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and consenting to the adherence of the United States to this convention contained the following reservation:
reserving and eacluding, however, Article XXIII thereof, which is in the following words: A neutral power may allow prizes to enter its ports and roadsteads, whether under convoy or not, when they are brought there to be sequestrated pending the decision of a prize court. It may have the prize taken to another of its ports. If the prize is convoyed by a war ship, the prize crew may go on board the convoying ship. If the prize is not under convoy, the prize crew are left at liberty. Resolved further, That the United States adheres to this convention with the understanding that the last clause of Article III implies the duty of a neutral power to make the demand therein mentioned for the return of a ship captured within the neutral jurisdiction and no longer within that jurisdiction.
Another precedent is found in the Algeciras Convention of April 7, 1906. In this case the Senate's resolution of ratification (December 12, 1906) contained the following reservation, which differs materially from a reservation made by the United States delegates at the time of signing:
Resolved further, that the Senate, as a part of this act of ratification, understands that the participation of the United States in the Algeciras conference and in the formation and adoption of the general act and protocol which resulted therefrom, was with the sole purpose of preserving and increasing its commerce in Morocco, the protection as to life, liberty and property of its citizens residing or traveling therein, and of aiding by its friendly offices and efforts, in removing friction and controversy which seemed to menace the peace between powers signatory with the United States to the treaty of 1880, all of which are on terms of amity with this Government; and without purpose to depart from the traditional American foreign policy which forbids participation by the United States in the settlement of political questions which are entirely European in their scope.
Italics have been used to emphasize certain words in the above quotations for the purpose of calling attention to the extent and variety of the reservations which the United States Senate has thought advisable to insist upon in the exercise of its authority as part of the treaty-making power.
The mode of procedure indicated by the above precedents has been adopted for the ratification of the Peace Treaty with Germany. It provides in one of its closing clauses that the first procès verbal of the deposit of ratifications will be drawn up as soon as it has been ratified by Germany, on the one hand, and by three of the Principal Allied and Associated Powers on the other hand; thus indicating that this procès verbal is to be followed by others as other nations ratify, so that each party in turn will be given an opportunity to record its acceptance of any reservations which may be proposed.
Considering the effect of reservations in the ratification of the treaty of peace, it should be noted that this treaty is multi-lateral only so far as the League of Nations Covenant is concerned. All of the high contracting parties, including Germany, agree indiscriminately to the Covenant, although Germany is excluded from participation in the League, and consequently the terms of the Covenant may be changed by the members of the League without consulting Germany. The rest of the treaty is bi-lateral, the parties being the Allied and Associated Powers, on the one part, and Germany on the other part. Two different kinds of treaties are thus combined in the treaty of peace.
It must be noted further that there is no provision in the peace treaty making its coming into force dependent upon ratification by all the signatories. On the contrary, it is expressly provided in the fourth clause from the last that the treaty will enter into force for each Power at the date of the deposit of its ratification. Furthermore, the treaty provides in the introductory clauses that “from the coming into force of the present treaty the state of war will terminate."
It would seem to follow from these considerations that although all of the parties except Germany would be concerned in reservations as to the Covenant, none of the Allied and Associated Powers would be concerned purely as a question of law in reservations exempting the United States from adherence to any or all of the other provisions of the treaty.
CHANDLER P. ANDERSON.
THE SHANTUNG CESSION Articles 156-158, Section VIII, Part IV of the Treaty of Peace with Germany contain the following provisions relating to Shantung Province:
Art. 156. Germany renounces, in favour of Japan, all her rights, title and privileges particularly those concerning the territory of Kiaochow, railways, mines and submarine cables—which she acquired in virtue of the Treaty con
cluded by her with China on March 6, 1898, and of all other arrangements relative to the Province of Shantung. All German rights in the Tsingtao-Tsinanfu Railway, including its branch lines, together with its subsidiary property of all kinds, stations, shops, fixed and rolling stock, mines, plant and material for the exploitation of the mines, are and remain acquired by Japan, together with all rights and privileges attaching thereto. The German State submarine cables from Tsingtao to Shanghai and from Tsingtao to Chefoo, with all the rights, privileges and properties attaching thereto, are similarly acquired by Japan, free and clear of all charges and encumbrances. Art. 157. The movable and immovable property owned by the German State in the territory of Kiaochow, as well as all the rights which Germany might claim in consequence of the works or improvements made, or of the expenses incurred by her, directly or indirectly, in connection with this territory, are and remain acquired by Japan, free and clear of all charges and encumbrances. Art. 158. Germany shall hand over to Japan, within three months from the coming into force of the present Treaty, the archives, registers, plans, titledeeds and documents of every kind, wherever they may be, relating to the administration, whether civil, military, financial, judicial or other, of the territory of Kiaochow. Within the same period Germany shall give particulars to Japan, of all treaties, arrangements or agreements relating to the rights, title or privileges referred to in the two preceding articles."
