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The Status of Outer Mongolia in International Law

Published online by Cambridge University Press:  12 April 2017

Louis Nemzer
Louis Nemzer*
Affiliation:
University of Chicago
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Extract

The steady decline during the last half-century in the degree of effective control wielded by China over the borderlands of her great empire has been accompanied by widespread confusion concerning the international position of these areas. Obscured through the establishment by foreign nations of numerous special concessions, spheres of influence, and protectorates, the exact legal relationship existing between the central authority of China and the governors of these territories has been a cause for frequent and vigorous debate. Those groups which have sought to advance the claims of their governments to wider concessions in these regions, and those publicists who have made unsubstantiated statements about the imperialistic aims of various states in these areas, have profited by this confusion. This condition of uncertainty regarding legal status, which exists in some degree with regard to each of the four Chinese dependencies, is markedly present in the case of Outer Mongolia, a region of growing importance in Far Eastern affairs.

Type
Research Article
Information
American Journal of International Law , Volume 33 , Issue 3 , July 1939 , pp. 452 - 464
Copyright
Copyright © American Society of International Law 1939

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References

1 For examples, see the following: Oppenheim, L., in International Law (McNair, A. D., ed., London, 1928), p. 233nGoogle Scholar; British Foreign Minister Anthony Eden’s answer to a parliamentary question, as reported by The Times, London, Feb. 13,1936, p. 6; Roxby, P. M., “Mongolia,” Encyclopaedia Britannica (14th ed., London, 1929), Vol. 15, p. 710 Google Scholar; Sokolsky, G. E., in The Tinder Box of Asia (New York, 1932), p. 181 Google Scholar.

2 See the Sino-Russian Treaty of 1881, British Parliamentary Command Papers, 3134, China No. I (1882), pp. 13-15.

3 De Siebert, B. and Schreiner, G. A., in Entente Diplomacy and the World (New York, 1921)Google Scholar, Chap. I; Price, E. B., in The Russo-Japanese Treaties of 1907-1916 concerning Manchuria and Mongolia (Baltimore, 1933 Google Scholar).

4 Kallinikov, A., “The Native Revolutionary Movement in Pre-Autonomous Mongolia,” Revolyutsionnii Vostok [The Revolutionary East], 1934, No. 5, pp. 137–156 Google Scholar; Shordzholov, S., “The Autonomous Movement in Mongolia and Tsarist Russia,” Novyi Vostok [The New East], 1926, No. 13 (4), pp. 351–363 Google Scholar.

5 See the introductory article by Popov, A., “Tsarist Russia and Mongolia,” Krasny Arkhiv [The Red Archives], 1929, No. 37, pp. 1–16 Google Scholar.

6 MacMurray, J. V. A., Treaties and Agreements with and Concerning China, 1894-1919 (New York, 1921), Vol. I, pp. 992–996, 1066-1067, 1178-1179, 1179-1189, 1239-1244, 1259-1265Google Scholar.

7 “Relations Between China, Russia and Mongolia,” this Journal, Vol. 10 (1916), p. 807 Google Scholar. Space prohibits a full examination of the legal position of Outer Mongolia, though the writer believes that Williams’ theory is essentially correct. That the extent of Russia’s rights is not exaggerated can be shown by the fact that virtually all students of the situation agree that the Tsarist Government had at least the rights of a joint protector in Mongolian affairs. See a semi-official Chinese view (Tennyson Tan, Political Status of Mongolia, Shanghai, 1932, p. 56); a recent official Mongolian view ( Doxom, , “Historical Lessons of 15 Years of Revolution,” Tikhi Okean [Pacific Ocean], 1936, No. 39, p. 69)Google Scholar; the view of the legal adviser of the Tsarist Foreign Ministry in 1915 ( Nolde, Baron, “The International Position of Mongolia,” Pravo [Law], 1915 Google Scholar, as cited by Makarov, A. N., “Die Rechstellung der Ausseren Mongolei in ihrer historischen Entwicklung,” Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. VII, No. 2, p. 331)Google Scholar, who points to the position of the Ionian Islands after the Russo-Turkish treaty of 1800, and that of the Danubian principalities between the Treaty of Adrianople and the Treaty of Paris of 1856, as analogous; the summary of a Soviet scholar ( Grimm, E. D., in Collection of Treaties and other Documents Concerning the History of International Relations in the Far East, Moscow, 1927 Google Scholar, introduction); and the observation of an authority on Mongolian law ( Riasonovsky, A., in The Customary Law of the Mongols, Harbin, 1924, p. 138 Google Scholar).

