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Exporting Legality

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Mariya Tait Slys

Chapter IV – Extraterritorial Consular Jurisdiction in China

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I. On the Traditional Chinese Normative System

a) Political Structure

  • 1 See Li Zhaojie ‘Traditional Chinese World Order’, Chinese Journal of International Law 1 (2002): 22
  • 2 ‘The Qing state, stretching from the county magistrate at the bottom to the emperor and his Grand C (...)
  • 3 See Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Em (...)

1At the time when Western traders first arrived in its territory, China was a vast, complex and intrinsically-pluralistic imperial polity, governed by a dynastic monarchy based in Beijing. The Qing Empire was ruled by an ethnic minority from Manchuria that rose to power in the seventeenth century, establishing its political pre-eminence over the majority, the Han ethnic population. Its structure of governance was highly hierarchical and bureaucratic, headed by the Tianzi – the Chinese Emperor, referred to by the honorific ‘Son of Heaven’.1 The Grand Council, composed of a highly educated elite selected through an examination system,assisted him in the administration of political, military, judicial and other issues.2 During the late imperial period, China was divided into twenty-two provinces, each of which was composed of a varying number of prefectures, in turn divided into several districts. In each district a local magistrate and his staff carried out the administrative and judicial functions for – approximately 200,000 people.3 Thus, at a local level, the hsien magistrates were in charge of the daily management of general administrative, economic, judicial and religious matters. No separation of powers, in the Continental sense of the term, existed.

  • 4 See Li Zhaojie, ‘ Traditional Chinese World Order’,  Chinese Journal of International Law 1 (2002): (...)
  • 5 In many ways, Confucianism can be considered an apologist philosophy, as it provided the basis for (...)
  • 6  See Li Zhaojie, ‘ Traditional Chinese World Order, ‘ Chinese Journal of InternationalLaw 1 (2002): (...)
  • 7 Ibid: 39.
  • 8 In Derk Bodde and Clarence Morris, Law in Imperial China: Exemplified by 190 Ch'ing Dynasty Cases: (...)

2Religion also played a major political role, since Confucianism ‘became integrated into the practical aspects of social and political life, where it formed the most dominant political and cultural force in shaping the traditional Chinese view of world order.’4 More specifically, it contributed to shaping the hierarchical organization of Chinese society, encouraging the community of the believers to internalize appropriate patterns of behaviour while simultaneously establishing the guidelines for forbidden conduct and generally maintaining the status quo.5 In addition, it also attempted to promote the creation of a sort of religious welfare state, in which provisions were made for the benefit of the most vulnerable members of the society.6 The most consistent epistemic difference as compared to European cosmology conceptions is, perhaps, that the world was conceived as ‘being’ rather then ‘becoming’, and ‘process, change, competition and progress were, therefore, all concepts unnatural to Confucianism.’7Although, in practice, changes and political turmoil indeed affected China, as they did all human societies throughout history, the maintenance of order and stability was central to the Chinese cosmology. Accordingly, reality was perceived as a continuous whole reflecting a universal harmony, such that ‘a disturbance of the social order really meant, in Chinese thinking, a violation of the total cosmic order because…the spheres of man and nature were inextricably interwoven to form an unbroken continuum.’8

  • 9 On the Treaty of Nerchinsk of 1689 between the Russian and the Chinese Empires, see V. S. Frank, ‘T (...)
  • 10 See Jianfu Chen, ‘Modernisation, Westernisation, and Globalisation: Legal Transplant in China’, in (...)
  • 11 For a detailed account of the Chinese pluralistic internal legal order, see Pär Kristoffer Cassel, (...)

3Externally, the Manchu empire was a state largely without boundaries, at least in the sense of precisely defined linear borders set out in the international agreements in vogue in Europe at that time. Only the Russian border with Manchuria and Mongolia had been formally demarcated, as a result of the treaties of Nerchinsk and Kiakhta.9 In fact, and remarkably similarly to the Ottoman Empire, the notion of territorial delimitation in China was rather vague. Just as in that case, this was likely due to the highly pluralistic, multi-ethnic and multi-lingual composition of the Empire, which counted more than 50 different ethnic groups among its subjects. 10 Hence, notwithstanding the centralized and hierarchical nature of the Imperial bureaucracy, for the great majority of its history, China has been characterized by a considerable degree of political and legal pluralism.11

b) Law

  • 12 See Derk Bodde and Clarence Morris. Law in Imperial China: Exemplified by 190 Ch'ing Dynasty Cases: (...)
  • 13  Ibid.

4Over the centuries, the Chinese developed a complex, expanding legal system that – until the intensification of the Imperial relations with European traders in the nineteenth century – remained mostly insulated from the influence of Western legal thought. According to Bodde and Morris, the first Chinese legal code was promulgated in the third century B.C., and apparently drew on even more ancient Chinese customs.12 Each successive Chinese imperial dynasty promulgated a new code, revising, elaborating or even radically changing the code of its predecessor. The last of these was the Qing code, which assumed its definitive form in 1740.13 Such codes contained an incredible number of extremely detailed provisions. Rather than actively prescribing positive norms of behaviour, however, their primary aim was to provide the appropriate punishment for every foreseeable type of offence, in accordance with the social and family status of the perpetuator.

  • 14 This case is taken from Bodde and Morris’ outstanding collection of cases adjudicated during the la (...)

5A good example is provided by a case of 1834, involving the district magistrate Chang Lei, who attempted to visit the Temple of Confucius on a particularly rainy day. According to Chinese custom, an official participating in sacrifices in a Confucian temple was obliged to dismount from his sedan chair when approaching its outer gates. Unhappily for Chang Lei, however, on that particular day the curtain of his chair was closed due to the heavy rain outside, and the chair-bearers accidentally crossed the gates before the official had abandoned his ‘vehicle’. The Board of Punishment, the highest Imperial body of adjudication, subsequently ruled: ‘His failure to dismount from the chair in time, though occasioned by the great accumulation of rainwater on the ground and the error of the chair-bearers, nevertheless constitutes a violation of the established regulations. Accordingly, he should be sentenced to 100 blows of the heavy bamboo under the statute on violation of imperial decrees.’14

  • 15 These are just a few examples inspired by the much wider illustrations provided by Bodde and Morris (...)
  • 16 Ibid. This also explains why the majority of contemporary scholars tend to argue that China lacked (...)

6Apart from the ironic – for our standards – nature of the incident, the case is interesting in its illustration of a number of practices that characterized the Chinese normative order. First of all, the allegation that China ‘lacked law’ was clearly false, as Chang Lei’s story shows that the Chinese did have a variety of substantial rules sanctioning and regulating patterns of social behaviour, although they may have differed considerably from Continental notions of justice, rationality and legality. While the sedan chair example may seem humorous, offences such as armed robbery, plundering, public bribery, kidnapping, human trafficking, adultery, verbal insults, pressuring a person into suicide, sacrilege, the accidental murder of a patient by a doctor and the possession of prohibited books were also foreseen and punishable by the Imperial codes.15 Furthermore, the incident shows that an adjudicatory process, coupled with a system of judicial bodies culminating in the Board of Punishment, existed in the Qing Empire. The case also highlights the major role religious customs and moral obligations played in shaping Chinese normativity. Finally, the case confirms that punishment in official Chinese litigation was mostly corporal, the light or heavy bamboo being its softest form, while life exile or capital punishment were the gravest sentences for the most heinous crimes.16

  • 17 See Bodde and Morris (1967): supra at 4.
  • 18 Ibid.
  • 19 In Li Zhaojie, ‘Traditional Chinese World Order’, Chinese Journal of International Law 1 (2002): 40
  • 20  Ibid.
  • 21 See Benjamin Isadore Schwartz, The World of Thought in Ancient China. (Harvard University Press, 20 (...)

7That said, the Imperial legal codes were not the sole, nor even the primary source of Chinese law. Many disputes were not adjudicated through official channels, but rather through family laws, moral prescriptions, customs, mediation or unofficial authorities, such as village elders, clan leaders, or guild heads.17 Apparently, the avoidance of official litigation was deeply embedded into the Confucian ideals of harmony and morality, and ‘the Chinese traditional society was by no means a legally-oriented society despite the fact that it produced a large and intellectually impressive body of codified law’.18 Similarly, Li Zhaojie argues that ‘[positive] law in the eye of Confucianism was not deemed a major social achievement and a symbol of rectitude; instead, it was regarded as a rather regrettable necessity, principally employed by the state as the last resort to maintain social order.’19  Perhaps one of the main distinctions with a positivist legal order lay in the fact that a codified body of rules, backed by active mechanisms of coercion external to the individual was, arguably, perceived as less important than the internalization of acceptable patterns of behaviour through education, persuasion and moral example.20 Nor did the Chinese possess an equivalent of the Western notion of individual rights, positively enforceable against the state, as, in China, ‘to surround individual interests with an aura of sanctity and to call them rights, to elevate the defence of these individual interests to the plane of a moral virtue, to “insist on one’s rights” – is to run entirely counter to the spirit of li.’21 Hence, law and normativity in nineteenth-century China were perceived in radically different terms than those found in the Continental tradition of legal positivism.

c) The Treatment of Aliens

  • 22 ‘Before the nineteenth century, Siam, Qing China, and the Ottoman Empire were all complex, compound (...)
  • 23 See, generally, Hosea Ballou Morse, The Chronicles of the East India Company, Trading to China, 5 V (...)
  • 24 On China's involvement in the tributary system and other relations with neighbouring polities, see (...)
  • 25 See Li Zhaojie, ‘Traditional Chinese World Order’,  Chinese Journal of International Law 1 (2002): (...)

8As in the case of the Sublime Porte, the category of ‘foreigner’ under Imperial rule was quite ambiguous, as China lacked the Western notions of ‘citizenship’ or ‘nationality’, and lacked precise boundaries.22 Due to the geographic barriers that surrounded its inlands, the Empire’s exposure to Western travellers was relatively limited, until, in ever-increasing numbers, Continental traders began to arrive under the flags of the several East India Companies.23 However, the Qing Empire possessed a remarkably structured and well-organized system of tributary relations with Korea, Annam (Vietnam), Siam (Thailand) Burma and the small kingdom of Liuqui (Ryukyu Islands), whereby the representatives of these communities would periodically pay tribute to the Emperor.24 In fact, in the centuries preceding its encounter with the West, China gradually became the hegemonic culture of East Asia, leading it to perceive itself as the centre of a superior civilization.25

  • 26 Zhaojie in particular argues that the tributary system was not merely an hegemonic institution, but (...)

9The Sino-centrism of its rulers, however, did not derive from a direct relationship of dependence with the above-mentioned polities, as the tributary system also involved the development of a tiny web of diplomatic relations aimed at maintaining political stability in the region. In other words, the tributary system was not merely an economic institution aimed at collecting taxes from its subjects, but was also a highly ritualized political organization whose purpose was to construct relationships of alliance and protection in the region.26 Other early interactions with foreign polities involved commercial contacts with the Russians in the North, and the conduct of more-or-less-consistent trade with the Arabic populations along its Western boundaries. It was, however, only over the course of the nineteenth century that circumstances compelled the Empire to consistently interact with, and open towards, Western citizens.

II. Establishing Extraterritorial Consular Jurisdiction

a) Codifying ‘Unequal Treaties’

  • 27 Liu, however, argues that the early origins of extraterritorial jurisdiction in China go back to th (...)
  • 28 ‘Relations with the Ottoman Empire offered European powers a model of how to carry on relations wit (...)

10Contrary to events in the Ottoman Empire, no coherent custom of unilateral extension of capitulatory privileges to foreigners existed in China preceding the arrival of Europeans.27 When Continental merchants extended their commercial activities to the Far East, however, they also sought to export the system of jurisdictional immunity. Once again, the issue of cultural incompatibility became apparent and, as in the case of Turkey, the expansion of trade caused the encounter and subsequent clashes between two opposing normative systems. Hence, the establishment of an order resembling, and inspired by, the capitulatory privileges granted by the Sublime Porte in the Levant seemed like an almost natural solution.28

  • 29 See Wellington Koo, The Status of Aliens in China. (Columbia University, 1912). 62; George Williams (...)
  • 30 See Li Chen, ‘Law, Empire, and Historiography of Modern Sino-Western Relations: A Case Study of the (...)
  • 31 For a detailed description of the factual background of the case, see Peter Auber, China: An Outlin (...)

11The Qing Emperor signed the ‘Unequal Treaties’ – establishing jurisdictional privileges for Western citizens between 1842 and 1860, thereby instituting the legal framework of consular jurisdiction that would last until the mid-twentieth century. However, the first de facto extraterritorial arrangements in China appear to date back to the end of the eighteenth century, when aliens trading in Canton under the flags of the English, Dutch and Portuguese East India Companies began to exempt themselves from the operation of local law.29 The European disdain for Chinese customs, as well as their obstinate refusal to submit their nationals to the Qing jurisdiction, is often linked to a case known as the Lady Hughes.30On November 24, 1784, a gun fired from the English ship Lady Hughes wounded three Chinese subjects, one of whom died the following day. Informed of the incident shortly afterward, Chinese functionaries demanded that the Select Committee of the British East India Company give up the man who fired the gun for public examination, in accordance with the laws of the Empire. After an initial, unsuccessful attempt to convince the local authorities the defendant had absconded, the Select Committee eventually dispatched the Lady Hughes’ supercargo to Canton for the purpose of clarifying the circumstances of the case. Intimidated by the Cantonese resolution to see their laws enforced, the Committee eventually ordered that the gunner be given up to the Chinese officials, with a recommendation in his favour. Following the delivery of the offender, the supercargo of the ship was immediately liberated, and the gunner was tried, convicted and imprisoned pending a final decision from the Throne. On January 8, 1785, the Emperor sentenced the gunner, who was subsequently executed, to death.31

  • 32 In Wellington Koo, The Status of Aliens in China. (Columbia University, 1912). 71.
  • 33 Koo, Ibid: 62 – ‘Alien traders, particularly the British, early began to withdraw themselves, by op (...)
  • 34 ‘It was therefore only in homicide cases where the finger of suspicion pointed in the foreigner’s d (...)

