Page:The Green Bag (1889–1914), Volume 16.pdf/358

 Some Questions of International Law. circumstances, c. g., if threatened by a Euro pean Power. The complaints of Russia on this score, although theoretically sound, are practically absurd. Russia's real motive in entering this pro test is probably to be found in the conclusion of Count Lamsdorff s note. "At the same time, the Imperial Government (of Russia) considers it necessary to issue a timely warn ing that, owing to Japan's illegal assumption of power in Korea, the Government declares all orders and declarations which may be is sued on the part of the Korean Government to be invalid." In order to raise her position in Korea above that of a mere military oc cupant or a vulgar conqueror, Japan has ne gotiated a treaty with the Korean Govern ment in which she "guarantees the independ ence and integrity of the Korean Empire,'' (Art. III.) and agrees to protect Korea against the "aggressions of a third Power or internal disturbances."1 The Russian Government claims that this treaty is invalid because made under duress.2 This raises a very interesting question. Is the duress here alleged of such sort as to render the treaty and all acts performed un der its sanction invalid? The rule which ap plies in such cases is perfectly clear, although we are not fully informed as to the facts in this particular case. One of the antecedent conditions upon which the validity of a treaty depends is "freedom of consent." But "the freedom of consent, which in principle is held as necessary to the validity of contracts between States as it is to those between in dividuals, is understood to exist as between 1 See the London Times (weekly ed.) for March 4, 1904, for the text of the treaty between Japan and Korea. 2The Russian Novosti has published a statement from the Ministry of Foreign Affairs declaring that "Russia does not consider Korea as a bellig erent State, but simply as a neutral State acting under violent pressure from Japan and deprived of the power of free action." For this reason, it is said, "Russia cannot regard as valid any treaty conclude.! by Korea for the benefit of Japan, nor any abrogation of Russian conces sions." See London Times for March 25. 1904.

the former under conditions which would not be thought compatible with it where individ uals are concerned. In International Law force and intimidation are permitted means of ob taining redress for wrongs, and it is impos sible to look upon permitted means as viti ating the agreement, made in consequence of their use, by which redress is provided for. Consent, therefore, is conceived to be freely given in international contracts, notwith standing that it may have been obtained by force, so long as nothing more is exacted than it may be supposed that a State would consent to give, if it were willing to afford compensation for past wrongs and security against the future commission of wrongful acts. And as International Law cannot meas ure what is due in a given case, or what is necessary for the protection of a State which declares itself to be in danger, it regards all contracts as valid, notwithstandjng the use of force and intimidation, which do not destroy the independence of the State which has been obliged to enter into them. When this point, however, is passed, constraint vitiates the agreement, because it cannot be supposed that a State would voluntarily commit sui cide by way of reparation or as a -measure of protection to another. The doctrine is of course one which gives a legal sanction to an infinite number of agreements, one of the parties to each of which has no real freedom of will; but it is obvious that unless a con siderable degree of intimidation is allowed to be consistent with the validity of contracts, few treaties made at the end of a war or to avert one would be binding, and the conflicts of States would end only with the subjuga tion of one of the combatants or the utter exhaustion of both."3 In the treaty between Japan and Korea, the "independence and territorial integrity" of Korea are carefully and explicitly pro vided for, so that there can be no objection to the validity of the treaty on this score. 3 Hall, op. cit.. 3d ed., pp. 325-26.