CHIEF CHARACTERISTICS OF THE DISPUTE
It will be seen from this review that for more than sixteen months the Council or Assembly has continuously tried to find a solution for the Sino-Japanese dispute. Numerous resolutions have been adopted based on various articles of the Covenant and other international agreements. The complexity, to which reference has already been made, of the historical background of the events; the special legal situation of Manchuria, where Japan, as will be noted later, exercised within Chinese territory extensive rights; finally, the involved and delicate relations existing in fact between the Chinese and Japanese authorities in certain parts of Manchuria justified and rendered necessary the prolonged efforts of negotiation and enquiry made by the League. However, the hopes entertained by the Council and the Assembly of an improvement in the situation, arising from the declarations of the parties and the resolutions adopted with their participation, were disappointed. The situation, on the contrary, tended to grow constantly worse. In Manchuria, or other parts of the territory of a Member of the League, military operations, which the report of the Commission of Enquiry has described as “war in disguise,” continued and still continue.
Having considered the principal features of the dispute, the Assembly has reached, in particular, the following conclusions and noted the following facts:
- The dispute between China and Japan which is submitted to the Assembly originated in Manchuria, which China and foreign Powers have always regarded as an integral part of China under Chinese sovereignty. In its observations on the report of the Commission of Enquiry, the Japanese Government contests the argument that the rights conferred on Russia and subsequently acquired by Japan “in the extremely limited area known as the Southern Manchuria Railway zone” conflict with Chinese sovereignty. “They were, on the contrary, derived from the sovereignty of China.”
The rights conferred by China on Russia and subsequently on Japan derive from the sovereignty of China. Under the Treaty of Pekin in 1905, “the Imperial Chinese Government consented to all the transfers and assignments made by Russia to Japan” under the Treaty of Portsmouth. In 1915, it was to China that Japan addressed demands for the extension of her rights in Manchuria and it was with the Government of the Chinese Republic that, following on these demands, the Treaty of May 25th, 1915, was concluded concerning South Manchuria and Eastern Inner Mongolia. At the Washington Conference, the Japanese delegation stated, on February 2nd, 1922, that Japan renounced certain preferential rights in South Manchuria and Eastern Inner Mongolia and explained that, “in coming to this decision, Japan had been guided by a spirit of fairness and moderation, having always in view China’s sovereign rights and the principle of equal opportunity.” The Nine-Power Treaty, concluded at the Washington Conference, applies to Manchuria as to every other part of China. Finally, during the first phase of the present conflict, Japan never argued that Manchuria was not an integral part of China.
- Past experience shows that those who control Manchuria exercise a considerable influence on the affairs of the rest of China—at least of North China—and possess unquestionable strategic and political advantages. To cut off these provinces from the rest of China cannot but create a serious irredentist problem likely to endanger peace.
- The Assembly, in noting these facts, is not unmindful of the tradition of autonomy existing in Manchuria. That tradition, in one extreme case, and in a period of particular weakness on the part of the Central Government of China, made it possible, for instance, for the plenipotentiaries of Marshal Chang Tso-lin to conclude, in the name of the “Government of the autonomous three Eastern Provinces of the Republic of China,” the agreement of September 20th, 1924, with the Union of Soviet Socialist Republics concerning the Chinese Eastern Railway, navigation, the delimitation of frontiers, etc. It is obvious from the provisions of that agreement, however, that the Government of the autonomous three Eastern Provinces did not regard itself as the Government of a State independent of China, but believed that it might itself negotiate with the Union of Soviet Socialist Republics on questions affecting the interests of China in the three provinces, though the Central Government had, a few months previously, concluded an agreement on these questions with the self-same Power.
This autonomy of Manchuria was also shown by the fact that, first, Marshal Chang Tso-lin and later Marshal Chang Hsueh-liang were the heads both of the civil and military administration and exercised the effective power in the three provinces through their armies and their officials. The independence proclaimed by Marshal Chang Tso-lin at different times never meant that either he or the people of Manchuria wished to be separated from China. His armies did not invade China as if it were a foreign country but merely as participants in the civil war. Through all its wars and periods of “independence,” Manchuria remained an integral part of China. Further, since 1928, Marshal Chang Hsueh-liang has recognised the authority of the Chinese National Government.
