SHIH SHUN LIU
Its Rise and Its Decline
I. TURKEY (^)
- I. TURKEY
- II. PERSIA
- III. JAPAN
- IV. SIAM
- V. CHINA
- Notes by the Author
- The last method of procedure in attempting to secure the modification or abrogation of extraterritoriality is by diplomatic negotiation, which usually results in an agreement of one sort or another. In classifying this method as distinct from the above-mentioned, the fact is not lost sight of that in all the other methods described, a larger or smaller measure of diplomatic negotiation is also involved. But in all of them, except in the case of unilateral cancellation, which is an illegal method, the negotiation is carried on between the foreign Powers on the one side and, on the other, Powers other than those which originally granted the extraterritorial rights. In this chapter, we shall deal with the negotiations in which the States granting these rights have engaged with the foreign Powers to get rid of the same.
Turkey availed herself of this method at the Congress of Paris in 1856. During the session of March 25, the question of abolition was brought up for discussion. Ali Pasha argued that the Capitulations were disadvantageous alike to the foreigner and to the Ottoman Government; that they created "a multiplicity of governments in the Government;" and that they were an insuperable obstacle to all reform. Count Clarendon, Count Walewski and Count Cavour expressed themselves very sympathetically and were favorably inclined to the Turkish point of view. On the other hand, Count de Buol and Baron de Burquency hesitated to grant to Turkey her judicial autonomy at once. While agreeing that the Capitulations needed modification, Baron de Burquency deemed it important that the modification should be proportionate to the judicial reforms inaugurated by the Ottoman Empire. A protocol was drawn up and signed, embodying the wish (voeu) that a conference should be assembled at Constantinople, after the conclusion of peace, to deliberate upon the matter . The promised conference was, however, never held.
After the failure of 1856, Turkey was for a long time unable to shake off completely the restrictions on her judicial autonomy. It was only recently that some Powers evinced a readiness to assist Turkey in recovering her independence in the realm of justice. By the treaty of February 26, 1909, Austria-Hungary engaged to give "her full and sincere support" to the Turkish negotiations for the abolition of the capitulatory regime . In 1912, Italy made an identical promise .
More recently, the Ottoman Empire has succeeded in concluding treaties with certain Powers, recognizing the cessation of the capitulatory régime in Turkey. At the beginning of the European War, Germany and Austria-Hungary offered as the price of Turkish assistance in the conflict their consent to abrogate the Capitulations. This was later confirmed by Germany in a treaty of January 11, 1917, which provided that Germans in Turkey and Turks in Germany should enjoy the same treatment as the natives in respect of the legal and judicial protection of their persons and property and that to this end they should have free access to the courts and be subjected to the same conditions as the natives . On August 6, 1917, a law was promulgated by the German Emperor for the execution of the treaties of January 11, 1917. It laid down that by imperial order it could be determined (bestimmt) to abolish the rights of jurisdiction enjoyed by the German consuls in Turkey . Austria abolished her extraterritorial rights in Turkey by the treaty of March 12, 1918 .
On January 6, 1921, a treaty was concluded with the Soviet Government in Russia, which declared:
The Government of the R. S. F. S. R. considers the Capitulatory régime to be incompatible with the free national development and with the sovereignty of any country; and it regards all the rights and acts relating in any way to this regime as annulled and abrogated .
At the Conference of Lausanne, November 22, 1922 - February 4, 1923, a Commission headed by Marquis Garroni of Italy was charged with the examination of questions relating to the régime of foreigners in Turkey. The Commission held its first meeting on December 2, 1922, at the opening of which Marquis Garroni recognized "that according to present-day ideas of law the capitulatory regime is regarded as liable to diminish the sovereign powers of an independent State; and it is intelligible," he added, "that Turkey should demand the abolition of this regime, which has had its day." He desired, however, that the Turkish Government would "substitute for it such guarantees as regards legislation and administration of justice as will inspire confidence in all those who will be obliged to have recourse thereto." Three Sub-Commissions were created, the first of which was to deal with the legal position of foreign persons in Turkey .
At this same meeting a memorandum, was read by the Turkish delegation. It began by explaining the origin of the Capitulations and after reviewing what was promised by the Powers in 1856, continued thus:
This shows that as long as sixty-six years ago the representatives of England, France and Italy recognized in so solemn a Congress as the one described, the necessity of terminating the Capitulations because of their incompatibility with modern conceptions of law, and because of the manner in which they infringed the sovereignty of the State.
During the period subsequent to the conclusion of the Treaty of Paris, Turkey has worked feverishly at the perfection of her judicial system, which she had already taken in hand.
The commercial code, the penal code, the codes of civil and penal procedure, as well as the laws regarding the "Tribunaux de Paix," and also all the administrative laws and regulations, have been established on the model of codes and laws in force in European countries.
Above all, it has quite recently been possible to carry out a very important reform in the civil law, by which our judicial institutions have been completely secularized; the free will of the parties in the matter of contracts and agreements has been recognized as paramount, and the principle of the freedom of the will has been accorded the same place as in Europe; further, while these laws were being elaborated and promulgated, a faculty of law was instituted at Constantinople, whose programme is more or less identical with that of the corresponding faculties in Europe. This situation has produced during forty years a body of distinguished judges and advocates who possess all the necessary qualifications, and it is to them that at the present time the important task of administering justice is assigned.
A considerable number of young men have since the change of régime in 1908 studied in the various faculties of law of the Empire, and are now appointed to various posts in the magistracy.
After mentioning the treaties which the Turkish Government concluded with Austria-Hungary, Italy, Germany and Russia in the present century, the Turkish statement went on to enumerate the defects of the capitulatory regime.
With regard to civil matters, the Turkish statement alluded to the unsavory effects of the existence of a multiplicity of laws and jurisdictions. The parties to a contract had to be familiar with the laws of each foreign country, in order to live up to their requirements, and in case of an appeal, application had to be made to a court of appeal of the country whose nationals the foreigners concerned were. Even in the mixed tribunals, difficulties of procedure were not wanting. The judges were not men of legal training; they were as a rule partial to their compatriots; and they had so many other duties to perform that interminable delays were caused in the administration of justice.
The attitude of the foreign members (who supported the foreigner with great partiality as though they were his advocates), and especially that of the dragomans, caused regrettable misunderstandings which caused the matter to be transferred from the judicial domain to that of diplomacy. This state of affairs caused the suits to drag on for a very long time and made it impossible for the Commercial Court to bring them to an end.
Even after the judgment had been pronounced, there were numerous obstacles to its execution. "Indeed, it was no rare thing to see judgments given against foreigners remain unexecuted."
On the penal side, the hands of the Turkish authorities were tied by the treaty restrictions, of which the consular officers made the widest use, "in order to withhold deliberately from justice offenders who had infringed the public order and security of the country." When a criminal took refuge in the abode of a foreigner, the police could not lay its hands upon him in the absence of the dragoman, and in the meantime the criminal found a means of escaping. Besides, owing to the requirement of hearing a foreign witness in the presence of the dragoman, either or both could exercise an influence on the progress of the prosecution "by answering the summons or by refusing to appear." The statement ended the enumeration of the defects of the capitulatory regime with the assertion that "similarly, difficulties arose in connection with the execution of sentences in criminal cases," and that "the sovereignty of the state and the prestige of the judicial authority were as gravely prejudiced." Then the statement went on to cite authorities in substantiation of the defects and disadvantages mentioned, and sought to justify the cancellation of the Capitulations by the Porte in 1914, on the ground that they were originally unilateral acts subject to revocation, and that a treaty is voidable on the principle of rebus sic stantibus . Finally, after summing up the arguments advanced, the Turkish delegation concluded their memorandum by saying:
In view of the foregoing, the Government of the Grand National Assembly of Turkey can in no wise agree to the reestablishment of the Capitulations, which are in direct conflict with the modern conception of a State and with the principles of public law .
At the second meeting of the Commission on the Régime of Foreigners in Turkey, held on December 28, 1922, Marquis Garroni told the delegates that the sub-commission dealing with the judicial régime of foreigners in Turkey, under the presidency of Sir Horace Rumbold, had found it impossible to continue its labors in consequence of differences of view between the Allies and Turkey .
