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Foreign Jurisdiction in China

Published online by Cambridge University Press:  04 May 2017

N. Wing Mah
N. Wing Mah*
Affiliation:
Department of Political Science,University of California
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Extract

Because of the deficiencies in her laws and judicial administration, China has for eighty years passively accepted the arrangement, sanctioned by treaties, under which foreigners found within her territory are clothed with extraterritorial rights. The privileged status thus accorded to foreigners virtually established in that country an anomalous system of foreign jurisdictions.Now that the Chinese laws and judicial machinery are being improved in accordance with modern requirements, what was once a Chinese attitude of silent acquiescence toward the restriction of sovereignty has today become one of active and energetic protest against its further continuance.

Type
Research Article
Information
American Journal of International Law , Volume 18 , Issue 4 , October 1924 , pp. 676 - 695
Copyright
Copyright © American Society of International Law 1924

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References

1 Exemption from Chinese territorial jurisdiction is enjoyed only by nationals of states with which China has conceded this privilege by treaty. See Koo, The Status of Aliens in China, Ch. VI.

2 North China Herald, Oct. 28, 1922, p. 210. There is much uncertainty as to when this investigation is to take place. France, on the 8th of January, declined to name a delegate to the proposed commission to visit China as provided by the Washington Conference, on the ground that China has not yet agreed to pay the Boxer indemnity in gold francs, China having sought to pay in paper francs. New York Times, Jan. 9, 1924, p. 21.

3 MacMurray, , Treaties and Agreements with and concerning China , Vol. I, No. 1902/7, p. 351.Google Scholar

4 The Shantung Question: A Statement of China's Claims together with Important Documents Submitted to the Peace Conference in Paris, 1919, reprinted by the Chinese Welfare Society in America, p. 162.

5 The results of the commission's labors were vigorously attacked and eventually shelved by the opposition of influential viceroys in the provinces because of the novelty of the legal code which had been drawn up.

6 The latest Chinese Constitution, promulgated on October 10, 1923, contains provisions not dissimilar to those dealing with the same subjects found in the provisional Constitution of 1912. Articles 4 to 21 of Section 4 deal with the rights, duties and privileges of citizens; Section 9 (articles 97 to 102) with the judiciary; and Section 10 (Articles 103 to 108) with the law. China Weekly Review , Oct. 20,1923, p. 269; North China Herald , Oct. 13,1923, p. 84.Google ScholarPubMed

7 The Shantung Question, etc., op. cit., pp. 162-3.

8 Senate Doc., No. 126, 67th Cong., 2nd sess., p. 476.

9 The Shantung Question, op. cit., p. 162.

10 Senate Doc., op. cit., p. 514.

11 Ibid., pp. 514-15.

12 See Wang's, C. H. “ Revision of the Chinese Criminal Code,” ; 13 Illinois Law Review (1918-1919);Google Scholar also Hu's, Wenfu Yiko “ Progress in the Chinese Administration of Justice,” ; 6 Philippine Law Review, 98.Google Scholar

13 Article XIII . See Treaties, Conventions, etc., between China and Foreign States, Vol. I, p. 388.

14 Articles XXI , XXIV , and XXV.

15 In the Treaty of Nerchinsk (1689) with Russia, China agreed to deliver over to Russian officials stationed on the Russian side of the border any Russians caught committing acts of violence on the Chinese side. The arrangement was, however, based on the principle of reciprocity.

16 Davis, , China and Its Inhabitants , Vol. I, p. 20 Google Scholar; Williams, , The Middle Kingdom , Vol. II, p. 427.Google Scholar

17 Inaba, , History of the Tsing Dynasty (in Chinese) , Vol. II, p. 59;Google Scholar Morse, , International Relations of the Chinese Empire , Vol. I, p. 16.Google Scholar

18 Williams, op. cit., pp. 432-3.

19 Ibid., p. 433; Douglas, Europe and the Far East, p. 19.

20 Liu,Recent History of the Foreign Relations of China (in Chinese), p.4.

21 Portugal was then tsmporarily united with Spain under Philip II (1580-1640), and the Netherlands was waging a war of independence against Spanish political domination. But it cannot be admitted that the Dutch had the right to attack Macao because it was a Portuguese settlement located on Chinese soil.

