The international and geopolitical contexts

The requirements of national sea borders and that of navigational freedom have haunted legal scholars for centuries. Many jurists in the Roman era portrayed the sea as a common property that could be controlled but not possessed by any individuals. This ambiguous definition generated a long-lasting debate about the rights of states and individuals on the oceans.Footnote ⁸ After the Age of Exploration, which witnessed increasing cases of maritime conflict, it was common practice for European colonial powers to sponsor judicial research and use it for their respective political causes. For our present purposes, two of the most important jurists in this era were Hugo Grotius and John Selden, who advocated the ideas of mare liberum (free sea) and mare clausum (closed sea) respectively. Grotius, supporting the 1609 Dutch seizure of the Portuguese merchant ship Santa Catarina in Singapore, argued that navigational freedom was a universal humanitarian principle and the capture, therefore, was a just punishment for the ‘illegal’ Portuguese monopoly over the East Indian trade.Footnote ⁹ On the other hand, Selden, working for English claims to British coastal waters in the early seventeenth century, contended that the sea was capable of private dominion in certain circumstances according to the law of nature and that of nations.Footnote ¹⁰ The following decades saw continuing debates on the line between the high seas and territorial waters, and it was not until the late eighteenth century that the ‘three-mile limit’ or the ‘cannon-shot rule’, which defined the extent of a nation’s territorial seas as equivalent to the outer range of coastal artillery weapons, was adopted by a number of Western governments.Footnote ¹¹

This rule, however, had provoked much discussion by the late nineteenth century. Influenced by the Westphalian model of the international legal order, non-Western countries were anxious to maintain their territorial integrity and perceived maritime sovereignty as indispensable aspects of national independence, but the widespread use of extraterritorial jurisdiction, an instrument of imperialism, made their offshore waters open to foreign interference.Footnote ¹² Moreover, as the development of technology greatly extended the range of guns, the three-mile limit became inadequate in terms of a nation’s maritime security. Some states, especially those with superior maritime strength, had kept the three-mile principle to maximize their reach on the high seas.Footnote ¹³ Some others sought to strengthen their maritime defence by claiming more territorial waters, but their pretensions were not always recognized by the international community.Footnote ¹⁴

The Xiongyue dispute thus took place at a time that saw remarkable divergences in scholarly and governmental opinion on the extent of territorial seas. Moreover, it broke out at a place of strategic and economic importance where the national boundaries of Korea, China, and Russia converged. In September 1905, the Meiji government received the former Russian lease of Dalian (大連) and Port Arthur (旅順) in Northeast China after victory in the Russo-Japanese War and placed them under the administration of the Kwantung Government-General. Located at the southern tip of the Liaotung Peninsula, the leased territory was close to the coastal waters off the Chinese city of Xiongyue, a highly productive fishing ground that attracted thousands of trawlers every summer. In pursuit of yellow croakers (黃花魚), which often arrived in the waters off the Liaotung Peninsula in early May and spent a dozen days there before moving northwards to the Yalu River, fishermen from North China came to Xiongyue in late April and brought considerable economic opportunities to the local community. According to observations made by the Japanese government, in the half-month fishing season, dozens of cottages provided lodging, live fish trade, and grocery supplies along the coast of Xiongyue, where barbers, peddlers, and merchants filled the streets and labourers worked tirelessly to load and unload cargo. The yellow croakers harvested every season were valued at more than 200,000 yen and generated large amounts of tax income for the local political authorities.Footnote ¹⁵

Although the Kwantung lease agreement only covered issues on land and made no mention at all of maritime affairs, the Meiji government sought to exploit the opportunity provided by the new territorial gain to exert its influence over the adjacent seas of the Liaotung Peninsula through the expansion of the Japanese fishing industry, which had been tethered to the empire’s imperial project since the 1870s.Footnote ¹⁶ Moreover, in the 1900s, the Meiji government also sought to resolve the overfishing problem in the Japanese metropole by developing ‘pelagic fisheries’ in Chinese offshore waters.Footnote ¹⁷ During the negotiations on the Sino-Japanese Treaty Concerning Manchuria (日清間満州ニ関スル条約) in the winter of 1905, the Meiji government made its first attempt to acquire fishing rights around the Liaotung Peninsula, but it met with strong opposition from the Qing court and was unable to receive consent from other great powers. Their China policy held to the principle of ‘equal privileges’ (均霑) and they were wary of increasing Japanese influence in East Asia.Footnote ¹⁸

