1 It will be recalled that the International Court of Justice, in the case concerning Rights of Nationals of the United States of America in Morocco (United States v. France) rejected the contention of the United States that the unilateral MFN clause contained in the 1836 Treaty with Morocco supported the existence of comprehensive fiscal immunities. The United States contended that the MFN clauses in treaties made with countries like Morocco should be regarded as a form of drafting by reference rather than as a method for the establishment and maintenance of equal treatment without discrimination among the various countries concerned. The Court found on this point, however, that: This contention is inconsistent with the intention of the parties to the treaties now in question. This is shown both by the wording of the particular treaties and the general treaty pattern which emerges from an examination of the treaties made by Morocco… . These treaties show that the intention of the most-favored-nation clause was to establish and to maintain at all times fundamental equality without discrimination among all of the countries concerned. Thus, the Court concluded: “The contention would, therefore, run contrary to the principle of equality and it would perpetuate discrimination” (emphasis supplied). [1952] ICJ REP. 191-92; 2 Rights of Nationals of the United States of America in Morocco, ICJ Pleadings 185-87, 317-18 (1952). In the days of the Permanent Court of International Justice, the question whether a treaty containing unilateral MFN clauses could be considered consistent with the principle of the sovereign equality of states played a certain role in the conflict between China and Belgium. China notified Belgium in 1926 that it would abrogate the Sino-Belgium Treaty of 1865, which contained unilateral MFN clauses. The Belgian Government, refusing to recognize the right of China to terminate the treaty, brought the case before the Court. The Chinese Government, not agreeing to participate in the proceedings, made a statement denouncing the clauses on the ground that they “create unilateral rights and derogate from China's sovereignty; they impede the development of her international relations and hamper her political and economic life,” and in turn asked the Belgian Government to conclude a new treaty reciprocally ac cording MFN treatment. The Belgian Government ultimately withdrew its request, and the matter was hence not decided by the Court. Denunciation of the Treaty of 2 November 1865 between China and Belgium, [1929] PCIJ, ser. A, No. 18, at 5-8; ser. C, No. 16(1), at 14-16, 22, 25-36, 271-76 (1926); Endre Ustor, First Report of the Most-Favored-Nation Clause, [1969] 2 YB ILC 157, 167-68, UN Doc. A/CN.4/213 (1969).

2 Susanne Basdevant, Clause de la nation la plus favorisSe, in 3 Lapradelle-niboyet, Répertoire De Droit International 468 (1929); Charles H. Alexandrowicz, Aa Introduction to the History of the Law of Nations in the East Inddjs 140-73 (1967); id., Treaty and Diplomatic Relations between European and South Asian Powers in the Seventeenth and Eighteenth Centuries, 100 REC. DES COURS 203, 253-59, 271 (1960); Arthur Nussbaum, A Concise History of the Law of Nations 123 (rev. ed., 1954); Ustor, First Report, supra note 1, at 160-61; Shinya Murase, Treatise on the Most-Favored-Nation Clause, 72 KOKUSATHO GAIKO ZASSHI [Journal of International Law and Diplomacy] 73-82 (1974) (hereinafter cited as Murase, “Treatise“).

3 In the process of colonization of economically backward regions, two different forms of the MFN clause appeared, depending upon the situation of the region in question: If one single colonial state controlled the region, it became the object of the so-called colonial preference system, whereas when several colonial states were concurrently seeking to exploit economic interests in the region, unilateral MFN clauses were employed to assure equality among the colonizers. Murase, “Treatise” 73-74.

