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and Mirs Bay for a term of ninty-nine years, and the
lease of Weihaiwei, on July 1, 1898, "for so long a
period as Port Arthur shall remain in the occupation of
Russia." 4

Subsequent changes in the control of the leased terri-
tories also deserve our notice. As we all know, by the
Russo-Japanese War, Japan succeeded to Russia in the
lease of Port Arthur and Talienwan by the treaty of
Portsmouth (September 5, 1905 ), 5 and later obtained
China's consent to the transfer by the Agreement of De-
cember 22, 1905. r,A To reiterate what has been said, as the
original Russia lease was only for twenty-five years, she
obtained its extension to ninety-nine years by the Treaty
of May 25, 1915, relating to South Manchuria and East-
ern Inner Mongolia. Again, during the World War,
she succeeded to Germany in Kiaochow and Shantung. 7 B

The concession of leased territories generally consist
of a strategic base, a neutral zone, and jurisdiction over
rritories in question. The first earmark of a leased
territory i ic base, which is often vested with

the right of fortification. In the Kiaochow lease conven-
tion, this provision was found | Aj tide 2).°

". . . His Majesty the Emperor of China c< les to
any on lease, provisionally for 99 years, both
of the entrance to the Bay of Kiaochow. Germany en-
truct, at a suitable moment, on the teni-
fortifications for the protection of the
buildings to b meted then- and of the entrant

the harbor."

Tn the lease of Port Arthur and Talienwan, it is stipu-

1:



326 [MPAIRMENTS OF SOVEREIGNTY

"The governments of the two countries agree that, as

Port Arthur is solely a naval port, only Russia and
Chinese vessels are to be allowed to use it, and it is to
be considered a closed port as far as the war and mer-
chant vessels of the other Powers are concerned" (Ar-
ticle 6). 0A

Again, in the French lease of Kwangchowwan, it is de-
clared :

"Le Gouvernement Chinois, en raison de son Amitie
pour la France, a donne a bail pour 99 ans Kouang-Tche-
ououan au Gouvernement franqais pour, y etabir une
station navale avec depot de charbon, — (Article 1). La
France pourra elever des fortifications, faire tenir gar-
rison a des troupes ou prendre toute autre mesure de-
fensive dans le terrain loue" (Article 4). 10

Similarly, in the lease of Kowloon the preamble reads :

"whereas it has for many years past been recognized that
an extension of Hongkong territory is necessary for
proper defense and protection of the Colony." X1

It is further provided that the area so leased should in-
clude the waters of Mirs Bay and Deep Bay, probably
strategically necessary for the safety of Hongkong.
Finally, in the lease of Weihaiwei it is stated :

"His Majesty the Emperor of China agreed to lease
to the Government of Her Majesty the Queen of Great
Britain and Ireland, Weihaiwei, in the Province of Shan-
tung, and the adjacent waters. . . . Great Britain shall
have in addition the right to erect fortifications, station
troops, or take any other measures necessary for defen-
sive purposes. . . ." 12

Thus, the leased territories are obtained primarily as
strategic bases with the right of fortification.

The second earmark of the Leased territories is the



LEASED TERRITORIES 327

neutral zone. It is established largely for the protection
of the strategic base. In Kiaochow a neutral zone of fifty
kilometers surrounding the Bay at high water was demar-
cated, within which China engaged to permit the free
passage of German troops and "to place no obstacle in
the way of any regulation of the water courses which may
prove to be necessary." She also engaged not to issue
any ordinances or take any other measures or station
troops without previous consent of the German Govern-
ment ( Article 1 i. 1 In the Russian lease of Port Arthur
and Talienwan, a neutral zone was likewise provided
(Art. 5):

"To the north of the territory leased there shall be
left a piece of territory, the extent of which is to be
arranged by Hsu Ta-Jen and the Russian Foreign Office.
This piece is to be entirely left to the Chinese officials,
but no Chinese troops are to enter it except after ar-
rangement with the Russian officials." ' A

In the French lease of Kwangchowwan, while there
was no specific mention or provision of a neutral zone,
the demarcation of the leased territory was so made as
tcment possible entre les deux pays" (Art. 3).

