CO129-564-12 Status of leased territories in China 29-9-1937 - 30-10-1937 — Page 16

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instrument conferring it upon him.

On this view, these leased territories would, strictly

speaking, at all times be and remain Chinese territory. All

that the Chinese would have parted with would be the right,

during the term of the lease, to exercise effective control.

The result of this view would be that, in theory, the

status of the leased territory during a war ought to depend on

the position of the Chinese Government, and not on that of the

leasee government. If the territory is, strictly speaking,

Chinese territory, then, if China is at war, it ought to be

treated as belligerent territory, even though the lessee is

neutral. Similarly, if the lessee is at war and China neutral,

it should be treated as neutral territory.

In actual practice, however, precisely the reverse has

occurred, and it is clear that these pieces of territory have,

in fact, leen treated as amounting to cessions and not leases.

According to the practical view adopted concerning them, they

are really ceasions coupled with an obligation to re-transfer

after so many years if no contrary arrangement is come to.

But this practical view of the matter is in opposition to the

correct theoretical position and to the terms of the leases

themselves, Nonetheless, it has prevailed. Oppenheim, for

instance, (4th Edition Vol. I page 364) after admitting that

in strict law these territories remain the property of the

leasing state, says "such cases comprise for all practical

"purposes cessions of pieces of territory." Lindley (The

Acquisition and Government of Backward Territory in International

Law/