- During the quarter of a century ending in September 1931, the political and economic ties uniting Manchuria with the rest of China grew stronger, while, at the same time, the interests of Japan in Manchuria did not cease to develop. Under the Chinese Republic, the “three Eastern Provinces” constituting Manchuria were thrown wide to the immigration of Chinese from the other provinces who, by taking possession of the land, have made Manchuria in many respects a simple extension of China north of the Great Wall. In a population of about 30 millions, it is estimated that the Chinese or assimilated Manchus number 28 millions. Moreover, under the administration of Marshals Chang Tso-lin and Chang Hsueh-liang, the Chinese population and Chinese interests have played a much more important part than formerly in the development and organisation of the economic resources of Manchuria.
On the other hand, Japan had acquired or claimed in Manchuria rights the effect of which was to restrict the exercise of sovereignty by China in a manner and to a degree quite exceptional. Japan governed the leased territory of Kwantung, exercising therein what amounted in practice to full sovereignty. Through the medium of the South Manchuria Railway, she administered the railway zones, including several towns and important parts of populous cities, such as Mukden and Changchun. In these areas, she had control of the police, taxes, education, and public utilities. She maintained armed forces in certain parts of the country: the army of Kwantung in the leased territory; railway guards in the railway zones; consular police in the various districts. Such a state of affairs might perhaps have continued without leading to complications and incessant disputes if it had been freely desired or accepted by both parties and if it had been the expression and manifestation of a well-understood policy of close economic and political co-operation. But, in the absence of such conditions, it was bound to lead to mutual misunderstandings and conflicts. The interconnection of respective rights, the uncertainty at times of the legal situation, the increasing opposition between the conception held by the Japanese of their “special position” in Manchuria, and the claims of Chinese nationalism were a further source of numerous incidents and disputes.
- Before September 18th, 1931, each of the two parties had legitimate grievances against the other in Manchuria, Japan taking advantage of rights open to question and the Chinese authorities putting obstacles in the way of the exercise of rights which could not be contested. During the period immediately preceding the events of September 18th, various efforts were made to settle the questions outstanding between the two parties by the normal method of diplomatic negotiations and pacific means, and these means had not been exhausted. Nevertheless, the tension between Chinese and Japanese in Manchuria increased, and a movement of opinion in Japan advocated the settlement of all outstanding questions—if necessary, by force.
- The present period of transition and national reconstruction in China, despite the efforts of the Central Government and the considerable progress already achieved, necessarily involves political disturbances, social disorder, and disruptive tendencies inseparable from a state of transition. It calls for the employment of a policy of international co-operation. One of the methods of that policy would be that the League of Nations would continue to afford China the technical assistance in modernising her institutions which her Government might request with a view to enabling the Chinese people to reorganise and consolidate the Chinese State.
The full application of the policy of international co-operation initiated at the Washington Conference, the principles of which are still valid, has been delayed, chiefly by the violence of the anti-foreign propaganda carried on in China from time to time. In two respects—the use of the economic boycott and anti-foreign teaching in schools—this propaganda has been pushed to such lengths that it has contributed to creating the atmosphere in which the present dispute broke out.
- The use of the boycott by the Chinese previous to the events of September 18th, 1931, to express their indignation at certain incidents or to support certain claims could not fail to make a situation which was already tense still more tense.
The use of the boycott by China, subsequent to the events of September 18th, 1931, falls under the category of reprisals.
- The object of the provisions of the Covenant of the League of Nations regarding the settlement of disputes is to prevent the tension between nations becoming such that a rupture appears to be inevitable. The Commission of Enquiry found that each of the issues between China and Japan was in itself capable of settlement by arbitral procedure. It is precisely because the accumulation of these issues increased the tension between the two nations that it was incumbent on the nation which regarded itself as injured to draw the attention of the League of Nations to the situation when diplomatic negotiations were unduly protracted.
Article 12 of the Covenant contains formal obligations as regards the pacific settlement of disputes.
- Without excluding the possibility that, on the night of September 18th-19th, 1931, the Japanese officers on the spot may have believed that they were acting in self-defence, the Assembly cannot regard as measures of self-defence the military operations carried out on that night by the Japanese troops at Mukden and other places in Manchuria. Nor can the military measures of Japan as a whole, developed in the course of the dispute, be regarded as measures of self-defence. Moreover, the adoption of measures of self-defence does not exempt a State from complying with the provisions of Article 12 of the Covenant.
