzerland, signed the treaty in Japanese, French and Dutch versions on 6 February 1864. Humbert took two Japanese versions, one French and one Dutch version with him, the latter in case that disagreement about the wording of the French or Japanese versions should arise, and left Japan on the following day. Both parties ratified the treaty already in June 1864.
 
Apart from the protocol and the concluding phrases, the Japanese-Swiss Treaty followed the Japanese-Prussian Treaty of 24 January 1861. The protocol conveyed the legal equality of the signatory parties. The two heads of state were given the titles of »Taïkun« of Japan one the one side and »Conseil fédéral de la Confédération Suisse« on the other, whereby the Shogun appeared first in the Japanese version and the Swiss Federal Council first in the French and Dutch versions. As in the Japanese-Prussian treaty, both parties assured each other of their willingness to enter into lasting peace and amity and to exchange diplomatic envoys. As in the Japanese-Prussian Treaty, the specific dispositive articles contained unequal regulations. Thus the Japanese-Swiss Treaty regulated only the rights and duties of Swiss citizens residing in Japan while still not containing any regulations for Japanese subjects coming to or living in Switzerland. The Japanese government granted extraterritoriality and consular jurisdiction to the Swiss side, without the Swiss government making the same concessions. Only Japanese traders again were obliged to pay five per cent in export dues. The sole regulation thst slightly deviated from the model of the Japanese-Prussian Treaty was the provision in Article III concerning the »opening« of treaty ports. In addition to the most-favoured-nation status, it granted trade generally to all Swiss citizens in all ports having been made accessible to foreigners up to the day of the conclusion of the treaty. This formula was used only on one further occasion up to 1869.
 
In the letter dated 30 January1864 and announcing the conclusion of the treaty, Humbert boasted himself that his patience had eventually led to the success and he had got more in return from the Japanese government than he had ever dreamt of. He claimed the conclusion of the treaty as his own achievement and noted that all privileges previously granted to states like the United Kingdom and Prussia had also been conceded to Switzerland. He insisted that, by consequence, Switzerland was being treated as a great power in Japan but passed over in silence that the appearance of Swiss great-power status in the Japanese-Swiss Treaty was a matter of the choice of formulary rather than of legal substance.

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10. Further Unequal Treaties Concluded between 1866 and 1869
 
The Japanese government continued to use the established formulary for the agreements it concluded with Belgium on 1 August 1866,[96]
Treaty between Belgium and Japan of 1 August 1866, in: Treaties and Conventions Japan 1874, pp. 297–316. Also in CTS 132, pp. 490–506.
Italy on 28 August 1866,[97]
Treaty between Italy and Japan of 25 August 1866, in: Treaties and Conventions Japan 1874, pp. 317–341. Also in CTS 133, pp. 94–122 (Italian version), pp. 122–134 (English version).
Denmark on 12 January 1867,[98]
Treaty between Denmark and Japan of 12 January 1867, in: Treaties and Conventions Japan 1874, pp. 342–368. Also in CTS 134, pp. 214–231.
Sweden-Norway on 11 January 1868[99]
Treaty between Japan and Sweden-Norway of 11 January 1868, in: Treaties and Conventions Japan 1874, pp. 419–442.
and Spain on 12 November 1868.[100]
Treaty between Japan and Spain of 12 November 1868, in: Treaties and Conventions Japan 1874, pp. 443–461. Also in CTS 138, pp. 246–263.
Even though this period witnessed grave transformations of the constitutional structure of Japan, summed up under the name of the Meiji Restauration, all these treaties displayed a unform formulary. They differed mainly in the choice of title for the head of the Japanese state, the degree of detail contained in some provisions and matters of procedure. The Japanese-Spanish Treaty appears to be the first bilateral treaty in whose preamble the Tenno featured as the head of the Japanese state. Only this treaty repeated the formula of the Japanese-Swiss Treaty granting to Spanish subjects the same access rights to treaty ports as to all other foreigners. All the other treaties contained in their Article III the provision on the »opening« of the ports of Hakodate, Kanagawa [= Yokohama] and Nagasaki, whereas the ports of Niigata, Kobe and Osaka remained unmentioned. The Danish-Japanese Treaty and the Japanese-Swedish Treaty enforced the French language as the means of communication between the signatories (Article XXI), whereas the Italian-Japanese Treaty constituted the possibility that either French or Italian might be chosen.

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The Treaty between Japan and the North German Confederation is the first in the series to apply a new variant of the formulary.[101]
Treaty between Japan and the North German Confederation of 20 February 1869, in: Treaties and Conventions Japan 1874, pp. 474–500. Also in CTS 139, pp. 92–105. The printed text at the end of the quoted sentence is »nach dem Deutschen«.
This rarely considered agreement employed the title »Seine Majestät der Tenno von Japan« without explicit reference to imperial style in the wording of the German version. The Prussian side appeared under the clumsy style stating the the King of Prussia concluded the treaty‚ »in the name of the North German Confederation and the Members of the German Union of Customs and Trade not Belonging to the North German Confederation« [im Namen des Norddeutschen Bundes und der zu diesem Bunde nicht gehörenden Mitglieder des Deutschen Zoll- und Handelsvereins]. The formula provided the record that Max von Brandt, who negotiated and signed the treaty on the German side, succeeded in obtaining the concessions that his predecessor Eulenburg had failed to accomplish, namely the recognition of the members of the German Customs Union as signatories to the treaties in addition to the Prussian king (now in his capacity as head of the North German Condederation). Articles I and II were reciprocal, following the established model. Article III defined the treaty ports, naming Hakodate, Kobe, Yokohama, Nagasaki, Niigata, Osaka and – for the first time without any restrictions – Edo. The following provisions deviated from the established formulary in two respects. Article XV restricted the previously conceded freedom of the circulation of foreign coins to the span of time until the Japanese government would have established a mint issuing its own coins for exchange against foreign currencies. Article VIII contained the more important difference. For the first time in the entire series of unequal treaties, Article VIII stipulated reciprocity regarding travel and residence. According to this article Japanese aristocrats and persons in their service were entitled to move to Germany according to general legal rules, and all Japanese subjects received entitlement to move to Germany for purposes of their education or for trade. A supplement to the provision specified that authorities should hand out passports to Japanese visitors to Germany in accordance with the edict by the Japanese government of 23 May 1866.[102]
Treaty between Japan and the North-German Confederation, in: Treaties and Conventions Japan 1874, pp. 481, 482, Art. VIII: »Japanische Fuersten oder Leute in Diensten derselben [dürfen] sich unter den allgemeinen gesetzlichen Bestimmungen nach Deutschland ... begeben«. »Ebenso soll es allen Japanern, welche mit vorschriftsmaessigen Paessen ihrer Behörden nach Massgabe der Bekanntmachung der Japanischen Regierung vom 23ten Mai 1866 versehen sind, erlaubt sein, sich behufs ihrer Ausbildung oder in Handelszwecken nach Deutsch[land] zu begeben.«
This was the first occasion on which the Japanese government and one of its signatory partners agreed upon regulations concerning immigration of Japanese subjects to a foreign country. The edict of 23 May 1866 lifted the ban on emigration that had been issued in 1633.

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The regulation stipulated in Article VIII is of considerable interest for the history of the unequal treaties. First, the regulations demonstrated that the Japanese government had become aware of the legal implications of the lack of reciprocity in the dispositive provisions of their agreements with the European and US governments. The Japanese side put on record its effort to conclude new treaties with as many reciprocal articles as possible. Second, the Japanese government lifted its emigration ban already in 1866 but refrained from inserting reference to it into its agreements with European and US governments up until after the Meiji Restauration. The delay implies that the change of constitutional arrangements quickly shifted the foreign policy goals. From its very inception, the new Meiji government placed higher priority on explicit reference to reciprocity not merely in the general provisions but also the specific dispositive articles of treaties newly to be agreed upon with other governments. The change of strategy was independent of the agreement, established through the Ansei Treaties of 1858, that the earliest starting point for treaty revision negotiations should be the summer of 1872. Long before this term ended, the Meiji government articulated its determination to revise the contents of new treaties to the extent that the recognition of the sovereign equality of the treaty parties should not remain confined to the preamble and the general provisions but should be included in as many dispositive articles as possible.[103]
Contra AUSLIN, Negotiating with Imperialism 2004, especially p. 174, who assumes that the Japanese efforts to renegotiate the treaties began only in 1871 in accordance with the date set in the treaties.
Third, one copy of the official Japanese printed edition of the treaties, now held by the University of Tokyo Library and containing several manuscript marginal notes and marks in the printed text, allows the conclusion that this copy was originally owned by some member of the German diplomatic service, who was probably stationed in Japan. The notes were written by several hands partly in ink, partly with blue and red pencils, in German nineteenth-century script and the German language.[104]
University of Tokyo, Keizaigakubu [Department of Economics], 3–A:1111, pp. 476–487. According to its library stamp, the volume has been among Tokyo University holdings since 1924. It was rebound recently, with its margins probably slightly cut on that occasion. Some marginals notes fell victim to the cut.
Most of these marginals notes and marks accompany the printed version of the Treaty between Japan and the North-German Confederation as well as the General Customs Convention of 25 June 1866. Most of the marginals notes are corrections of wording and comments on contents. One of these comments is revealing: The marginal note on page 476 with Article II on the exchange of diplomatic envoys reads: »[ein]zige Gegenseitigkeit« (sole case of reciprocity). Consequently, the provisions of Article VIII on page 481, stipulating the reciprocity of travel regulations, have all been crossed out in pencil. The German side, whose representative according to the text of the treaty was Max von Brandt, was thus unwilling to honour treaty obligations while reserving for itself the right to ignore reciprocity where stated in specific dispositions of the treaty. The concession of reciprocity beyond the general provisions was, on the German side, lip service. German diplomats raised their self-claimed great-power status above their obligations following from the pacta-sunt-servanda principle.[105]
For references to the »Pacta sunt servanda« clause in nineteenth-century international law theory see WEHBERG, Pacta sunt servanda 1959, pp. 777–781.

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Immediately after the Meiji Restauration, the Japanese government placed the issue of treaty revision high on its foreign policy agenda, while no longer being predominantly worried about the mood of its western treaty partners. The fact that the early treaties did not contain a revision clause, supports the assumption that none of the signatory parties then envisaged the need for changes of provisions. In the year 1858, the governments of the USA and the United Kingdom might see some need for revision, as the Japanese government had given extended privileges to the governments of Russia and the Netherlands in its subsequent agreements with these states.[106]
On the effects of the Crimean War on the politics of European governments towards East Asia see STEPHAN, Crimean War 1969.
Representatives of the USA and the United Kingdom might have taken initiative for the making of new treaties out of the feeling that the granted most-favoured-nation status was insufficient as a safeguard and that new treaties could provide better guarantees. Even though these considerations must remain speculative due to the lack of sources, the making of the Ansei Treaties does provide evidence that it was not the Japanese government that desired the revision at the time of the making of the Ansei Treaties.
 
