1 Introduction
1.1 The Subject of This Chapter
The regional order in East Asia differed from the modern international order of the West until the 18th century. East Asian States did not form an international society tied together by diplomatic relations on an equal footing, nor did they have comprehensive and exclusive jurisdiction within their borders. State control did not extend homogeneously over domestic areas, and there was uncertainty about the scope and nature of territory. For example, the Ryūkyū Kingdom was effectively ruled by the Satsuma Domain of Japan yet had a tributary relationship with Chinese dynasties.
In the 19th century, the East Asian world was being incorporated into a modern Western-style international system. In this context, Japan and China defined the areas considered to be their territories and established State control within their borders. Through contact with the Western world, the multilayered, ambiguous, and fluid nature of territory and control of the East Asian world disappeared.
However, another complex situation concerning territory and sovereignty arose in China as it faced the advances of the great powers through the Opium War, the Arrow War (the Second Opium War), and the Sino-Japanese War of 1894â95. Leasehold, the subject of this paper, is a good example of this.
What is a leasehold? According to Yokota KisaburÅ, âA leasehold refers to a State leasing part of the territory of another State. Such territory is known as leased territory. The receiving State is the lessee State, while the owner State is the lessor State. The legal status is not the same across all leased territories. It needs to be confirmed based on the treaty applicable to that particular leased territory.â Such territories are classified into political leased territory, military
A lessee Stateâs underlying purpose for leased territory is to obtain it in the hope of making the lessor State cede the leased territory. However, the lessee State takes the approach of leased territory to account for factors such as opposition from the lessor State, the antipathy of the lessor Stateâs citizens, and the interference of third-party States. In this sense, leased territory is very political in nature. In addition, the lessee State holds all political power and conducts all politics in the leased territory. The lessee State carries out legislation, justice, and administration in the leased territory, stations its military forces and builds military bases there, and takes charge of the territoryâs defense. In these respects, the leased territory has virtually been ceded to the lessee State. ⦠The most important political leased territories are those in China acquired by European countries and Japan from the end of the 19th century.
The complexity of the leasehold is apparent from this explanation. Today, the meaning of the leasehold as a concept under international law is well established, notwithstanding the complexity and diversity of the actual circumstances of the leaseholds. However, this was not the case in the past. Various discussions were held on the question of the nature of the leasehold.
Among those discussions, from the end of the 19th century, when the so-called partition of China took place, to around the time of World War i, the theory that leaseholds constituted disguised cession was widely advocated in the West. Later, instead, the understanding that a leasehold is not the equivalent of cession took root. Such a shift in theoretical trends has already been pointed out.2
However, in Japan, the view that a leasehold was not equivalent to cession came to be a dominant one at an earlier time than the rest of the world. To
1.2 Prior Research
As noted in Yokotaâs explanation above, the main impetus that brought attention to leaseholds was territorial leasing in China.3 Therefore, many studies on leaseholds were published until the time of World War ii with a focus on the leaseholds in China.4 Since World War ii, although leaseholds have not ceased to exist around the world, this subject has not been intensively studied, besides a few exceptions.5
Furthermore, on a related note, although not covered in this chapter, there has been a vast amount of research on concessions, an issue adjacent to leaseholds. Also, recently, there has been widespread global research on how international law and related concepts were accepted, applied, formed, or transformed as the Western and East Asian worlds came into contact, including discussions on territorial sovereignty and perpetual lease rights, which are related to leaseholds.7
On the understanding of the concept of leaseholds in modern Japan, which is the main topic of this chapter, there is a pertinent article by Asada Shinji.8 According to Asadaâs research, Japanese international law scholars argued that leaseholds were different from cession prior to the Russo-Japanese War, i.e.,
As for the nature of leaseholds, many European scholars seem to consider them to be definite territory. In their interpretation, these may be leaseholds in name but the ceding of territory in reality. This was also reflected in official systems. For example, Germanyâs leasehold of Kiaochow Bay was treated as a so-called protectorate, exactly the same as other colonies, that is to say like a true territorial land. Contrary to this, in Japan, it has long been the prevailing theory to consider leased territories as being foreign land, and the official system also distinguishes the Kwantung leased territory from other colonies, treating it as foreign land.9
Kikuchi Komaji, who viewed leaseholds as being equivalent to cession, wrote in a 1923 article that the theory that âa leasehold treaty essentially promises the cession of territorial land, and is nothing more than a method of acquiring territorial rightsâ was the prevailing theory in European countries, but was only a minority one in Japan.10 In a later paper, Kikuchi indicated a similar interpretation, naming about 30 scholars inside and outside Japan.11
Below is an overview of the basic facts concerning leaseholds in China and world trends in the theory on the nature of leaseholds, followed by an examination of modern Japanâs understanding of the concept of leaseholds.
2 Leaseholds in China
After the Sino-Japanese War of 1894â95, European powers began to advance into China in earnest as a result of the decline of the international reputation of the Qing Dynasty, the Triple Intervention by Russia, France, and Germany, and the Qing Dynastyâs need to raise funds to pay a large indemnity to Japan. Under such circumstances, in November 1897, Germany occupied Kiaochow Bay of Shandong Peninsula using the murder of German missionaries in China as a pretext and, after negotiations, concluded the Kiaochow Bay lease treaty with the Qing Government in March 1898. These moves prompted the European powers and Japan to advance into China in a variety of ways, including territorial leasing, acquiring various rights and interests, and demanding that China not cede its territory to other countries. This was the so-called partition of China.