4 Williams, S. W., Journal of the Perry Expedition to Japan, 37 Trans, of the Asiatic Society of Japan vii, 152 (1910).Google Scholar

5 Tsiang, T. F., The Extension of Equal Commercial Privileges to Other Nations than the British after the Treaty of Nanking, 15 Chinese Social and Political Science Rev. 423 (1931)Google Scholar; Pritchard, E. H., The Origins of the Most-Favored-Nation and the Open Door Policies in China, 1 Fab Eastern Q. Rev. 168 (1942)Google Scholar; Banno, Masataka, Ahen-senso go ni okeru Saikeikokutaigu no Mondai [The Problem of Most-Favored- Nation Treatment after the Opium War], Kindai Chugoku Gaikoshi Kenkyu [Studies of Modern China's Diplomatic History] 3 (1970)Google Scholar; Sze Tsung-Yu, China and the Most-Favored-Nation Clause 30-33 (1925).

6 Foreign Office [of Japan], Treaties and Conventions Between the Empire of Japan and Other Powers 717-22 (1884) (hereinafter cited as JFO, Treaties); 16 Martens, Nouveau Recueil Général Des Traités (hereinafter cited as MARTENS, NRG) Part 1,563 (1860).

7 In 1858 when Townsend Harris negotiated the commercial treaty, he offered MFN treatment for Japanese nationals and vessels in the United States, but the proposal was declined by the Japanese delegation for the same reason. NIPPON GAIKO BUNSHO [Diplomatic Documents of Japan] (hereinafter referred to as NGB); JOYAKU KAISEI KANKEI [Treaty Revision series]; SUPP., Joyaku Kaisei Keika Gaiyo [Outline of the Treaty Revisions Process] 35 (1950).

8 5 John Bassett Moore, Digest of International Law 257-319 (1906); 5 Green Haywood Hackwohth, Digest of International Law 271-96 (1943). In the history of the MFN clause, the period between 1830 and 1860 is characterized as that of the conditional clause. L. E . Visser, , La clause de la nation la plus favorisée dans les traités de commerce, 4 Rev. De Droit International Et De Législation Comparée 66 (1902)Google Scholar; J. Ebner, La Clause De La Nation La Plus Favorisée 43-45 (1931).

9 Nussbaum, supra note 2, at 206; Richard C. Snyder, The Most-Favored-Nation Clause: An Analysis with Particular Reference to Recent Treaty Practice and Tariffs 211-22 (1948); Benjamin H. Williams, Economic Foreign Policy of the United States 266-302 (1929).

10 SNYDER, supra note 9, at 22-23. In the case concerning Rights of Nationals of the United States of America in Morocco (see, supra a. 1), the question was raised by France whether the MFN clause in question should be interpreted as conditional, since the United States in the nineteenth century was a persistent advocate of the conditional MFN clause. The United States argued in the opposite sense, asserting that the clauses in treaties made with countries like Morocco should presumably be interpreted as unconditional. The Court, however, did not refer to this point. 1 ICJ Pleadings 375-78.

11 JFO, Treaties 415-17; 44 British and Foreign State Papers (hereinafter cited asBFSP) 62 (1853-54).

12 JFO, Treaties 567; 16 MARTENS, NRG, Part 2, at 454 (1860). In this treaty the port of Nagasaki was opened for the Russians in addition to the Shimoda and Hakodate ports, which had previously been opened for the United States.

13 JFO, Treaties, 489; 16 MARTENS, NRG, Part 2, at 392 (1860). This treaty confirmed the rights and interests hitherto enjoyed by the Dutch at Deshima, Nagasaki, enlarged them in certain matters, and freed the Dutch from century-old restrictions. Articles 2 and 3 provide for unilateral consular jurisdiction for the first time in any treaty concluded by Japan. Rights conferred on the Dutch in Articles 12 and 13 regarding the leasing of ground, building and repairing houses, etc., were invoked under the MFN clause of the 1854 Treaty by Townsend Harris in his negotiation for a new treaty shortly afterwards.

14 Harris's diary dated February 26, 1857, The Complete Journal of Townsend Harris 316-17 (ed. M. E. Cosenza, 1930).

15 Id. 318.

16 Id. 319, n. 391.

17 Id. 319-20.

18 Banno, supra note 5, at 13, 24-25; Immanuel C. Y. Hsü, China's Entrance into the Family of Nations: The Diplomatic Phase, 1858-1880, at 140 (1960); SZE, supra note 5, at 36-37.

