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XVIII

EXTRATERRITORIALITY AND CONSULAR

JURISDICTION

We have so far surveyed the policies of the Great Powers in China, dealt in Part II with Russia, France, Germany, Great Britain and the United States, and in Part III, exclusively with Japan. We will now proceed to consider the impairment of China's sovereignty, as represented by Extraterritoriality and Consular Jurisdiction, Settlements and Concessions, Leased Territories, Spheres of Influence, the Most Favored Nation Treatment, and Tariff Autonomy. We will begin with the first-named-Extraterritoriality and Consular Jurisdic

tion.

1

By extraterritoriality is meant "a form of privilege or exemption consisting of a limitation of territorial sovereignty with regard to certain persons and certain places, which under international law enjoy the privilege of remaining outside the jurisdiction of the state in whose territory they are situated;" or, in short, it is "an exclusive exemption from the operation of the local law." 2 Defined as such, it is a privilege granted in limitation of territorial sovereignty. In international law it is a fundamental principle that the territorial sovereign exercises supreme power over all the people, natives or aliens, residing within the limits of his territory. With the concession of this privilege, however, the supreme power of the territorial sovereign is limited or impaired to the extent that aliens enjoying this form of special privilege are exempted from the jurisdiction of his tribunals.

Again, it is a privilege that confers the right to exercise jurisdiction over the nationals in a foreign territory.

This right is usually exercised by legislation through the legislative organ of the government, thus making laws to govern nationals abroad, and through the investment of authorities accruing from laws thus made in consular and diplomatic officers residing abroad, and also in the establishment of consular courts and other extraterritorial courts for the administration of justice in the case of nationals. In brief, it extends jurisdiction over the realm of another state and functions with respect to administration of justice over nationals abroad on behalf of the territorial sovereign.

Besides, it is a privilege granted with the consent of the territorial sovereign by way of conventions or treaties, which form the basis of the privilege and without which no foreign Power has the inherent right to enjoy the same. Considered in this light, it is, consequently, merely Ja delegated power from the territorial sovereign to foreign states enjoying the privilege. As such, in accordance with the established rules of interpretation, the exercise of the delegated power must be founded on express or implied grant; any undelegated or unsurrendered Power is construed to remain intact with the territorial sovereign; and, in case of doubt, the uncertainty will be absolved in favor of the sovereign grantor. In other words, the rule of strict construction will apply.

Further, it is a privilege granted only for so long a period as the territorial sovereign is not capable of fulfilling the duties of administering justice and affording protection to life, liberty and property in accord with modern or Western standards of civilization. This, ipso facto, means that as soon as the territorial sovereign is capable and ready to fulfill the necessary duties, the privilege should be surrendered. It is thus a temporary privilege exacted to penalize the territorial sovereign for the relative backwardness of its judicial system, and with the implied obligation to surrender the same as soon as the judicial administration of the territorial sovereign

has advanced to a certain degree of proficiency. "The case of Japan," said Oppenheim, "is an example of the readiness of the Powers to consent to the withdrawal of consular jurisdiction in such states as soon as they have reached a certain level of civilization." 3

Having stated the general principles underlying extraterritoriality, we will now briefly sketch its historical development in China. Prior to the advent of the Maritime Powers, China was accustomed to make reciprocal concession of extraterritorial jurisdiction to the neighboring Oriental states. That is, in extending extraterritoriality to the other Oriental states, she demanded and acquired similar reciprocal privileges. So, in the very first treaty -that of Nerchinsk with Russia in 1689,-reciprocal concessions of extraterritoriality were granted (Art. 2).* Again, in the Treaty of 1727, similar concessions of reciprocal extraterritoriality were provided (Art. 10)," which were, however, altered and amplified by the supplementary treaty of 1768, minutely stipulating the process of arrest and delivery of criminals."

Even in the Treaty of Kouldja in 1851, which took place about a decade after the Maritime Powers had exacted the privilege of extraterritoriality from China, the arrangement was still for a reciprocal concession of extraterritoriality (Art. 7). And it was not until 1858, when Russia sought concessions similar to those accorded to the Maritime Powers under the ægis of the British and French arms, that Russia secured the same privilege of extraterritoriality as were enjoyed by the maritime powers (Art. 7). Likewise, in the Treaty of Commerce and Navigation with Japan in 1872, the privilege of extraterritoriality was not granted unilaterally, but a reciprocal concession thereof was made (Art. 9). And it was not until Japan had defeated China in the War of 1894-5 that she obtained privileges of extraterritoriality such as were enjoyed by the Maritime Powers. In the Treaty of Shi

monoseki in 1895, the grant of the most favored nation treatment was made (Art. 6),10 which naturally included the privilege of extraterritoriality. In the subsequent Treaty of Commerce and Navigation in 1896 the privilege was specifically stipulated (Art. 20). Similarly in the Treaty of Amity and Commerce with Korea in 1899, despite the fact that the other Powers had practically enjoyed extraterritorial privileges for about half a century, Korea was given, not the privilege of extraterritoriality as enjoyed by the other Powers, but the reciprocal concession of extraterritorial jurisdiction (Art. 5).12 Thus the thesis can be ventured that, prior to the advent of the Maritime Powers, China was accustomed to the practice of reciprocal concessions of extraterritorial jurisdiction in her relations with neighboring Oriental states, and, as we shall see presently, that the privilege of extraterritoriality as now enjoyed by the Powers unilaterally was originated by the Maritime Powers.

As the Maritime Powers arrived (particularly Great Britain), the history of extraterritoriality turned a new leaf. They insisted on the enjoyment of the privilege, and yet at the same time, relying upon the superiority of their own civilization, would not consider the idea of reciprocating the same. Thus, China insisted on the assertion of territorial jurisdiction over these "barbarians," whereas the Maritime Powers resisted and claimed exemption. Relating the instances of this conflict, J. B. Moore wrote: 13

"When crimes had been committed there by foreigners other than Portuguese, the Government had never failed to assert its jurisdiction to seize the accused if accessible on land, and to demand his surrender if on board of a ship. The claim of surrender had sometimes been successfully resisted, and some time's acquiesced in. In 1780, a French seaman, who killed a Portuguese seaman in one of the hongs of Canton, was delivered up to the local authority, by whom he was tried, convicted, and ex

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