As part of this, leaseholds for Chinese territory were concluded. Russia leased Lüshun and Dalian, Britain leased Weihaiwei and the Kowloon region, and France leased Guangzhou Bay. The leasehold terms were 99 years for Kiaochow Bay, the Kowloon region, and Guangzhou Bay, and 25 years for Lüshun and Dalian. The term for Weihaiwei was to be the duration for which Lüshun was leased to Russia. In terms of sovereignty, in principle, under the relevant treaties, China was considered to have sovereignty over the leased territories. However, Germany tried to treat the Kiaochow Bay leased territory in the same way as its other colonies. There were various differences in the provisions of each treaty.12 Moreover, the meaning of the treaties was often not clear, and there were often discrepancies between the wording of a treaty and
With regard to Lüshun and Dalian, a lease treaty was concluded between Russia and China in March 1898, and a subsequent agreement was concluded in April 1898. As an outcome of the Russo-Japanese War, Russia transferred the leasehold rights of Lüshun and Dalian to Japan under the peace treaty (Treaty of Portsmouth) of September 1905. Article v of the Treaty states, âThe Imperial Russian Government transfer and assign to the Imperial Government of Japan, with the consent of the Government of China, the lease of Port Arthur, Talien and adjacent territory and territorial waters and all rights, privileges and concessions connected with or forming part of such lease ⦠The two High Contracting Parties mutually engage to obtain the consent of the Chinese Government mentioned in the foregoing stipulation.â14 In December of the same year, Japan and the Qing Government concluded a treaty concerning Manchuria, in which Qing agreed to the transfer of the leasehold and other rights from Russia to Japan.15 The various issues surrounding the Japanese leased territory of Lüshun and Dalian (the Kwantung leased territory) and Japanese diplomacy will be discussed in Section 4.4.2.
3 World Theory on the Nature of Leaseholds
As mentioned above and as will be shown later, with regard to the theoretical situation in the world on leaseholds, the disguised cession theory was recognized in Japan as being the globally predominant one from the end of the 19th century to around the time of World War i. Examples of frequently cited
Westlake referred to and endorsed Frantz Despagnetâs view that the possibility of restoration of territory at the end of a lease was so small that leases in effect constituted cession. (âWe must then agree with Despagnet who, after remarking that the restoration of the territory at the end of the specified term is very unlikely, says that these pretended leases are alienations disguised in order to spare the susceptibility of the state at whose cost they are made.â)16
Lawrence also considered a lease to be a de facto cession and argued that the wording on reservation of sovereignty in a lease treaty disguised the reality of the territorial transfer. (âIt amounts, in fact, to a cession of the leased territory for a limited time, and with a strong probability that the period mentioned in the lease will be prolonged indefinitely if the lessee-state finds it convenient to stay on. ⦠The words which reserve the sovereignty of the lessor are fine phrases used for the purpose of disguising the reality of territorial transfer.â)17
Kikuchi Komaji and Ueda Toshio cited many other famed scholars as proponents of this theory as well.18 For a certain period of time from the end of the 19th century, the theory of disguised cession was certainly a popular one in the West.
In discussing such theory trends, Lassa Oppenheim is sometimes cited as evidence that the disguised cession theory was widely advocated.19 Yet, his arguments on leaseholds differ depending on the time period.
In the first edition of International Law: A Treatise, Vol. i, Peace (1905), Oppenheim referred to leaseholds as a form of cession and also stated that âCession may also take place under the disguise of an agreement according to which territory comes under the âadministrationâ of a foreign State.â20 These
However, an explanation of the nature of leaseholds was added in the second edition, stating that
All such cases comprise, for all practical purposes, cessions of pieces of territory, but in strict law they remain the property of the leasing State. And such property is not a mere fiction, as some writers maintain, for it is possible that the lease comes to an end by expiration of time or by rescission. Thus the lease, granted in 1894 by Great Britain to the former Congo Free State, of the so-called Lado Enclave, was rescinded in 1906. However this may be, as long as the lease has not expired it is the lease-holder who exercises sovereignty over the territory concerned.23
This is an argument along the lines of the non-cession theory. The point that the lessee State exercises sovereignty over the territory concerned during the term of the lease is not denied even under the non-cession theory. There is a large difference in Oppenheimâs explanation of the nature of leaseholds between the first and second editions.
A significant factor in this change in explanation was the example of the rescinding of the British-Congo lease. The impact of actual developments in international politics surrounding leaseholds on the theory is, as will be shown below, important when considering Japanâs understanding of the concept of leaseholds.
4
4.1 Disguised Cession Theory
4.1.1 Takahashi Sakue
To begin, one Japanese proponent of the disguised cession theory was Takahashi Sakue (1867â1920). After graduating from Imperial University, Takahashi worked as a naval professor and served in the Sino-Japanese War of 1894â95. Later, he studied abroad and then became a professor of public international law at Tokyo Imperial University. From 1914 to 1916, he served as Director-General of the Cabinet Legislation Bureau in the second Åkuma Shigenobu Cabinet.24 He was the author of numerous books on international law. As seen in publications such as Cases on International Law During the Chino-Japanese War (Cambridge University Press, 1899), he took on the role of justifying Japanâs positions and actions, and conveying to the world that Japan was a nation that abided by international law.
The legal nature of the leased territories of Lüshun, Dalian, Kiaochow Bay, Weihaiwei, and Guangzhou Bay has been a novel question in international law, but there is now mostly agreement among European scholars.
⦠The gist of the conclusion reached in the debate among prominent European scholars is extremely simple.
Sovereignty over the leased territory is reserved by the lessor State, but this is only a diplomatic gesture. A leasehold is cession with a term, and that term is perpetual. Therefore, leased territory can be considered to be the territory of the lessee State. Accordingly, territories leased by Russia such as Lüshun and Dalian can be considered to be Russian land.25
At a later time, Takahashi also argued that âAccording to scholarly theories, leased territory is a form of cession. Of course, there are some contrary theories. However, the worldâs leading scholars of international law today, such as Westlake, Lawrence, Despagnet, Gérard, and de Pouvourville, are in agreement on the following points. ⦠Under international law, leased territory is not truly leased land, but rather equivalent to territory.â26 Takahashiâs argument was that leaseholds were in fact cessions, and that Lüshun and Dalian were ceded from China to Russia and then to Japan.27
Kikuchi Komaji stated that the abovementioned article, which Takahashi published during the Russo-Japanese War, only introduced European theories and that Takahashiâs own position on the nature of the leaseholds was unclear.28 However, that is not true. Takahashi advocated the disguised cession theory and was recognized as doing so at the time.29
4.1.2
The strongest proponent of the disguised cession theory in Japan was Ninagawa Arata (1873â1959). Ninagawa studied at Tokyo Imperial University and its graduate school, and served in the Russo-Japanese War as an international law advisor. After working in some governmental positions in Korea, he served as a professor at Doshisha University and Komazawa University, and was involved in various diplomatic, social, and ideological activities.
