The Report of the Assembly of the League of Nations on the Sino-Japanese Dispute

Author(s): Manley O. Hudson

Source: The American Journal of International Law , Apr., 1933, Vol. 27, No. 2 (Apr.,
1933), pp. 300-305
Published by: Cambridge University Press

Stable URL: https://www.jstor.org/stable/2189554

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 EDITORIAL COMMENT 301

port, with the record of the efforts leading up to it, is worth a whole library of
volumes on the law as to international disputes.
China's appeal to the Council on September 22, 1931, following the clash
at Mukden on September 18-19, 1931, was based on Article 11 of the
Covenant. On January 29, 1932, the Chinese Government addressed a new
appeal to the Council, based on Articles 10, 11 and 15 of the Covenant;
and on February 19, 1932, at China's request, the dispute was transferred to
the Special Assembly. Under paragraph 3 of Article 15, the Council or the
Assembly has the duty to "endeavor to effect a settlement of the dispute."
Though seventeen months were devoted to this endeavor by the Council
and the Assembly, it did not "effect a settlement." Under paragraph 4 of
Article 15, it was therefore the duty of the Special Assembly "either unani-
mously or by a majority vote" to "make and publish a report containing a
statement of the facts of the dispute and the recommendations which are
deemed just and proper in regard thereto." The adoption of the report of
February 24, 1933, is the Assembly's performance of that duty.
As in previous disputes which have come before it, the Council began in
1931 by devoting its efforts to stopping hostilities. Its resolution of Septem-
ber 30, 1931,2 was adopted under circumstances which seemed to warrant
some optimism. Later developments were otherwise, however. On Octo-
ber 24, 1931, the adoption of a more drastic resolution,3 calling for the with-
drawal of Japanese forces in Manchuria to the railway zone by November
16, 1931, was defeated by the single vote of the Japanese representative who
opposed fixing a date for a withdrawal.4 On December 10, 1931, the Coun-
cil reaffirmed its resolution of September 30, 1931, and decided to adopt a
suggestion which both parties had made that a commission of enquiry be
sent "to study on the spot and to report to the Council on any circum-
stance which, affecting international relations, threatens to disturb peace
beween China and Japan, or the good understanding between them, upon
which peace depends." 5 It was no small task to select the members of that
commission, to recruit its staff, and to initiate its work; but before the end of
February, 1932, the Commission of Enquiry was "on the spot" and on its
job. Meanwhile, hostilities in a new area called for more immediate meas-
ures, and during the early months of 1932, the Council and Assembly were
forced to devote their efforts to the situation at Shanghai. At the sugges-
tion of the Council, consular representatives at Shanghai of Italy, Great
Britain, France, Norway, Germany, and Spain were organized as a Con-
sular Commission, which, with the collaboration of the consular representa-

2 League of Nations Official Journal, 1931, p. 2307. 3 Id., p. 2340.

4 Action under Article 11 seems to require unanimity. Yet it was not made clear at the
time, that the draft resolution was not adopted; the President of the Council declared it
"adopted unanimously except for one vote." Id., p. 2359. The report adopted by the
Special Assembly on February 24, 1933, makes it plain that the draft resolution of October
24, 1931, is not to be regarded as having been adopted.
5 League of Nations Official Journal, 1930, p. 2374.

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 302 THE AMERICAN JOURNAL OF INTERNATIONAL LAW

tive of the United States, kept the Council informed of developments there.6
The armistice at Shanghai was not signed until May 5, 1932. Before that
date, on February 18, 1932 the independence of "Manchukuo" had been
declared, and a new administration was being set up in Manchuria. On
March 11, 1932, the Special Assembly followed a lead given by the Govern-
ment of the United States 7 and declared "that it is incumbent upon the
members of the League of Nations not to recognize any situation, treaty or
agreement which may be brought about by means contrary to the Covenant
of the League of Nations or to the Pact of Paris." 8 Further progress in
handling the situation had to await the report of the Commission of En-
quiry. On July 1, 1932, the six-months' time-limit for the Assembly's re-
port, set by Article 12 of the Covenant and made applicable by paragraph
10 of Article 15, was prolonged "to the extent that may be strictly necessary
and on the understanding that the said extension shall not constitute a
precedent." 9
The Commission of Enquiry completed a unanimous report at Peiping on
September 4, 1932, and on October 2 it was published simultaneously in vari-
ous capitals.10 It was a signal achievement to produce a comprehensive
and authoritative statement of such a complicated situation, and the report
was at once recognized to set a new standard of international action." The
situation was further complicated, however, by Japan's recognition of " Man-
chukuo." The Council of the League of Nations considered the report of
the Commission of Enquiry on November 21-23, 1932, and heard the ob-
servations of both the Chinese and Japanese representatives. On Novem-
ber 28, 1932, the report was transmitted to the Special Assembly. Seven
sessions were devoted to the consideration of the report by the Special As-
sembly, December 6-9, 1932, and on the latter date the Assembly instructed
its Committee of Nineteen to continue the study of the report and the obser-
vations of the parties, and "to draw up proposals with a view to the settle-
ment of the dispute.12 The Committee of Nineteen first endeavored to find
a basis acceptable to both China and Japan, and from December 12, 1932,