12The gunner’s case greatly exacerbated European feelings of apprehension towards the prospect of submitting their nationals to Chinese adjudicatory and executive jurisdiction. This was particularly true in the case of the British, ‘for thereafter they pursued an unvaried course of lasting opposition to the surrender of any English criminal for trial before a Chinese court of justice.’32 In fact, in nearly all subsequent cases of murder or wounding of Chinese subjects involving an English national, the East India Company and, later, British governmental officials, categorically refused to submit their citizens to the local judicial authorities.33 The Qing authorities perceived such refusals to be highly offensive, as the Chinese conception of justice while relatively fluid regarding jurisdiction over civil litigation – was highly territorial in penal cases involving Chinese subjects.34

  • 35 See Act of the British Parliament to Regulate the Trade to China and India, 28 August 1833. In Brit (...)
  • 36 See Act of the British Parliament to Regulate the Trade to China and India, 28 August 1833, Ibid. A (...)

13Therefore, de facto jurisdictional immunities within Canton had already been claimed before their formal embedding in the ‘Unequal Treaties’. In 1833, the British Government had passed a bill known as ‘An Act to Regulate the Trade to China and India’.35 Article VI of the instrument unilaterally authorized the creation of a British Court with criminal and admiralty jurisdiction for the trial of offenses committed by British subjects in China. No attempt to seek the Imperial consent on the matter was made.36 In the words of Wellington Koo:

  • 37 In Wellington Koo. The Status of Aliens in China. (Columbia University, 1912). 63.

‘What Great Britain succeeded in wringing from China, at the end of the expensive and ignoble war in 1842, in respect to the question of jurisdiction over British subjects in China, was merely an official recognition of what had already been brought into being and engrafted on her, in practice, without her consent or countenance.’37

  • 38 See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteent (...)
  • 39 Keeton, Ibid. See also, Wu Yixiong, ‘The Development and Early Practice of British Extraterritorial (...)
  • 40 See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteent (...)
  • 41 Ibid.
  • 42 Ibid. See also Henry Dundas. Napier, Field-Marshal Lord Napier of Magdala. (London: E. Arnold & Com (...)
  • 43 See Harry Gelber, Opium, Soldiers and Evangelicals: England’s 1840–42 War with China, and its After (...)
  • 44 Cited in Hosea Ballou Morse, ‘The Period of Conflict 1834–1860’, in The International Relations of (...)

14The situation was further exacerbated by the decline of the British East India Company during the 1830s, when the Crown first began to send official governmental authorities and legal experts to China.38 Until that time, the Company had been able to monopolize trade in Canton to the extent that local authorities regarded its representatives as the ‘headmen’ of the British community.39 Although conflicts were not absent, the company’s traders had developed some minimal skills in Chinese language and, in the interests of trade, were more likely to assume a compromising and submissive attitude towards the Chinese authorities.40 This practice changed, however, when the Company lost its commercial monopoly, and the British government, for the first time, sent a superintendent of trade to represent the Crown in Canton.41 Unfortunately, the choice fell on William John, the 8th Baron Napier,42 who having little substantive knowledge of China and its culture, reportedly began his first meeting with the local authorities by severely reproaching them for their unpunctuality.43 In 1833, in a subsequent letter to Palmerstone, the Baron described the Chinese as displaying ‘an extreme degree of mental imbecility and moral degradation, dreaming themselves to be the only people on earth, and being entirely ignorant of the theory and practice of international law’.44 Clearly, this highly prejudicial view of Chinese society, as well as his heavy-handed attitude towards the Imperial authorities, did not help to ease Sino-British relations and jurisdictional conflicts. On the contrary, they contributed considerably to an increase in the tensions that, a few years later, led to the outbreak of the infamous Opium War.

  • 45 ‘It was only after the termination of the Opium War in 1842 that extraterritoriality was formally i (...)
  • 46 See Cassel, Ibid : 49
  • 47 Ibid. On Commissioner Lin, see also Hsin-pao Chang, Commissioner Lin and the Opium War. (Harvard Un (...)
  • 48 ‘Suppose a man of another country comes to England to trade, he still has to obey English laws; how (...)
  • 49 Cassel, Ibid: 50.
  • 50 Treaty of Nanjing (Nanking), 1842. Ratifications exchanged at Hong Kong, 26th June 1843.For the com (...)

15It was only following the conclusion of the first Opium War in 1842 that the notion of extraterritorial consular jurisdiction, based on the Ottoman capitulations, was first embedded in positive treaties.45 In China, in 1729, an Imperial Decree outlawed opium on the basis that it degraded the morality of the Chinese and its use was contrary to the Confucian prescriptions of appropriate behaviour. With the arrival of foreign traders, however, the consumption of the drug increased notably, such that the Daoguang Emperor was compelled to reaffirm the existing ban on opium in 1836.46 In 1838, the imperial officer Lin Zexu was appointed to suppress opium trade in Guangdong province.47 English traders, in particular, used to export the drug from India and illicitly smuggle it into China, thus directly violating its internal legislation. After several, unsuccessful appeals to foreign powers to cease their smuggling business, the Commissioner even wrote to Queen Victoria herself, expressing the Chinese dissatisfaction with the scarce regard British nationals demonstrated for its law.48 When foreign opium stocks were eventually surrendered to the Imperial authorities and Lin Zexu ordered their destruction, Lin was accused of destroying Great Britain’s ‘governmental property’, and the first sparks of the Opium War ignited.49 The conflict lasted for three years, and its conclusion resulted in the Treaty of Nanjing, which reaffirmed the British victory and compelled the Qing Empire to open four new ports to trade.50

  • 51 See Xinbao Zhang, Commissioner Lin and the Opium War (New York: Norton, 1970): 186.
  • 52 General Regulations, Under Which The British Trade Is To Be Conducted At The Five Ports Of Canton, (...)

16Professor Xinbao Zhang refers to the first Opium War as a conflict over jurisdiction.51 In fact, not only did the conflict derive from the Chinese allegation of European non-compliance with its territorial laws, but the war’s conclusion also led to a number of legal concessions granting jurisdictional privileges to foreign nationals. The first explicit statement of extraterritorial consular jurisdiction was contained in The General Regulation of Trade, signed by representatives of the British and the Qing Empires in July, 1843, which aimed at supplementing the peace Treaty of Nanjing.52 More precisely, Article XIII of the instrument focused on disputes between British subjects and Chinese, prescribing that:

  • 53 Article XIII - General Regulations, 1843. Ibid.

17‘Whenever a British subject has to complain of a Chinese he must first proceed to the Consulate and state his grievance. The Consul will thereupon enquire into the merits of the case and do his utmost to arrange it amicably. In like manner, if a Chinese have reason to complain of a British subject, he shall no less listen to his complaint, and endeavour to settle it in a friendly manner…Regarding the punishment of English criminals, the English Government will enact the laws necessary to attain that end, and the Consul will be empowered to put them into force; and regarding the punishment of Chinese criminals, these will be tried and punished by their own laws, in the way provided for by correspondence which took place at Nanking, after the concluding of the peace.’53

  • 54 See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteent (...)
  • 55 See Article XVI. – ‘Chinese subjects who may be guilty of any criminal act towards British subjects (...)

18The provision clearly emphasized the role the British consul was to have in the ‘amicable’ resolution of mixed cases involving English and Chinese subjects, while affirming his exclusive prescriptive and enforcement jurisdiction with regard to criminal cases in which the offender was an English national. Nevertheless, the article remained ambiguous in its failure to specify under whose laws a certain conduct could be considered as criminal. While in the case of intentional murder or physical injury, this did not pose a major problem, as both Chinese and English legal orders condemned them as heinous crimes, the classification of other types of offences was more controversial. Cassel points out that the decision was particularly complicated with respect to political crimes, or crimes against public order: ‘Could a foreigner be charged for violating traffic regulations, even if those regulations did not exist in his native country? Or could a Briton be indicted for publicizing disparaging remarks about Qing officials?’54 The vagueness of the provision in this respect, as well as its failure to elucidate the distinction between civil and criminal jurisdiction, was only (partially) clarified fifteen years later, in the Sino-British Treaty of Tianjin.55

  • 56 Article VIII - ‘The Emperor of China having been graciously pleased to grant to all foreign Countri (...)
  • 57 Article XXI – ‘Subjects of China who may be guilty of any criminal act towards citizens of the Unit (...)
  • 58 The provision on extraterritorial consular jurisdiction read as follows: Article XXVII – ‘Si malheu (...)

19Another relevant institution, contained in the 1843 Supplementary Treaty of the Bogue, was the introduction of the so-called ‘most-favoured-nation treatment’. The clause prescribed that all Western nations were allowed to trade in the five ports opened for trade ‘on the same terms as the British’ and, in addition, it stressed that if the Emperor granted other nations ‘additional immunities and privileges’, British subjects would be able to enjoy the same.56 Hence, as in the case of the Ottoman-French treaty codifying capitulatory concessions, after the conclusion of the first ‘Unequal Treaties’ with Britain, several other Western countries sought to obtain similar written guarantees from the Qing Emperor. The following year, the Treaty of Wangxia was concluded between China and the United States, Article XXI of which provided that ‘citizens of the United States who may commit any crime in China shall be subject to be tried and punished only by the Consul or other public functionary of the United States thereto authorized according to the laws of the United States.’57 And, shortly after, the French representative Théodore de Lagrené concluded the Sino-French Treaty of Whampoa, described by Cassel as ‘the most carefully drawn of all treaties’, due to expertise in Sino logic achieved by the French.58

  • 59 See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteent (...)
  • 60 Ibid.
  • 61 ‘The Treaty of Kuldja gave Russia the right to send consuls to the Chinese treaty ports and provide (...)
  • 62 However, through the ratification of the Shimonoseki Treaty and the Treaty of Commerce and Navigati (...)
  • 63 See Report of the Commission on Extraterritoriality in China, Ibid.

20Although not stated in a separate treaty, the kingdom of Belgium also obtained extraterritorial privileges accorded on the basis of the most-favoured-nation treatment clause contained in the previous instruments signed by other governments.59 A few years later, Sweden managed to secure its capitulatory rights, while transferring the factual competence to adjudicate its citizens to the American consulate.60 Russia also managed to consolidate legal privileges for its nationals in China, with the Treaty of Kuldja between the Romanovs and the Qing Emperor becoming effective in 1851. An important distinction between that treaty, however, and all other such agreements negotiated between China and the Europeans, was that the 1851 instrument prescribed reciprocal extraterritorial rights both for Russians in China and Chinese subjects in Russia.61 Similarly, in July, 1871, Japan and China entered into a bilateral arrangement for the establishment of consular jurisdiction.62 By 1918, Germany, Austria-Hungary, Peru, Mexico, Brazil and Switzerland, had also negotiated ‘Unequal Treaties’ securing the jurisdictional rights of their nationals within the Chinese territories.63

  • 64 ‘Rather than abolishing extraterritoriality, Western states strengthened it in ‘response to non-Wes (...)

21Together, the above-mentioned instruments jointly established the legal framework that defined and regulated extraterritorial consular jurisdiction in China for nearly one hundred years. Foreigners involved in criminal and civil litigation were exempted from local prescriptive, adjudicatory and enforcement jurisdiction, and both cases involving aliens exclusively and mixed cases involving a Chinese subject increasingly fell under the competence of foreign consulates. Some ‘Unequal Treaties’ were later modified by further revisions outlining a more precise division between civil and criminal cases and the relevant body of law in defining the nature of the offence.64 Overall, however, the general legal milieu upon which these treaties were based remained unaltered.

  • 65 According to Cassel, the Chinese opposition to extraterritoriality is generally overestimated: ‘It (...)

22Although the significance of coercion in pushing the Qing dynasty towards the ratification of these treaties is still under debate, the violent genealogy of extraterritoriality in China cannot be denied.65 Unlike the case of the Sublime Porte, where capitulations were initially based on voluntary and unilateral concessions of the Sultan, the Chinese Empire had no established custom of granting jurisdictional immunities to foreigners before the arrival of Europeans. The Opium War played a considerable role in establishing the British military superiority that backed the ratification of the first ‘Unequal Treaties’. Similar to that which occurred in the Ottoman Empire, this process led to a rapid and dramatic opening of the Chinese territories to foreign trade. Ever-increasing numbers of foreigners began to arrive and settle in the busy ports of Canton, Macao, Shanghai, Ningbo, Xiamen, Fuzhou and Hong Kong, bringing further complexity to the legal environment of these cities.

b) Proliferation of Foreign and Mixed Courts

  • 66 On the establishment of foreign territorial possessions within the Shanghai area generally, see Lin (...)
  • 67 See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteent (...)

