It will be seen that each party is to select one arbitrator, and that the
two so chosen are to designate an umpire. But if they fail to do this
within two months after their appointment, His Majesty the King of
Sweden and Norway will be requested to name the umpire. All three
arbitrators are to be members of the permanent court of arbitration at
The Hague.
Prefixed to the protocol is the note of the Japanese minister for foreign
affairs, by which his Government promise that pending the termination of
the arbitral proceedings they will suspend the forcible collection of
the house tax. The assurance mentioned in dispatch No. 672, of the 18th
ultimo, has thus been formally confirmed.
American holders of settlement properties under perpetual leases seem to
be in a satisfactory position with regard to the house tax, since the
await the results of the arbitration with rights, present and future,
the same as those of British, French, and German leaseholders, and are
meanwhile safeguarded from distraint for nonpayment of the tax.
I have the honor to inclose also a copy of Baron Komura’s letter of this
date in answer to a note conveying the substance of the instruction of
July 18. At the same time he transmits the protocol and expresses
appreciation of the American Government’s attitude throughout the
controversy.
[Subinclosure.—Translation.]
Department of Foreign Affairs,
Tokyo, August 28, 1902.
In view of the conclusion this day of a protocol by which the
Governments of Japan, Germany, France, and Great Britain have agreed
to refer to impartial arbitration the question whether or not the
provisions of the treaties and other engagements mentioned in the
said protocol exempt only land held under leases in perpetuity
granted by or on behalf of the Japanese Government, or land and
buildings of whatever description, constructed or which may
hereafter be constructed on such land, from any imposts, taxes,
charges, contributions, or conditions whatsoever other than those
expressly stipulated in the leases in question, the Imperial
Government have deemed it proper that the forcible collection of the
taxes and rates in respect of such buildings should be suspended
during the arbitral proceedings. The undersigned, His Imperial
Japanese Majesty’s minister of state for foreign affairs, has
therefore the honor to acquaint His Excellency Sir Claude Maxwell
Macdonald, His Britannic Majesty’s envoy extraordinary and minister
plenipotentiary, that the Imperial Government will suspend the
forcible collection of the taxes and rates above-mentioned until the
arbitral decision is pronounced or the arbitral proceedings are
otherwise terminated; it being understood that such suspension shall
not prevent the Japanese authorities from collecting the taxes and
rates in question so far as they can do so without recourse to
distraint; and it being further understood that neither such
suspension, nor the consequences thereof, nor the voluntary payment
of the said taxes and rates, is to be invoked against or to operate
in any way to the disadvantage or prejudice of any of the
above-mentioned powers in connection with said arbitration.
The undersigned avails himself of this occasion to renew to His
Excellency Sir Claude Maxwell Macdonald the assurance of his highest
consideration.
| (Signed) |
Baron Komura Jutaro. |
His Excellency Sir Claude Maxwell
Macdonald,
His Britannic Majesty’s
Envoy Extraordinary and, Minister Plenipotentiary.
N. B.—Similar notes have been addressed to the German minister and to
the French chargé d’affaires.
Protocol.
Whereas a dispute has arisen between the Government of Japan on the
one side and the Governments of Great Britain, France, and Germany,
on the other, respecting the true intent and meaning of the
following provisions of the treaties and other engagements
respectively existing between them, that is to say:
Paragraph 4, Article XVIII, of the treaty of commerce and navigation
of April 4, 1896, between Japan and Germany: “Sobald diese
Einverleibung erfolgt”—that is to say, when the several foreign
settlements in Japan shall have been incorporated with the
respective Japanese communes—“sollen die bestehenden, zeitlich
unbe-grenzten Ueberlassungsverträge, unter welchen jetzt in den
gedachten Niederlassungen Grundstücke besessen werden, bestätigt und
hinsichtlich dieser Grundstücke sollen keine Bedingungen irgend
einer anderen Art auferlegt werden, als sie in den bestehenden
Ueberlassungsverträgen enthalten sind;” and section 3 of the
complementary communication of the same date from the German
secretary for foreign affairs to the Japanese minister at Berlin:
“3. dass, da das Eigenthum an den im Artikel XVIII des Vertrages
erwähnten Niederlassungsgrundstücken dem Japanischen Staate
verbleibt, die Besitzer oder deren Rechtsnachfolger für ihre
Grundssücke ausser dem kontraktmassigen Grundzins Abgaben oder
Steuern irgend welcher Art nicht zu entrichten haben werden;” and
the clause in the reply of the Japanese minister of the same date to
the foregoing communication: “Dass die darin unter Nummer 1 bis 4
zum Ausdruck gebrachten Voraussetzungen, welche den Erwerb
dinglicher Rechte an Grundstücken, die Errichtung von Waarenhäusern,
die Steuer-freiheit der Grundstucke in den Fremdenniederlassungen
und die Erhaltung wohl-erworbener Rechte nach Ablauf des Vertrages
zum Gegenstande haben, in allen Punkten zutreffend sind;”
Paragraph 4, Article XXI, of the revised treaty of August 4, 1896,
between Japan and France: “Lorsque les changements ci-dessus
indiqués auront été effectués”—that is to say, when the several
foreign settlements in Japan shall have been incorporated with the
respective Japanese communes and made a part of the municipal system
of Japan, and when the competent Japanese authorities shall have
assumed all municipal obligations and duties, and the municipal
funds and property belonging
[Page 729]
to such settlements shall have been transferred to said Japanese
authorities—“les baux a perpétuité en vertu desquels les étrangers
possédent actuellement des propriétés dans les quartiers seront
confirmés, et les propriétés de cette nature ne donneront lieu a, à
ucuns impôts, taxes, charges, contributions ou conditions
