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No. 28

JAPAN AND CHINA

Agreement relating to the Chientao region.—September 4, 1909

The Imperial Government of Japan and the Imperial Government of China, desiring to secure for Chinese and Korean inhabitants in the frontier regions the blessings of permanent peace and tranquility, and considering it essential in the attainment of such desire that the two Governments should, in view of their relations of cordial friendship and good neighborhood, recognize the River Tumen as forming the boundary between China and Korea, and should adjust all matters relating thereto in a spirit of mutual accommodation, have agreed upon the following stipulations:

ART. 1.-The Governments of Japan and China declare that the River Tumen is recognized as forming the boundary between China and Korea and that in the region of the source of that river the boundary line shall start from the boundary monument and thence follow the course of the stream Shihyishwei.

ART. 2.-The Government of China shall, as soon as possible after the signing of the present agreement, open the following places to the residence and trade of foreigners, and the Government of Japan may there establish consulates or branch offices of consulates. The date of the opening of such places shall be separately determined: Lungchingtsun; Chutszchie; Toutaokou; Paitsaokou.2

ART. 3.-The Government of China recognizes the residence of Korean subjects, as heretofore, on agricultural lands lying north of the River Tumen. The limits of the district for such residence are shown in the annexed map.

ART. 4.-The Korean subjects residing on agricultural lands within the mixed residence district to the north of the River Tumen shall submit to the laws of China, and shall be amenable to the jurisdiction of the Chinese local officials. Such Korean subjects shall be accorded by the Chinese authorities equal treatment with Chinese subjects, and similarly, in the matter of taxation and all other administrative measures, they shall be placed on equal footing with Chinese subjects. All cases, whether civil or criminal, relating to such Korean subjects shall be heard and decided by

1 MACMURRAY, vol. 1, p. 796; translation from the Japanese text, as printed in For. Rel., 1909, p. 119. Printed also in Am. Journal Int. Law, Supplement, 1910, p. Translation from Chinese text printed in CUSTOMS, vol. ii, p. 768.

132.

See Note to this document, post, p. 136.

2 The Chinese Government later fixed on November 2, 1909, as the date for the opening of all these ports.

the Chinese authorities in accordance with the laws of China, and in a just and equitable manner. A Japanese consular officer or an official duly authorized by him shall be allowed freely to attend the court, and in the hearing of important cases concerning the lives of persons, previous notice is to be given to the Japanese consular officers. Whenever the Japanese consular officers find that a decision has been given in disregard of law, they shall have right to apply to the Chinese authorities for a new trial to be conducted by officials specially selected in order to assure justice of the decision.

ART. 5. The Government of China engages that land and buildings owned by Korean subjects in the mixed residence district to the north of the River Tumen shall be fully protected equally with the properties of Chinese subjects. Ferries shall be established on the River Tumen at places properly chosen, and people on either side of the river shall be entirely at liberty to cross to the other side, it being, however, understood that persons carrying arms shall not be permitted to cross the frontier without previous official notice or passports. In respect to cereals produced in the mixed residence district, Korean subjects shall be permitted to export them out of the said district, except in time of scarcity, in which case such exportation may be prohibited. Collection of firewood and grass shall be dealt with in accordance with the practice hitherto followed.

ART. 6. The Government of China shall undertake to extend the KirinChangchun Railway to the southern boundary of Yenchi, and to connect it at Hoiryong (Hueining) with a Korean railway, and such extensions shall be effected upon the same terms as the Kirin-Changchun Railway. The date of commencing the work of the proposed extension shall be determined by the Government of China, considering the actual requirements of the situation, and upon consultation with the Government of Japan.

ART. 7.-The present agreement shall come into operation immediately upon its signature, and thereafter the Chientao branch office of the Residency General, as well as all civil and military officers attached thereto shall be withdrawn, as soon as possible, and within two months. The Government of Japan shall within two months hereafter establish its consulates at the places mentioned in Article 2.

In witness whereof, the undersigned, duly authorized by their respective Governments, have signed and sealed the present agreement in duplicate, in the Japanese and Chinese languages.

Note

In connection with this agreement see aíso the detailed agreement for the KirinCh'angch'un Railway loan, August 18, 1909 (No. 25, ante); Sino-Japanese treaty and exchange of notes respecting South Manchuria and Eastern Inner Mongolia, May 25,

1915 (No. 35, post); and Kirin-Hueining Railway loan agreement of June 18, 1918 (No. 42, post).

As an annex to this agreement, see the following Japanese law (No. 40.) relating to adjudication by consular officers in Kanto (Chientao), dated April 5, 1910, as translated from the Japanese Official Gazette of April 6, 1910):

Japanese Law relating to Adjudication by Consular Officers in Chientao, April 5, 1910

"ARTICLE 1.-The public trial of offences liable to capital punishment, or penal servitude for life or for a limited period of at least one year, or imprisonment, the preliminary examination of which has been conducted by consular officers stationed in Kanto, shall belong to the jurisdiction of the District Courts of the Residency General [i.e., of Korea].

"ARTICLE 2.-The Minister for Foreign Affairs may, if he deems it necessary in connection with a criminal case belonging to the jurisdiction of consular officers stationed in Kanto, order the consular officer concerned to deliver the accused to a prison in Korea.

