Mingchien Joshua Bau.

The foreign relations of China: a history and a survey online

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arise between them any dispute likely to lead to a rup-
ture, they will submit the matter either to arbitration
or to inquiry by the Council, and they agree in no case
sort to war until three months after the award by
the arbitrators or the report by tin- Council.

In any case under this Article the award of the arbi-
trators shall he made within a reasonable time, and the
report of the Council Shall he made within six months

after the submission of tin- dispute" (Article 12).

In "disputes as to the interpretation of a treaty, a- to
any question of international law, as to the existent
any fact which if established should constitute a breach

of any international obligation, Or as to the extent and


nature of the reparation to be made for any such
breach" (Article 13), which are declared to be generally
appropriate for submission to arbitration, she can, with
the consent of the other party or parties to the dispute,
submit the matter to arbitration, and if she abides by
the award, gains the protection of the League (Article
13). In disputes likely to lead to a rupture, and which
are not submitted to arbitration, she can submit the mat-
ter to the Council by giving notice to the Secretary
General. "If a report by the Council' is unanimously
agreed to by the members thereof other than the Repre-
sentatives of the one or more of the parties to dispute,
the Members of the League agree that they will not go
to war with any party to the dispute, which complies
with the recommendations of the report." This means
that in case of a unanimous report by the Council ex-
cepting the parties to the dispute, she gains the protec-
tion of the League by compliance with the report or
recommendation. If, however, the Council fails to
render a unanimous report, then she can adopt what
measures she pleases "for the maintenance of right and
justice," which is tantamount to saying that she can
make war, if she deems it tit and desirable. On the other
hand, she can ask the Council to refer the matter to the
Assembly if she does so within fourteen days after the
submission of the dispute, in which case a report of all
"the representatives of the Members of the League rep-
resented on the Council and of a majority of the other
members of the League, exclusive in each case of the
representatives of the parties to the dispute, shall have
the same force as a report by the Council concurred in
by all the members thereof other than the representa-
tives of one or more of the parties to the dispute"
(Article 15).

Finally, and what is equally as important as the right
of appeal, she has the right of territorial integrity and
political independence as guaranteed by Article 10:


"The Members of the League undertake to respect and
preserve as against external aggression the territorial
integrity and existing political independence of all Mem-
bers of the League. In case of any such aggression or
in case of any threat or danger of such aggression the
Council shall advise upon the means by which this obli-
gation shall be fulfilled."

As Wilson remarked, this is the heart of the Cove-
nant. "Article 10 seems to me to constitute the very
backbone of the whole Covenant. Without it the
League would be hardly more than an influential debat-
ing society." 3

On the other hand, since rights and duties are cor-
relatives, in acquiring these rights, she also incurs cor-
responding duties. By subscribing to the Preamble of
the League which runs :

"in order to promote international cooperation and to
achieve international peace and security by the accept-
ance of obligations not to resort to war, by the prescrip-
tion of open, just and honorable relations between na-
tions, by the firm establishment of the understand-
ings of international law as the actual rule of conduct
among governments, and by the maintenance of justice
and a scrupulous respect for all treaty obligations in the
dealings of organized peoples with one another, the High
Contracting Parties agreed to this Covenant of the
League of Nations."

she places herself under obligation to observe, as far as
feasible, the four ideals or methods of promoting inter-
national cooperation and peace, namely:

1. By the acceptance of obligations not to resort to
war ;

2. By the prescription of open, just and honorable

relations ;


3. By the firm establishment of the understandings
of international law as the actual rule of conduct
among Governments, and

4. By the- maintenance of justice and a scrupulous
respect for all treaty obligations in the dealin
organized peoples with one another.

She also obligates herself to perform the necessary
duties connected with the humanitarian tasks connected
with tabor legislation, colonial administration, traffic in
women, children, opium and other dangerous drugs, free-
dom of communication and equitable treatment in inter-
national commerce, prevention of disease, and Red
Cross. 3A

She further engages to bear the expenses of the Sec-
retariat "in accordance with the apportionment of the
expenses of the International Bureau of the Universal
Postal Union" (Art. 6), which may include the ex-
penses of any bureau or commission placed under the
direction of the League (Art. 24). Without the con-
currence of the Council, she is also not to exceed the
limit of armament as recommended by the Council after
she has adopted the recommendation. She is to inter-
change full and frank information as to the scale of her
armaments, her military, naval, and air programs
and the condition of such of her industries as are adapt-
able to war-like purposes (Art. 8). Should she be-
come a mandatory for any colony she "shall render to
the Council an annual report in reference to the terri-
tory committed to its charge" (Art. 22), besides ob-
serving the requirements as set forth in the mandate