An example would be if State A had promised to lease land to State B for a period of 99 years and State A clearly reserved the territorial sovereignty over the leased territory in the text of the treaty. If, despite this, State B were to say, âState Aâs territorial sovereignty is in name only, and our real intention is cession of the territory,â there would clearly be an error in the elements of the legal act and the treaty would therefore inevitably be invalid from a legal standpoint. Thus, there is no reason why a leasehold would simply change in nature and become a cession. It is strange that some advocate such a theory. To interpret a leasehold as a cession of territory is either a politically-motivated or nonsensical theory.30
However, Ninagawa reversed his argument after the Russo-Japanese War and came to advocate the theory of treating leaseholds like cessions, with statements such as, âThe teachings of public law scholars [in Europe and the United States with regard to leaseholds] are in the same way, that is, leasehold is a new system which has the same effect as ceding territory,â and âIf we study the texts of the treaties and the actual measures taken with regard to the Kwantung leased territory and interpret it from a legal standpoint, it is appropriate to assert that the leased territory was part of Russian territory, not Qing territory.â31 Ninagawa is a good example of the kind of scholar, like those pointed out in Asada Shinjiâs research, who interpreted the concept of leaseholds in a way that was advantageous to Japanâs foreign expansion according to the circumstances of the time.
Ryodai (Lüshun and Dalian) was Russian territory. ⦠It is a land where Japanese power will be exercised in perpetuity. In other words, according to legal theory, it is Japanâs territory. The Japanese people must not allow anyone to consider this territory as the territory of another State through foolish arguments. The Japanese people are not Chinese. It is a matter of course that no scholar with a Japanese conscience should explain a round object as being square. I, of course, express this opinion with a Japanese conscience.32
Ninagawa was declaring that Lüshun and Dalian were Japanese territory, and that he would advocate that point because he was Japanese. It was rare for a scholar to make such an argument so publicly, even if, in their heart, they intended to support or justify the Japanese position.
4.1.3 Other Proponents
Another person who requires consideration is Matsubara Kazuo (1877â1956). Matsubara studied international law at Tokyo Imperial University and its graduate school, and lectured at some universities. He then entered the Ministry of Foreign Affairs and worked there for a long time, before retiring and returning
Matsubara is characterized by his assertion, in his papers from before the Russo-Japanese War, that leaseholds are de facto cessation. He stated that âIn leasehold occupation, sovereignty lies with the great powers, not Qing China. ⦠Although Qing may appear to have sovereignty in the treaties, that is not actually the case. It is sovereignty and territory in name only. Scholars often refer to this as nudum jus. Sovereignty as nudum jus is different from what we know sovereignty to be. ⦠All issues must be decided on the basis that sovereignty is held by the great powers and the leased territories are the great powersâ territories.â He also stated, âLeaseholds are only a form of cession. The lessee State exercises legislative, executive, and judicial power in the area and therefore has sovereignty. The texts of treaties contain euphemistic and contradictory phrasing merely in order to soothe public sentiments.â34 In his later writings, too, Matsubaraâs stance was that which would fall under the disguised cession theory.35 Kikuchi Komaji regarded Matsubara as the leading scholar among the few proponents of the disguised cession theory in Japan.36
Yet, Matsubara also explained that Qing China held sovereignty in treaties and in name, and that the leased territories were still Chinese territories.37 In addition, during the Russo-Japanese War, Matsubara argued that Japan could not succeed to the leasehold rights without Qing Chinaâs consent in the peace treaty with Russia, and that it would not be beneficial to take over the leasehold with various restrictions.38 It appears that his argument on leaseholds was not always consistent as a whole. Moreover, he did not present a full-fledged theory on leaseholds after the Russo-Japanese War.
Furthermore, although it is not in the period up until World War i, which is the subject of this chapterâs study, Kikuchi Komaji (1878â1935) was a proponent of the disguised cession theory in the 1920s and 1930s.43 Kikuchi graduated from Tokyo Imperial University and worked at the Cabinet Legislation
4.2 Non-cession Theory
4.2.1 Shinoda Jisaku
The first scholar on the non-cession theory side is Shinoda Jisaku (1872â1946). After graduating from Tokyo Imperial University, Shinoda became a lawyer and served in the Russo-Japanese War as an international law advisor. After the Russo-Japanese War, he was involved in the administration of Korea during the period when it was a Protectorate and under Japanese rule. His works include Nichiro Senâeki Kokusai KÅhÅ (Public international law in the Russo-Japanese War) (HÅsei Daigaku, 1911).
