Another interesting legal question connected with the Sino-German Shantung Treaty, which expressly declared that Germany engaged at no time to sub-let the territory to another Power, was whether Germany obtained or could obtain the right to transfer her interests to Japan (as provided in the Treaty of Versailles) by reason of the undertaking given by China to Japan in one of the treaties resulting from the Twenty-One Demands, "to give full assent to all matters upon which the Japanese Government may hereafter agree with the German Government relating to the disposition of all rights, interests and concessions which Germany, by virtue of treaties or otherwise, possesses in relation to the Province of Shantung." Was this Sino-Japanese agreement res inter alios acta, so far as Germany was concerned, and therefore one from which she could derive no power? Was it therefore within the competence of Germany to transfer to Japan the rights and interests referred to in Article 156 of the Versailles Treaty? Of course, all this is now a matter of the past, but the jurisprudential principles involved are of continuing significance.'

A further point of great importance raised in the Conference with reference to the denunciation of treaties was that contained in the declaration by Senator Underwood with regard to the right of China, upon an appropriate occasion, to escape, by a unilateral act upon her own part, from the present treaty limitations upon her power to control her own tariff policies. When the Nine Power Treaty relating to the Chinese Customs Tariff was under discussion, Senator Underwood, as reported in the minutes of the Conference, said:

He might be wrong in this matter, but he believed this treaty was not on the same basis as many other treaties involving great national rights. This was a trade agreement, a trade contract, which China had made with the other nations of the world, and he thought China had a right to denounce these treaties when she thought proper. He thought this was clearly her right, because no question of national right was involved; it was merely a question of trade agreements, and agreements of that kind had been made in the past to extend over a period of time, or an indefinite period of time, and, when conditions changed so that they worked a great disadvantage to one or others of the contracting parties, it had been recognized in the past that such trade conventions might be eliminated.2

Another respect in which occurrences in China have showed that the principles of international law are not well determined, is with reference to the right of one state to send into or to station its troops within the territory of another state for the protection there of the nationals of the sending state.

It is, of course, well recognized that, under certain circumstances, the

1 The writer owes to the scholastic mind of Dr. James Brown Scott the suggestion of these last two points.

2 This view was repeated by Senator Underwood in the United States Senate at the time the treaty relating to China's tariff was under consideration.

sending or stationing of troops is justified by accepted principles of international law, but, it is clear that these principles by no means cover some of the cases in China to which the Powers have attempted to apply them. It is my opinion that the Chinese Delegates stated the correct doctrine when they said with reference to the sending or stationing of foreign forces within the territory of another State without its express consent:

[This] can rightfully be only a temporary measure in order to meet emergencies that threaten imminent danger to the lives and property of the nationals of the states taking such action, and, upon the passing of such emergency, the forces sent should be immediately withdrawn. It is also the understanding of the Chinese Delegation that the obligation to make such withdrawal cannot, as a general principle, be rightfully postponed until the government of the state where they are located has consented to an inquiry by the representatives of other Powers into its own domestic conditions as regards the maintenance of law and order, and a report has been made declaring that there is no necessity for the presence of such foreign armed force. In other words, it is the understanding of the Chinese Delegation that accepted international law recognizes the basic right of every sovereign state to refuse its consent to the sending into or the stationing within its borders of armed forces, and that while it may, by an exercise of its own will, consent that an inquiry shall be made as to the necessity in fact of the continuance within its borders of such foreign armed forces as may be therein, such action upon its part, or a resolution by other Powers offering their cooperation in such an inquiry, is not to be deemed in derogation or limitation of the inherent right of a sovereign state to refuse entrance into, or further continuance within, its borders, of foreign armed forces.