The lease of Kowloon stipulates that

"Within the city of Kowloon the Chinese officials now

stationed there shall continue to exercise jurisdiction

I mi far as may be inconsistent with the military

requirement for the defense of Hongkong. Within the



LEASED TERRITORIES 329

remainder of the newly leased territory Great Britain
shall have sole jurisdiction." (On account of the re-
sistance of the natives of Kowloon to the entrance into,
and assumption of the control of, the city of Kowloon,
Chinese jurisdiction was discontinued on May 16, 1899 I. 18

Finally the lease of Waihaiwai contains practically the
same stipulation, respecting jurisdiction and administra-
tion.

In consequence of this grant of exclusive jurisdiction
during the term of the lease, Chinese troops are not
permitted to pass except with the consent of the lessee
state. For instance, in the Russian lease of Port Arthur
and Talienwan the stipulation was found (Art. 9) :

"No Chinese troops of any kind whatever are to be
allowed to be stationed within this boundary."

Fugitives from justice have to be extradited as if from
a foreign jurisdiction (Art. 6). 16 The Chinese customs
are relinquished and removed to the frontiers of the
leased territories.

"As regards the reestablishment of Chinese customs
stations which formerly existed outside the ceded terri-
tory but within the 50 kilometer zone, the Imperial Ger-
man Government intends to come to an agreement with
the Chinese Government for the definite regulation of
the customs frontier, and the mode of collecting duties" "
( Article 5).

Chinese residents are placed under the protection of
the foreign governments concerned and must observe the
established law and order. 1 H

In faet, so complete is this grant of jurisdiction that

even the Foreign nationals enjoying extraterritorial

rights, upon entrance into tin- leased territories, lose their
extraterritorial privileges and must submit themselves t.>
the jurisdiction of the lessee state. ,u This position wza



330 IMPAIRMENTS OF SOVEREIGNTY

accepted by all the Powers, except Japan, who, however,
after supplanting Russia in Port Arthur and Talienwan,

also changed her position. Supporting this view, John
Hay said : '-'"

". . . The intention and effect of China's for
leases having apparently heen the relinquishment by China
during the term of the leases and the conferment upon
the foreign power of all jurisdiction over the territory,
such relinquishment and transfer of jurisdiction was seen
to involve the loss by the United States of its right to
exercise extraterritorial consular jurisdiction in the terri-
tories so leased, while, as you remark, as these territories
have practically passed into the control of peoples whose
jurisdiction and method are akin to our own, there would
seem to be no substantial reason for claiming the con-
tinuance of such jurisdiction during the foreign occu-
pancy or tenure of the leased territory."

On the other hand, notwithstanding the grant of ex-
clusive jurisdiction, China's sovereignty over the leased
territories during the term of the lease is in no way sur-
rendered or waived. In fact, this was clearly stipulated
in some leases and in the others partially recognized.

"His Majesty the Emperor of China, . . . engages,
while reserving to himself all rights of sovereignty in a
zone of 50 kilometers (100 Chinese li) surrounding the
Bay of Kiaowchow at high water, to permit the free
passage of German troops within this zone at any
time, . . ." 21

"This act of lease, however, in no way violates the
sovereign rights of His Majesty the Emperor of China to
the above-mentioned territory.

In the convention for the lease of ECowloon and YYai-
haiwai, however, there is no mention of the reservation
of China's sovereignty, but the civil jurisdiction within



LEASED TERRITORIES 331

the city of Kowloon and Waihaiwai was reserved to
the Chinese authorities, "except so far as may be in-
consistent with the naval and military requirements for
the defense of the territory leased

Again, the sovereignty of China is affirmed by the
reservations regarding China's special right of naviga-
tion in the leased waters. With the exception of Kiao-
chow, where the Chinese ships were treated like those
of other nations, the other leased waters gave them spe-
cial privileges. Port Arthur, being a closed port, ad-
mitted only Russian and Chinese vessels.

In the waters of Mirs Bay and Deep Bay,

"It is agreed that Chinese vessels of war, whether neu-
tral or otherwise, shall retain the right to use these
waters."

The same right is reserved in the lease of Waihaiwai. In
the Bay of Kwangchowwan, however, the Chinese ves-
sels enjoy the privilege only on condition of neutrality :

"Le mouillage en eau profonde le plus voisin de ce
point d'abontissement (eaux territoriales) sere exclusive-
ment reserve aux navires de querre francais et chinois,
ces derniers en situation de neutralite seulement" (Art.
8).

