California Law Review
Volume 31 | Issue 4
Article 2
September 1943
The Validity of Treaties in Japan
Gordon Ireland
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Gordon Ireland, The Validity of Treaties in Japan, 31 Cal. L. Rev. 405 (1943).
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The Validity of Treaties in Japan
Gordon Ireland*
is established in the United States that treaties are a part of
the "supreme law"' and rank with the Constitution and Acts
of Congress. The Constitution, with the twenty-one amendments
which have successively been added to it, is the highest of the three,
and numerous laws, especially of late years, have been made of no
effect when found by the Supreme Court to be in conflict with the
Constitution. 2 No treaty has ever been expressly declared unconstitutional, and the theory that that might be done rests on the
reasoning and assurances of Secretaries of State, court dicta, and
text writers only.' A treaty, with the appropriate legislation for its
execution, may change the accepted content of a constitutional
power expressly granted; as, for example, the interstate commerce
clause, so as to bring lawfully within federal jurisdiction subject
matter which, without the treaty, was reserved to the states." As
between a treaty and a federal law, the United States doctrine,
differing from that of Great Britain, where an Act of Parliament
(though usually expressly reserving treaty rights) is always supreme,5 is that they are of equal standing; and according to the
accepted rule of legislative interpretation, the later in date prevails
over the earlier,6 especially if the Act of Congress clearly expresses
T
*Professor of Law, Portia Law School, Boston, Massachusetts; Exchange Professor
at the University of Santo Domingo (1941).
1U. S. CoNsT., Art. VI, §2. Cf. Coudert (1943) 37 PRoc. Am. Soc. INT. LAW 6.
2For list of cases, see Bullitt, Supreme Court and Unconstitutional Legislation
(1924) 10 A.B.A.J. 419,425; Notes (1937) 23 A.B.A.J. 334; (1932) 45 Huv. L.REV.
1092, 1093.
35 MOORE, DIGEST OF INTErATioNAL LAW (1906) 166; 23 PgoC. Am. Soc. INT.
LAw (1929) 176-196.
4
Canada-United States Migratory Birds Convention, signed at Washington, Aug.
16, 1916, ratifications exchanged at Washington, Dec. 7, 1916, 39 STAT. 1702; U. S.
Treaty Series #628; 3 MALLOY, TREATIEs, CONVENTIONS, INTERNATIONAL AcTs, PROTOCOLS AND AGREEMETs BETWEEN T= UNITED STATES AND 0rENR PowERs (1923)
2645. Act of July 3, 1918, 40 STAT. 755, 16 U. S. C. §§703-711. Missouri v. Holland
(1920) 252 U. S. 416. Mexico-United States Migratory Birds and Game Mammals Convention, signed at Mexico City, Feb. 7, 1936, ratifications exchanged at Washington,
March 15, 1937, 50 STAT. 1311, U. S. Treaty Series #912; 4 MA.LOY, ibid. (1938) 4498.
Act of June 30, 1936, 49 STAT. 1555, 16 U. S. C. §§703-709a.
5
1n re California Fig Syrup Co.'s Trademark (1886) 40 Ch. D. 620, 627-628.
6Head Money Cases (1884) 112 U. S.580; Whitney v. Robertson (1888) 124 U. S.
190; Chae Chan Ping v. United States (1889) 130 U.S. 581; Cook v. United States
(1933) 288 U.S. 102; Ex parte Gin Kato (W. D. Wash., 1920) 270 Fed. 343; 5 MooRE,
op. cit. supra note 3, 364-371.
CALIFORNIA LAW REVIEW
[Vol. 31
the purpose to abrogate or modify the prior treaty.7 This theory of
supremacy of the later provision has been expressly applied to the
relations of the United States with Japan. The 1854 treaty between
them sought to prevent discrimination by Japan against United
States citizens by providing (Article VI) that if at any future time
Japan should grant other nations privileges and advantages not granted in that treaty to the United States, the same privileges and advantages should be granted likewise to the United States and its citizens
without any consultation or delay. The treaty of commerce and navigation between the United States and Japan signed at Washington
on November 22, 18948 provided:
Art. I.... "The citizens or subjects of each of the two High Con-
tracting Parties shall have full liberty to enter, travel, or reside in
any part of the territories of the other Contracting Party, and shall
enjoy full and perfect protection for their persons and property."