23The settlement of vast expatriate communities in China inevitably led to the intensification of litigious cases involving either aliens exclusively, or both foreign and local subjects. Hence, as occasion needed, the establishment within the city-ports of novel judicial bodies increased. Following the British Crown’s unilateral 1833 attempt to establish a British Court in Canton, consular jurisdiction attained its most sophisticated form in the Shanghai area, where Britain, the United States and France jointly established settlements in the 1840s.66 According to Cassel, by the middle of the nineteenth century, ‘Shanghai had developed into the hub of the treaty port system in East Asia, where consular courts from a variety of different countries coexisted with a number of local Chinese courts, creating a very complex legal order.’67

  • 68 For a detailed account of the history, establishment, case law and procedure in the Shanghai Mixed (...)
  • 69 See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteent (...)
  • 70 Ibid. See also Edmund Griani Hornby, Sir Edmund Hornby: An Autobiography. (Houghton Mifflin, 1928).

24 In 1864, in order to simplify this highly complex legal conglomerate, the British consul Harry Parkers sought to restore law and order by establishing a Mixed Court in the International Settlement.68 The competence of the Court covered the adjudication of mixed disputes and cases where both litigants were nationals of one of the governments that had directly negotiated treaties with the Qing Emperor. Nevertheless, it was subsequently decided to extend the tribunal’s jurisdiction to disputes involving citizens of other, third states as well. Its administration involved British, French and American magistrates, and, when Chinese subjects were concerned, a representative of the Imperial authority. The rules of procedure were relatively flexible and ‘the nature of the court depended largely on the personal qualities of the sub-prefect and the assessors’.69 In just a few years, the importance and range of adjudication of the Mixed Court grew considerably, such that in 1868 the British representative R. J. Forrest stated, astonished, that ‘ten times more cases come before the Mixed Court in the course of a year than before our Supreme Court in all its branches!’70

  • 71 See R. J. Forrest’s Second Memorandum to Consul Charles A. Winchester (November 1868). In Foreign O (...)
  • 72 See Eileen P. Scully, Bargaining with the State from Afar: American Citizenship in Treaty Port Chin (...)
  • 73 See Kal Raustiala, Does the Constitution Follow the Flag? The Evolution of Territoriality in Americ (...)

25In 1865, the British judge Sir Edmund Hornby was sent to Shanghai to establish a British Supreme Court, adding another piece to the already complex puzzle of extraterritorial consular jurisdiction in the city.71 Additionally, in 1906, the U.S. Congress passed the United States District Court for China Act, claiming ‘original jurisdiction in most civil and criminal cases where Americans were defendants, and appellate jurisdiction over cases decided first in the U.S. consular courts in China's treaty ports’.72 Perhaps ironically, the appellate body of the institution was the U.S. Circuit Court in California, a choice that rendered it almost impossible for a Chinese plaintiff to concretely appeal a judgment.73

  • 74  In Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Em (...)
  • 75 Ibid.

26Shanghai is but one example among many, as a plurality of foreign tribunals, mixed courts and consular arrangements gradually developed in other treaty ports and, increasingly, within the Chinese inland territories. According to Kayaoğlu ’s outstanding study of the reports of the International Commission on Extraterritoriality, China had a total of 120 consular courts in 1926.74 Accordingly, Japan, which, just a few decades earlier was still struggling to abolish the Western powers’ extraterritorial privileges, established thirty-five consular institutions in China. Britain had a total of 26 capitulatory tribunals, France and the U.S. each had 18 adjudicatory bodies, Portugal and Italy seven, the Netherlands and Belgium four, and Denmark, Sweden and Norway each instituted one extraterritorial consular court in China.75

c) Legitimizing Extraterritoriality, Barbarizing Chinese Legality

  • 76 See Shih Shun Liu, Extraterritoriality: Its Rise and Decline (New York: AMS Press, 1969). 39. It is (...)

27Similar to the justification that Western powers used to defend their capitulations in the Levant, the institution of extraterritorial consular jurisdiction in the Far East was based on the alleged deficiency of those societies’ internal legal systems. ‘Rightly or wrongly’, according to Shin Shun Liu, ‘there lurked in the hidden nooks of every Western mind a vague notion that Oriental jurisprudence could not possibly be in keeping with Western ideas of justice, and that an Occidental would certainly do violence to his dignity and pride by rendering obeisance to a deficient judicial regime.’76 The epistemic milieu – discussed in previous chapters – that backed the institution of extraterritorial privileges was deeply permeated by an a priori assumption that humanity could be divided into a ‘civilizational pyramid’, with Western ideas of law and justice at the pinnacle.

  • 77 Lassa Oppenheim, International Law. (London: Longmans, Green and Co., 1905). 44.
  • 78 ‘Les Etats ne sont pas égaux entre eux. D'abord, il n'existe aucune égalité de droits entre les Eta (...)
  • 79 Association for the Reform and Codification of the Law of Nations. Report of the Fifth Annual Confe (...)
  • 80 Ibid.
  • 81 Association for the Reform and Codification of the Law of Nations. Report of the Seventh Annual Con (...)

28The idea that legality, properly speaking, was a primary criteria for a country’s membership in the club of Euro-American Christian civilization was prevalent among Western jurists during the nineteenth and early twentieth centuries. With regard to international law, Lassa Oppenheim asserted that ‘as a law between Sovereign and equal states based on consent of these States, [it] is a product of modern Christian civilization.’77 The French jurist, Antoine Pillet, clearly believed that only ‘civilized’ states could claim the privilege of sovereignty and equality, since ‘il n’existe aucune égalité de droits entre les Etats civilisés et les états non civilisés ou moins civilises’.78Hence, it may be unsurprising that, during its fifth annual conference, the Association for the Reform and Codification of the Law of Nations proclaimed the nature of legal relations between Christian states and non-Christian Asian societies as ‘on the whole extremely unsatisfactory’.79 European jurists failed to reach a consensus as to whether or not ‘the duty of civilized governments to employ moral influence to induce a non-Christian people to reform its laws when these are characterized by injustice or barbarity’ existed.80 A few years later, it was suggested that unless Western-like codes of law were adopted and administrated by courts ‘composed by scientific jurists’, extraterritorial consular jurisdiction in China and Japan could not be abolished.81

  • 82 See George Williams Keeton, Extraterritoriality in International and Comparative Law. (Hague: Libra (...)
  • 83 See Wellington Koo, The Status of Aliens in China. (Columbia University, 1912). 80.

29More pertinent to the case of China, the arguments as to the ‘deficiencies’ of its internal legal system can be summarized as follows: (1) no positive, Western-style legal codes had ever been drafted; (2) no separation between administration, law-making and enforcement existed; (3) its methods of trial were cruel and unjust; (4) civil law was underdeveloped; (5) the conditions in Chinese prisons were inhumane; (6) no institutions for the study of modern law existed; (7) its judges and officials were corrupt; (8) the principle of responsibility under Chinese penal laws made individuals vicariously responsible for the crimes of others; (9) religion and general cosmological considerations played an excessive role in the adjudicative process; and, finally, (10) Chinese substantive norms and codes of punishment for criminal offences were too brutal and barbarian to be applied to foreigners.82 Consequentially, according to Koo, a foreign offender ‘could see no reason why he should sacrifice his life or freedom to vindicate the laws of a barbarous nation, alike to the humiliation of his compatriots and to the disgrace of his own civilized land.’83

  • 84 See, for instance, the remarks that Sir George introduced to the House of Commons in 1833: ‘That, l (...)
  • 85 William Blackstone, Commentaries on the Laws of England (1765–1769). (Chicago: University of Chicag (...)
  • 86 See James Fitzjames Stephen, A History of the Criminal Law of England. Vol. 3. (Macmillan, 1883). 4 (...)
  • 87 See Wellington Koo, The Status of Aliens in China. (Columbia University, 1912). 90.

30Many of the charges mentioned above were rooted in concrete perceptions developed by Western travellers and ‘experts’ in the course of their first encounters with Chinese culture. It is not the purpose of this thesis to glorify the Chinese normative order as a better or more appropriate system, nor is it to deny the atrocious nature that certain punishments in China sometimes assumed. Nevertheless, it is important to underline another form of hypocrisy that characterized European discourses regarding China’s ‘uncivilized’ status. Relying, in particular, on the allegedly ‘barbarous’ nature of Chinese criminal punishments and the fact that a considerable number of offences were subject by capital punishment, Western scholars often asserted that it was inconceivable to submit foreign citizens to the Imperial justice.84 From the eighteenth to early nineteenth centuries, however, Chinese laws were not much more severe than penal legislation in England during the same period. This is highlighted by Blackstone’s sombre remark that, in 1769, ‘among the variety of actions which men are daily liable to commit, no less than an hundred and sixty have been declared by act of Parliament to be felonious without benefit of clergy; or, in other words, to be worthy of instant death.’85 Capital punishment for offences such as mail theft was not abolished until 1835.86 The use of torture to compel confessions was common in English courts until 1722, ‘when Parliament enacted that standing mute should be considered as equivalent to a plea of guilty’.87

31To conclude, a considerable number of Western legal ‘experts’ first observed Chinese law through the blurry lenses of a blindly self-assured cultural superiority, culminating in a tendency to condemn it altogether as ‘unsatisfactory’ and irrational. In other words:

  • 88 In Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Emp (...)

32‘When wholesale denial of Chinese law was untenable, given the long legal tradition in China, Western jurists created a fiction of the Chinese legal system as irrational, instrumentalist, arbitrary, and similar to so-called kadi justice, and then compared it with another fiction: idealized European positive law.’88

33The barbarization of Chinese legality, in turn, served as an apology for the establishment of Western jurisdictional privileges, as well as to justify, in general, the Euro-American policy of interventionism in the Far East. Thus, through extraterritoriality, foreign powers further denied the legitimacy of Chinese law, and gradually compelled China to adopt a new legal system, based on the Continental models of positivist legality.

III. Abolishing Extraterritoriality, Exporting Positivist Legality

a) Internal Opposition to Extraterritorial Consular Jurisdiction

  • 89  Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire durin (...)
  • 90 On the 1911 Republican revolution, see Joseph Esherick, Reform and Revolution in China: The 1911 Re (...)
  • 91 David Scott, China and the International System, 1840-1949: Power, Presence, and Perceptions in a C (...)

34The general attitude of disdain towards Chinese law held by Western citizens reinforced the Qing authorities’ prescient rejection of the institution of extraterritorial consular jurisdiction. According to Horowitz, ‘the exemption of foreign nationals from the jurisdiction of Chinese courts, the use of foreign-controlled consular courts that were widely believed to be deeply biased, and the frequent abuse of these privileges became touchstones of growing popular nationalist and anti-imperialist feeling’.89With the rise of Chinese nationalist movements and the overthrow of the Qing dynasty, both extraterritoriality and the treaty system more generally quickly became the objects of an even stronger popular opposition.90 As in the case of the Ottoman Empire, Euro-American governments took advantage of the Chinese displeasure with Western legal interventionism to ask for the initiation of massive legal reforms. The successful example set by Japan in abolishing foreign extraterritorial rights through the implementation of widespread legal reforms further reinforced the Chinese Republican leaders’ determination to recover Chinese sovereignty and to end the ‘Century of Humiliation’.91

  • 92 See Questions For Readjustment. Submitted by China to the Peace Conference. Paris, 1919: 14 - 18. A (...)

35Perhaps the best illustration of the reasons underlying China’s discontentment with consular jurisdiction is a memorandum entitled ‘Questions for Readjustment’, submitted to the governments represented at the 1919 Paris Peace Conference following the termination of WWI.92 By invoking general principles of international law such as territorial sovereignty and sovereign equality, the document requested that China be treated as an equal within the international community, though the implementation of measures such as the revision of their treaties with China, the abrogation of extraterritoriality, the restoration of China's tariff autonomy and the withdrawal of foreign troops and foreign post offices from China. With regard to the request to abolish extraterritorial consular jurisdiction, the final document is particularly interesting, as it provides a clear statement of the Chinese dissatisfaction with the institution. Firstly, similarly to Ali Pasha’s assertion that extraterritoriality constituted ‘a multiplicity of governments within the government’ in Turkey, the circular argued that consular jurisdiction was defective due to the diversity of laws applied:

  • 93 See Questions For Readjustment, Ibid: 16

‘The prevailing rule by which the consular jurisdiction is determined is that of defendant’s nationality: claims against Englishmen must be made in English Courts, against Frenchmen in French Courts, against Americans in American Courts, and so forth. What constitutes an offence or cause of action in one consular court may not be treated as such in another. It is for this reason that different decisions are given, while the facts are exactly the same, and this inequality of treatment hurts the sentiment of equity and justice.’93

  • 94 Ibid.
  • 95 Ibid.

36A second source of discontent lay in the alleged lack of effective control over witnesses or plaintiffs of another nationality. When foreign witnesses were invited to appear before Chinese courts, such appearances were based entirely on the individual’s voluntary action, and ‘he could not be fined or committed for contempt of court, nor could he be punished by that court if he should commit perjury’.94 Similarly, local courts found it difficult to obtain evidence in cases where a foreigner committed a crime, particularly if the offence occurred inland. According to the treaties, aliens could not be arrested or tried directly, but were to be handed over to the nearest consulate for judgment. This, in the words of the American Minister Reed, meant that ‘the foreigner who commits a rape or murder a thousand miles from the sea-board [was] to be gently restrained, and remitted to a Consul for trial, necessarily at a remote point, where testimony could hardly be obtained or ruled on.’95

  • 96 Ibid.
  • 97 Ibid.