22 Wang, and Hsu, , History of the Manchu Dynasty (in Chinese) , Vol. I, p. 96; Inaba, op. dt., p. 62.Google Scholar

23 Davis, op. cit., p.34; Sargent, , Anglo-Chinese Commerce and Diplomacy , p. 4.Google Scholar

24 The Manchus, one of the two and the last of alien rulers of China, were also actuated by the fear that the Europeans might aid the conquered Chinese natives to thwart their newly established dominion over China.

25 See Morse, op. cit., Ch. V ; also Koo, op. cit., p.65.

26 Referring to the complaints of Europeans and Americans against the severity of the former Chinese penal code and the injustice of the Chinese courts, Professor Williams, E. T. says: “ There was much ground for these complaints, but, in the beginning of Western intercourse with China, Chinese codes were less severe than those of Europe. Many complaints were due to an ignorance of the Chinese language and of the Chinese law. ” Article on “ China at the Washington Conference” in the University of California Chronicle, Vol. XXIV , p. 177.Google Scholar

27 Jernigan calls attention to the fact that at the time China wanted as little intercourse as possible with foreigners, and seeing that it was very difficult to keep them out of her territory, she was willing to let them manage their own household affairs, as best suited themselves when they took up their abode therein. China in Law and Commerce, p.194.

28 Piggott, Exterritoriality, p. 18.

29 Arrest may, however, be effected by the native Chinese authorities in the event of such foreigner or foreigners being caught in the commission of a crime. But, even in this case, the offenders must be turned over immediately to the nearest consul of their nationality for trial and punishment. Moreover, while under arrest, they must not be subjected to any illusage in excess of necessary restraint at the hands of the native officials making the arrest and conveying them to their nearest consulate.

30 Even native servants and employees of the privileged foreigners, who generally live within the foreign settlements in the treaty ports, cannot be arrested without the consent of the senior consul of the settlement or consul of their foreign employer.

31 China is required by the treaties to place foreigners on a common footing of amity and good-will with her own subjects, and agrees that they “shall receive and enjoy, for themselves and everything appertaining to them, the protection of the local authorities of government, who shall defend them from all insult and injury of any sort.”

32 Hall, , International Law (7th ed.) , p. 167 Google Scholar; Hall, , Foreign Jurisdiction of the British Crown , p. 135 Google Scholar; Moore, , International Law Digest , Vol. II, p. 18. However, the policy of the treaty states towards China respecting the interpretation of treaty provisions has always been, and still is, one of very liberal construction.Google Scholar

33 Exterritoriality, p. 21.

34 “For example, if Chinese law prohibits Chinese from going through a certain passage, foreigners cannot claim to go through that forbidden passage in virtue of extraterritoriality. If they go through it, they thereby break a Chinese law; their own national officials are to punish them in accordance with such laws as provide for analogous cases in their country.” Portion of the circular of March, 1878, sent by the Chinese Foreign Office to Chinese Ministers abroad relating to the subject of extraterritorial jurisdiction as interpreted by China. U. S. Foreign Relations (1880), p. 177; Hart, , These from the Land of Sinim, Appendix I , pp. 176-7.Google Scholar

35 It appears that foreigners in China insist upon the retention of their extraterritorial rights for two principal reasons: (1) Because the Chinese judiciary is far from having reached that stage of development in the administration of the law as to gain their complete trust and confidence; and (2) because of the natural reluctance to forego the customary protection of their own national officers and governmental agencies in China.

36 Nationals of non-treaty states also come under the jurisdiction of these “mixed” tribunals.

37 It has been contended, though not seriously, that these are not strictly Chinese courts on the ground that the Chinese phrase “ hui t'ung, ”as contained in the Chefoo Convention of 1876 referring to “ mixed” cases, meant combined or joint action in judicial proceedings which, correctly interpreted, confers equal authority or voice upon the foreign officer sitting with the Chinese magistrate in rendering decisions; hence the equality of power deprive these courts of its Chinese character. North China Herald, Jan. 24, 1906, p. 168.