- Since September 18th, 1931, the activities of the Japanese military authorities, in civil as well as in military matters, have been marked by essentially political considerations. The progressive military occupation of the Three Eastern Provinces removed in succession all the important towns in Manchuria from the control of the Chinese authorities, and, following each occupation, the civil administration was reorganised. A group of Japanese civil and military officials conceived, organised, and carried through the Manchurian independence movement as a solution to the situation in Manchuria as it existed after the events of September 18th, and, with this object, made use of the names and actions of certain Chinese individuals and took advantage of certain minorities and native communities that had grievances against the Chinese administration. This movement, which rapidly received assistance and direction from the Japanese General Staff, could only be carried through owing to the presence of the Japanese troops. It cannot be considered as a spontaneous and genuine independence movement.
- The main political and administrative power in the “Government” of “Manchukuo,” the result of the movement described in the previous paragraph, rests in the hands of Japanese officials and advisers, who are in a position actually to direct and control the administration; in general, the Chinese in Manchuria, who, as already mentioned form the vast majority of the population, do not support this “Government” and regard it as an instrument of the Japanese. It should also be noted that, after the Commission of Enquiry completed its report and before the report was considered by the Council and the Assembly, “Manchukuo” was recognised by Japan. It has not been recognised by any other State, the Members of the League in particular being of opinion that such recognition was incompatible with the spirit of the resolution of March 11th, 1932.
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The situation which led up to the events of September 18th, 1931, presents certain special features. It was subsequently aggravated by the development of the Japanese military operations, the creation of the “Manchukuo Government” and the recognition of that “Government” by Japan. Undoubtedly the present case is not that of a country which has declared war on another country without previously exhausting the opportunities for conciliation provided in the Covenant of the League of Nations; neither is it a simple case of the violation of the frontier of one country by the armed forces of a neighbouring country, because in Manchuria, as shown by the circumstances noted above, there are many features without an exact parallel in other parts of the world. It is, however, indisputable that, without any declaration of war, a large part of Chinese territory has been forcibly seized and occupied by Japanese troops and that, in consequence of this operation, it has been separated from and declared independent of the rest of China.
The Council, in its resolution of September 30th, 1931, noted the declaration of the Japanese representative that his Government would continue, as rapidly as possible, the withdrawal of its troops, which had already been begun, into the railway zone in proportion as the safety of the lives and property of Japanese nationals was effectively ensured, and that it hoped to carry out this intention in full as speedily as might be. Further, in its resolution of December 10th, 1931, the Council, re-affirming its resolution of September 30th, noted the undertaking of the two parties to adopt all measures necessary to avoid any further aggravation of the situation and to refrain from any initiative which might lead to further fighting and loss of life.
It should be pointed out in connection with these events that, under Article 10 of the Covenant, the Members of the League undertake to respect the territorial integrity and existing political independence of all Members of the League.
Lastly, under Article 12 of the Covenant, the Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture, they will submit the matter either to arbitration or judicial settlement or to enquiry by the Council.
While at the origin of the state of tension that existed before September 18th, 1931, certain responsibilities would appear to lie on one side and the other, no question of Chinese responsibility can arise for the development of events since September 18th, 1931.
STATEMENT OF THE RECOMMENDATIONS.
This part sets forth the recommendations which the Assembly deems just and proper in regard to the dispute.
The recommendations of the Assembly take into account the very special circumstances of this case and are based on the following principles, conditions and considerations:
(a) The settlement of the dispute should observe the provisions of the Covenant of the League, the Pact of Paris, and the Nine-Power Treaty of Washington.
Article 10 of the Covenant of the League provides that “the Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League.”
According to Article II of the Pact of Paris, “the High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature, or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.”
According to Article I of the Nine-Power Treaty of Washington, “the Contracting Powers, other than China, agree to respect the sovereignty, the independence, and the territorial and administrative integrity of China.”
(b) The settlement of the dispute should observe the provisions of Parts I and II of the Assembly resolution of March 11th, 1932.
In that resolution, which has already been quoted in this report, the Assembly considered that the provisions of the Covenant were entirely applicable to the present dispute, more particularly as regards:
(1) The principle of a scrupulous respect for treaties;
(2) The undertaking entered into by Members of the League of Nations to respect and preserve as against external aggression the territorial integrity and existing political independence of all the Members of the League;
(3) Their obligation to submit any dispute which may arise between them to procedures for peaceful settlement.
