Mingchien Joshua Bau.

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

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constrained to proclaim the war zone, not to extenuate
Japan but rather to protect her own position of neu-


trality. It is therefore plain that, notwithstanding the
proclamation of the war zone, Japan's landing at Lung-
kow remains a gross violation of China's neutrality.

Respecting Japan's right to seize the Kiaochow-Chinari
Railway and the adjoining mines, it is again evident that
Japan had no such right. On the contrary, she did so
in violation of China's neutrality. The railway and
mines in question were situated within Chinese terri-
tory, outside the leased territory of Kiaochow. and hence
were under the protection of the Chinese authorities. No
matter whether they were the public or private property
of Germans, the fact that they lay within the Chinese
territory was sufficient to clothe them with the protec-
tion of China's neutrality, and to exempt them from
seizure by any belligerent whatsoever.

In fact, Japan perpetrated the seizure in spite of the
repeated protests of the Chinese Government and thus
knowingly violated China's neutrality. As the war zone
delimited belligerent activities to the east of Weihsien
or within one hundred miles west of Tsingtao, and as,
on September 26, the Japanese troops proceeded to Weih-
sien and occupied the railway station, the Chinese Gov-
ernment protested on the next day, that is, September 27,
1914, as follows:

"On the 7th of September a dispatch received from
your Government stated that your Government under-
stood, with some difficulty, what our Government meant

in that declaration. This .Ministry (the Chinese Foreign

Office) further declared that the railroad from Weihsien
to Chilian should be under Chinese protection, and
through Your Excellency we requested your Government
to issue an order prohibiting your troops from advancing
to Weihsien, or any place wesl of Weihsien. But now
the troops of your Government have forced their way
into Weihsien and taken possession of the railway. Con-
sidering that the railway belongs to a Sino ( ierman
corporation, thai all the railway stations have also been
under Chinese protection, and in none of them has there


ever been any German troop, and that V. is in

urely neutral territory, the acts committed by the
troops of your country are manifestly contrary to the
declaration and in violation of China's neutrality." u

Following this protest, on thi ' iy, September 28,

1914, the Japanese Minister at Peking called at the

Chinese Ministry of Foreign Affairs, and. to the surprise
and indignation of the Chinese Government, informed the
latter that, because of military necessity, the Jap
troops would mov- rd from Weihsien and occupy

the whole line. In consequence of this, on September
30, 1914, the Chinese Government again protested:

"It is a settled principle that even the public property
of a belligerent while on a neutral territory, cannot be
attacked, or taken possession of by the other billigerent,
much more so in the present case when the property in
question is jointly owned by Chinese and German capi-
tis. ... It has been a long while since the troops
of your country have begun to attack Tsihgtao, and the
German troops in Tsingtao have I rendered

helpless, and entirely and long ago cut off from the com-
munication through the Kiaochow Railway. Not only
our Government will never allow the Germans to make
use of the line, it is actually beyond their power to make
if it. Therefore the contemplated action of your
country is decidedly not a case of military neces

In response to these repeated protests, the Japanese
Government replied on October 2, 1914. that the Ger-
man Kiaochow-Chinan Railway was of the same nature
and character as the leased territory and that the pur-
pose of Japan's attack was not only to eliminate the
German base of Kiaochow, but to gain the control and
administration of the railway in question. Reiterating
the argument of military necessity, it contended that,
lying at the rear of the leased territory, the control of
the railway was essential to the safety of Japan in
Kiaochow :


"Regarding the Shantung Railway, ... it is of the
same character as the leased territory. This fact is be-
yond dispute, in view of its origin, the special charter
given by the German Government and the way in which
the company draws its funds. . . .

"Moreover, a railway from its very nature positively
cannot he treated one part separately from the other.
Although one part of this German-owned railway is
situated west of Weihsien, it cannot be held as having
changed its character on the ground that a part remains
in neutral territory. Besides, the aim of the Imperial
Government is not only to overthrow the base possessed
by the enemy, but also to cause the control and admin-
istration of this indivisible railway to fall into our posses-

"Although the Chinese Government holds that under
the present condition the Shantung Railway cannot be
utilized by the German troops in view of its severance
with Chilian, yet from the attacking troops' point of view,
the railway being immediately behind Tsingtao, and in
view of the present situation, it is a serious danger to
the military operation to leave a railway by the enemy
perfectly free." 13

It can be seen, from these extracts from the official
correspondence, that what China strove for was the
preservation of her neutrality, and that what Japan aimed
at was not only the leased territory of Kiaochow, but
also the Kiaochow-Chinan Railway with the adjoining
mines, although they lay within Chinese neutral terri-
tory. Such faets cannot but compel a reasonable and
impartial mind to declare that Japan, in gaining the
control of the Kiaochow-Chinan Railway and the adjoin-
ing mines, violated the neutrality of China.