8 Millard’s Review of the Far East, Shanghai, Vol. XI, No. 1, pp. 12–13 Google Scholar. It should be noted that even had the petition any relevance in international law, its validity might be challenged because of the coercive character of the methods by which it was obtained. For an account of the methods used by the Chinese general who secured the signature of the “petition,” see Foreign Relations of the United States, 1919, Vol. I, pp. 400–401 Google Scholar. It is generally assumed that threats of violence to the persons of the negotiators invalidate the resultant treaty (see the draft convention of the Harvard Research, Law of Treaties, this Journal, Supp., Vol. 29 (1935), pp. 1016, 1020, 1024)Google Scholar.

9 Millard’s Review of the Far East, ibid. “

10 The Tsarist representative protested when Chinese troops were sent into Mongolia in numbers which were in violation to the Kiakhta agreement (The Times, London, Nov. 10, 1919, p. 13), and he did so again at this time (ibid., July 23, 1919, p. 11; Pollard, Robert T., in China’s Foreign Relations, New York, 1933, pp. 120–121 Google Scholar). The Kolchak Government also protested at this time and informed Chinese representatives that Russia reserved full liberty of action for the protection of her interests in the future. ( Far Eastern Political Science Review, Vol. II, No. 2, pp. 140–141.)Google Scholar

11 China Year Book, 1924, p. 580. The Mongols were referred to Chang Tsolin of Man churia, who, according to rumor, was negotiating for assistance with Ungern himself. See Norton, Henry K., in The Far Eastern Republic of Siberia (London, 1927), pp. 261–262 Google Scholar.

12 Stalin, Joseph, Marxism and the National and Colonial Question (Leningrad, 1935), pp. 74–77 Google Scholar.

13 Fischer, Louis, The Soviets in World Affaira (London, 1930), p. 463 Google Scholar.

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15 Viktorov, and Khalkhin, N., Mongol’skaya Narodnaya Respublika [The Mongolian People’s Republic] (Moscow, 1936), p. 27 Google Scholar. Walter, Rudolf, a Nazi writer, asserts that the original group was a cell of the Third (Communist) International, but cites no evidence. “Die Aussenmongolei,” Europäische Revue, Vol. XIX, No. 1, p. 22 Google Scholar.

16 Betts, T. J., “The Strategy of Another Russo-Japanese War,” Foreign Affairs, Vol. 12, No. 4, pp. 592–603 CrossRefGoogle Scholar. For the Russian expression of this view, see Izvestiya, Moscow, April 8, 1936.

17 The Special Delegation of the Far Eastern Republic to the Washington Disarmament Conference, “Letters Captured from Baron Ungern in Mongolia” (Washington, 1921 Google Scholar).

18 There stems to be some basis for this Russian claim. See the China Year Book, 1924, p. 576.

19 Pravda, Petrograd, Nov. 14, 1920.

20 Norton, op. cit., p. 332.

21 Izvestiya, Moscow, Jan. 5, 1921.

22 The Soviet writers, Viktorov and Khalkhin (op. cit., p. 17), claim that the decision to enter Mongolia came as the result of a suggestion from the Mongolian Provisional Govern ment.

23 Izvestiya, Moscow, Aug. 10, 1921; Pasvolsky, Leo, Russia in the Far East (New York, 1922), pp. 176–177 Google Scholar.

24 Izvestiya, Moscow, Aug. 10, 1921; Pasvolsky, op. cit., pp. 177-179.

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26 Graham, M. W. Jr., “A Decade of Sino-Russian Diplomacy,” American Political Science Review, Vol. XXII, No. 1, pp. 45–69 Google Scholar.

