File E. c. IX

 8 January 1927

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

 

Denunciation of the Treaty of November 2nd, 1865, between China and Belgium

 

Belgium v. China

Orders

 
BEFORE: President: Huber
    
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1927.01.08_belgium_china.htm
  
Citation: Denunciation of Treaty of November 2nd, 1865, between China and Belgium (Belg. v. China), 1927 P.C.I.J. (ser. A) No. 8 (Order of Jan. 08)
Publication: Publications of the Permanent Court of International Justice Series A – No. 8; Collection of Judgments. A.W. Sijthoff’s Publishing Company, Leyden, 1927.
  
 

  

[p6] ORDER

Made on January 8th, 1927.

[1] The President of the Permanent court of international justice,

[2] Having regard to Articles 41 and 48 of the Court's Statute;

[3] Having regard to Article 57 of the Rules of Court;

[4] Having regard to the Application instituting proceedings dated November 25th, 1926, and filed with the Registry of the Court through the intermediary of the Belgian Charge d'affaires ad interim at The Hague on November 26th, 1926;

[5] Having regard to the Case filed by the Belgian Government on January 3rd, 1927;
Having regard to Order No. 433 addressed on November 6th, 1926, by the President of the Republic of China to the Chinese Minister for Foreign Affairs, an English translation of which was filed with the Registry by the Belgian Government on December 14th, 1926;

[6] Having regard to the Treaty of friendship, commerce and navigation concluded at Peking on November 2nd, 1865, between Belgium and China, a copy of which was attached to the said Case filed by the Belgian Government;

[7] Having regard to the Report of the Commission on Extra¬territoriality in China constituted in pursuance to Resolution V adopted at the Conference of Washington on the Limitation of Armaments, December 10th, 1921, of which Report a copy was likewise attached to the Case filed by the Belgian Government;

[8] Whereas the Chinese Government has declared the afore¬mentioned Treaty to have ceased to be effective, whilst the Belgian Government, on the other hand, maintains that it is still in force, and as, consequently, the situation secured by the Treaty to Chinese nationals resident in Belgium has undergone no modification, whilst the corresponding situation of Belgian nationals in China has been altered in virtue of the abovementioned Presiden¬tial Order;

[9] Whereas the object of the measures of interim protection con¬templated by the Statute of the Court is to preserve the respective rights of the Parties, pending the decision of the Court; and as, in the present case, the rights in question are those reserved to [p7] Belgium and to Belgian nationals in China, by the Treaty of Nov¬ember 2nd, 1865, in addition to those resulting from non-treaty law;

[10] Whereas, on the other hand, Belgium and China have signed and ratified the Protocol of signature of December 16th, 1920, relating to the adoption of the Statute of the Court;
as these two Powers have recognized as compulsory the Court's jurisdiction, in accordance with Article 36, paragraph 2, of the Court's Statute; and as sub-paragraph (d) of this paragraph covers legal disputes concerning the nature or extent of the reparation to be made for the breach of an international obligation;
as, however, in the event of an infraction — a contingency rendered possible by the situation resulting from the publication of the aforesaid Chinese Presidential Order — of certain of the rights, which Belgium or her nationals would possess in China, if the Treaty of November 2nd, 1865, were recognized as still operative, such infraction could not be made good simply by the payment of an indemnity or by compensation or restitution in some other material form;

[11] Whereas, this being so, the object of the measures of interim protection to be indicated in the present case must be to prevent any rights of this nature from being prejudiced;

[12] Indicates provisionally, pending the final decision of the Court in the case submitted by the Application of November 25th, 1926 — by which decision the Court will either declare itself to have no jurisdiction or give judgment on the merits — and subject to any modification which it may subsequently be considered desirable to make in the present Order, that the protection which the abovementioned Presidential Order of November 6th, 1926, grants, in accordance with the rules of international law and usage, to the Belgian Legation and consulates and to Belgian nationals, property and ships in China should include the following:

[13] — As regards nationals:
(1) a right on the part of any Belgian who may have lost his passport or have committed some offence against the law, to be conducted in safety to the nearest Belgian consulate (cf. Treaty of November 2nd, 1865, Article 10);
(2) effective protection of Belgian missionaries who have peace¬ fully proceeded to the interior of the country; and, in general, [p8] protection of Belgians against any insult or violence (cf. Treaty of November 2nd, 1865, Articles 15 and 17);
(3) a right on the part of any Belgian who may commit a crime against a Chinese or any other offence against the law, not to be arrested except through a consul, nor to be subjected, as regards the execution of any penalty involving personal violence or duress, to any except the regular action of Belgian law (cf. Treaty of November 2nd, 1865, Article 19);

[14] II. — As regards property and shipping:
protection against any sequestration or seizure not in accordance with the generally accepted principles of international law and against any destruction other than accidental (cf. Treaty of November 2nd, 1865, Article 14);

[15] III. — As regards judicial safeguards:
a right on the part of physical and moral persons of Belgian nationality to have any legal proceedings to which they may be parties before Chinese authorities heard by the modern courts, in conformity with the modern codes of Law (the courts and codes mentioned by the Chinese delegate in his statement of November 25th, 1921, before the Commission for the Pacific and Far East of the Washington Conference and referred to in the abovementioned Report of the Commission on Extra-territoriality in China), with right of appeal, in accordance with the regular legal procedure and with the assistance of advocates and interpreters chosen by them and duly approved by the said courts.

[16] Done at The Hague, this eighth day of January, nineteen hundred and twenty-seven, in four copies, one of which shall be deposited in the archives of the Court and the others transmitted to the Government of China, the Government of Belgium and the Council of the League of Nations respectively.

(Signed) Max Huber,
President.
(Signed) A. Hammarskjold,
Registrar.


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