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American Consular Rights in Communist China
Published online by Cambridge University Press: 20 April 2017
Extract
On November 20, 1948, Chinese Communist Party soldiers, without previous warning, cordoned the United States Consul General's office and the residential compounds of the consular staff at Mukden, China, and subjected the entire United States consular staff and their families to house arrest inside the compounds. The detention lasted over a year. For almost seven months the party was held incommunicado and subjected to numerous privations. Adequate water, light, medical care, and sanitary and roofing repairs were denied, mobility within the compounds was restricted, and members of the staff were subjected to badgering interrogations and examinations.
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- Copyright © American Society of International Law 1950
References
1 “Angus Ward Summarizes Mukden Experiences,” Department of State Bulletin, Vol. XXI, No. 547 (Dee. 26, 1949), p. 955.
2 Id. An announcement of the Department of State on May 31, 1949, said, in part:“On November 18, 1948—18 days after the occupation of Mukden—the Chinese Communist authorities forced the closure of the Consulate General's radio facilities, and despite innumerable subsequent attempts to restore communications, no direct word has been received from Consul General Ward or his staff.” Id., No. 523 (July 11, 1949),p. 36, note.
3 Id., No. 547, p. 955, quoting Angus Ward's statement.
4 Id., No. 543 (Nov. 28, 1949), p. 799.
5 Id., No. 542 (Nov. 21, 1949), p. 759.
6 ld., No. 547, p. 956.
7 See Ward's account of the incident in id., pp. 956-957.
8 See New York Times, Oct. 3, 1949, pp. 1-2.
9 Department of State Bulletin, Vol. XXI, No. 543, p. 800.
10 Id., No. 542, pp. 759-760.
11 Id., p. 759, and No. 543, p. 800.
12 For the complete text see id., No. 543, pp. 799-800.
13 Id., p. 799, and No. 547, p. 957. Mr. Ward subsequently stated that he did not know why he had been arrested until an indictment, poorly translated into English, was read once in court after he had been held in jail for 28 days, 24 of which were in solitary confinement on bread and water. N. Y. Times, Dec. 12, 1949. In addition to assault,Mr. Ward was apparently “charged with certain financial obligations,” including compensation,severance pay and extra salary payments.
14 Id., No. 523, p. 36, and No. 545, p. 907.
15 Id., No. 547, p. 957.
16 N. Y. Times, Dec. 12, 1949.
17 “Account of Vice Consul Olive's Detention by Shanghai Communists,” Department of State Bulletin, Vol. XXII, No. 548 (Jan. 2, 1950), p. 23.
18 Id., Vol. XXI, No. 533 (Sept. 19, 1949), pp. 440-441. The letter of protest does not textually refer to “Consulate General,” “consular” premises, “consular” representatives,or “Communist” authorities.
19 Id., p. 442.
20 Id., No. 545 (Dee. 12, 1949), p. 908.
21 Id., Vol. XXII, No. 549 (Jan. 9, 1950), p. 56. See also id., No. 555 (Feb. 20,1950), p. 296.
22 Id., Vol. XXI, No. 540 (Nov. 7, 1949), pp. 709-710.
23 Id., Vol. XXII, No. 551 (Jan. 23, 1950), pp. 119, 121.
24 Id., pp. 120-122.
25 Article VII read in part as follows: ‘ ‘ The Chinese Government has agreed that the quarter occupied by the legations shall be considered as one specially reserved for their use and placed under their exclusive control, in which Chinese shall not have the right to reside and which may be made defensible.’ Malloy, Treaties, etc., Vol. I I , pp. 2006,2010. Cf. J. V. A. MacMurray, Treaties and Agreements With and Concerning China(1921), Vol. I, pp. 278, 282, 298, 315-316.
26 Article II of this treaty reads as follows (U.S.T.S., No. 984):
27 Department of State Bulletin, Vol. XXII, No. 551, p. 122.
28 Id., p. 120.
29 On January 6, 1950, the British Government had recognized ‘ ‘ the Central People's Government of the People's Bepublie of China as the de jure Government of China.”N. T. Times, Jan. 7,1950, pp. 1, 4.