Further, the sovereignty of China is recognized by the
fact that the lease, without the consent of China, is un-
transferable. The lessee state possesses no righl to let,
or sublet, or transfer, or alienate the lease in any form
to any other foreign Power without the express con-
sent of the territorial sovereign who grants it. In the
Kiaochow lease, it was specifically stipulated:

"Germany engages at no time to sublet the territory
leased from China to another Power." '



332 IMPAIRMENTS OF SOVEREIGNTY

In the other leasts, there is no such express prohibi-
tion, but the precedent set l>y the transfer of Port Arthur
and Talienwan to Japan in 1905, with the consent of
China, indicates conclusively that, in the absence of ex-
stipulation, the consent of the territorial sovereign
is essential to the validity of the transfer. Thus, in the
treaty of Portsmouth, it was provided:

"The Imperial Government of Russia cede to the Im-
perial Government of Japan, with the consent of the Gov-
ernment of China, the lease of Port Arthur, of Talien-
wan, and the territories and adjacent territorial waters,

"The two high contracting parties mutually engage to
ohtain from the Government of China the consent men-
tioned in the above stipulation." - 5

In pursuance of this stipulation, on December 22, 1905,
Japan obtained the consent of China :

"The Imperial Chinese Government consent to all the
transfers and assignments made by Russia to Japan by
Articles 5 and 6 of the Treaty of Peace above mentioned"
(Art. l).-°

/
And the fact that the grant is personal to the grantee
and made in derogation of China's sovereignty further
renders the transference, without the consent of China,
unthinkable and unjustifiable.

. the sovereignty of China can also be pr
by virtue of the implied conditions or covenants which
must be included in the leases. The lessee states are to
enjoy their privileges of tenancy only on good behavior
and quiet enjoyment ; and should the lessee states prove
themselves to be nuisances or menaces to the welfare
and safety of the territorial sovereign or other mi^hbor-

tates, the territorial sovereign who granted the
would have the right to abate the nuisance or to eliminate



LEASED TERRITORIES 333

the menace. Further, the lessee states must restore, at
the expiration of the leases, the leased territories "in as
good a condition, allowing for reasonable wear and tear,
as when the latter first conveyed it to him;" - 7 and should
the territories, on restoration, prove to be deteriorated or
impaired in any way, due to the negligence of the !
states to keep them in repair, the territorial sovereign
would he entitled to due compensation or indemnity.

In addition, as incident to her sovereignty, China re-
tains the right to declare the neutrality of the leased
territory. As long as her sovereignty over the areas in
question is retained, so long is she entitled to place them
under the protection of her neutrality. On the other
hand, in exercising the right of neutrality, she at the
same time assumes the responsibility to see that strict
neutrality is observed by the lessee state in the leased
areas. While conceding the right of self-defense, as
otherwise the lessee state would not be able to restore
the leased territories, she nevertheless requires that, in
time of a war between the lessee states and other states,
the lessee state must observe neutrality in the leased areas
and retain the territories only on condition of quiet en-
joyment. Should the lessee Power make the leased area
a belligerent base of action, thus menacing the rights of
other belligerents and thereby violating the neutrality of
rea, the territorial sovereign would be obliged to eii-
Strict neutrality by either prohibiting the belligerent
activities of the lessee state or by abating the nuisances
and removing the sources of menace, thus fulfilling her
own responsibility arising from the .status of neutrality.
If, however, she should fail to do so, the other belliger-
ent states interested could lodge protests and require

the territorial sovereign tO restrain or remove the nuisance
or menace, hut if the menace should prove to In- '"instant,
Overwhelming, leaving no choice of mean-, ami no time

for deliberation," '-' s then the belligerent Tower- concerned

might abate the nuisance or remove the menace them-



334 IMPAIRMENTS OF SOVEREIGNTY

selves. In this case the rights of the territorial sovereign
remain unimpaired, and the eventual disposal of the

1 area requires the sanction of the territorial e
eign.