37The document, moreover, highlights the theoretical and empirical conflict between consular functions, on the one hand, and judicial responsibilities, on the other. In fact, if the primary duty of a Consul was to look after the interests of his nationals, it is ‘scarcely consistent to add to that duty the task of administering justice’.96 The delegation of the two functions to a single person clearly conflicted, from the perspective of Chinese officials, with the principles of neutrality and impartiality of justice that, quite paradoxically, were so often used to reproach Chinese tribunals. Finally, it was emphasized that extraterritorial consular jurisdiction exhibited ‘a marked tendency to disappear everywhere sooner or later’.97  Indeed, it had been totally abolished in Japan in 1899, while in Siam the reorganization of local courts brought Western powers to consent to a partial surrender of the right of jurisdiction to the territorial authorities.

  • 98 The document also requested that the powers immediately consent that: (1) ‘Every mixed case, civil (...)
  • 99 See Zhang Yongjin, ‘China's Entry into International Society: Beyond the Standard of' Civilization’ (...)

38The petition concluded by asking for the definitive termination of consular jurisdiction, upon the fulfilment, on the Chinese side, of further legal reforms anticipated to be accomplished by 1924. The project involved the development of criminal, civil and commercial codes, as well as codes of civil and criminal procedure. The promulgation of such codes would then have been complemented by the establishment of a considerable number of new courts in all the districts where foreigners resided.98 Notwithstanding Wilson’s, Clemenceau’s and other conference members’ informal acknowledgment of the legitimacy of China's demands, they all urged China to submit its complaints to the nascent League of Nations for redress. In the meantime, not much had changed in the concrete application of the Unequal Treaties by the end of the Peace Conference.99

  • 100 Cited in Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottom (...)
  • 101 Cited in Robert Thomas Pollard, China's Foreign Relations: 1917-1931. (New York, 1933) 217.
  • 102 ‘The governments of the powers represented in the Conference, except China, should each appoint one (...)

39The next attempt was pursued at the Washington Conference in 1922, when the representatives of Western governments met to discuss their strategic relations in East Asia. Ironically, the United States, Britain, Japan, Italy, Portugal, Belgium, the Netherlands and France jointly recognized the ‘sovereignty, independence, and territorial and administrative integrity of China’, but the Republic’s representatives to the conference were not allowed to participate actively in the substantive negotiations.100 Despite this, the Chinese delegation did not miss the opportunity to raise the issue of the abolishment of extraterritoriality. As a matter of fact, Dr. Wang Ch’ung-hui presented arguments against the continued existence of consular jurisdiction, ‘particularly in view of the fact that China had recently made much progress in the reform of her judicial system and in the codification of her laws’.101 By the end of the Conference, the representatives had not yet abolished the jurisdictional privileges enjoyed by foreigners. That said, Western governments did opt for a somewhat pragmatic solution, by promoting the creation of a special Commission on Extraterritoriality in China to ‘to inquire into the present practice of extraterritorial jurisdiction in China, and into [its] laws, the judicial system and the methods of judicial administration’.102

  • 103 Report of the Commission on Extraterritoriality in China, Peking, September 16, 1926: Being the Rep (...)
  • 104 Ibid.

40The Commission eventually met in Beijing in 1926, at which time a travelling committee charged within inquiring into the administration of justice within the Chinese territories was established and, after 21 sessions, an official Report on Extraterritoriality in China was drafted and published.103 This Report was divided into four parts: Part I on the ‘Present Practice of Extraterritoriality in China’, providing a brief historical overview of the development of the institution, as well as statistical accounts of its status in 1926; Part II, entitled ‘Laws and Judicial System of China’, expressing the ‘verdict’ the commissioners reached on the development of the Chinese legal system; Part III on the ‘Administration of Justice in China’, focusing on the status and practices of Chinese prisons and tribunals; and, finally, Part IV, providing ‘Recommendations’ to both the Chinese and Western governments aimed at reducing abuses of extraterritorial consular jurisdiction.104

  • 105 In Turan, Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Em (...)
  • 106 ‘In fact [Chinese laws] have as their basis mandates of the President or orders of the Ministry of (...)
  • 107 See Report of the Commission on Extraterritoriality in China. Ibid:  Part II and Part III.
  • 108 Pär Kristoffer. Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-C (...)
  • 109 For a detailed account of the reforms urged by Western powers, see Report of the Commission on Extr (...)

41According to Kayaoğlu, ‘the Report on Extraterritoriality in China is the clearest expression of the Western judgment about the Chinese judiciary and of the description of the Western requirement for legal reforms in accordance with the legal positivist worldview as a necessity of extraterritoriality.’105 In fact, the general terms of the document described the Chinese legal system as unsatisfactory, inefficient and incomplete. First of all, it held that Chinese laws could hardly be considered as such, as ‘the commission found that few…were ever enacted or confirmed by Parliament in the method generally prescribed by the modern constitutions’.106 Furthermore, it noted that China lacked a civil code, a commercial code, a bankruptcy code and patent law, lacunae that were further aggravated by the inadequate number of its courts and the unsatisfactory nature of its prisons.107 More generally, ‘instead of the barbarity of traditional Chinese practices, it was now the weakness of the central government that served as justification for extraterritoriality.’108 Consequently, the report recommended that the Chinese demand to abolish foreign ‘capitulatory’ rights could not be met until substantial legal reforms granting securities to foreigners and bringing the Chinese legal system into conformity with Western jurisprudential models had been accomplished.109

  • 110 ’Like some eminent lawyers and jurists of the nineteenth century, with their efforts to justify the (...)
  • 111 See Wesley R. Fischel, The End of Extraterritoriality in China. (Berkeley: University of California (...)

42The majority of the members of the Commission on Extraterritoriality were professional lawyers, educated in Western universities, who based their judgments on ideal-typical positivist legal standards and who then, almost naturally, concluded that China ‘lacked’ something. As previously discussed, Western legal experts played a considerable role in justifying and eventually perpetuating extraterritorial consular jurisdiction in Asia and the Middle East, as governmental policy-makers relied heavily on their reports when making final decisions.110 Following the publication of the Commission’s Report, Western powers decided to maintain extraterritorial consular jurisdiction in China. A further attempt to abolish consular jurisdiction took place in 1930, through a unilateral declaration of termination, which was obviously rejected.111 Shortly thereafter, internal political unrest, leading to the split of Chinese leadership into Communist and Nationalist fractions coupled with the Japanese invasion of Manchuria in 1931 and the outbreak of WWII brought negotiations to a dreadlock. Arguably, at that time, no one could have imagined that, after one hundred years of struggle between China and Western powers, extraterritoriality would crumble relatively peacefully just a few years later.

b) Conceding the End of Extraterritoriality: The Anglo-American Initiative of WWII

  • 112 As already mentioned above, internal political fragmentation and the Japanese occupation paralyzed (...)
  • 113 For a comprehensive account of the diplomatic negotiations preceding the ratification of the Treati (...)

43A joint Anglo-American initiative led to the abolishment of extraterritoriality in China during WWII. Surprisingly, and distinct from the diplomatic efforts Turkey felt compelled to exercise in order to negotiate the termination of capitulations, the Allies themselves took the first steps towards the abrogation of the Unequal Treaties. This initiative was quite unexpected, as it took place at a time when China was particularly weak.112 Following a preliminary agreement between the British Foreign Office and the U.S. Department of State to act jointly on the issue, diplomatic negotiations were begun with the Chinese government.113 As a result, January 11, 1943, the Sino-American Treaty for the Relinquishment of Extraterritorial Rights in China was signed in Washington. Article 1 of the Treaty prescribed:

  • 114 Treaty Between The United States And China For The Relinquishment Of Extraterritorial Rights In Chi (...)

‘All those provisions of treaties or agreements in force between the United States of America and the Republic of China which authorize the Government of the United States of America or its representatives to exercise jurisdiction over nationals of the United States of America in the territory of the Republic of China are hereby abrogated. Nationals of the United States of America in such territory shall be subject to the jurisdiction of the Government of the Republic of China in accordance with the principles of international law and practice.’114

  • 115 Sino-British Treaty for the Abolition of Extraterritoriality and Related Rights in China. Signed in (...)
  • 116 Wang Dong, ‘The Discourse of Unequal Treaties in Modern China’,  Pacific Affairs 76, no. 3 (2003): (...)
  • 117 In Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Emp (...)
  • 118 ‘Later, as the Japanese government and the Allies were clamouring to win the support of the Chinese (...)

44On the same day, the Chinese foreign minister, Song Ziwen, and the British ambassador to China signed the Treaty for the Abolition of Extraterritoriality in Chongqing. Article 2 of the treaty, drafted similarly to the U.S. provision, abrogated all international agreements that granted extraterritorial rights in China to any British national or company.115 The event was marked with great celebration and the next day the Nationalist Guomindang government published a Letter to All Servicemen and Masses, announcing with triumph that ‘we, the Chinese nation, after fifty years' of sanguinary revolutions and five and a half years' of sacrifice in the War of Resistance, have finally transformed the history of a hundred years of the Unequal Treaties of sorrow into a glorious record of the termination of the Unequal Treaties’.116 The Chinese enthusiasm grew as practically all the other states whose nationals had enjoyed extraterritorial rights in China followed the Anglo-American example and rapidly abrogated their old treaties. All the dominoes of the Unequal Treaties suddenly crumbled. During the same year, Japan, Norway and Belgium consented to the termination of extraterritorial consular jurisdiction. The Netherlands and Sweden followed in 1945, while France, Portugal, Denmark and Italy all concluded new treaties for the abrogation of extraterritoriality between 1946 and 1947.117 Hence, by the end of the 1940s, the long-abhorred institution finally vanished, with both the Nationalist Government in exile and the new People’s Republic of China taking the credit for having unified the country under a single government and territorial jurisdiction.118

  • 119 ‘The latter are regarded as a people with all the virtues and few failings, except weakness, who de (...)
  • 120 Ibid.

45Although the reasons behind such a drastic turn in Anglo-American politics are not entirely clear, Realpolitik considerations played a crucial role. This rationale was apparent in the British government’s assessment of the differences between the Americans’ ‘idealized’ vision of the Chinese vis-à-vis the cautious British approach to their mutual relations. Shortly before the ratification of the above-mentioned treaties, Sir John Brenan, Counsellor in the British Foreign Office, affirmed that ‘due perhaps to their aloofness from the European scramble for territorial and commercial concessions in China, and to the large American missionary community in the country, the Americans are inclined to draw an idealised and emotional picture of the Chinese’.119 He further emphasized the dissimilarity of the Anglo and American views by underlining the British traditional, ‘more realistic’ attitude towards China, concluding: ‘It is for this reason also that our wartime dealings with China, while imbued with goodwill due to an important ally, are also restrained by caution.’120

  • 121 For support to this view, see generally Wang Dong, ‘The Discourse of Unequal Treaties in Modern Chi (...)
  • 122 ‘With the outbreak of the Pacific war British courts could no longer function in Japanese-occupied (...)

46Hence, particularly on the side of the British, the decision to unilaterally terminate the Unequal Treaties certainly took regional political and strategic considerations into account. Supporting China in order to contain Japan, the common enemy-in-war, certainly played a considerable role both for the Crown and, later, following the Japanese attack at Pearl Harbour, for the Americans. Another consideration in support of abolishment was the desire to encourage the Chinese in any potential post-war cooperation in the Far East. Accordingly, reinforcing the internal popularity of the Chinese National Government at the expense of the growing Communist party became paramount.121 Yet, a different interpretation of the abrogation of the treaties may be found in the increasing de-facto inefficiency of consular courts, mostly due to the Japanese occupation of a considerable portion of Chinese territory.122

  • 123 See The Secretary of the State to the Ambassador in the United Kingdom (Winant). Washington, August (...)
  • 124 On the role that public consciousness against extraterritoriality played in shaping the U.S. policy (...)
  • 125  See Turan, Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman (...)

47Although asserting that the American government abrogated its jurisdictional privileges solely out of ‘an idealised and emotional picture of the Chinese’ would be an exaggeration, ideological considerations certainly played a role in the decision. Shortly before signing the treaty of relinquishment, U.S. Secretary of State Cordell Hull affirmed that extraterritoriality was ‘an anomaly’ incompatible with ‘modern international practices’ and the ‘generally-accepted principles of modern international law’.123 Consequently, he reaffirmed U.S. support for its definitive abolition in the case of China.124 Interestingly, given its historic conceptualization as a guarantee against ‘backward’ legal cultures, the discourse surrounding extraterritorial consular jurisdiction gradually shifted towards its categorization as an ‘anomalous and anachronistic practice’. This normative shift presented extraterritoriality as an institution that increasingly clashed with modern ideas of justice and international law.125 Chinese internal legal reforms played a considerable role in this process and, consequently, in the decision to terminate the Unequal Treaties. At the time when extraterritoriality was abolished, the new Chinese legal architecture finally began to structurally resemble that of a positivist legal system.

c) Abolishing Extraterritoriality, Exporting Legality: The Positivist Legacy of Extraterritorial Consular Jurisdiction

  • 126  See Kayaoğlu, Ibid: 122.