19 See infra, section III.

20 1 P. J. Treat, Diplomatic Relations Between the United States and Japan 1853-1895, at 48-63 (1932).

21 JFO, Treaties 727-51; 12 Stat. 1051, T.S. 185, 9 BEVANS 362.

22 NGB, OUTLINE 35. In one account, it is said that Harris himself later withdrew his offer of MFN treatment when Japan insisted on imposing export duties. No protest was made, however, by the Japanese negotiators, which demonstrated their conservative mentality concerning international order. Shigeru Kozai, Bakumatsu-kaikokuki ni okeru Kokusaiho no Donyu [Introduction of International Law at the Time of Opening of Japan in the Late Shogunate Period], 97 HOGAKU RONSO [Kyoto University Law Review] No. 5, 33-36 (1975).

23 JFO, Treaties 512-28; E. G. Lagemans, Recueil Des Traites Et Conventions Conclus Par Le Royaume Des Pays-Bas 31 (1866); MFN clauses in Art. 3 for import duties and Art. 9 for any concessions.

24 JFO, Treaties 589-614; Russia, Ministry for Foreign Affairs, 1 Sbornik Dieistvuiushchikh Traktatov 372 (1899).

25 JFO, Treaties 418-41; 48 BFSP 28 (1857-58). Article 23 provides: It is hereby expressly stipulated that the British Government and its subjects will be allowed free and equal participation in all privileges, immunities, and advantages, that may have been, or may be hereafter, granted by His Majesty the Tycoon of Japan, to the Government or Subjects of any other nation.

26 JFO, Treaties 291-315; 16 MARTENS, NRG, Part 2, at 439 (1860); MFN clause in Art. 19.

27 TREAT, supra note 20, at 77-78.

28 JFO, Treaties 321; 12 Edward Hertslet, A Complete Collection of Treaties and Conventions 600 (1827-1925).

29 NGB, OUTLINE 41.

30 The countries are: Portugal (Aug. 3, 1870, 17 MARTENS, NRG, Part 2, at 21 (1892)); Prussia (Jan. 24, 1861, JFO, Treaties, 367); Switzerland (Feb. 6, 1864, 17 MARTENS, NRG, Part 2, at 42); Belgium (Aug. 1, 1866, id. at 51); Italy (Aug. 25, 1866, id. at 61); Denmark (Jan. 12, 1867; 3 DANKE TRAKTATER 138 (1863-79)).

31 Sweden-Norway (Nov. 11, 1868. 12 SVERGES TBAKTATEH 136 (1868-77)); Spain Nov. 12, 1868, 17 MARTENS, NRG, Part 2, at 89 (1892)); North German Confederation (Feb. 20, 1869, 19 MARTENS, NRG, Part 2, at 435 (1894)); Austria-Hungary (Oct. 18, 1869, 2 MARTENS, NRG, Part 2, at 418 (1878)).

32 NGB, OUTLINE 87. Because of the detailed stipulations, the Austro-Hungarian Treaty has 24 articles whereas the U.S. Treaty of 1858 has only 14 articles. Some of the clarified or enlarged points are: (1) enlargement of the free zones in Tokyo, Nagasaki, etc.; (2) refund of the export duties paid at one open port if the goods arrive at another open port within six months; (3) permission for foreign ships to transport Japanese goods between the open ports (cabotage); (4) establishment of all regulations concerning trade, except those concerning smuggling, through consultations with the Treaty Powers.

33 NGB, OUTLINE 96.

34 For details of Iwakura Mission, see 1 NGB, TREATY REVISION 37-323.

35 At the time of departure from Japan, the capacity of the mission was limited to exchanging views concerning the revision of treaties and securing a draft, if possible, which would be the basis for further study and negotiation to be held after the return of the mission to Tokyo. However, the U.S. Government wanted to conclude a revised treaty before the end of the Grant Administration in March 1, 1873, since a mere draft of a treaty would become meaningless and without binding force upon the succeeding Administration.