A report rendered by Sir Horace was read, telling of what had transpired at the meetings of the sub-commission. According to this report, the Allied and Turkish delegates exchanged questionnaires and answers, proposals and counter-proposals, on the various questions discussed. From the very beginning, the discussion revealed a considerable, though not fundamental divergence of view a divergence which was fortunately narrowed by concessions made on either side. One of the concessions made by the Turkish delegation was that all questions of personal status affecting foreigners were to be subject to the exclusive jurisdiction of the national tribunals or other competent national authorities in the country to which the foreigners belonged. As the discussion proceeded further, the divergence of view increased, especially when it was proposed that Turkey should admit foreign judges to its magistracy and permit them to participate in its legal reform. Regarding these two questions
the Turkish delegation strongly maintained that any introduction into the Turkish judicature of a special element, even in the conditions suggested in the questionnaire, would constitute an encroachment on the sovereignty and independence of Turkey. The Turkish delegation maintained with no less insistence that existing Turkish legislation amply met the requirements of modern life; that one could without any apprehension leave to the Grand National Assembly the duty of applying to this legislation such modifications as might seem necessary from time to time; that the Turkish judicature, which had been recruited for over forty years from among the graduates of the faculty of law [in Constantinople], was fully qualified for its task, and that foreigners no less than Turkish nationals would find in the legislative and judicial system of Turkey all the guarantees required for the safety of their persons and their interests.
At the end of this discussion of the sub-commission, a draft containing the detailed proposals of the Allies was handed by the president to the Turkish delegation, inviting the latter to entrust its legal adviser with the examination of this draft, in consultation with the Allied legal advisers, with a view to the satisfactory settlement of the question. Finally, the Allied legal advisers had to inform the sub-commission of their failure to reach an agreement with the Turkish adviser, and after a fruitless attempt to secure from the Turkish delegation any counter-proposals which they might desire to make, the sub-commission had to report to Marquis Garroni that it was unable to continue its work .
At the second meeting of the Commission on the Régime of Foreigners, Ismet Pasha once more objected strenuously to the imposition of foreign judges on the Turkish magistracy. "The Turkish delegation were greatly astonished," he declared, "to find themselves confronted with such a proposal, the purpose of which is to institute a regime clearly incompatible with the independence and sovereignty of Turkey." He emphasized and re-emphasized the progress which Turkey had made in her judicial reform and the sufficiency of the guarantees offered by it in place of the Capitulations. As evidence of this fact, he testified that
the régime of general international law which has been operative in Turkey since 1914, without the conclusion of any convention whatever, has never given rise to any complaint on the part of the very numerous nationals of neutral States, or on that of the Allied nationals who remained in Turkey. The experience acquired during this long period of eight years has proved that Turkish institutions are entirely adequate and contain all the guarantees necessary for safeguarding the interests in question.
On the other hand, it was asserted that of the new countries no such guarantee as it was sought to impose on Turkey were required. The address of the Turkish delegate ended with the challenge that
the Turkish Government have no fear in calling upon the public opinion of the world to judge and compare the treatment accorded to foreigners in Turkey by the Turks, both in the past and at present, and the cruel and arbitrary treatment to which the Turks have been subjected by foreigners at Constantinople and elsewhere at the same time and under the same conditions.
In the discussion that followed, the Allied delegations showed their dissatisfaction with the position taken by Turkey. M. Barrère was the first to speak, and he found it impossible for the French delegation to accept the blank refusal meted out by the Turkish delegation to the Allied proposals. It would be impossible, he said, for the French delegation to consent to the suppression of the Capitulations, were sufficient guarantees not offered by the Turkish Government. Baron Hayashi dwelt upon the experience of Japan with regard to the abolition of extraterritoriality, and urged the Turkish delegation to adopt a conciliatory attitude. Mr. Child, the American unofficial "observer," discoursed on the sanctity of international obligations and the fundamental equity which foreigners might expect from the Turkish Government, pointing out "that treaties which give foreigners a status of security in Turkey can deprive Turkey of nothing, and indeed would be the very foundation of her economic future." Lord Curzon, after alluding to the remarks that had been made by his colleagues, openly declared himself to be in accord with what the French delegate had said. He then reviewed the arguments of Ismet Pasha, showing their invalidity, and ended with the plea that the Turkish Government consider very carefully what had been said and perhaps at a later date give the Allies an opportunity of hearing their revised views on the subject .
The third meeting of the Commission on the Régime of Foreigners was held on January 6, 1923. In reply to the speeches made by the Allied representatives at the previous meeting, Ismet Pasha read a long statement, adhering to the decision that the Turkish Government had already come to. Comments were made by the various delegations on the substance of the speech, the general hope being that the Turkish delegation would formulate counter-proposals, which would make it possible to find some common ground of agreement. But Ismet Pasha insisted that he was not in a position to make further concessions .
At the fourth meeting of the Second Commission, held on January 27, 1923, Marquis Garroni reported on the suggestions that had been made to the Turkish delegation regarding the judicial guarantees to be offered to the foreigners. What had been suggested was the attachment of certain European legal advisers to the Turkish Ministry of Justice and judicial régime .
In the draft terms of the treaty of peace presented to the Turkish delegation on January 31, 1923, it was provided that "the High Contracting Parties agree to abrogate the Capitulations relating to the regime of foreigners in Turkey both as regards conditions of entry and residence and as regards fiscal and judicial questions" . Together with the draft treaty was sent a draft convention, in pursuance of which the foreigners were to have free access to the Turkish courts; actions in real property, as well as in civil, commercial and criminal matters, were placed under the jurisdiction of the Turkish courts; questions of personal status, under that of the national tribunals or other national authorities established in the country of which the parties were nationals; and the Turkish Government was obliged to ensure to foreigners in Turkey, both as regards person and property, protection in accordance with international law .
To this draft convention a draft declaration was attached, whereby Turkey was to engage that foreign legal counselors would be chosen to assist in the administration of justice in Turkey in accordance with the latest proposals of the Allied delegations .
Subsequent to the meetings of the Commission on January 31 and February 1, informal conversations between Ismet Pasha and the plenipotentiaries of the three inviting Powers took place, as a result of which further concessions were offered to Ismet Pasha on February 3 and 4. Regarding the draft declaration relative to the administration of justice in Turkey, the inviting Powers offered to replace it by another, under which the legal advisers were to possess no judicial functions and were to have merely general powers of observing the working of the Turkish courts, ensuring appeals against improper decisions and bringing complaints to the notice of the proper Turkish authorities .
In his reply to the Allied offers, dated February 4, 1923, Ismet Pasha, expressing the hope that there would be no longer any difficulty in settling the small differences which had arisen regarding the judicial guarantees to be offered by Turkey, attached a revised draft of the declaration, which tended to curtail the powers of the legal counselors .
On this same day, a last-minute effort was made by Lord Curzorn and his French and Italian colleagues, in an informal meeting in the British delegate's room, to arrive at a final settlement, but owing to the Turkish delegation's insistence on their point of view with regard to the economic and judicial issues, the conference was broken up without accomplishing its desired end .
The Lausanne Conference was resumed on April 23, 1923 , when three committees were created, the first of which was designated as the General Committee, to deal with the outstanding political questions and the judicial part of the draft convention respecting the régime of foreigners in Turkey . At a meeting of this Committee, on May 1, the Turkish delegation took exception to any specific provision for the abrogation of the Capitulations in Turkey, as, in their view, the latter had become a fait accompli since 1914. The Allies, supported by the Americans, held that bilateral treaties could not be abolished by a unilateral act, but they accepted the Turkish point of view in principle, subject to the discovery of a satisfactory formula for article 26 of the draft treaty. This article, as has been seen, provided that the High Contracting Parties "agree to abrogate" the Capitulations, while the Turkish delegation desired it to read "declare completely abrogated" .
The discussion with regard to the judicial status of foreigners in Turkey came to a head at the meeting of the first committee on May 4. The point at issue was a provision in the draft declaration to the effect that domiciliary visits, searches or arrests of persons other than those taken in flagrante delicto could be carried out in the judicial areas of Constantinople, Smyrna, Samsoun and Adana only with the previous consent of one of the foreign legal counselors .
The Turks claimed that the Allies had accepted a counter-draft presented by the Turkish delegation on February 4, which omitted this provision , while the Allies denied it. After a prolonged debate, Sir Horace Rumbold proposed that the Allies' counter-draft and the old draft would be examined by the drafting committee. Ismet Pasha still persisted, and finally Sir Horace said that the Allies would circulate their counter-draft and, waiving its proposed examination by the drafting committee, reserved the right to discuss it again in committee .
On June 4, the Allied and Turkish delegations smoothed over their difficulty by reaching a compromise on the disputed point. Instead of requiring the previous consent of the legal counsellors to the domiciliary visits, searches and arrests in the four judicial areas, all such measures taken in Constantinople and Smyrna should be brought without delay to the notice of the legal counselors .
The Treaty of Peace, together with the subsidiary agreements, was signed on July 24, 1923. Article 28 of the Treaty of Peace provided: "Each of the High Contracting Parties accepts, in so far as it is concerned, the complete abolition of the Capitulations in Turkey in every respect" .