27 For a description of the confusion in the Soviet Foreign Office of this period by a Soviet student of international law, see E. Korovin, A., Das Völkerrecht der Übergangzeit (Berlin, 1929), pp. 1–2 Google Scholar.

28 British Foreign and State Papers, Vol. 192 (1930), Pt. I, pp. 854–857 Google Scholar.

29 Taracouzio, T. A., in The Soviet Union and International Law (New York, 1935), pp. 253–256 Google Scholar. A Chinese magazine notes that the Bolsheviks defended their agreement by pointing out that since China had refused to recognize Soviet Russia, the Mongolian Government was the only authority with which the Bolsheviks could deal in settling Russo-Mongolian questions. “The Mongolian Question,” Sh’en Pao, Peking, May 2, 1922 Google ScholarPubMed, cited by Chai, Huan, “International Status of Mongolia” (Thesis, M.A., University of Chicago, 1926), p. 35 Google Scholar.

30 Taracouzio, op. cit., p. 54.

31 The terminology used may permit some doubt as to the exact meaning of these articles. Interesting speculation arises as to the reasons for the distinction made between “the sole legal government” of Mongolia and “the sole legal authority” of Russia.

32 It is noteworthy that this treaty and one with Czechoslovakia were the only two negotiated by the R.S.F.S.R. which were not superseded by treaties negotiated by the U.S.S.R. after the latter was created. Taracouzio, op. cit., pp. 287-298.

33 China Year Book, 1924, p. 860. Korostovetz, a Tsarist diplomat who had negotiated many of the early Russo-Mongolian agreements, declares that in regard to Outer Mongolia the Soviets at this time wanted only the resumption of the situation which had existed under the Kiakhta agreement. (Korostovetz, op. cit., p. 320.)

34 China Year Book, 1924, p. 863. It might be pointed out that Sun Yatsen always refused to consider proposals for separation of Outer Mongolia from China, although he later entered into close relations with Soviet Russia and professed strong belief in the right of self-determination of peoples. Shu-Chin Tsui, “The Influence of the Canton-Moscow Entente upon Sun Yat-een’s Political Philosophy: 1. The Principle of Nationalism,” Chinese Social and Political Science Review, Vol. 18, No. 1, p. 128; Linebarger, P., in The Political Doctrines of Sun Yat-sen (Baltimore, 1937), p. 87 Google Scholar.

35 Fischer, op. cit., p. 544. The Soviets had publicly encouraged a Sino-Mongolian adjustment of their mutual problems for some time. See Chicherin’s note to the Outer Mongolian Government, Izvestiya, Moscow, Sept. 17, 1921.

36 Op. cit., p. 544.

37 North China Herald, Shanghai, March 15, 1924, p. 402 Google Scholar; translated from the Mongolian newspaper, Zaria, Ulan Bator Khota.Google Scholar

38 Stalin, op. cit., p. 79.

39 MacMurray, J. V. A., Treaties and Agreements With and Concerning China, 1919-1929, Carnegie Endowment for International Peace (Washington, 1929), p. 134 Google Scholar.

40 Note the demand of the Chinese cabinet for the cancellation of the Soviet-Mongolian agreements before 1924, as being “contrary to the sentence (in Article V of the 1924 Sino-Russian agreement) ‘respecting the sovereignty of China’” (China Year Book, 1924, p. 883); see the report of a protest by the Chinese ambassador to Russia at the rumor that a secret treaty of mutual assistance had been signed between Russia, Soviet and Mongolia, Outer in 1927 (Nikitine, M., “Mongolie,” Didionnaire Diplomatique, Paris, 1933, p. 147)Google Scholar; see the pro test of the Chinese Foreign Minister following the announcement of the Russo-Outer Mongolian Pact of Mutual Assistance in 1936 (Documents on International Affairs, 1936, London, 1937], pp. 473-474).

41 “Chicherin’s Report on the International Situation,” Izvestiya, Moscow, March 6, 1925 Google Scholar.

42 Izvestiya, April 8, 1936; Taracouzio, op. cit., p. 471 and passim; Taracouzio, T. A., “In ternational Cooperation of the U.S.S.R. in Legal Matters,” this Journal, Vol. 31 (1937), p. 60 Google Scholar.