6 The Consular Commission made four reports to the Council. For the texts, see League
of Nations Official Journal, 1932, Special Supplement No. 101, pp. 194-206.
7 In identic notes sent to the Chinese and Japanese Governments on January 7, 1932.
United States Department of State Press Releases, January 9, 1932, p. 41.
8 Records of the Special Assembly (Official Journal, Special Supplement No. 101), I, p. 87.
9 Ibid. (Official Journal, Special Supplement No. 102), II, p. 16.
o? For the text of the report of the Commission of Enquiry, see League of Nations Docu-
ment, C. 663. M. 320. 1932. VII, and annexes to the same. The report, without the
maps and annexes, was republished by the United States Department of State as Publication
No. 378.
11 In 1925, the Commission of Enquiry sent by the Council of the League of Nations to
investigate the incidents on the Greco-Bulgarian frontier performed a notable service, but
it dealt with a less acute and a less complicated situation. For its report, see League of
Nations Official.Journal, 1926, p. 196.
12 Verbatim Record of the Special Assembly, December 9, 1932, p. 1.

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 EDITORIAL COMMENT 303

to February 14, 1933, it devoted most of its energies to this task. Only when
it was clear that such effort would not succeed, did the Committee of Nine-
teen proceed to draw up a draft report for adoption by the Assembly. Its
draft was broadcast to the world by the League of Nations Radio Station on
February 17, 1933.'3 A week later, February 24, 1933, with representatives
of forty-four members of the League of Nations present, the Special Assem-
bly adopted the report unanimously except for the vote of the Japanese
representative.14
The Assembly adopted, as its "statement of the facts of the dispute," the
four reports of the Consular Commission at Shanghai and eight chapters of
the report of the Commission of Enquiry, to which it added its own state-
ment of the developments since September 4, 1932. It then proceeded to
draw certain conclusions. "Before September 18, 1931, each of the two
parties had legitimate grievances against the other in Manchuria," but "the
Commission of Enquiry found that each of the issues between China and
Japan was in itself capable of settlement by arbitral procedure." "No ques-
tion of Chinese responsibility can arise for the development of events since
September 18, 1931." On the other hand, "the military measures of Japan as
a whole" cannot "be regarded as measures of self-defense"; nor would the
adoption of such measures have the effect of relieving "a state from comply-
ing with the provisions of Article 12 of the Covenant." The " Manchurian in-
dependence movement" cannot "be considered as a spontaneous and genuine
independence movement," for it "could only be carried through owing to the
presence of the Japanese troops."
In its "recommendations," the Assembly first adopted ten principles and
conditions laid down by the Commission of Enquiry.15 It then proceeded to
recommend specific action which should include the evacuation of the Japa-
nese troops and the establishment in Manchuria of an organization "under
the sovereignty of, and compatible with the administrative integrity of,
China." This organization should "provide a wide measure of autonomy,"
and it should be in harmony with "the particular rights and interests of
Japan" and the rights and interests of third states. The relation of the new
organization to the Chinese Central Government should be made "the sub-
ject of a declaration by the Chinese Government having the force of an in-
ternational undertaking." For the settlement of various questions between
the two governments direct negotiations should be undertaken "with the
assistance of a committee set up by the Assembly." The Governments of
Belgium, Great Britain, Canada, Czechoslovakia, France, Germany, the Irish
Free State, Italy, the Netherlands, Portugal, Spain and Turkey were invited
13 The establishment of the League of Nations Radio Station was due to a recommendation
of the Commission of Enquiry in the Greco-Bulgarian dispute in 1925. League of Nations
Official Journal, 1926, p. 208. This was the first occasion of its use in connection with an
international dispute.
'4 The representative of Siam abstained from voting.
'5 Report of the Commission of Enquiry, p. 130.