The Convention (IV) respecting Conditions of Residence and Business and Jurisdiction recognized the application of the principles of international law in all questions of jurisdiction . The much-debated declaration was also signed in the form accepted on June 4 by the Turkish delegation. By this declaration, the Turkish Government proposed to engage for a period of not less than five years a number of European legal counselors, to be selected from a list prepared by the Permanent Court of International Justice front among jurists nationals of countries which did not take part in the World War. These legal counselors were to serve as Turkish officials under the Minister of Justice, some of them being posted in Constantinople and others in Smyrna. Their duties were specified as follows: to take part in the work of the legislative commissions; to observe the working of the Turkish courts and to forward such reports to the Minister of Justice as were deemed by them necessary; to receive all complaints regarding the administration of justice, with a view of bringing them to the notice of the Minister of Justice in order to ensure the strict observance of law; and to receive all complaints caused by domiciliary visits, perquisitions or arrests, which should, in Constantinople and Smyrna, be brought immediately after their execution to the notice of the legal counselor by the local representative of the Minister of Justice .
Article ii of the as yet unratified Turco-American treaty of August 6, 1923, also provides for the termination of the extraterritorial rights of the United States in Turkey .
II. PERSIA (^)
At the Paris Peace Conference, the Persian delegation presented three groups of claims, the first group containing their case for the abolition of extraterritoriality. After reciting briefly the facts involved, the statement of the Persian delegation went on to say:
Meanwhile, for a number of years, the Persian Government have entered resolutely in the path of judicial reforms, with the aid of foreign advisers, taking France as a model. The work of codification is being actively pursued and Persian justice will shortly offer all the guarantees of justice as in the European States. Consequently, there is no reason to continue indefinitely the peculiar situation created in favor of foreigners in Persia and the time has come to terminate it .
Therefore, the Persian Government claimed "that the treaties made between Persia and foreign countries be subjected to a revision, to the end that all clauses contravening the political, judicial, and economic independence of Persia be eliminated" . But due to the inability of the Persian Government to "organize, administer, or control the Kingdom of Persia within the pre-war boundaries," the Persian delegation did not get a chance to state their case .
The only European Power which has abandoned its rights of jurisdiction in Persia is Russia. By the treaty of February 26, 1921, it was agreed by Persia and Russia "that Russian subjects in Persia and Persian subjects in Russia shall, as from the date of the present Treaty, be placed upon the same footing as the inhabitants of the towns in which they reside; they shall be subject to the laws of their country of residence, and shall submit their complaints to the local courts" . The reason for the action of the Soviet Government is plainly stated in the opening article of the treaty:
In order to confirm its declarations regarding Russian policy towards the Persian nation, . . . the R. S. F. S. R. formally affirms once again that it definitely renounces the tyrannical policy carried out by the colonizing governments of Russia which has been overthrown by the will of the workers and peasants of Russia.
Inspired by this principle and desiring that the Persian people should be happy and independent and should be able to dispose freely of its patrimony, the Russian Republic declares the whole body of treaties and conventions concluded with Persia by the Tsarist Government, which crushed the rights of the Persian people, to be null and void .
Thus, the relinquishment by Russia of extraterritoriality in Persia represents partly an attempt to atone for the injustices inflicted by Czarist Russia on Persia, and partly an endeavor to restore the administrative autonomy of the latter country .
III. JAPAN (^)
After the disturbances incident to the overthrow of the Shogunate and the restoration of the Mikado, Japanese statesmen addressed themselves seriously to a movement for reform, which was destined to startle the world. They saw that two of the sovereign rights of their country tariff and jurisdiction had been sadly impaired (*A), and that in order to take her place among the Great Powers of the world (*B), it was imperative for Japan to regain her autonomy in these particulars.
They took advantage of the provision made in various treaties for their general revision in 1872, and a commission headed by Prince Iwakura, and including Kido, Okuba, Ito, Yamagutsi, was sent out in 1871, to negotiate for the revision and to study institutions abroad. The Commissioners were heartily received by the people and government of the United States. The American Government promised to treat with Japan most liberally, but it was found that the Commissioners were not clothed with the authority to conclude and sign a treaty. Their mission to Europe proved to be a complete failure. The Powers were unwilling to relinquish their extraterritorial rights before Japan could show an improved system of law and judicial administration . (*D)
In the meantime, the Minister of Italy at Yedo proposed, in 1873, a special convention with Japan relative to the travel of foreigners in the interior. The draft convention contained a provision which required the foreigners traveling beyond the limits of the jurisdiction of their consuls to submit to the protection and jurisdiction of the territorial authorities, "according to the usages which prevail in the countries of Europe and America" .
Taking cognizance of this draft treaty, the French Government instructed its representative at Washington to sound the American Government on its opinion regarding the Italian proposal . On June 21, 1873, Mr. Hamilton Fish, American Secretary of State, wrote to Mr. Schenck, American Minister at London, to seek an interview with Earl Granville and to communicate to him the views of the American Government. Mr. Fish declared:
Japan has no firmer friend than the United States; no one more ready than we to recognize her rightful autonomy. But on a candid review of the situation, the President is forced to the conclusion that it is not yet safe to surrender to the local authorities the guaranteed rights of ex-territoriality. We have not such knowledge of the administration of justice in that kingdom, and of the means for the protection of the liberty and rights of foreigners, as would justify such surrender at this time .
Similar instructions were sent out to the American Ministers at Paris, Berlin and the Hague . Due to the disapproval of the Powers , the Italian Government was obliged to "refuse to accept the conditions proposed by the projected convention as a basis of free travel in the interior of Japan" .
The importance of this episode lies in the fact that from the very outset, the Powers have conditioned their consent to the modification of extraterritoriality in Japan on a commensurate amelioration of the judicial system in that country. As the following account of the Japanese negotiations with the Powers will show, this fact was ever present in the minds of the negotiators on both sides.
Impressed with the failure of the mission of 1871, and with the need of speedy reform in her judicial system as well as in other matters, Japan plunged into a vigorous attempt to improve her internal conditions. Students were sent abroad to imbibe the spirit of Western civilization, at the same time that foreigners of distinction were called to Japan to help and advise in this general reform movement . In 1875, an imperial decree was issued, convoking the provincial assemblies, in order that the emperor might "govern in harmony with public opinion." In the same year, British and French troops stationed in Yokohama for the protection of their respective nationals were withdrawn, the first manifestation on the part of the European nations of a disposition to respect the sovereignty of Japan. Edicts followed in rapid succession, which provided for the compilation of a constitution after Western models, enacted and put into force a penal code and a code of procedure, and announced the convocation of a national parliament .
With this program of reform under way, the Japanese Government, in 1878, approached the Diplomatic Corps at Tokio for a revision of the treaties. The Foreign Minister of Japan pointed out to the foreign Powers concerned the abuses of the extraterritorial system  and asked for its modification. To this, the Powers, except the United States, again turned a deaf ear, Great Britain being the leading obstructionist. The United States dissented from the general attitude of the Powers by concluding with Japan a treaty giving the latter full right over her tariff . This treaty was of no significance except as a specimen of American sympathy with the Japanese aspirations, as its validity was conditioned on the conclusion of similar treaties with other Powers, which was not done .
On February 25, 1882, a conference was opened at Tokio, to consider the question of treaty revision. Count Inouye, representing Japan, told the foreign representatives of the efforts made by his country to reform her internal administration in every respect. "I may call your attention," he said, "especially to the reforms brought into our laws and our judicial procedure, which assure the security of person and property by the introduction of codes of law and of criminal procedure in conformity with modern ideas." He believed that the moment had come when all the obstacles to the free intercourse between Japan and the Powers should be removed. The Japanese Government, he declared, "proposes now to open the whole country to foreigners and to accord to them access to all parts of the Empire, on condition that they submit to Japanese law" . Due to a disagreement on the permanency of treaties, however, Japan was unable to reap anything out of the conference .
A more formal effort was made in 1886, when a diplomatic conference was called at Tokio. At this conference, Count Inouye, the Foreign Minister, again took an active part. The deliberations were extended to the following year, when Japan agreed that in addition to the native judges there should be a body of European and American experts, who should constitute a majority in every court before which aliens might be required to appear. When this important concession was obtained, the Europeans went further and insisted that the judges should be nominated by the Diplomatic Corps and that the latter should control the laws, rules of procedure, and details of the administration of justice. Upon receiving news of these exorbitant demands, the Japanese public was greatly excited, and a wave of indignation swept over the whole country. Count Inouye was forced to give up his portfolio, and in July, 1887, the Foreign Office notified the foreign representatives that the treaty negotiations were to be adjourned till the completion of the new codes under preparation . During the conference, the United States showed a friendly attitude to the Japanese point of view and concluded with Japan a treaty of extradition on April 29, 1886 . In submitting the treaty to the Senate, President Cleveland declared that it had been made partly because of the support which its conclusion would give to Japan in her efforts towards judicial autonomy and complete sovereignty .