At around the same time the Qing government also devoted itself to the development of the national fishing industry with unprecedented enthusiasm. In 1904, preoccupied with the presence of German trawlers off the Shandong Peninsula, the Qing government adopted the reformist Zhang Jian’s (張謇) suggestion to establish state-owned fishing enterprises in coastal provinces as the first step to strengthen maritime security.Footnote ¹⁹ Nevertheless, when referring to the extent of Chinese territorial waters, several high-level officials disagreed with Zhang’s idea that the Qing empire should follow major maritime powers in using the three-mile principle. In a joint memorial, Yuan Shikai (袁世凱), the superintendent for trade in the north, and Zhou Fu (周馥), the governor of Shandong Province, explained as follows:

In this manner, the Qing government deliberately maintained an equivocal attitude towards the extent of Chinese territorial waters when developing national fisheries. Nevertheless, this stance created difficulties for the Qing government in the Xiongyue dispute, as it left room for the Japanese side to question Chinese claims to Bohai Bay.

As both the Meiji and Qing governments sought to extend their maritime reach through the mobility of fishermen, ‘anti-piracy protection’ became a useful justification for them to establish greater control over their trawlers on the contested waters, such as the adjacent seas of Xiongyue. Prior to the establishment of the Kwantung leased territory, the Liaotung Peninsula had been plagued by piracy for centuries. The Qing government tried to organize local fishermen into vigilante groups, but this proved futile due to the very low number of registered fishing households (渔户) and the government’s inability to exclude trawlers from nearby provinces.Footnote ²¹ When the Tsarist regime took control of Dalian and Port Arthur (1897–1905), two local Chinese asked the Russian authorities to send fishery patrol vessels and volunteered to help collect ‘protection fees’ from local fishermen. Although the amount was set at 50 yuan per trawler officially, in practice they extorted much more from the fishermen, and the Russian authorities did not intervene because they received tens of thousands of yuan every year from the two Chinese agents.Footnote ²² The extortion continued until the Meiji government received the leased territory in 1905.

Inception: From anti-piracy protection to joint fishing ventures, 1906–1907

In March 1906, Abeno Rikyō (阿部野利恭), a former interpreter working for Japan’s imperial army, established the fishery protection company Qingli (清利) and received firearms, two patrol vessels, and 30 soldiers from the Kwantung Government-General which, according to its explanation later submitted to the Japanese Foreign Ministry, sought to ‘continue the traditional practice under Russian rule’. In response, and with the Qing court’s recent call for developing the national fishing industry in mind, the local Chinese authorities founded a state-owned company, Yuye (漁業), and claimed it to be the only institution legitimately responsible for anti-piracy protection in the peninsula. In addition, a third company, organized by the former Japanese Diet member Arimura Ren (有村連), was also created, but it failed to gain any kind of governmental support and soon withdrew from the stage.Footnote ²³

When the fishing season started in late April, Abeno’s Qingli company sent its patrol vessels to the Xiongyue fishing ground and recruited a group of Chinese and Japanese thugs to collect ‘anti-piracy protection fees’ from trawlers. Its extortion was so ruthless that even Lieutenant Miyauchi Oritarō (宮内織太郎), who led the 30 soldiers sent by the Government-General to assist Abeno, decided to perform patrol missions independently from the Qingli company to avoid ‘besmirching the Japanese empire’s reputation’.Footnote ²⁴ While pirates never appeared as expected, the company encountered the Chinese navy, which expressed its discontent by firing blanks and playing trumpets.Footnote ²⁵ The Qing court also made representations to the Kwantung Government-General about Abeno’s extortion, but was informed that the Qingli company was providing fresh fish for the Japanese army on the Liaotung Peninsula and would disband soon after the Meiji government finished withdrawing the soldiers it had sent to the war with Russia.Footnote ²⁶ As a result, the Qing government’s Yuye company signed an agreement with Abeno on 12 May 1906 stating that the protection fee collected from the local fishermen that year would be equally divided between the two parties and that Qingli would leave the peninsula within one year. While Abeno did not announce his earnings at the end of the fishing season, the Chinese side noted that it had received 31,175 yuan under this agreement.Footnote ²⁷