"ARTICLE 3.—In cases where, in accordance with the provisions of the preceding article, the accused is delivered to a prison in Korea, the Resident General shall, if the case belongs to the jurisdiction of the district courts, cause a public procurator of the Residency General Court of Appeal having jurisdiction over the locality where the prison to which the accused is delivered is located to apply to such court of appeal for the designation of jurisdiction; and if the case belongs to the jurisdiction of the local courts, he shall cause a public procurator of the Residency General District Court having jurisdiction over the locality where the prison to which the accused is delivered is located, to apply to such district court for the designation of jurisdiction.

"In connection with the application and adjudication mentioned in the preceding paragraph, the provisions of Article 33 of the Code of criminal procedure shall be applied mutatis mutandis.

[Article 33 of Japanese Code of criminal procedure: "A person desirous of making a motion relative to the designation of the competent Court must declare his intention in writing to the Court competent to rule.

"The Court must decide the motion according to the documents."]

"ARTICLE 4.-Appeals from or protests against decision rendered by consular offi cers stationed in Kanto in cases subject to the jurisdiction of a district court shall belong to the jurisdiction of a Court of Appeal of the Residency General.

"ARTICLE 5.-In the cases mentioned in Articles 1 and 4, the Residency General Courts to have jurisdiction shall be determined by the Resident General.

"Supplementary Clause

"Lawsuits and non-contentious matters accepted prior to the enforcement of this law shall be dealt with according to previous practice."

No. 29

GREAT BRITAIN (Pauling & Company), UNITED STATES (American Group) AND CHINA

Preliminary agreement providing for the financing, construction and operation of the railway from Chinchou to Aigun.—October 2,

1909

This Preliminary Agreement to provide for the financing, construction and operation of the Railway from Chinchou to Aigun is made between their excellencies the viceroy of Manchuria and the governor of Fengtien, hereinafter called the administration, of the one part, and the American group and its associates (such associates to be admitted to participation with the full consent of, and to the extent, not more than forty per cent of the whole, to be determined by the Chinese Government), hereinafter called the banks, and Pauling & Co., hereinafter called the Contractors, of the other part:

Now it is hereby mutually agreed by and between the parties hereto as follows:

I.—The administration engages to borrow from the bank the sum necessary to construct the railway from Chinchou to Aigun. The rate of interest for this loan shall not exceed 5 per cent per annum, and the terms of issue, which shall be the most favorable obtainable, and the other details of procedure shall be arranged in a mutually satisfactory manner.

The payment of interest and amortization of this loan shall be guaranteed by the Imperial Chinese Government and the security therefor shall be the railway line.

Interest payments and amortization shall be met by the receipts of the railway or the proceeds of the loan, and if these be insufficient, by Manchurian revenues as may hereafter be selected by the administration and the bank in a manner to be mutually satisfactory.

The first bond issue shall be for the amount necessary for the construction and equipment of the railway between Chinchou and Tsitsihar. The second shall be for the construction and equipment of the railway between Tsitsihar and Aigun.

An equitable arrangement shall be made for the redemption of the bond issue by the board of communications prior to the expiration of their term.

II. The administration agrees to contract with the contractors for the construction and equipment of this road. The contractors engage to build

1 MACMURRAY, vol. I, p. 800. Printed also in For. Rel., 1910, p. 232. See Note to this document, post, p. 140.

and equip the line using the best possible materials on the cheapest possible

terms.

The detailed terms and conditions, etc., shall be arranged hereafter in a manner that shall be mutually satisfactory.

III. On equal terms Chinese materials shall be given the preference. If however Chinese materials are not available recourse shall be had to other markets.

The administration shall be liable to the contractors only for the contract price of the railway and it is clearly understood that no commission shall be paid on the purchase of materials.

IV. During the construction of this railway the appointment of the chief engineer shall be vested in Pauling & Co. but this appointment must be approved by the president of the railway company to be designated by the Imperial Chinese Government. The chief engineer shall be under the control of the Board of Communications and the Railway Company.

V. As the work of construction is completed section by section the railway shall be operated, during the currency of the loan, by a company which shall be under the control of the board of communications. If after the payment of interest and amortization charges, and operating expenses, there be a surplus the railway company shall receive 10 per cent thereof.

VI. The company shall be composed of Chinese, Americans and British as may be hereafter arranged, the Chinese to have a majority interest. in the control, but under no circumstances shall persons of any other nationality than those herein mentioned have any voice in the management or control of the company without the full permission of the Imperial Chinese Government.

The company shall have as its president a high official appointed by the Imperial Chinese Government. The other details of organization shall be subsequently arranged in a mutually satisfactory manner.

VII. This railway company is to be organized by Chinese, American and British interests. It is recognized however that this line is constructed in Chinese territory for commercial purposes and in case of war may be used only for the transportation of Chinese troops and munitions of war.

VIII. This preliminary agreement is signed by their excellencies the viceroy of Manchuria and the governor of Fengtien with the bank and the contractors subject to approval by imperial edict, without which it shall be null and void.

IX. In case certain portions of this agreement are characterized as unacceptable by the imperial edict or in case the administration finds on further consideration that there are certain unsatisfactory provisions therein, these clauses, to which exception has been taken, shall be revised in the detailed agreements in a manner which shall be satisfactory to all parties.

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