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were without foundation. The alleged intentions of France were merely a pretext, and the violation of Luxemburg was committed by Germany solely in her military interest and in no sense on the ground of military necessity.

§ 457. Invasion of Belgium and Luxemburg Compared. Several differences between the procedure by which the neutrality of Luxemburg and that of Belgium was violated may be noted. In the first place, no ultimatum was addressed to the Luxemburg government demanding the right of "friendly passage" as was done in the case of Belgium. Luxemburg had no army, and her frontiers were undefended by fortresses, thanks to the treaty of 1867. Being therefore without means of resistance, the German government apparently did not consider it worth while to go through the formality of asking for permission to march its troops through the country.1 In accordance with the reasoning of the German jurists explained in the preceding chapter, namely, that an ultimatum addressed to a neutral State automatically places it in a conditional state of belligerency, and consequently a subsequent invasion of its territory constitutes no infraction of the law of neutrality, the failure to address an ultimatum to Luxemburg or to follow it with a formal declaration of war made the invasion of the Duchy a violation of the law of neutrality, whereas the invasion of Belgium was not.

§ 458. Other German Defences. Nevertheless, German jurists attempted to justify the invasion on the ground that the government of Luxemburg tacitly consented to the entrance of the German troops, in the first place, by refraining from offering resistance, unlike the Belgian government, and in the second place, by subsequently accepting an indemnity for the damages committed by the invading army and for the use of the local railways. This argument is without weight. In the first place, the government of Luxemburg protested "energetically"

1 Herr von Jagow in his telegram to M. Eyschen of August 2, referred to above, stated that "in the presence of imminent danger it was unfortunately impossible to enter into preliminary pour parlers with the Luxemburg government" with a view to obtaining consent for the passage of German troops.

* Renault, Les Premières Violations, p. 16. The German brochure, Die Wahrheit über den Krieg, asserts that "the people of Luxemburg even yielded reasonably to military necessity, and that although at first they were not friendly toward the Germans, they became so as shown by their irreproachable demeanor toward the German troops."

not only to Germany, but to the other signatory powers of the neutralization treaty, and denounced the invasion as the repudiation of a solemn engagement and a violation of international law. It offered no resistance for the obvious reason that it had no means of resistance, and because under the circumstances resistance would have been quite useless. Even had the Luxemburg government consented, tacitly or otherwise, to the invasion, it would have afforded no legal justification for Germany's act, because the territory of the Grand Duchy had been neutralized in the general European interest, by an international convention, and the consent of the other parties thereto would have been necessary to release Germany from her obligations as a party. As to the acceptance of the indemnity by Luxemburg, it is sufficient to say that a violation of an international neutralization convention to which a number of States are parties cannot be subsequently legalized by the payment of an indemnity to and the acceptance of it by the State thus neutralized.

In the second place, no charge was ever made against Luxemburg for having violated its own obligations under the neutralization treaty, so that one of the principal excuses put forward by the German government in defence of the invasion of Belgium did not exist here. Again, no contention was ever advanced by the German jurists that the treaty of 1867 was not binding either because the German Empire was not a party to it, or because it had become obsolete through the operation of the rule of rebus sic stantibus.

§ 459. Conclusion. These and other circumstances aggravate the German offence, since most of the excuses put forward in

1 The argument also appears to have been put forward in Germany that the occupation of Luxemburg was a justifiable act, because the grand duchy was not in a position to defend its neutrality. Cf. Henckel, Germany's Violation of Luxemburg, New York Times, July 26, 1916. This argument impresses one very much like the reasoning of Treitschke and others that small States have no right to an independent existence, because they are incapable of defending their independence. If Luxemburg was powerless to protect her own neutrality, it was partly because the European powers had placed her in that situation by requiring her to dismantle her fortresses and by prohibiting her from maintaining an army. Cf. Servais, The Grand Duchy of Luxemburg and the Treaty of London of May 11, 1867 (p. 175), who justly remarks that "No responsibility can be held to be incurred by the Grand Duchy, if it does not repel an attack directed against it, since it has been left powerless to do so; what can alone be demanded, is that it should not connive with an aggressor, and that, should an aggression arise, it should denounce and protest against the same."

JAPANESE INVASION OF CHINESE TERRITORY 237 justification of the invasion of Belgium were wholly lacking.1 Of all the pleas put forward in defence of the invasion of Luxemburg, that of military necessity is the only one which is entitled to consideration, and unless military necessity is interpreted to include whatever subserves a strategical interest, that plea is without weight. Since no declaration of war was ever made against Luxemburg, technically the situation of the country differed from that of Belgium. Nevertheless, in fact it was put under a regime of military occupation; the French and Belgian ministers were required to leave, and neutral diplomatic representatives were permitted to exercise their functions subject to such conditions as the German authorities saw fit to impose. The sovereignty of the State was by these and other acts in effect displaced for that of Germany.

II

JAPANESE VIOLATION OF CHINESE TERRITORY

§ 460. The Japanese Proceedings. Another example of the violation of neutral territory by a belligerent, and one which has been regarded by some as analogous to the German invasion of Belgium, was the marching of Japanese troops in September, 1915, across a portion of the territory of China in order to facilitate the military operations of Japan against the German leased

1 Cf. an article of Colonel Feyler in the Journal de Genève of January 27, 1915. The author remarks that "of the three possible violations of perpetual neutrality, that of Luxemburg was the gravest and least justifiable."