These views [that treat leaseholds and cession the same way] are a kind of prejudice that has arisen from the following reasons: (1) The fact that the strong European nations have not been able to shed the unequal style of thinking that constantly ignores justice for other, weaker nations, similar to the old idea prior to the Sino-Japanese War that international law discussed among European scholars was applied only among Western civilized nations, or only among Christian nations; (2) The leasehold is a relatively new concept in international relations, and those leases that have a term of validity have yet to expire, so it is unclear what stances the States involved in the leasehold and third States will take when said term does expire; (3) Because strong European nations have their leased territories, many scholars are merely attempting to interpret leaseholds in a way that is convenient for their own States.46
This passage suggests that the way in which the concept of leaseholds was viewed changed and settled according to diplomatic and international political situations. Shinoda also stated, âAs a political argument, it may, in a sense, be correct to assert that a leasehold is in fact a cession of territory, but in legal theory, such an argument would fundamentally be incorrect. With regard to our Kwantung leased territory, it is the territory of the Qing Dynasty and the sovereignty of that land still resides with the Qing Dynasty. It is certainly not Japanese territory.â47
4.2.2 Other International Law Scholars and Practitioners
Other international law scholars and practitioners who took the view that leaseholds were not equivalent to cession included, for example, Akiyama Masanosuke (1866â1937). Akiyama graduated from Imperial University, joined the Ministry of Foreign Affairs, and gave lectures on international law at several schools.48 On the nature of leased territory, he argued that this was a type of
The view of EndÅ Genroku (1872â1971) was similar to Akiyamaâs one. After graduating from Tokyo Imperial University, EndÅ went on to graduate school and joined the Ministry of the Navy, where he was in charge of tasks related to maritime capture during the Russo-Japanese War. After the Russo-Japanese War, he lectured on international law at Meiji University and published several works on international law.50 He concluded that a leasehold was neither a cession nor a mandate, but a new system under international law as a kind of international servitude. He pointed out, âEuropean scholars still argue today that it is nothing but a cession of territory. This is not a legal theory, but instead a political argument that is intended to lay the groundwork for the future protection of the rights of their own States.â51
Among the few professional international law scholars of the time in Japan, Nakamura Shingo (1870â1939), a professor at Gakushuin and other schools, argued that a leasehold was not a cession of sovereignty. While referring to âleasingâ as a form of acquiring territory or territorial sovereignty from before the Russo-Japanese War, Nakamura stated, âOccupation and leasing are not a cession of sovereignty, but merely permission for the exercise of sovereignty, and therefore should not be mentioned here. But as a matter of convenience, I will discuss them here.â He also stated, âThese are not a cession of sovereignty, but merely an act of permitting a foreign State to exercise sovereignty. However, because the result of the occupation and leasing is often equivalent to the cession of sovereignty, I mention them here, even though it is theoretically unjustified.â52 In addition, Nakamura condemned unlawful occupation and the monopolization of military interests under the guise of leasing.53 In
Senga TsurutarÅ (1857â1929), a professor at Kyoto Imperial University, also rejected the view that leaseholds were the same as acquiring territory. He stated, for example, âAlthough Kiaochow Bay is almost the same as German territory, we should not confuse the leasehold with the acquisition of territory in legal theory. In addition, with regard to the reality, too, one cannot say that there is no distinction at all between the two.â55
Yamada SaburÅ (1869â1965), a private international law scholar and professor at Tokyo Imperial University, also stated, âA leasehold differs from the cession of territory, in which the entire sovereignty is transferred. The lessor State retains territorial rights in its name. Thus, it cannot be said that the leased territory is purely the territory of the lessee State either under international law or national law.â He wrote that European theories such as âleased territory is actually ceded territoryâ and âleaseholds are disguised cessionâ are âstill premature dogma under current international law.â56
As a proponent of the non-cession theory, Kikuchi Komaji also mentioned Tachi SakutarÅ (1874â1943), a leading international law scholar in modern Japan.57 Indeed, in Tachiâs Heiji KokusaihÅ Ron (International law theory in peacetime), which was published in 1930, for example, in the section on âInternational Servitude,â he wrote, âState power exercised over leased territory ⦠is that which allows the lessee State to use the leased territory in the exercise of its own inherent State power within the area of the leased territory, in accordance with the lease treaty.â He also wrote, âIf I set aside the theory advocated by some scholars that a leasehold is in effect a cession.â However, in the following section on âleased territory,â Tachi does not directly deny the disguised cession theory like other non-cession theory proponents.58 In addition, before
4.2.3 Scholars of Domestic Japanese Law
It is incorrect to interpret the establishment of a leasehold via a treaty as a cession of territory. Therefore, I am convinced that it is not appropriate for the German Empire to have declared a leasehold as a protectorate.
In addition, among international law scholars, Liszt and Lawrence recognize leasehold rights as territorial rights, but if the leased territory were indeed part of the territory of the State leasing it, treaties between the State permitting the leasehold and other States would no longer be valid with respect to the leased territory, and instead, treaties between the State leasing the territory and other States would be applied. Furthermore, this would mean that if the State leasing the land were to transfer it to another State, the consent of the State permitting the leasehold would not be required. However, this differs from actual precedent. Therefore, the interpretation that regards leased land as part of true territory cannot be recognized under international law.60
Minobe Tatsukichi (1873â1948), as already mentioned, stated that most European scholars regarded leased territory as the true territory of the lessee State, but in Japan, it was common practice to regard it as foreign land and the official system also treated it as such. He then argued that it was not appropriate to regard leased territory as either true territory or foreign land. His view
Other scholars such as Hozumi Yatsuka (1860â1912), Soejima Gi-ichi (1866â1947), and Ichimura Mitsue (1875â1928) all stated that a leasehold was different from cession and that leased territory was not the territory of the lessee State, although they differed in how they made their arguments.63
4.3 Examination of Theory in Japan
As shown above, after the Russo-Japanese War, the non-cession theory was predominant in Japan with regard to the nature of leaseholds. Yet, that is not to say that the overwhelming majority advocated the non-cession theory while only a few advocated the disguised cession theory. Takahashi Sakue was a proponent of the disguised cession theory, and a considerable number of others also advocated that theory.64 Among prominent international law scholars, Tachi SakutarÅâs view is, as mentioned above, not certain, and the same is true for Ariga Nagao (1860â1921). Although Ariga published numerous papers related to leaseholds, he mainly discussed what kind of response would be possible or beneficial for Japan from the viewpoint of international law, and did not discuss the general concept of leaseholds.65
In Japan, after the Russo-Japanese War, the non-cession theory prevailed, albeit with a shared understanding that globally, the disguised cession theory was advocated as the prevailing theory on leaseholds. What did this discrepancy stem from? Firstly, it should be noted that there is no significant difference in the points that are considered under the disguised cession theory and the non-cession theory, nor even under the current explanation of the nature of leaseholds. An example is the explanation that the lessor State has sovereignty over the leased territory and a lease term exists based on the articles of the lease treaty. Under the non-cession theory, therefore, the leased territory is not the true territory of the lessee State, and a leasehold is not the same as cession. Meanwhile, the disguised cession theory does not ignore such points, but argues that sovereignty in name only has no substantive meaning, or that a leasehold is the same as a cession because the leased territory will probably not actually be returned when the lease expires.
