CO129-564-12 Status of leased territories in China 29-9-1937 - 30-10-1937 — Page 17

17

Law, pages 243–344) aryo:-

'In cares such as these, the internal sovereignty "passes under the lease or grant. where the lease "for years, or some other definite period, there "remains a reversionary right in the lessor - a right "which was recognized in connection with the transfer of "Port Arthur from Russia to Japan, and in the restora- "tion of auchau and the promised restoration of "Weihaiwi and Ewang-chow-van to China, But even where "the tera of the lease, or of the grant of the right "to occupy and ad inister, is limited, so that it cannot "be said to be 'equivalent to a cession' at once, the #tendency for established facts to result in legal "rights comes into play, and there is always the

'possibility that, in the long run, the partial transfer "will result in a complete alienation.

'It seems clear that, for practically all inter- "national purposes, third Powers regard the leased or "märánistered territory as under the sovereignty of "lessee or occupant; and the case of Klauchau shows "that they would treat it as hostile territory if they "were at war with the lessee. If this wore not so, the "lessor State would, as Westlake pointed out, run the "risk of having its neutrality violated by the use of "the leased territory by the lessee for the purposes "of a war against a third state."

The case of Kiauchau, mentioned by Lindley, is interesting

as a precadent, because, of course, during the last war it was

treated as German territery for belligerent purposes, and was

attacked and taken by Great Britain ami Japan in spite of any

residual sovereignty in China, which was then neutral. The

same applies in regard to the position of Port Arthur during the

Russo-Japanese ar. Westlake (Part I pages 135-136) says es

follows:-

"hen property is leased, the lessor retains a "proprietary right which runs concurrently with the "leance's right of enjoyment. If therefore the "analogy were closely pressjá, šho state which grants "a lease of territory would be held to retain all the "tine sono sort of several gnty over it. This however "would not suit the parties to such transactions as "those which have been mentioned, since the Lessee "state requires the unrestricted use of the soil for "the erection of fortresses and cher purposes as well "warlike as pacific, while the lessor state would "object to the loos of its neutrality which would result

"from/