Despite the confrontation between the Chinese authorities and the Qingli company, the Japanese Foreign Ministry remained ignorant of the dispute until contacted by the peninsula’s Consulate-General on May 22.Footnote ²⁸ Although Kwantung Governor-General Ōshima Yoshimasa (大島義昌) insisted that the primary purpose of the Qingli company was to protect fishermen from piracy rather than to make profits, the Japanese Foreign Ministry’s investigative report insinuated that Ōshima had nearly ignited an unnecessary war with the Qing empire for the sole benefit of a greedy merchant. The report also recorded the attitudes of some Chinese fishermen, who expressed their distaste at the high protection fees charged by the Qingli company and the ‘treacherous methods’ used for extortion. Interestingly, probably moved by Lieutenant Miyauchi’s upright personality, these Chinese fishermen said they preferred to be protected by the ‘well-disciplined Japanese army’ because, in their view, the conduct of the ‘corrupted’ Qing government would be ‘worse than those of bandits and pirates’ if it were to acquire exclusive control over the business of anti-piracy protection on the waters off the Liaotung Peninsula.Footnote ²⁹ In the end, to distance the Meiji government from any responsibility concerning this fishing dispute, the Foreign Ministry defined the confrontation as being provoked by a profit-driven businessman and irrelevant to the will of the Japanese authorities. It also suggested consulting with the Army Ministry in future incidents which, its report warned, might ‘recur’.Footnote ³⁰

As foreseen by the Foreign Ministry, the conflict gradually became a protracted dispute carrying the potential for a new Sino-Japanese war. Despite its promise to dissolve the Qingli company, the Government-General established a new fishery organization named the Pelagic Fisheries Group (遠洋漁業団) in March 1907 and appointed Abeno, the owner of the Qingli company, as its head. In a brochure intended for Japanese citizens in the metropole, the Government-General provided detailed information about marine resources in the peninsula and highlighted that it was the duty of Japan’s fishermen to ‘help advance our empire’s interests in South Manchuria’, where the Open Door policy brought about ‘a contest among great powers’. The brochure also sketched an ambitious expansion plan that portrayed the Kwantung leased territory as a stepping-stone to Japanese control of the offshore waters off Korea and Northeast China.Footnote ³¹ Drawing lessons from the 1906 confrontation, the Government-General concluded that the Qing court was unable to exclude Japanese vessels from its coastal waters by force. It thus expanded ‘anti-piracy protection’ from Xiongyue to ‘the land and sea of the Kwantung leased territory, the Bohai Bay, the Yellow Sea, and the coastal area of Fengtian and Shandong provinces’. Besides trawlers, merchant ships were also included in the scope of this protection and required to pay ‘five percent of the cargo value’ for the service. As the fishing season approached, the Pelagic Fisheries Group made announcements across the peninsula, clarified the fee scale, and highlighted the military support it would receive from the Government-General.Footnote ³² In this way, the Government-General shifted from taking advantage of non-official actors to directly claiming jurisdiction over the coastal waters off Northeast China.

Contrary to the Government-General’s expectation, however, this announcement provoked an immediate reaction from the Chinese authorities. As Abeno’s men began to extort protection fees, they found Chinese soldiers doing the same work on the sea. At the expense of local fishermen, mostly Chinese, the Qing court significantly reduced the income of the Pelagic Fisheries Group and compelled the Government-General to acknowledge the need for negotiations.Footnote ³³ The governor-general also faced pressure from the Japanese Foreign Ministry for he, again, had made an aggressive move without the approval of the central government. Nevertheless, given the potential damage this dispute could cause to Japan’s international image, the Foreign Ministry determined to hold the Qing government accountable for the whole conflict.Footnote ³⁴

