SHIH SHUN LIU
EXTRATERRITORIALITY
Its Rise and Its Decline
(1925)
CHAPTER IV : IN THE FAR EAST
Notes by the Author (^)
[1] "The Shogun's government, in the beginning of the seventeenth century, left the Portuguese, Spanish, English, and Dutch traders to their own law. This privilege, which was granted to them by letters-patent, was held at the pleasure of the Shogun, and was liable to be annulled. The Japanese, however, were more familiar with the idea of personal than of territorial law; and when, in a later age, they formed treaty relations with the West, they seem not to have insisted upon the principle of territoriality. Harris states that, when he proposed that Americans should be subject to the jurisdiction of their consuls, 'to my great and agreeable surprise this was agreed to without demur.' " Hishida, The International Position of Japan as a Great Power (New York, 1905), p. 133. The entry from Harris's diary is quoted from Griffis, Townsend Harris (Boston and New York, 1895), p. 124.
[2] Records of the Relations between Siam and Foreign Countries in the 17th Century, vol. ii, p. 66.
[3] Art. 5, Dumont, op. cit., vol. vii, pt. ii, p. 120.
[4] James, ''Jurisdiction over Foreigners in Siam," American Journal of International Law (hereafter referred to as A. J. I. L.) vol. xvi, p. 588.
[5] Art. 5, Journal of the Siam Society, vol. xiv, pt. ii, p. 32.
[6] Art. 6, State Papers, vol. xxiii, p. 1156.
[7] Art. 9, Malloy, vol. ii, p. 1628
[8] James, A. J. I. L., loc. cit., p. 589.
[9] The Status of Aliens in China (New York, 1912), p. 47.
[10] Sargent, Anglo-Chinese Commerce and Diplomacy (Oxford, 1907), pp. 75-76.
[11] China. The Maritime Customs. Treaties, Conventions, etc., between China and Foreign States (hereafter referred to as China, Maritime Treaties) 2nd ed., Shanghai', 1917, vol. i, p. 6.
[12] Art. 10, ibid., p. 36.
[13] Art. 10, ibid., p. 62.
[14] See, e. g., Morse, International Relations of the Chinese Empire (London, New York, etc., 1910-18), vol. i. p. 60; Trade and Administration of the Chinese Empire (London, New York & Calcutta, 1908). p. 181. In the latter place, the author declares, "Here, then, for one to two centuries before the first of the treaties with any of the maritime powers, we have the principle of extraterritoriality accepted.. ."
[15] Koo, op. cit., p. 53.
[16] In civil matters, the Chinese courts had little occasion to exercise jurisdiction over disputes between Chinese and foreigners, these being usually settled by direct negotiations between the parties concerned and by arbitration. Cf. Morse, International Relations, vol. i. p. 96.
[17] Geo, Staunton, Penal Code of China (London, 1810), p. 36.
[18] Morse, op. cit., vol. i, pp. 100-107; Koo, op.cit., pp. 50-55.
[19] North American Review, vol. xl, p. 66.
[20] Dennett, Americans in Eastern Asia (New York, 1922), pp. 81-84. Passage quoted is on p. 84.
[21] Mr. Cushing to Mr. Calhoun, Sep. 29, 1844, U.S. Sen. Doc. no. 58, 28 th Cong., 2d Sess.
[22] For specific cases see Koo, op. cit., pp. 68-79.
[23] Ibid., pp. 79-95; Morse, op. cit., vol. i, pp. 109 et seq.
[24] Dr. Koo gives an excellent critical account of these reasons in the section of his work just referred to.
[25] Remarks on the British Relations with China and the Proposed Plans for Improving Them (2nd ed., London, 1836).
[26] Ibid., p. 20.
[27] Ibid., p. 18. It must be pointed out that the last assertion is grossly inaccurate. See Koo. op. cit., pp. 80-84.
[28] Hansard, Parliamentary Debates, 3rd ser., vol. xviii, p. 700.
[29] 3 & 4 Will. IV, c. 93. The act does not state where the court was to sit, but from the context the general intention was to set it up on Chinese soil. (*G)
[30] State Papers, vol. xx, pp. 260, 262.
[31] See Koo. op. cit., p. 109.
[32] Journal of the House of Commons, vol. xciii, p. 476.
