Declaration made by the Chinese Commissioner at the Conclusion of the Formal Labours of the Commission on Extra-territoriality in China. I. In view of the sincere intentions and unremitting efforts of the Chinese Government during the past decade to improve the laws and the judicial system and the methods of judicial administration of this country, China cherished the hope that the extra-territorial Powers would recognise the advisability of relinquishing without delay all the extra-territorial privileges enjoyed by their nationals. She is disappointed that the commission has found it inexpedient to recommend immediate abolition, owing to the present conditions in the country. II. It is the firm intention of the Chinese Government, on its own initiative, to persist in its policy of judicial reform, the programme for which will include substantially the points alluded to in the recommendations. III. China feels confident that when her judicial programme is carried out, the Powers represented on the commission will, upon the receipt of notice to such effect from the Chinese Government, open negotiations for the final abolition of extra-territoriality. IV. While regretting that the expected immediate abolition of extra-territoriality was not recommended, the Chinese commissioner appreciates, as evidence of the goodwill of the Powers concerned, the recommendations made respecting the immediate discontinuance of practices which are not warranted by the treaties, and other improvements in the existing relations which will promote better understanding between Chinese and foreigners. V. It should be emphasised that the earnest hope of the Chinese people has been, and is, to see the extra-territorial régime abolished, and be replaced by a condition consonant with the sovereignty of their country. This national aspiration can be aided in fulfilment by a sympathetic attitude on the part of the Powers, and the Chinese people look forward with confidence to a further manifestation of that attitude and the early realisation of their legitimate aspirations. Memorandum of the Chinese Commissioner on the present Practice of Extra-territorial Jurisdiction in China. UNDER the terms of the Washington resolution of the 10th December, 1921, the present commission is entrusted with the duty of enquiring, amongst other things, into "the present practice of extra-territorial jurisdiction in China." 3807 Wt. 1250 2/27 F.O.P. 15699 B 2 The documents that have been communicated to the commission by the various commissioners concerning this particular phase of the enquiry have all been confined to a description of the consular jurisdiction as exercised by their respective Governments. In the opinion of the Chinese commissioner, however, the expression present practice of extra-territorial jurisdiction in China" is much more extensive than that of "consular jurisdiction"; it includes, in addition to, "consular jurisdiction," all those matters which. according to the generally accepted principles of international law, should have been subject to Chinese jurisdiction, but which, according to the present practice, whether in virtue of express treaty stipulations or of an unwarranted interpretation of such stipulations, or even without treaty sanction, have been withdrawn from Chinese jurisdiction. It goes without saying that all these matters constitute an infringement of China's sovereign rights. The Powers have repeatedly declared their firm intention of respecting the sovereignty and integrity of China. Article 1 of the Washington Treaty of the 6th February, 1922, is explicit on this point. It declares that the contracting Powers, other than China. agree, inter alia, "to respect the sovereignty, the independence and the territorial and administrative integrity of China." It will be remembered that the third preamble of the Washington resolution regarding extra-territoriality in China states that the Powers therein named are sympathetically disposed towards furthering in this regard the aspiration to which the Chinese delegation gave expression on the 16th November, 1921, to the effect that immediately, or as soon as circumstances will permit, existing limitations upon China's political, jurisdictional and administrative freedom of action are to be removed.' 66 The scope of enquiry of the commission, interpreted in the light of the Washington Treaty and of the resolution quoted above, was not therefore meant to be limited to the question of consular jurisdiction, that is, the trial of foreigners in China by officials of their respective nationalities according to their national laws. Indeed, the very expression used in the said resolution, namely, "the present practice of extra-territorial jurisdiction," indicates that the enquiry is of a more extended scope. It includes, as has just been said. all existing practices of extra-territorial jurisdiction which constitute an infringement of China's sovereignty and integrity and are therefore inconsistent with the terms of the Washington Treaty. The Chinese commissioner therefore ventures to submit the following matters for the consideration of the commission: 1. Consular jurisdiction; 2. Trial of mixed cases between Chinese and foreigners having extra-territorial rights; 3. Trial of cases between foreigners having extra-territorial rights; and (15699) (a.) Foreigners having no extra-territorial rights: 4. Mixed Courts; 5. Quasi right of asylum in premises occupied by foreigners and on foreign ships; 6. Issue of foreign nationality certificates to Chinese citizens; 7. Claim of foreigners to exemption from taxation; 8. Special areas :— (a.) Foreign settlements. (b.) Leased territories. (c.) Legation quarter at Peking. (d.) Railway zones. Cognate matters not contained in the above list will be brought up in the course of our investigation. I.-Consular Jurisdiction. The memoranda submitted by the various commissioners on the organisation and jurisdiction of consular courts or extra-territorial courts of their respective countries contain much valuable information on this particular phase of the subject under consideration. Consular jurisdiction is in derogation of China's sovereignty. Apart from its inherent defects, the present system has the disadvantage of a multiplicity of courts administering in the same locality laws of different nationalities. It is deemed unnecessary to give here a detailed statement of the reasons which have been advanced for the abolition of consular jurisdiction. They are fully set forth in the declarations of the Chinese delegation at the Paris Peace Conference and the Washington Conference. The present consular jurisdiction in China is admittedly an anomalous régime, which is out of harmony with present-day conditions and which, in the mutual interests of China and the Powers concerned, should be abolished. II.