While that treaty was in force, the act of 1900 for the government
of the Territory of Hawaii 9 made all fisheries in the sea waters of
the Territory free to all citizens of the United States, without eliciting any known protest from Japan. An Act of 1906 to prohibit aliens
from fishing in the waters of Alaska' ° expressly provided (Section 3)
that nothing in the act should be construed as affecting any existing
treaty or convention between the United States and any foreign power.
The federal act of 1906 has been held to override provisions of the
1894 treaty if necessary." The United States and Japan signed at
Washington on February 21, 1911,11 a new treaty of commerce and
navigation which provided:
Art. I. "The citizens or subjects of each of the High Contracting
Parties shall have liberty to enter, travel and reside in the territories
of the other to carry on trade, wholesale and retail, to own or lease
and occupy houses, manufactories, warehouses and shops, to employ
7Chew Heong v. United States (1884) 112 U.S. 536; United States v. Payne
(1924) 264 U. S. 446; Cook v. United States, supra note 6.
8
Ratifications exchanged at Washington, March 21, 1895. 3 "HAcnwoRT, DIGEST
or INERNATIONAL LAW (1942) 755. See No. 10, note 47 infra.
9
Act of April 30, 1900, 31 STAT. 160, 48 U.S.C. §506.
10 Act of June 14, 1906, 34 STAT. 263, ch. 3299, §§1-5, 48 U.S.C. §§ 243-247; Act
of June 25, 1938, 52 STAT. 1174, 48 U. S. C. §243.
11 The Tokai Maru (C.C.A. 9th, 1911) 190 Fed. 450, cert. den. (1912) 225 U. S. 703.
12 Ratifications exchanged at Tokyo, April 4, 1911. 3 HACxwORTH, op. cit. supra;
note 8, 759, 767, 773, 774. Cf. Williams, (1943) 37 Am. J. INT. LAW 390. See No. 18,
note 47 infra.
19431
THE VALIDITY OF TREATIES IN JAPAN
agents of their choice, to lease land for residential and commercial
purposes, and generally to do anything incident to or necessary for
trade upon the same terms as native citizens or subjects, submitting
themselves to the laws and regulations there established."
Under the United States theory, this treaty presumably suspended the
3
two prior laws, so far as they were inconsistent with it. After this
treaty, except as to ownership of land, which was not covered by it,
and the question of separate school facilities, which was settled diplo-
matically without judicial determination,1" Japanese subjects 15 in
carrying on trade in the United States could not be discriminated
against by state or territorial laws or municipal ordinances. 16 Subsequent federal statutes, however, were of course subject to no such
limitation; and discrimination against Japanese as aliens 17 has there-
fore been allowed in the regulations the Secretary of Commerce was
authorized to make to protect the fisheries of Alaska,'1 8 and in the
Alaskan game law. 9 Although internationalists are not in full accord,
I3 The U. S. Code in effect Dec. 7, 1925, which includes these Acts of 1900 and
1906, expressly does not enact as new law any matter contained in it. Cf. 48 U. S. C.
(Alaska) §§199, 207, 222, 222a, 243; (Hawaii) §506.
14
In connection with the "Gentlemen's Agreement" as to immigration of Japanese laborers negotiated in February, 1907, by President Theodore Roosevelt; the acceptance of which by Japan was perhaps in part influenced by the realization that
United States courts would probably hold that segregation by state law if affording
equal privileges was a constitutional exercise of the general police power and, therefore,
it would be argued by the U. S. Department of State, was internationally lawful. See
3 HacxwoRT, op. cit. supranote 8, at 756.
'SIt would seem that under properly drawn statutes non-residents may be discriminated against in state fishing regulations. Freeman v. Smith (C.C.A. 9th, 1932) 62
F. (2d) 291; Anderson v. Smith (C.C.A. 9th, 1934) 71 F. (2d) 493; Pavel v. Pattison
(W.D. La., 1938) 24 Fed. Supp. 915; William v. State (1931) 222 Ala. 584, 133 So. 737.