The Assembly has adopted the principles laid down by the President-in-Office of the Council in his declaration of December 10th, 1931, and has recalled the fact that twelve Members of the Council had again invoked those principles in their appeal to the Japanese Government on February 16th, 1932, when they declared that no infringement of the territorial integrity and no change in the political independence of any Member of the League brought about in disregard of Article 10 of the Covenant ought to be recognised as valid and effectual by Members of the League.
The Assembly has stated its opinion that the principles governing international relations and the peaceful settlement of disputes between Members of the League above referred to are in full harmony with the Pact of Paris. Pending the steps which it might ultimately take for the settlement of the dispute which had been referred to it, it has proclaimed the binding nature of the principles and provisions referred to above and declared that it was incumbent upon the Members of the League not to recognise any situation, treaty or agreement which might be brought about by means contrary to the Covenant of the League of Nations or to the Pact of Paris.
Lastly, the Assembly has affirmed that it is contrary to the spirit of the Covenant that the settlement of the Sino-Japanese dispute should be sought under the stress of military pressure on the part of either party, and has recalled the resolutions adopted by the Council on September 30th and December 10th, 1931, in agreement with the parties.
(c) In order that a lasting understanding may be established between China and Japan on the basis of respect for the international undertakings mentioned above, the settlement of the dispute must conform to the principles and conditions laid down by the Commission of Enquiry in the following terms:
“1. Compatibility with the interests of both China and Japan.
“Both countries are Members of the League and each is entitled to claim the same consideration from the League. A solution from which both did not derive benefit would not be a gain to the cause of peace.
“2. Consideration for the interests of the Union of Soviet Socialist Republics.
“To make peace between two of the neighbouring countries without regard for the interests of the third would be neither just nor wise, nor in the interests of peace.
“3. Conformity with existing multilateral treaties.
“Any solution should conform to the provisions of the Covenant of the League of Nations, the Pact of Paris, and the Nine-Power Treaty of Washington.
“4. Recognition of Japan’s interests in Manchuria.
“The rights and interests of Japan in Manchuria are facts which cannot be ignored, and any solution which failed to recognise them and to take into account also the historical associations of Japan with that country would not be satisfactory
“5. The establishment of new treaty relations between China and Japan.
“A restatement of the respective rights, interests and responsibilities of both countries in Manchuria in new treaties, which shall be part of the settlement by agreement, is desirable if future friction is to be avoided and mutual confidence and cooperation are to be restored.
“6. Effective provision for the settlement of future disputes.
“As a corollary to the above, it is necessary that provision should be made for facilitating the prompt settlement of minor disputes as they arise.
“7. Manchurian autonomy.
“The Government in Manchuria should be modified in such a way as to secure, consistently with the sovereignty and administrative integrity of China, a large measure of autonomy designed to meet the local conditions and special characteristics of the Three Provinces. The new civil regime must be so constituted and conducted as to satisfy the essential requirements of good government.
“8. Internal order and security against external aggression.
“The internal order of the country should be secured by an effective local gendarmerie force, and security against external aggression should be provided by the withdrawal of all armed forces other than gendarmerie, and by the conclusion of a treaty of non-aggression between the countries interested.
“9. Encouragement of an economic rapprochement between China and Japan.
“For this purpose a new commercial treaty between the two countries is desirable. Such a treaty should aim at placing on an equitable basis the commercial relations between the two countries and bringing them into conformity with their improved political relations.
“10. International co-operation in Chinese reconstruction.
“Since the present political instability in China is an obstacle to friendship with Japan and an anxiety to the rest of the world (as the maintenance of peace in the Far East is a matter of international concern), and since the conditions enumerated above cannot be fulfilled without a strong Central Government in China, the final requisite for a satisfactory solution is temporary international co-operation in the internal reconstruction of China, as suggested by the late Dr. Sun Yat-sen.”
The provisions of this section constitute the recommendations of the Assembly under Article 15, paragraph 4, of the Covenant.
Having defined the principles, conditions and considerations applicable to the settlement of the dispute,
THE ASSEMBLY RECOMMENDS AS FOLLOWS:
- Whereas the sovereignty over Manchuria belongs to China,
A. Considering that the presence of Japanese troops outside the zone of the South Manchuria Railway and their operations outside this zone are incompatible with the legal principles which should govern the settlement of the dispute, and that it is necessary to establish as soon as possible a situation consistent with these principles,
The Assembly recommends the evacuation of these troops. In view of the special circumstances of the case, the first object of the negotiations recommended hereinafter should be to organise this evacuation and to determine the methods, stages and time-limits thereof.