-Trial of Mixed Cases between Chinese and Foreigners having Extra-territorial Rights. In "mixed cases" where a foreigner enjoying extra-territorial rights sues a Chinese in the Chinese court, the arrangements concerning the presence of a foreign official at the trial are not uniform according to treaty stipulations. In the case of Japan, Brazil, Mexico (vide article 22 of the Treaty of Commerce and Navigation of 1896 between China and Japan; article 9 of the Treaty of Tien-tsin of 1881 between China and Brazil; and article 14 of the Treaty of Washington of 1899 between China and Mexico), there is no provision in the treaty for the presence of a foreign official in mixed cases before the Chinese court. In the case of other countries-for instance, the United States of America and Great Britain-the presence of the consul or other proper official of the foreign plaintiff at the trial to watch the proceedings is provided for in treaties-notably, the Supplementary Treaty of Peking of 1880 between China and America and the Chefoo Agreement of 1876 between China and Great Britain. Claims have been made by some of the Powers that, according to treaty stipulations, the foreign official present at the trial is entitled to sit as a co-judge with the Chinese magistrate, but these claims have been consistently resisted by the Chinese Government on the ground that the text of the treaty does not warrant such procedure. The present practice is that in all mixed cases before the Chinese magistrate court the foreign official is allowed to be present at the trial to watch the proceedings, but not to sit as a co-judge with the magistrate. III.-Trial of Cases between Foreigners having Extra-territorial Rights and (a) Foreigners having no Extra-territorial Rights; (b) Foreigners of Countries having no Treaty relations with China. (a.) In cases where the plaintiff is a foreigner enjoying extraterritorial rights and the defendant a foreigner without such rights, it has been claimed by some of the Powers that the consul of the plaintiff's nationality is entitled to be present at the trial as if the defendant were a Chinese. The Chinese Government maintains, however, that such claims are unwarranted by any treaty made between China and the foreign Powers, and has consequently never acceded to them. It may be mentioned that Great Britain acquiesced in the contention of the Chinese Government under reservation (letter of the British Legation, dated the 21st October, 1922, in connection with the Viazigin case). (b.) In cases where the plaintiff is a foreigner having extraterritorial rights and the defendant a foreigner whose country has no treaty relations with China, the procedure, as practised in Shanghai, is that, if the case arises in the Shanghai Settlements, it is to be tried by the Mixed Court with an official of a treaty Power as assessor. This procedure has been contested by the Chinese Government on the ground that nationals of countries. without treaty relations with China should be fully subject to Chinese jurisdiction and without the presence of a foreign assessor. In some cases claims have been made by certain Powers that they have jurisdiction over such foreign defendants as being their protégés, and, in spite of the protests of the Chinese Government, these Powers acted as they claimed (the Buzila case, as claimed by France in 1918, and the case of a Greek in Harbin, also claimed by France in 1920). IV.-Mixed Courts. The so-called Mixed Courts exist in Shanghai. Kulangsu and in other places. The regulations governing the Shanghai and Kulangsu Mixed Courts are 1. The Yangkingpang Regulations of 1869 and the Provisional Regulations of 1902 (for the Mixed Courts in the Shanghai International Settlement and the French 2. The Kulangsu Land Regulations of 1913 (for the Mixed Court in Kulangsu). Owing to its importance, the Mixed Court of the International Settlement at Shanghai may be described somewhat in detail. Under the Yangkingpang Regulations of 1869, civil cases involving only Chinese residents of the International Settlement are to be tried by the Chinese magistrate, and in civil cases in which Chinese are defendants and foreigners are plaintiffs a foreign assessor has the right to sit with the Chinese magistrate, who is an official appointed by the Chinese Government. The Yangkingpang Regulations contain no express provision for a foreign official sitting in the Mixed Court in the trial of criminal cases in which the accused is a Chinese. But the Powers have insisted upon the presence of a foreign official in such cases on the ground that every criminal offence is one against the settlement community, and that therefore foreigners are concerned. This contention has not been admitted by the Chinese Government. Since the revolution of 1911, the consular body at Shanghai has assumed control of the Mixed Court, without any treaty sanction. The Chinese magistrate was appointed by the consular body. The foreign assessor is now present also in civil cases involving only Chinese. The maximum sentence in criminal cases was five years' imprisonment, but now there seems to be no limitation whatsoever. A registrar's office has been created, which is staffed by foreigners, and which has control of the internal administration of the court. The detention houses and women's prisons attached to the court are now under foreign control. Yamen runners were formerly employed by the Chinese Government to serve summonses and arrest Chinese. These duties are now performed by the municipal police in the name of the mixed court. An appeal from the judgment of the court used to lie with the Shanghai Taotai and the consul or consul-general of the foreign litigant concerned, but there is to-day no appeal whatsoever even in the case of grave offences. The foreign assessor has, moreover, gradually assumed the rôle of the principal judge, and the court, which is legally a Chinese tribunal, has become virtually a foreign court. Repeated efforts have been made by the Chinese Government for the restoration of the control of the court to China, but up to date the negotiations have proved futile. V. Quasi Right of Asylum in Premises Occupied by Foreigners and on Foreign Ships. In many of the treaties between China and foreign countries there is assured to foreign nationals in China what seems to be a quasi right of asylum is respect of the houses occupied by them |