As already mentioned, the Treaty of Portsmouth between Japan and Russia stipulated that the transfer and assignment of leaseholds and other rights be subject to the consent of the Chinese Government, and a treaty between Japan and China was subsequently concluded. In this way, Japan came to possess leased territory.66 In regard to this, Nakamura Shingo presented the texts of the treaties concluded between Japan and Russia, as well as between Japan and China, and argued that they âcan be used as clear evidence that leased territory is not the lessee Stateâs true territory.â67 Shinoda Jisaku also stated, âIt is clear that the transfer of the leasehold rights needs the consent of the lessor State, just as the transfer of a claim needs the consent of the debtor under private law,â and explained that Japanâs leasehold rights for the Kwantung leased territory did not stem from a treaty between Japan and Russia, but by a treaty between Japan and China.68 In response to such views that placed emphasis on Chinaâs consent, one could make the counterargument that if the Chinese Government did not provide its consent, the transfer of the leasehold rights from Russia to Japan would be invalid and the Russian leasehold would be continued or it would result in a reversion to the situation before Russia and Qing China concluded their lease treaty. Such scenarios would be inconceivable, and the Chinese Governmentâs consent was therefore merely a formality.69
4.4 Views and Actions of the Japanese Government
4.4.1 Statements in the Imperial Diet by Director-General of the Cabinet Legislation Bureau Okano KeijirÅ
That is not to say, however, that the Japanese Government recognized that a leasehold was not the same as cession and that leased territory was not true territory, and always acted in accordance with this principle. The situation was not that simple. This is well illustrated by the answers given in the Diet by Okano KeijirÅ (1865â1925), Director-General of the Cabinet Legislation Bureau under the first Saionji Kinmochi Cabinet. Okano was a commercial law scholar and professor at Tokyo Imperial University who also held various government positions.70 The questions were asked by Hanai TakuzÅ (1868â1931), a lawyer and politician known for his defense of criminal and human rights cases.
First, on March 27, 1907, at a committee of the House of Representatives, Hanai sought to confirm whether the location of the Kwantung Governor-General Office court was foreign land.71 Okano replied that, âOne can only say that it is foreign land since it cannot be said to be domestic or Imperial territory.â Hanai then stated that although Kiaochow Bay and other areas were leased territories, he had heard that Germany was handling legal matters there as if they were domestic land. He called for the Japanese Government to take a similar policy to Germany, in which âGerman interests on the leased territory have been developing as Germany first made people think that the leased land was a protected area, then there was an about-face on that protected area and it became like a true protectorate without a treaty, and finally, that protectorate
There have been various discussions about the system of leased territory and the nature of leasehold rights. ⦠There is a theory that interprets leaseholds as being disguised cession of territory. This may be a theory that has been developed because of the advantages to be gained by lessee States and is a convenient political argument for the lessee States. In all fairness, I think there are such tendencies behind that theory. I believe that such a theory has arisen because the leasehold system was established in recent years, but if we examine the treaties on leasehold directly and fairly, it is highly doubtful that a leasehold can be considered to be a cession of territory. While there are both long lease terms and short ones, there is no doubt, based on the treaties, that at least in the case of short term leases, the leased territory should be returned to the lessor State once the years stipulated by the treaties have expired.
In addition, as for Kwantung, referring to his own answer in the Diet in the previous year, Okano argued, âAlthough it is difficult to claim that it is a part of our territory under national law, the principle that we are governing this land by our State power remains unchanged today.â
My response is this: I think that the policy toward leased territory is relevant to our policy toward Kwantung, and, in turn, it becomes a factor in establishing the nature of leased territory in the future. Therefore, I cannot assert here that we have a contract-based principle. Nor can I assert that it is a cession of territory â that this land is part of our true territory.
At any rate, on a treaty basis, it is difficult to position the land as ceded territory, but the leased territory is subject to Japanâs State power as if it were part of our territory. It is appropriate to say so.
Okano was not in favor of the disguised cession theory and did not state that the Kwantung leased territory was Japanese territory. In general, his answer was based on a view in line with the non-cession theory. On the other hand, he also did not say that the Japanese Governmentâs principle regarding leased territory was on a contract basis, which viewed leased territory as involving a lesseeâlessor relationship. That was because, if that were the position of the Japanese Government, it would limit the possibility of pursuing national interests.
The way in which Okano answered the questions can be considered to be a reflection of the Japanese Governmentâs position. The Japanese Government basically handled the Kwantung leased territory on the premise that a leasehold was not the same as cession and that the leased territory was not the territory of the lessee State, but at the same time, it strongly considered pursuing Japanâs national interests and securing its rights. Therefore, as various problems over leased territory arose, what the Japanese Government specifically asserted and what diplomatic actions it would take were decided separately from how it viewed leaseholds in general. The following are some examples of this, albeit presented in a fragmentary manner.