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304 THE AMERICAN JOURNAL OF INTERNATIONAL LAW

to appoint members of this committee, and the Assembly

tions should also be sent to the Governments of the Unite
and the Union of Soviet Socialist Republics. This committee is to report to
the Assembly on the carrying out of the recommendations, and as regards the
recommendation as to the evacuation of Japanese troops it is to report within
three months of the opening of negotiations. The Assembly then underlined
the points that the recommendations do not provide for a return to the status
quo ante, and that by adopting the report the members of the League express
an intention to abstain " from any act which might prejudice the carrying out
of the recommendations" and to continue "not to recognize" the existing
regime in Manchuria "either de jure or de facto."
On February 24, 1933, the Chinese Government accepted the recommenda-
tions of the Assembly "subject to the sole condition that the other party also
accepts them," and it was stated to be obvious that pending this acceptance
by Japan the rights of China under paragraph 6 of Article 15 of the Cove-
nant could not be prejudiced.16 On the same day the Japanese Govern-
ment, for its part, availed itself of the privilege accorded by paragraph 5
of Article 15 of the Covenant, and "made public" by communicating it to the
Assembly "a statement of the facts of the dispute and of its conclusions re-
garding the same."'17 On March 27, 1933, the Japanese Government gave
notice of its intention to withdraw from the League.
After adopting the report, the Special Assembly set up a new Advisory
Committee of Twenty-one to aid the Assembly in performing its duty under
paragraph 3 of Article 3 of the Covenant and "to aid the members of the
League in concerting their action and their attitude among themselves and
with the non-member states." 18 This Advisory Committee promptly met
on February 25 and invited the cooperation of the Governments of the United
States of America and the Union of Soviet Socialist Republics.
On February 25, 1933, the Government of the United States, in a letter
addressed to the Secretary-General of the League of Nations, expressed its
general agreement with the conclusions formulated by the Assembly and
gave a "general endorsement" of the principles of settlement recommended;19
later, on March 13, 1933, the Government of the United States accepted the
invitation to cobperate with the Advisory Committee of Twenty-one. On
March 7, 1933, the Government of the Union of Soviet Socialist Republics
declined to accept the Assembly's report or to cooperate with the Advisory
Committee, partly on the ground that a "majority of the states which belong
or will belong to the Advisory Committee, to be exact 13 out of 22, maintain
no relations with the Soviet Union and consequently show hostile dispositions
16 Document A (Extr.). 32. 1933. VII. By paragraph 6 of Article 15, members of
the League agree not to go to war with any party to a dispute which complies with the
recommendations of a unanimous report.
17 Document C. 152. M. 75. 1933. VII.
18 Verbatim Record of the Special Assembly, 18th meeting, February 24, 1933, p. 1.
19 Department of State Press Releases, February 25, 1933, p. 146.

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 EDITORIAL COMMENT 305

towards it," and hence that the Soviet Union would be " deprived of the possi-
bility of having any contact with the majority of its members." 20
The report of the Assembly does not constitute a declaration that there
has been a "resort to war" in disregard of "covenants under Articles 12, 13
or 15." Apart from action by individual members of the League, the basis
for an application of the sanctions provided for in Article 16 of the Covenant
does not therefore exist, and no question of sanctions was dealt with in the
Assembly's report. The chief function served by the report is that it
clarifies world opinion.2' Confronted with an extremely delicate task, the
Assembly has achieved such a definite agreement that people throughout
the world can take the report as a basis for judgment. The Assembly has
not acted precipitately. It has not acted without thorough investigation.
Its conclusions have commanded the support of most of the governments of
the world. Its statement of the facts is not to be misunderstood in any
quarter, and its recommendations may have a far-reaching influence on
future developments.
MANLEY O. HUDSON

THE SUPREME COURT INTERPRETS THE LIQUOR TREATIES

For the first time since it decided the important case of The Quadra (Ford v.
United States, 273 U. S. 593),' the Supreme Court of the United States has
again had occasion to interpret the liquor treaties. In the recent case of The
Mazel Tov (Cook v. United States, 53 S. Ct. 305),2 opinion by Mr. Justice
Brandeis, the court makes a significant contribution to our understanding of
the scope of the treaties and of their relation to important national legislation.
The Mazel Tov was a British vessel capable of a speed not exceeding ten
miles an hour. It was discovered by officers of the United States coast guard
within twelve miles of the coast of Massachusetts and was boarded, under
Section 581 of the United States Tariff Act of 1930,3 at a point eleven and

20Document A (Extr.). 38. 1933. VII.

21 The report has also served as a precedent for the report adopted by the Council, un-
der paragraph 4 of Article 15 of the Covenant, on March 18, 1933, relating to a dispute
hb.wPPn Colombia and Peru.
1 See comment in this JOURNAL, Vol. 21 (1927), p. 505.
2 Decision rendered January 23, 1933. For discussion of the liquor treaties, see this
JOURNAL, Vol. 20 (1926), pp. 111, 340, 444, Vol. 21 (1927), p. 505; Revue de Droit Inter-
national et de Lggislation Comparee, 3d series, Vol. 7, p. 371; Jessup, The Law of Territorial
Waters, chs. 6-7.
3 "Sec. 581. Boarding Vessels. Officers of the customs or of the Coast Guard, and agents
or other persons authorized by the Secretary of the Treasury, or appointed for that purpose
in writing by a collector may at any time go on board of any vessel or vehicle at any place
in the United States or within four leagues of the coast of the United States, without as well
as within their respective districts, to examine the manifest and to inspect, search, and
examine the vessel or vehicle, and every part thereof, and any person, trunk, or package on
board, and to this end to hail and stop such vessel or vehicle, if under way, and use all
necessary force to compel compliance, and if it shall appear that any breach or violation of

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