[33] Dr. Koo gives a critical review of the arguments on both sides, op. cit., pp. 114-30.
[34] Hansard, op. cit., 3rd ser., vol. xliv, p. 751.
[35] In the debate of the House of Commons on July 28, 1838 on the bill looking toward the establishment of a British court in China, Mr. Hawes said that "he had carefully looked over the papers, the noble Lord [Palmerston] had laid before the House, and he could not discover in them the smallest trace of the smallest consent on the part of the authorities of China to the jurisdiction proposed to be given by the noble Lord. He wished to ask the noble Lord, whether the authorities of China recognized this interference with their laws?" Ibid., p. 744. Another speaker, Sir James Graham, while approving a part of the bill felt that consistently with the whole course of British policy, with international law and past experience, it would be unadvisable to pass the remainder of the bill, including the part on the creation of a British court in China. Ibid., p. 751. 'When the House went into committee on the bill, Mr. Hawes again rose to move its omission, saying that there could be no objection to the establishment of a court for the trial of offenses committed by British subjects, but protesting against the court's interfering with an independent power like China. Ibid., p. 752. On account of this opposition, the bill was withdrawn on Lord Palmerston's own motion.
[36] It is to be admitted that there were some irregularities in the administration of justice in China at the time; but, to say the least, they were unduly exaggerated. Cf. Koo, op. cit., pp. 79-95.
[37] Treaty with Sweden, July 2, 1908, art. 10, MacMurray, Treaties and Agreements with and concerning China, 1894-1919 (New York, 1921), vol. i, 1908/11, p. 745; treaty with Switzerland, July 13, 1918, Declaration, ibid., vol. ii, 1918/8, p. 1430.
[38] Parliamentary Papers, 1909 [cd. 4646], Siam, no. 1 (1909), p. 7.
[39] State Papers, vol. xc, p. 70.
[40] Although Corea was at first a vassal state to China, she was fully independent in her relations with the foreign Powers, and the latter were regulated hy Corea's own treaties. In 1870, the American Minister at Peking wrote to his government: "Corea is substantially an independent nation. To he sure, it sends tribute to China annually, but from the information I am able to obtain, the tribute is sent rather as a quid pro quo for the privilege of trading with the Chinese than as a governmental tribute." Mr. F. F. Low to Mr. Fish, July 16. 1870, U.S. For. Rel., 1870, p. 362. This opinion was later confirmed by a statement of the Chinese Foreign Office, dated March 28, 1871, to the effect "that although Corea is regarded as a country subordinate to China, yet she is wholly independent in everything that relates to her government, her religion, her prohibitions, and her laws; in none of these things has China hitherto interfered." Ibid., 1871, p. 112.
[41] State Papers, vol. Ixxiv, p. 105. Cf. U. S., May 22, 1882, art. 4. Malloy, vol. i. p. 336; Germany, Nov. 22, 1883, Protocol, State Papers, vol. lxxiv, p. 649; Russia, June 25/July 5, 1884. Protocol, ibid., vol. lxxv. p. 527; China. Sep. 11, 1899, art. 5. ibid., vol. xcii. p. 1049; Belgium, March 23, 1901, art. 3. § 11, ibid., vol. xciv, p. 541; and Denmark, July 15, 1902, art. 3, § 11, ibid., vol. xcv, p. 172.