Count Inouye was succeeded by Count Okuma in the Foreign Office. The new Minister changed his tactics, and instead of seeking for the collective support of all the Powers, he endeavored to enter into separate agreements with each one of them. On November 30, 1888, a treaty was concluded with Mexico, which fully recognized Japan's judicial control over Mexican citizens and vessels within the territorial limits of Japan . Meanwhile, negotiations were resumed with Great Britain. On January 19, 1889, a draft treaty and two draft notes were transmitted to the British Government by the Japanese Minister at London. The terms contained in these drafts pertaining to extraterritoriality were briefly: that for five years after the coming into force of the proposed treaty, British consular jurisdiction in Japan should be limited to a restricted number of ports; that outside of these limits Japanese courts should have exclusive jurisdiction; that British consular jurisdiction should "wholly cease and determine" at the expiration of the five-year period; that the Government of Japan should strive to complete the elaboration of Japans law codes within the following year; that in case such elaboration should be delayed beyond two years after the proposed treaty was concluded, the Japanese Government should then ask for the postponement of the date of totally abolishing British consular jurisdiction until at least three years after the codes in question should have been promulgated; and that the Japanese Government should engage a number of foreign judges in the Supreme Court, to constitute a majority in cases involving foreigners as defendants . In their counter-drafts, the British Government accepted the Japanese terms with slight modifications . But the offers made by Japan were again resented by the Japanese public, and the party in opposition to Count Okuma declared his treaty measure to be unconstitutional. The popular indignation became so intense that on October 19, 1889, a fanatic threw a bomb at Count Okuma, and the work of treaty revision was again suspended .
After these failures, the Japanese Government abandoned the hope of success in diplomatic negotiations. Efforts were exerted to push on the reform movement, with a view of winning over foreign sentiment by means of visible signs of progress. In this, the Japanese were much more successful than in their previous resort to diplomacy. The reforms culminated in the promulgation of the imperial constitution in 1889 . In 1891, the Civil Code, the Code of Civil Procedure, the Commercial Code, and the Code of the Constitution of Courts were promulgated, thus completing the entire Japanese legal system .
Viscount Aoki, who succeeded Count Okuma as Foreign Minister, again took up the negotiations for treaty revision. He insisted on the judicial autonomy of Japan. His correspondence with the British Government on the employment of foreign judges and the completion of Japan's legal codes, gives additional evidence of the importance of the legal argument in every attempt at the modification of the extraterritorial régime.
With reference to the improvement of the Japanese judiciary, Viscount Aoki enumerated the specific reforms brought about since 1872, viz.: the creation of a separate and independent system of courts; the promulgation of various codes of law and the imperial constitution; the introduction of a system of competitive examinations for appointments to the judgeships; and the promulgation of a new law providing for a comprehensive and complete reorganization of the imperial courts of justice. Having dwelt upon the above-mentioned reforms, Viscount Aoki declared:
In the light of these important facts, it may be asserted, without fear of contradiction, that when Japanese Tribunals supersede Consular Courts, no case in which a foreigner is interested will ever be tried in Last Instance, except by a Court composed, at least, of a majority of Judges, who have submitted to the test of a severe competitive examination, and are, consequently, well grounded in the principles of Western jurisprudence, besides being thoroughly conversant with the laws of Japan.
In addition to the improvement of the Japanese courts, Viscount Aoki attempted also to show the progress which the Japanese Government had made in bringing the work of codification to its completion. He said:
Nearly ten years have elapsed since the Criminal Code and the Code of Criminal Procedure were promulgated, and the time can now only be reckoned by months before the Constitution which was promulgated a year ago will come into force. The Imperial Government have for years been engaged in the labor of elaborating Civil and Commercial Codes, and it is a matter of public notoriety that these great works are nearly completed, and will ere long be proclaimed. And the fact that they have not already been promulgated, in the presence of so many inducements connected with Treaty revision, betrays the solicitude of the Imperial Government that, when issued, they shall be complete .
The British Government proposed a new draft treaty, which provided that British consular jurisdiction should continue to be exercised for five years and that if at the end of this period the new codes of Japan should have been in actual and satisfactory operation for twelve months, Great Britain would relinquish her extraterritorial jurisdiction . This draft treaty was accepted by Viscount Aoki as a basis for further negotiation .
Viscount Aoki was succeeded by Viscount Enomotto, who shared the view that before the abolition of extraterritoriality could be expected, there should exist in Japan in actual operation a satisfactory system of jurisprudence. Although the new codes had been promulgated in 1891, the civil and commercial codes were not immediately put into force. When the Upper House was deliberating on the question, on May 26, 1892, Viscount Enomotto appeared on the scene and made a speech, in which he openly disabused the minds of those who dreamed of securing judicial autonomy without offering adequate guarantees to foreign life and property. He said:
In considering the clauses in need of revision as a whole, our motto must be simply the protection of our ancient national rights and national interests, and for the accomplishment of this purpose there is one method, and one only, that of enacting and carrying into effect a Code of Laws fit to be accepted by the civilized nations of the world.
However eagerly all classes of Japanese may desire to possess a Treaty free from all imperfections and defects, it admits of no manner of doubt that until such a Code of Laws shall be in operation friendly countries will withhold their consent to revision. . . . Those persons who descant upon the shortcomings of the present Treaties are in the habit of looking back to the time of their inception, and attributing their defects to the limited knowledge of foreign affairs possessed by the Ministers of the day. But the Ministers of thirty years ago could not possibly be intimately acquainted with the circumstances of foreign countries, and even granting the necessary experience in exceptional instances, the Treaty Powers could not have been induced to subject the precious lives and property of their sub-jects to the laws of Japan, and that for the very good reason that there were at that time no laws fit to be enforced in a civilized society, to whose protection their lives and property could have been committed .
In spite of Viscount Enomotto's eloquent plea, the imperial diet passed a law, which was sanctioned by imperial decree on November 24, 1892, postponing the operation of the Civil and Commercial Codes .
In 1892, the Japanese Government took advantage of the withdrawal of consuls by Portugal, and issued an ordinance putting an end to the consular jurisdiction hitherto enjoyed by Portugal in Japan . Between January 18, 1893, and April 10, 1894, notes were exchanged with the Hawaiian Government, by which the latter abandoned their rights of jurisdiction in Japan .
Meanwhile, negotiations had once more been resumed with Great Britain and other Powers for the revision of their treaties with Japan. In 1894, the conversations with Great Britain were transferred from Tokio to London. Viscount Aoki, who was then Japanese Minister at Berlin, was instructed to go over to London to carry on and finish the work of treaty revision. Finally, after assuring the British Government of the actual reforms introduced by Japan into her judicial system , Viscount Aoki succeeded in obtaining from Great Britain a new treaty, which was signed on July 16, 1894. Article 20 provides for the abrogation of all existing treaties and of the extraterritorial rights enjoyed by Great Britain under them. Article 21 stipulates that "the present Treaty shall not take effect until at least five years after its signature" . The intent of the latter provision is clearly explained by the note of Viscount Aoki to Earl Kimberley, July 16, 1894, which announced:
That the Imperial Japanese Government, recognizing the advantage of having the Codes of the Empire which have already been promulgated in actual operation when the Treaty stipulations at present subsisting between the Government of Japan and that of Great Britain cease to be binding, engage not to give the notice provided for by the first paragraph of Article XXI of the Treaty of Commerce and Navigation, signed this day, until those portions of said Codes which are now in abeyance are brought into actual force .
Treaties were also entered into with the United States, November 22, 1894 , Italy, December 1, 1894 , Peru, March 20, 1895 , Russia, May 27/June 8, 1895 , Denmark, October 19, 1895 , Brazil, November 5, 1895 , Germany, April 4, 1896 , Sweden and Norway, May 2, 1896 , Belgium, June 22, 1896 , France, August 4, 1896 , the Netherlands, September 8, 1896 , Switzerland, November 10, 1896 , Spain, January 2, 1897 , Portugal, January 26, 1897 , Chile, September 25, 1897 , Austria-Hungary, December 5, 1897 , Argentina, February 3, 1898 , and Greece, May 20/June 1, 1899 . These treaties put an end to consular jurisdiction in Japan; they all took effect in July and August, 1899.
The close proximity of the dates of these negotiations and of the Sino-Japanese War has led to the conception or misconception that Japan's success in that conflict was mainly responsible for the restoration of her judicial autonomy and her other rights of sovereignty. To cite a typically inaccurate statement,
Prior to her victory over China, she [Japan] was subject to foreign aggression as much as China, but subsequent to the Chino-Japanese War, when she had demonstrated her prowess and ability, her sovereignty remained intact and immune from all external aggressions; what is more, she recovered her lost, or delegated rights of sovereignty .
