798.94/3730: Telegram
The Consul at Geneva (Gilbert) to the Secretary of State
[Received January 30—3:07 a.m.]
55. 1. The Council, other than the parties to the dispute, held a private meeting this afternoon to study the new situation brought about by China’s invocation of articles 10 and 15 of the Covenant. Certain juridical questions relating to the concurrent application of articles 11 and 15 still require clarification and the members of the Council are considering them as well as certain matters of procedure involved therein. The points, however, on which definite conclusions were reached were brought out in the public session which followed immediately afterwards.
2. At the opening of the public session Drummond at once read Yen’s letter invoking articles 10 and 15 of the Covenant which letter was transmitted in Consulate’s 50, January 29, 9 a.m.
3. Boncour then informed the Council of the statement which had been drafted yesterday by the members of the Council, other than China and Japan, which it was hoped would conclude the question as far as the present session was concerned. He then virtually repeated the statement which was transmitted in Consulate’s 49, January 28, 7 p.m.,77 with the exception of that paragraph relating to the Commission of Inquiry.
4. Boncour then went on to say that now, however, the new request of China imposes new duties upon the Council. In this regard the Council must be guided by what is accepted as a legal interpretation of the situation given in 1927 and on other occasions whereby procedure under article 15 cannot conflict with the continuation of efforts for conciliation under article 11. He expressed the opinion that according to the Covenant as soon as article 15 was invoked that article must be applied. Quoting paragraph 1 of that article Boncour stated that he would later in the meeting call upon the Secretary General to explain to the Council what proposals he desires to put before it.
5. Yen then spoke briefly to the following effect:
China appreciates the efforts of the League under article 11 but is compelled to recognize that these efforts have proved ineffectual. Stating that the territorial and administrative integrity of China has been destroyed and her independence threatened by external aggression, Yen then read article 10 declaring that the first sentence of this article had become operative and that it remains for the Council to act under the second sentence. Yen further stated that the Japanese use of [Page 105] armed force without submitting the entire matter to arbitration or judicial settlement and without awaiting the outcome of the inquiry by the Council is in direct violation of the letter and the spirit of the Covenant.
6. In conclusion he read an official telegram January 29 from Nanking regarding the landing of Japanese troops in Shanghai. This telegram affirmed that although the Japanese Consul General in Shanghai was satisfied with the reply of the Chinese municipal government the Japanese naval commander had delivered an ultimatum demanding the immediate withdrawal of Chinese troops. While the Chinese authorities were protesting against this ultimatum the Japanese troops commenced machine-gun fire on Chinese forces. The telegram then recounted that after this clash Japanese marines were landed from all [ships?].
7. In reply Sato announced that he had received an official telegram which gave an entirely different picture of events in Shanghai. This telegram stated that on January 27 the commanders of the foreign forces at Shanghai divided up to [sic] the city into protection zones, one of which was assigned to Japan, and which were geographically identified. The British and American Consuls General had advised their nationals outside the Concession to return within it. Meanwhile great disorder was being created by agitators and soldiers in disguise and by the advance of Chinese troops along the railway line from Woosung. The Municipal Council declared a state of siege on January 28. In view of the critical situation the Japanese naval commander decided to protect Japanese nationals by establishing marine posts in the Japanese zone and when these marines were going to the posts they were attacked by regular Chinese forces. In addition disguised Chinese soldiers had commenced to create disorder within the Japanese protection zone. Later other offensive measures were undertaken by Chinese troops which led to the reenforcement of the Japanese marines.
Sato’s interpretation of this telegram was that it was not the Japanese who took the decision to land but that the landing was preceded by advice and a request from the commanders of the foreign forces who had allotted to each nation the zone that it was to protect. The marines who were landed in virtue of this decision of the commanders of the foreign forces were attacked by Chinese.
8. In response to the Chinese accusation that Japan had violated its territorial integrity Sato recalled that there were precedents for such incidents, notably in 1927, and that Japan had not been the first to introduce such measures.