We now come to the disadvantages of the leased terri-
tories with a view to their restitution to China. First,
these leased territories, located as they are at stn
points, weaken and hamper the national defense of China.
By their continued existence, they deprive her of her best
military and naval bsaes, which cannot but contribute
materially to the relative military weakness of the nation.
Besides, in a war between the lessee state and China, they
will be used inevitably by the lessee state as a base of
action against her, thus threatening the very safety and
integrity of the territorial sovereign. Second, being stra-
tegic points with fortifications, they are likely to become
the objects of struggle in a war, wherein the lessee state
is a party. Thus war is brought to Chinese territory,
although she may not be a party thereto. In the Russo-
Japanese War, the great battles were fought around Port
Arthur, although China was technically a neutral. Fur-
ther, in the event of their occupation by the other Powers
in consequence of war, they would become a source of
complication to China. As an outcome of the Russian
defeat in the Russo-Japanese War, China had to consent
to the transfer of Port Arthur and Talienwan to Japan.
Recently, as a result of the capture of Kiaochow by
Japan, China was again involved in a controversy with
Japan, which has as yet not been settled.

Hence, for the sake of self-defense and self-preserva-
tion, the Chinese Government, through her delegation at
the Paris Peace Conference, made known its earnest de-
sire for the restitution of these leased territories. "As
the prolongation of the foreign control over the leased
territories constitutes a continued lordship, whose in-
jurious effects tend from day to day to increase, the



LEASED TERRITORIES 335

Chinese Government feel in duty bound to ask for the
restitution of these territories, with the assurance that,
in making this proposal, they are conscious of, and are
prepared to undertake, such obligations as the relinquish-
ment of control may equitably entail on them as regards
the protection of the rights of property owners therein
and the administration of the territories thus restored to
the complete control of China." M



NOTES TO CHAPTER XX

1. Hertslet's China Treaties, Vol. 1, No. 59, pp. 350-354;
vide supra, chapter on The International Struggle for Con-
cessions

2. Hertslet, Vol. 1, No. 88, pp. 505-508. (3a) Hertslet, No. 55,
pp. 329-331 ; the Shantung Question, presented by China to the
Paris Peace Conf., pub. by the Chinese Nat. Welfare Society,
1920, p. 81.

3. Hertslet, Vol. 1, No. 24, p. 120.

4. Hertslet, Vol. 1, No. 25, p. 122.

5. State Papers, Vol. 98, pp. 734-740; MacMurray, 1905/8.
5A. Hertslet, Vol. 1, No. 67, pp. 391-396.

6. MacMurray, 1915/8.

7. MacMurray, 1915/8; The Chino-Japanese Negotiations,
1915, p. 49 et seq.

8. The Chino-Japanese Negotiations, 1915, p. 53.

9. Hertslet, Vol. 1, No. 59, p. 351.

9A. Hertslet, Vol. 1, No. 88, pp. 506-507.

10. Hertslet, Vol. 1, No. 55, p. 329 et seq.

11. Hertslet, Vol. 1, No. 24, p. 120.

12. Hertslet, Vol. 1, No. 25, p. 122.

13. By the Convention of Nov. 28, 1905, Germany withdrew her
troops from Kiaochow and Kaomi, The Shantung Ouestion,
Aim.., No. 3 to Vol. 2, pp. 54-66.

)s.\. In the additional agreement between China and Russia
ling the boundaries of I '< >rt Arthur and Talienwan, May
7, 1898, the boundary of the leased territory was denned I \rt. 1 )
and the neutral zone was provided as follows: (Art. J) "To the
north of tin- boundary fixed in Article l, there shall, in accord-
ance with Article 5 of the Peking Treaty, be a neutral ground,

the northern boundary of which shall commence on the west

coasl of Liaotnng at the mouth of the Kaichow River, shall

north of Yu Sfen-Ch'ang to the Ta-Yang River, and shall

follow the left bank of that river to its mouth, which shall he
included in the neutral territory."— Hertslet, Vol. 1, No. 89, np,
508-509.



336 IMPAIRMENTS OF SOVEREIGNTY

14. Hertslet, Vol. 1, No. 55, p. 329, Art. 2.

15. North China Herald, Apr. 24, May 22, 1899, cf. Morse,
The International Relations of the Chinese Empire, Vol. 3, p. 120,

16. Hertslet, Vol. 1, No. 55, p. 330.

17. Hertslet, Vol. 1, No. 59, p. 353.

IS. Hertslet, Vol. 1. No. 55, p. 330, Art. 3.