For the sake of scientific accuracy, the author deems it necessary to devote a few words to the refutation of this widely held belief.
At the very outset, it may be admitted that the victory of Japan over China in the war of 1894-95 had much to do with the increase of Japan's prestige in the world. To the political ascendancy of the island empire, the Sino-Japanese War doubtless contributed signally. But to say that the recovery of Japan's sovereign rights was due to her defeat of China and especially to ascribe the abolition of extraterritoriality in Japan to that event would be to ignore many other important considerations.
In the first place, it must be pointed out that if we compare the dates more carefully than is usually done, we will find that the most important treaty abolishing extraterritoriality in Japan was concluded prior to the opening of the Sino-Japanese War; to say nothing of the treaty of November 30, 1888, with Mexico, and the exchange of notes of January 13, 1893/April 10, 1894, with the Hawaiian Islands, the British treaty was concluded on July 16, 1894. Owing to the predominant interest of Great Britain in Japan, her treaty was by far the most important, and its importance is indicated by the fact that all the later agreements of the same nature were largely modeled after it. Contrary to the popular belief, this treaty was concluded before instead of after the outbreak of the Sino-Japanese War . When we recall that negotiations for the revision of her treaties had been embarked upon by Japan since 1871, twenty-three years before the war with China took place, and that the main lines of the British treaty had been fairly settled by the end of 1890, it is impossible to establish any causal relationship between the war and the abolition of extraterritoriality in Japan.
True, the American and other treaties were concluded after the opening of hostilities between China and Japan, and, in fact, the majority of them were signed and ratified after the Peace of Shimonoseki, which bears the date of April 17, 1895. Had the Japanese success in the late war exerted any influence on the consummation of the protracted negotiations in these cases, it could not have been an important, much less a controlling, one. As has been mentioned, the provisions of the later treaties were but verbal reproductions of the terms of the British treaty, which, it must have been thought, if they could regulate the rights and obligations of the nationals of the country with the greatest commercial interest in Japan, could do the same thing with regard to the nationals of all the other Treaty Powers.
In the case of the United States particularly, little importance need be attached to the outcome of the Sino-Japanese War and its effect on the abolition of extraterritoriality in Japan. It is to be borne in mind that of all the Powers which had treaty relations with Japan, the United States was the earliest to evince a willingness to respond to Japan's appeal for treaty revision. The support of the American Government and people was pledged as early as 1871 to the efforts of Japan, while successively in 1878 and 1886, the United States Government displayed its friendship by concluding extradition and tariff conventions with Japan. This background of sincere support was a natural prelude to the final promise for the abolition of American extraterritoriality in Japan, and even if the Sino-Japanese War had not occurred, it is unlikely that the United States would have delayed its action much longer. Moreover, if the United States Government had chosen to procrastinate, the progress of the war would have furnished the best pretext. On the contrary, however, that government made its treaty for the abolition of extraterritoriality in Japan while the storm was still raging.
As a matter of fact, the most important consideration which prompted the Powers to agree to the restoration of Japan's judicial autonomy was the progress which Japan had achieved in the way of judicial reform. Had the war been the controlling factor and had Japan's military success alone been regarded as sufficient to entitle her to complete judicial rights, the Powers would logically have had to give up their extraterritoriality without imposing any other conditions. But this was not what happened. All the treaties were to take effect in 1899, although some of them had been concluded as early as 1894, the intervening period being intended for the coming into force of the Japanese Codes; and as has been stated above, the Japanese Government agreed to refrain from giving notice of the cessation of the old treaties, "until those portions of said Codes which are now in abeyance are brought into actual operation." It is evident, therefore, that glamorous as it was, Japan's successful emergence from the war with China did not of itself lead to the abolition of extraterritoriality. Any attempt simply to explain the situation on this score and to ignore the more important considerations altogether, is an unfounded conjecture and should be discredited by any student of the history of international relations.
IV. SIAM (^)
Ever since the extraterritorial system was formally introduced into Siam, this State has been undergoing a series of judicial reforms. The fruit of these reforms was the formal renunciation or promise of renunciation on the part of the foreign Powers of their consular jurisdiction in Siam. In 1883, Great Britain entered into a treaty with Siam which granted to the Siamese Government the right to establish an "International Court" composed of Siamese judges and administering Siamese law, to decide disputes between British subjects in Chiengmai, Lakon and Lampoonchi, the right of the British consul to intervene in such cases being reserved . The International Court system was extended in 1884-1885 and 1896 to other Siamese provinces . On February 13, 1904, France made a similar agreement with Siam, the operation of the Siamese International Court being extended to cases arising in Chiengmai, Lakon, Lampoonchi and Nan . Denmark on March 24, 1905, and Italy on April 8, 1905, concluded treaties with Siam to identically the same effect . By her treaty of March 23, 1907, France agreed to the extension of the system to all her Asiatic subjects and protégés, and to the abolition of the International Court regime after the promulgation and putting into effect of the Siamese codes . On March 10, 1909, Great Britain agreed by a new treaty to extend the jurisdiction of the International Courts to "all British subjects in Siam registered at the British consulate after the date of the present Treaty." The transfer of the jurisdiction of the International Courts to the ordinary Siamese courts was also promised on the same conditions as were laid down by the French treaty of 1907. All other British subjects in Siam not belonging to the class mentioned above were subjected to the jurisdiction of the ordinary Siamese courts . The right of evocation was maintained, but it should "cease to be exercised in all matters coming within the scope of codes of laws regularly promulgated" . Denmark agreed, on March 15, 1913, to submit all Danish subjects coming to Siam after the ratification of the treaty of that date to the jurisdiction of the ordinary Siamese courts . In 1916, the Russian Government, upon its own initiative, entered into negotiations for a treaty similar to the British treaty of 1909, but the outbreak of the revolution in Russia cut the matter short .
In explaining the conclusion of the treaty of 1909, the British Minister at Bangkok, besides alluding to the administrative inconveniences occasioned by the partial cessation of extraterritoriality in one section of Siam and its maintenance in another, mentioned "various additional factors, such as the desire of British subjects to acquire the right to hold land . . . , the codification of Siamese law, and the very creditable and successful efforts made by the Siamese Government to improve the standard of their judicial administration" . This is cited to show that here, as in every other case, a preponderating amount of importance is attached to the improvement of the judicial régime as a pre-requisite for the restoration, partial or complete, of judicial autonomy.
At the Paris Peace Conference of 1919, Siam prepared a Case for the revision of her treaty obligations. One of the latter which Siam sought to get rid of completely was that of extraterritoriality. After presenting briefly the history of extraterritoriality in Siam , the Case of Siam gave the following as reasons for requesting its abolition: (1) that it invaded the sovereignty of Siam, a free nation; (2) that it made the administration of impartial justice difficult, if not impossible; (3) that it put obstacles in the way of the maintenance of order, being a continual affront to Siam's dignity and a fruitful source of irritation; (4) that it was expensive involving, as it did, the maintenance of European judges and advisers; and (5) that it tended to discourage the completion of the Siamese codes of laws then in progress, since there was nowhere even in the British or Danish treaty any assurance that once these codes were completed and promulgated, the requirement that European judges and advisers assist in the Siamese courts would be yielded and these courts restored to their full measure of authority, as recognized by the treaties previous to 1855.
Under these circumstances, a transfer of jurisdiction from the international to the ordinary Siamese courts would be in name only, even with the obliteration of the privilege of evocation, which was rarely exercised. For these reasons, it was declared "that this oppressive scheme of exterritoriality must be removed in its entirety, both because it works practical and unnecessary hardship to Siam and because it is unjust" .
All Siam succeeded in doing at Paris was to secure from the defeated Powers the abrogation of their extraterritorial rights in Siam. By the Treaty of Versailles, June 28, 1919, Germany made such a renunciation as from June 22, 1917 . Similar renunciations were made by Austria in the Treaty of St. Germain, September 10, 1919 , and by Hungary in the Treaty of Trianon, June 4, 1920 .
On December 16, 1920, the United States entered into a treaty with Siam, containing a protocol, article 1 of which announced that the system, of extraterritorial jurisdiction established in Siam for citizens of the United States and "the privileges, exemptions, and immunities" now enjoyed by them as a part of or appurtenant to the system" shall absolutely cease and determine on the date of the exchange of ratifications" and that thereafter all citizens of the United States, and persons, corporations, companies and associations entitled to its protection, in Siam should be subjected to the jurisdiction of the Siamese courts. However, until the promulgation and putting into force of all the Siamese codes, and for a period of five years thereafter, but no longer, the United States, through its diplomatic and consular agents in Siam, whenever in its discretion it deems proper so to do in the interests of justice, may evoke any case pending before any Siamese court, except the Supreme or Dika Court, in which an American citizen, or a person, etc. entitled to its protection, is defendant or accused . This is the most important concession obtained by Siam after the treaties of peace with Germany, Austria and Hungary, so far as extraterritorial jurisdiction in Siam is concerned. The protocol subjects American citizens in Siam to the jurisdiction of the ordinary Siamese courts without the intermediary stage of the "International Courts." The only guarantee the United States has deemed it necessary to impose on Siam is that of evocation, which can take place only in the rarest cases of miscarriage of justice .