This conclusion is all the more convincing and ines-
capable when the nil the inviolability of
neutral territory, as summarized by John Bassett Moore,
arc taken into consideration: M


". . . It appears ( 1 ) that the commission of hostility
against another on neutral territory is a violation of the

law of nations; (2) that such violation involves an of-
fense to the neutral nation, and that reparation from the
offending belligerent is due to that nation alone; (3)
that, if property was captured, it is the duty of the
offending belligerent to restore it on the demand of the
neutral; (4) that nations have, by numerous treaties,
pledged themselves as neutrals and to use 'all the means
in their power' to protect or effect the restitution of prop-
erty in such cases; but (5) that the manner in which
this obligation must be discharged was not ascertained
by any express rule or by any general understanding."

Applying these rules to Japan's seizure of the German
Kiaochow-Chinan Railway and the adjoining mines lying
within the Chinese neutral territory outside the leased
area, it is clear that she violated China's neutrality and
that, in consequence, she is under obligation, upon the
demand of China, to restore the same.

We now come to consider whether China's declaration
of war abrogates all the treaties of whatever nature, thus
legalizing China's recovery of Germany's former conces-
sions in Shantung. The writers on international law are
not agreed as to whether war abrogates all treaties. Vat-
tel maintains that war abrogates all treaties which pre-
suppose the continuance of peace, except those made in
anticipation of rupture. 1 ' Like Vattel, Kent contends
that, "as a general rule, the obligations of treaties are
dissipated by hostility, and are extinguished and gone
forever, unless revived by a subsequent treaty. But
if a treaty contain any stipulations which contemplate
a state of future war, and make provisions for such an
exigency, they preserve their force and obligation when
the rupture takes place." l8 On the other hand, Fiore
says: "The extinction of all treaties and conventions
concluded between the belligerent states cannot be deemed


an immediate effect of war, but only the termination of
those which, by their nature and object, are necessarily
inconsistent with a state of war." 17

Another reasonable doctrine is that of Calvo, which
states: 1 * "The solution of these questions depends natu-
rally upon the particular character of the engagements
contracted. Thus all are agreed in admitting the rup-
ture of conventional ties concluded expressly with a view
to a state of peace, whose special object it is to promote
relations of harmony between nation and nation, such as
treaties of amity, of alliance, and other acts of the same
nature having a political character. As to customs and
postal arrangements, conventions of navigation and com-
merce, and agreements relative to private interests, they
are generally considered as suspended till the cessation of
hostilities. By necessary consequence, it is a principle
that every stipulation written with reference to war, as
well as all clauses described as perpetual (qualifiees de
perpetuelles) preserve in spite of the outbreak of hos-
tilities their obligatory force so long as the belligerents
have not, by common accord, annulled them or replaced
them with others."

John Bassett Moore presented his own conclusion on
the subject as follows: "It is evident that . . . there was
a recognition of the principle, which is now received as
fundamental, that the question whether the stipulations
of a treaty are annulled by war depends Upon their in-
trinsic character. If they relate to a right which the
outbreak of war does not annul, the treaty itself re-
mains unannuled." 10

Taking as our criterion the conclusion arrived at by
Moore that the question as to whether the stipula-
tions of a treaty are annulled by war, depends upon their
intrinsic character, it is evident that the treaties in ques-
tion are of an intrinsic character which the war should
nullify. The German lease convention of March 6, 1898,

was extorted from I hina by the threat of the mailed fiat.


