¹ Contemporary China, Vol. V, No. 22; March 18, 1946.

² “ In earlier days it was a generally recognized rule that from the moment one State was at war with another it had a right to seize on all the enemy’s property of whatever kind and wherever found, and to appropriate it to its own use or to that of the captors. But in modem times … the principle grew up that no use of force against an enemy is legitimate unless it is absolutely necessary to accomplish the purpose of the war.” Wheaton, H. B., International Law, London, 1944 (7th English ed., by Keith, A. B.), Vol. II, pp. 247–248 Google Scholar.

³ Article 55.

⁴ Wheaton, p. 233. Also Oppenheim, L.: International Law, 1940 (6th ed., by Lauterpacht, H.), Vol. II Google Scholar, Section 169.

⁵ Wheaton, p. 258.

⁶ Japan’s economic empire in Manchuria operated through the South Manchuria Railway Corporation and the Manchuria Industrial Development Corporation. The former was formed under an Imperial Ordinance in 1906. The latter was a state-controlled holding company engaged in 72 types of heavy industries with 150 suborganizations.

⁷ On this stipulation Wheaton has commented: “One cannot conceive any insuperable hindrance to the application of laws of usufruct obtaining in the occupied country”: p. 258. However, T. A. Taracouzio in his The Soviet Union and International Law, 1935, believes that this provision and Article 46 are “obviously in conflict” and “incompatible” with Soviet principles: p. 338. See below, p. 591.

⁸ Article 46, paragraph b.

⁹ Article 47.

¹⁰ International Law Conference, collated and edited by W. R. Bisschop, London, 1943.

¹¹ Article 52, paragraph a.

¹² Article 53, paragraph a.

¹³ Oppenheim, Sec. 137, p. 309, and

¹⁴ Sec. 134, pp. 307–308.

¹⁵ The Postwar Settlement of Property Rights, Council on Foreign Relations, 1945, p. 42.

¹⁶ Articles 4 and 14 of the Hague Regulations and Article 6 of the Prisoners of War Convention of 1929. See Wheaton, pp. 248 and 250.

¹⁷ Oppenheim, Sec. 139, pp. 310–311.

¹⁸ No complete official report on the Manchurian removals has yet been released. So far as it is publicly known, the earliest date of Soviet removals was given by Mr. Tang Pao-yen, investigator of the Mukden Arsenal, according to whom more than 2,768 major pieces of machinery and boilers were removed from the arsenal alone between September 10 and December 6, 1945. Sin Wen Pao, Shanghai, March 31, 1946.

¹⁹ See the recent interpretation of the non-recognition doctrine expounded in R. L. Redmond, C. M. Micou and Q. Wright, “The Concept of Unlawful Belligerency: Its Significance in the Development of International Law ” in The Postwar Settlement of Property Rights, supra, Supplement A.

²⁰ Willoughby, W. W., The Sino-Japanese Controversy and The League of Nations, 1935, Appendix 4, p. 724 Google Scholar.

²¹ Inter-Allied Declaration; British Foreign Office, Misc. No. 1 (194) Cmd. 6418, London.

²² See observations of James L. Brierly in International Law Conference, above.