In order to understand what “rights, title, and privileges” Japan has thus acquired in the Chinese province of Shantung, it is necessary to examine the convention of March 6, 1898, between Germany and China respecting the lease of Kiaochow. As is well known, this treaty was extorted by Germany from China by a display of force, but the use of coercion of this kind on the part of a government, even though really an act of national brigandage, has never been regarded as having the effect of invalidating a treaty. The Kiaochow Convention of 1898 ° is divided into three sections. Section I, consisting of five articles, relates to such matters as rights of German troops, the term and purpose of the lease, the limits of the territory leased, the rights of Chinese vessels in Kiaochow Bay, the rights of the Chinese population in the ceded territory, etc. The terms and purpose of the lease are thus set forth in Article II: With the intention of meeting the legitimate desire of His Majesty the German Emperor, that Germany, like other Powers, should hold a place on the Chinese coast for the repair and equipment of her ships, for the storage of materials and provisions for the same, and for other arrangements connected therewith, His Majesty the Emperor of China cedes to Germany on lease, provisionally for ninety-nine years, both sides of the entrance to the Bay of Kiaochow. Germany engages to construct, at a suitable moment, on the territory thus ceded, fortifications for the protection of the buildings to be constructed there and of the entrance to the harbour.
1 Senate document No. 49, 66th Cong., 1st sess., p. 70. 2 Translation from the German text as printed in Customs, Vol. II, p. 208.
Art. III defines the limits of the territory leased:
In order to avoid the possibility of conflicts, the Imperial Chinese Government will abstain from exercising rights of sovereignty in the ceded territory during the term of the lease, and leaves the exercise of the same to Germany within the following limits :
(1) On the northern side of the entrance to the bay:
The peninsula bounded to the north-east by a line drawn from the northeastern corner of Potato Island to Loshan Harbour.
(2) On the southern side of the entrance to the bay:
The peninsula bounded to the south-west by a line drawn from the southwesternmost point of the bay lying to the south-south-west of Chiposan Island in the direction of Tolosan Island.
(3) The Island of Chiposan and Potato Island.
(4) The whole water area of the bay up to the highest water-mark at present known.
(5) All islands lying seaward from Kiaochow Bay, which may be of im. portance for its defence, such as Tolosan, Chilienchow, etc.
It should be noted that the lease covers a very restricted territory (including a water as well as a land area) within the limits of which the Chinese Government agrees to “abstain from exercising the rights of sovereignty.” It is not clear whether these rights of sovereignty are theoretically or abstractly reserved to China, as, for example, was done in the case of the lease of Port Arthur to Russia, where it was expressly stated that “this act of lease, however, in no way violates the sovereign rights of His Majesty the Emperor of China to the above-mentioned territory (Art. I of the Convention for the lease of the Liaotung Peninsula, March 27, 1898). The language used in the last paragraph of Article III of the Kiaochow Convention would appear to support the view that there was a theoretical and legal as well as actual transfer of sovereignty to Germany.
This paragraph reads:
Chinese ships of war and merchant-vessels shall enjoy the same privileges in the Bay of Kiaochow as the ships of other nations on friendly terms with
3 Supplement to this JOURNAL, Vol. 4, p. 289.
Germany; and the entrance, departure, and sojourn of Chinese ships in the bay shall not be subject to any restrictions other than those which the Imperial German Government, in virtue of the rights of sovereignty over the whole of the water area of the bay, transferred to Germany, may at any time find it necessary to impose with regard to the ships of other nations.
There is, however, no question as to the express reservation of sovereignty by China in the zone surrounding Kiaochow Bay. In Article I the Emperor of China
engages, while reserving to himself all rights of sovereignty in a zone of 50 kilometres (100 Chinese li) surrounding the Bay of Kiaochow at high-water, to permit the free passage of German troops within this zone at any time, as also to abstain from taking any measures, or issuing any Ordinances therein, without the previous consent of the German Government, and especially to place no obstacle in the way of any regulation of the water-courses which may prove to be necessary.
The rights of the Chinese population residing in the leased territory are thus safeguarded in Article. V:
The Chinese population dwelling in the ceded territory shall at all times enjoy the protection of the German Government, provided that they behave in conformity with law and order; unless their land is required for other purposes they may remain there.
If land belonging to Chinese owners is required for any other purpose, the owner will receive compensation therefor.
Section II, concerning “Railway and Mining Affairs” requires citation in full.
Art. I. The Chinese Government sanctions the construction by Germany of two lines of railway in Shantung. The first will run from Kiaochow via Weihsien, Tsingchofu, Poshan, Tzechwan, and Tsowping to Tsinan and the boundary of Shantung. The second line will run from Kiaochow to Ichowfu, and from there to Tsinan via Laiwuhsien. But the construction of the extension from Tsinan to the boundary of Shantung shall not be begun until the railway is completed as far as Tsinan in order that further consideration may be given by the Chinese as to how they will connect this with their own trunk line. The route to be taken by this last branch will be definitely determined in the regulations which will be drawn up hereafter.
Art. II. In order to carry out the above-mentioned railway work, a ChinoGermán Company shall be formed. This Company may have offices in one place or in several places, and both German and Chinese merchants shall be at liberty to invest money therein, and share in the appointment of directors for the management of the undertaking.