By contrast, not only the four Ansei Treaties that represented revised versions of previously concluded instruments, but also the French-Japanese Treaty ended with a revision clause stipulating 15 August 1872 as the earliest time for the beginning of revision negotiations. The date was changed to 1 July 1872 in the Japanese-Portuguese of 1860 and continued to be restated in all subsequent agreements to 1869. The period was a long one of fourteen years in the Ansei Treaties, while it became reduced to merely three years in the last treaty of the series, signed in 1869. Only the Japanese goverment can have had an interest to restate the same deadline during the entire time span from 1860 to 1869, as this insistence implied that the starting point for revision negotiations came closer with every newly concluded agreement. By implication, the Japanese government must have become aware of the difficulties emerging from the lack of reciprocity of the specific dispositive provisions while it was making the post-Ansei treaties. In the case of the Treaty between Japan and the North German Confederation, the chances were better than usually as it was the German side who had launched the negotiations with a request for the revision. Max von Brandt deemed a revision necessary as Prussia had ceased to exist as a sovereign and subject of international law through the formation of the North German Confederation in 1866. As Brandt could only accomplish the goals with consent from the Japanese government, due to the revision clause stated in the Japanese-Prussian Treaty of 1861, the Japanese government had some leverage to insert one specific reciprocal provision into the dispositve part of the new treaty. Already in due time before the year 1872,[107]
This aspects has so far remained unnoticed in the literature on the treaty revision. See ARAKI, Geschichte der Entstehung 1959; AUSLIN, Negotiating with Imperialism 2004, pp. 146–175; CORTAZZI, Revision 1999. The Iwakura Mission was launched in December 1871 to add to government knowledge about its treaty partners, has often been classed as foment for the growth of revisionist incentive within the Japanese government. See Akira Tanaka, »Introduction«, in KUME, Iwakura Embassy 2002, vol. 1, p. XVI. Kume argued that, although revision was on the agenda of the Iwakura mission, little activity in that direction is on record while the mission was on its way. However, MAYO, Catechism 1967, pp. 389–390, 397–402, and SWALE, America 1998, start from the assumption that the Iwakura mission actually carried out its assignenmt of launching the treaty revision negotiations in the USA. The entire procedure of the removal of unequal provisions from the treaties was tedious. The German Empire and Japan concluded a fully reciprocal treaty of trade only in 1911. On the European side, Heinrich von Siebold was among the earliest supporters of the revision. See plate 2 in LORENZ, Japan und Mitteleuropa 1940.
the Japanese government used beneficial circumstances arising from the vicissitudes of its bilateral relations to launch the revision process and promote its revisionist intention, even against the barely disguised contempt of the German side.

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Only one further unequal agreement was concluded within this series. This was the Austrian-Japanese Treaty of 18 October 1869. It followed the formulary of the Treaty between Japan and the North German Confederation, including the provision concerning the travel of foreign countries. There are Japanese and English versions, the latter probably made out by Harry Parkes, the British minister resident in Japan, who lent his support to the Austrian effort to conclude a treaty. In the Austia-Hungarian Double Monarchy, debates about the prospects and the deisrability had begun in 1863. Supporters of the idea that treaty negotiations should be launched, argued that, with Prussia having its treaty with Japan and Switzerland having prospects for a similar treaty, the Austrian government and traders from Austria-Hungary might be in a disadvantageous position in East Asia without a treaty. However, the Austrian-Prussian War of 1866 and the argument that Austrian naval power did not suffice for demonstration of military strength in Pacific waters, delayed the decision to dispatch an Austrian mission to 1869. When it was finally signed, the treaty had little effect on the shaping of Austrian-Japanese relations.[108]
This treaty dates from 18 October 1869, in: Treaties and Conventions Japan 1874, pp. 507–531. Also in CTS 140, pp. 54–67. On the preparation for and implementation of the Austria-Hungarian expedition see WÜLLERSTORF-URBAIR, Mittheilungen 1861; REVOLTELLA, Österreichs Betheiligung 1864, especially pp. 16–32. [REVOLTELLA-COMITÉ,] Bericht 1865; KREMER, Ein Wort 1864, p. 49; SCHERZER, Österreichische Ostasien-Expedition 1866, p. 123; SCHERZER, Fachmännische Berichte 1872; LORENZ, Japan und Mitteleuropa 1940, pp. 51–67, 118–140. PANTZER, Japan und Österreich-Ungarn 1973; ROSENBERG, Wilhelm Burger 1968, pp. 15–30.

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11. Summary on the Treaties between Japan and States in Europe and North America
 
Within the history of the making of the unequal treaties that the Japanese government was forced to sign in the period between 1854 and 1869, the Ansei Treaties did not mark a significant break.[109]
AUSLIN, Negotiating with Imperialism 2004, pp. 6–8, assumes so without stating his reasons.
All treaties, more or less explicitly, constituted a stable and lasting peace, even those agreements that came into existence after peace had already been agreed upon. By contrast, the early agreements with Russia and the Netherlands of 1855 and 1856 on the one side and the agreements with the North German Confederation and Austria-Hungary on the other constituted two major changes. While the treaties that the Japanese goverment concluded with the USA and the United Kingdom in 1854 were in material terms little more than agreements about shipwrecks and the provision of food and fuel for US and British crews in Japan, all agreements since 1855 bore a formulary that fused preambles and general provisions emphasising sovereignty, legal equality and reciprocity with specific dispositive articles containing largely unequal regulations, initially relating to navigation, then to navigation and trade. The Treaty between Japan and the North German Confederation and the Austrian-Japanese Treaty added to the few reciprocal specific provisions, thereby indicating the willingness of the newly established Meiji government to pursue a more self-assertive foreign policy than its predecessor.
 
The argument that there might not have been a need for specific reciprocal articles in the dispositive parts of the treaties can therefore not explain why the principle of reciprocity found no application in most of the dispositive provisions in the entire series of treaties from 1854 to 1869. Specifically the argument that reciprocity of travelling regulations may have been redundant up to 1866 due to the continuous validity of emigration ban of 1633, does not hold because even the first agreement in the entire series, the Treaty of Kanagawa of 1854, featured a reciprocal provision concerning overseas travel. It stipulated the application of the general rules of hospitality not only to US sailors in Japan but also to Japanese sailors arriving in the USA, even though then no Japanese sailor was legally entitled to leave the archipelago. Moreover, already before 1868, the Japanese government became aware of the implication that the mutual recognition of sovereignty was equivalent to the mutual recognition of the equality of the signatory parties. The Japanese government put its awareness of this implication on record by insisting, from the British-Japanese Treaty of 1854 onwards, on the right to apply the rule of precedence in preambles in accordance with the choice of the language of each treaty version. It also displayed the same awareness through insisting, from the Ansei Treaties onwards, that agreements about the dispatch of diplomatic envoys should be reciprocal. Nevertheless, the Japanese government did conclude new treaties up until 1868 whose specific dispositive provisions relating to foreign travel regulated merely the conditions under which foreigners might reside in Japan and not vice versa, even though, at the latest, the lifting of the emigration ban in 1866 made it mandatory for the Japanese government to enforce the reciprocity of immigration rules. Specifically from 1866 onwards, the Japanese government can only have refrained from doing so with the expectation that its signatory partners would apply the generally agreed upon principle of reciprocity to specific articles when requested to do so. It was the Meiji government that, in its negotiations with the German government, first had to realise the point that this expectation was, as a rule, vain.

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The history of the making of the unequal treaties thus shows that the lack of reciprocity turned into a problem for the Japanese government only when it became determined to accomplish reciprocity of those specific dispositive provisions in which reciprocity had not explicitly been stated. The refusal of the European and US governments to admit reciprocity by implication gave reason for the Japanese government to interpret the denial of reciprocity as the attempt by the European and US governments to discriminate against their Japanese treaty partner. When, from 1871, the Japanese government articulated its desire to launch revision negotiations, it became evident that the American and European signatory partners were unwilling to agree on revisions and used the lack of reciprocy as a diplomatic means to demonstrate their priority and self-claimed great-power status. The subsequent leader of the Austrian expedition to Japan, Karl Ritter von Scherzer, put on record the goal of using legal provisions in treaties between sovereign states as instruments for the discrimination of signatory parties outside Europe and North America. Already in 1866, he advised the Austria-Hungarian government to claim a certain degree of power over Japan through diplomatic pressure and the display of military strength. He believed that European governments should display higher status towards states on a »low level of civilization« and towards governments unwilling to »recognize the general international law resulting from the principles of humanity«.[110]
SCHERZER, Österreichische Ostasien-Expedition 1866, pp. 123-124.
In making this claim, Scherzer gave voice to the wide-spread western view that the imposition of the European public law of treaties between states should be an instrument of power politics in relations between European governments on the one side, goverments in Asia, Africa and the South Pacific on the other. The inequality of treaties thus emerged as the foundation for European expansion through other means than direct or indirect colonial rule. In other words, international public law and rules of free trade served as vehicles for the power politics of regime colonialism at the middle of the nineteenth century. In the case of Japan, regime colonialism entailed a substantial degree of confusion because the government and the politically minded public in Japan came to doubt the sincerity of the signatory parties on the European and US side. The consternation resulted from the gap between the preambles and the general provisions initializing the treaties on the one side and, on the other, the rest of the specific dispositive articles. A close and literal reading of the treaty texts would have led to the conclusion that, in each case, the provisions of the preamble and the general articles should be regarded as valid for the treaties as a whole. Hence, if reciprocity had been agreed upon for each treaty as a whole, there was no innate necessity to restate reciprocity explicitly in each and every article in the strict legal meaning of the treaties. When the European and US governments then insisted that reciprocity existed only in provisions in which it had found explicit statement, the Japanese government must have doubted the logic of the European public law of treaties between states. From its point of view, its request that reciprocity should be added to provisions when necessary, was consistent with the preambles and general provisions in all its treaties. When the European and US governments responded to this request with reference to the pacta-sunt-servanda principle, taken from ancient Roman private law and, applying this principle, insisted upon the need to honour the treaties as they stood, the Japanese government had to interpret this stance as a material breach of the treaties.[111]
See HORA, Bakumatsu 1977; ISHII, Shijô 1982.
The recognition that the European and the US governments used international public law and free trade rules as instruments for the demonstration of their political power led the Japanese government to experience the lack of reciprocity as discrimination by legal means.

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Therefore, the unequal treaties resulted from the contradiction between might and right as well as from the fusion of colonial expansion with the imposition of general rules of free trade and the globalization of European international public law. It was not because of some lack of insight into the logic of the European public law of treaties between states that the Japanese government became wary about the treaties it had concluded from 1854 onwards but through the planned and purposeful use of lip service and tacitly implied juristic conclusions for straightforward power politics. The imposition of the norms of European international public law entailed discrimination and regime colonialism even in parts of the world where, as in East Asia, the European and the US governments refrained from establishing themselves as lasting colonial rulers. The experience of discrimination added to the political worries that ensued from the unequal customs duties that Japanese traders faced in consequence of the Ansei Treaties. Through these provisions, Japanese exporters were given to understand that the European and US governments were unwilling to accept Japanese producers and traders as equal trading partners.