During the early stage of negotiations, the Qing court referred to international law and criticized the Government-General for ‘violating Chinese national sovereignty’ over the coastal waters off the Liaotung Peninsula. The Japanese side circumvented legal questions and stressed the ‘atrocities’ perpetrated by Chinese soldiers against fishermen of the leased territory. The Meiji government’s choice of strategy mainly resulted from the Foreign Ministry’s perception that the Xiongyue fishing ground was part of Chinese ‘territorial seas’. As the Japanese Foreign Minister indicated in his letter to Ōshima, the Government-General made ‘an absolutely inappropriate decision’ to provide anti-piracy protection for fishermen in ‘foreign waters’.Footnote ³⁵ Without the confidence to engage in legal debates with the Qing court over the question of maritime sovereignty, the Japanese side directed its focus on fishermen from the leased territory who had sailed freely on the seas adjacent to the Liaotung Peninsula for centuries. Representing himself as speaking for the rights of these fishermen, Ōshima asked the Qing government to ‘leave legal issues in abeyance’ and ‘respect the traditional practices of Chinese trawlers of the leased territory’ by allowing them to fish freely near Xiongyue. He also poured scorn on the Qing court’s reference to ‘empty legal theories’ (机上ノ法理論), indicating that its navy was incapable of enforcing international maritime law and excluding foreign vessels from Chinese coastal waters.Footnote ³⁶ Although Ōshima demanded apologies and compensation for the economic loss suffered by fishermen of the leased territory, the Qing court firmly denied the existence of Chinese soldiers’ extortion and required the Government-General to disband the Pelagic Fisheries Group immediately, fearing that any concession on this issue would encourage future Japanese activity in Chinese offshore waters.Footnote ³⁷ However, seeing a ‘great opportunity’ to gain ‘permanent fishing rights’ in the peninsula, the Government-General was likewise unwilling to compromise and the negotiations ended in deadlock.Footnote ³⁸

In the summer of 1907, as the Qing court maintained its stance, the Foreign Ministry tried to move the negotiation process forward by replacing the issue of anti-piracy protection with that of fishing licences. It proposed that Chinese trawlers near the leased territory would pay ‘license fees’ to the Qing government in return for access to the Xiongyue fishing ground, while also calling for an end to the extortion of ‘protection money’ on both sides.Footnote ³⁹ Although at first glance this proposal seemed to benefit the Chinese trawlers of the leased territory only, it left much room for the Government-General to establish control over the fishing grounds under the cover of Sino-Japanese joint ventures. As the Foreign Ministry explained to Ōshima:

Notably, the proposal epitomized a strategy used by the great powers in China during the early twentieth century. The German empire, for example, also established a joint fishing venture in its Kiautschou Bay concession in 1908 to exert influence over the adjacent seas of eastern China.Footnote ⁴¹ Besides the fishing industry, many other economic fields in late Qing China saw joint enterprises dominated by foreign capital, such as the banking, transportation, and mining sectors.Footnote ⁴²

The Qing court was, therefore, not unfamiliar with this form of economic intrusion. As it warned in a letter to the Japanese government, any transfer of fishing licences from Chinese to Japanese trawlers in the name of joint ventures would be strictly forbidden, for it ‘did harm to our national dignity and the interests of Qing subjects’. However, the Meiji government believed that the Qing court was in practice unable to prohibit transfers, and so carried on with its plan. In the spring of 1908, the Government-General gathered nearly 3,000 Japanese and Chinese trawlers to prepare for the incoming fishing season. Based on conversations with some Qing officials, the Foreign Ministry concluded that the Chinese government would give tacit consent to transfers for the prevention of illegal fishing activities along the Liaotung Peninsula.Footnote ⁴³

Nevertheless, the Meiji government’s plan was undermined by the Chinese authorities, who suddenly increased the fishing licence fee and required more money from trawlers of the leased territory, thereby leaving little profit for newly established joint ventures. The Government-General also requested that the Foreign Ministry terminate fishing activities, as the tension might provoke open warfare.Footnote ⁴⁴ After several rounds of fruitless negotiations, the Meiji government was forced to abandon the joint ventures plan and sought new strategies. Ironically, this time it was Ōshima—the same person who had showed disdain for the Qing government’s adherence to ‘empty legal theories’ in 1907—who suggested using the vocabulary of international law to advance Japanese interests in Chinese offshore waters.