8
1 Asakura v. Seattle (1924) 265 U. S. 332; Jordan v. Tashiro (1928) 278 U. S. 123;
In re Naka's License (1941) 9 Alaska 1; Estate of Tetsubumi Yano (1922) 188 Cal. 645,
206 Pac. 995; Gonzales v. Ito (1936) 12 Cal. App. (2d) 124, 55 P. (2d) 262; Kaname
Tokaji v. State Board of Equalization (1937) 20 Cal. App. (2d) 612, 67 P. (2d) 1082;
Territory v. Takanabe (1924) 28 Hawaii 43 (contra); (1929) 23 Am. J. INT. LAW 418.
17Ozawa v. United States (1922) 260 U. S. 178; Yamashita v. Hinkle (1922) 260
U. S.199; Ex parte So Hapk Yon (W.D. Wash., 1924) 1 F. (2d) 814; 6 J. Soc. Comp.
LEo., 3d Ser. (1924) 210; Kiyosue Inui, Legal Aspects of the United States Immigration
Law of 1924 (Tokyo, 1925) 24 RzvUE DE DROrr-INT rATIONAL ET n DILoMATIE;
Parker, The Ineligible to Citizenship Provisions of the Immigration Act of 1924 (1925)
19 Am. J. INT. LAW 23, 44; ITRNATONAL CONczr.zAnoN, No. 202 (Sept., 1924) 375;
No. 211 (June, 1925) 163.
18Act of June 6, 1924, 43 STAT. 464, 48 U. S. C. §§221, 222, 223; Act of June 18,
1926, 44 STAT. 752, 48 U.S.C. ibid.; Act of Aug. 14, 1937, 50 STAT. 639, 48 U.S.C.
§222a; Act of April 7, 1938, ch. 110, 52 STAT. 208, 48 U. S. C., ibid.
19 Act of Jan. 13, 1925, 43 STAT. 739, 48 U. S. C. §205; Act of Feb. 14, 1931, 46 STAT.
1111, 48 U. S. C. §§207, 199; Act of June 25, 1938, 52 STAT. 1169, 48 U. S. C. §206.
CALIFORNIA LAW REVIEW
(Vol. 31
it seems to be the doctrine of the United States, as of Great Britain 20
that treaties of commerce and navigation concerning matter4 that
contemplate future relations between the parties are suspended by
the outbreak of war between them. 21 Such suspension will probably
be considered to be permanent, or the equivalent of abrogation, except as to such treaties or portions of treaties as are specifically
enumerated in the treaty of peace that terminates the war and are
expressly declared to be revived or in effect thereafter. Let us see
now how these basic questions appear to be settled in Japanese law
and theory.
The Japanese Constitution granted by the Emperor is, as it stands,
the highest law of the Empire; but in the historic view of the Emperor
as a god on earth and supreme and absolute law-giver, the Constitution may be altered, suspended or entirely withdrawn by his edict at
any time. Hence there can be no question of the constitutionality of
any imperial decree, and the latest authentic expression of the Emperor's will must always prevail. Even in the days when outward respect
was being paid to democratic forms, any legislation by the Diet was
of no value until it had been promulgated by the Emperor's order;
and it was subject to amendment or abrogation by the same authority
at any time. There have been two theories as to the relation, in the
absence of definite imperial command, between treaties and statutes. 22
In the House Tax case before the Permanent Court of Arbitration at
The Hague, there was no question of treaties being modified by later
national legislation, for the imposts on buildings which were in issue
were uniformly local or municipal and not imperial charges.28 With
the practical submergence of the Diet and the ease with which the
current Ministerial Government can at any time produce an imperial
decree, it remains of little importance whether in theory treaties are
superioi or equal to legislative acts: both yield to the Emperor's order.
20
PP
LIHsoN, TER.wInATIoN oF WAR AND TREATIEs or PEACE (1916) 263, 266;
HALL, INTERNATIONAL LAw (8th ed. 1924) 454; 1 WHEATON, INTERNATIONAL LAW (6th
Eng. ed. 1929) 516; 2 OPPENEI, INTERNATIONAL LAw (6th ed. 1940) 246.