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12. Treaties between Japan, China and Hawaii in the Light of Western Conventions of International Public Law
 
As the Japanese government developed its own sense of being discriminated in its relations with American and European treaty partners, it sought to make sure that the treaties it concluded by international public law with non-Western states were reciprocal as much as possible. This effort is already recognisable from the Hawaiian-Japanese Treaty on 19 August 1870.[112]
Treaty between Hawaii and Japan of 19 August 1870, in: Treaties and Conventions Japan 1874, pp. 550–553. Also in CTS 141, pp. 448–450. The introductory clause to the treaty reads: »His Majesty the Tennô and his Majesty the King of the Hawaiian Islands being equally animated by the desire to establish relations of friendship between the two countries, have resolved to conclude a Treaty reciprocally advantageous …« (p. 550; p. 448). For the history of treaty relations between Hawaii and the US see SCHOFIELD, Forty-Six Years 1897.
The agreement, whose main purpose was the employment of Japanese subjects on US plantations in Hawaii, stated in its preamble that »His Majesty the Tennô and his Majesty the King of the Hawaiian Islands being equally animated by the desire to establish relations of friendship between the two countries, have resolved to to conclude a Treaty reciprocally advantageous« to either side. It thus made explicit reference in the preamble to the equality of the signatory parties and the reciprocity of the treaty provisions, while waiving the formulary of peace treaties. With the exception of two provisions, the treaty contained only reciprocal articles. The first non-reciprocal provision related to the most-favoured-nation status that the Japanese government conceded unilaterally to its Hawaiian counterpart (Article IV). The second non-reciprocal provision concerned the freedom of travel, which the Japanese government conceded to its subjects while not demanding the same concession from the Hawaiian government (Article V). The lack of equality of the granting of most-favoured-nation status may have resulted from the insistence by the US government that the Hawaiian side should not grant this concession to Japan, as the US government feared that the Japanese government might use such a provision of its treaty with Hawaii to demand the reciprocity of most-favoured-nation-status for its treaty with the US as well.[113]
The lack of most-favoured nation status in this treaty appears to have been caused by plantation owners who migrated to Hawaii from the US mainland. Already in the 1870s, they had held the expectation that the Kingdom of Hawaii would be annexed by the USA in the future. They anticipated legal problems in the case that the Kingdom of Hawaii granted most-favoured nation status for Japan, which would, in the case of an annexation have the possibility of claiming most-favoured nation status in its relations with the USA. The settlers argued that Japan should not have most-favoured nation status in its treaty relations with the USA. Formal treaty relations between Hawaii and the USA existed already since 1826. In that year, Hawaii and the USA concluded an unequal treaty confirming peace and amity and regulated the rights of US sailors and traders in Hawaii. Another treaty was concluded in 1849. It was reciprocal in the main but unilaterally granted most-favoured nation status to the USA and granted concessions to US walers in Hawaii. See Treaty between Hawaii and the USA of 23 December 1826; Treaty between Hawaii and the USA of 20 December 1849, in: BEVANS, Treaties 1971, pp. 861–863, 864–871. Also in CTS 77, pp. 33–37, CTS 103, pp. 391–400.
The lack of reciprocity of the immigration clause may have resulted from agreement by both sides that migration of Hawaiians to Japan was not a desired issue, as even Japanese migration to Hawaii was insignificant in the early 1870s.[114]
The expectation that many plantation workers could be recruited from Japan did not immediately materialize. On the beginning of Japanese emigration to Hawaii see JOESTING, Hawaii 1972, pp. 193–196.
The same effort of ensuring reciprocity has also been documented in the Chinese-Japanese Treaty in 1872.[115]
Treaty between China and Japan of 1872, in CTS 144, pp. 140–143.
Among other things, Article I of this treaty confirmed amity and friendship between both signatory parties. Articles V, VIII and X contained regulations relating to procedures for the reduction of differences in rank, the exchange of diplomatic envoys and the »opening« of ports.

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The overview of the treaties that European and US governments concluded with the Japanese government from 1854 to 1869, when compared with the agreements that the Japanese government made with the Hawaiian and the Chinese governments, confirms that the superimposition of the general rules of free trade and the norms of European international public law was tied to the deployment or threat of the use of military force as well as to the exercise of diplomatic pressure on European and US side. Despite the whaling and other commercial activities of US vessels plying the Pacific in the course of the nineteenth century, the aggregated sum of the use of military force and diplomatic pressure converted the Pacific effectively into a British inland sea. Non-British vessels were, of course, entitled to journey in the Pacific but came to be doing so in accordance with British imposed rules of free trade and with recourse to European conventions of international public law. The British government took it as its task to be the agent that would, as the last resort, enforce these rules and conventions. Thus the enforcement of general rules of free trade, the recognition of the European conventions of international public law, together with the establishment of direct or indirect colonial rule, were common strategies deemed to be ready for choice specifically by the British government but also by one or the other European or by the US government. There is no justification for the argument that free trade and colonialism were opposing strategies, the latter being absent from the power-political instrumentarium of Western governments at the middle of the nienteenth century. By contrast, British colonial expansion into South Asia and French colonial expansion into Southeast Asia were no exceptions to the rule but rather the results of a deliberate stragetic decision of the British and the French governments to opt for and not against colonial rule in these parts of the world.

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13. Treaties between European Governments and Governments in Southeast Asia and Oceania
 
European governments would even constitute their colonial rule over states in Southeast Asia through treaties by international public law, the protocols of which styled both signatory parties as sovereigns.[116]
Treaty between Perak and the United Kingdom of 20 January 1874, in CTS 147, pp. 196–199.
In addition, there was a considerable number of unequal treaties between the the government of the sovereign Kingdom of Siam and various European governments.[117]
Treaties between Siam and the United Kingdom of 18 April 1855, in CTS 113, pp. 84–92; of 3 September 1883, in CTS 162, pp. 378–384; of 6 April 1897, in CTS 184, p. 343; of 20 September 1900, in CTS 189, p. 90.
Moreover, the British government concluded at least one treaty with the Siamese government about a third party that it had recognized as sovereign in previous agreements. This was the British-Siamese Treaty of 10 March 1909 respecting the transfer of rule over the Malay Sultanates of Kelantan, Tringganu, Kedah, Perlis and neighbouring islands from the Siamese to the British government. The same treaty recognized these Malay Sultanates as sovereigns under the name of Federated Malay States. The border agreed upon in the British-Siamese Treaty of 10 March 1909 is the current border between the Kingdom of Thailand and the Union of Malaysia.[118]
Treaty between Siam and the United Kingdom of 10 March 1909, Art I–IV, in CTS 208, pp. 367–368. Tringganu, Kedah and Kelantan had come under the strong inluence of British traders early in the nineteenth century, as becomes evident from privileges granted to the British government by the government of Siam in 1826. See the Treaty between Siam and the United Kingdom of 20 June 1826, Art. 12, 13, in CTS 76, p. 307.
The Malay Sultanates were thus simultaneously objects and subjects of international law according to the treaty. In order to be able to cast the mutually exclusive simultaneous stipulation of objectivity and subjectivity by international public law into legal diction, the British government resorted to the term suzerainty that it borrowed from medieval European political terminology and that meant overlordship. However, already sixteenth-century legal theorists, specifically Jean Bodin, had established the concept of suzerainty as incompatible with the concept of sovereignty, as the latter concept did not allow the positioning of any government above a sovereign government. Because the treaty positioned the Federated Malay States as sovereigns and, at the same time, denied their sovereign rights, it represented legal nonsense. Instead, it lent voice to the political will of the British government to abuse the formulary and the language of international public law to advance its own position as a colonial ruler.

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Yet there were also cases of the more rigorous perversion of the application of international public law. As the US government used the formulary of international public law for its instruments of the cessation of land enforced upon Native Americans from the early nineteenth century, the British government resorted to similar types of open fraud vis-à-vis the Maori in Polynesia. It did so through a legal instrument in which the Maori were made to renounce their sovereignty totally. This legal instrument has been known under the term »Waitangi Treaty«, dated 5/6 February 1840. Despite its established name it came along in the form of a ruler’s decree made out in the name of Queen Victoria. In its dispositive part, Victoria announced her decision to establish a »civil government« over a group of islands named New Zealand. She claimed to be in need to do so for the purposes of enforcing the laws and of maintaining the institutions »alike to the native population and to her subjects«. The decree continued to report that all the »chiefs« of the Maori had completely and without restriction renounced their sovereignty and placed themselves under Victoria’s rule. The decree also stated that Victoria had received the sole right of prepurchase for all land in collective and private ownership, except for property in land that had already been legally registered. Lastly, Victoria erected her royal protection over the »natives of New Zealand«. In the eschatocol, the Maori »chiefs« put on record their agreement to the text of the decree.[119]
Treaty of Waitangi between the Maori and the United Kingdom of 5 /6 February 1840, in CTS 89, especially p. 475. On the treaty see ADAMS, Fatal Necessity 1977; LAUBACH, Vertrag von Waitangi 2000. On early immigration from the United Kingdom to New Zealand see HUDSON, English Emigration to New Zealand 2001.

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The so-called Waitangi Treaty is a report on state destruction through juridical nonsense. As the decree only named Victoria as a sovereign, the text is not a treaty in the sense of the public law of treaties between states. Moreover, the Maori appeared in the dispositive part of the text merely as objects of international law placed under British rule. Even though the dispositive part reported the Maori cessation of sovereignty as a past event, the eschatocol featured the acceptance of the entire decree of the Maori »chiefs«. These »chiefs«, who had already ceded their sovereignty to Victoria according to the decree, were thus made to use their sovereignty to the end of approving the same decree that was recording the cessation of sovereignty. Apart from the linguistic difficulty that the Maori language did then not have a word equivalent of English »sovereignty«, the »chiefs« were no longer in a position to approve of a text relating to their sovereignty after they had ceded that same sovereignty, that is, after the decree had reduced the Maori »chiefs« to objects of international law. The strange, juridically untenable wording of the decree followed historically from the previous recognition that the British government had extended to some British dominated independent state of New Zealand in 1835. Moreover, in 1839 Queen Victoria had, through her Colonial Secretary Lord Normandy, explicitly instructed her emissary William Hobson (1793–1842) to implement the establishment of British colonial rule only after the Maori »chiefs« had unequivocally declared their consent. Nevertheless, the decree merely recorded but did not stipulate the destruction of the Maori state system and, by consequence, merely announced the establishment of British colonial rule over the Maori. By implication, the decree thus fulfilled the roles of notifying legal instrument, using European international public law to the ends of destroying a previously independent state system jointly with imposing British colonial rule. The obvious lack of legitimacy not only of the decree but also of the legal procedures employed in its making entailed a sequence of intensely fought wars that continued well into the second half of the nineteenth century. In the case of the Maori, war resulted from state destruction. Maori state destruction has been at the bottom of the slim legitimacy of the state in New Zealand up until the present.[120]
On the so-called »Declaration of Independence« of 1835 and on the preparation of the Hobson mission see Danderson Coates [Address to the House of Commons, 1835], edited in MCINTYRE, Speeches and Documents 1971, p. 7; Queen Victoria, »Instruction to Captain William Hobson« [14 August 1839; Public Record Office, CO 209/4], in MCNAB, Historical Records 1908, p. 731. On William Hobson see BEAGLEHOLE, Hobson 1928; SCHOLEFIELD, Hobson 1934; MCLINTOCK, Crown Colony Government 1958. The Maori wording in the treaty article on sovereignty is: »te Kawanatanga katoa« [control over land], whereas the English version reads »all rights and powers of sovereignty«. In accordance with the wording of the Maori text one »chief« arrived at the conclusion that only the »shadow of the land« had been transferred to Queen Victoria, while the »substance of the land« had remained with the Maori. On the Maori interpretation of the treaty see COLENSO, Treaty of Waitangi 1890, p. 27; WARDS, Shadow of the Land 1968, p. VII. For the discussion of the notion of sovereignty in Maori political thought see AWATERE, Maori Sovereignty 1984. For the wars resulting from the so-called »Treaty of Waitangi« see BELICH, Paradise Reforged 2001; HARROP, England and the Maori Wars 1937; SINCLAIR, Origins of the Maori Wars 1961. For the compensations made payable by court adjudication for damages received through the implementation of the so-called »Treaty of Waitangi« see INFORMATION SECTION, WAITANGI TRIBUNAL DIVISION, Guide 1990. On the Waitangi Tribunal see BYRNES, Waitangi Tribunal 2004; MELVIN, Jurisdiction 2004; OLIVER, Claims 1991. For similarly rigorous steps that other European governments took in Oceania see the case of the German occupation of Samoa in the later nineteenth century, in: LEPSIUS, Grosse Politik 1922, Nr. 818, p. 177. See the treaties between the German Empire and Samoa of 15/23 Dezember 1879, in CTS 155, pp. 455–462; 24 March 1880, in CTS 156, pp. 305–308; 24 January 1888, in CTS 170, pp. 443–446.