quelconques autre que ceux expressément stipulés dans les baux en
question;” and
Paragraph 4, Article XVIII, of the revised treaty of July 16, 1894,
between Japan and Great Britain: “When such incorporation takes
place”—that is to say, when the several foreign settlements in Japan
shall have been incorporated with the respective Japanese
communes—“existing leases in perpetuity under which property is now
held in the said settlements shall be confirmed, and no conditions
whatsoever other than those contained in such existing leases shall
be imposed in respect of such property;” and
Whereas the controversy is not amenable to ordinary diplomatic
methods; and
Whereas the powers at variance, cosignatories of the Convention of
The Hague for the peaceful adjustment of international differences,
have resolved to terminate the controversy by referring the question
at issue to impartial arbitration in accordance with the provisions
of said convention:
The said powers have, with a view to carry out that resolution,
authorized the following representatives—that is to say:
- The Government of Great Britain: Sir Claude Maxwell
Macdonald, G. C. M. G., K. C. B., His Britannic Majesty’s
envoy extraordinary and minister plenipotentiary;
- The Government of France: M. G. Dubail, minister
plenipotentiary, chargé d’affaires of France;
- The Government of Germany: Count von Arco Valley, envoy
extraordinary and minister plenipotentiary of His Majesty
the German Emperor, King of Prussia;
- The Government of Japan: Baron Komura Jutaro, His Imperial
Japanese Majesty’s minister of state for foreign
affairs;
To conclude the following protocol:
I. The powers in difference agree that the arbitral tribunal to which
the question at issue is to be submitted for final decision shall be
composed of three members, who are members of the Permanent Court of
Arbitration of The Hague, to be selected in the following
manner:
Each party, as soon as possible and not later than two months after
the date of this protocol, to name one arbitrator, and the two
arbitrators so named together to choose an umpire. In case the two
arbitrators fail for the period of two months after their
appointment to choose an umpire, His Majesty the King of Sweden and
Norway shall be requested to name an umpire.
II. The question at issue upon which the parties to this arbitration
request the arbitral tribunal to pronounce a final decision is as
follows:
Whether or not the provisions of the treaties and other engagements
above quoted exempt only land held under leases in perpetuity
granted by or on behalf of the Japanese Government, or land and
buildings of whatever description, constructed or which may
hereafter be constructed on such land, from any imposts, taxes,
charges, contributions, or conditions whatsoever other than those
expressly stipulated in the leases in question.
III. Within eight months after the date of this protocol each party
shall deliver to the several members of the arbitral tribunal and to
the other party, complete written or printed copies of the case,
evidence, and arguments upon which it relies in the present
arbitration. And not later than six months thereafter a similar
delivery shall be made of written or printed copies of the counter
cases, additional evidence, and final arguments of the two parties;
it being understood that such counter cases, additional evidence,
and final arguments shall be limited to answering the principal
cases, evidence, and arguments previously delivered.
IV. Each party shall have the right to submit to the arbitral
tribunal as evidence in the case all such documents, records,
official correspondences, and other official or public statements or
acts bearing on the subject of this arbitration as it may consider
necessary. But if in its case, counter case, or arguments submitted
to the tribunal either party shall have specified or alluded to any
document or paper in its own exclusive possession without annexing a
copy, such party shall be bound, if the other party thinks proper to
apply for it, to furnish that party with a copy thereof within
thirty days after such application is made.
V. Either party may, if it thinks fit, but subject to the right of
reply on the part of the other party within such time as may be
fixed by the arbitral tribunal, present to the tribunal, for such
action as the tribunal may deem proper, a statement of objections to
the counter case, additional evidence, and final arguments of the
other party, if it is of opinion that those documents or any of them
are irrelevant, erroneous, or not strictly limited to answering its
principal case, evidence, and arguments.
[Page 730]
VI. No papers or communications other than those contemplated by
Sections III and V of this protocol, either written or oral, shall
be admitted or considered in the present arbitration unless the
arbitral tribunal shall request from either party additional or
supplementary explanation or information, to be given in writing. If
the explanation or information is given, the other party shall have
the right to present a written reply within such time as may be
fixed by the arbitral tribunal.
VII. The tribunal shall meet at a place to be designated later by the
parties, as soon as practicable, but not earlier than two months nor
later than three months after the delivery of the counter cases as
provided in Section III of this protocol, and shall proceed
impartially and carefully to examine and decide the question at
issue. The decision of the tribunal shall, if possible, be
pronounced within one month after the president thereof shall have
declared the arbitral hearing closed.
VIII. For the purposes of this arbitration the Government of Japan
shall be regarded as one party, and the Governments of Great
Britain, France, and Germany, jointly, shall be regarded as the
other party.
IX. So far as is not otherwise provided in this protocol, the
provisions of the Convention of The Hague for the peaceful
adjustment of international differences shall apply to this
arbitration.
Done at Tokyo this 28th day of August, 1902, corresponding to the
28th day of the eighth month of the thirty-fifth year of Meiji.