[42] Art. 13 of General Regulations, China, Maritime Treaties, vol. i, p. 383. Other Powers which had extraterritorial treaties with China are the United States (July 3, 1844. arts. 21, 25, Malloy, vol. i. pp. 202, 203; June 8, 1858, arts, II, 27, ibid., pp. 215, 220; Nov. 17. 1880, art. 4, ibid., p. 240), France (Oct. 24, 1844, arts. 25. 27, 28, China, Maritime Treaties, vol. i, pp. 785, 786; June 28, 1858, arts, 35, 38, 39, ibid., pp. 831, 833). Norway and Sweden (March 20, 1847, arts. 21. 25, ibid. pp. 56, 58), Russia (June 1/13. 1858, art. 7, ibid., p. 88), Germany (Sep. 2, 1861, arts. 35, 38, 39, ibid., vol. ii, pp. 132, 133, 134), Denmark (July 13, 1863, arts, 15, 16, 17, ibid., pp. 318-319), the Netherlands (Oct. 6, 1863, art. 6, ibid., p. 343), Spain (Oct. 10, 1864. arts. 12-13, ibid., p. 364), Belgium (Nov. 2, 1865, arts. 16, 19, ibid., pp. 11, 12), Italy (Oct. 26, 1866, arts. 15-17, ibid., pp. 408-9). Austria-Hungary (Sep. 2, 1869. arts. 38-40, ibid., p. 473), Peru (June 26, 1874, arts. 12-14. ibid., 804-5), Brazil (Oct. 3, 1881, arts, 9-11, ibid., pp. 818-9), Portugal (Dec. 1, 1887, arts. 47, 48, 51, ibid., pp. 291, 292), Japan (July 21, 1806, arts. 20-22, ibid., pp. 611-2), Mexico (Dec. 14. 1899, arts. 13-15, ibid., pp. 840-1), Sweden (May 24, 1908, art. 10, Mac Murray, Treaties, vol. i, 1908/11, p. 744), and Switzerland (July 13, 1918, Declaration annexed, ibid., vol. ii. 1918/8, p. 1430). The provisions of these treaties will be summarized presently. The German treaty was abolished by a Presidential Proclamation of Aug. 14, 1917, making a declaration of war against Germany and Austria-Hungary, ibid., 1917/7, p. 1363, and by the treaty of May 20, 1921, art. 3, China Year Book, 1921-22, p. 739. The same Presidential Proclamation also abrogated China's treaty with Austria-Hungary. The Treaty of St. Germain, Sep. 10, 1919. which concluded peace between China and Austria, does not mention extraterritorial rights. The Mexican treaty was denounced by the Mexican Government on Nov. 11, 1920, State Papers, vol. cxiv. p. 878.
In this connection, the doubtful case of Chile may he mentioned.
According to article 2 or the treaty of Feb. 18, 1915, the Diplomatic and Consular Agents of Chile and China "shall enjoy the same rights, privileges, favors, immunities, and exemptions as are or may be conceded to the Diplomatic and Consular Agents of the most favored Powers.'' MacMurray, op. cit., vol. ii, p. 1190. No specific mention is made of the grant of extraterritorial rights. Whether this is implied in article 2 or not is not certain. But inasmuch as the same article appears in the British treaty of 1858 (art. 7), which makes express provision for extraterritorial jurisdiction in other parts of the same agreement, it is reasonable to infer that the article comprehends only the ordinary privileges and immunities of diplomatic and consular agents which are sanctioned by international law, and does not ipso facto carry with it an exceptional right such as that of extraterritoriality. In order to lay claim to the latter in China, it is, in the author's opinion, essential that the claimant should be able to invoke an express treaty provision to that effect, the omission of which in the agreement of 1915 would seem to imply the denial of the right to Chile. "Even if there were commercial treaties with other countries," says Hinckley, "containing most-favored-nation clauses, such clauses would probably not extend the extraterritorial exemption ... The substantial fact is that China has continuously maintained her jurisdiction sovereignty, excepting as specifically abrogated by treaty." Hinckley, "Extraterritoriality in China," American Academy of Political and Social Science, Annals, vol. xxxix, p. 97. Recently, an attempt was made by the Chilean consul at Shanghai to exercise jurisdiction over a Chinese claiming Chilean nationality. The claim was made on the basis of the most-favored-nation clause referred to. The Chinese Government having refused to entertain the Chilean point of view, the Chilean consul appealed to the Diplomatic Corps at Peking, which seems to have espoused the cause of Chile. The Chinese Government, however, still regards it as an open question. The diplomatic correspondence on this subject has not yet been made available, but whatever may have been the facts involved, the assertion by Chile of extraterritoriality in China on the basis of a most-favored-nation clause would be contrary to established usage in that country. That this is so is further shown by the notes exchanged between China and Bolivia, also a South American Republic, in 1919, to the effect that the most-favored-nation clause embodied in the new treaty between the two countries should not affect the question of extraterritoriality. See Chapter X.[43] Malloy, vol. i. p. 996.