2 In June, 1917, a strike of miners was suppressed by the German authorities. The leaders were arrested and tried by court-martial; the places of the strikers were filled by Belgian déportés, and meetings and demonstrations on the part of the miners were suppressed by German troops. The government of Luxemburg protested vigorously against this infringement upon the sovereignty of the Grand Duchy. New York Times, June 30, 1917.

3 French Yellow Book, No. 156.

• After the withdrawal of the Germans in November, 1918, following the conclusion of the armistice, American soldiers passed through the grand duchy on their way to Germany. General Pershing issued a proclamation to the inhabitants notifying them that it had become necessary for the American troops to pass through and to establish and maintain there for a certain time their lines of communication. The proclamation declared that the presence of the Americans would not be prolonged beyond what was strictly necessary, and that the authority, rights, and institutions of the country would be fully respected. Since the Americans came as friends and liberators, they were welcomed by the inhabitants, and no complaint was made that they were guilty of violating the sovereignty of the country.

territory of Kiau-Chau. Upon the outbreak of the war in 1914 the Chinese government issued a neutrality proclamation announcing its intention of treating all belligerents impartially. The German government is said to have indicated its willingness to keep its naval squadron away from Tsing-tau and to place Tsing-tau with the Shantung railway under the jurisdiction of the Chinese government or to allow it to be neutralized. The Chinese government, however, agreed not to oppose belligerent action within the territory leased to Germany and to consider hostilities carried on therein as not taking place within Chinese territory.1

Tsing-tau, embracing the larger part of the leased territory of Kiau-Chau, lies on the south side of the Shantung promontory, the German sphere of influence running westward. On the north side of the promontory, about seventy miles from Tsingtau, is Lung-Kau, a Chinese harbor, in which Japanese troops were landed against the protest of Chinese officials, and from which place they later marched across Chinese territory to the rear of Tsing-tau. They also seized the custom-house and post-office and stretched a railway and telegraph line across the country in disregard of the rights of China and despite the protests of Chinese authorities.

$461. Chinese Concession of a "War Zone." It being apparent that the Japanese forces were indisposed to respect the neutrality of China in the region of Tsing-tau and being unable to compel respect for its sovereignty, the Chinese government thereupon, following the advice of its Japanese legal adviser, Professor Ariga, consented to recognize the existence of a "war zone" embracing an area of Chinese territory with a radius extending thirty miles from Tsing-tau. Within this region hostilities would be permitted, the concession being made with a view to limiting the sphere of Japanese activities in northern Shantung. The proposal recited that the allied forces of Great Britain and Japan had, to the regret of China, begun operations at Lung-Kau and other places outside the German leased territory, although both powers were in friendly relations with the Chinese government. Therefore China, following the precedent of the Russo-Japanese war of 1904 when the area of

1 Gilbert Reid, "The Neutrality of China," Yale Law Journal, December, 1915, p. 122.

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operations in the Liao-Tung peninsula was limited, proposed a similar restriction on the area of operations of the Japanese forces. The Chinese government would accordingly "not accept responsibility" for the passing of troops through or the conduct of operations at Lung-Kau, Kiau-Chau, and the adjacent districts, but in other portions of China strict neutrality would be enforced.1 It was charged that Japan showed no respect for the zone thus defined by the Chinese government.2

The German minister at Peking protested against the Chinese concession thus granted to Japan as a violation of neutrality and informed the Chinese government that it would be held responsible for all injuries sustained by Germany in consequence of the Japanese invasion of Chinese territory. The Chinese government in its reply pleaded its inability to oppose an effective resistance to the action of the Japanese forces and charged Germany with having first violated the neutrality of China by fortifying Tsing-tau. Finally the Chinese government called the attention of the German government to the fact that Tsingtau had never been ceded to Germany, but only leased to her, in consequence of which the territory was still under the legal sovereignty of China.

§ 462. Seizure of Chinese Railways. A second violation of Chinese territory by the Japanese consisted in the seizure of the railway station at Weihsien, west of Tsing-tau, and the

1 Text of the proposal in Jones, The Fall of Tsing-tau, p. 46. Manchuria was recognized as a war zone in 1904, because the district had been occupied by Russian troops for years; but the area recognized by China in the recent war had never been occupied by German troops. Moreover, in 1904 both belligerents agreed to the recognition of the war zone; in 1915 Germany's consent to the limitation of the area of operations was not obtained. Finally, the arrangement of 1904 was of equal benefit to both belligerents; that of 1915 was entirely for the benefit of Japan and virtually made China her ally, although against her will.

2 "They landed their troops at Lung-Kau, marched into the hinterland, and instead of working toward Tsing-tau, the Japanese army turned its back on the German garrison and marched westward, thus violating the neutrality of China. Though the latter protested vehemently, Japan went ahead and marched her troops still farther westward, out of the war zone, to Tsinanfu, the capital of Shantung. . . . China in deadly fear of a revolutionary uprising against the invader and with the one object of saving, if possible, her people of Shantung from the horrors of war, declared a war zone. To this zone Japan paid not the least attention, but marched her troops about as if Shantung was in reality Japanese territory. She seized the Shantung railway, a Chino-German enterprise, the valuable coal mines belonging to the company and committed many acts of violence and force upon the once peaceful Shantung communities." Jones, The Fall of Tsing-tau, pp. 173-174.