30 Department of State Bulletin, Vol. XXII, No. 551, pp. 120-121.
31 Id., pp. 119, 121, 122-123. The N. T. Times reported on Jan. 16, 1950, that French and Dutch consular properties in Peiping were similarly seized about the same time.
32 Department of State Bulletin, Vol. XXII, No. 551, p. 119.
33 Id., and N. Y. Times, Jan. 15, 1950, p . 1
34 Compare the Vogeler case in which the refusal of the Hungarian authorities to permit American consular officers to visit an American citizen who was being held incommunicado by Hungarian authorities was characterized by the Department of State on Dec. 20, 1949, as “in disregard of general international practice with respect to consular rights,” as well as in violation of treaties; and the treatment of Mr. Vogeler was characterized as contrary to “prevailing concepts of justice in civilized countries”and as in derogation of “the principles of international practice #x201D; and of specific treaty obligations. Department of State Bulletin, Vol. XXII, No. 548 (Jan. 2, 1950), pp.21-22.
35 See, generally, Harvard Research in International Law, Draft Convention on The Legal Position and Functions of Consuls(Quincy Wright, Eeporter, 1932), this JOURNAL,Supp., Vol. 26 (1932), pp. 189-449; G. H. Hackworth, Digest of International Law, Vol.TV (1942), pp. 655-949; C. C. Hyde, International Law (rev. ed., 1945), Vol. II, pp.1312-1367; A. H. Feller and M. O. Hudson, A Collection of Diplomatic and Consular Laws and Regulations of Various Countries (1933), 2 vols.
36 Feller and Hudson, op. tit., Vol. II, p. 1291.
37 Id., pp. 1220-1221.
38 Harvard Eesearch, loc. cit., p. 252.
39 U. S. Treaty Series, No. 984. Art. VII of the treaty provides, in part, that pending the conclusion of a treaty on consular rights, questions concerning American rights in China, not governed by existing treaties, “shall be discussed by representatives of the two Governments and shall be decided in accordance with generally accepted principles of international law and with modern international practice.”
40 Loo. tit., pp. 313, 315.
41 United States-Mexico, General Claims Commission, Opinions of Commissioners, 1927,p. 264. See also Hyde, op. tit., Vol. II, pp. 1325-1327.
42 Harvard Eesearch, loo. tit., pp. 316-317; Hackworth, Digest, Vol. IV, pp. 708 ff.;Hyde, op. tit., Vol. II, pp. 1327-1328.
43 Loo. tit., p. 336. See also the “personal message” to the foreign ministers of thirty states by Secretary of State Acheson on November 18, 1949, above.
44 Harvard Eesearch, loo. tit., pp. 326-330; Moore, Digest, Vol. V, pp. 48 ff.; Hackworth,Digest, Vol. IV, pp. 716 ff.
45 Loc. tit., pp. 251, 267-268, 295.
46 Id., pp. 268, 270.
47 Id., pp. 302, 305.
48 Olney to Dupuy de L6me, Sept. 26, 1895, U. S. For. Bel. 1895, II, p. 1209; Moore,Digest, Vol. V, p. 102.
49 Harvard Research, loc. cit., p. 299.
50 Id., p. 306.
51 Hackworth, Digest, Vol. IV, p. 817.
52 Moore, Digest, Vol. I, p. 249.
53 This JOURNAL, Supp., Vol. 29 (1935), pp. 1044-1055.
54 Id., pp. 1055, 1057.
55 Loc. (At., p. 250.)
56 As to which see id., pp. 241, 243-245, 247 ff.
57 So far as the writer can determine, the Chinese Communist authorities simply declined to take cognizance of the official status of foreign diplomatic and consular representatives.
58 This was one point of the 8-point statement of peace terms then set forth by Mao.N. Y. Times, Jan. 23, 1949. See H. Arthur Steiner, “Mainsprings of Chinese Communist Foreign Policy,” this JOUKNAL, Vol. 44 (1950), pp. 69, 93 ff.
59 United States Relations with China (Department of State Far Eastern Series, 30),p. 724; ef. Steiner, loo. tit., pp. 91 ff.