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14. Conclusion
 
Within the expansion of the European international system, the globalisation of European rules of free trade and norms of international public law did not only entail the imposition of formal principles according to which treaties between states were made but also the substance of international politics. With respect to the formal principles the most important impact of the globalisation of rules and norms was the enforcement of writing as the crucial means of securing the validity of agreements concluded between states. As the written word became considered as the sole reliable and enforcible medium of agreements between states, international public law transformed from a set of rules and norms that could be regarded as pre-existing to and independent of human will and thus framing human activity, into a set of rules and norms that had to be understood as having to result from human activity. This process started around 1700 and became first manifest in the general collections of treaties between European states and rulers, most notably the collections by Dumont and subsequently of Martens, the latter continuing well into the twentieth century. As these collections, by necessity, were restricted to written instruments, they could only comprise agreements that had been laid down in writing. As a consequence, agreements not laid down in writing or the specific formulary used for charters, obtained the aura of dubious legal value and sometimes came to be classed as »gentlemen’s agreements«. Within eighteenth-century European international relations, this practice posed little difficulty as, by that time, European governments and rulers had incorporated into their framework of political thought the principle that agreements between them should receive validity and enforcibility through the legal acts of notification and ratification in writing. In other words, the treaty collections were both means and results of the transition of European public international law from natural to statutory law. However, this transition was limited in scope to Europe and thus engulfed solely those non-European governments and rulers that, like the Ottoman Turkish Sultan, were entering into treaty relations with the one or other European government and ruler. Hence, up until the beginning of the nineteenth century, most of the world outside Europea and North America remained unaffected by the changing European conceptions of international public law and international politics.

  56

With its enforcement of the Treaty of Nanjing, the British government not merely sought to write into the formulary of a peace treaty what wrongly appeared to itself as a military victory. In doing so, the British government followed established European practice. However, the Treaty of Nanjing entailed the imposition of European forms of treaty-making upon China. In being made to sign the Treaty of Nanjing the Chinese government became obliged to succumb to European ways of conducting international politics, thereby waiving its own cultural traditions. The Chinese government then had no precedent for the use of European peace treaty formularies, as its previous agreements with the Russian Czar were instruments regulating cross-border communication but no peace treaties. From the point of view of the Chinese government, the Treaty of Nanjing marked a fundamental breach of traditions in what had then constituted the hierarchically ordered Chinese international system. Within that system, relations among governments were tributary, whereby patterns of tribute-giving and tribute-receiving served as manifestations of the hierarchical order. With the Chinese government occupying the position of the tribute-receiving party, it could portray itself as occupying the pinnacle of the hierarchy of governments within the system. Through the Nanjing Treaty, however, the British government succeeded in upsetting the structure of the Chinese international system. It did so by enforcing a formulary for the treaty that, within the European tradition, drew on the principle of the legal equality of the signatory parties to the treaty. Not merely was there no precedent for a written peace treaty within the Chinese political and legal tradition, more importantly, there was no place for the recognition of legal equality of sovereign governments within the Chinese international system. In short, through the Treaty of Nanjing, the Chinese government implicitly renounced its position as the supreme power in East Asia. The signing of the Treaty of Nanjing launched a process of the expansion of the European law of treaties between states as the core feature of European international public law. By the end of the nineteenth century, this process resulted in the absorption of the Chinese international system into the globalised European international system.

  57

Next to the Treaty of Nanjing, the agreements that some European and the US governments signed with the Japanese government between 1854 and 1869, represented further steps into the same direction of the eventual destruction of the Chinese international system. The agreements applied the European formulary of peace treaties in situations where there had been no previous warfare among any of the signatory parties. Even though the use of the formulary of peace treaties had no legal justification, the choice of this formulary carried important political messages. This was so because the peace treaties stipulated the view that peace ought to be set through human action and, when established, should be laid down in written instruments rather than constitute part of the existing world order. The peace treaties combined the setting of peace with specific stipulations, initially of norms of hospitality for sailors and subsequently ever more detailed unequal rules of free trade. In doing so, the treaties combined the formulary of peace treaties, with explicit mutual recognition of the sovereign equality of the signatory parties in their preambles and general articles, and the enforcement of specific provisions that were non-reciprocal and thereby unequal. The formulary of the peace treaties was at odds with their material legal contents. Nevertheless, the peace treaties served as instruments to impose upon East Asia regimes of European provenance and thereby constituted a form of European regime colonialism.
 
Hence, the peace treaties that European and the US governments concluded with the Chinese and Japanese governments between 1842 and 1869 impacted gravely on the substance of international politics and the structure of the international system in the Asia Pacific at the middle of the nineteenth century. The peace treaties set up a framework for the conduct of politics that discriminated governments in East Asia. The European and the US governments enforced the discrimination of their treaty partners in East Asia purposefully so as to come into a position where they could maintain a control of regimes apt to serve as legal frameworks for trade and political relations. In the minds specifically of British foreign-policy makers, this regime colonialism formed the alternative to the establishment of some form of colonial rule. The use of the formulary of peace treaties as factors of European regime colonialism rhetoricized peace policy and obstructed the acceptance of international public law in East Asia.

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ANMERKUNGEN

[*] Prof. Dr. Harald Kleinschmidt, Professor für Geschichte der internationalen Beziehungen an der Universität Tsukuba (Japan)

[1] For the debate see PLATT, Imperialism of Free Trade 1968; PLATT, Further Objections 1973; PLATT, Finance, Trade and Politics 1968. Platt took issue with the objections that GALLAGHER / ROBINSON, Imperialism of Free Trade 1953 had raised against the theory. With regard to East Asia, Platt’s arguments could be based upon the instruction from the British Foreign Office of 20 April 1857, according to which the second British mission to Japan should have the purpose of imposing general rules of free trade for everyone’s benefit, while it was neither to provide spcific privileges for British merchants nor serve the goal of establishing British colonial rule in Japan. See National Archives (Public Record Office, London), FO 405/2, p. 23 = fol. 19r. However, at this time, few ships travelled in the Pacific under a flag other than the British, so that the imposition of general rules of free trade was in fact equivalent to privileging British traders. While Gallagher and Robinson took the view that the acts of colonial governments in Europe and the US imposing free trade rules were acts of economic imperialism, they shared with their opponents the common view that there is no noteworthy expansion of European colonial rule at the middle of the nineteenth century.For the debate see LOUIS, Imperialism 1976. Recently, Platt’s arguements have been restated in MÜNKLER, Imperien 2005, p. 230. For the discussion about nineteenth-century theories of free trade see ARMITAGE-SMITH, Free Trade Movement 1898; KINDLEBERGER, Rise of Free Trade 1975; MOULDER, Japan, China and the Modern World Economy 1977; SEMMEL, Rise of Free Trade Imperialism 1970.

[2] On protective customs policy see BÖHME, Bismarcks Schutzzollpolitik 1968; FECHTER, Schutzzoll und Goldstandard 1974.

[3] WHEATON, Elements 1889, § 252, p. 356. For requests to impose free trade rules that private citizens addressed to governments of sovereign states see COBDEN, Political Writings 1867, pp. 285–339. Therefore the supposition, current in international relations theories is untenable that treaties between states are concluded as agreements between sovereign signatory parties for mutual or general benefit, whereas interventions are unilateral violations of the state sovereignty. For this supposition KRASNER, Sovereignty 1999, pp. 33–37. Against Krasner’s supposition, interventions may well take place in accordance with treaties by international public law.

[4] OLIPHANT, Narrative 1859, vol. 2, pp. 248–249.

[5] On this rarely known incident see MORMANNE, La prise 2004.

[6] See SIEMERS, Preußische Kolonialpolitik 1937.

[7] Maximilian August Scipio von Brandt, [Denkschrift betreffend Kolonien in Ostasien], Januar 1867, edited by WIPPICH, Japan als Kolonie 1997, pp. 29–42; BRANDT, Dreiunddreißig Jahre 1901, vol. 2, p. 148. On German colonial policy towards East Asia see also MARTIN, Fatal Affinities 1995, p. 25.

[8] Treaty of Nanjing between China and the United Kingdom 29 August 1842, in: CTS 93, pp. 466–75. The British Foreign Office authorized the reproduction of the treaty through the then novel calotype technology of photography. The original of the treaty was removed from the Beijing State Archives, apparently in 1949, before Chiang Kai-Shek’s troops retreated to Taiwan. On the manuscripts of the the treaty see: SCHAAF, Henry Collen and the Treaty of Nanking 1982–1983; WOOD, Photocopying 1995; WOOD, Treaty of Nanking 1996; WOOD, Photocopying the Treaty of Nanking 1994–1997. On the treaty see also FAIRBANKS, Chinese Diplomacy and the Treaty of Nanking 1940; FAIRBANKS, Trade and Diplomacy on the China Coast 1954. Fairbanks used the then common Orientalist argument that the Chinese government had not been in a position to respond firmly to the British advance because it had tied itself to traditions of Confucianism. On the Opium Wears see BEECHING, Chinese Opium Wars 1975; GELBER, Opium, Soldiers and Evangelicals 2004; INGLIS, The Opium War 1976); ZHENG, Social Life of Opium 2005, pp. 87–115.

[9] I use the terms protocol, eschatocol and disposition in the sense of diplomatics. In this sense, protocol stands for preliminary matters, eschotocol for concluding matters and disposition for those parts of a treaty that contain provisions and regulations respecting the relations between the signatory parties.

[10] Treaty of Nanjing between China and the United Kingdom 29 August 1842, Art. I, in: CTS 93, p. 466.

[11] Thus already GROTIUS, De jure belli ac pacis 1939, pp. 827–30.

[12] Treaty of Nanjing between China and the United Kingdom 29 August 1842, Art. III, in: CTS 93, p. 467. It was supplemented by the additional treaty of Hu-mun Chase concluded between China and the United Kingdom on 8 October 1843, which (in Art. VII) conceded the freedom of the choice of residence to British subjects at the treaty ports under the supervision of British consular agents. See CTS 95, p. 325.

[13] FISCH, Krieg und Frieden 1979, pp. 15–16. Despite its restriction to the history of the notion of amnesty, Fisch’s study has remained, even for the nineteenth century, the sole comprehensive work on the history of the formulary of treaties by international public law. As a rule, the research literature has investigated the treaties that Western governments concluded with the governments of China and Japan in the course of the nineteenth century, within analyses of the specific bilateral relations.

[14] Treaty of Nertschinsk between China and Russia of October 1689, in: CTS 18, pp. 505–507; Treaty of Kiachta between China and Russia of 1727, in: CTS 33, pp. 25–32. The latter replaced by the treaty of 18 October 1768, in: CTS 44, pp. 229–231. On the historical background of the treaties see BAUER, China und die Fremden 1980.

[15] For the Japanese foreign policy towards China during the Bakumatsu Period see JANSEN, China 1992; WAKABAYASHI, Opium, Expulsion, Sovereignty 1992.

[16] See HOWLAND, Translating the West 2002, pp. 64–66; LEE, Traduction et circulation des termes de droit 2004.

[17] For a discussion of the discrepancies in perception see ZÖLLNER, Verschlossen wider Wissen 2003. Mizuno Tadaakira, Director of Financial Administration, issued an edict only in 1825 according to which all foreign vessels had to be repelled which were not travelling with a landing permission for Nagasaki. Even vessels with a landing permission could only land in Nagasaki port. See Chukai 1932. Accordingly, the 1846 expedition by Commodore James Biddle failed to accomplish its goal of landing in Japan to »open« the country for trade. Japanese port officials in Nagasaki turned away Biddle’s ship on account of the edict.

[18] For the subsequent treaties see below, notes 36–53.

[19] On the denial of reciprocity as an instrument of great-power politics see OLIPHANT, Narrative 1859, vol. 2, pp. 248–249. ANAND, Family of »Civilized« States and Japan 2003 provides an overview without recognizable use of Japanese sources and in total confinement to the European perspective. Thus the report does not touch upon the issue of the globalization of the European law of treaties between states.

[20] Treaty between Thailand and the USA, dated 20 March 1833, in: CTS 83, pp. 211–215, especially Art. I. Likewise the treaty between Muscat and the USA, dated 21 September 1833, in: CTS 84, pp. 38–40.