36 TREAT, supra note 20, at 432.

37 Id. 433-34.

38 NGB, OUTLINE 110-12; TREAT, supra note 20, at 442-43.

39 Murase, “Treatise” 67-73. It might be intended in the articles of the Japanese draft that the stipulation of Article II had the significance of the “covering clause” by which all the other MFN clauses in the simple form were to be interpreted as “conditional.” This was the practice at least of the United States in similar treaty stipulations. See J. Q. Adams, December 23, 1817 and June 15, 1821, quoted in MOORE, supra note 8, at 258-61, 272-77; WILLIAMS, supra note 9, at 292.

40 NGB, OUTLINE 112-15.

41 Id. 118.

42 1 NGB, TREATY REVISION 172, 196; Jumpei Shinobu, Vicissitudes of International Law in the Modem History of Japan, 50 KOKUSAIHO GAIKO ZASSHI [The Journal of International Law and Diplomacy] 16-17 (1951).

43 Yoshida Shoin, Gokuze-cho [Notes from Jail] (letter from Shoin to his elder brother, Sugi Umetaro, April 24, 1855) in 8 Yoshida Shoin Zenshu [Complete Collection of the Works of Yoshida Shoin] 423 (1939).

44 JFO, Treaties 171-77; 3 MARTENS, NRG, Part 2, at 511 (1878-79).

45 Ho Takushu, Relations Between Japan, Korea and China in the Late 19th Centory 124 (1969).

46 JFO, Treaties 200-01 and 235-47; 3 MARTENS, NRG, Part 2, 514 (1878-79).

47 Banno, supra note 5, at 243-44.

48 CH'OU-PAN I-WU SHIH-MO [A Complete Account of the Management of Barbarian Affairs], T'ung-chih period, 9-12.

49 NGB 3 (Jan.-Dec, 3rd Year of Meiji, 1870) 178-251; 4 (Jan.-Dec, 4th Year of Meiji, 1871) 159-266.

50 82 CH'OU-PAN I-WU SHIH-MO, 1-6, 29-31; Banno, supra note 5, at 246.

51 This treaty provided reciprocally for conventional tariff and consular jurisdiction, so that both parties agreed, peculiarly, to limitation of each other's sovereignty on an equal basis. JFO, Treaties 77-85; 3 MARTENS, NRG, Part 2, at 502 (1878-79).

52 1 GATMUSHO [Japanese Foreign Office], Nraon Gatko Nempyo Narabini Shuyo Bunsho [The Chronological Table of Japanese Foreign Policy and Principal Documents] 1840-1945, at 81-83 (1965).

53 Inouye Kowashi, who participated in the negotiation with Minister Shishido, wrote in his memorandum to Foreign Minister Inouye that the absence of a MFN clause in the 1871 Treaty had kept Japanese merchants from obtaining access to China's interior trade, a defect which he considered harmful not only to Japan's prestige but also to its actual commercial activities in China. He pointed out, for instance, that Japanese goods were normally subject to much higher tariffs and internal taxes than were the commodities of the Western nations. He continued his discussion as follows: … Under the present system, it is unavoidable that our merchants remain placed in a lower position than those of the Western countries, without being able to compete with them on equal terms in the Chinese market. The result of this obviously is the grave loss of wealth for our nation. Generally, the 1871 Treaty was based upon the principle of material reciprocity … and intentionally avoided inclusion of the clause of ‘ extending favors,” which resulted in grave disadvantages to our nation. Unless we get the principle of reciprocity in the above Treaty completely changed to the principle of “extending favors,” we will remain under the present disadvantageous position and we will receive no additional benefits that may in the future be granted by China to other nations… . Therefore, the new [draft] Supplementary Treaty containing an article providing for “extending favors” will change completely the principle of the 1871 Treaty, enabling us to be on the same footing as other nations. It will give us the advantage of interior trade, and, as a result, we will reap tremendous benefit forever in the future.