Respecting treaties, she must register every treaty or
international engagement with the secretariat, and cause
it io he published by the League as soon as possible, no
treaty or international engagement being binding until
so registered (Art. 18). '1 his means that she cannot
enter into any secret treaties or alliances, hut must pre-


scribe "open, just and honorable relations between na-
tions." She further pledges not to conclude any treaty
or agreement inconsistent with the terms of the League
Covenant, and in case she has assumed obligations in-
consistent therewith, she will take steps to obtain the
necessary release therefrom. Article 20 reads :

''The Members of the League severally agree that this
Covenant is accepted as abrogating all obligations or un-
derstandings inter se which are inconsistent with the
terms thereof, and solemnly undertake that they will not
hereafter enter into any engagements inconsistent with
the terms thereof. In case any Member of the League
shall, before becoming a Member of the League, have
undertaken any obligations inconsistent with the terms
of this Covenant, it shall be the duty of such Member
to take immediate steps to procure its release from such

Thus, by assuming this obligation, she recognizes the
supremacy of the League Covenant, which is to govern
all past, existing, and future treaties and international

In regard to the sanctions as provided in the Cove-
nant, China obligates herself to participate in and con-
tribute her share in the enforcement and application of
these sanctions. She is to resort to diplomatic severance
and economic boycott against the covenant-breaking
state. She is to contribute her quota of the interna-
tional force recommended by tin- Council. Sin- is tBLEMS ARISING SINCE THE WAR

XV, it shall ipso facto be deemed to have committed an
act of war against all other members of the League,
which hereby undertake immediately to subject it to the
severance 01 all trade or financial relations, the prohibi-
tion of all intercourse between their nationals and the
nationals of the covenant-breaking State, and the pre-
vention of all financial, commercial, or personal inter-
• between the nationals of the covenant-breaking
State-; and the nationals of any other State, whether a
Member of the League or not.

"It shall be the duty of the Council in such case to
recommend to the several Governments concerned what
effective military or naval force the Members of the
League shall severally contribute to the armed forces to
be used to protect the covenants of the League.

"The members of the League agreed, further, that
they will mutually support one another in the financial
and economic measures which are taken under this Ar-
ticle, in order to minimize the loss and inconvenience
resulting from the above measures, and that they will
mutually support one another in resisting any special
measures aimed at one of their number by the covenant-
breaking State, and that they will take the necessary
steps to afford passage through their territory to the
forces of any of the Members of the League which are
cooperating to protect the covenants of the League.

"Any Member of the League which has violated any
covenant of the I .caguc may be declared to be no longer
a Member of the League by a vote of the Council con-
curred in by the representatives of all other Members."

While China enjoys these rights and duties acquired
through her membership in the League, her territorial
integrity and political independence are, by no means,
under an absolute, or even effective, guarantee of the
League. In accordance with Wilson's interpretation,
Article 10 entails no other than moral obligations on the
part of the member states. Whatever the recommenda-
tion of the Council may lie, the state concerned can still
decide its own course of action. "The council of the


League can only 'advise upon' the means by which the
obligations of that great article are to be given effect to.
Unless the United States is a party to the policy or action
in question, her own affirmative vote in the Council is
necessary before any advice can be given, . . . The
United States will, indeed, undertake under Article 10
to respect and preserve against external aggression the
territorial integrity and existing political independence
of all members of the League, and that engagement con-
stitutes a very grave and solemn moral obligation. But
it is a moral, not a legal, obligation, and leaves our con-
gress absolutely free to put its own interpretation upon
it in all cases that call for action. It is binding in con-
science only, not in law." 4

Hence, whatever protection or guarantee of territorial
integrity and political independence China may obtain
from the League must necessarily proceed out of the
willing cooperation and good will of its Members.
Meanwhile, she must be prepared to resist sudden inva-
sions, as shown in the recent Russian invasion of Urga,
the League having no instrument ready for action in
such an emergency. She must also be prepared for war,
in case the recommendation of the Council is not unan-
imous, or in case the report of the assembly is not
concurred in by the representatives of all the members
of the League represented on the Council and a majority
of the other members exclusive in each case of the rep-
resentatives of the party or parties to the dispute, tor, in
such cases, the League does not forbid war. but simply
delays war for the duration of the time covering the
consideration by the Council or Assembly within six
months and three months after the delivery of the re-
port or recommendation. It will, therefore, be a
mistake on the part of China to di card her armament
or even to neglecl it. trusting in the efficacy of the
ue. It should rather be her duty to he fully pre-
pared for war, just ;i> if there wnv im League in exist-


ence, bending, however, her efforts henceforth to inter-
national peace and devoting her military and naval forces
to the maintenance of the principles of the League.


1. For the Covenant of the League of Nations, see Hearings
before the Committee on Foreign Relations, the United States
Senate, Sixty-sixth Congress, Firsl Session, Senate Document
No. 1 To attack the leased territory of Kiaochow;

(2) To land her troops at Lungkow and then
inarch through Chinese territory; and

(3) To sei/e the Kiaochow-Chinan Railway and
the adjoining mines.