A legal confrontation, 1908–1910

The governor-general started considering the use of international maritime law as early as June 1907. When the Qing government maintained a firm stand against the entry of Japanese trawlers into ‘Chinese territorial waters’, Ōshima reminded the Foreign Ministry that the Xiongyue fishing ground was approximately ten nautical miles away from land and therefore, according to the ‘three-mile principle in the international law’, should be perceived as part of the ‘free sea’.Footnote ⁴⁵ However, given the Qing empire’s 200-year rule in the Liaotung Peninsula, the Foreign Ministry deemed this reclassification to be unreasonable and paid little heed to Ōshima’s advice. The Qing government dismissed Ōshima’s proposal as nonsense and felt no need to make a serious response.Footnote ⁴⁶

Nevertheless, as the joint ventures plan failed in May 1908, the Meiji government reformulated its negotiation strategies by confronting the Qing court through legal means, which consisted of two major claims. The first replicated Ōshima’s 1907 argument that the Xiongyue fishing ground was on the ‘free sea’. Representing the three-mile principle as a universally accepted rule in the international community, the Japanese government criticized the Chinese authorities for ‘illegally obstructing’ its pelagic fishing vessels on the high seas.Footnote ⁴⁷ It also referred to the Qing government’s 1904 Declaration of Neutrality in the Russo-Japanese War that prohibited gunboats of the warring sides from entering the seas within three nautical miles of the Chinese shore, which, according to the Meiji government’s interpretation, indicated the extent of China’s territorial waters.Footnote ⁴⁸

While the Meiji government cited several legal references, it should be noted that its claim was questionable under both international and Chinese law. As noted earlier, although major sea powers promoted the three-mile principle, the advancement in artillery technology and the call from weaker maritime states made this rule the subject of a widespread debate in the early twentieth century. During the 1930 Hague Conference, for example, only Britain and Japan supported using a three-mile maximum as the uniform extent of territorial waters for all states and for all purposes.Footnote ⁴⁹ In terms of Chinese law, the Qing court showed no intent to limit its sea borders in a declaration of neutrality and viewed the three-mile rule as unfavourable for the development of the Chinese fishing industry. Moreover, the Meiji government also refused to follow the three-mile principle entirely in the formulation of its own maritime boundary. In the 1878 Draft of Japanese Maritime Law (日本海令草案), for example, it highlighted that the cannon-shot rule was inapplicable to the ‘inland seas in Musashi, Ise, Chūgoku, and Kyūshū’ that were more than three nautical miles away from the shore but still constituted parts of Japanese territorial waters.Footnote ⁵⁰ Although the Meiji government shelved this draft in the 1880s, it never applied the three-mile principle to those ‘inland seas’ and took every opportunity to display its sovereignty over them on the international stage.Footnote ⁵¹ In other words, given the Meiji government’s own maritime practices, its argument that the cannon-shot rule should be applied to the Xiongyue fishing ground, which was on seas bounded by Chinese territory on three sides, seemed untenable.

The other major claim made by the Japanese authorities was that Chinese residents of the leased territory fell under the protection of the Government-General, no matter where they went. The Meiji government first expressed this claim in the spring of 1907, during which a Chinese employee of the Pelagic Fisheries Group was killed in the territory of the Qing empire. Although the Chinese authorities viewed the case as a domestic affair, the Japanese government demanded compensation and apologies for ‘the murder of a resident of the Kwantung leased territory’.Footnote ⁵² Later, as both sides transformed the case into a bargaining chip in the negotiations over the question of fishing rights, they moved their attention away from the issue of jurisdiction. In 1908, however, the Japanese side brought this issue back to the negotiating table. In combatting the Qing court’s representation of the Xiongyue fishing ground as its territorial waters, Ōshima asserted that it was the Government-General’s responsibility to develop self-defence strategies against the Chinese navy’s extortion on the ‘free sea’, as well as to protect the trawlers of the leased territory by sending gunboats to the Liaotung Peninsula.Footnote ⁵³ As such, although ethnic Chinese were hardly treated as equal to their Japanese counterparts in the leased territory, they became an important channel through which the Meiji government expanded its influence to the coastal waters off Manchuria.

Set against the backdrop of international practices regarding the judicial administration in the leased territory, the second claim was also questionable in terms of its legal basis. From the capitulations in the Ottoman empire to the concessions in Qing China, the imperial treatments of extraterritoriality mainly aimed to exempt their citizens from the jurisdiction of local authorities. Although native residents were not the supposed beneficiaries of extraterritoriality, their existence complicated the judicial system of the leased territory greatly, as no uniform international practice had been developed with respect to their legal status. For example, when the British empire acquired the Weihaiwei (威海衛) leased territory from China in 1898, it spent much time addressing the question of whether the native residents remained subject to Chinese jurisdiction, as no settled principles could be found in English law.Footnote ⁵⁴ It finally applied Chinese law and customs to civil litigation among the native population, but this decision, according to the historian Carol Tan, mainly resulted from the pragmatic need to minimize administrative expenses rather than uphold ‘lofty ideals’ such as the rule of law.Footnote ⁵⁵ In this context, at the turn of the twentieth century, international law could not provide a definite answer regarding the legal status of Chinese residents of the Kwantung leased territory.

