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In July 1872, the María Luz, a Peruvian barque chartered by a Spanish subject, was carrying Chinese indentured servants from Macau to Peru. Due to storm damage, the ship had to stop for repairs at Kanagawa Bay in Japan. While in harbour, some Chinese labourers escaped from the María Luz and sought protection by the British consular authorities, claiming that they had been mistreated by the captain, a Peruvian national named Ricardo Herrera.
First, a Criminal Case
The British referred the matter to the Japanese governor of Kanagawa, which led to several legal proceedings: a criminal case against Herrera for having illegally detained and punished his passengers, and two civil cases brought, in turn, by the captain against the fugitives to force them to return on board. The Chinese indentured servants were freed by the Japanese authorities. Peru protested and, after complex negotiations, Japan and Peru eventually referred the case to arbitration by the czar of Russia, who decided in favour of Japan in 1875.
Japan in Transition Deals with Foreign Powers
The María Luz incident happened at one of the most important crossroads of Japanese history. The Tokugawa shogunate (1603–1868), which had ruled the country for more than 250 years, had come to an end, and the Meiji era had begun. For some 230 years, the shogun had enforced an isolationist policy known as sakoku (“closed country”), by which contacts with the outside world were kept to a minimum and strictly controlled.
In 1853, under American military pressure, Japan was forced to open its borders to international trade, and this, combined with internal factors, led to the collapse of the shogunate. The turbulent years of bakumatsu (“end of the military government”, 1853–1868) had just passed, and the ruling elite of the new nation state was busy dealing with foreign powers, building the political infrastructure of the new state, and pursuing reforms in many different sectors – all at the same time.
In 1872 the modern Japanese legal system was still under construction, but the laws of the Edo period had mostly ceased to be in force. The result was endemic legal uncertainty. Seeking to present Japan to the Western powers as a country fully capable of managing complex legal issues using instruments and procedures to which foreigners could relate, the ruling elite worked to conceal such uncertainty during the María Luz incident.1
The “Barometer of Modernization”
The Meiji elite understood that demonstrating mastery of the rule of law was fundamental to being seen on an equal footing with European countries. The law was a tool that foreigners seemed adept at using against Japan. Indeed, the opening of the country was obtained through the imposition of legal instruments: the Unequal Treaties. While reforms in the economy, military, etc. certainly had a decisive impact on Japan’s accession to the club of international powers, the law had tremendous symbolic importance. In the words of Takeshi Kojima, one of Japan’s leading law scholars, it was indeed considered the “barometer of modernization.”2
» Japan, together with other ‘Oriental’ countries, was in the uncomfortable position of being seen as ‘semi-civilized’ «
This was particularly significant for Japan’s status in the comity of nations. During this period in history, international law commentators embraced an imperialistic and colonial approach, and tried to establish a hierarchy of legal systems, of course placing those of Europe and the Unites States at the top, and those of what were referred to as “uncivilized” territories at the bottom. Japan, together with other “Oriental” countries, was in the uncomfortable position of being seen as “semi-civilized.”3
Europeans were sceptical that such countries were even capable of using international law as an instrument to manage their external relationships. To be promoted to the upper league of “civilized” nations, Japan had to prove that its legal system, both domestic and international, was adequate from a European perspective. Meanwhile, the Western powers had no intention whatsoever to reflect on the “barbaric” or backwards elements still present in their own legal systems, whether in their homelands or colonies: the object of comparison was always an idealized Europe.
Success in Arbitration, but No Apology
The final prong of the María Luz incident, the arbitration before Czar Alexander II of Russia, marked Japan’s debut on the scene of international dispute resolution. In a final and binding award, the czar asserted that Japan had complied with the principles of international law and that Peru was not entitled to any reparations. In this final stage, resorting to a technical legal procedure, i.e. arbitration, rather than seeking a diplomatic solution served to show that Japan was capable of acting as a competent player in a proper international legal forum and of using the instruments of the law.
Before deciding to resort to arbitration, Peru and Japan had engaged in negotiations in Tokyo. During these exchanges, the South American country relied on diplomatic pressure and even resorted to veiled threats. The Peruvian representative seemed somewhat irritated by the fact that Japan, an Asian nation, did not simply apologize and acknowledge the tort caused to a white man. In fact, the Japan-Peru controversy was the first instance in which an Asian country successfully invoked the instruments of international law to defend itself in the community of civilized nations.
The Modern Legacy of the María Luz
The Japanese have not forgotten the María Luz. They still remember the case as a moment of glory for their country, in which they demonstrated their humanity and mastery of legal skills despite the difficulties the nation had to face in negotiating with Western powers. The case is even mentioned in modern-day policy papers: a document written in support of Japan’s request for a permanent seat on the United Nations Security Council specifically uses the María Luz example to demonstrate the country’s longstanding engagement with justice and human rights.
- Douglas Howland, Translating the West: Language and Political Reason in Nineteenth-Century Japan (University of Hawaiʻi Press, 2002); Michael R. Auslin, Negotiating with Imperialism: The Unequal Treaties and the Culture of Japanese Diplomacy (Harvard University Press, 2006). ↩︎
- Takeshi Kojima, Civil Procedure and ADR in Japan (Chuo University Press, 2004): 4. ↩︎
- Turan Kayaoǧlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge University Press, 2010). ↩︎