[44] Art. 8 of this treaty provides that criminals should be judged according to the laws of their own country. State Papers, vol. lvii, p. 1055. Other Powers which had extraterritoriality treaties with Japan were the United States (June 17, 1857, art. 4. Malloy, vol. i, p. 909; July 29, 1858, art. 6, ibid., p. 1033), Great Britain (Aug. 26, 1858, arts. 4-6, State Papers, vol. xlviii, p. 30), France (Oct. 9, 1858, arts. 5-7, ibid., vol. 1, p. 402), Portugal (Aug. 3, 1860, arts. 4-6, ibid., vol. lix, p. 510), Prussia (Jan. 24, 1861, arts. 5-6, ibid., pp. 520-1), the Netherlands (Nov. 9, 1855, arts. 2-3, ibid., vol. xlvii, p. 1087), Switzerland (Feb. 6, 1864, arts. 5-6, ibid., vol. liv, pp. 513-4), Belgium (Aug. 1, 1866, arts. 5-6, ibid., vol. lix, p. 557), Italy (Aug. 25, 1866. arts. 5-6, ibid., p. 866), Denmark (Jan. 12, 1867, arts. 5-6, ibid., vol. lxii, p. 292), Sweden and Norway (Nov. 11, 1868. arts. 5-6, ibid., vol. lxi, p. 561), Spain (Nov. 12, 1868, arts. 5-7, ibid., vol. lviii, p. 197), Austria-Hungary (Oct. 18, 1869, arts. 5-6, ibid., vol. lix, p. 531), Hawaii (Aug. 19, 1871, art. 4. ibid., vol. lxii, p. 1013), China (Sep. 13, 1871, arts. 8-9, China, Maritime Treaties, vol. ii. p. 510), and Peru (Aug. 21, 1873, art. 6, State Papers, vol. lxiii, p. 54). These treaties were superseded by the treaties concluded by Japan with the various Powers between 1804 and 1899. See Chapter X.
[45] Treaty of Feb. 26, 1876, art. 10, State Papers, vol. lxvii, p. 533. Other Powers which enjoyed extraterritorial rights in Corea prior to 1910 were China (Sep. 11, 1899. art. 5, China, Maritime Treaties, vol. ii, p. 867), the United States (May 22, 1882, art. 4, Malloy, vol. i. p. 336), Great Britain (Nov. 26, 1883, art. 3, State Papers, vol. lxxiv, p. 87), Germany (Nov. 26, 1886, art. 3, ibid., p. 634), Russia (June 25/JuIy 7, 1884, art. 3, ibid., vol. lxxv, p. 511), Italy (June 26, 1884, art. 3, ibid., p. 310), Austria-Hungary (June 23, 1892, art. 3, ibid., vol. lxxxiv, p. 121), Belgium (March 23, 1901, art. 3, ibid., vol. xciv, p. 540), and Denmark (July 15, 1902, art. 3, ibid., vol. xcv, p. 171). These treaties came to an end when Corea was annexed by Japan in 1910. See Chapter V.
[46] Art. 2, State Papers, vol. xlvi, p. 139. Other Powers which had similar treaties with Siam were the United States (May 29, 1856, art. 2, Malloy, vol. ii, p. 1630), France (Aug. 15, 1856, arts. 8-9, State Papers, vol. xlvii, p. 997), Denmark (Mar 21, 1858, arts. 9-10, ibid., vol. i, p. 1077), Portugal (Feb. 10, 1859, art. 6, ibid., vol. lxxii, p. 111), the Netherlands (Dec. 17, 1860, art.. 9, ibid., vol. lviii, p. 266), Prussia, etc. (Feb. 7, 1862, arts. 9-10, ibid., vol liii, p. 745), Sweden and Norway (May 18. 1868, arts. 9-10, ibid., vol. lxix, p. 1139), Belgium (Aug. 29, 1868, arts. 9-10, ibid., vol. lix, p. 409), Italy (Oct. 3, 1868, art. 9, ibid., vol. lx, p. 775), Austria-Hungary (May 17, 1869, arts 9-10, ibid., vol. lxi, p. 1312), Spain (Feb. 23, 1870, arts. 6-7, ibid., p. 484), and Japan (Feb. 25, 1898, Protocol, art. I, ibid., vol. xc, p. 70). The United Slates abolished her extraterritoriality in Siam conditionally by the treaty of Dec. 16, 1920, while Great Britain, France, and Denmark subsequently agreed to a substantial curtailment of their judicial rights in Siam. See Chapter X.