48Similar to the reformist trajectory of the Ottoman Empire, China's termination of the ‘Unequal Treaties’ was closely related to the implementation of large-scale legal reforms. In fact, Western promises to end extraterritoriality pushed the Qing leaders to implement massive structural changes in order to ‘modernize’ their internal jurisprudence. The accomplishment of judicial modernization, in turn, helps account for the subsequent abolition of the institution. In other words, if Chinese legal culture has been invoked as the primary cause for the establishment of extraterritorial consular jurisdiction, extraterritoriality, in turn, led to the gradual ‘positivization’ of the Chinese prescriptive order. Hence, what Kayaoğlu refers to as legal institutionalization – ‘the codification of laws, the spread of a court system and the establishment of a legal hierarchy’126 – developed hand in hand with the rise and fall of foreign jurisdictional privileges.

  • 127  See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteen (...)
  • 128  Article XII – ‘China having expressed a strong desire to reform her judicial system, and to bring (...)
  • 129 See Cassel, supra: 175.

49The first wave of legal reforms in China began at the end of the nineteenth century. In 1898, encouraged by the Japanese success in negotiating the termination of their Unequal Treaties through a comprehensive programme of judicial modernization, the Guangxu Emperor initiated the so-called ‘hundred days of reform’.127 This attempt gained momentum following the 1902 Mackay Treaty between the Qing Empire and Great Britain, Article XII of which mentioned, for the first time, the possibility of terminating consular jurisdiction in exchange for internal legal reforms.128 Following the ratification of the instrument, ‘for the first time, the Qing court agreed that sweeping reforms were necessary for treaty revision’.129 There were thus several early initiatives that made the first moves towards the codification of penal law, criminal procedure and constitutional law.

  • 130 See Richard S. Horowitz, ‘International Law and State Transformation in China, Siam and the Ottoman (...)
  • 131  ‘While this has usually been seen as simply an effort to end extraterritoriality by adopting Europ (...)
  • 132  Horowitz, Ibid.
  • 133  ‘In sum, despite various attempts, the late Qing and early republican governments failed to consol (...)

50In 1904, a Law Codification Commission, jointly led by the British-trained lawyer Wu Tingfang and the progressive Chinese legal scholar Shen Jiabe, was established.130 With the aid of Japanese legal advisors, the Qing authorities tried to institute European-like corporate and commercial bodies of law. Most importantly, they reformed the old Qing penal code, prohibiting the use of cruel punishments, such as torture, to extract confessions and ended capital punishment.131 Furthermore, in 1906, the centralization and specialization of the Chinese bureaucracy began, and the administrative model of Western governments with their sectorial separation into ministerial departments was applied.132 Notwithstanding these reformist efforts, however, the initial attempts to ‘positivize’ the Chinese legal order obtained disappointing results. This was due, in large part, to the Empire’s intrinsic legal pluralism, political fragmentation, and its subjects’ continuing use of traditional customary law and forms of adjudication.133

  • 134  For references on the Republican revolution, see supra: footnote 301.
  • 135  In Julie Lee Wei, Ramon Hawley Myers, and Donald G. Gillin, eds, Prescriptions for Saving China: S (...)
  • 136  Philip C. Huang, Code, Custom, and Legal Practice in China: The Qing and the Republic Compared (St (...)

51The second wave of ‘legal institutionalism’ came with the ascendance of the Han ethnic Nationalists, who ousted the Manchu Qing dynasty and assumed the leadership of the newborn Republic of China in 1911.134 The construction of a unitary, modern state was the primary goal of the revolutionary movement, but its accomplishment necessarily implied ‘sacrificing the separate nationality, history, and identity that they [the Han] are so proud of and merging in all sincerity with the Manchus, Mongols, Muslims, and Tibetans in one melting pot to create a new order of Chinese nationalism.’135 Hence, in addition to the central goal of political cohesion, legal standardization and the achievement of unitary territorial jurisdiction were perceived as fundamental to the modern Chinese nation-state. The project of legal modernization was therefore advanced and, just a few months after the Nationalists’ coup d’état, a civil code based on that of the Japanese (which, in turn, was based on the German civil code), was promulgated. At the same time, efforts to replace the old Imperial laws with modern criminal and commercial codes continued apace.136

  • 137  See Questions For Readjustment. Submitted by China to the Peace Conference. Paris, 1919: 14–18. Av (...)
  • 138  Ibid.
  • 139 Such reformist ‘steps’ can be summarized as follows: (1) the adoption of a National Constitution pr (...)

52The best illustration of the early legal ‘accomplishments’ of the Republicans can be found in the ‘Question of Readjustment’ submitted by the Chinese to the Western governments during the 1919 Paris Peace Conference.137 The circular asserted that China acknowledged ‘that the Chinese laws and their administration have now reached such a state as has been attained by the most advanced nations’, and that China made considerable progress in modernizing its jurisprudence.138 The document proceeded to enumerate the concrete steps China had made, in response to Western critiques, in the drafting of positive legal codes and the comprehensive reform of its adjudicatory bodies.139 However, the Paris Peace Conference did not lead to the abolishment of extraterritoriality. The Special Commission on Extraterritoriality in China, subsequently instituted during the Washington negotiations, moreover, found all the above-mentioned accomplishments ‘unsatisfactory’.

  • 140 Admittedly, the following information owes much to Kayaoglu’s accurate research on the subject.
  • 141 See Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Em (...)
  • 142 See Kayaoğlu, Ibid:  178.
  • 143 Below the Supreme Court were the High Courts, which functioned as an appellate system in the provin (...)
  • 144 Cited in Kayaoğlu, supra.

53Following the negative account of the Report of the Commission on Extraterritoriality, the Guomindang government launched a third wave of legal institutionalization during the 1930s.140 By 1928, a new Code on Criminal Procedure had entered into force, followed shortly afterward by a revised Civil Code. In 1931, a new Criminal Code, Commercial Code, and the comprehensive codification of Civil Procedure joined the existing reforms.141 In the course of the same year, the Chinese judicial powers under Judge Yuan passed laws intended, according to Kayaoğlu, ‘to standardize the interpretations of the law and to see that these interpretations were applied throughout the country’.142 The following year, the Law of the Organization of the Judiciary officially consolidated the long-envisioned hierarchy of courts, headed by the Supreme Court in Nanking.143 According to the Chinese Ministry of Justice, directed by Judge Yuan, the total number of ‘modern courts’ grew from 139 in 1926 to 406 in 1937.144

  • 145 In H. Yang, A History of Chinese Legal Thought. Zhongguo FaliiSixiangshi (1937). Volume 2. (Beijing (...)

54The inspiration for most of the new Chinese positive codes came from pre-existing Western legal instruments. With regard to the 1928 Civil Code, for instance, the Chinese scholar Yang argued that, if studied carefully from Article 1 to Article 1225 and then compared with the German Civil Code, the Swiss Civil Code and the Swiss Code of Obligations, ‘we will find that 95% of its provisions have their origins there [since] they are either copied directly or copied with some changes of expression’.145 Arguably, a similar conclusion could likely be made regarding the other newly promulgated instruments. Hence, although the outbreak of WWII and the Japanese invasion of Manchuria stalled the nationalist reformist projects, it appears that China had already made astonishing progress in the ‘positivization’ of its laws at the time when extraterritoriality was finally abolished.

  • 146 ‘The Western Power’s promise to relinquish extraterritorial rights and to assist in law reform alon (...)
  • 147 See Chen, Ibid. The author emphasizes the continuity between the Chinese early legal reforms, law u (...)

55The greatest legacy of extraterritorial consular jurisdiction in China was, therefore, the structural conformity of its legal system to Western ideas of positivist legality.146 As in the case of the Ottoman Empire, and somewhat paradoxically, the price of terminating Western jurisdictional interference was the ‘transplantation’ of Continental legal categories and structures to China. Notwithstanding the advent of the People’s Republic of China and the drastic political changes that affected the country during the first half of the twentieth century, such structural changes permanently influences the future of Chinese law. As a matter of fact, by gradually breaking down traditional values and practices, these early legal reforms ‘laid down the foundation of Western law and legal systems, to be further studied, developed and adapted in China’, independently of its subsequent political ideologies.147

  • 148 This process occurred primarily through the settlement of large foreign expatriate communities in C (...)
  • 149 Gerrit Gong, ‘China’s Entry into International Society’, In The Expansion of International Society, (...)

56Extraterritorial consular jurisdiction was the centrepiece of this process. Not only did Western promises to abolish the institution promote and accelerate the Chinese reform efforts, but its existence also contributed to the diffusion of Western legal and political ideas, cognitive categories, cultural values, social practices and normative beliefs throughout China.148 Through the evaluation of legal experts, Chinese law was then measured and categorized with reference to an ideal-typical standard of positivist legality, and subsequently dismissed as ‘chaotic’, ‘lawless’ and ‘unsatisfactory’. The abolition of extraterritoriality, in turn, played an important role in China’s achievement of ‘the standard of civilization’. According to Gong, it was only when the British and Americans abrogated their Unequal Treaties that China nominally became a ‘civilized’ member of international society – albeit an uncomfortable one.149The great epistemic question remains, however, as to who sets the standard of civilization and who becomes its object?

Notes

1 See Li Zhaojie ‘Traditional Chinese World Order’, Chinese Journal of International Law 1 (2002): 22.

2 ‘The Qing state, stretching from the county magistrate at the bottom to the emperor and his Grand Council at the top, was integrated, bureaucratic, and run by a highly educated elite in a large part (but by no means exclusively) chosen through the examination system. At the local level, officials were overworked, understaffed, and embattled, but there was no question that officials were ultimately responsible to Beijing.’ In Richard S. Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’, Journal of World History 15, n. 4 (2004): 457 (emphasis added).

3 See Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge University Press, 2010). 164.

4 See Li Zhaojie, ‘ Traditional Chinese World Order’,  Chinese Journal of International Law 1 (2002): 36.

5 In many ways, Confucianism can be considered an apologist philosophy, as it provided the basis for maintaining a remarkably hierarchical and anti-egalitarian social order. For instance, Confucius advocated that: ‘The duties of universal obligation are five and the virtues wherewith they are practised are three. The duties are those between sovereign and minister, between father and son, between husband and wife, between elder brother and younger, and those belonging to the intercourse of friends. Those five are the duties of universal obligation. Knowledge, magnanimity, and energy, these three, are the virtues universally binding. And the means by which they carry the duties into practise is singleness.’ In: Confucius, The Doctrine of the Mean. (University of Adelaide Library, 2008). 20: 8.

6  See Li Zhaojie, ‘ Traditional Chinese World Order, ‘ Chinese Journal of InternationalLaw 1 (2002): 37.

7 Ibid: 39.

8 In Derk Bodde and Clarence Morris, Law in Imperial China: Exemplified by 190 Ch'ing Dynasty Cases: With Historical, Social, and Juridical Commentaries. (Harvard University Press, 1967). 4.

9 On the Treaty of Nerchinsk of 1689 between the Russian and the Chinese Empires, see V. S. Frank, ‘The Territorial Terms of the Sino-Russian Treaty of Nerchinsk, 1689’, Pacific Historical Review 16, no. 3 (1947): 265-270. On the Treaty of Kiakhta of 1727, see generally, Richard Lotspeich, ‘Perspectives on the Economic Relations between China and Russia’, Journal of Contemporary Asia 36, no. 1 (2006): 48–74.

10 See Jianfu Chen, ‘Modernisation, Westernisation, and Globalisation: Legal Transplant in China’, in One Country, Two Systems, Three Legal Orders-Perspectives of Evolution. (Berlin, Heidelberg: 2009). 110.

11 For a detailed account of the Chinese pluralistic internal legal order, see Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. Oxford Studies in International History. (New York: Oxford University Press, 2012). 15–29.

12 See Derk Bodde and Clarence Morris. Law in Imperial China: Exemplified by 190 Ch'ing Dynasty Cases: with Historical, Social, and Juridical Commentaries. (Harvard University Press, 1967). Preface.

13  Ibid.

14 This case is taken from Bodde and Morris’ outstanding collection of cases adjudicated during the late Qing Empire. Ibid:  276–278.

15 These are just a few examples inspired by the much wider illustrations provided by Bodde and Morris, ibid.

16 Ibid. This also explains why the majority of contemporary scholars tend to argue that China lacked a formal system of civil law, properly speaking. As a matter of fact, the many officialoffences were indeed redressed through various forms of corporal punishment or detention. See Li Zhaojie, ‘Traditional Chinese World Order’, Chinese Journal of International Law 1 (2002): 41 –‘Firstly, until the beginning of this century, there had existed no jurisprudential distinction between criminal law and civil law. The written codes as well as decrees addressed mainly matters which would be classified under criminal law and administrative law in the light of modern standard.’ See also George Williams Keeton, Extraterritoriality in International and Comparative Law. (Hague: Librairie du Recueil Sirey 1948). 303–304: ‘On the other hand, as far as civil cases were concerned, it should be remembered that the Chinese Code was not concerned with private disputes, especially between traders, and these, even where Chinese merchants alone were concerned, were habitually settled by the merchant guilds in accordance with customs of great antiquity.’