[21] The Republic of Venice concluded treaties of peace and trade with the Turkish Sultan as early as on 20 October 1540, 7 March 1573 and 10 August 1579. See DUMONT, Corps universel diplomatique 1726–1731, vol. 4, part 2, pp. 197–200, vol. 5, part 1, pp. 218–1219, 244–247. French-Turkish Treaty, dated 20 May 1604, in: ibid., vol. 5, part 2, pp. 39–43.

[22] Treaty between Algiers and Denmark, dated 10 April 1746, in: CTS 38, pp. 27–35.

[23] See MARTENS, Einleitung in das positive Völkerrecht 1796, p. 59; HEFFTER, Völkerrecht 1844, § 82, p. 155. On the law of treaties see also KLÜBER, Europäisches Völkerrecht 1851, §§ 149–151, pp. 169–172; WHEATON, Elements 1889, §§ 252–255, pp. 356–358. Even though Klüber continued to uphold the medieval religious conviction that treaties were »sacred«, he still regarded the making of treaties as acts of secular decision-making.

[24] For early cases of these treaties in the Middle Ages see FISCH, Krieg und Frieden 1979, pp. 533, 539, 651, 674; GIHL, Legal Character 1957, p. 54; LESAFFER, Westphalia Peace Treaties 1997, p. 94; LESAFFER, Medieval Canon Law of Contract 2000; STEIGER, Völkerrecht und Naturrecht 1997, p. 48; WEHBERG, Pacta sunt servanda 1959. For Siebold see below, note 47. The formulary of the peace treaty continued to be applied towards Japan even in treaties that the same European or US government concluded with the Japanese government after »peace« had already been established on the basis of a treaty between the same signatories. By contrast, the British as well as the US governments refrained from using the formulary of the peace treaty in their instruments with the Ottoman Turkish government during the nineteenth century. They appear to have acted in the consciousness that, by that time, the Ottoman Turkish Empire had already been included into the European system of peace arrangements. See the treaties concluded between Turkey and the United Kingdom on 16 August 1838, in: CTS 88, p. 77–84, and between Turkey and the USA of 7 May 1830, in: CTS 81, pp. 7–24.

[25] The British-Siamese Treaty, dated 18 April 1856, went beyond the stipulation of non-reciprocal rules for bilateral trade, the treatment of shipwrecks and the rights of British subjects in Siam and included the non-reciprocal concession of consular jurisdiction for British subjects in Siam. See the Treaty between Siam and the United Kingdom of 18 April 1856, in: CTS 113, pp. 84–92. The treaty became the model for the Siamese-US Treaty of 29 May 1865, in: CTS 115, pp. 112–22, and for the French-Siamese Treaty of Friendship, Trade and Navigation, dated 15 August 1856 in: CTS 114, pp. 392–403. It needs to be recollected that the American-Siamese Treaty of 1856 was made out and signed by Townsend Harris as the US emissary, who was then on his way to Japan. See HARRIS, Complete Journal 1959, pp. 130–131, 156. FISCH, Krieg und Frieden 1979, p. 11, assumes that treaties of amity did not represent a class of legal instruments of their own but were a variant of the peace treaties. The arguments, however, encounters the difficulty that, as shown through the comparison of the Nanjing Treaty with the Japan treaties, treaties of peace usually contained specific regulations concerning the making and the maintenance of the peace concluded through the treaty, such as the obligation to resort to peaceful conflict solution in the future. By contrast, amity treaties would set peace in general terms and stipulate the modes of future bilateral political relations. The use of the formulary of the peace treaty in amity treaties did not necessarily flow from the intention of stipulating specific provisions of the conclusion and the maintenance of peace.

[26] For example see BEASLEY, Great Britain 1951, p. 104; MITANI, Escape 2006, p. 109.

[27] In 1854, the Japanese government was thus in a position similar to that of the Chinese government when it made the Treaty of Kiachta with Russia in 1727 (see above, note 14). On that occasion, the Chinese government availed itself of the services of Jesuit missionaries doing work in China. Thus the original of the Treaty of Kiachta was written out in Latin.

[28] Perry refused to accept any Japanese request concerning the procedure of making bilateral agreements between states and insisted that US conceptions of human rights had to be recognized as universally applicable. Without the recognition of human rights as universal by the Japanese government there could not be amity between Japan and the USA. See PINEAU, Japan Expedition 1968, p. 105. Perry also refused to respect the Japanese request that the negotiations should be conducted at Nagasaki (ibid., pp. 168–169). On Perry’s first draft see HAWKS, Narrative 1856, pp. 409–410. Dai Nihon Ishin Shiryo 2, part 3 (1882), p. 402. On the negotiations see the recent study by MITANI, Escape 2006, pp. 182–198.

[29] Treaty between Japan and the USA of 31 March 1854 [Treaty of Kanagawa], Preamble and Art. I, in: Treaties and Conventions Japan 1874, pp. 1–2. Also in: CTS 111, pp. 378–387. The edition of 1874 is official in character and has the treaties in the Japanese and the various vernacular versions. The US expedition gave incentive to a translation of an older historical inquiry into the relations between Europe and Japan. See MEYLAN, Geschichte des Handels der Europäer 1861. The Dutch government assisted the US government in the preparation process by making accessible to the US maps from the Siebold collection. Yet the Dutch government placed its assistance under the condition that mission would become a »friendly visit«. See Charles-Ferdinand Pahud, [Letter to Duymaer van Twist, dated 17 July 1852], in: SHEWMAKER, Papers of Daniel Webster 1983–1987, vol. 2, p. 304. George Folsom, US envoy to the Netherlands, received permission to consult the maps in the Hague in 1852. See Folsom’s letters to Daniel Webster, dated 20 March 1852 and 14 June 1852, in ibid., pp. 299–301, 301–302. The US government then had no access to an edition of Siebold’s multi-volume printed work on Japan.

[30] Treaty of Kanagawa, Art. III., IV., V. VIII. and X. in: Treaties and Conventions Japan 1874, pp. 2–3. The inclusion of this article may have been the result of the so-called Morrison affair. This US vessel had arrived from China in Nagasaki in 1837, seeking to repatriate three Japanese shipwrecks who had been driven across the Pacific and made landfall on the Northwest American coast. Daniel Webster, then Secretary of State for Foreign Affairs, emphasized in his diplomatic correspondence on the preparation of the Perry mission in the year 1851 that he had been advised to raise the treatment of shipwrecks as a US demand towards Japan. See Daniel Webster, [Letter to William Alexander Graham, dated 9 May 1851], in SHEWMAKER, Papers of Daniel Webster 1983–1987, vol. 2, p. 288. Perry referred to the Morrison incident in his negotiations with the government in Edo using the argument that the human rights of shipwrecks ought to be protected. See Perry‘s letter to the »Emperor of Japan«, dated 7 July 1853, in: PINEAU, Japan Expedition 1968, p. 105. Negotiators on the Japanese side responded by saying that human rights had always been protected in Japan. See [Report of the Amerika Osetsu to the Roju of 2 April 1854], in: Bakumatsu Gaikoku Kankei Monjo 5, pp. 478–485 [English version in BEASLEY, Select Documents 1955, pp. 122–127]. Nevertheless, it needs to be noted that the rescue of shipwrecks had previously been the issue of provisions in bilateral treaties, such as in the Turkish-Venetian Treaty of 1540 and in the French-Turkish Treaty of 1604, DUMONT, Corps universel diplomatique 1726–1731, vol. 4, part 2, pp. 198, and vol. 5, part 2, p. 40.

[31] The prohibition was lifted in 1866.

[32] Treaty of Kanagawa, in: Treaties and Conventions Japan 1874, pp. 2–4. As a matter of principle, not only the US government was early to accept reciprocity of limitations regarding the freedom of travel within the territory of a signatory partner. Thus the British government respected restrictions of travel in the territory of the Ottoman Turkish Empire and the Kingdom of Siam in its treaties with the Turkish Sultan and the King of Siam of the early nineteenth century.

[33] In accepting these conditions, Perry followed Westster’s instructions. In his letter to John H. Aulick, Commander of the US East India Squadron, initially considered as the head of the US Japan expedition, Webster had given the instruction that the expedition should only search for possibilities to purchase coal in Japan for US steamships. See Daniel Webster, [Letter to John H. Aulick, dated 10 June 1851], in SHEWMAKER, Papers of Daniel Webster 1983–1987, vol. 2, pp. 290–291. However, John Glynn, Supreme Commander of the US Navy, argued, sidetracking Webster, that the US population would soon demand the conclusion of a general treaty of trade and therefore proclaimed the goal of »opening« Japan for world trade as the goal of the expedition. Glynn assumed that the demand for the »opening« of Japan for trade in general would also alleviate potential criticism by British traders active in China that the US might be trying to make arrangements with Japan to the disadvantage of British traders. See John Glynn, [Letter to President Millard Fillmore, dated 10 Juni 1851], in SHEWMAKER, Papers of Daniel Webster 1983–1987, vol. 2, pp. 292–293. See for the involvement of Siebold in the planning of the expedition BARROWS, The Great Commodore 1935, pp. 223–224; FRANZ, Siebold and Russian Policy 2005, pp. 74–81. Siebold made an effort to become a member of the expedition but the US government declined his request. See MORISON, Old Bruin 1967, p. 276.

[34] Treaty of Kanagawa, in: Treaties and Conventions Japan 1874, p. 4. WILLIAMS, Journal 1910, p. 152. There are the following printed travel reports related to the US expedition: HEINE, Reise nach Japan 1856; HILDRETH, Japan 1860; HAWKS, Narrative 1856; PINEAU, Japan Expedition 1968; TOMES, Japan 1859; BEASLEY, Perry Mission 2002. On the expedition see BEASLEY, Great Britain 1951, pp. 87–112; LAFEBER, Clash 1997, pp. 9–17; GRIFFIS, Perry 1890; MITANI, Escape 2006, pp. 117–41, 179–220; MORISON, Old Bruin 1967; STATLER, Black Ship Scroll 1963; WALWORTH, Black Ships off Japan 1966; WILEY / KOROGI, Yankees in the Land of the Gods 1990. Perry concluded a similar treaty in the name of the US government with the government of the Ryukyu Kingdom on 11 July 1854, in: CTS 112, pp. 78–79.

[35] See WICQUEFORT, Embassador 1716, pp. 2, 121–122, 246, 275, 277, 279, 281, 335, 337, 371.

[36] See ASTON, Phaeton in Nagasaki 1879.

[37] WILLIAMS, Journal 1910, p. 220; MITANI, Escape 2006, p. 225.