4.4.2 Various Issues Concerning Leaseholds and Japanese Diplomacy
Soon after Japan acquired the Kwantung leased territory, a dispute arose between Japan and Qing China over the fisheries in the area surrounding Kwantung, which continued for some time. It was a dispute between Japan and Qing, and at the same time there were various positions and interests concerning the dispute within both countries. The wide-ranging points at issue included fishing rights, tax collection rights, territorial waters, sovereignty, specific tax amounts, and the scope of fishing.72 In the process, the Qing side
In terms of trade, the Kwantung leased territory was to be a purely free port except for restrictions necessary for military purposes. The free port principle was to be implemented to the maximum extent possible by, for example, not imposing import and export taxes on incoming and outgoing cargo. With regard to the collection of Chinese customs duties on cargo coming and going within China (outside the leased territory), Chinese customs were logically to be established at the border of the leased territory, but due to practical economic and logistics problems, it was decided to establish a customs office in Dalian. However, in establishing the Chinese (i.e. the lessor Stateâs) customs office in the leased territory, Japan took into account some factors such as limiting Chinaâs involvement in its operations. At the same time, Japan considered the balance with establishing the Chinese customs office in North Manchuria, the Russian side.76 There were legal positions and principles as well as actual
The extension of the leasehold term was, as is well known, a serious issue. Russia had leased Lüshun and Dalian in 1898 for 25 years, and it was not long before the expiration of the lease. The disguised cession theory viewed it as unlikely that the leased territory would actually be returned upon the expiration of the lease, even though a lease term had been set. That view was, in a sense, correct. Japanese political and military leaders and diplomats had no intention of returning the Kwantung leased territory at the end of the lease period. However, how Japan should respond when the deadline actually approached was unclear.
In 1911, the Xinhai Revolution broke out in China. In Japan, the second Saionji Cabinet at the time generally took a restrained approach to the situation, even though it faced those who sought a policy of foreign expansion to take advantage of the upheaval. Although some called for an extension of the lease period, the Saionji Cabinet did not pursued it.78 The document which
Related to the extension of the lease term and Japanâs Twenty-One Demands to China, there was also the issue of the Kiaochow Bay leased territory. In 1914, Japan entered World War i on the side of the Allied Powers, together with Great Britain, France, Russia, and others, and tried to capture Germanyâs Kiaochow Bay leased territory, return it to China, and, in return, have Japanâs interests in Manchuria strengthened. Although there were twists and turns along the way, Japan basically intended to return the Kiaochow Bay leased territory to China, but at the Paris Peace Conference, Japan aimed to succeed to Germanyâs interests in Shandong, which included the Kiaochow Bay leased territory. Japanâs plan was to hold renewed negotiations with China on the Shandong region afterwards and to obtain economic interests there. On the other hand, China was trying to prevent Japan from succeeding to its interests in Shandong. China had participated in World War i on the side of the Allies and was therefore one of the victors.80
In this connection, Makino Nobuaki, the Japanese representative at the summit meeting of the major powers during the Paris Peace Conference, refuted the claim that the Sino-German lease treaty had lapsed as a result of Chinaâs declaration of war against Germany. Makinoâs argument was that in view of the nature of the lease treaty, which allowed Germany to exercise sovereignty over the leased territory, the lease of Kiaochow Bay was a pure cession, except for its 99-year term limit, and the declaration of war did not annul
4.5 Changes around World War i
Lastly, this chapter looks at the discussion in Japan concerning the shift in global theoretical trends regarding the nature of leaseholds that occurred around the time of World War i.
In a 1933 article, Kikuchi Komaji pointed out that âIn European academia, the recent repudiation of the disguised cession theory has been advocated by German and Austrian legal scholars.â Kikuchi saw it as a result of the collapse of both the German and Russian empires through World War i, as well as the closure of the paths of German and Austrian overseas development, which led German and Austrian scholars to view âlease treaties as ultimately a relic of imperialism, and the disguised cession theory as a theory in defense of aggression policy.â Kikuchi also stated, âI have the impression that the theory that was in the minority more than 20 years ago has become the prevailing theory in the last 10 years. The change of the times is significant.â84 A short while later, Ueda
Also, more interesting is that at a time when the worldâs theoretical trends had been changing, Japanese scholars wrote about the shift. International law and colonial policy scholar Izumi Akira (1873â1943) wrote in a 1919 paper, âTerritory leaseholds, as the term suggests, means that the land is used for a certain period of time and then returned to the sovereign State. But at present, it is not believed that the return of territories will be realized. In addition, a large number of international legal scholars agree that this constitutes disguised cession of territory.â86 This was an explanation that the disguised cession theory was the worldâs prevailing theory.
However, in a paper in 1920 the following year, Izumi wrote, âTo date, a large number of international law scholars have maintained that leased territory is a kind of method to acquire territory under disguised pretenses, but it seems that this theory is becoming a thing of the past. It is doubtful whether this theory will be clearly recognized under international law in the future, and instead, there is likely to be a shift to a theory such as the one advocated by Chinese people.â87
In 1923, China scholar Aoyagi Atsutsune (1877â1951) wrote, âMy suspicions about the theory that a leasehold is a cession gradually deepened,â citing the transfer of leasehold rights between Japan and Russia after the Russo-Japanese War with Qing Chinaâs approval and the 1915 treaty between Japan and China that extended the lease term from 25 years to 99 years. He then referred to the statements made at the Washington Conference (1921â22) by Britain (Weihaiwei) and France (Guangzhou Bay) regarding the return of leased territory, and wrote, âI have been forced to reject with certainty and clarity the theory that a leasehold is a cession. ⦠The return of the leased territories has already been announced. The new principle that a lease is not a cession has
These are probably rare documents for anywhere in the world in that they described the impact of changes in international norms and the actual international political situation on the global theoretical trends concerning leaseholds, not as retrospective analyses in later years but as predictions and descriptions of the actual feeling from the same period.
5 Conclusion
From the end of the 19th century until around the time of World War i, the disguised session theory regarding the nature of leaseholds was widely advocated in the West, and in Japan, that theory was recognized as being the prevailing theory among international legal scholars around the world. However, after the Russo-Japanese War, the non-cession theory was predominant in Japan, although it could not be said that the overwhelming majority advocated that theory.