17 See Bodde and Morris (1967): supra at 4.

18 Ibid.

19 In Li Zhaojie, ‘Traditional Chinese World Order’, Chinese Journal of International Law 1 (2002): 40.

20  Ibid.

21 See Benjamin Isadore Schwartz, The World of Thought in Ancient China. (Harvard University Press, 2009). 32. The li is the set of Confucian traditional ritual norms.

22 ‘Before the nineteenth century, Siam, Qing China, and the Ottoman Empire were all complex, compound states in which external boundaries were poorly defined, and near the frontier the use of indirect rule and suzerain tributary relationships with local power holders were common.’ In Richard S. Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’,  Journal of World History 15, n. 4 (2004): 475.

23 See, generally, Hosea Ballou Morse, The Chronicles of the East India Company, Trading to China, 5 Volumes. (Cambridge: Oxford University Press 9, 1926); Kirti N. Chaudhuri, The Trading World of Asia and the English East India Company: 1660–1760. (Cambridge University Press, 2006); Anthony Farrington, Trading Places: The East India Company and Asia 1600–1834. (British Library Board, 2002).

24 On China's involvement in the tributary system and other relations with neighbouring polities, see the essays in John King Fairbank and Ta-tuan Chen, The Chinese World Order: Traditional China's Foreign Relations. Vol. 32. (Harvard University Press, 1968); and, from a different perspective, James Louis Hevia, Cherishing Man from Afar: Quing Guest Ritual and the Macartney Embassy of 1793. (Duke University Press, 1995). 29–56.

25 See Li Zhaojie, ‘Traditional Chinese World Order’,  Chinese Journal of International Law 1 (2002): 26.

26 Zhaojie in particular argues that the tributary system was not merely an hegemonic institution, but a complex set of diplomatic and ritual arrangements, whereby ‘ n addition to the enormous cost for the operation of the [tributary] system, the Chinese emperor's gifts were usually more valuable than the tribute he received.’ Ibid: 55.

27 Liu, however, argues that the early origins of extraterritorial jurisdiction in China go back to the Imperial trade with Russia in seventeenth century. Accordingly, he refers to the Treaties of Nipchu or Nerchinsk concluded in 1689, Article 4 of which stated: ‘If hereafter any of the subjects of either nation pass the frontier and commit crimes of violence against property or life, they are at once to be arrested and sent to the frontier of their country and handed over to the chief local authority for punishment.’ Similarly, he invokes the 1727 Treaty of Kiakhta, which allegedly contains extraterritorial provisions for the suppression of brigandage along the borders. See Liu, Shih Shun. Extraterritoriality: Its Rise and Decline (1925). New York: AMS Press, 1969: 37. It is difficult, however, to classify such instruments as institutionalizing extraterritorial consular jurisdiction in the later meaning of the term. In fact, they provided privileges of a reciprocal nature, no consulates were ever mentioned or established and, instead, they seem to have aimed at establishing a sort of ‘extradition system’ for offences committed along the common borders.

28 ‘Relations with the Ottoman Empire offered European powers a model of how to carry on relations with large, non-Christian Eurasian governments. This model was then pressed into use in the Treaty of Nanking that ended the Opium War, which in turn formed the basis for treaties with Siam and Japan.’ In Richard S. Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century,’ Journal of World History 15, n. 4 (2004): 447.

29 See Wellington Koo, The Status of Aliens in China. (Columbia University, 1912). 62; George Williams Keeton, Extraterritoriality in International and Comparative Law. (Hague: Librairie du Recueil Sirey 1948). 300.

30 See Li Chen, ‘Law, Empire, and Historiography of Modern Sino-Western Relations: A Case Study of the Lady Hughes Controversy in 1784, Law and History Review 27, no. 1 (2009): 1–53; See also Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. Oxford Studies in International History. (New York: Oxford University Press, 2012) 43; Koo (1912), Ibid: 69.

31 For a detailed description of the factual background of the case, see Peter Auber, China: An Outline of its Government, Laws, and Policy: And of the British and Foreign Embassies to, and Intercourse with, that Empire. (Parbury: Allen and Company, 1834). 181–187.

32 In Wellington Koo, The Status of Aliens in China. (Columbia University, 1912). 71.

33 Koo, Ibid: 62 – ‘Alien traders, particularly the British, early began to withdraw themselves, by open defiance, from the operation of the local laws, and that to a considerable degree, they were successful in pursuing their course of sheer contumacy’. For references to similar cases following the Lady Hughes controversy, wherein foreign offenders successfully managed to avoid Chinese adjudication, see Koo, Ibid: 71–79.

34 ‘It was therefore only in homicide cases where the finger of suspicion pointed in the foreigner’s direction that the Canton officials made a claim for surrender.’ In George Williams Keeton, Extraterritoriality in International and Comparative Law. (Hague: Librairie du Recueil Sirey 1948). 303.

35 See Act of the British Parliament to Regulate the Trade to China and India, 28 August 1833. In British and Foreign StatePapers 1832–1833. H.M. Stationery Office, 1836: 256.

36 See Act of the British Parliament to Regulate the Trade to China and India, 28 August 1833, Ibid. Article VI – ‘And be it enacted that it shall and may be lawful for His Majesty by any such Order or Orders Commission or Commissions as to His Majesty in Council shall appear expedient and salutary to give to the said Superintendents or any of them Powers and Authorities over and in respect of the Trade and Commerce of His Majesty's Subjects within any part of the said Dominions and to make and issue Directions and Regulations touching the said Trade and Commerce and for the government of His Majesty's Subjects within the said Dominions and to impose penalties forfeitures or imprisonments for the breach of any such Directions or Regulations to be enforced in such manner as in the said Order or Orders shall be specified and to create a Court of Justice with Criminal and Admiralty Jurisdiction for the trial of offences committed by His Majesty’s Subjects within the said Dominions and the Ports and Havens thereof and on the high seas within 100 miles of the Coast of China and to appoint 1 of the Superintendents herein before mentioned to be the Officer to hold such Court and other Officers for executing the Process thereof and to grant such Salaries to such Officers as to His Majesty in Council shall appear reasonable.’ (Emphasis added).

37 In Wellington Koo. The Status of Aliens in China. (Columbia University, 1912). 63.

38 See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. Oxford Studies in International History. (New York: Oxford University Press, 2012). 47; George Williams Keeton, Extraterritoriality in International and Comparative Law. (Hague: Librairie du Recueil Sirey 1948). 307.

39 Keeton, Ibid. See also, Wu Yixiong, ‘The Development and Early Practice of British Extraterritoriality in China before the Opium War’, Historical Research 4 (2006).

40 See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. Oxford Studies in International History. (New York: Oxford University Press, 2012). 57.

41 Ibid.

42 Ibid. See also Henry Dundas. Napier, Field-Marshal Lord Napier of Magdala. (London: E. Arnold & Company, 1927).

43 See Harry Gelber, Opium, Soldiers and Evangelicals: England’s 1840–42 War with China, and its Aftermath. (New York: Palgrave Macmillan, 2004). 11.

44 Cited in Hosea Ballou Morse, ‘The Period of Conflict 1834–1860’, in The International Relations of the Chinese Empire. Vol. 1. (Longmans, Green, and Company, 1910). 142.

45 ‘It was only after the termination of the Opium War in 1842 that extraterritoriality was formally introduced into China by a treaty premised upon her independence and sovereignty.’ See Shih Shun Liu, Extraterritoriality: Its Rise and Decline. (New York: AMS Press, 1969). 41. See also Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. (New York: Oxford University Press, 2012). 46–52 ; Pär Kristoffer Cassel, ‘Excavating Extraterritoriality: The “Judicial Sub-Prefect” as a Prototype for the Mixed Court in Shanghai’, Late Imperial China 24, no. 2 (2003): 156 – 182; John Wu, ‘The Problem of Extraterritoriality in China’, in Proceedings of the American Society of International Law at Its Annual Meeting (1921-1969. (American Society of International Law, 1930). Vol. 24: 182-194.  On the Opium War more generally, see Arthur Waley, The Opium War through Chinese Eyes. (Stanford University Press, 1968); Harry Gelber, Opium, Soldiers and Evangelicals: England’s 1840–42 war with China, and its Aftermath. (New York: Palgrave Macmillan, 2004); Peter Ward Fay, Opium War, 1840–1842: Barbarians in the Celestial Empire in the Early Part of the Nineteenth Century and the War by Which They Forced Her Gates Ajar. (UNC Press, 1998); Brian Inglis, The Opium War. (Hodder and Stoughton, 1976); Timothy Brook and Bob Tadashi Wakabayashi, Opium Regimes: China, Britain, and Japan, 1839-1952. (University of California Pr., 2000).

46 See Cassel, Ibid : 49

47 Ibid. On Commissioner Lin, see also Hsin-pao Chang, Commissioner Lin and the Opium War. (Harvard University Press, 1954). Vol. 18.

48 ‘Suppose a man of another country comes to England to trade, he still has to obey English laws; how much more should he obey in China the laws of the Celestial Dynasty?’ Cited in Cassel, Ibid. The translation reported by Liu is: ‘How can you bring the laws of your nation with you to the Celestial Empire?’ In Shih Shun Liu, Extraterritoriality: Its Rise and Decline (New York: AMS Press, 1969). 37.

49 Cassel, Ibid: 50.

50 Treaty of Nanjing (Nanking), 1842. Ratifications exchanged at Hong Kong, 26th June 1843.For the complete text of the treaty, see Inspector General of Customs. Treaties, Conventions, etc., Between China and Foreign States. Vol. 1. Shanghai: Statistical Department of the Inspectorate General of Customs, 1917: 351. For further reading, see John Ouchterlony, The Chinese War: An Account of all the Operations of the British Forces from the Commencement to the Treaty of Nanking. (Saunders and Otley, 1844); John King Fairbank, ‘Chinese Diplomacy and the Treaty of Nanking, 1842’, The Journal of Modern History 12, no. 1 (1940): 1 – 30; Katherine A. Greenberg, ‘Hong Kong's Future: Can the People’s Republic of China Invalidate the Treaty of Nanking as an Unequal Treaty’, Fordham International Law Journal 7 (1983): 543.

51 See Xinbao Zhang, Commissioner Lin and the Opium War (New York: Norton, 1970): 186.

52 General Regulations, Under Which The British Trade Is To Be Conducted At The Five Ports Of Canton, Amoy, Fuchow, Ningpo, And Shanghai, 1843. For the complete text of the treaty, see Inspector General of Customs. Treaties, Conventions, etc., Between China and Foreign States. Vol. 1. Shanghai: Statistical Department of the Inspectorate General of Customs, 1917: 338.

53 Article XIII - General Regulations, 1843. Ibid.

54 See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. (New York: Oxford University Press, 2012). 52.

55 See Article XVI. – ‘Chinese subjects who may be guilty of any criminal act towards British subjects shall be arrested and punished by the Chinese authorities according to the Laws of China. British subjects who may commit any crime in China shall be tried and punished by the Consul or other Public Functionary authorized thereto according to the Laws of Great Britain. Justice shall be equitably and impartially administered on both sides.’ Treaty of Tianjin, concluded on 26 June 1858. In: Inspector General of Customs. Treaties, Conventions, etc., between China and Foreign States. Vol. 1. Shanghai: Statistical Department of the Inspectorate General of Customs, 1917: 404. Compare to Article XVII – ‘A British subject having reason to complain of a Chinese must proceed to the Consulate and state his grievance. The Consul will inquire into the merits of the case, and do his utmost to arrange it amicably. In like manner, if a Chinese have a reason to complain of a British subject, the Consul shall no less listen to his complaint, and endeavour to settle it in a friendly manner. If disputes take place, then he shall request the assistance of the Chinese authorities that they may together examine into the merits of the case and decide it equitably.’ Ibid.

56 Article VIII - ‘The Emperor of China having been graciously pleased to grant to all foreign Countries whose Subjects, or Citizens, have hitherto traded at Canton the privilege of resorting for purposes of Trade to the other four Ports of Fuchow, Araoy, Ningpo and Shanghai, on the same terms as the English, it is further agreed, that should the Emperor hereafter, from any cause whatever, be pleased to grant additional privileges or immunities to any of the subjects or Citizens of such Foreign Countries, the same privileges and immunities will be extended to and enjoyed by British Subjects l but it is to be understood that demands or requests are not, on this plea, to be unnecessarily brought forward.’  Supplementary Treaty Signed By Their Excellences Sir Henry Pottinger And Ki Ying Respectively, On The Part Of The Sovereigns Of Great Britain And China, At The Bogue, 8th October 1843. In Inspector General of Customs. Treaties, Conventions, etc., Between China and Foreign States. Vol. 1. Shanghai: Statistical Department of the Inspectorate General of Customs, 1917: 393.

57 Article XXI – ‘Subjects of China who may be guilty of any criminal act towards citizens of the United States shall be arrested and punished by the Chinese authorities according to the laws of China, and citizens of the United States who may commit any crime in China shall be subject to be tried and punished only by the Consul or other public functionary of the United States thereto authorized according to the laws of the United States; and in order to secure the prevention of all controversy and disaffection, justice shall be equitably and impartially administered on both sides’ In Treaty of Wang-Hea Between the United States and the The Ta-Tsing Empire, 1844. See Treaties, Conventions, etc., Between China and Foreign States. Vol. 1, Ibid: 677.