21
CRANDALL, TETIES, THEm MAXING AND ENFORC MZNT (2d ed. 1916) 442;
5 MooRE, op. cit. supra.note 3, 372-386; Moore, Effect of War on Public Debts and on
Treaties-the Case of the Spanish Indemnity (1901) 1 CoL. L. RaV. 209.
22
Colegrove, The Treaty Making Power in Japan (1931) 25 Am. J. INT. LAW
271, 285.
23 ScoTT, THE HAGUE CouRT REPoRTs (1916) 77-92; WILSON, TE HAGUE ARBITRATION CASES (1915) 40-63; (1908) 2 Am. J. INT. LAw 911-921; (1938) 32 ibid. 114.
Case of Japan (in English) 160.
19431
THE VALIDITY OF TREATIES IN JAPAN
The leading professors of international law at the Imperial University of Tokyo are in agreement that bipartite commercial treaties
are ended by war.
"As for treaties of commerce and navigation, and other 'social'
treaties, between belligerents, opinions differ among scholars. Some
say that this category, differing from 'political' treaties, is compatible with the state of war and therefore should be regarded only as
suspended during the war and not ended by the war. However, social
no less than political treaties are dependent for their content upon
the political position, the level of civilization, and the differences in
financial and military powers of the respective countries; and in this
respect there is no reason to differentiate social from political treaties.
In particular, social treaties often contain within a single instrument
numerous items for which homogeneous treatment is impractical.
Therefore, both in theory and practice, we have been accustomed to
regard social treaties as ended by war. Recently, however, there has
appeared a doctrine asserting that those treaties which can be found
to be compatible with a state of war should not be regarded as ended
because of the war. But this doctrine has received only a limited
acceptance among the nations of the world."24
"On this problem (whether treaties between belligerents are to be
regarded as suspended or as permanently losing their efficacy) our
yardstick should be the intention of the contracting parties at the
If the intention is not explicit, we must
time of the contract ....
deduce the intention appropriately according to the nature of the
treaties.... Treaties affecting economic and commercial relations
between the belligerents, are contracted with due consideration for
the specific position of each country as to commercial, industrial and
economic conditions. Since it is impossible to foretell what consequences the war may have upon such position and conditions, we
should infer the intention of contracting parties to favor the interpretation that such treaties lose their efficacy through the commencement of belligerency.... The opinion of Oppenheim, for instance, which states that such treaties are to be regarded only as
suspended by war or as arbitrarily expirable only upon specific announcement to that effect by either belligerent ... has certain theoretical merits, but is not favored by the actual practice of to-day. I
The last two bipartite treaties of peace signed by Japan (and both
dictated by her as victor) expressed the doctrine that all executory
treaties are terminated by war between the parties. In the treaty of
24 ENDo, SuimmRY or INTERNATIONAL LAW
(Kokusai-H6 Teiy6 (3d rev. ed., Tokyo,
1929) Part II, ch. 3, pp. 328-329.
25 TAcnH, TREATISE oN INTERNATIOxAL LAW ni Timm or WAR (Senji Kokusai H6
Ron) (Tokyo. 1931) Book I, Part II, ch. 2, sec. 3, pp. 113-117.
CALIFORNIA LAW REVIEW
[Vol. 31
Shimonoseki of April 17, 1895 which ended the 1894-1895 War with
China2 it is recited that,
"Art. VI. All treaties between Japan and China having come to an
end in consequence of war...
and the Treaty of Portsmouth of September 5, 1905, which ended the
Russo-Japanese War2T declares,
"Art. XII. The treaty of Commerce and Navigation between
Japan and Russia having been annulled by the war.. .."
Thus considering treaties to be terminated by war between the parties, Japan appears further to hold to the much discussed and disputed rebus sic stantibus theory,28 and to maintain that a treaty
may be abrogated even without war by change of circumustances 0
In general, multipartite treaties 3l are not usually considered to be
2687 BRITISH AND FoRIo
STATE PAPERS 799; 21 MARTENS, Nouv. REC. GEI. DE
e
TRAIrs, 2 S6r. 642.