54 Foreign Ministry of Japan, Treaties Bureau, Nisshikannarabini Shina Ni Kansuru Nippon Oyobi Takoku-Kan No Joyaku [Treaties between Japan and China and also Treaties between Japan and Foreign Countries concerning China] 16-22 (1923) (hereinafter cited as TREATIES Bureau, Japanese-Chinese Treaties); 21 MARTENS, NRG, Part 2, at 642 (1897).

55 Draft Arts. 34, 35, and 36, etc. Many of these articles were drafted after the model of the 1858 Sino-British Treaty. “Concerning the Conclusion of a Treaty of Commerce and Navigation between Japan and China,” 28 NGB 200-09.

56 See, for example, Draft Arts. 34, 35, 36, id. 230-42.

57 Acting Foreign Minister Saionji's directive to Hayashi, Minister in Peking. Saionji wrote, in passing, “The Japanese Government [is] naturally anxious to secure from China as many trading facilities and privileges as possible, but under no circumstances will they … be placed in any respect … in a more disadvantageous position than European Powers.” Id. 260-61; “Record of the Negotiation for the Treaty of Commerce,” Dec. 29, 1885, at the Foreign Ministry in Peking, id. 263-65.

58 TREATIES BUREAU, JAPANESE-CHINESE TREATIES 49-59. Similar provisions regarding unilateral MFN treatment are found in Article 3 (Japanese Consular officers), Article 4 (trade and industries, etc. by Japanese in China), Article 9 (payment of import and export duties by Japanese), Article 15 (tonnage dues for Japanese vessels), etc.

59 Id. 78-83. As for the Chinese, it was only stipulated that “the Japanese Government will do its utmost to secure for Chinese Officers and Subjects resident in Japan the most favorable treatment compatible with the laws and regulations of the Empire.” Obviously this stipulation was inserted only to save the face of the Chinese negotiator and in no way implied a MFN obligation on the part of Japan.

60 It should also be noted that the Treaty of Commerce and Navigation concluded between Siam and Japan in 1898 was similar to the above Chinese Treaty. It unilaterally granted to Japan consular jurisdiction and conventional tariffs on the same footing as the Western Powers in Siam although, in form, the stipulations of the Siamese Treaty appeared to be reciprocal. See NGB, OUTLINE 532-38.

61 After the return of the Iwakura mission, Foreign Minister Terashima (1873-1879) undertook negotiations in Tokyo with the representatives of the Treaty Powers, increasing his pressure for acquisition of tariff autonomy. He succeeded in concluding a new treaty with the United States in 1878, which was ratified the next year. This treaty, however, never came into operation because Article 10 provided that it should come into effect only when the other Treaty Powers concluded similar treaties with Japan. NGB, OUTLINE 151-59.

62 Id. 227-303.

63 NGB, Treaty Revision, Proceedings of the Treaty Revision Conferences 209-11, 214-15. The draft presented by Inouye on June 15, 1882 read as follows: Privileges, concessions and favors in matters of commerce and navigation which have presently been granted or shall be granted in future by one of the contracting parties to the nationals of the other states shall be accorded to the nationals of the other contracting party in the same situations and circumstances. If the above privileges, concessions and favors have been accorded to other states without compensation, they shall be extended similarly without compensation; if they have been accorded under special agreements, they shall be extended on allowing the compensations of equivalent value determined by mutual negotiations. Id. 214.

64 2 TREAT, supra note 20, at 187-88.

65 NGB, Treaty Revision, Proceedings of the Treaty Revision Conferences 480-82. Speech by Mr. Hubbard, Minister of the United States, on Oct. 20, 1886 at the 8th Session of the Conference.