2. Whether China's Declaration of War abrogates all
treaties, conventions and agreements with Germany
and China thus recovers the German concessions in

3. Whether Japan's possession of German rights in
Shantung is validated by

(1) The Treaty of May 25, 1915, and

(2) The Agreement of September 24, 1918.

As to whether Japan had the right to attack the leased
territory of Kiaochow, there seems to be an honest dif-
ference of opinion. On the one hand, China claims that,
inasmuch as she reserved her sovereignty over the leased
territory in Article 1 of the Lease Convention, 6 she can
assert the neutrality of the leased territory in time of
a war in which the lessee state is involved. In other
words, arising from the reservation of sovereignty, she
(hems the leased territory as neutral, and not subject to
the hostile operation of belligerents. Further, even in
case an attack should have become necessary to abate a
nuisance or to remove a menace, she contends that her
previous consent should have been obtained before the
attack could be legitimate.

On the other hand, Japan claims that, basing her ac-
tion on the precedent of Tort Arthur and Talienwan,
which leased territories she took from Russia in the war
of 1904-5, the leased territories are not neutral, but sub-
ject to the hostile operations of belligerents. The grant
of the right of fortification, she contends, and the sur-
render of the right of administration, during the term


of the lease, all indicate that these territories are proper
objects of attack. She further maintains that, granted
she had no right to attack the territory, she had notified
the Chinese Government before the attack, and that the
Chinese Government did not make any strenuous objec-
tion, nor lodge any protest, but, on the contrary, requested
participation in the attack, which, though rejected, could
be taken as tantamount to tacit consent. 7

As to whether Japan had the right to land at Lungkow
and march through the Chinese territory, it is quite safe
to say that Japan had no such right, but, on the con-
trary, exceeded the limit of her rights and violated the
neutrality of China. China having declared her neu-
trality by the Presidential Mandate of August 6, 1914, 8
Japan was under obligation to respect her neutrality.
She had no more right to move her troops and supplies
through the neutral territory of China than Germany had,
in 1914, to cross the neutral territory of Belgium in order
to attack France. "It is a principle of the law of nations
that no belligerent can rightfully make use of the terri-
tory of a neutral state for belligerent purposes, without
the consent of the neutral Government." °

It has been contended by Japan that military necessity
justified the violation, inasmuch as she could attack
KiaocliMW more easily from the rear than from the front
or side. This argument, however, does not seem to stand
the test of analysis. In the first place, there was no
military necessity calling for such a violation of China's
neutrality. Japan could have attacked Tsingtao just as
well by landing within the leased territory of Kiaochow
as by way of Lungkow, if not better. This -was borne
out by the action of the British, who, in due respect of

China's neutrality, landed at Laoshan on September 23,

and because of tin - distance from Laoshan to Tsingtao
being less than from Lungkow to Tsingtao and fewer

natural obstacles in tin- way, tiny reached the M-ene of
action in time to participate in the first encounter with


the Germans. 10 This action on the part of the British
clearly proved that there was no such military necessity,
and this alone, in glaring contrast with Japan's action,
is sufficient to establish the guilt of Japan.

Granting for argument's sake that there was the mili-
tary necessity, this still did not justify Japan's violation
of China's neutrality. Germany pleaded the guilt of her
own violation of Belgian neutrality on the ground of
military necessity. But the world did not condone Ger-
many's crime on that account. If the violation of Bel-
gian neutrality is unjustifiable, as the verdict of man-
kind and the late World War have held it to be so, Japan's
violation of China's neutrality by landing in Lungkow is
equally unjustifiable, even more so, because of the ab-
sence of any ground of military necessity.

Perhaps it may be argued that China's proclamation
of the war zone, on the day of Japan's landing at Lung-
kow, seemed to give her implied consent and hence justi-
fied Japan's action. It must be understood, however,
that in proclaiming the war zone, China did not thereby
condone Japan's action, but rather aimed simply to pro-
tect herself from any consequences resulting from the
actions of belligerents within her territory, so that she
could be free from any charges of negligence as a
neutral. In fact, in the difficult and embarrassing situa-
tion, the proclamation of a war zone was probably
the only course of action for her to pursue. For China
to resist Japan at Lungkow, in the face of force
majeure, would have meant war, which would be
contrary to the spirit of the law of neutrality. On
the other hand, for China to remain silent would
have been equally inexpedient, since Germany could
then have claimed damage for injuries due to negli-
gence on the part of China to preserve her neutrality.
Confronted with such a dilemma, China was therefore

Online LibraryMingchien Joshua BauThe foreign relations of China: a history and a survey → online text (page 33 of 39)