It further alienated from China her jurisdiction over the
1 territory for ninety-nine years. In the event of
war, the continuance of an alien jurisdiction on the soil
of China would he inimical to her safety, and it is but
natural, therefore, that she should avail herself of the
opportunity of war to remove that source of danger and
recover the delegated, or rather wrested, rights of sov-
ereignty. Further, the lease convention granted to Ger-
many the right of fortification, which meant that Ger-
many, in time of war, could use the leased territory as
a basis of action against China. It is plain, therefore,
that such a treaty should not be allowed to persist in
time of war, but should be abrogated upon the declara-
tion of the same. As to the Tsingtao-Chinan Railway
and the adjoining mines, while the agreements thereon
were not intrinsically of a character incompatible with
the status of war, their public character and strategic
and political relations to the safety of China, warranted
their being taken into custody by the terriorial sovereign
during the period of war, and pending the final settle-
ment by peace negotiation.

It can, therefore, be fairly concluded that, inasmuch
as the declaration of war on the part of China had abro-
gated the lease convention of March 6, 1898, all the Ger-
man rights in Shantung arising thereform should have
reverted to China automatically, and that Japan's pos-
session of them from thai moment was in defiance and
contravention of China's rights. It can also be affirmed
that the Kiaochow-Tsingtao Railway and the adjoining
mines should have come into the custody and possession
of China upon her declaration of war, and that Japan's
control and possession of the same was not only con-
summated in violation of China's neutrality, but also
retained in defiance and contravention of China's rights.

We now come to the third issue вАФ that of whether
Japan's possession of the German rights in Shantung


is validated by the Treaty of May 25, 1915, and the
Agreement of September 24, 1918. As regards the con-
sent which japan exacted from China by virtue of Ar-
ticle 1 of the Treaty of May 25, 1915, respecting Shan-
tung, 20 it must be observed that the assent, as provided
therein, conceding for argument's sake its validity, which
is contested, is not applicable to the final settlement at
the Paris Peace Conference. For the negotiation was
not between Germany and Japan as stipulated in the
provision, but between the Allied and associated Powers
on the one hand and Germany on the other. Hence,
inasmuch as Japan was "debarred from negotiating sepa-
rately with Germany in respect to the latter's system in
Shantung owing to the decision of the Conference to
deal with German territories and concessions without
consulting Germany," it is evident that Japan did not
comply with the provision of coming to an agreement
with Germany regarding the free disposal of Kiaochow
and that "the article in question should be deemed in-
operative." 21

Granting, however, for argument's sake, that the set-
tlement as reached at the Paris Peace Conference came
within the scope of the provision, it is to be claimed
that the consent was not given of China's free will, but
rather was exacted under the duress of the ultimatum
of May 7, 1915, and the demonstration of naval and
military forces accompanying it. While international
law n validity of treaties imposed, even under

coercion, by victorious states upon the vanquished, it is,
not within reason to believe that interna-
tional law recognizes the validity of treaties imposed by

one friendly nation upon another, while in the relation
of peace and amity, it is tine that "coercion, while in-
validating a contract produced by it, does not invalidate
a treaty so produced. Thus there can he no question

of the binding force of the treaty which followed the
French-German War which led to the dethronement of


Napoleon I IT, though its terms were assented to under
ion. The same may be said of the consent of France
in the settlement enforced by the allies after Waterloo,
and so of the treaty by which Mexico ceded California
and the adjacent territory to the United States." 22 It
is, nevertheless, to he noted that what is recognized by
international law is the validity of treaties made in con-
sequence of war though imposed necessarily by the victor
on the vanquished under duress, and that it is not con-
ceivable that international law, postulating as it does
the fundamental principles of territorial sovereignty and
the equality and independence of states, will countenance
and give validity to an agreement or treaty, the consent
to which was exacted from a friendly nation in time of
peace, and this in consequence of the violation of the
latter's neutrality. Fiore says, while admitting the valid-
ity of treaties imposed by victorious states upon the
defeated in consequence of war: "Treaties concluded
between states must he freely assented to. Assent is not
valid if given by mistake, extorted by violence or ob-
tained by fraud." 23

The official statement given out by the Chinese Gov-
ernment regarding the Chino-Japancse negotiations of
1915, clearly proves that China's consent relating to the
disposal of the German rights in Shantung was not freely
and fully given, but was exacted under the duress of
the ultimatum of May 7. 1915. The statement records
that on February 2, 1915, at the first conference, while
she consented in principle to Article 1 relating to the

Online LibraryMingchien Joshua BauThe foreign relations of China: a history and a survey → online text (page 34 of 39)