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Some Legal Consequences if Extraterritoriality is Abolished in China
Published online by Cambridge University Press: 04 May 2017
Extract
On December 30, 1929, a manifesto was issued by the Chinese Minister of Foreign Affairs stating that “The Chinese Government is compelled to declare that the year 1930 is the decisive time, and that the actual process of reestablishing Chinese sovereignty by the abolition of extraterritoriality begins on January 1. With that in view it will undertake measures designed to release the sovereign rights of China from the trammels of extraterritoriality, and has accordingly ordered the Executive Yuan and the Judicial Yuan to instruct the ministries concerned to prepare a plan for this purpose.” While this indicates a determination to hasten the abolition of extraterritoriality, it also indicates a desire to do so by a legal process. It has been recognized that the conclusion of new treaties is the appropriate process and this method has actually been illustrated by treaties conditionally eliminating extraterritoriality with Belgium, Italy, Denmark, Portugal and Spain. These treaties were made under normal conditions and probably indicate the kind of treaty China would like to conclude with the remaining Powers enjoying extraterritoriality.
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- Copyright © American Society of International Law 1930
References
1 Publications of the Department of State, Press Releases, No. 14, Jan. 4, 1930, p. 2.
2 The text of these treaties is printed in English and Chinese in a publication of the Intelligence and Publicity Department, Ministry of Foreign Affairs, National Government, Republic of China, entitled Sino-Foreign Treaties, 1928. See also, Treaties and Agreements with and Concerning China, 1919-1929, Carnegie Endowment for International Peace, Division of International Law, Pamphlet No. 50, pp. 240-248, 252-255, 270-272.
3 Extraterritorial rights of Germany, Austria, and Hungary were abolished by declaration by China on entering the war in 1917, and those of Russia were abolished by declaration of China on the breach of relations in 1920. These declarations have in each case been recognized by subsequent treaty. See Willoughby, Foreign Rights and Interests in China, 2nd ed., Baltimore, 1927, II, 577-586.
4 These are Great Britain, United States, France, Netherlands, Norway, Sweden, Brazil, Peru, Japan, Mexico, Switzerland. Great Britain, Japan and the United States, in treaties of 1902 and 1903 respectively, expressed their willingness “ to relinquish extraterritorial rights when satisfied that the state of Chinese laws, the arrangements for their administration and other considerations warrant them in so doing.” Sweden and Switzerland on concluding treaties with China in 1908 and 1918, respectively, promised to relinquish extraterritorial rights as soon as all the other Powers had agreed to do so. Mexico, in an exchange of notes in 1921, promised to insert a clause in the formal amendment to the treaty of 1899 renouncing Mexican consular jurisdiction in China. See Department of State, Report of the Commission on Extraterritoriality in China, Washington, 1926, p. 10, and Blakeslee, The Pacific Area, World Peace Foundation Pamphlet, XII (1929), No. 3, pp. 19-33. The Chinese Govemment conducted active negotiations with all the Powers on the subject during 1928-29. See Blakeslee, loc. eii.; Mingchien Joshua Bau, Relinquishment of Extraterritoriality in China, Institute of Pacific Relations, Data Paper, Kyoto, 1929; H. G. W. Woodhead, Extraterritoriality in China, The Case against Abolition, Tientsin, 1929.
5 Woodhead, op. dt., p. 8.
6 These exemptions are discussed in detail in Willoughby, op. cit., and briefly in Blakeslee, op. cit., pp. 1-60.
7 These two terms have sometimes been used interchangeably. See Hyde, , International Law, I, 430 Google Scholar; Satow, , Diplomatic Practice, I, 240 Google Scholar
8 The Belgian treaty of Nov. 22, 1928, omits the remainder of this article.
9 This was interpreted to mean “ those Powers, other than China, which directly participated in the discussion of Pacific and Far Eastern Questions in the Conference on the Limitation of Armament held in Washington in 1921-22.” The Belgian treaty substituted “ the majority of the Powers now possessing extraterritorial privileges in China.”
10 Art. XIII of the resolutions in pursuance of the Chino-British treaty of Nanking, 1842, which inaugurated the system of extraterritoriality in China, provides: “ Regarding the punishment of English criminals, the English Government will enact the laws necessary to attain that end, and the consul will be empowered to put them in force.” (Willoughby, op. cit., II, 558.)
11 The value of preliminary correspondence seems to be recognized in the case of bilateral treaties, even though practice tends to minimize it in the case of multilateral treaties. Wright, this Journal , XXIII (January, 1929), 102; Hyde, ibid., XXIV (January, 1930), 18-19.
12 Art. XXI of the Chino-American treaty of 1844 provides: “ Citizens of the United States who may commit any crime in China shall be subject to be tried and punished only by the consul or other public functionary of the United States, thereto authorized, according to the laws of the United States.”
13 Moore, , Digest of International Law, II, 558-593 Google Scholar; Hyde, , International Law, I, 428-448 Google Scholar; Hall, , International Law, 8th ed., 217-252 Google Scholar
14 Supra, notes 11-12.
15 Opinions differ as to the extent to which a sovereign can exercise jurisdiction over his retinue when in foreign territory ( Oppenheim, , International Law, 3rd ed., I, 533 Google Scholar, Hyde, , op. cit., I, 431 Google Scholar), but military and naval personnel are undoubtedly exclusively subject to their own officers when rightfully in foreign territory as an organized force. ( Hyde, , op. cit., I, 433, 444 Google Scholar; Hall, , op. cit., pp. 260-251.Google Scholar) Military or naval persons may be subject to local jurisdiction when in foreign territory individually and not as members of such a force.