How far Japan has departed, and still departs, from the rule thus stated is conspicuously shown in her refusal to withdraw from the city of Hankow and vicinity the troops which she has had there since 1911. There are, indeed, five reasons why this refusal is an unreasonable one, and is therefore evidence of an indisposition upon Japan's part to pay to China that respect due to her as a friendly sovereign Power. In the first place, the troops have now been maintained there for more than ten years-their stationing, therefore, despite assertions to the contrary, can, with difficulty, be termed only temporary in character. In the second place, Hankow is a place far in the interior of China and, therefore, the sending or stationing of troops there cannot be justified by analogy with the frequent occasions upon which states have felt themselves at times obliged to land troops upon the coasts of other states. In the third place, there are at Hankow many nationals of other states the governments of none of which, during these years, have deemed the situation one that required them to send troops. In the fourth place, these various groups of nationals for the most part do not live throughout the native Chinese city of Hankow, but reside in special municipal settlements or concessions with their own systems of police. Fifthly and finally, there are constantly upon the Yangtze River, upon which Hankow is located, nu

merous gunboats of the various Powers ready at all times to give prompt assistance and protection to foreign nationals should sudden emergencies arise. For these reasons it seems evident that the continuance of the Japanese troops at Hankow furnishes a conspicuous instance in which Japan has shown, and still shows, her unwillingness to respect the rights of China. Aside, however, from the inequity of her conduct in this respect, one finds it difficult to determine the grounds upon which Japan defends it even as matter of Realpolitik.

Other questions of international law involved in China's relations with the other Powers, which would be worthy of discussion if there were time, are those relating to the scope and operation of the most-favored nation doctrine; the propriety, or rather the impropriety, of maintaining" police boxes," as is done by Japan in connection with the exercise by her of her consular jurisdiction in China; and the operation of inter-Power agreements relating to China but to which she is not a party.

The PRESIDENT. The last speaker of the evening is Mr. Frederick Moore, Foreign Councillor to the Japanese Ministry of Foreign Affairs.

THE FAR EASTERN SETTLEMENTS OF THE CONFERENCE

OF WASHINGTON

ADDRESS BY MR. FREDERICK MOORE

Foreign Councillor to the Japanese Ministry of Foreign Affairs

Mr. President, ladies and gentlemen: I had not intended to speak without my notes as I have what I am going to say carefully prepared, but I made a couple of notes with regard to some of Mr. Willoughby's statements. The first one that struck me as rather peculiar and I might ask him for an answer was this point: He brought up the question whether treaties or agreements between some other state and China were proper and could be enforced if they were not ratified by the parliamentary body according to the constitution. I have not followed China's affairs for some years very intimately in detail, for I have been away from there since 1916, but prior to that time I was in China for five years, and I believe I am right in saying-I would like to be corrected if I am not-that the constitution of China does not function. There is no parliament in China. In fact no parliament in China has ever been able to ratify the original constitution. And, therefore, does Mr. Willoughby mean to contend that any agreement or understanding that is entered into by the Government of China cannot operate unless or until some parliament is established and some constitution is ratified?

Professor WILLOUGHBY. I merely asked the question. I did not answer it.

Mr. MOORE. In Mr. Willoughby's statement he raised points of legal justification. We can go far in basing questions here in the United States.

on matters of legality, or pure ethics, or justice; but what is the use of making a great case out of the fact that the Japanese had maintained soldiers at Hankow? It is not a very serious number. We ourselves maintain ten gunboats on the Yangtze River for the protection of missionaries. You would have believed from discussions with regard to Shantung that the Japanese had at least 60,000 troops in Shantung. As a matter of fact they had 2800 troops in Shantung. We never heard a word about the section of the railway which in effect the British control, or the section of the German railway which the Japanese did not take over and which the Chinese themselves were able to take over.

There are a great many points which we hear very little about with regard to Far Eastern matters. It has been the habit for some time in this country to pick upon the Japanese and not to perceive the other side of the case; and while I am judicially minded generally, I think that much has been said against the Japanese unfairly with regard to their position in the Far East. In the twenty minutes that are given to me I shall present something in the way, not of justification of all they have done, because they are human and they have their difficulties, and their temptations also, but some mitigation of the charges that have been made against them. I am going to deal with some other things also in this paper.