66 TREAT, supra note 20, at 250-51.

67 Id. 267-68; NGB, OUTLINE 234. Okuma believed that the best way to attain the end of treaty revision was to let the foreigners themselves see the wisdom of accepting a new treaty by impressing them with the inconvenience of the existing treaties. He declined, for instance, to protect foreign trademarks and copyrights on the ground that Japan had no treaties on those matters. He also subjected to the strictest regulations all foreigners residing, travelling, or owning property outside the Treaty Ports. See ROY HIDEMICHI AKAGI, JAPAN's FOREIGN RELATIONS 1542-1936: A SHORT HISTORY 100 (1936). Okuma also decided to negotiate with the seven major countries, namely, the United States, Great Britain, France, Germany, Russia, Italy, and Austria, with the belief that smaller Treaty Powers would follow the big seven.

68 Okuma's view of the conditional MFN clause was slightly different from the original conditional doctrine created in the United States. It was originally developed as a legal technique for tariff bargaining by which a tariff reduction given by the granting state to a third state in exchange for certain tariff reductions on commodities of the former state could be extended to the beneficiary state only upon equivalent or similar compensation in favor of the granting state. Okuma manipulated this doctrine (although it is said that the idea was elaborated by his long-time collaborator, Azusa Ono) as a means of political maneuvering in the course of treaty revision by making clear that his conditional interpretation would be applied only with regard to the opening of Japan's interior to foreigners, which would be granted on condition of their submission to Japan's jurisdiction. Okuma did not intend to apply the conditional theory to tariff bargaining because, if so applied, it was likely to cause many complicated problems. “Letter to Ministers in England, France, Russia, Italy and Austria,” dated Jan. 7, 1889, concerning the opening of negotiations for the conclusion of new treaties. 3 NGB, TREATY REVISION 11-14.

69 NGB, OUTLINE 235. “Concerning Dr. Roesler's View on the Interpretation of the Most-Favored-Nation Clause,” 3 NGB, Treaty Revision 901-05. Okuma also relied on the works of F. de Martens and Calvo in this respect. Cf. 2 F. De Martens, Traité De Droit International 321-22 (1886); 1 Carlos Calvo, Droit International Théorique Et Pratique 699-700 (2d ed. 1870).

70 Article 4 of the Japanese-Mexican Treaty of 1888 provides: His Majesty the Emperor of Japan, in consideration of the several stipulations contained in this Treaty, hereby grants to Mexican citizens resorting to Japan, apart from and in addition to the privileges extended to such citizens by the last preceding Article of this Treaty [MFN treatment with respect to trade, navigation, travel, residence and engaging in business], the privileges of coming, remaining and residing in all parts of His Territories and Possessions; of there trading by wholesale or retail in all kinds of products, manufactures and merchandise of lawful commerce; and finally, of there engaging in and pursuing all other lawful occupations, (emphasis supplied)

71 The British note of July 29, 1889 and the French note of Aug. 12, 1889, 3 NGB, TREATY REVISION 905, 907. The British Minister in Tokyo was instructed by his Foreign Minister that: … [i]f it should become necessary for you to apply to the Japanese Government for passports to enable British subjects to travel in the interior of the country, you should accompany your application with a statement to the effect that under Article 23 of the Treaty of 1858 H. M.'s Government consider themselves entitled to claim free and equal participation in all privileges, immunities, and advantages granted to the subjects of Mexico by the Treaty between that Republic and Japan which has just been published, including the rights of travelling, residence, & etc., granted in Article 4, and that your application is made without prejudice to that claim. You should, however, make it clear that no change of attitude, as regards the desire of H. M.'s Government to conclude a Treaty saitsfactory to both parties, is implied by this reservation of rights.

72 Id. 906-07.

73 Id. 54.

74 Id. 420. It may be necessary to state here that, although Okuma had advocated the conditional theory of MFN clause, unconditional clauses were acceptable to him for insertion in the new treaties to be concluded on an equal basis, since the objective of his conditional theory was limited to treaty revision as mentioned in note 68 supra.