[47] U.S., June 23, 1850, art. 9, Malloy, vol. i, p. 132; Great Britain, Nov. 26, 1856, State Papers, vol. lxv, p. 1170.
[48] Art. 3, ibid., vol. lxx, p. 10. Other Powers which enjoyed extraterritorial rights in Tonga were the United States (Oct. 2. 1886, art. 12, Malloy, vol. ii, p. 1784) and Germany (Nov. 1, 1876, art. 9, Reichsgesetzblatt, 1877, p. 521). After Tonga became a protectorate of Great Britain, the German and American Governments were deprived of their extraterritorial privileges there. See Chapter VIII.
[49] U.S., Jan. 17, 1878, art. 4, Malloy, vol. ii, p. 1575; Germany, Jan. 24, 1879, art. 7, State Papers, vol. lxx, p. 244; Great Britain, Aug. 28, 1979, arts. 4, 5, ibid., p. 134.
[50] See Chapter V.
[51] Siam: Great Britain, 1855, art. 2; U.S., 1856, art. 2; France, 1856, art. 8; Portugal, 1859, art, 6; the Netherlands, 1860, art. 9; Italy, 1868, art. 9.
[52] China: U.S., 1844, art. 25; 1858, art. 27; Great Britain, 1858, art. 15; France, 1844, art. 27; 1858, art. 39; Sweden and Norway, 1847, art. 25; Germany, 1861, art. 39; Denmark, 1863, art. 15; the Netherlands, 1863, art. 6; Spain, 1864, art. 12; Italy, 1866, art. 15; Austria-Hungary, 1869, art. 40; Peru, 1874, art. 14; Brazil, 1881, art. 11; Portugal, 1887, art. 47; Japan, 1896, art. 20; Mexico, 1899, art. 15; Sweden, 1908, art. 10.
Japan: Great Britain, 1858, art. 4; France, 1858, art. 5; Portugal, 1860, art. 4; Prussia, 1861, art. 5; Switzerland, 1864, art. 5; Belgium, 1866, art. 5; Italy, 1866, art. 5; Denmark, 1867, art. 5; Spain, 1868. art. 5; Germany, 1869, art. 5; Austria-Hungary, 1869, art. 5; China. 1871, art. 8.
Corea: Great Britain, 1883, art. 3; Germany, 1883, art. 3; Russia, 1884, art. 3, Italy, 1884, art. 3; Austria-Hungary, 1892, art. 3; Belgium, 1901, art. 3; Denmark, 1902. art. 3.
Siam: Great Britain, 1855, art. 2; U.S., 1856, art. 2; France, 1856, art. 8; Portugal, 1859, art. 6; the Netherlands, 1860, art. 9; Italy, 1868, art. 9.
Borneo: U.S., 1850, art. 9.
Tonga: U.S., 1886. art. 17.
Samoa: U.S., 1878, art. 4; Great Britain, 1879, art. 4.
[53] State Papers, vol. lxv, p. 1170.
[54] See, e. g., China-Mexico, 1899, art. 14, which provides: "As a general rule, every civil or criminal suit instituted in China between the subjects or citizens of the two Contracting Parties shall be tried according to the laws and by the authorities of the country to which the defendant or accused belongs."
[55] China: Great Britain, 1843, Gen. Reg., art. 13; 1858, art. 16; U.S., 1844. art. 21; 1858, art. 11; France, 1844, art. 27; 1858; art. 38; Sweden and Norway, 1847, art. 21; Germany, 1861, art. 38; Denmark, 1863, art. 16; the Netherlands, 1863, art. 6; Spain, 1864, art. 13; Belgium. 1865, art. 19: Italy, 1866, art. 16; Austria-Hungary, 1869, art. 39; Peru, 1874, art. 13; Brazil. 1881, art. 10; Portugal, 1887, art. 48; Japan, 1896, art. 22; Mexico, 1899, art. 14; Sweden, 1908, art. 10.