2 98 BRITISH ANn FOREIGN STATE PAPERS 735; 33 MARTENS, op. cit. supra note
26 at 3.
28 "Omnis conventio intelligiturrebus sic stantibus ...is only a new expression of
the statement that treaties cannot be eternal .... A change of circumstances requires
revision or abrogation." SCE.LLE, THEoRIE JURDIQUE DE LA REvIsION DES TRATixS (Paris,
1936) 15-16. McNair, La Terminaison et la Dissolution des Trait~s; Recueil des Cours,
1928. II; 22. 467. de Taube, L'Inviolabilit6 des Traits; Recueil des Cours, 1930, 11;
32.353.
29
"It is maintained in Japan that Japan did not break the Nine-Power Treaty.
is held in Japan that under changed conditions that treaty had become obsolete."
GREW, REPORT rRom ToxEvo (1942) xx.
...It
30
So, in August, 1942, when Japan was trying to obtain from Russia cession of
the northern half of Sakhalin Island and possession "for safekeeping until the end of
the war" of the Siberian Maritime Provinces and Kamchatka Peninsula, Foreign Minister Shigenori Togo declared these demands to be wholly in keeping with the RussoJapanese neutrality treaty, since the German advance toward Stalingrad was a change
in the realities facing Russia; and "all treaties must be interpreted in keeping with
changing circumstances".
31
Besides the Covenant of the League of Nations (1920), Japan was a party to and
by her acts in China in 1931 is by most authorities held to have broken three specific
multipartite non-aggression and anti-war pacts. Four Power Treaty for the Pacific.
signed by France, Great Britain, Japan and the tlnited States at Washington, Dec, 13,
1921. Supplementary Convention signed by same four at Washington, Feb. 6, 1922;
ratifications (of both) exchanged at Washington, Aug. 17, 1923; 43 STAT. 1646, 1652;
U. S. Treaty Series #669, #670; 25 League of Nations Treaty Series, 184, 196. Nine
Power Treaty (Open Door Pact) signed by Belgium, China, France, Great Britain,
Italy, Japan, The Netherlands, Portugal, and the United States at Washington, Feb. 6,
1922; ratifications deposited by Japan and the United States, Aug. 5, 1925, 44 STAT. 2113,
U. S. Treaty Series #723, 38 League of Nations Treaty Series 278; (1937) 31 Am. J.
INT. LAw 671; (1938) 32 ibid. 314. Keliogg-Briand Treaty for the Renunciation of
19431
THE VALIDITY OF TREATIES IN JAPAN
wholly terminated by war between two or more of their signers; 32
but rather to be suspended only as to the belligerents and unaffected
as to the neutral parties with each other. 33 As one of the Allied Powers, Japan signed the treaties of peace after World War I with Germany,34 Austria,3" Bulgaria, 36 Hungary 7 and Turkey," which provided that each of the Allied or Associated Powers should notify the
respective Central Power which bipartite treaties or conventions the
Allied Power wished to revive, only those to be revived and all others
to be abrogated. As to multipartite treaties, conventions and agreements, those of an economic and technical nature39 should enter
again into force and be applied thereafter with the respective Central Power. The obligations of a member of the League of Nations
are determined by the League Covenant in the peace treaties to
which Japan was a party; and the rights and duties of a member who
accepts a mandate are described in Article 22 of the Covenant. The
obligation of a Mandatory who withdraws from the League40 has
War signed at Paris, Aug. 27, 1928; ratifications deposited by the United States, March 2,
1929, by Japan, July 24, 1929, U. S. Treaty Series #796; 89 League of Nations Treaty
Series 374; (1928) 22 Am. J. INT. LAw Supp. 171; (1932) 26 Am. J. INT. LAW 342;
(1933) 27 ibid. 100; Hyde, Legal Aspects of the Japanese Pronouncement in Relation
to China (1934) 28 ibid. 431. Cf. Schwarzenberger (1943) 37 ibid. 476, n. 66.