[38] The most significant source on Stirling’s negotiations are: Correspondence Japan 1856, pp. 220–221, 225. Dai Nihon Komonjo. Bakumatsu Gaikoku Kankei Monjo 7 (1915), Nr. 18, pp. 39–63, Nr. 55, pp. 147–150, Nr. 79, pp. 214–217, Nr. 85, pp. 247–253, Nr. 133, pp. 374–383, Nr. 137, pp. 385–390, Nr. 141, pp. 408–410, Nr. 142, pp. 410–418, Nr. 148, pp. 425–427, Nr. 151, pp. 439–441. VOS-KOBAYASHI, Bakumatsu Dejima mikokai monjo 1992, pp. 90–100. Following Beasley, historians have often traced the differences of wording between the English and the Japanese versions of Stirling’s letter to the lack of language competence of the only Japanese person then present in Nagasaki and having some command of the English language. The person was Otokichi, one of the survivors whom the Morrison crew had sought to repatriate in 1837. The British government had employed Otokichi in Shanghai and arrived at Nagasaki on board of Stirling’s vessel. See BEASLEY, Great Britain 1951, p. 116. MITANI, Escape 2006, pp. 223–226. It is not possible to prove this postulate. By contrast, it is possible to point to records showing that the Nagasaki Bugyo as well as the government in Edo recognized the danger of being drawn into a conflict not concerning Japan. As Stirling’s initial intention has remained unascertainable, the assumption remains possible that the Japanese government could have been justified in believing that Stirling wanted to conclude a British-Japanese alliance against Russia. Close contemporary reports on Stirling’s mssion are in OLIPHANT, Narrative 1859; OSBORN, Cruise 1859; OSBORN, Japanese Fragments 1861; RENNIE, British Arms 1864; TILLEY, Japan 1861; TRONSON, Personal Narrative 1859; WESTFIELD, The Japanese 1862. On British-Japanese relations in the 1850s see BEASLEY, Great Britain 1951, esp. pp. 113–193. BEASLEY, Collected Writings 2001; CORTAZZI, Victorians in Japan 1987; CORTAZZI / DANIELS, Britain and Japan 1991; CORTAZZI, Sir Rutherford Alcock 1994; CORTAZZI, British Envoys 2004; DANIELS, Sir Harry Parkes 1996; ECKEL, Crimean War and Japan 1944; FOX, Anglo-Japanese Convention 1941; FOX, Great Britain and Japan 1969; FRANZ, Siebold and Russian Policy 2005, pp. 81–84; MITANI, Escape 2006, pp. 221–234; NISH, Britain and Japan 1994–2005; STEPHAN, Crimean War 1969. Despite the views articulated by Beasley, Eckel, Mitani and Stephan (see above) British sources on Stirling’s expedition do not yield unequivocal evidence that, in the view of the British government, specifically the Admiralty, the »opening« of Japan had any connection with strategic planning in the context of the Crimean War. Solely the negative argument is on record that the British government was unwilling to open a new front in its conflict with Russia.

[39] For normative statements relating to the requirement that signatory parties should be represented by formally appointed agents see SCHMELZING, Grundriss 1818–1820, §§ 373–383, vol. 2, pp. 294–315, HEFFTER, Völkerrecht 1844, § 84, pp. 159–160; KELSEN, Staatslehre 1925, p. 123; REUTER, Introduction 1989.

[40] Treaty between Japan and the United Kingdom of 14 October 1854 [Treaty of Nagasaki], Preamble, in: Treaties and Conventions Japan 1874, pp. 6–7. Also in: CTS 112, pp. 246–250. The articles of the dispositive part contain only rules relating to British subjects in Japan. BEASLEY, Great Britain 1951, p. 127, was wrong in maintaining that the provision comparing the status of British subjects to that of Chinese and Dutch settlers at Nagasaki was only contained in the English and not in the Japanese version. In fact, this provision is also in the Japanese version. See Treaty of Nagasaki, Art. V, in: Treaties and Conventions Japan 1874, p. 7.

[41] Instruction of the Earl of Clarendon to the Earl of Elgin, dated 20 April 1857, London, National Archives, FO 405/2, p. 23. Elgin’s report to the Earl of Malmesbury, dated 20 August 1858, ibid., pp. 630–631. The treaty has been printed in: Treaties and Conventions Japan 1874, pp. 111–129. Also in CTS 119, pp. 402–412.

[42] Oliphant suffered from a cut of his arm by a sword, in consequence of which three fingers remained lame. He returned to the UK in the same year 1861 with a letter of apology that the Shogun had addressed to Queen Victoria. He then moved on to the USA. He reported on the incident in his autobiographical writings. See OLIPHANT, Episodes 1887, pp. 185–211. On Oliphant see OLIPHANT, Memoir 1892. Oliphant‘s positions concerning British political attitudes towards Japan are recorded in OLIPHANT, Narrative 1859, vol. 2, pp. 248–249. Oliphant’s contemporary Osborn was no less optimistic. See OSBORN, Cruise 1859, p. 47.

[43] Hakodate-shi 1990, p. 52. MORMANNE, La prise 2004, pp. 209–210.

[44] Caspar Brennwald, [Tagebuch], edited by IMMOOS, Eidgenossen 1982, pp. 35–36.

[45] ALCOCK, Extracts 1861; ALCOCK, Capital 1863, pp. 282–283.

[46] On the history of Japanese-Russian relations leading up to the treaty see ADAMI, Schwierige Nachbarschaft 1990; BARRATT, Russia in Pacific Waters 1981; LENSEN, Importance of Tsarist Russia 1957; LENSEN, Russian Push 1959; RAMMING, Über den Anteil der Russen 1926.

[47] Already the years 1851 and 1852 witnessed efforts to induce the Dutch and the Russian governments to request the »opening« of Japan. They appear to stem from Philpp Franz Balthasar von Siebold who initially pressured the Dutch government to conclude a treaty with Japan and, once this initative had been fruitless, sent two drafts for a treaty to the Russian government. Siebold’s drafts have been preserved in the Algemeen Rijksarchief in the Hague, Kolonien Geheim Verbaal 5831 # 38, in the private archives of the Earl of Brandenstein-Zeppelin at Schloss Brandenstein, Ms 5, Ms 40, Ms 45, and in the Central Archive of the Russian Navy in St. Petersburg, 296 f. 75a, fol. 1566r–v. Japanese versions have been edited by Masahide Miyasaka in MIYASAKA, Various Works 1994-1995. FRANZ, Siebold and Russian Policy 2005, pp. 154–161, prints English versions of Siebold‘s German texts. On Siebold’s activities see FRANZ, Siebold’s Endeavors 2002; FRANZ / YOSHIDA, Siebold’s Correspondence 2003; FRANZ, Siebold’s Influence 2003; FRANZ, Siebold and Russian Policy 2005, passim; HENKER, Siebold 1993; KOUWENHOVEN / FARRER, Siebold and Japan 2000; KURE, Siebold 1997; KUTSUZAWA, Activities of Siebold 2000; MACLEAN, Siebold 1978; PLUTSCHOW, Siebold 2007, pp. 47–101, 149–164; RAMMING, Einige Mitteilungen 1982.

[48] Treaty between Japan and Russia of 7 February 1855 [Treaty of Shimoda], Preamble and Art. I, in: Treaties and Conventions Japan 1874, pp. 9–10. Also in CTS 112, pp. 468–471.

[49] Treaty of Shimoda, in: Treaties and Conventions Japan 1874, pp. 10–12. On the personality of law see FRANZ, Siebold and Russian Policy 2005, pp. 160–161. MITANI, Escape 2006, p. 251, mistakingly equated personality of law with extraterritoriality. Therefore, his statement that the treaty was reciprocal in terms of extraterritoriality is wrong.

[50] As long as the Dutch East India Company (VOC) existed, that is until 1798, the relations between Japan and the Netherlands were perceived differently on either side. Whereas they were relations between states from the point of view of the Japanese government, which treated the VOC as an agent of some Dutch kingdom, from the point of view of the VOC they were relations between a chartered private trading company and Japan, that did not involve the States General as an actor. See CROISSANT, Japan und Europa 1993; SCHMITT, Kaufleute 1988. The forced inclusion of Japan into the European dominated world market gave reason to several publications seeking to document the historical depth of Dutch-Japanese relations as well as Dutch government efforts to »open« Japan. See BLEY, Politik der Niederlande 1855; CHIJS, Neêrlands streven 1867; DOREN, Openstelling van Japan 1861; POMPE VAN MEERDERVOORT, Vijf jaren 1867–1868; SIEBOLD, Geschichte der Entdeckungen 1852; SIEBOLD, Urkundliche Darstellung 1854.

[51] Treaty between Japan and the Netherlands of 30 January 1856, Preamble, in: Treaties and Conventions Japan 1874, p. 15. Also in: CTS 114, pp. 226–229 (Dutch version), pp. 230–233 (English version).

[52] Dutch-Japanese Treaty, in: Treaties and Conventions Japan 1874, S. 16 Art. II and III. On consular jurisdiction in Japan see CHANG, Justice 1984; HOARE, Extraterritoriality 1983; JONES, Extraterritoriality 1931.

[53] Dutch-Japanese Treaty, in: Treaties and Conventions Japan 1874, pp. 16, 18, 20, 21. The Dutch side interpreted the provision in Art. XI as the guarantee of a free-trade zone on Deshima and, in the negotiation for a new treaty in 1858, insisted upon maintaining this alleged privilege. See MACLEAN, Siebold 1978, p. 64.

[54] Treaties and Conventions Japan 1874, pp. 52–70. Also in: CTS 119, pp. 254–280.

[55] Treaties and Conventions Japan 1874, pp. 71–89. Also in: CTS 119, pp. 314–332.

[56] Treaties and Conventions Japan 1874, pp. 90–110. Also in: CTS 119, pp. 338–347.

[57] Treaties and Conventions Japan 1874, pp. 111–129. Also in: CTS 119, pp. 402–412.

[58] Treaties and Conventions Japan 1874, pp. 130–150. Also in: CTS 120, pp. 8–20.

[59] See AUSLIN, Negotiating with Imperialism 2004. Auslin, p. 7, however, is incorrect in his assumption that Western governments were then in agreement not to colonize Japan.

[60] Japan-USA Treaty, in: Treaties and Conventions Japan 1874, pp. 53–57 Preamble, Art. III, V, VI. Actually the ports of Kobe and Niigata were opened only on 1 January 1868, see Appendix on Trading Rules, ibid., pp. 69–70 Art. VII. Only Art. II featured a provision specific to this treaty. The provision states that, upon request by the Japanese government the US envoy can act as an intermediary between Japan and any European government. Harris himself took over this role as an intermediator only in the 1850s. By contrast, in the 1860s, the treaties between Japan on the one side and Prussia and Switzerland on the other, Harris acted as intermediator jointly with the Dutch emissary Polsbroek and the French envoy de Bellecourt. See Bundesarchiv – Militärarchiv, RM 1/2877, fol. 46r–46v, 44r–44v. MITANI, Escape 2006, pp. 290–291, argues apologetically that the provisions concerning consular jurisdiction was reciprocal. He supports this argument with the observation that Japanese courts were placed in charge of criminal acts committed by Japanese subjects on US citizens, and, for that matter, on subjects of European states, and the Japanese government had also reserved for itself the regulation of compensation in civil cases involving Japanese subjects on the one side and US citizens and subjects of European states on the other. Although this observation is correct, the Ansei Treaties were unequal because they denied the same regulations to Japanese subjects in the US and European states.

[61] Contemporary reports on the French expedition are extant in works by CHASSIRON, Notes 1861, pp. 3–183; FRAISSINET, Japon 1864; MOGES, Souvenirs 1860; MONTBLANC, Japon 1867; ROSNY, Civilisation japonaise 1861. On French-Japanese relations see LI, Relations économiques 1977; MEDZINI, French Policy in Japan 1971; NARUIWA, Bakumatsu Nihon to Furansu gaikô 1997; NIIRO, L’image du Japon 2000; NISHIBORI, Japan’s Intercourse 1985; SIEFFERT, Japon et France 1974; SIMS, French Policy 1998.

[62] French-Japanese Treaty, in: Treaties and Conventions Japan 1874, p. 130. The same title was used in the British-Japanese Treaty, while the Dutch version of the Japanese-Russian Treaty of Shimoda and the Dutch-Japanese Treaty featured the title »Taikoen«, ibid., pp. 52–53, 71–72, 90–91, 111–112. Strangely for the year 1858, the Japanese version of the French-Japanese Treaty also names France first.

[63] Contra MARTIN, Preußische Ostasienexpedition 2002, who argues wrongly that according to what he termed »Japanese theories of the state«, bilateral treaties were thinkable only as being concluded between »one ruler and another ruler«.

[64] French-Japanese Treaty, in: Treaties and Conventions Japan 1874, pp. 131–133 Art. III. The ports of Niigata and Bobe were subject to the restriction specified in note 60 above.

[65] London Protocol of 6 June 1862, in: Treaties and Conventions Japan 1874, pp. 223–226.

[66] Convention of Paris of 25 June 1864, in: Treaties and Conventions Japan 1874, pp. 227–229. Convention of Shimonoseki of 22 October 1864, in: ibid., pp. 230–233.