V. CHINA (^)
Ever since the opening of the present century, China has made repeated attempts to secure the modification of the extraterritorial regime. Up to the present time, no less than six Powers have promised the ultimate abolition of extraterritoriality in China in addition to a number of others, which have been deprived of their judicial rights. (*E)
The first treaty embodying a promise for the abolition was that of September 5, 1902, with Great Britain, article 12 of which provides:
China having expressed a strong desire to reform her judicial system and to bring it into accord with that of Western nations, Great Britain agrees to give every assistance to such reform, and she will also be prepared to relinquish her extra-territorial rights when she is satisfied that the state of Chinese laws, the arrangement for their administration, and other considerations warrant her in so doing .
Similar provisions were contained in the treaties with Japan  and the United States , signed separately on October 8, 1903 . Article 10 of the treaty with Sweden, dated July 2, 1908, provides that "as soon as all the Treaty Powers have agreed to relinquish their extraterritorial rights, Sweden will also be prepared to do so" . By a declaration annexed to the treaty of June 13, 1918, the Swiss Government made the same promise . Finally, by an exchange of notes between China and Mexico, September 26, 1921, embodying an agreement for the provisional modification of the Sino-Mexican treaty of December 14, 1899, which had been denounced by Mexico on November 11, 1920 , the Mexican Government engaged to "express on one of the amendments of the above-mentioned Treaty the renouncement that will be made to the consular jurisdiction in China" . With the declaration of war on Germany and Austria-Hungary, on August 14, 1917, China abrogated all her treaties with these countries and put an end to their extra-territorial privileges . A circular note was sent on the same day to the Diplomatic Corps, stating:
Now that China has declared that a state of war exists with Germany and Austria-Hungary, as regards all civil and criminal cases involving Germans and Austrians in China, a set of provisional regulations governing the trial of civil and criminal cases of enemy subjects has been drawn up, which were promulgated and put into effect on the 14th instant.
The first article of these regulations provided: "Civil and criminal cases of enemy subjects will be tried during the period of the War by the Chinese courts" .
At the Paris Peace Conference of 1919, China made another attempt to secure the abolition of extraterritoriality. A statement was made and presented by the Chinese delegation, which set forth the Chinese claim to territorial jurisdiction. After reviewing briefly the basis of extraterritorial rights enjoyed by foreigners in China, and the successive promises made by the Powers to relinquish them, the statement declares:
While we do not claim that the Chinese laws and their administration have reached such a state as has been attained by the most advanced nations, we do feel confident to assert that China has made very considerable progress in the administration of justice and in all matters pertaining thereto since the signing of the above-mentioned Commercial Treaties.
The evidences of this progress are given as follows: (1) adoption of a National Constitution; (2) preparation of Civil, Criminal, and Commercial Codes, and Codes of Civil and Criminal Procedure; (3) establishment of new Courts, viz., District Courts, High Courts or Courts of Appeal, and the Taliyuan or Supreme Court; (4) improvements in legal procedure, such as the separation of civil and criminal cases, publicity of trial and judgments, etc.; (5) careful training of judicial officers; and (6) reform of prison and police systems.
Furthermore, the maintenance of the system of extraterritoriality in China appears to be still less justifiable, if we look at the serious defects in its operation. Among these defects the statement mentions (1) diversity of laws applied; (2) lack of effective control over witnesses or plaintiffs of another nationality; (3) difficulty in obtaining evidence where a foreigner commits a crime in the interior; and (4) conflict of consular and judicial functions. These defects, it is contended, have led to the total abolition of the system in Japan by all the Powers, and to its partial abolition in Siam by certain Powers. "China, therefore, asks that the system will also disappear in China at the expiration of a definite period and upon the fulfillment of the following conditions": (1) promulgation of a Criminal, a Civil, and a Commercial Code, a Code of Civil Procedure, and a Code of Criminal Procedure; and, (2) establishment of new courts in all the localities where foreigners reside. China undertakes to fulfill these conditions by the end of 1924. But before the actual abolition of extraterritoriality, China requests the Powers (1) to submit every mixed case where the defendant is a Chinese to Chinese courts without interference on the part of the foreigners, and (2) to allow the execution of warrants issued or judgments delivered by Chinese courts within the Concessions or within the precincts of any foreign building without any previous examination by any consular or foreign judicial officer.
Finally, the statement asserts that the abolition of extra-territoriality in China would be of benefit to the foreign Powers as well as to China, in that it would tend to remove the many inconveniences involved in cases between foreigners of different nationalities, and to develop international commerce, possibly to open the whole country to the trade and residence of foreigners . No action seems to have been taken by the Conference on the question, and the status quo was maintained.
In 1919, China concluded a treaty with Bolivia, article 2 of which contained a most-favored-nation clause. In an exchange of notes between the two governments, Bolivia has agreed to refrain from interpreting the inclusion of this clause in the treaty as an admission of the Bolivians in China to extraterritorial rights .
On June 1, 1920, a treaty was entered into by China with Persia, which, provided expressly that "in all civil and criminal cases to which Persian subjects are parties, they shall be subject to Chinese law and jurisdiction" .
China severed her treaty relations with Russia in 1920, because of her indisposition to recognize the Soviet régime in that country. At the instance of the Minister of Foreign Affairs, a Presidential Mandate was issued on September 23, 1920, declaring "the suspension of the recognition of the Russian Minister and Consuls in China." Following this, Prince Koudacheff, then Minister of Russia to China, addressed a note to the Doyen of the Diplomatic Corps at Peking, requesting the heads of the missions in China to examine into the status of Russians resident there. In a note, dated October 11, 1920, the Doyen inquired the Chinese Foreign Office on the subject. In reply, the Minister of Foreign Affairs said, in his note of October 22, "Russian citizens in China will continue to enjoy the rights secured to them by treaties." But "Russian consular jurisdiction must, of course, cease. In the trying of cases in which foreigners are plaintiffs and Russians defendants, the Chinese courts may apply Russian laws, but only those which do not conflict with Chinese legal rights. Possibly persons, well versed in Russian law, may be employed as advisers to the Chinese law courts." Desiring further elucidation, the Diplomatic Corps addressed another note on November 18, which was replied on November 29 to the following effect:
"Both civil and criminal cases in which Russians are involved undoubtedly come, by treaty, under the jurisdiction of Consular Courts. But China has at present ceased to recognize the Russian Consuls in their official capacity and, as a result of this measure, there are now no persons capable of exercising this function. China could therefore not do otherwise than assume jurisdiction over the civil and criminal cases in which Russians resident in China are involved. This measure naturally results from the present situation" .
The abolition of Russian extraterritorial rights was confirmed by the new treaty between China and Russia, signed on May 31, 1924 .
By the treaty of May 20, 1921, Germany renounced her extraterritorial privileges in China and consented to the proposition that thereafter her nationals in China should be subjected to Chinese local jurisdiction .
The most recent attempt on the part of China to obtain the consent of the Powers to the abolition of extraterritoriality was made at the Conference on the Limitation of Armament opened in Washington on November 12, 1921. On November 25 of that year, Dr. Chung Hui Wang, representing the Chinese delegation, presented to the Committee on Pacific and Far Eastern Affairs a statement, setting forth China's wishes with regard to the modification and ultimate abolition of consular jurisdiction. Dr. Wang pointed out the following as some of the serious objections to the system of extraterritoriality in China:
(a) In the first place, it is in derogation of China's sovereign rights, and is regarded by the Chinese people as a national humiliation.
(b) There is a multiplicity of courts in one and the same locality, and the interrelation of such courts has given rise to a legal situation perplexing both to the trained lawyer and to the layman.
(c) Disadvantages arise from the uncertainty of the law. The general rule is that the law to be applied in a given case is the law of the defendant's nationality, and so, in a commercial transaction between, say, X and Y of different nationalities, the rights and liabilities of the parties vary according as to whether X sued Y first, or Y sued X first.
(d) When causes of action, civil or criminal, arise in which foreigners are defendants, it is necessary for adjudication that they should be carried to the nearest Consular Court, which might be many miles away; and so it often happens that it is practically impossible to obtain the attendance of the necessary witnesses, or to produce other necessary evidence.