32
0f the four signers of the Fur Seal Convention, Great Britain and the United
States are at War with Japan, and Russia, down to September 1, 1943, is not. Signed at
Washington, July 7, 1911; ratifications exchanged at Washington, Dec. 12, 1911, 37
STAT. 1542; U. S. Treaty Series #564; 3 Treaties of the U. S. 2966; 6 Am. J. INT.LAW
Sun'p. 267. Denounced by Japan, Oct. 23, 1940; abrogation in effect Oct. 24, 1941. On
March 24, 1943, Russia signed with Japan at Kuibyshev a further extension to Dec. 31,
1943, of the convention as to Japanese fishing rights in Siberian waters, at a reported
increase in rentals of between 4 and 5 per cent. See Ireland, The North Pacific Fisheries
(1942) 36 A .J. INT. LAW 400, 406, 422.
33
HALL, NTERNATiONAL LAW (8th ed., 1924) 457; ToBIN, TzE TERMINAT N oT
MuLi, ARTiTE TRE-ATiEs (1933) 122; 1 WHEATON, op. cit. supra note 20, at 517.
34
Allied Powers with Germany, Versailles, June 28, 1919, Part X, Arts. 282-289;
Official Documents (1919) 13 Am. J. INT. LAW Supp. 151.
35
Alied Powers with Austria, Saint Germain-en-Laye, Sept. 10, 1919, Part X,
Arts. 234-241; Official Documents (1920) 14 Am. J. INT. LAW Supp. 1.
36
Allied Powers with Bulgaria, Neuilly-sur-Seine, Nov. 27, 1919, Part X, Arts. 162168. MARTENS, Nouv. REC. GiEN. DE TRArTgs, 3e Ser. XII. 323.
5T
Allied Powers with Hungary, Trianon, June 4, 1920, Part X, Arts. 217-224.
Official Documents (1921) 15 Am. J. INT. LAW Supp. 1.
3
8 France, Great Britain, Italy and Japan with Turkey, S~vres, Aug. 10, 1920,
Part X, Arts. 269-274. (1921) 15 Am. J. ITN. LAw Supp. 179. Allied Powers with Turkey, Lausanne, July 24, 1923, Arts. 99, 100. 28 League of Nations Treaty Series 12.
39 Concerning submarine cables, publication of customs tariffs, public hygiene, telegraphic service and the Universal Postal Union, with Turkey; these and many more
with the other Central Powers.
40
Covenant of the League of Nations, Art. 3. "Any Member of the League may,
CALIFORNIA LAW REVIEW
[Vol. 31
been much discussed since November 1932, but never legally determined; ' but that the theoretically correct and lawful procedure
would be for such withdrawing nation at once to resign its mandate
can hardly be doubted. Professor Sakutaro Tachi, agreeing with the
majority of Japanese jurists, declared in 1933, and was substantially
supported by Foreign Minister Koki Hirota in statements in the
House of Peers in February 1934, that there was little distinction
between C Mandates and annexation; that the Mandatory was authorized to exercise its own imperium or sovereignty over the mandated territory; and that the League had neither territorial right in
the territories nor sovereignty over the Mandatory and had no power
to deprive Mandatories of their mandates. Considering that the
Mandatory had originally in fact no recognized or lawful right whatever over the mandated territory except that bestowed by agreement
of the Allied Powers and confirmed by the League, this amounts to
saying that the power that gave exhausted itself in the giving and
had no reserve of power to take away: a curious condition not supported by the usual interpretation of constitutional law in any system.2 The Council of Ten of the Allied Powers at the Peace Conference in Paris in January 1919, decided upon, the League of Nations
Assembly on May 7, 1919, allotted, and the Council of the League
on December 17, 1920, confirmed, a C Mandate to Japan over
the former German islands in the Pacific north of the Equator,4
after two years' notice of its intention so to do, withdraw from the League, provided
that all its international obligations and all its obligations under this Covenant shall
have been fulfilled at the time of its withdrawal." Japan gave notice of her withdrawal
on March 27, 1933, effective March 26, 1935.