²³ Manchuria once before had suffered the experience of being a battleground, namely in the Russo-Japanese War of 1904. Yet even without the benefit of the revised Hague Conventions that were not signed until two years after the conclusion of the war, China was reasonably successful in maintaining her neutrality and in avoiding serious injury beyond the main battle centers of Dairen, Port Arthur, and Newchwang which were Russian leased territories. The Chinese charges against Russian violations of neutrality were mostly “trivial”: Amos S. Hershey, The International Law and Diplomacy of the Russo-Japanese War, 1906, p. 268. However, in a Circular Note to the Powers issued in January, 1905, Russia threatened to “consider the neutrality of China from the standpoint of her own interests in case the actual situation in China (being alleged breaches of Chinese neutrality), to which attention is now earnestly invited, shall continue” (Quoted in Hershey, p. 258). Nevertheless this threat of Russia to absolve herself from her agreement with the Powers by an ex parte decision of all questions relating to Chinese neutrality was successfully resisted. This agreement was the acceptance of the principles of the Hay Note of February 10, 1904 by Russia and Japan. According to Hershey “The Hay Note, backed up by subsequent representations, must be held to have at least contributed toward the prevention of serious violations of Chinese neutrality and to have thereby aided in preventing serious international complications leading to a possible international catastrophe” (p. 268). The Hay Note, sent to the American representatives at St. Petersburg, Tokyo, and Peking on the day of Japan’s declaration of war, read as follows: “You will express to the Minister of Foreign Affairs the earnest desire of the Government of the United States that in the course of military operations which have arisen between Russia and Japan, the neutrality of China and in all practicable ways her administrative entity shall be respected by both parties and that the area of hostilities shall be localized and limited as much as possible, so that undue excitement and disturbance of the Chinese people may be prevented, and the least possible loss to the commerce and peaceful intercourse of the world may be occasioned.” Favorable replies were received from nearly all the leading European nations after they were informed of this action.

In the present situation the United States and British Governments have similarly sent notes to the Governments of China and the Soviet Union. Undersecretary of State Dean Acheson has, however, indicated that the United States has, since receipt of the Soviet reply, abandoned hope of settling through diplomatic channels the differences with the Soviet Union over war booty removal and would instead depend on Reparations Commissioner Edwin W. Pauley to find some solution: The New York Times, April 29, 1946.

²⁴ Same, February 27, 1946.

²⁵ Same. In a statement issued on March 1, 1946, by McDermott, Michael J., Special Assistant to the Secretary of State for Press Relations, the United States Government declared: “We have no agreement, secret or otherwise, with the Soviet Government or any other government in regard to ‘war booty’ in Manchuria. This Government does not accept any interpretation of ‘war booty’ to include industrial enterprises or the components thereof, such as Japanese industries and equipment in Manchuria.” Department of State Bulletin, Vol. XIV, No. 349 (March 10, 1946), p. 364 Google Scholar.

²⁶ The New York Times, March 7, 1946.

²⁷ Same, March 6 and 10, 1946.

²⁸ Contemporary China, as cited above.

²⁹ Excerpt from Wang’s report in same.

³⁰ Work cited, pp. 258–259. Professor Keith writes that in Belgium, during World War I, “Factories and workshops were denuded of their machinery, for the purchase of which criminal proceedings were later brought against the German manufacturers”: same, p. 250.

³¹ Statement released by Michael J. McDermott, cited above.

³² See text of Secretary Brynes’ address on the Paris Conference, in The New York Times, May 21,1946. Reparations Commissioner Edwin W. Pauley has said that the United States and the Soviet Union have not agreed on the definition of war booty. According to him, the Soviet Government holds that anything used by the enemy forces in the war is booty. The American Government, he said, contends that booty is the product of such facilities and not the facilities themselves: The New York Times, April 29, 1946.

³³ Taracouzio, work cited, p. 12.

³⁴ Article 21 of the Civil Code of the RSFSR reads: “The land is owned by the State and cannot be the object of private transactions. Possession of the land is allowed only by usufruct.

“Note: With the abolition of the right of ownership of land, the division of the property into movable and immovable is discontinued.” Quoted in same, p. 150.

³⁵ Same, p. 343.

³⁶ Article 3 of the Treaty between the RSFSR and Afghanistan of Feb. 28,1924, stipulates that “the embassies and consulates of Each Contracting Party shall enjoy all diplomatic privileges, in conformity with the customs of international law.” Quoted in same, p. 13.

³⁷ Same, p. 330.

³⁸ Izvestiya, April 28, 1942.

³⁹ Taracouzio, p. 338.

⁴⁰ Article 106 of the United Nations Charter incorporates Paragraph 5 of the Moscow Declaration and includes France in the provision of this paragraph.