(e) Finally, it is a further disadvantage to the Chinese that foreigners in China, under cover of extraterritoriality, claim immunity from local taxes and excises which the Chinese themselves are required to pay.
Dr. Wang then dwelt upon the progress made by China in her judicial reform. He enumerated (1) the Civil Code, still in course of revision; (2) the Criminal Code, in force since 1912; (3) the Code of Civil Procedure; (4) the Code of Criminal Procedure, both of which had just been promulgated; and (5) the Commercial Code, part of which had been put into force. "Then there is a new system of law courts established in 1910. The judges are all modern, trained lawyers, and no one could be appointed a judge unless he had attained the requisite legal training." Dr. Wang declared that the China of today was not like the China of twenty years ago, when Great Britain encouraged her to reform her judicial system, and that, a fortiori, she was not the China of eighty years ago, when the system of extra-territoriality was first imposed on her. This, Dr. Wang continued, warranted the wish of China for the progressive modification and ultimate abolition of the system .
A sub-committee was appointed to consider the proposals submitted by China. At the ninth meeting of the Committee of the Whole, November 29, 1921, the Sub-Committee on Extraterritoriality submitted some draft resolutions, which were unanimously adopted by the Committee without further discussion, and later approved, also without discussion, by the Conference at its fourth Plenary Session, held on December 10, 1921. One of the resolutions adopted was:
That the Governments of the Powers above named shall establish a Commission (to which each of such Governments shall appoint one member) to inquire into the present practice of extraterritorial jurisdiction in China, and into the laws and judicial system and methods of judicial administration in China, and to assist and further the efforts of the Chinese Government to effect such legislation and judicial reforms as would warrant the several Powers in relinquishing, either progressively or otherwise, their respective rights of extraterritoriality .
The resolutions provided that "the Commission herein contemplated shall be constituted within three months after the adjournment of the Conference;" but due to the un-settled conditions in China, the Chinese Government requested and the Powers agreed that the investigation by the Commission be temporarily postponed . Nothing has been heard of the Commission since then. The Chinese Government, on the other hand, has been hard at work in preparation for the long-promised investigation. In June, 1922, the Commission on Extraterritoriality, which had been organized in 1920, was entrusted with "the study of all problems relating to the eventual abolition of consular jurisdiction and other extraterritorial rights and privileges, and the formulation of plans to be laid before the International Commission of Inquiry." In addition to other work, the Commission on Extraterritoriality has undertaken the publication in English and French of the principal modem Chinese legislative enactments, including the Constitutional Laws, organic and political, the Codes, Commercial and Criminal and other Civil Laws, Laws and regulations of the Organization of the Judiciary, the principal Administrative Laws, a summary of the Cases decided in the Supreme Court and in other high judicial tribunals, the Codes of Civil and Criminal Procedure, and the Provisional Criminal Code.
One of the greatest abuses connected with the extraterritorial system in China as well as one of the most unjustifiable violations of Chinese treaty right is the usurpation by the foreign Powers of the Shanghai International Mixed Court. This Court was established in 1864, and though designated as a mixed court, the latter is a misnomer, for it was a purely Chinese court having jurisdiction over Chinese defendants and administering Chinese law . The judges of the court were, moreover, appointed by the Chinese Government.
With the outbreak of the Revolution, in 1911, Shanghai declared its independence of the Manchu dynasty, and the Taotai was unable to function in the "native city." He was compelled to ask the permission of the foreign consuls to exercise his official duties within the International Settlement. The consent of the Diplomatic Corps at Peking was withheld from this proposition, and the Consular Body was instructed to exercise such powers of control as might be necessary to protect foreign life and property and to maintain the status of the International Settlement. Advantage was taken of this authority to take a highly questionable step, for which the Powers have not yet atoned. The Consular Body issued, on November 10, 1911, a public proclamation, taking over the International Mixed Court and confirming the appointments held by the three Chinese judges .
Thus, the International Mixed Court, which should be, and up to 1911 was, a purely Chinese court, was peremptorily subjected to foreign control by the action of a consular body, who had no diplomatic authority at all and without the slightest legal justification. Though apparently demanded by the circumstances of the time, foreign control had absolutely no right to exist when a recognized government was established in China. And yet the Powers have been slow in restoring the Court to Chinese supervision, and they have repeatedly refused to consider the Chinese demand for its rendition. The Chinese have, however, never ceased to reiterate the demand. Even at this minute, a widespread movement is being sponsored in various centers, looking to the equitable settlement of the question by the Diplomatic Corps at Peking. The details of the correspondence have no place here, both because very little is as yet published  and because the Mixed Court issue in China is purely a violation of Chinese treaty right and should not be confused with the question of extraterritoriality, which, though anomalous, has a sound treaty basis.
It may be pointed out that the present policy of the Chinese Government is not to grant extraterritorial rights to any Powers, which have not entered into treaty relations with her and which may desire to do so in future. In October, 1919,
Prime Minister Chin . . . made it quite clear in reply to inquiries that all future treaties between China and the new or old nations would be based absolutely on equality, reciprocity, fairness and justice. This is the new policy of the Chinese Government which is endorsed by all its public servants. This policy was put to a test when the Greek Government in the course of negotiations of a commercial treaty requested that a clause be therein inserted providing for the enjoyment by Greek subjects in Chinese territory of the right of extraterritoriality as enjoyed by subjects or citizens of the other treaty nations. In reply the Chinese Ministry of Foreign Affairs stated that while permitting Greece to have commercial relations with China, it could never grant to her subjects the privilege of extraterritoriality. The reason given was the adoption of a modern judicial system in China to supersede the ancient Oriental judicial system which prevailed in this country formerly when China first came into contact with the Western Powers ... .
Notes by the Author (^)
 State Papers, vol. xlvi, pp. 100-101.
 Art. 8, ibid., vol. cii, p. 182.
 Treaty of Lausanne, Oct. 18, 1912, art. 8, ibid., vol. cvi, p. 1102.
 Art. 1, Martens, N. R. G., 3rd ser., vol. ix, p. 709.
 Reichsgesetzblatt, 1918, p. 355.
 The text of this treaty is not available; it is referred to by Hamid, Das Fremdenrecht in der Türkei (Berlin, 1919), p. 22.
 Art. 7, Current History, vol. xvii, p. 278.
 Parliamentary Papers, 1923 [Cmd. 1814], Turkey, no. 1 (1923), p. 467; Documents diplomatiques, Conférence de Lausanne, vol. i, p, 443.
 For a criticism of this view, see Chapter IX.
 Parliamentary Papers, 1923 [Cmd. 1814], Turkey, no. 1 (1923), pp. 471-479; Documents diplomatiques, Conférence de Lausanne, vol. i, pp. 446-451.
 Parliamentary Paper cited, p. 481.
 Parliamentary Paper cited, pp. 500-508.
 Parl. Pap. cited, pp. 488-498; Doc. dip. cited, pp. 459-467.
 Parl. Pap. cited, pp. 509-519; Doc. dip. cited, pp. 469-476.
 Parl. Pap. cited, p. 523; Doc. dip. cited, p. 479.
 Art. 26, Parl. Pap. cited, p. 605.
 Ch. iii. Draft Convention respecting the Régime Applicable to Foreigners in Turkey, ibid., pp. 798-780.
 Ibid., pp. 801-803.
 Ibid., pp. 834-836; Doc. dip. cited, vol. ii. Feb. 1, 1923 - Feb. 4, 1923, pp. 11-12.
 Parl. Pap. cited, pp. 840, 852-853; Doc. dip. cited, vol. ii, pp. 19, 21.
 Parl. Pap. cited, pp. 842-851. See also M. Bompard's report to M. Poincaré, Doc. dip. cited, vol. ii, pp. 126-9.
 The official proceedings of the conference have not yet been made public. What is given below is gathered from the dispatches to the London Times, which are necessarily incomplete.
 London Times, Apr. 24, 1923, 14c.
 Ibid., May 2, 1923, 13c.
 Cf. Parl. Pap. cited, p. 835.
 Ibid., p. 852.
 London Times, May 5, 1923, 12e.
 Ibid., June 5, 1923, 13a.
 Great Britain, Treaty Series, 1923, no. 16, p. 25.
 "Art. 15. Subject to the provisions of Article 16, all questions of jurisdiction shall, as between Turkey and the other Contracting Powers, be decided in accordance with the principles of international law." Art. 16 provides for the adjudication of questions of personal status involving non-Moslem foreigners by their home authorities. Ibid., p. 201.
 Ibid., pp. 201-203.
 Current History, vol. xix, p. 100.
 Claims of Persia before the Conference of the Preliminaries of Peace at Paris, p. 4.
 Ibid., p. 6.