19. I. I'.. Moore, Internatl. Law Digest, Vol. 2, p. 639.

20. U. S. For. ReL, 1900, p. 3S7, ff. Sec. Hay to Amer. Min-
ister at Peking.

21. Hertslet, Vol. 1, No. 59, p. 351, Art. 1, the Kiaochow
Lease Convention.

22. MacM array, 1898/5, Art. 1. The Lease of Port Arthur
and Talicnwan ; also see Art. 1, Kwangchowwan Lease, Hertslet,
Vol. 1, No. 55, p. 329.

23. Hertslet, Vol. 1, No. 25, p. 123. On account of local
resistance, however, the Chinese jurisdiction was expelled from
Kowloon on Mav 16, 1899.

24. Hertslet, Vol. 1, No. 59. p. 352, Art. 5.

25. State Papers, Vol. 98, pp. 736-737, Art. 5.

26. State Papers, Vol. 98, p. 741, Treaty and Supplementary
Agreement, Dec. 22, 1905.

27. Trail, Treaty Obligations between China and Other States,
p. 70.

28. The Case of Caroline, Moore, op. cit., Vol. 2, p. 412.

29. Questions for Readjustment, Submitted by China to the
Peace Conference, p. 21.



XXI

SPHERES OF INFLUENCE OR INTEREST

Still another form of the impairment of China's sov-
ereignty is the sphere of influence, or the sphere of inter-
est. These two terms have been used interchangeably, but
some distinction may be made between them. Spheres of
influence generally carry a political significance, while
spheres of interest usually connote preferential economic
exploitation. "The technical meaning of the term sphere
of interest is an area or territory within which a nation
claims the primary right of exploitation of commercial
and natural resources. The term sphere of influence is
by some thought to refer to a certain degree of political
control, however slight it may be. . . ." 1

Bearing in mind the distinction, it can be observed
that the sphere of influence or interest as claimed by
the Powers in China are nothing more than spheres of
interest, wherein the claimant Powers maintain priority
in economic exploitation, and oppose the inroads of other
foreign influences. They are portions of territory
"wherein a nation expressly or impliedly declares that
it will permit no other nation to exert political influence,
and that itself will lead in exploitation of natural re-
sources." 2

It is unnecessary to narrate the origin f the spheres of
interesl in China. In a former chapter on the Interna-
tional Struggle fur Concessions, the story has been told,
— how Germany firsl created her sphere of interesl in
Shantung by tin- seizure "i Kiaochow and the subsequent
Convention of March 6, 1898; ' how Russia foil
suit and established her sphere of influence in Manchuria

337



338 IMPAIRMENTS OF SOVEREIGNTY

and Liaotung by the occupation of Port Arthur and
Talienwan and the Convention of March 27, 1898 ;* how
France obtained her sphere of interest in Yunnan,
Kuan i and Kwangtung; how Great Britain won the
recognition of her sphere of interest in the Yangtze Val-
ley and Tibet ; and, finally, how Japan extended her
influence over Fukien.

We should, however, point out the later developments
which deserve attention. In consequence of the Russo-
Japanese War, Japan succeeded to Russia in South Man-
churia and Liaotung as her sphere of interest, while Rus-
sia retained North .Manchuria as her sphere. By the
agreements of 1907, 1910, and 1916, while there was no
specific mention as to any division of sphere of influence,
it was generally understood, at least from subsequent ac-
tions, 5 that Russia regarded North Manchuria and Outer
Mongolia as her sphere of interest, and Japan South
Manchuria and Eastern Inner Mongolia. Again, taking
advantage of the World War, Japan ousted Germany
from Shantung and established herself as successor,
which was confirmed by Articles 156, 157 and 158 of
the Treaty of Peace with Germany signed at Versailles
on June 28, 1919. Finally, in view of the temporary
retreat of the Russian influence in North Manchuria and
Outer Mongolia in consequence of the Soviet Revolution,
Japan has made repeated endeavors to acquire this Rus-
sian sphere of interest. 8

Thus, as a result of the elimination of the German and
possibly the Russian sphere of influence, and the propor-
tionate expansion of the Japanese sphere, it can be said



Online LibraryMingchien Joshua BauThe foreign relations of China: a history and a survey → online text (page 26 of 39)