[67] Treaty between Japan and Portugal of 3 August 1860, in: Treaties and Conventions Japan 1874, pp. 151–170. Also in: CTS 122, pp. 306–316. On Japanese-Portuguese relations see FELDMANN, Moraes und Japan 1987; MATSUDA, Relations 1965.

[68] On German-Japanese relations at the middle of the nineteenth century see FREITAG, Japan und die Japaner 1942; KERST, Anfänge 1953; KERST, Ursachen 1960; KERST, Deutsche Expedition 1961; KERST, Deutsche Expedition 1962; KERST, Bedeutung Bremens 1965; MARTIN, Prussian Expedition 1990; MARTIN, Preußische Ostasienexpedition 1991; MARTIN, Öffnung Japans 1992; MARTIN, Preußische Ostasienexpedition 2002; MATHIAS-PAUER, Hansestädte und Japan 1983; MATHIAS-PAUER, Hansestädte und Japan 1992; OHRT, Preussische Expedition 1911; OSTWALD, Deutschland und Japan 1941; PANTZER, Japanische Impressionen 2007; PETTER, Überseeische Stützpunktpolitik 1975; SALEWSKI, Preussische Expedition 1988; SALEWSKI, Preußische Ostasienpolitik 1990, p. 104; SALEWSKI, Marine 1998; SCHUSTER, Vorbilder und Zerrbilder 1988; SIEMERS, Japans Eingliederung 1937; STAHNCKE, Diplomatische Beziehungen 1987; STAHNCKE, Lühdorfs Handelsexpedition 1988; STUMPP, Interkulturalität 2002; SUFFA-FRIEDEL, Preussische Expedition 1987; YÜ, Deutsch-chinesische Beziehungen 1981.

[69] Treaty between Japan and Prussia of 21 January 1861, in: Treaties and Conventions Japan 1874, pp. 186–206. Also in: CTS 123, pp. 448–458.

[70] The diaries of the Prussian expedition have been preserved in Bundesarchiv – Militärarchiv, BA-MA, files RM 1/2350 and RM 1/2877, specifically in the latter file on fol. 171r–176r. The details of the negotiations have been analyzed by OHRT, Preussische Expedition 1911, pp. 227–235. Ohrt did not specify his sources but seems to have relied on the diaries.

[71] The diaries of the expedition displayed the same lack of certainty regarding the spelling of the title in their early parts (Bundesarchiv – Militärarchiv RM 1/2877, fol. 47r, 5. 8. 1860: »Tycoon«; fol. 87r, 5. 9. 1860: »Taikun«; fol. 120v, 13. 10. 1860: »Taikuhn«; fol. 126v, 20. 10. 1860: »Taikuhne«; fol. 146r, 13. 10. 1860: »Taikuhn«), probably following English Tycoon, that had been popularized by Rutherford Alcock. See ALCOCK, Capital 1863, Title. Before Alcock, OSBORN, Cruise 1859, p. 31, had used the Japanese title in the form of »Tai-koon«, which he had equated with »Temporal Emperor«.

[72] Thus already Bernhard Varen in his »Descriptio regni Japoniae«, Amsterdam 1649, Chap. IV. In the German version VAREN, Beschreibung 1974, p. 51.

[73] The verdict that the Tenno should be regarded as politically insignificant was based on Engelbert Kaempfer’s interpretation of the power relations between the Shogun and the Tenno. According to Kaempfer, the Tenno was the »presente pontificiale Abgott« (pontifical idol of the present) in charge of canonizations (KAEMPFER, Heutiges Japan 2001, p. 174), which Kaempfer’s translator Johann Gaspar Scheuchzer rendered as »Japanese Pope« (KAEMPFER, History of Japan 1727, vol. 1, p. 206). So still GOLOVNIN, Japan and the Japanese 1853, vol. 2, p. 118. Already at the beginning of the nineteenth century, Julius Heinrich Klaproth rejected Kaempfer‘s application of the imperial title upon the Shogun and positioned the Tenno as emperor and the sole legitimate ruler of Japan. See KLAPROTH, Account of Japan 1831, p. 196; KLAPROTH, Voyages au Japon 1833, pp. 95–96. On the problem of Western descriptions of the Japanese constitution of the Edo Period see MATSUMOTO, Beziehungen zwischen Mikado und Schogun 1931; POWLES, Myth of the Two Emperors 1968.

[74] Japanese-Prussian Treaty, in: Treaties and Conventions Japan 1874, pp. 187–189, 190–195, Art. I.

[75] Handels-Regulativ, Art. VII, in: ibid., pp. 204–205. The Ansei Treaties had set the model.

[76] See KLEINSCHMIDT, Demands for Free Trade 1997.

[77] LE JEUNE, Observations 1780, pp. 1–11. For studies see SHACKLETON, Asia 1965; ZÖLLNER, Preussische Japan-Rezeption 2002, pp. 62–63.

[78] KERST, Anfänge 1953, p. 15.

[79] In his draft of a letter by US-President Millard Fillmore to the »Japanese Emperor« [the letter was to be submitted to the Shogun], dated 10 May 1851, Daniel Webster defended the US pressure for the »opening« of Japan with the sentence »Your Empire has a great abundance of coal; this is an article which our Steamships, in going from California to China, must use.« See SHEWMAKER, Papers of Daniel Webster 1983–1987, vol. 2, p. 289. The same in PINEAU, Japan Expedition 1968, p. 221. In his retrospective account of the Perry expedition, the geographer and supporter of US colonial expansion Archibald Ross Colquhoun still held the same view early in the twentieth century, see COLQUHOUN, Greater America 1904, p. 412.

[80] IMHOFF, Ordeel 1853.

[81] LÜHDORF, Acht Monate 1857, pp. 198–200, 202–204. The same in: Kaiserreich Japan 1860, pp. 72–79, 85–96, 207–211. On Lühdorf see MEISSNER, Supercargo Lühdorf 1940; STAHNCKE, Lühdorfs Handelsexpedition 1988. Karl Friedrich Neumann, the Munich Orientalist, held the same view that Japan was rich in minerals. See NEUMANN, Reich Japan 1858.

[82] OLIPHANT, Narrative 1859, p. 48.

[83] Bericht über den Ritt nach Kanagawa und Yokohama vom 22. bis 24. September 1860, Ms. Freiburg, Bundesarchiv – Militärarchiv, file RM 1/2877, fol. 105v–108v [enclosed in the diary of the Prussian expedition, after the entry 24 September 1860]. As late as in 1863 the Venetian born entrepreneur Revoltella, living in Triest, advised the Austria-Hungarian government to regulate trade with Japan on the basis of a bilateral treaty, so that Austria-Hungarian traders could draw profits from that trade that Revoltella expected to be similar to those made by rival traders. See REVOLTELLA, Österreichs Betheiligung 1864, p. 16. In doing so he followed the view of the Austrian admiral Bernhard Freiherr von Wüllerstorf-Urbair, who had commanded the Austrian frigate Novara’s cruise around the world. The Novara had stopped over in Japan in 1859, see WÜLLERSTORF-URBAIR, Mittheilungen 1861.

[84] KOSSAK, Hildebrandt’s Reise 1872, vol. 2, pp. 87–88; KREYHER, Preußische Expedition 1863, pp. 140–142, 144; SPIESS, Preußische Expedition 1864, pp. 159–160. Similarly Eulenburg in the report on his arrival, Bundesarchiv – Miliärarchiv, file RM 1/2877, fol. 43r–43v. OLIPHANT, Narrative 1859, p. 249; ANONYMOUS, Neuere Mitteilungen über Japan 1861, p. 352 [review of publications by Alcock and Oliphant]. On the change of the European image of Japan see also BATY, Literary Introduction 1951–1952; FREITAG, Japaner 1939; LEHMANN, Image of Japan 1978.

[85] BRANDT, Dreiunddreißig Jahre 1901, vol. 1, pp. 135–136, was straightforward in his criticism of the Japanese government. The Austria-Hungarian Baron Raimund von Stillfried-Ratenicz emphasized towards his government as late as in 1868 that he was being tolerated as an Austrian subject in Japan only if he placed himself under the protection of a treaty power. Stillfried had himself employed by Brandt in the Prussian mission. See Stillfried’s report in Vienna, Haus-, Hof- und Staatsarchiv, Adminstrative Registratur, S. R. 1868–1872, 69/5. On the Prussian expedition see the following collections of reports and letters: BERG, Preußische Expedition 1864–1873, vols 1 and 2, specifically vol. 2, pp. 164–167. The passage records the Prussian claim that the expedition should have been required by demand to ensure diplomatic protection for subjects of members of the German Customs Union. See Karl von Eisendecher, [Brief von der Expedition], in TRAUTZ, Seekadettenbriefe 1941, pp. 147–51, 162; EULENBURG-HERTEFELD, Ost-Asien 1900; HEINE, Japan 1860; HEINE, Weltreise 1864; KREYHER, Preußische Expedition 1863, specifically pp. 91, 97, 125; MARON, Japan und China 1863, specifically pp. 25–27; RATZEBURG, Skizzen 1864; SPIESS, Preußische Expedition 1864; WERNER, Preußische Expedition 1864, specifically pp. 167–170. The essential passages on the Prussian East Asian expedition have been reprinted in STAHNCKE, Preussens Weg nach Japan 2000.

[86] JACOB, Bericht 1861, in: Württembergisches Hauptstaatsarchiv Stuttgart, Bestand E 50/01, Bü 1684. KREYHER, Preußische Expedition 1863, pp. 124–125; OSBORN, Japanese Fragments 1861, p. 136.

[87] Sources on the preparation and implementation of the Swiss expedition to Japan are extant in Schweizerisches Bundesarchiv, Bestand E 6, vol. 36 and in the Neuchâtel Cantonal Archives, Humbert Papers, Dossiers 11–13. See also BIAUDET, Documents 1990, pp. 809–827. For the history of Japanese-Swiss relations see ADLER, Bilder der Schweiz 1994; IMMOOS, Eidgenossen 1982; BARRELET, Diplomatie 1986; BARRELET, Petit guide 1988; BARRELET, Horlogers suisses 1994; MOTTINI, Schweiz und Japan 1998; MOTTINI, Eidgenossen entdecken Japan 2001; MOTTINI, Schweiz in der Demokratie-Bewegung 2004; MOTTINI, Swiss-Japanese Treaty 1864; MOTTINI, Der lange Weg 2007; MOTTINI, Switzerland’s Way 2006; NAKAI, Aufnahme der diplomatischen Beziehungen 1964; NAKAI, Verhältnis 1967; ROMBERG, Schweizer in Japan 2004; SIGERIST, Schweizer in Asien 2001, pp. 228–247.

[88] JACOB, Bericht 1861, p. 18.

[89] BRENNWALD, Generalbericht 1865, pp. 45–48.

[90] LINDAU, Handelsbericht über Japan 1862–1863, erste und zweite Abtheilung, pp. 2–3.

[91] The newsapaper has continued to exist as the most widely circulating English language daily newspaper in Japan.

[92] LINDAU, Handelsbericht über Japan 1862–1863, erste und zweite Abtheilung, p. 1.

[93] Schweizerisches Bundesarchiv, Bestand E 61, vol. 36, fasc. 168: The Swiss Director of Finances and the Chamber of Trade of the Canton of Zurich to the Swiss Department of Trade and Customs, no date [early May 1858]. The Department of Trade and Customs received recommendation to proceed with the treaty through the mediation of the Dutch government. Under these conditions, the Department recommended the dispatch of a mission to the Union horlogère on 23 August 1858.

[94] CASEMBROOT, Medusa 1865, pp. 29–31. The diary of the Eulenburg-Mission also featured a report on a similar parade (Bundesarchiv – Militarärchiv, file RM 1/2877, fol. 152v–153r) (on 19 November 1860).