9. With regard to the invocation of article 15, Sato insisted that the Council has carried on discussions under article 11 and if the matter [Page 106] were now to be discussed under article 15 “the very basis of the discussion in the Council would have to be radically changed”. In support of this view he declared that the provisions of these two articles are entirely different, claiming that article 11 deals with threats, war, or circumstances constituting a threat of peace, and that article 15 deals with disputes likely to lead to a rupture. He doubted if the Council could act under both articles at the same time, pointing out that under article 15 the Secretary General can make all arrangements for a full investigation on the spot but that such inquiries could not be of the same character as those undertaken by a Commission of Inquiry as constituted under the Council resolution of December 10. He then suggested that the departure of the Commission of Inquiry should be postponed until the Council has settled the points just raised. Sato then objected to the presentation of the Chinese statements and documents under article 11 as constituting a Chinese statement to be examined by the Council under article 15. Reiterating that under article 15 the Council is charged with the examination of a “dispute likely to lead to a rupture,” Sato questioned whether the Chinese Government intends to proceed to an immediate rupture. Recalling that the dispute was originally caused by destructive acts of Chinese soldiers in Manchuria and that action by the Japanese had been in the nature of “self-protection necessary in regions where, contrary to conditions existing normally, there is no legal protection from the authorities,” Sato could not admit in these circumstances the existence of a dispute subject to settlement as provided for under article 15. In conclusion Sato reiterated the willingness of Japan to enter into direct negotiations with the Chinese Government and questioned whether the latter was justified in bringing a question before the Council before it has tried to settle the question by diplomatic means with the government concerned.
10. In reply to Sato’s objections regarding the procedure, Boncour pointed out that contrary to the Japanese point of view the Chinese appeal is not a matter on which the Council is free to act as it will. He declared that under article 15 any member of the League can bring a question before the Council and the Secretary General must immediately make arrangements for securing information and there can be no doubt as to whether the Council would apply that article. He then reminded the Japanese representative that the findings of a committee which was appointed to consider this question, presided [over?] by Adachi and confirmed by the Council unanimously March 13th, 1924, clearly indicated that the Council, when seized of a dispute submitted under article 15 as “likely to lead to a rupture”, is not bound either at the request of the other party or on its own authority and before inquiring into any point to decide whether in fact such description is well [Page 107] founded. Furthermore, the Council may at all times estimate they had [cognizance?] of a dispute and determine the course of its action accordingly. In view of this expression of opinion by jurists, Boncour did not believe that the Council could reject a request that the matter be considered under that article.
With reference to the question whether procedure under article 15 would automatically cancel procedure under article 11, Boncour declared that the action of the Council under article 15 is clearly defined and that “it may be said that that procedure is not incompatible with the measures already taken under article 11”. In this connection he referred to a request by Osaka [Czechoslovakia?] at the sixth session of the Council wherein the Council was asked that both articles should be applied and that no objection was raised to these articles being applied at the same time.
[11?] Boncour then called upon the Secretary General to explain what procedure he had in mind to secure the necessary information. Drummond then explained that article 15 clearly contemplates an investigation by the Secretary General and also that the parties to the dispute should communicate to the Secretary General a statement of their case. He did not consider, however, that Yen’s reference to evidence submitted under article 11 constituted all the relevant facts and papers and he expressed the hope that the latter would furnish him with a comprehensive statement.
Drummond considered it of the greatest importance that the Council should have impartial and speedy information as to the origin and development of the dispute, particularly with regard to the Shanghai incidents. He therefore requested that as the Chinese appeal under article 15 had only been received today that he be allowed until tomorrow morning to make definite proposals in this regard.
12. Sato reserved the right to make further observations on Boncour’s statement regarding procedure especially in view of the heavy responsibilities which the Council is undertaking.
13. The discussion on the Chinese appeal concluded with a statement by Boncour urging both the Chinese and Japanese representatives to telegraph to their Governments “reporting the emotion with which the Council is following the present grave events and that the Council will not terminate its action until, in accordance with the Covenant, it has discharged the heavy duties which fall upon it”. He also urged both parties to do everything to avoid further clashes.
Yen and Sato promise[d] to telegraph to this effect but Sato added that he feared that the already tense relations between the two countries would not be improved by this new step on the part of China.
- Not printed.↩