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engagement made by the Chinese Government during the Sino-Japanese Conference held at Peking in November-December 1905, which was to the following effect:
"The Chinese Government engages, for the purpose of protecting the interests of the South Manchuria Railway, not to construct, prior to the recovery by it of the said railway, any main line in the neighbourhood of and parallel to that railway, or any branch line which might be prejudicial to the interests of the above-mentioned railway."
This dispute over the question of so-called "parallel railways" in Manchuria is of long-standing importance. The issue first arose in 1907–08, when the Japanese Government, asserting this claim of right, presented the Chinese from constructing, under contract with a British firm, the Hsinmintun-Fakumen Railway. Since 1924, when the Chinese in Manchuria undertook with renewed vigour to develop their own railways independent of Japanese financial interest, the Japanese Government has protested against the construction by the Chinese of the Tahushan-Tungliao and the Kirin-Hailungcheng lines, although both these lines were completed and opened to traffic in spite of Japanese protests.
The question as to the existence of a "treaty right" or a "secret protocol".Prior to the arrival of the Commission in the Far East, there had been much doubt as to the actual existence of any such engagement as was claimed by Japan. In view of the longstanding importance of this dispute, the Commission took special pains to obtain information on the essential facts. In Tokyo, Nanking and Peiping, all the relevant documents were examined, and we are now able to state that the alleged engagement of the Chinese plenipotentiaries of the Peking Conference of November-December 1905 regarding so-called "parallel railways" is not contained in any formal treaty; that the alleged engagement in question is to be found in the minutes of the eleventh day of the Peking Conference, December 4th, 1905. We have obtained agreement from the Japanese and Chinese Assessors that no other document containing such alleged engagement exists beyond this entry in the minutes of the Peking Conference.
The real question at issue.The real question at issue, therefore, is not whether there exists a "treaty right" whereby Japan is entitled to claim that certain railways in Manchuria have been constructed by the Chinese in violation of such an engagement, but whether this entry in the minutes of the Peking Conference of 1905, whether called a "protocol" or not, is a binding commitment on the part of China, having the force of a formal agreement and without limitations as to the period of circumstances of its application.
The determination of the question whether this entry into the minutes of the Peking Conference constituted, from an international legal point of view, a binding agreement, and whether, if so, there is but one interpretation which may reasonably be placed upon it, was properly a matter for judgment by an impartial judicial tribunal.
the Chinese and Japanese official translations of this entry into the minutes of the Conference leave no doubt that the disputed passage concerning "parallel railways" is a declaration or statement of intention on the part of the Chinese plenipotentiaries.
That there was a statement of intention has not been disputed by the Chinese, but there has, throughout the controversy, been a difference of opinion between the two parties as to the nature of the intention expressed. Japan has claimed that the words employed preclude China from building or allowing to be built any railway which, in the opinion of the South Manchuria Railway Company, was in competition with its system. The Chinese, on the other hand, contend that the only commitment involved in the disputed passage was a statement of intention not to build lines with the deliberate object of unduly impairing the commercial usefulness and value of the South Manchuria Railway. During the exchange of notes of 1907