As the Meiji government took up the mantle of international law, the Qing court responded by referring to the same system in protesting against the ‘Japanese invasion of Chinese territorial waters’. However, it made a huge mistake in defining territorial waters as ‘the seas frequented by Chinese trawlers since ancient times’. The Foreign Ministry soon discerned the fallacy of this argument: If the traditional practices of fishermen provided a legal basis for the Qing government’s claim over the fishing ground, then the Kwantung Government-General could make the same argument, as Chinese fishermen from the leased territory had fished off Xiongyue for centuries.Footnote ⁵⁶ Unable to provide a counterpoint, the Qing government had to allow the entry of Chinese fishermen from the leased territory into the Xiongyue fishing ground and reduce their fishing licence fee by 20 per cent, but it stressed that foreign trawlers were strictly prohibited from Chinese territorial waters. In April 1909, it went further, claiming the whole Bohai Sea as part of Chinese ‘inland seas’, thereby demonstrating its firm determination to exclude Japanese influence from offshore fishing grounds around Manchuria.Footnote ⁵⁷

In terms of the Meiji government’s claim over the Chinese trawlers of the leased territory, the Qing court argued that the fishermen onboard ‘returned to the jurisdiction of China’ when leaving the areas governed by the Japanese authorities, thus portraying anti-piracy protection off Xiongyue as its responsibility. The Government-General, on the other hand, declared its desire to protect its fishermen on the ‘free sea’ and represented the patrol vessels as ‘spontaneously recruited’ by the trawlers of the leased territory for self-defence.Footnote ⁵⁸ Unable to preclude Japanese gunboats from Xiongyue, the Qing government chose to ‘exercise its jurisdiction’ by threatening the Chinese fishermen of the leased territory. According to an investigation conducted by the Japanese Foreign Ministry, Qing officials brought soldiers to the fishing ground, forced Chinese trawlers to pay ‘protection money’, and claimed to ‘hold power over their life and death’.Footnote ⁵⁹ As such, although both sides depicted themselves as protectors of the Chinese trawlers of the leased territory, they did not hesitate to advance ‘national interests’ in Manchuria at the expense of these fishermen.

In summary, as the joint ventures plan proved untenable, by May 1908 the Meiji government changed its negotiation strategy by invoking the language of international law, asserting that the fishing ground was on the free sea and that the Government-General was responsible for protecting Chinese trawlers from the leased territory. The Qing court also referred to international legal practices and criticized the Meiji government for violating Chinese sovereignty. Due to the remarkable divergence in their interpretation of international law, this legal debate did not settle but rather escalated the fishing dispute. Preoccupied with the deterioration of Sino-Japanese relations and the economic damage caused by the conflict, some officials on both sides proposed leaving aside legal issues in the search for new ways to restore peace in the Xiongyue fishing ground.

A settlement without reference to international law, 1910–1912

As described earlier, when the Meiji government acquired the Kwantung leased territory in 1905, it sought to develop pelagic fisheries in Chinese offshore waters as a method of consolidating Japanese maritime hegemony in Northeast Asia. On the Chinese side, since the appearance of German trawlers off the Shandong Peninsula in 1904, the Qing government had become determined to strengthen maritime sovereignty by promoting the national fishing industry, which led to its firm stance in the Xiongyue dispute. However, well aware of the remarkable difference in national military strength between the two powers, it used caution so as not to allow the dispute to escalate into open warfare. As one high-level Qing official wrote in a memorial, the Chinese navy only had two patrol vessels in Manchuria and could hardly deter the Japanese torpedo boats dispatched to the Kwantung leased territory.Footnote ⁶⁰ At the same time the Meiji government, especially the Foreign Ministry, also sought to acquire fishing rights in Chinese coastal waters through diplomatic negotiations. It was in this context, perhaps, that both sides considered leaving aside the language of international law when the legal debate increased tensions between the two governments.