Forming the background to the emergence of this theoretical trend in Japan were the facts and circumstances surrounding Japanâs leased territories. Firstly, Japan obtained the leasehold rights for Lüshun and Dalian from Russia on the condition of the consent of Qing China. Then, although there was room for debate as to how to interpret the nature of its consent, a treaty was actually concluded between Japan and Qing China, and the Qing Government gave its consent for the transfer of leasehold rights from Russia to Japan. Japan came to possess the leased territory, with the existence of the sovereignty of the lessor State over the leased territory and the difference between leaseholds and cession being impressed upon Japan. Also, the Japanese Government did not treat the Kwantung leased territory as true territory. The way of thinking of the disguised cession theory was that leaseholds were in fact or in effect a type of cession, regardless of the wording of the treaty. In Japan, however, the process of acquiring the leased territory and the subsequent measures taken by the Japanese Government led to the conclusion that leaseholds were different from cession, and that leased territories were not the true territory of the lessee State.
As for the relationship between the Japanese Governmentâs actions and the theory, the Japanese Government basically did not equate leaseholds and cessions, nor leased territory and true territory. It did not treat the Kwantung leased territory as Japanese territory. Such a perception and actions by the Japanese Government concerning leaseholds probably influenced the theoretical trend in Japan.
However, many issues arose concerning the Kwantung leased territory, and the Japanese Government was, of course, conscious of pursuing its national interests and securing its rights in dealing with these problems. The Japanese Government responded to those actual diplomatic problems in various ways by taking a middle ground between treating leased territory completely as the territory of the lessor State, and treating leased territory as its own (the lessee Stateâs) territory.
Yokota KisaburÅ
C. Walter Young, The International Legal Status of the Kwantung Leased Territory (Baltimore: Johns Hopkins Press, 1931), 131â152; Ueda Toshio
In Japan, during the same period, the leasehold was often explained as a relatively recent phenomenon, with reference to precedents such as Cyprus and Bosnia-Herzegovina. Later, it was pointed out that the de facto leasehold relationship can be traced back to Portugalâs lease of Macau from China.
Nakamura Shingo
Louis Gérard, Des cessions déguisées de territoires en droit international public (Paris: Librairie de la Société du Recueil général des lois et des arrêts, 1904); Jean Perrinjaquet, Des cessions temporaires de territoires (Paris: V. Giard & F. Brière, 1904); Min-châien T. Z. Tyau, The Legal Obligations Arising out of Treaty Relations between China and Other States (Shanghai: Commercial Press, 1917); Hersch Lauterpacht, Private Law Sources and Analogies of International Law: With Special Reference to International Arbitration (New York: Longmans, Green, 1927); Westel W. Willoughby, Foreign Rights and Interests in China [2nd ed.] vol. i (Baltimore: Johns Hopkins Press, 1927); Léon Yang (Yang Lieou-Fong), Les Territoires à bail en Chine: Etude dâhistoire diplomatique et de Droit International (Paris: Presses universitaires de France, 1929); Young, supra note 2; Marc Alfonsi, Les Cessions à Bail en Chine: Histoire diplomatique et de droit international public (Paris: Domat-Montchrestien, 1940); Ueda, supra note 2. See also footnote 18. The discussion in Japan is as indicated in this chapter.
Michael J. Strauss, The Leasing of Guantanamo Bay (Santa Barbara: Praeger Security International, 2009); Strauss, The Viability of Territorial Leases in Resolving International Sovereignty Disputes (Paris: LâHarmattan, 2010); Strauss, supra note 2. Post-World War ii research: Joseph Lazar, âThe Status of the Leasehold in International Lawâ (Ph.D. diss., University of Minnesota, 1965).
Asada Shinji
Douglas Howland, âThe Japan House Tax Case, 1899â1905: Leases in Perpetuity and the Myth of International Equality,â Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 75, no. 2 (2015); Howland, International Law and Japanese Sovereignty: The Emerging Global Order in the 19th Century (Basingstoke: Palgrave Macmillan, 2016); Howland, âThe Territorial Foundations of the Sovereign State in East Asia,â The Journal of Transcultural Studies, vol. 9, no. 1â2 (2018).
Asada Shinji, âColonizing Kiaochow Bay: From the Perspective of German-Japanese Relations,â in Japan and Germany: Two Latecomers to the World Stage, 1890â1945, Volume i, A Chance Encounter in East Asia, KudÅ Akira, Tajima Nobuo, and Erich Pauer (eds.) (Folkestone: Global Oriental, 2009).
Minobe Tatsukichi
Kikuchi Komaji
Kikuchi Komaji
For an overview of the systemic status of each leased territory, see Kawashima Shin
With regard to the leased territory of Lüshun and Dalian, which Japan came to hold after the Russo-Japanese War, an issue arose as to what they would be based on, the wording of the original treaties concluded between Russia and Qing China, or the actual situation during Russiaâs leasehold period, which was tacitly accepted by Qing China. See KantÅ Totoku no MeishÅ Sonota ni Kanshi Shinkoku Seifu Yori KÅgi Ikken
Ministry of Foreign Affairs of Japan (ed.), Nihon GaikÅ Bunsho: Nichiro SensÅ v ã
Ministry of Foreign Affairs of Japan (ed.), Nihon GaikÅ Bunsho
John Westlake, International Law, Part i, Peace (Cambridge: Cambridge University Press, 1904), 136.
T. J. Lawrence, War and Neutrality in the Far East [2nd ed.] (New York: Macmillan, 1904), 272â273.
In addition to Westlake and Lawrence, Kikuchi and Ueda also cite the following as examples of proponents of the disguised cession theory, Kikuchi, supra note 11, 59â61 and Ueda, supra note 2, 164â167, 185â186: Lassa Oppenheim, Franz von Liszt, Karl Gareis, Karl Freiherr von Stengel, Alphonse Rivier, Paul Fauchille, Frantz Despagnet, Louis Gérard, Albert de Pouvourville, Jean Perrinjaquet, Coleman Phillipson, Pitt Cobbett, Earl of Birkenhead, James Leslie Brierly, Amos Shartle Hershey, Sterling Edwin Edmunds, Ellery Cory Stowell, Jan de Louter.