Japan: the Netherlands, 1858, art. 5; U.S., 1857, art. 4; 1858, art. 6; Russia, 1858. art. 14; Great Britain, 1858, art. 5; France, 1858, art. 6; Portugal, 1860, art. 6; Prussia, 1861, art. 6; Switzerland, 1864, art. 6; Belgium, 1866, art. 6; Italy, 1866, art. 6; Denmark. 1867, art. 6; Sweden and Norway, 1868. art. 6; Spain, 1868, art. 7; Germany, 1869, art. 6; Austria-Hungary, 1869, art. 6.
Corea: U.S., 1882, art. 4; Germany, 1883, art. 3; Russia, 1884, art. 3; Italy, 1884, art. 3; Austria-Hungary, 1892, art. 3; Belgium, 1901, art. 3; Denmark, 1902, art. 3.
Siam: Great Britain, 1855, art. 2; U.S., 1856, art. 2; France, 1856, art. 9; Denmark, 1858, art. 10; Portugal, 1859, art. 6; the Netherlands, 1860, art. 9; Prussia, 1862, art. 10; Sweden and Norway, 1868, art. 10; Belgium, 1868, art. 6; Italy, 1868, art. 9; Austria-Hungary, 1869, art. 10; Spain, 1870, art. 7.
Borneo: Great Britain, 1856.
Tonga: Great Britain, 1879, art. 3; U.S., 1866, art. 12.
Samoa: U.S., 1878, art. 4; Great Britain, 1879, art. 4. In Samoa, the Germans had a special system, whereby the German authorities in Samoa and the Samoan judges exercised a joint jurisdiction over penal matters. See the German treaty, 1884, art. 4, State Papers, vol. lxxv, p. 508.
[56] China: Japan, 1896, art. 21; Sweden, 1908, art. 10.
Japan: Austria-Hungary, 1869, art. 5.
Corea: All the treaties referred to in the preceding note.
Siam: Portugal, 1859, art. 6; the Netherlands, 1860, art. 9.
Borneo: U.S., 1850, art. 9.
Tonga: Great Britain, 1879, art. 3 (d) ; U.S., 1886, art. 12.
Samoa: Great Britain, 1879, art. 5.
[57] China: Great Britain, 1843, Gen. Reg., art. 13; 1858, art. 17; France, 1844, art. 25; 1858, art. 35; Russia, 1858, art. 7; Germany, 1861, art. 35; Denmark, 1863, art. 17; Spain, 1864, art. 14; Belgium, 1865, art. 16; Italy, 1866, art. 17; Austria-Hungary, 1869, art. 38; Peru, 1874, art. 12; Brazil, 1881, art. 9; Portugal, 1887, art. 51; Mexico, 1899, art. 13.
Japan: Great Britain, 1858, art. 6; France, 1858, art. 7; Portugal, 1860, art. 5; Belgium, 1866, art. 5; Italy, 1866, art. 5; Denmark, 1867, art. 5; Sweden and Norway, 1868, art. 5.
Siam: Great Britain, 1855, art. 2; U.S., 1856, art. 2; France, 1856, art. 8; Denmark, 1858, art. 9; Prussia, 1862, art. 9; Sweden and Norway, 1868, art. 9; Belgium, 1868, art. 9; Italy, 1868, art. 9; Austria-Hungary, 1869, art. 9; Spain, 1870, art. 6.
Samoa: U. S., 1878, art. 4.
Art. 8 of the Sino-Japanese treaty, Sep. 13, 1871, provided that in questions where subjects of both parties were concerned, the complainant should address a petition to the consul of the accused, who should acquaint the local authorities, the latter being charged with the duty of investigating the case, arresting offenders, and recovering debts. State Papers, vol. lxii, p. 322.
[58] China: Great Britain, 1876, sec. ii (3).
Corea: U.S., 1882, art. 4; Great Britain, 1883, art. 3; Germany, 1883, art. 3; Russia, 1884, art. 3; Italy, 1884, art. 3; Austria-Hungary, 1892, art. 3; Belgium, 1901, art. 3; Denmark, 1902, art. 3.
Siam: Portugal, 1859, art. 6.
[59] Art. 4, Malloy, vol. i, p. 240. Cf. China-Britain, 1876, sec. ii (3) and all the Corean treaties referred to in the preceding note.
[60] Hinckley, "Extraterritoriality in China," Am. Acad. of Pol., and Soc. Science, Annals, vol. xxxix, p. 97.