16 Willoughby, , op. cit., I, 490-494 Google Scholar; Blakeslee, , op. dt., pp. 55-57 Google Scholar. Great Britain agreed to restore Wei-hai-wei at the Washington Conference and negotiations have been in progress. France agreed to restore Kwang-chow-wan when all other leaseholders did likewise. Chino- Japanese negotiations at this time actually resulted in Japanese relinquishment of the Kiauchow leasehold which she had acquired from Germany.
17 Moore, , Digest of International Law, II, 639-641 Google Scholar; Willoughby, , op. cit, I, 480-482.Google Scholar
18 Malloy, , Treaties, etc., of the United States, II, 2007-2010.Google Scholar
19 In the Mavrommatis Palestine Concession Cases the Permanent Court of International Justice recognized that concessions given by the Palestine administration and by its predecessor, Turkey, to a Greek national were not themselves “international obligations accepted by the mandatory,” though Protocol XII of the Lausanne Treaty, which required respect for the latter type of concessions, was. Publications of the Permanent Court of International Justice, Series A, II, 19, 27, et seq., XI, 15-16. The importance of the distinction between “agreements coming within the sphere of international law” and other agreements was recognized by the Supreme Court of Cologne in Aix-la-Chapelle-Maastricht Railroad Company v. Thewis, this Journal, VIII, 907; Dickinson, , The Law of Nations, Cases and Other Readings, New York, 1929, p. 397.Google Scholar
20 This was contended by Great Britain in regard to the Palestine Mavrommatis Concession, and the court acquiesced, though the point was not necessary for decision, Pub. P. C. I. J., Ser. A, XI, 13, 23. Hall has even contended that the local law furnishes the standard for interpreting treaties to be executed within a state (8th ed., p. 392), but the Permanent Court of International Justice has held that international law rather than the local law of either party must rule in the case of a treaty, unless there is express evidence of a different intention shared by both parties. (Exchange of Greek and Turkish Populations, Pub. P. C. I. J., Ser. B, X, 20-21.)
21 Borchard, Diplomatic Protection of Citizens Abroad, 284, et seq.; Eagleton, The Responsibility of States in International Law, pp. 160, et seq.; Sir John Fischer Williams, International Law and International Financial Obligations Arising from Contract, Bibliotheca Visseriana, II (1923), 3, 28, 59; Draft Code on Responsibility of States prepared by Harvard Research in International Law, this Journal, Special Supplement, XXIII (April, 1929), 167, el seq
22 MacMurray, Treaties and Agreements with and Concerning China, 1894^1919, New York, 1921,1, xiii. It may be noted that transactions by individuals or corporations, which might be adopted or repudiated by their governments as convenience dictated, have been a characteristic of the penetration of European influence into other parts of the world. See Lindley, The Acquisition and Government of Backward Territory in International Law, London, 1926, pp. 84-118.
23 Malloy, , op. eit., I, 23.Google Scholar
24 Russia, for instance, implied the right to police and exercise general jurisdiction in the zone of the Chinese Eastern Railway from a clause in the contract between China and the Russo-Asiatic Bank providing that “ the Company (Chinese Eastern Railway Company) will have the absolute mid exclusive right of administration of its lands.” (MacMurray, op. cit., I, 76; Blakeslee, op. cit., p. 108.) The United States, Great Britain and China all objected to this interpretation. ( SirParlett, Harold, A Brief Account of Diplomatic Events in Manchuria, Royal Institute of International Affairs, London, 1929, p. 28.)Google Scholar
25 This has been true of the Chinese Eastern Railway, which is now regulated by the Chino-Russian Treaty of 1924, though the initial agreements in regard to it were between China and the Russo-Asiatic Bank.
26 Supra, note 23.
27 Such corporations as the British East India Company have been considered agents of the British Government in their political transactions. Lindley, op. cit., pp. 99,108, 285. The recitations in an instrument are, however, presumed to indicate the real parties, and in transactions between states of European civilization great care is always taken on this point.
28 Supra, note 25, and Lindlfey, op. cit., p. 286.
29 Hyde, , op. cit., I, 444-448 Google Scholar. Marshall, C. J., in the Schooner Exchange v. MacFaddon, 7 Cranch, 116, 145 Google Scholar, said: “ A Prince by acquiring private property in a foreign country, may possibly be considered as subjecting that property to the territorial jurisdiction: he may be considered as so far laying down the Prince and assuming the character of a private individual.”
30 SirWilliams, John Fischer, op. cit., II (1923), 58-59 Google Scholar. He recognizes “ A wide-if mainly technical-distinction” in that a contract between state and state is “ an engagement within the sphere of international law” (p. 3), but he can see no good reason for “ applying different measures in the enforcement of the borrower&s obligations” (p. 59).
31 Virginia v. Tennessee, 148 U. S. 503; South Dakota v. North Carolina, 192 U. S. 286 (1904); Wright, Control of American Foreign Relations, pp. 231-233.
32 As an illustration of her alertness may be cited her prompt declaration, after learning of the Lansing-Ishii agreement of November, 1917, that she “ would not allow herself to be bound by any agreement entered into by other nations.” Willoughby, op. cit., I, 363.
33 Ibid., II, 557.
34 Ibid., I, 356; II, 598, 872, 888, 975.
35 Willoughby, op. cit., I, 498, et seg., and supra, note 22.
36 Report of the Commission on Extraterritoriality, 1926, p. 107. Summary and recommendations published in Supplement to this Journal, Vol. 21 (1927), p. 58.
37 This provision in the treaties has been criticized by some Chinese. See Bau, Relinquishment of Extraterritoriality in China, p. 26.