Teemu Ruskola, Legal Orientalism: China, the United States, and Modern Law (Cambridge: Harvard University Press, 2013), 288; Strauss, supra note 2, 90.
L. Oppenheim, International Law: A Treatise, vol. i, Peace (New York: Longmans, Green, 1905), 271.
L. Oppenheim, International Law: A Treatise, vol. i, Peace [2nd ed.] (New York: Longmans, Green, 1912), 288.
Oppenheim, supra note 20, 221.
Oppenheim, supra note 21, 233â234.
For biographical information on each person below, unless otherwise noted, see Hata Ikuhiko
Takahashi Sakue
Takahashi Sakue
In addition to the abovementioned paper, see Takahashi Sakue
Kikuchi, supra note 10, 4; Kikuchi, supra note 11, 62.
As an example of Takahashiâs view on the nature of leaseholds being positioned as falling under the cession theory, see Imai Yoshiyuki
Ninagawa Arata
Ninagawa Arata
Ninagawa Arata
Furthermore, the following are Ninagawa and Yamamotoâs articles (all from 1923).
Ninagawa Arata
For Matsubaraâs biography, see Yokota KisaburÅ
Matsubara Kazuo
Matsubara Kazuo
Kikuchi, supra note 10, 4, 19â22; Kikuchi, supra note 11, 60, 74â77.
Matsubara, supra note 3, 125.
Matsubara Kazuo
Kei Nansei
Tomizu Hirondo
Egi Tasuku
Imai, supra note 29, 152â153.
Kikuchi, supra note 10; Kikuchi Komaji
For a biography of Kikuchi, see the chronology included in Kikuchi Komaji
In 1902, Shinoda joined the Japanese Society of International Law, which was founded in 1897. At that time, there were over 70 members in Tokyo. Incidentally, another member who joined at the same time as Shinoda was Ninagawa Arata (âKaihÅâ
Yi, supra note 24, 12, as âinternational law scholars in the broad sense of the term,â refers to bureaucrats who gave lectures on international law while working for government agencies, military officers who became engaged in international law research through the Sino-Japanese and Russo-Japanese Wars, diplomats who wrote books on international law based on their experience participating in international conferences, and graduate students who published essays in international law journals. These include Shinoda, Ninagawa, Matsubara Kazuo, Akiyama Masanosuke, and EndÅ Genroku, all of whom have been mentioned in this chapter.
Shinoda, supra note 3, 13â14.
Shinoda Jisaku
There are many transcripts of his lectures, as well as books based thereon, including Akiyama Masanosuke
Akiyama Masanosuke
For EndÅâs biography, see SÅ«mitsuin KÅtÅkan Rirekisho
EndÅ Genroku
Nakamura Shingo
Nakamura, supra note 3.
Nakamura Shingo
Senga TsurutarÅ
Yamada SaburÅ
Kikuchi, supra note 10, 3; Kikuchi, supra note 11, 60â61.
Tachi SakutarÅ
Tachi SakutarÅ
Shimizu TÅru
Minobe, supra note 9, 104.
Minobe Tatsukichi
Hozumi Yatsuka
In addition to those already mentioned, examples of the disguised cession theory can be found in Hirose KyÅ«jirÅ (or HisajirÅ)
Ariga Nagao
The transfer and assignment of leaseholds and other rights from Russia to Japan with the condition of Chinaâs consent is still raised as an example of the difference between a leasehold and a cession today. For example, Ronen, supra note 2, 905.
Nakamura, supra note 54, 102â103.
Shinoda, supra note 47, 34â36.
Kikuchi, supra note 10, 13â15.
See also Iwai Takafumi
Okano was a law scholar and professor at Tokyo Imperial University, and also a member of the Japanese Society of International Law. Okanoâs expertise and views may have influenced the content of his answers in the Diet. However, Okano was not expressing a theory that differed from the Japanese Governmentâs position. Okanoâs answers are considered to be the official statement of the Director-General of the Cabinet Legislation Bureau of the Japanese Government, not his opinion as an individual scholar, and can be analyzed as such.
Statements in the Diet are cited using the Database System for the Minutes of the Imperial Diet (
SatÅ RyÅsei
Minister to China IjÅ«in Hikokichi to Foreign Minister Komura JutarÅ, March 5; Komura to IjÅ«in, March 24; Komura to IjÅ«in, tel., May 10; Komura to IjÅ«in, tel., May 12, 1910, in Nihon GaikÅ Bunsho
IjÅ«in to Komura, tel., May 11 and 13, 1910 (ibid., 362â363, 365â366).
Komura to Ijūin, tel., May 12 and 16, 1910 (ibid., 363, 369).
Manchurian Management Investigation Committee Report, June 1906, in Nihon GaikÅ Bunsho
Yoshida Masumi
Sasaki YÅ«ichi
Cabinet Decision, October 24, 1911, in Nihon GaikÅ Bunsho â Shinkoku Jihen (Shingai Kakumei)
Sasaki, supra note 78, 228â232, 237â241, 293â298.
Makinoâs statement at the summit meeting, April 22, 1919, in Nihon GaikÅ Bunsho TaishÅ 8 Nen Dai 3 Satsu JÅkan
Asada, supra note 8 argues that Makinoâs statement was made against the backdrop of the Japanese theory that equated leaseholds and cession. However, as discussed in this chapter, the non-cession theory was predominant in Japan. In addition, at that time, Japan was insisting adamantly on the succession of the interests in Shandong, and used various logics practically to try to achieve this. Makinoâs statement did not reflect the Japanese Governmentâs understanding of leaseholds in a general sense.
For example, Makino Yoshitomo
Kikuchi, supra note 43 (1930), 27â31; Taoka, supra note 3, 64â65.
Kikuchi, supra note 11, 90.
Ueda, supra note 2, 159.
Izumi Akira
Izumi Akira
Aoyagi Atsutsune
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Western Languages
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