58 The provision on extraterritorial consular jurisdiction read as follows: Article XXVII – ‘Si malheureusement, il s’ élevait quelque rixe ou quelque querelle entre des Français et des Chinois, comme aussi dans le cas où, durant le cours d’ une semblable querelle, ou un plusieurs individus seraient tués ou blessés. soit par des coups de feu soit autrement, les Chinois seront arrêtés pat l’Autorité Chinoise, qui se chargera de les faire examiner et punir, s’il y a lieu, conformément aux lois du pays. Quant aux Français, ils seront arrêtés à la diligence du Consul, et celui-ci prendra toutes les mesures nécessaires pour que les prévenus soient livrés à l’action régulière des lois françaises dans la forme et suivant les dispositions qui seront ultérieurement déterminées par le Gouvernement Français. Il en sera de même en toute circonstance analogue et non prévue dans la présent Convention, le principe étant que, pour la répression des crimes et délits commis par eux en Chine, les Français seront constamment régis par les lois Françaises.’ Treaty of Whampoa between France and China, signed on 24 October 1844. For the original and complete version of the instrument see Treaties, Conventions, etc., Between China and Foreign States. Vol. 1, Ibid: 785.

59 See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. (New York: Oxford University Press, 2012). 55.

60 Ibid.

61 ‘The Treaty of Kuldja gave Russia the right to send consuls to the Chinese treaty ports and provided for mutual extraterritorial rights both for Russians and Qing subjects along the Russo-Chinese border.’ See Cassel, ibid.

62 However, through the ratification of the Shimonoseki Treaty and the Treaty of Commerce and Navigation of 1896, China relinquished extraterritorial rights in Japan while Japan maintained them in China. See Report of the Commission on Extraterritoriality in China, Peking, September 16, 1926: Being the Report to the Governments of the Commission Appointed in Pursuance to Resolution v of the Conference on the Limitation of Armaments. Govt. Print. Off., 1926: 9.

63 See Report of the Commission on Extraterritoriality in China, Ibid.

64 ‘Rather than abolishing extraterritoriality, Western states strengthened it in ‘response to non-Western states’ complaints about the “abuses of extraterritoriality” through the revision process.’ In Turan Kayaoğlu Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge University Press, 2010). 153.

65 According to Cassel, the Chinese opposition to extraterritoriality is generally overestimated: ‘It is almost as if nineteenth-century foreign commentators on Chinese affairs acted as ventriloquists of a perceived Chinese resistance to extraterritoriality, reflecting their own anxieties and doubts about the justifiability of a practice that had little foundation in international law.’ See Cassel, Supra: 50. On the contrary, Liu argues that China was very jealous of the territorial application of its laws and extraterritoriality was clearly imposed as a result of the Opium War. See Shih Shun Liu, Extraterritoriality: Its Rise and Decline. (New York: AMS Press, 1969).

66 On the establishment of foreign territorial possessions within the Shanghai area generally, see Linda Cooke Johnson, Shanghai: From Market Town to Treaty Port, 1074–1858. (Stanford University Press, 1995); Arnold Wright, Twentieth Century Impressions of Hong Kong, Shanghai, and Other Treaty Ports of China: Their History, People, Commerce, Industries, and Resources. Vol. 1. (Lloyds Greater Britain publishing Company, 1908); Ernest O. Hauser, Shanghai: City for Sale. (Harcourt, Brace and Co. 1940); Mark Elvin and George William Skinner, eds. The Chinese City Between Two Worlds. (Stanford University Press, 1974); Charles B. Maybon and Jean Fredet. Histoire de la concession française de Changhai. (Plon, 1929); Linda Cooke Johnson, Cities of Jiangnan in Late Imperial China. (Suny Press, 1993).

67 See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. (York: Oxford University Press, 2012). 63.

68 For a detailed account of the history, establishment, case law and procedure in the Shanghai Mixed Court, see Pär Kristoffer Cassel, ‘Excavating Extraterritoriality: The “Judicial Sub-Prefect” as a Prototype for the Mixed Court in Shanghai’ Late Imperial China 24, no. 2 (2003): 156–182. See also Mark Elvin, ‘The Mixed Court of the International Settlement at Shanghai’, Papers on China 17 (1963): 131–159; Anatol M. Kotenev, Shanghai: Its Mixed Court and Council: Material Relating to the History of the Shanghai Municipal Council and the History, Practice and Statistics of the International Mixed Court. Chinese Modern Law and Shanghai Municipal Land Regulations and By-laws Governing the Life in the Settlement. (Cheng Wen Pub. Co., 1968).

69 See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. (New York: Oxford University Press, 2012). 67.

70 Ibid. See also Edmund Griani Hornby, Sir Edmund Hornby: An Autobiography. (Houghton Mifflin, 1928).

71 See R. J. Forrest’s Second Memorandum to Consul Charles A. Winchester (November 1868). In Foreign Office of Great Britain, Correspondence: 169.

72 See Eileen P. Scully, Bargaining with the State from Afar: American Citizenship in Treaty Port China, 1844-1942. (Columbia University Press, 2001). 98. See also Teemu Ruskola, ‘Canton is not Boston: The Invention of American Imperial Sovereignty’, American Quarterly 57, no. 3 (2005): 859-884.

73 See Kal Raustiala, Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law. (Oxford: Oxford University Press, 2009). 18. For the original source of the study, see Report of the Commission on Extraterritoriality in China, Peking, September 16, 1926: Being the Report to the Governments of the Commission appointed in Pursuance to Resolution V of the Conference on the Limitation of Armaments. Govt. Print. Off. 1926.

74  In Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge: Cambridge University Press, 2010). Table 7, 151.

75 Ibid.

76 See Shih Shun Liu, Extraterritoriality: Its Rise and Decline (New York: AMS Press, 1969). 39. It is, however, important to notice that this goes without prejudice to the remarkable exceptions of opinions held by some Western thinkers towards legality in the Far East. Caleb Cushing, for instance, underlined how ‘Europeans and Americans had a vague idea that they ought not to be subject to the local jurisdiction of barbarian Governments, and that the question of jurisdiction depended on the question, whether the country was a civilized one or not; and this erroneous idea confused all their reasoning in opposition to the claims of the Chinese; for it is impossible to deny to China a high degree of civilization, though the civilization is, in many respects, different from ours.’ Cited in Liu, Ibid. On Caleb Cushing, see also Claude M. Fuess, The Life of Caleb Cushing. 2 vols. (New York, 1923); Richard E. Welch, ‘Caleb Cushing's Chinese Mission and the Treaty of Wanghia: A Review’, Oregon Historical Quarterly 58, no. 4 (1957): 328–357.

77 Lassa Oppenheim, International Law. (London: Longmans, Green and Co., 1905). 44.

78 ‘Les Etats ne sont pas égaux entre eux. D'abord, il n'existe aucune égalité de droits entre les Etats civilisés et les états non civilisés ou moins civilisés. Les premiers se gèrent constamment dans leurs rapports avec les seconds comme des supérieurs chargés de la mission de les faire entrer de gré ou de force dans les voies de la civilisation: à cc titre ils s'arrogent envers eux certains droits de direction, de contrôle et parfois d'administration que ceux-ci ne possèdent en aucune façon à leur égard. Entre la condition des uns et la condition des autres, il y a inégalité fragrante et cette inégalité est en la matière la véritable base de leurs relations.’ In Antoine Pillet, Recherches Sur Les Droits Fondamentaux Des Etats Dans L'ordre Des Rapports Internationaux Et Sur La Solution Des Conflits Qu'ils Font Naitre. (Paris, 1899). 6.

79 Association for the Reform and Codification of the Law of Nations. Report of the Fifth Annual Conference Held at Antwerpen. 30 August to 3 September 1877. London: William Clowes and Sons, 1878: 58.

80 Ibid.

81 Association for the Reform and Codification of the Law of Nations. Report of the Seventh Annual Conference held at the Guildhall, London. 11-16 August 1879. London: William Clowes and Sons, 1880.

82 See George Williams Keeton, Extraterritoriality in International and Comparative Law. (Hague: Librairie du Recueil Sirey 1948). 303 – 304. For a more detailed account of how Western experts perceived the deficiencies of the Chinese legal order in 1926, see Report of the Commission on Extraterritoriality in China, Peking, September 16, 1926: Being the Report to the Governments of the Commission Appointed in Pursuance to Resolution V of the Conference on the Limitation of Armaments. Govt. Print. Off., 1926.

83 See Wellington Koo, The Status of Aliens in China. (Columbia University, 1912). 80.

84 See, for instance, the remarks that Sir George introduced to the House of Commons in 1833: ‘That, lastly, the state of the trade under the operation of the Chinese laws in respect to homicides committed by foreigners in that country, calls for the early interposition of the Legislature, those laws being practically so unjust and intolerable that they have in no instance for the last forty-nine years been submitted to by British subjects; great loss and injury to their commercial interests accruing from the suspension of trade in consequence of such resistance, and the guilty as well as the innocent escape with impunity; and that, it is, therefore, expedient to put an end to this anomalous state of law by the creation of a British naval tribunal upon the spot, with competent authority for the trial and punishment of such offences.’ Hansard, Parliamentary Debates, 3rd ser., vol. xviii: 700.

85 William Blackstone, Commentaries on the Laws of England (1765–1769). (Chicago: University of Chicago Press, 1979). 18. Similarly, Walpole argued: ‘Among the grievances which formed the subject of remonstrance and complaint, both in Parliament and out of doors, nothing was more anomalous, more unfortunate, and more indefensible than the criminal code which disgraced the statute-book. During the earlier years of the present century the punishment of death could be legally inflicted for more than 200 offences.’ See Spencer Walpole, History of England. Vol. 2 (London: Samuel Maunder Publisher, 1830). 59.

86 See James Fitzjames Stephen, A History of the Criminal Law of England. Vol. 3. (Macmillan, 1883). 474.

87 See Wellington Koo, The Status of Aliens in China. (Columbia University, 1912). 90.

88 In Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge : Cambridge University Press, 2010). 162.

89  Horowitz, ‘International Law and State Transformation in China, Siam, and the Ottoman Empire during the Nineteenth Century’, Journal of World History 15, n. 4 (2004): 459.

90 On the 1911 Republican revolution, see Joseph Esherick, Reform and Revolution in China: The 1911 Revolution in Hunan and Hubei. (Berkeley: University of California Press, 1976); Jean Chesneaux, Marianne Bastid, and Marie-Claire Bergere, China from the Opium Wars to the 1911 Revolution. (Harvester Press, 1977); Edmund S.K Fung, The Military Dimension of the Chinese Revolution: The New Army and its Role in the Revolution of 1911. (University of British Columbia Press, 1980).

91 David Scott, China and the International System, 1840-1949: Power, Presence, and Perceptions in a Century of Humiliation. (SUNY Press, 2008).

92 See Questions For Readjustment. Submitted by China to the Peace Conference. Paris, 1919: 14 - 18. Available at: http://archive.org/details/questionsforread00paririch.

93 See Questions For Readjustment, Ibid: 16

94 Ibid.

95 Ibid.

96 Ibid.

97 Ibid.

98 The document also requested that the powers immediately consent that: (1) ‘Every mixed case, civil or criminal, where the defendant or accused is a Chinese be tried and adjudicated by Chinese Courts without the presence or interference of any consular officer or representative in the procedure or judgment’; and (2) ‘That the warrants issued or judgments delivered by Chinese courts may be executed within the concessions or within the precincts of any building belonging to a foreigner, without preliminary examination by any consular or foreign judicial officer’ Ibid: 17.

99 See Zhang Yongjin, ‘China's Entry into International Society: Beyond the Standard of' Civilization’, Review of International Studies 17, no. 1 (1991): 13.

100 Cited in Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge University Press, 2010). 155.

101 Cited in Robert Thomas Pollard, China's Foreign Relations: 1917-1931. (New York, 1933) 217.

102 ‘The governments of the powers represented in the Conference, except China, should each appoint one member of a Commission having power to inquire into the present practice of extraterritorial jurisdiction in China, and into the laws and the judicial system and the methods of judicial administration of China with a view to reporting their findings of fact in regard to these matters, together with their recommendations as to such means as they may find suitable to improve the existing conditions of the administration of justice in China, and to assist and further the efforts of the Chinese Government to effect such legislative and judicial reforms as would warrant the several powers in relinquishing, either progressively or otherwise, their respective rights or extraterritoriality’. In Resolution V and Additional Resolutions Adopted by the Washington Conference on the Limitation of Armament. December 10, 1921. Ibid.

China expressed its desire to ‘to appoint a representative who shall have the right to sit as a member of the said Commission, it being understood that China shall be free to accept or to reject any or all of the recommendations of the Commission. Furthermore, China is prepared to cooperate in the work of this Commission and to afford to it every possible facility for the successful accomplishment of its tasks.’ However, the Chinese proposal was rejected and the resolution was adopted without amendment. Ibid: 218: 219.

103 Report of the Commission on Extraterritoriality in China, Peking, September 16, 1926: Being the Report to the Governments of the Commission Appointed in Pursuance to Resolution v of the Conference on the Limitation of Armaments. Washington Govt. Print. Office, 1926.

104 Ibid.

105 In Turan, Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge: Cambridge University Press, 2010), 173.

106 ‘In fact [Chinese laws] have as their basis mandates of the President or orders of the Ministry of Justice, neither of which has, strictly speaking, any legal or constitutional authority to make laws.’ See Report of the Commission on Extraterritoriality in China. Supra: viii.

