Recently, questioned by a friend in London on this "current problem" as itis called, I replied in roughly the following terms, after having of course related to him the circumstances I have just described: Everybody knows that the foreign concessions, with their right of independent and autonomous administration, form part of the right of extraterritoriality recognized by the chinese Government in favour of foreign Powers in times of peace. But it should be known also that Japan, being at present engaged in hostilities with China, has a perfect right to exercise in those concessions, as elsewhere, the rights of a belligerent which, in times of war, take precedence of other rights. Therefore, from the point of view of international law, there is no doubt or dispute possible. It is solely in order to avoid international complications that Japan seeks to exercise as little as possible such belligerent rights in these areas under a special regime, where the situation is of extreme delicacy.
In considering this question more fully, it is first of all necessary to observe that the principle that the necessity of hostile operations is a justification for least restriction of extraterritorial rights has never /in fact been seriously challenged, even in the specific case of foreign concessions in China. In most cases, the military operations undertaken by the Powers enjoying such concessions have been undertaken in common and obviously in such cases there has been no international friction concerning the restrictions involved. On the other hand, there have been cases in which one or more Powers have not been associated with such military operations, in which cases the extra territorial rights of the nationals of such Powers have been temporarily. restricted, and this, not by common agreement, but under the plea of military necessity by the Powers engaged in such military operations.
In the operations undertaken by the British, for example, in Shanghai in 1927, the Japanese took no part. Nevertheless, the Japanese authorities acquiesced in certain measures taken by the British- expeditionary forces evidently from military nece Historical Application Now, let us examine the historical application of this principle from the point of view not of foreign but of Chinese action. It is true that in principle the foreign concession Powers have never admitted the right of Chinese troops to enter the foreign concessions, They have, however, acquiesced in the violation of an agreement, the Shanghai Truce Agreement, of May, 1932, designed speci-tically to prevent the possibility of encroachment by Chinese forces on the International Settlement. This It was at one of these morning lectures that Professor Renault, when on the point of bringing to an end his section on war contraband, declared that he desired to add a word on the "Sydney Incident," of which there was so much talk at the moment. My excitement can be well imagined. I was literally drinking in his every word, Here is a resume of what he said. He declared plainly that the step which had been taken by the Japanese Government was, in his opinion, "fully justified." The extraterritoriality invoked by the French Government was, he said, only a special regime for peace time. But since it was an exceptional ré- gime established to the detriment of the territorial sovereignty of Japan in the instant case, the stipulations of the Treaty sanctioning that regime must be interpreted very strictly. But, once war had been declared, by one country op another, the laws of war take precedence over all other laws applicable in times of peace. It is thus that, under martial law once promulgated, even the articles of the constitution can be suspended.
After the declaration of war by Japan on China, Professor Renault continued, the combatant States could, therefore, incontestably exercise the rights of belligerents, including the right of search and seizure of neutral vessels. Thus, he concluded, the arguments put forward by the Quai d'Orsay could not hold, since (1) extraterritorial rights recognized in times of peace must be considered as suspended in times of war within the limit in which belligerent rights were operative, (2) Japan had only exercised on a neutral ship such a belligerent right, and above all, (3) the arrests in question had taken place in Jpanese territorial waters.
When the lecture was over, I ran to the Legation and hastened to say joyfully to my chief: "Sir, the 'Sydney Incident' is closed." I outlined to him Professor Renault's thesis and agreement created a neutral zone around the Settlement wherein the Chinese authorities must station no armed forces but merely a limited number of police for the preservation of order.
Immediately after the outbreak of the North China Incident in July, 1937, Chinese troops were drafted into this zone in large numbers. The Japanese authorities, alive to the danger which this represented to the International Settlement, called the attention of the counter signatories of the Truce. Agreement, the United States, Britain, France and Italy, to this violation and requested that joint representations be made to the Chinese authorities to secure a cessation of this illegal drafting of troops, a request with which the authorities in question were not disposed to comply.
Now, it was never explicitly stated what the reason for this non-camp! ance with the Japanese request was; but unless we conclude that the Powers favoured an operation which was incidentally a menace to their own interests and safety, simply because such operation was, in that particular event, obviously directed against the Japanese, we can only conclude that the view taken was that since hostilities had broken out between China and Japan in other parts of the: country and threatened to extend to the Yangtze area, such action on the part of the local Chinese military authorities was imposed by military necessity and was, then, not illegal but extra-legal in the sense that belligerent rights took precedence over extraterritorial rights, and other agreements arising out of them or devised to protect them.
It would thus appear that there exists no objection either in principle or practice to the application of the Renault doctrine to the international concessions in China, either by the foreign Powers or by the Chinese themselves in circumstances, limited it must be conceded, but nevertheless
Text read from the printed page and cleaned; old type leaves the occasional error.