41
CLYDE, JAPaN's PACIC MANDATE
(1935); BRasH YEAR Boox op INTERNA-
TIONAL LAw (1935) 104; PAuwELS, THE JAPANESE MANDATE ISLANDS (Batavia, 1936);
YANAHARA, PAcIaC ISLANDS UNDER JAPANESE MANDATE (London, 1940); Williams,
Japan'sMandate in the Pacific (1933) 27 Am. J. INT.LAW 140, 428, 514, 516; (1939)
33 ibid. 347.
4
?Quomodo quid constituitur,eodem modo dissolvitur; a record by a record, writing by writing, parliament by parliament, parol by parol. JENKINS, EIGHT CENTURIES
or (ExcnEQuER) RPoRTs (1661) 74; ibid. (4th ed., London, 1885) 80. Cujus est instituere, ejus est abrogare, Discourses concerning Government, Algernon Sydney (died
1683) Sections 5, 15; 1.335, MI.67. (New York, 1805).
43
Micronesia (discovered by Magellan, Mar. 6, 1521) consists of over 1400 islands,
islets and reefs (according to the Japanese report, not varied since 1922), of which 131
are inhabited, extending some 1300 miles from 220 to 0* N. lat. and 2700 miles from
1750 to 1300 E. long. The principal groups are the Marianas (Ladrones) having 14
main islands, with headquarters on Saipan (71.4 sq. mi.); the Carolines, having 577
main islands, with headquarters for the West Carolines or Palau group, on Koror and
including Yap (83.4 sq. mi.) and for the East Carolines or Truk group, on Ponape
(144.7 sq. mi.) and Toloas (Summer) (3A sq. mi.) and the Marshals, having 32 main
1943]
THE VALIDITY OF TREATIES IN JAPAN
some of which had been under naval occupation since October 1914;
and civil administration by Japan was established in April 1922.
Japan had a member on the Permanent Mandates Commission of
the League, as set up December 1, 1920, and took part in its sessions
and activities until October 1938, when M. Sakenobe, the Japanese
member, notified the Commission that he could not take part in the
forthcoming session, and Japan told the Council of the League on
November 2, 1938, that she had decided to discontinue cooperation
with all organs of the League. From 1920 through 1937 Japan made
to the Council or to the League itself annual reports upon her mandate, which members of the Mandates Commission in November
1938, characterized as not clear, of little value and practically identical, year after year. The last printed report, for 1937, contained as
an Annex certain statistics intended as answers to "Observations"
in the Commission's last preceding report to the Council, amounting
to requests for further information on matters of public finance,
education and land tenure, which, as on previous occasions, the
Commission had made in the course of its considerations of the 1936
report in November 1937.44 It was a rule of the Commission for each
Mandatory to have an accredited representative attend the session
of the Commission at which its report was being considered, to
answer questions of the members and furnish if possible further
desired information. Japan's representative, M. U. Usami, did not
attend the October 1938 session, but the Commission decided to
consider the 1937 report notwithstanding. Little was accomplished
except disclosure of the views of some dissatisfied members of the
Commission;4 and neither report nor any representative from Japan
appeared at the June 1939 session, but toward the close of the December 1939 (and last) session, the Secretary announced that he had
had indirect word that the report for 1938 had been dispatched from
Tokyo in November 1939.46 Japan, out of the League since March
1935, thus maintained her control of the mandated islands, despite
islands, with headquarters on Jaluit; a total of 623 main islands of 830 square miles
area. The Japanese maintained ten ports of communication, for traffic with Japan and
her colonies only, of which six were at least theoretically open ports for traffic with
foreign countries.
44 League of Nations, Permanent Mandates Commission, Minutes, 33rd Session,
Nov. 8-19, 1937, pp. 119-138, 177. 1937 VI A 4; C. 551, M. 388.
45
League of Nations, Permanent Mandates Commission, Minutes, 35th Session,
Oct. 46
24-Nov. 8, 1938, pp. 15, 171-184, 186, 201, 208. 1938 VI A 2; C. 418, M. 262.
League of Nations, Permanent Mandates Commission, Minutes, 37th Session,
Dec. 12-21, 1939, pp. 11, 118, 129. 1940 VIA 1; C. 7, M. S.