[95] HUMBERT, Japon 1867–1869; HUMBERT, Japon illustré 1870. Next to Humbert, Lindau published on his experiences in Japan in the »Revue des deux mondes« and had his texts reprinted as a monograph. See LINDAU, Voyage 1864. On the history of photography in Japan and European photographers working in Japan see BALEMI, Reisephotographie 2003; BAYOU, Felice Beato 1994; BENNETT, Early Japanese Images 1996; GOODRICH, Face of China 1978; COSTANTINI, Verso Oriente 1986; DELANK, Das imaginäre Japan 1996; DELANK, Samurai, Geisha und der große Buddha 1996; DELANK, Japanbilder 2000; DELANK / MARCH, Abenteuer 2002; EDEL, Mukashi Mukashi 1984; FREY-NÄF, Fremdenbild 1996; HAGA, The Diplomatic Background 1980; HAINARD, Temps Perdu 1985; HARRIS, Of Battle and Beauty 1999; KANEKO, Japanische Photographie 1993; MASSELOS, Beato’s Delhi 2000; MOESHART, Dutch Teachers 1986; PHILIPP, Felice Beato in Japan 1991; THEYE, Und überall blüht der Kirschbaumzweig 1989; WORSWICK, Japan 1980; ZANNIER, Beato 1978; ZANNIER, Leggenda 1995. The Japanese-Swiss treaty of 6 February 1864 has been edited in: Treaties and Conventions Japan 1874, pp. 207–222. Also in CTS 129, pp. 44–49.

[96] Treaty between Belgium and Japan of 1 August 1866, in: Treaties and Conventions Japan 1874, pp. 297–316. Also in CTS 132, pp. 490–506.

[97] Treaty between Italy and Japan of 25 August 1866, in: Treaties and Conventions Japan 1874, pp. 317–341. Also in CTS 133, pp. 94–122 (Italian version), pp. 122–134 (English version).

[98] Treaty between Denmark and Japan of 12 January 1867, in: Treaties and Conventions Japan 1874, pp. 342–368. Also in CTS 134, pp. 214–231.

[99] Treaty between Japan and Sweden-Norway of 11 January 1868, in: Treaties and Conventions Japan 1874, pp. 419–442.

[100] Treaty between Japan and Spain of 12 November 1868, in: Treaties and Conventions Japan 1874, pp. 443–461. Also in CTS 138, pp. 246–263.

[101] Treaty between Japan and the North German Confederation of 20 February 1869, in: Treaties and Conventions Japan 1874, pp. 474–500. Also in CTS 139, pp. 92–105. The printed text at the end of the quoted sentence is »nach dem Deutschen«.

[102] Treaty between Japan and the North-German Confederation, in: Treaties and Conventions Japan 1874, pp. 481, 482, Art. VIII: »Japanische Fuersten oder Leute in Diensten derselben [dürfen] sich unter den allgemeinen gesetzlichen Bestimmungen nach Deutschland ... begeben«. »Ebenso soll es allen Japanern, welche mit vorschriftsmaessigen Paessen ihrer Behörden nach Massgabe der Bekanntmachung der Japanischen Regierung vom 23ten Mai 1866 versehen sind, erlaubt sein, sich behufs ihrer Ausbildung oder in Handelszwecken nach Deutsch[land] zu begeben.«

[103] Contra AUSLIN, Negotiating with Imperialism 2004, especially p. 174, who assumes that the Japanese efforts to renegotiate the treaties began only in 1871 in accordance with the date set in the treaties.

[104] University of Tokyo, Keizaigakubu [Department of Economics], 3–A:1111, pp. 476–487. According to its library stamp, the volume has been among Tokyo University holdings since 1924. It was rebound recently, with its margins probably slightly cut on that occasion. Some marginals notes fell victim to the cut.

[105] For references to the »Pacta sunt servanda« clause in nineteenth-century international law theory see WEHBERG, Pacta sunt servanda 1959, pp. 777–781.

[106] On the effects of the Crimean War on the politics of European governments towards East Asia see STEPHAN, Crimean War 1969.

[107] This aspects has so far remained unnoticed in the literature on the treaty revision. See ARAKI, Geschichte der Entstehung 1959; AUSLIN, Negotiating with Imperialism 2004, pp. 146–175; CORTAZZI, Revision 1999. The Iwakura Mission was launched in December 1871 to add to government knowledge about its treaty partners, has often been classed as foment for the growth of revisionist incentive within the Japanese government. See Akira Tanaka, »Introduction«, in KUME, Iwakura Embassy 2002, vol. 1, p. XVI. Kume argued that, although revision was on the agenda of the Iwakura mission, little activity in that direction is on record while the mission was on its way. However, MAYO, Catechism 1967, pp. 389–390, 397–402, and SWALE, America 1998, start from the assumption that the Iwakura mission actually carried out its assignenmt of launching the treaty revision negotiations in the USA. The entire procedure of the removal of unequal provisions from the treaties was tedious. The German Empire and Japan concluded a fully reciprocal treaty of trade only in 1911. On the European side, Heinrich von Siebold was among the earliest supporters of the revision. See plate 2 in LORENZ, Japan und Mitteleuropa 1940.

[108] This treaty dates from 18 October 1869, in: Treaties and Conventions Japan 1874, pp. 507–531. Also in CTS 140, pp. 54–67. On the preparation for and implementation of the Austria-Hungarian expedition see WÜLLERSTORF-URBAIR, Mittheilungen 1861; REVOLTELLA, Österreichs Betheiligung 1864, especially pp. 16–32. [REVOLTELLA-COMITÉ,] Bericht 1865; KREMER, Ein Wort 1864, p. 49; SCHERZER, Österreichische Ostasien-Expedition 1866, p. 123; SCHERZER, Fachmännische Berichte 1872; LORENZ, Japan und Mitteleuropa 1940, pp. 51–67, 118–140. PANTZER, Japan und Österreich-Ungarn 1973; ROSENBERG, Wilhelm Burger 1968, pp. 15–30.

[109] AUSLIN, Negotiating with Imperialism 2004, pp. 6–8, assumes so without stating his reasons.

[110] SCHERZER, Österreichische Ostasien-Expedition 1866, pp. 123-124.

[111] See HORA, Bakumatsu 1977; ISHII, Shijô 1982.

[112] Treaty between Hawaii and Japan of 19 August 1870, in: Treaties and Conventions Japan 1874, pp. 550–553. Also in CTS 141, pp. 448–450. The introductory clause to the treaty reads: »His Majesty the Tennô and his Majesty the King of the Hawaiian Islands being equally animated by the desire to establish relations of friendship between the two countries, have resolved to conclude a Treaty reciprocally advantageous …« (p. 550; p. 448). For the history of treaty relations between Hawaii and the US see SCHOFIELD, Forty-Six Years 1897.

[113] The lack of most-favoured nation status in this treaty appears to have been caused by plantation owners who migrated to Hawaii from the US mainland. Already in the 1870s, they had held the expectation that the Kingdom of Hawaii would be annexed by the USA in the future. They anticipated legal problems in the case that the Kingdom of Hawaii granted most-favoured nation status for Japan, which would, in the case of an annexation have the possibility of claiming most-favoured nation status in its relations with the USA. The settlers argued that Japan should not have most-favoured nation status in its treaty relations with the USA. Formal treaty relations between Hawaii and the USA existed already since 1826. In that year, Hawaii and the USA concluded an unequal treaty confirming peace and amity and regulated the rights of US sailors and traders in Hawaii. Another treaty was concluded in 1849. It was reciprocal in the main but unilaterally granted most-favoured nation status to the USA and granted concessions to US walers in Hawaii. See Treaty between Hawaii and the USA of 23 December 1826; Treaty between Hawaii and the USA of 20 December 1849, in: BEVANS, Treaties 1971, pp. 861–863, 864–871. Also in CTS 77, pp. 33–37, CTS 103, pp. 391–400.

[114] The expectation that many plantation workers could be recruited from Japan did not immediately materialize. On the beginning of Japanese emigration to Hawaii see JOESTING, Hawaii 1972, pp. 193–196.

[115] Treaty between China and Japan of 1872, in CTS 144, pp. 140–143.

[116] Treaty between Perak and the United Kingdom of 20 January 1874, in CTS 147, pp. 196–199.

[117] Treaties between Siam and the United Kingdom of 18 April 1855, in CTS 113, pp. 84–92; of 3 September 1883, in CTS 162, pp. 378–384; of 6 April 1897, in CTS 184, p. 343; of 20 September 1900, in CTS 189, p. 90.

[118] Treaty between Siam and the United Kingdom of 10 March 1909, Art I–IV, in CTS 208, pp. 367–368. Tringganu, Kedah and Kelantan had come under the strong inluence of British traders early in the nineteenth century, as becomes evident from privileges granted to the British government by the government of Siam in 1826. See the Treaty between Siam and the United Kingdom of 20 June 1826, Art. 12, 13, in CTS 76, p. 307.

[119] Treaty of Waitangi between the Maori and the United Kingdom of 5 /6 February 1840, in CTS 89, especially p. 475. On the treaty see ADAMS, Fatal Necessity 1977; LAUBACH, Vertrag von Waitangi 2000. On early immigration from the United Kingdom to New Zealand see HUDSON, English Emigration to New Zealand 2001.

[120] On the so-called »Declaration of Independence« of 1835 and on the preparation of the Hobson mission see Danderson Coates [Address to the House of Commons, 1835], edited in MCINTYRE, Speeches and Documents 1971, p. 7; Queen Victoria, »Instruction to Captain William Hobson« [14 August 1839; Public Record Office, CO 209/4], in MCNAB, Historical Records 1908, p. 731. On William Hobson see BEAGLEHOLE, Hobson 1928; SCHOLEFIELD, Hobson 1934; MCLINTOCK, Crown Colony Government 1958. The Maori wording in the treaty article on sovereignty is: »te Kawanatanga katoa« [control over land], whereas the English version reads »all rights and powers of sovereignty«. In accordance with the wording of the Maori text one »chief« arrived at the conclusion that only the »shadow of the land« had been transferred to Queen Victoria, while the »substance of the land« had remained with the Maori. On the Maori interpretation of the treaty see COLENSO, Treaty of Waitangi 1890, p. 27; WARDS, Shadow of the Land 1968, p. VII. For the discussion of the notion of sovereignty in Maori political thought see AWATERE, Maori Sovereignty 1984. For the wars resulting from the so-called »Treaty of Waitangi« see BELICH, Paradise Reforged 2001; HARROP, England and the Maori Wars 1937; SINCLAIR, Origins of the Maori Wars 1961. For the compensations made payable by court adjudication for damages received through the implementation of the so-called »Treaty of Waitangi« see INFORMATION SECTION, WAITANGI TRIBUNAL DIVISION, Guide 1990. On the Waitangi Tribunal see BYRNES, Waitangi Tribunal 2004; MELVIN, Jurisdiction 2004; OLIVER, Claims 1991. For similarly rigorous steps that other European governments took in Oceania see the case of the German occupation of Samoa in the later nineteenth century, in: LEPSIUS, Grosse Politik 1922, Nr. 818, p. 177. See the treaties between the German Empire and Samoa of 15/23 Dezember 1879, in CTS 155, pp. 455–462; 24 March 1880, in CTS 156, pp. 305–308; 24 January 1888, in CTS 170, pp. 443–446.



ZITIEREMPFEHLUNG

Kleinschmidt, Harald, Establishing Peace and Making Peace Treaties. The Contradictoriness of the European Public Law of Relations between States and Big-Power Foreign Policy at the Middle of the Nineteenth Century, in: Publikationsportal Europäische Friedensverträge, hrsg. vom Institut für Europäische Geschichte, Mainz 2008-11-18, Abschnitt 1–58.
URL: <https://www.ieg-friedensvertraege.de/publikationsportal/kleinschmidt-harald-establishing-peace-2008>.
URN: <urn:nbn:de:0159-2009041467>.

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