B. Having regard to the local conditions special to Manchuria, the particular rights and interests possessed by Japan therein, and the rights and interests of third States,
The Assembly recommends the establishment in Manchuria, within a reasonable period, of an organisation under the sovereignty of, and compatible with the administrative integrity of, China. This organisation should provide a wide measure of autonomy, should be in harmony with local conditions and should take account of the multilateral treaties in force, the particular rights and interests of Japan, the rights and interests of third States, and, in general, the principles and conditions reproduced in Section I (c) above; the determination of the respective powers of and relations between the Chinese Central Government and the local authorities should be made the subject of a Declaration by the Chinese Government having the force of an international undertaking.
- Whereas, in addition to the questions dealt with in the two recommendations 1A and 1B, the report of the Commission of Enquiry mentions in the principles and conditions for a settlement of the dispute set out in Section I (c) above certain other questions affecting the good understanding between China and Japan, on which peace in the Far East depends.
The Assembly recommends the parties to settle these questions on the basis of the said principles and conditions.
- Whereas the negotiations necessary for giving effect to the foregoing recommendations should be carried on by means of a suitable organ,
The Assembly recommends the opening of negotiations between the two parties in accordance with the method specified hereinafter.
Each of the parties is invited to inform the Secretary-General whether it accepts, so far as it is concerned, the recommendations of the Assembly, subject to the sole condition that the other party also accepts them.
The negotiations between the parties should take place with the assistance of a Committee set up by the Assembly as follows: The Assembly hereby invites the Governments of Belgium, Great Britain, Canada, Czechoslovakia, France, Germany, the Irish Free State, Italy, The Netherlands, Portugal, Spain and Turkey each to appoint a member of the Committee as soon as the Secretary-General shall have informed them that the two parties accept the Assembly’s recommendations. The Secretary-General shall also notify the Governments of the United States of America and of the Union of Soviet Socialist Republics of this acceptance and invite each of them to appoint a member of the Committee should it so desire. Within one month after having been informed of the acceptance of the two parties, the Secretary-General shall take all suitable steps for the opening of negotiations.
In order to enable the Members of the League, after the opening of negotiations, to judge whether each of the parties is acting in conformity with the Assembly’s recommendations:
(a) The Committee will, whenever it thinks fit, report on the state of the negotiations, and particularly on the negotiations with regard to the carrying out of recommendations 1A and B above; as regards recommendation 1A, the Committee will in any case report within three months of the opening of negotiations. These reports shall be communicated by the Secretary-General to the Members of the League and to the nonmember States represented on the Committee;
(b) The Committee may submit to the Assembly all questions relating to the interpretation of Section II of Part IV of the present report. The Assembly shall give this interpretation in the same conditions as those in which the present report is adopted, in conformity with Article 15, paragraph 10, of the Covenant.
In view of the special circumstances of the case, the recommendations made do not provide for a mere return to the status quo existing before September, 1931. They likewise exclude the maintenance and recognition of the existing regime in Manchuria, such maintenance and recognition being incompatible with the fundamental principles of existing international obligations and with the good understanding between the two countries on which peace in the Far East depends.
It follows that, in adopting the present report, the Members of the League intend to abstain, particularly as regards the existing regime in Manchuria, from any act which might prejudice or delay the carrying out of the recommendations of the said report. They will continue not to recognise this regime either de jure or de facto. They intend to abstain from taking any isolated action with regard to the situation in Manchuria and to continue to concert their action among themselves as well as with the interested States not members of the League. As regards the Members of the League who are signatories of the Nine-Power Treaty, it may be recalled that, in accordance with the provisions of that Treaty: “Whenever a situation arises which, in the opinion of any one of them, involves the application of the stipulations of the present Treaty and renders desirable discussion of such application, there shall be full and frank communication between the contracting Powers concerned.”
In order to facilitate as far as possible the establishment in the Far East of a situation in conformity with the recommendations of the present report, the Secretary-General is instructed to communicate a copy of this report to the States non-members of the League who are signatories of the Pact of Paris or of the Nine-Power Treaty, informing them of the Assembly’s hope that they will associate themselves with the views expressed in the report, and that they will, if necessary, concert their action and their attitude with the Members of the League.