38 The International Mixed Court at Shanghai is an exception to the rule. It is both a court of first instance and an appellate court. And since it came under the control of the consular body of the International Settlement in 1911, it even has usurped the status of a court of last resort in criminal matters. Chinese offenders are given a rehearing, when there can be shown justification, by the same court which had found them guilty in the first instance.

39 This procedure does not apply to the International Mixed Court and the Mixed Court in the French Concession at Shanghai.

40 “Extraterritoriality is at best an unsatisfactory makeshift. It involves a multiplicity of courts, confusion of laws, and calls forth national prejudices.” G. Ohlinger, “ Extraterritorial Jurisdiction in China,” 4 Michigan Law Review, 348.

41 The first official Chinese protest was presented to the Powers by China at the Paris Peace Conference in 1919.

42 The Shantung Question, etc., op. cit., pp. 163-5.

43 Italians participating in the illicit trade in opium, for example, until October, 1921, absolutely escaped from punishment by their own consular courts, because no Italian law penalizing such trading had been passed by the Italian Government previous to that date. Before the law was passed the worst that could have happened to an Italian detected while trading in opium would have been the confiscation of the commodity by the Chinese Maritime Customs.

44 This evil is fully felt in the“mixed” courts because, contrary to general belief, the foreign assessor, who is usually a junior in his consular service, actually participates in the decision, though not formally. By the treaties he is allowed to attend and watch the proceedings where his nationals are plaintiffs in the interest of justice and to protest against any irregularities; but he has arrogated to himself the power of dictating the judgment. He is there to protect the interests of his nationals, and the Chinese magistrate is fully aware of it. Consequently, the proceedings too often develop into a mere wrangle between the two. Ohlinger, op. cit., pp. 345-6; Latter, The Government of Foreigners in China, 19 Law Quarterly Review, 321.

45 Senate Doc., op. cit., p. 475; North China Herald, April 27, 1906, p. 211.

46 Senate Doc., op. cit., p. 476.

47 Senate Doc., op. cit., p. 476.

48 Willoughby, , Foreign Rights and Interests in China , p. 78.Google Scholar

49 The Shantung Question, etc., op. cit., p. 165.

50 The abuse of the assessor system by consular officials has done more than any other factor in humiliating Chinese national pride and in convincing the Chinese of the foreigners' selfish aggression in the name of justice.

51 The Shantung Question, etc., op. cit., pp. 165-6.

52 Willoughby, op cit., pp. 79-80.

53 “ Extraterritoriality in China and the Question of its Abolition,” The British Year Book of International Law , 1921-22, pp. 143-5.Google Scholar

54 See articles by Rodney Gilbert on “ Russians under Chinese Jurisdiction” in the North China Herald of April 16 and 23, 1921.

55 Many Chinese lawyers, graduates of law colleges in the West, are practicing before the foreign and mixed courts at Shanghai in preparation for service in the new Chinese courts.

56 Willoughby, op. cit., p. 80.

57 As a court of last resort for “mixed” cases it is uncertain whether the appeals should be heard before a bench composed of both foreign and native Chinese judges. As an experiment, however, it seems desirable to allow the latter to adjudicate them, with the former acting as legal advisers on points of procedure.

58 The shortness of time in which China fulfilled her part of the Sino-British Opium Suppression Agreement of 1908 has been used as a favorite argument in favor of setting similarly a definite date for the abolition of extraterritoriality. However, opium suppression does not involve a constructive program and the task is quite different in nature.

59 Sweden agreed in 1908 that she will be prepared to relinquish her extraterritorial rights as soon as all other treaty states have agreed to do the same.

60 See editorial comment by Mr. Hyde, C. C. in this Journal , Vol. XVI, No. 1, pp. 70-4, for an interesting discussion of the protection of foreign interests involved in the restoration to China of her jurisdictional sovereignty.Google Scholar