CALIFORNIA LAW REVIEW
[Vol. 31
recurring charges of exploitation, exclusion of foreigners and illegal
building of fortifications, especially on Saipan, without action by
the League or any member of it, down to the outbreak of war in the
Pacific. The question of the mandate has now of course been lost in
the appeal to arms, with the strong probability that Micronesia, like
Polynesia generally and many other possessed places, will by the
treaty of peace be removed permanently from Japanese jurisdiction.
Since March 31, 1854, the United States and Japan appear to
have entered into twenty-six bipartite treaties, conventions or agreements,47 of which eleven,48 concerning extradition (two), patents,
copyright, trademarks (two), policy in the Far East, mutual interest
in China, rights in Yap and former German islands, income tax on
shipping profits and smuggling of intoxicating liquors, were at least
nominally in force on December 7, 1941. We conclude that by Japan's
own doctrine all of these have been abrogated by the war; and when
the United Nations dictate the treaty of peace, it may at their will,
as after World War I, be specified which if any bipartite and multi-
partite treaties are to be considered revived or on what subjects new
agreements are to be negotiated.
47
United States-Japan Treaties, Conventions and Agreements.
Stat. L.
Tr. Ser.
1. Mar. 31, 1854 Peace, Amity and Commerce. ............... 11:597
183
Superseded by #10.
2. June 17, 1857 Commercial and Consular ....................
11:723
184
Superseded by #3.
3. July29, 1858 Commerce and Navigation .................... 12:1051
185
Superseded by #10.
4. Jan. 28, 1864 Reduction of Import Duties .........
... 14:655
186
Superseded by #6.
5. Oct. 22, 1864 Payment of Shimonoseki .......
......
.....14:665
187
Indemnities Executed.
6. June25, 1866 Tariff of duties .......................................
188
Superseded by #10.
7. July25, 1878 Commercial ................................... 20:797
189
Superseded by #10.
8. May 17,1880 Shipwreck expenses ................................ 22:815
190
Superseded by #10, Art 11.
9. Apr. 29, 1886 Extradition ............
.
...........
24:1015
191
10. Nov. 22, 1894 Commerce and Navigation ................... 29:848
192
Superseded by #18.
11. Jan. 13, 1897 Patents, Trade Marks and Designs. .......... 29:860
193
12. Nov. 10, 1905 Copyright
......... 34:2890
450
13. May 17, 1906 Supplementary Extradition
...........
34:2951
454
14. May 5,1908 Arbitration .......................................... 35:2050
509
(To expire Aug. 24, 1913; finally, Aug. 24, 1928)
15. May 19, 1908 Trade Marks in Korea ............................
35:2041
506
16. May 19, 1908 Trade Mfarks in China ...........................
35:2044
507
17. Nov. 30, 1908 Policy in Far East, Notes .......................
5111/2
18. Feb. 21, 1911 Commerce and Navigation ................... 37:1504
558
Abrogated by U. S., Jan. 26, 1940.
19. Apr. 21, 1913 Foreign Settlements in Chosen .................
Abolished. Executed (U.S. Foreign Rel. 1914:435)
20. June28, 1913 Extension of #14 to Aug. 24, 1918.......... 38:1775
591
21. Nov. 2, 1917
Questions of Mutual Interest in China,
S
Notes
*.........'. ...............................630
22. Aug. 23, 1918 Extension of #14 to Aug. 24, 1923 ............ 40:1641
639
23. Feb. 11, 1922 Rights in Yap and other former
German Islands in the Pacific................
664
24. Aug. 23, 1923 Extension of #14 to Aug. 24, 1928....... 43:1757
683
25. Mar. 31/Juneg,1926 IncomeTax
on Shipping Profits ........................
Exec. Amt. #3
26. May 31, 1928 Smuggling of Intoxicating Liquors.......... 46:2446
807
48 Nos. 9, 11, 12, 13, 15, 16, 17, 21, 23, 25 and 26.
Tr. U.S.
1:996
1:998
1:1000
1:1010
1:1011
1:1012
1:1021
1:1024
1:1025
1:1028
1:1037
1:1037
1:1039
I:1040
1:1041
1:1043
1:1045
111:2712
ni:3086
111:2719
111:2720
111:2722
111:2723
IV:4387
IV:4389