43 Young, C. Walter, The International Legal Status of the Kwantung Leased Territory (Baltimore, 1931), pp. 13–14 Google Scholar; Wright, Quincy, Mandates Under the League of Nations (Chicago, 1930), p. 297 Google Scholar.

44 Leading Soviet authorities on international law believe that, with respect to the con temporary concept of sovereignty, their use of the term does not differ from that generally accepted in international law. Korovin, Eugene A., (book review of Taracouzio, The Soviet Union and International Law), Harvard Law Review, Vol. 49, 1936, p. 1394 Google Scholar. Cf. Pashukanis, E., Ocherki po Mezhdynarodnomu Pram [Outline of International Law], U.S.S.R., 1935, pp. 115–116 Google Scholar.

45 Korovin, Eugene A., “Soviet Treaties and International Law,” this Journal, Vol. 22 (1928), pp. 762–763 Google Scholar. The single exception concerns certain obligations of a revolutionary socialist government in regard to the debts of its capitalist predecessor. For a detailed study of the Soviet repudiation of rebus sic stantibus, see the series of articles by Karl Radek which appeared in the Moscow Izvestiya, May 12-24, 1933.

46 Litvinov, M., Vneshnyaya Politika SSSR [Foreign Policy of the U.S.S.R.], Moscow, 1937, p. 151 Google Scholar.

47 In 1922, Chang Tsolin was appointed High Commissioner for Mongolia with full powers to reconquer it. China Year Book, 1924, p. 580.

48 See page 460, supra.

49 “K Sovetsko-Mongol’skomu Protokolu,” Izvestiya, Moscow, April 8, 1936 Google Scholar. Pravda, Leningrad, April 9, 1936, official organ of the Russian Communist Party, published a similar article. A short review of these articles appeared in the New York Times, April 10, 1936, p. 19.

50 Izvestiya, Moscow, April 8, 1936.

61 Baty, T., “Protectorates and Mandates,” British Year Book of International Law, 1921-1922, p. 112 Google Scholar; Eagleton, Clyde, The Responsibility of States in International Law (New York, 1928), pp. 35–36 Google Scholar. The Soviet concept seems to resemble the Renaissance conception of protection, as described by Baty. The latter involved “little or nothing more than a form of guarantee” which “did not necessarily affect in any degree the sovereignty of the protected Power.” Baty, op. cit., p. 109.

62 Note that in his answer to the Chinese protest concerning the Russo-Outer Mongolian Pact of Mutual Assistance, the Soviet Commissar for Foreign Affairs reaffirmed Chinese sovereignty in Outer Mongolia. He asserted that the new agreement did not change the status of the area. Documents on International Affairs, 1936 (London, 1937), pp. 474–475 Google Scholar.

53 On May 11, 1936, the British Prime Minister declared that “His Majesty’s Government continue to regard Outer Mongolia as under Chinese sovereignty.” Cited by Fritera, Gerald M., “The Development of Outer Mongolian Independence,” Pacific Affairs, Vol. X, No. 3, p. 335 Google Scholar, from Parliamentary Debates, House of Commons.

54 See the Constitution of the Mongolian People’s Republic, as translated in the China Year Book, 1926, pp. 795-800.

55 There seems to be no reason to refer to the relationship existing between China and Outer Mongolia as that of suzerain and vassal state. These terms have been defined in so many ways as to make them useless in modern international law (see Crane, R. T., in The State in Constitutional and International Law, Baltimore, 1907, pp. 13–17 Google Scholar). None of the parties involved in this situation now recognizes the existence, of such a relationship although the terms “suzerainty” and “autonomy” were used in the tripartite agreement of Kiakhta, June 7, 1915.

56 See the note presented by Karakhan, , Soviet Ambassador to China, to the Chinese Minister for Foreign Affairs on March 6, 1925. Russian Review, Vol. III, p. 165 Google Scholar.

57 Snow, Edgar, Red Star Over China (New York, 1938), pp. 88–89, note 1Google Scholar.