The Chinese authorities were the first to attempt to reformulate the agenda of the negotiations. In April 1910, they suggested returning to the 1907 agreement that required both sides to stop collecting protection money and allowed the Chinese trawlers of the leased territory to enter the Xiongyue fishing ground if they paid fishing licence fees to the Qing government. In terms of the recent legal debate, Han Guojun (韓國鈞), the representative of the Chinese authorities, perceived that it was slowing down the negotiation process:

Nevertheless, the Government-General still held that the fishing ground was on the free sea and required a complete abolition of licence fees.Footnote ⁶² Moreover, given the sudden increase in the fishing licence fee by the Qing court in 1908, Ōshima expressed concern that the Chinese side would change the amount again to keep trawlers of the leased territory away from Xiongyue. As a result, the Meiji government rejected the proposal and continued to claim Japanese fishing rights in Manchuria through legal means.Footnote ⁶³

However, as the fishing season started in May, the Government-General found its trawlers ‘greatly disturbed’ by the Chinese authorities which, according to Ōshima, had increased its efforts to extort not only protection money but also licence fees.Footnote ⁶⁴ Although Ōshima asked the Foreign Ministry to exert more diplomatic pressure on the Qing court by referring to ‘international law’, the ambassador to China, Ijūin Hikokichi (伊集院彦吉), suggested moving away from these ‘trivial matters’ (枝節) and concentrating on the tax issue:

After clarifying the focal point of the dispute, Ijūin noted that the Qing government had already offered to ‘reduce the license fee to thirty-one yuan per trawler’, which was less than 80 per cent of its previous demand.Footnote ⁶⁶ More importantly, a peaceful fishing season could bring considerable profits to the trawlers of the leased territory, even if ‘the Chinese side took the responsibility of anti-piracy protection’. Lastly, he made an intriguing comment about the Government-General’s legal claims: ‘considering the history and location of the Bohai Sea, the idea that the Qing government enjoys no right in this area is hardly consistent with common sense’.Footnote ⁶⁷ Ijūin’s suggestion not only generated a shift in the Japanese government’s strategy, but also displayed how high-ranking Meiji officials perceived international law at the turn of the twentieth century.

Recently, departing from the conventional focus on the cultural difference between the ‘East and West’ reflected by Meiji Japan’s engagement with Euro-American legal norms, a group of scholars has turned to ‘the consequences of international law’ for this Asian empire. According to Douglas Howland, the Meiji government’s approach to international law was highly practical and realistic, and prioritized the question of how the system could be used to assert its sovereignty in ways that were ‘legitimate in the eyes of the Western powers’.Footnote ⁶⁸ However, cases in which the Japanese authorities deliberately circumvented international legal norms have received very limited scholarly attention. As demonstrated by the Xiongyue dispute, the Meiji government’s mastery of international law also included the art of not using the law when policymakers found other approaches more beneficial for national interests. This pragmatism also partly resulted from the Japanese government’s suspicion of the emerging global legal order. While the Foreign Ministry made skilful use of expertise in the concept of the free sea, Ijūin’s comparison of ‘international law’ and ‘common sense’ showed that the Qing government’s longstanding rule in Manchuria provided it with significant political legitimacy over Bohai Bay, even if its pretensions eschewed the three-mile principle in the Law of the Sea.

Although the Foreign Ministry valued Ijūin’s advice to outflank legal debates, the Meiji and Qing governments suspended negotiations as the fishing season ended in May 1910. The following year also saw no progress in the settlement of the dispute, as the Qing government was overwhelmed by domestic unrest and was unable to return to the negotiating table. In 1912, aiming to pre-empt friction with foreign powers in the process of national unification, the newly established Chinese Republican government reopened negotiations and expressed its willingness to make compromises.Footnote ⁶⁹ On 22 April the two sides signed a treaty that brought the Xiongyue dispute to an end. In line with Ijūin’s suggestion, the Japanese government set aside the issue of international law, focused on the amount of fishing licence fees, and left the responsibility of anti-piracy protection in Manchuria to the Chinese authorities. The Republican government agreed to reduce the licence fee to 20 yuan per trawler, which was 30 yuan lower than the Qing court’s initial demand in 1908. More importantly, in ensuring ‘equal access to Bayuquan (鮁魚圈), Wanghaizhai (望海寨), and Xihetao (西河套) for trawlers from the Republic of China and Kwantung leased territory during the fishing season’, the treaty secured Japanese fishing rights along the Liaotung Peninsula, fulfilling the primary goal set by the Government-General.Footnote ⁷⁰ In the spirit of reciprocity, Article 5 of the agreement noted that the Kwantung Governor-General would request the Korean Government-General to provide Chinese fishermen with access to the western coast of the Korean Peninsula. As the Kwantung Governor-General explained to the Foreign Ministry, this was not so much a treaty offering Korean fishing grounds to China but rather a promise that the Korean Government-General would be informed of the issue. Article 5 thus became a mere scrap of paper as the Japanese government never approved the entry of Chinese trawlers into the Korean fishing grounds.

