Japan to be established at a place designated by the Japanese Government.

"3. If the foreign Powers desire it, an international concession may be established.

"4. As regards the disposal to be made of the buildings and properties of Germany and the conditions and procedure relating thereto, the Japanese Government and the Chinese Government shall arrange the matter by mutual agreement before the restoration." 3

Then, on March 14, 1917, China severed diplomatic relations with Germany, and on August 14, 1915, declared war on Germany and Austria-Hungary, abrogating all treaties, agreements, and conventions she had had with the Central Powers, to the effect that

"all the treaties of whatever nature between China and Germany as well as Austria-Hungary are abrogated, as also all such provisions of the Protocol of September 7, 1901, and other similar international agreements in so far as they concern China and Germany as well as Austria-Hungary." 4

This was duly taken notice of by the legations addressed, including that of Japan.

On September 24, 1918, in an exchange of notes between the Chinese Minister at Tokio and the Japanese Minister for Foreign Affairs, respecting adjustment of questions concerning Shantung, it was agreed that (Art. 6) "the Kiaochow-Chinan Railway, after its ownership is definitely determined, is to be made a ChinoJapanese joint enterprise." 5

At the Paris Peace Conference of 1919, both China and Japan contended for the former German rights in Shantung. On April 30, 1919, the Council of Three rendered the decision in favor of Japan, which was incorporated in Articles 156, 157, 158, of the Treaty of Peace with Germany, signed at Versailles on June 28, 1919.

The question, as stated above, turns on these issues: 1. Whether Japan has the right

(1) To attack the leased territory of Kiaochow; (2) To land her troops at Lungkow and then march through Chinese territory; and

(3) To seize 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 Shantung.

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 difference 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," 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 deems 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 action on the precedent of Port Arthur and Talienwan, which leased territories she took from Russia in the war of 1904-5, the leased territories are not neutral, but subject to the hostile operations of belligerents. The grant of the right of fortification, she contends, and the surrender 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 objection, nor lodge any protest, but, on the contrary, requested participation in the attack, which, though rejected, could be taken as tantamount to tacit consent."

8

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 contrary, exceeded the limit of her rights and violated the neutrality of China. China having declared her neutrality by the Presidential Mandate of August 6, 1914, 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 territory 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 Kiaochow 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 the distance from Laoshan to Tsingtao being less than from Lungkow to Tsingtao and fewer natural obstacles in the way, they reached the scene 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 military 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 Germany's crime on that account. If the violation of Belgian neutrality is unjustifiable, as the verdict of mankind 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 absence 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 Lungkow, seemed to give her implied consent and hence justified 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 protect 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 situation, 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 negligence on the part of China to preserve her neutrality. Confronted with such a dilemma, China was therefore 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 Lungkow remains a gross violation of China's neutrality.

Respecting Japan's right to seize the Kiaochow-Chinan 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 territory, 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 protection 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 Weihsien and occupied the railway station, the Chinese Government 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 understood, with some difficulty, what our Government meant in that declaration. This Ministry (the Chinese Foreign Office) further declared that the railroad from Weihsien to Chinan 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 west of Weihsien. But now the troops of your Government have forced their way into Weihsien and taken possession of the railway. Considering that the railway belongs to a Sino-German corporation, that all the railway stations have also been under Chinese protection, and in none of them has there