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[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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