It seems to me that to understand any situation, the best thing to do is to begin by getting down to first principles or basic facts, and in considering other peoples to regard them as ordinary human beings in somewhat differing stages of progress. Now, to understand all the complexities of Far Eastern affairs is a very serious business, perhaps beyond the capability of any one man. But any American who is seriously interested ought to be capable of understanding such facts as are available to the high-school boy, and these facts can be got out of a good geography, out of the World Almanac, and out of the Statesmen's Year Book; and especially out of our recent observation of history. I am going to deal with some such facts this evening, even before this educated audience.

By a fast boat, as we all know, Europe is approximately a week's sailing away from our eastern coast, and the history of the last hundred years has shown us, I think conclusively, that no Power in Europe and no possible combination of Powers is capable of safely assaulting the United States. The continent of Asia is approximately twice as far away, and there, too, there is no Power, nor possible combination of Powers, that is able to menace us without the gravest danger to itself. Moreover, this situation will remain as it is for scores of years to come, for while Great Britain, Japan and other nations are progressing, our development is proceeding, because of natural room for development, infinitely more rapidly.

Before I go into Far Eastern matters, which is the principal subject I have to deal with, I want to read to you a statement made by Admiral Baron Kato, in order to show you that that ranking Japanese delegate to the

Washington Conference understood this situation much as I do, and wanted to show the American people that he understood it. In a public speech in New York on January 14, he made the following very clear statement,-he was speaking in the midst of the Conference,

In a few short weeks we have dissipated the clouds that marred the naturally clear and happy skies of the Pacific. Two months ago we heard loose talk of possible war. Today, we are contemplating an established peace. Early in November the newspapers frequently used such phrases as "Conflict of interests," "Supremacy of the seas, and "Menacing aggressions"; today, they are talking more in terms of "understanding," "accord" and "coöperation.' "accord" and "coöperation." . . . Nor is this, my friends, only phraseology. Critics may say that such declarations as we have been making at Washington were made a hundred years ago at Vienna, and subsequently at The Hague, and therefore, will amount to nothing. But that is not the case, for very definite reasons. In the first place, the several nations represented in Washington have given, by the concessions they have made to the views of others, tangible demonstrations of the earnestness of their intentions. Unless the spirit that actuates the people of these nations were deep-rooted in sincere desire, these concessions would not have been possible. Fortunately, the interests and the desires of the greater nations of the world are in accord; otherwise, the scrapping of hundreds of thousands of tons of fighting ships would not be practicable or acceptable. That is unmistakable evidence of unmistakable agreement and logic.

I want particularly to draw your attention to one fact. An effort has been made for a number of years to present Japan to you as a military nation designing to dominate the Pacific. Some of us Japanese have tried to disabuse the minds of those who were wont to believe this calumny, but with many the charge remained unrefuted up to the present Conference. Within these recent weeks, Japan, by accepting the 5-5-3 ratio, has given evidence which only the weakminded will in future dispute; and at the same time this ratio is also assurance that you have no intention of assaulting us. We have never aspired or intended to challenge the security of America or her far-ranging possessions; we have sought only security for ourselves.

I want to stop here because I had another idea. Admiral Knapp spoke, it seemed to me, about the boxing gloves, so to speak, of three possible contestants, rather than the physique of the three possible contestants. If we look at the physique of the United States, the physical power of Japan, and the physical power of Great Britain, we find one Power will stand like a super-state above the other two first-class states.

[Continuing Baron Kato's statement]:

Never have we desired war,-certainly never a conflict with the nation that is the greatest purchaser of our goods and at the same time. the most powerful factor on the Pacific.

I think that affects 40 per cent. of the Japanese, because the Japanese live by their overseas' trade as we do primarily by our selling from one state to another.