 Temperley, A History of the Paris Peace Conference (London, 1920-24), vol. VI, p. 211.
 Art. 16, State Papers, vol. cxiv, p. 905. Cf. League of Nations, Treaty Series, no. 268.
 Art. 1, State Papers, vol. cxiv, p. 901.
 The Soviet Civil Code, moreover, contains some extraordinary provisions, so that the Soviet Government may be regarded as having been so generous with malice prepense. See Columbia Law Review, vol. xxiv, p. 689.
 Foster, American Diplomacy in the Orient (Boston & New York, 1903), pp. 345-348.
 U. S. Foreign Relations, 1873, pt. i, p. 270.
 U.S. Foreign Relations, 1873, pt. i, p. 169.
 Ibid., p. 383.
 Ibid., p. 383.
 For the French and German attitude, see ibid., pp. 261, 296.
 Ibid., p. 272.
 Notably M. Boissonade, of the University of Paris, whose assistance in compiling the Japanese codes has made his name immortal in the annals of Japan's legal reform.
 U.S. Foreign Relations, 1875, pt. ii, pp. 787, 794; 1876, p. 381; 1881, pp. 658, 692, 728.
 For a contemporary account of these abuses see D. C. Greene, Extraterritoriality in Japan (an essay read before the Kobe and Osaka Missionary Conference in April, 1884), pp. 2-11.
 Art. 1, Malloy, vol. i, p. 1022.
 Art. 10, ibid., p. 1024.
 Archives diplomatiques, 1897, vol, v, pp. 213-214.
 Japan was willing to sign only temporary treaties, while the Powers insisted on permanent agreements. Ibid., p. 345.
 Archives diplomatiques, 1897, vol. iv, p. 346. Cf. Foster, op. cit., pp. 357-358.
 Malloy, vol. i, p. 1025.
 U.S. Sen. Ex. Journal, vol. xxv, p. 495.
 Art. 8, State Papers, vol. lxxix, p. 131.
 Parliamentary Papers, 1894 [C. 7548], Japan, no. 1 (1804), pp. 7, 10, 11.
 Ibid., pp. 19, 20, 23.
 Hishida, International Position of Japan, pp. 142-143.
 U.S. Foreign Relations, 1889, p. 536.
 Okamura, "The Progress of the Judicial System in Japan," Journal of the Society of Comparative Legislation, new series, vol. i. p. 51.
 Parl. Pap., 1894 [C. 7548], Japan, no. I (1894), p. 51.
 Ibid., p. 63.
 Viscount Aoki to Mr. Fraser, Sep. 12, 1800, ibid., p. 65.
 Ibid., p. 71.
 Parl. Pap., cited, p. 74.
 Hishida, op. cit., p. 143. Presumably with Portugal's consent, but no information is available on this point.
 State Papers, vol. lxxxvi. P. 1185.
 Parl. Pap., cited, pp. 94-95.
 State Papers, vol. lxxxvi, pp. 46, 47.
 Ibid., p. 52.
 Art. 18, Malloy, vol. i, p. 1035.
 Art. 19, State Papers, vol. lxxxvi, p. 1194.
 Art. 17, ibid., vol. lxxxvii, p. 1223.
 Art. 18, ibid., p. 862.
 Art. 18, ibid., p. 694.
 Art. 10, ibid., p. 1194.
 Art. 20, ibid., vol. lxxxviii, p. 588.
 Art. 17, ibid., p. 458.
 Art. 18, ibid., p. 404.
 Art. 23, ibid., p. 536.
 Art. 18, ibid., p. 547.
 Art. 14, ibid., p. 490.
 Art. 19, ibid., vol. lxxxix, p. 965.
 Art. 18, ibid., p. 976.
 Art. 11, ibid., vol. xcix, p. 936.
 Art. 22, ibid., vol. lxxxix, p. 987.
 Art. 10, ibid., vol. xcii, p. 226.
 Art. 11, ibid., p. 369.
 Bau, Foreign Relations of China (rev. and enl. ed., New York, Chicago, etc., 1923), p. 494.
 Actual hostilities began on July 25, 1894, when two Chinese vessels, the Kuang-yi and the Tsi-yuen, opened fire on the Japanese naval forces off the islands
of Phung and Shapain. A declaration of war was issued by both governments simultaneously on August first. See Vladimir, The China-Japan War (New York, 1896), pp. 95-96, 113.
 State Papers, vol. lxxiv, p. 81.
 Great Britain, Treaty Series, no. 9 (1897), pp. 2, 3.
 State Papers, vol. xcvii, p. 964.
 State Papers, vol. ci, pp. 290-409.
 Ibid., vol. c, p. 1029.
 Ibid., vol. cii, p. 127.
 Sec. 3 of the protocol annexed to the treaty of March 10, 1909, ibid., p. 130.
 Ibid., vol. cvii, p. 751.
 Siam's Case for Revision of Obsolete Treaty Obligations (1919), p. 11.
 Memorandum explanatory of the circumstances which render the modification of the present system of British extraterritorial jurisdiction in Siam. desirable. Parliamentary Papers, 1909 [Cd. 4646], Siam, no. I (1909).
 Siam's Case, pp. 7-13.
 Siam's Case, pp. 17-20.
 Art. 135, The Treaty of Peace between the Allied and Associated Powers and Germany (London, 1919), p. 71.
 Art. 110, The Treaty of Peace between the Allied and Associated Powers and Austria (London, 1921), p. 43.
 Art. 94, Great Britain, Treaty Series, no. 10 (1920), p. 25.
 Malloy, vol. iii (1923), p. 2835.
 See art. 2 of the protocol. According to a recent press despatch, a new commercial treaty was concluded between France and Siam on February 14, 1925, by which the former, subject to certain conditions, engaged to abolish her extraterritorial rights in Siam. London Times, February, 16, 1925, 11 c.
 MacMurray, Treaties, vol. i, 1902/7, p. 351.
 Ibid., 1003/4, p. 414.
 Ibid., 1003/5, p. 431.
 Art. 16 of the unratified treaty with Portugal of November 11, 1904, had an identical provision. Ibid., 1902/9, p. 374.
 Ibid., 1908/11, p. 745.
 Ibid., vol. ii. 1918/8, p. 1430.
 See Chapter IV.
 League of Nations, Treaty Series, vol. xiii, p. 208.
 Presidential Mandate, Aug. 14, 1917, ibid., 1917/7, pp. 1361-2.
 Ibid., pp. 1372-3.
 Questions for Readjustment submitted by China to the Peace Conference (Paris, 1919), pp. 14-18.
 China Year Book, 1921-22, p. 371.
 Art. 4, State Papers, vol. cxiv, p. 677; cf. League of Nations, Treaty Series, vol. ix, p. 21.
 China Year Book, 1921-22, pp. 626-632. Quotations are from the unofficial translation of the Year Book.
 Art. 12, Chinese Social and Political Science Review, vol. viii, p. 224.
 On May 20, 1021, H. von Borch, "authorized representative of the Government of the Republic of Germany," made a written declaration to Dr. W. W. Yen, Chinese Minister of Foreign Affairs, in which he "formally declares to consent to the abrogation of the consular jurisdiction in China." The declaration was embodied in the Sino-German Commercial Treaty of even date, article 3 of which reads: "They [nationals of each country in the other] shall be placed, their persons as well as their properties, under the jurisdiction of the local courts; they shall conform themselves to the laws of the country where they reside." The treaty was ratified by China on July I, 1921. China Year Book, 1921-22, pp. 738 et seq.
 Conference on the Limitation of Armament (Washington, 1922), pp. 932-936.
 Ibid., p. 1010.
 New York Times, May 4, 1922.
 According to the revised rules of 1869, "An official having the rank of Sub-Prefect will be deputed to reside within the foreign Settlements.... He will decide all civil and commercial suits between Chinese resident within the Settlements, and also between Chinese and foreign residents, in cases where Chinese are defendants, by Chinese Law." Hertslet, China Treaties (London, 1908), vol. ii, p. 662.
 Willoughby, Foreign Rights and Interests in China (Baltimore, 1920), p. 60.
 See Hollington K. Tong, "The Shanghai Mixed Court and the Settlement Extension," Millard's Review, vol. x, pp. 445-454; also Lei Kuo Tsai Hua Ling Ssu Tsai Pan Chuan Chih Yao (a résumé of the extraterritorial rights enjoyed by the Powers in China), published by the Commission on Extraterritoriality, appendix i. pp. 23 et seq.
 H. K. T., "Extraterritoriality and the New Nations," Millard's Review, vol. x (Oct. 25, 1910), p. 314. See also H. K. Tong's report of an interview with Dr. Philip Tyau, Councillor of the Ministry of Foreign Affairs, ibid., vol. x (Dec. 13, 1919), pp. 56-60.