Despite ending its predecessor’s effort to exclude Japanese trawlers from Manchuria, the Republican government still succeeded in closing off possibilities for further fishing disputes with Japan in the Liaotung Peninsula. It also tried to build up a local fishing industry without destabilizing Sino-Japanese relations, but this plan failed after Japan occupied Manchuria in 1931.Footnote ⁷¹ As Japan’s mechanized fishing fleets proliferated in number, the Japanese government sought to transform Chinese offshore waters into its own fishing grounds during the early twentieth century. The Xiongyue dispute, one of the earliest Sino-Japanese fishing wars, therefore served as a precursor to the later expansion of Japanese fishing into Chinese coastal waters. For example, the Sino-Japanese fishery controversy on the East China Sea between 1924 and 1931 has striking parallels to those of the Xiongyue dispute, such as the fruitless legal debates on the breadth of territorial seas, the call to circumvent the issue of international law, the intensity of attention given to the fishing licence fees, and the stark contrast in military strength that precluded every attempt made by the Chinese government to deter Japanese fishing vessels from its adjacent seas.Footnote ⁷² These similarities are evidence that the Xiongyue dispute prefigured many key strategies that the Japanese empire later used to impose its influence on Chinese offshore waters. As Kwantung Governor-General Ōshima noted in 1907: this confrontation would not only become a useful lesson for the development of Japan’s pelagic fisheries on the ‘free sea’, but would also enable Japanese jurists to later turn international maritime law to the empire’s advantage.Footnote ⁷³

Nevertheless, this article does not mean to imply that the ways in which the Qing and Meiji governments resolved the Xiongyue dispute epitomized the ‘norm’ for East Asian states to tackle fishing controversies at the turn of the twentieth century. On the contrary, a growing body of scholarship on maritime East Asia has revealed a great diversity in their strategies. For example, in attempting to exclude German trawlers from waters off the Shandong Peninsula during the 1900s, the Qing government, as shown by the study of Liu Limin, relied less on fishery protection companies and tax adjustments than on the purchase of mechanized fishing boats, the establishment of fisheries education, and the charting of fishing grounds.Footnote ⁷⁴ The Japan–Korea fishing war on the seas adjacent to Jeju Island during the 1880s also unfolded in ways starkly different from the Xiongyue dispute. In making the 1883 Japan-Korea Treaty of Amity and Trade (日朝通商章程), the Meiji government took up the mantle of reciprocity and proposed to provide Korean fishermen with access to waters off Northwest Japan in exchange for Japanese fishing rights in South Korea. Despite being keenly aware that very few Koreans at the time could conduct fishing activities over such a long distance, the Joseon government still accepted this proposal, according to Sakai Hiromi, in an attempt to suspend the application of the treaty by taking advantage of growing anti-Japanese sentiments in Jeju to deter trawlers from Japan.Footnote ⁷⁵

While the available space for this article precludes a detailed comparison of these cases, it seems safe to assume that the strategies applied by East Asian states to fishing controversies spanned different modes depending on particular political and social environments. Seen in this light, the Xiongyue dispute provides a lens showing the complexity of the oceanic world in modern East Asia which, to paraphrase Lauren Benton’s analysis of European maritime practices, was not ‘rationalized’ by a single consolidated order but rather saw ‘repeating sets of irregularly shaped corridors and enclaves with ambiguous and shifting relations to imperial sovereignty’.Footnote ⁷⁶