75 3 NGB, Treaty Revision 138.

76 Id. 469-625.

77 Aoki notified the Treaty Powers that the maintenance of consular jursidiction and the appointment of foreign judges to the Japanese bench were in violation of the newly established Constitution and that, unless those obstacles were removed, the American, German, and Russian Treaties already signed by Okuma could never be ratified. Aoki proposed the unconditional abolition of consular jurisdiction and the opening of the interior with restrictions on the rights of aliens in certain economic and political matters. The previous Foreign Ministers, Inouye and Okuma, had placed no limitations on the opening of the interior. Adherence to the principle of sovereign equality was the guiding principle of Aoki's program (NGB, OUTLINE 303-27). Aoki was later appointed plenipotentiary for the successful treaty revision negotiation with Great Britain in 1894 when Foreign Minister Mutsu assumed office.

78 Id. 105-06.

79 4 NGB, Treaty Revision 1, 221-39; 87 BFSP 32 (1894-95).

80 4 NGB, Treaty Revision 466, 594, 255, 534, 653, 818, 29 Stat. 848, T.S. 192, 9 Bevans 387; 22 Martens, NRG, Part 2, at 632 (1897); 33 id. 269 (1898); 33 id. 54 (1898); 24 id. 40 (1900); 33 id. 189 (1906). Japan compromised with four states, namely, Great Britain, the United States, France, and Germany, unilaterally conceding a partial conventional tariff for 59 items. The United States, however, withdrew from its position of tariff bargaining. Nevertheless, the conventional tariff rates were extended to all the Treaty Powers under the MFN clauses, and thus it was not until 1911 that complete tariff autonomy was restored to Japan.

81 George G. Wilson, The Hague Arbitration Cases 40-63 (1915).

82 Government of Japan, The Case Presented by the Imperial Japanese Government to the Tribunal of Arbitration 88-90, 268 (1902).

83 Id. 93-94.

84 Article 1 of the British Treaty provides: They [subjects of each of the two H. C. Parties] shall not be compelled … to pay any charge, or taxes other or higher than those that are, or may be, paid by native subjects, or subjects or citizens of the most favored nation. 4 NGB, Treaty Revision 222. The German and French Treaties also had the same provision. Id. 341, 790.

85 Document Presented to the Permanent Court of Arbitration, Counter-Mémotre of Germany, France and Great Britain C. 1902-1905, at 5.

86 Document Presented to the Permanent Court of Arbitration, Statement of Objections of Japan 8-9.

87 WILSON, supra note 81, at 61.

88 Id. This decision was given by the majority of the Court which consisted of Gregers Gram, the umpire, and Louis Renault, judge named by Germany, France, and Great Britain. Ichiro Motono, judge named by Japan, placed on record his absolute disagreement.

89 Manley O. Hudson, The Liquidation of Perpetual Leases in Japan, 32 AJIL 113-16 (1938).

90 HsÜ, supra note 18, at 145.

91 In 1885, Fukuzawa Yukichi wrote a famous essay entitled, Datsua-ton [Treatise on the Extrication from Asia], in which he presented his thesis that the mentality of the Japanese nation “has already extricated itself from the old tradition of Asia and embraced the civilization of the West.” “Since our nation cannot wait for the neighboring nations to grow civilized and to work together for the rise of Asia,” he reasoned, “we should depart from this line and throw in our lot with the civilized nations of the West.” Thus he advocated that Japan should take a course of “Datsua-Nyuou” or “Extrication from Asia and Assimilation into Europe.” Regarding Asian countries, Fukuzawa insisted that “we should treat them as the Westerners treat them,” and he urged against cooperation with China and Korea, as they were “bad friends” for Japan. See, Fukuzawa Yukichi, Datsua-ron, JIJI SHIMPO, March 16, 1885.