107 See Report of the Commission on Extraterritoriality in China. Ibid:  Part II and Part III.

108 Pär Kristoffer. Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. (New York: Oxford University Press, 2012). 177.

109 For a detailed account of the reforms urged by Western powers, see Report of the Commission on Extraterritoriality in China. Supra: Part IV.

110 ’Like some eminent lawyers and jurists of the nineteenth century, with their efforts to justify the development of extraterritoriality, some lawyers became an integral part of twentieth-century imperialism with their efforts to maintain extraterritoriality.’ Kayaoğlu, Supra: 172. Similarly, Gong argues that Western states established the Commission on Extraterritoriality in order to ‘measure’ the Chinese degree of ‘civilization’. He further suggests that the Commission recommended retaining extraterritoriality because the Chinese legal order did not meet the ‘standards of civilization’ of the time. See GerritGong, ‘China's Entry into International Society’. In The Expansion of International Society. (Oxford University Press, 1984). 183.

111 See Wesley R. Fischel, The End of Extraterritoriality in China. (Berkeley: University of California Press, 1952). 170.

112 As already mentioned above, internal political fragmentation and the Japanese occupation paralyzed the negotiations on the abolishment of the ‘Unequal Treaties’, and it was generally thought that the issue would not be discussed until after the conclusion of the war. ‘The question of extraterritoriality in China did not re-emerge in its own right until early in the spring of I942. China had been promised on several occasions in the summers of I940 and I94I by both Britain and America that they would resume negotiations on the matter, but not before peace was restored in the Far East.’ In K. C. Chan, ‘The Abrogation of British Extraterritoriality in China 1942-43: A Study of Anglo-American-Chinese Relations’, Modern Asian Studies 11, no 02 (1977): 266.

113 For a comprehensive account of the diplomatic negotiations preceding the ratification of the Treaties, see K.C. Chan, ‘The Abrogation of British Extraterritoriality in China’ supra: 257–291.

114 Treaty Between The United States And China For The Relinquishment Of Extraterritorial Rights In China And The Regulation Of Related Matters. Signed in Washington, January 11, 1943. In Foreign Affairs Ministry, Zhongwai tiaoyue jibian: 660. See also Wang Dong, China's Unequal Treaties: Narrating National History. (Lexington books, 2005). 93.

115 Sino-British Treaty for the Abolition of Extraterritoriality and Related Rights in China. Signed in Chongqing, January 11, 1943. In Foreign Affairs Ministry, Zhongwai tiaoyue jibian: 589–594. See also Wang, Ibid.

116 Wang Dong, ‘The Discourse of Unequal Treaties in Modern China’,  Pacific Affairs 76, no. 3 (2003): 399.

117 In Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge: Cambridge University Press, 2010). 151, Table 7. For further readings on the abolishment of extraterritorial jurisdiction in China, see Quincy Wright, ‘The End of Extraterritoriality in China’, The American Journal of International Law 37, no. 2 (1943): 286-289; Wesley R Fishel, The End of Extraterritoriality in China. (Octagon Books, 1974); John Carter Vincent, The Extraterritorial System in China: Final Phase. (East Asian Research Center, 1970).

118 ‘Later, as the Japanese government and the Allies were clamouring to win the support of the Chinese, extraterritoriality was officially abolished in both the Nationalist and Japanese-occupied areas with great fanfare in early 1943. In the British Embassy in Chongqing, the temporary capital of Nationalist China, representatives from the British and Chinese governments signed a new Sino-British treaty on 11 January 1943, and Wang Jingwei’s pro-Japanese régime soon followed suit with a similar agreement with the Japanese government. However, it was not the Nationalists who would enjoy the fruits of this foreign policy victory, as they would be expelled to the island of Taiwan six years later. Instead, the People’s Republic of China would claim the credit for unifying China under one government exercising full jurisdiction over all its inhabitants.’ In Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. (New York: Oxford University Press, 2012): 179.

119 ‘The latter are regarded as a people with all the virtues and few failings, except weakness, who deserve to be supported by the United States in their efforts to free themselves from the exploitation of the predatory European Powers, among whom, of course this country had been predominant … We have a wider experience of dealings with the Chinese and take a more realistic view. Our interests in China are much greater than those of the United States, we have negotiated many more agreements with the Chinese Government, we have a common boundary in India and Burma, and we have large Chinese communities in our Far Eastern colonies. We know that with all their attractive qualities, their ancient culture and their artistic gifts the Chinese have a shrewd political and commercial sense and are able to look after themselves in these respects.’ Brenan John, in Brenan's Minute on British and American Policy towards China. December I942, FO 371/31627: 28.

120 Ibid.

121 For support to this view, see generally Wang Dong, ‘The Discourse of Unequal Treaties in Modern China’, Pacific Affairs 76, no. 3 (2003): 399–425. See also Wang Dong, China’s Unequal Treaties: Narrating National History. (Lexington books, 2005).

122 ‘With the outbreak of the Pacific war British courts could no longer function in Japanese-occupied China. At the suggestion of the Swiss government, Britain transferred the jurisdiction over British subjects in occupied China to the Swiss consuls.’ In K. C. Chan, ‘The Abrogation of British Extraterritoriality in China 1942–43: A Study of Anglo-American-Chinese relations’, Modern Asian Studies 11, no. 2 (1977): 267.

123 See The Secretary of the State to the Ambassador in the United Kingdom (Winant). Washington, August 27, 1942. In: Foreign Relations of the United States. Diplomatic Papers. Volume China (1942): 282–285. Available at : http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=header&id=FRUS.FRUS1942China&q1=1942%20China.

124 On the role that public consciousness against extraterritoriality played in shaping the U.S. policy towards China, Hull stated: ‘The Department's study of the question of relinquishment of this country's extraterritorial and related rights in China has continued. In this study we have of course taken into account the trend of public opinion in this country. While there has been no strong concerted pressure upon the Government to take action, it has been obvious from editorial comment and from speeches by and letters received from interested persons that popular sentiment in favour of action toward abolishing extraterritoriality is fairly widespread. It is believed that any request by the Chinese Government for abolition would receive strong support in the United States. In the light of this and other factors, we are inclining to the view that, although this is not an entirely opportune moment to take some affirmative steps in the matter, it is doubtful whether any much more favourable occasion is likely to occur in the near future. On the contrary, we might later, because of the natural trends of political thinking in China as well as in this and other countries, find ourselves in a position less advantageous than at the present while the question of initiative is within our control.’ In FRUS 1942, Ibid: 282 (Emphasis added).

125  See Turan, Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge: Cambridge University Press, 2010). 185.

126  See Kayaoğlu, Ibid: 122.

127  See Pär Kristoffer Cassel, Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan. (New York: Oxford University Press, 2012). 175. For further explication of the connection between the abolition of extraterritoriality in Japan and the Chinese legal reforms, see Douglas Robertson, Reynolds, China, 1898–1912: The Xinzheng Revolution and Japan. (Cambridge, MA: Council on East Asian Studies, Harvard University, 1993).

128  Article XII – ‘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 the Chinese laws, the arrangement for their administration, and other conditions warrant her in so doing’. The Mackay Treaty between China and Great Britain, 1902. The text of the instrument is available at: Inspector General of Customs, ed. Treaties, Conventions, etc., between China and Foreign States. 2nd ed. Vol.1. Shanghai: Statistical Department of the Inspectorate General of Customs, 1917 : 557.

129 See Cassel, supra: 175.

130 See Richard S. Horowitz, ‘International Law and State Transformation in China, Siam and the Ottoman Empire during the Nineteenth Century’, Journal of World History 15, no 4 (2004): 464; See Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge: Cambridge University Press, 2010). 163; Cassel (2012), Ibid.

131  ‘While this has usually been seen as simply an effort to end extraterritoriality by adopting European standards, Jerome Bourgon argues that the abolition of “cruel punishments” drew as much on indigenous movement within Chinese legal scholarship as it did on foreign influences.’ Horowitz, Ibid. On the abolishment of cruel punishments in China, see Jerome Bourgon, ‘Abolishing “Cruel Punishments”: A Reappraisal of the Chinese Roots and Long Term Efficiency of the Xinzheng Legal Reforms’, Modern Asian Studies 27.4 (2003): 851–862.

132  Horowitz, Ibid.

133  ‘In sum, despite various attempts, the late Qing and early republican governments failed to consolidate the central government’s legal hierarchy in China in the 1910s. The failure to institutionalize state law explains why the Chinese were unsuccessful in abolishing extraterritoriality in the 1920s.’ Kayaoğlu, supra: 165.

134  For references on the Republican revolution, see supra: footnote 301.

135  In Julie Lee Wei, Ramon Hawley Myers, and Donald G. Gillin, eds, Prescriptions for Saving China: Selected Writings of Sun Yat-sen (Hoover Press, 1994). 225.

136  Philip C. Huang, Code, Custom, and Legal Practice in China: The Qing and the Republic Compared (Stanford University Press, 2001). 29.

137  See Questions For Readjustment. Submitted by China to the Peace Conference. Paris, 1919: 14–18. Available at: http://archive.org/details/questionsforread00paririch

138  Ibid.

139 Such reformist ‘steps’ can be summarized as follows: (1) the adoption of a National Constitution prescribing the separation of governmental powers, assuring both Chinese and foreigners the fundamental rights of life and property and guaranteeing the independence of judicial office; (2) the preparation of five legal codes, namely, the criminal, civil and commercial codes, and the criminal and civil codes of procedure; (3) the drafting other important pieces of legislation, such as the Law for the Organisation of the Judiciary, the Provisional Regulations of the High Courts and their Subordinate Courts, the Ordinance for Commercial Associations and the Regulations for the Court of Arbitration in Commercial Matters; (4) the explicit adaptation of the laws of ‘the most advanced nations’ to the Chinese context; (5) the establishment of a three-tiered hierarchical court system had been established, namely the District Courts, the High Courts or Courts of Appeal, and the Taliyuan or the Supreme Court in Beijing; (6) the complete separation between civil and criminal cases and the publication of all trials and judgments rendered; (7) in criminal matters, the abolishment of corporal punishment in coercing confessions; (8) the establishment of institutions providing modern legal education, as well as examinations regulating access the legal profession; (9) the requirement all the judicial officers of the courts, high and low, received regular legal training, with a large number having studied abroad, and, finally, (10) the successful improvement of the prison and police systems.

140 Admittedly, the following information owes much to Kayaoglu’s accurate research on the subject.

141 See Turan Kayaoğlu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China. (Cambridge: Cambridge University Press, 2010). 177-178. On the Guomindang reformist process, see also Philip C. Huang, Code, Custom, and Legal Practice in China: The Qing and the Republic Compared. (Stanford University Press, 2001); Xu Xiaoqun, Klaus Mühlhahn, and Paul R. Katz, Trial of Modernity: Judicial Reform in Early Twentieth-Century China, 1901–1937. (Cambridge University Press, 2008); Meredith P. Gilpatrick, ‘The Status of Law and Law-making Procedure under the Kuomintang, 1925-46’, Far Eastern Quarterly 10, no. 1 (1950): 38–55; Chen Tsung-Fu, ‘Transplant of Civil Code in Japan, Taiwan, and China: With the Focus of Legal Evolution’, National Taiwan University Law Review 6 (2011): 389; Philip Huang, ‘Whither Chinese Law?’ Modern China 33, no. 2 (2007): 163–194; Jianfu Chen, ‘Modernisation, Westernisation, and Globalisation: Legal Transplant in China’. In One Country, Two Systems, Three Legal Orders-Perspectives of Evolution. (Berlin, Heidelberg: Springer, 2009). 110; Randall Peerenboom, China’s Long March Toward Rule of Law. (Cambridge University Press, 2002); Alice E. S. Tay, ‘The Struggle for Law in China’, University of British Columbia Law Review 21 (1987): 561–580; Jianfu Chen, Chinese Law: Context and Transformation. (Martinus Nijhoff Publishers, 2008).

142 See Kayaoğlu, Ibid:  178.

143 Below the Supreme Court were the High Courts, which functioned as an appellate system in the provinces, and the District Courts, which acted as adjudicatory bodies of first instance.

144 Cited in Kayaoğlu, supra.

145 In H. Yang, A History of Chinese Legal Thought. Zhongguo FaliiSixiangshi (1937). Volume 2. (Beijing: Commercial Publishing House, reprinted by Shanghai Publishing House, 1984). 369.

146 ‘The Western Power’s promise to relinquish extraterritorial rights and to assist in law reform along Western lines propelled a concentrated effort to adopt and adapt Western law at the turn of the twentieth century.’ In Jianfu Chen, ‘Modernisation, Westernisation, and Globalisation: Legal Transplant in China’, In One Country, Two Systems, Three Legal Orders-Perspectives of Evolution. (Berlin, Heidelberg: Springer, 2009). 93.

147 See Chen, Ibid. The author emphasizes the continuity between the Chinese early legal reforms, law under Communism and legal globalization today.

148 This process occurred primarily through the settlement of large foreign expatriate communities in Chinese cities, protected by extraterritorial jurisdictional guarantees, and their interaction with the local population.

149 Gerrit Gong, ‘China’s Entry into International Society’, In The Expansion of International Society, ed. Hedley Bull and Adam Watson. (Oxford: Clarendon Press, 1984). 183.

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