THE POLICING QUESTION.

RIGHT OF CHINESE CONTROL

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By M. T. Z. TYAU, LL.D. (London)

Lecturer on International Law, Tsing Hua College, Peking;
Author of “The Legal Obligations Arising Out of Treaty Relations between China and Other States” (in the press)

In my first article on the Amoy case (PEKING GAZETTE, December 27) I endeavoured to show that the establishment of a police-station in the Chinese city of Amoy by the Japanese was a breach of China’s sovereignty, because foreign trade and residence was restricted by both theory and practice to the special demarcated areas within the open ports—a restriction which appears inevitable as long as the alien in this country remains clothed with the rights of extra-territoriality. There is still another ground for challenging the Japanese contention. It will be remembered that their alleged object in establishing such a police-station was stated to be “in order to more effectively control” their nationals and Formosan subjects residing within the city. According to the Press, this argument has similarly been advanced by the Japanese Government in regard to the negotiations over the Cheng-chia-tun imbroglio. To appreciate the bearings of this policing question, we will do well to make a general survey of its manifestations in the other open ports or marts in China.

FALLACY OF THE JAPANESE CONTENTION

The Japanese contention appears at bottom to rest on the assumption that in a treaty port settlement it is invariably the foreign municipality who controls the police and administers the same. Unfortunately, this assumption or presumption is unfounded, for the municipalities in general are far from always being invested with such police control and administration. Even in the case of international settlements situated within treaty ports—i.e. ports or marts thrown open to foreign trade and residence by special treaties, agreements or conventions—the practice is not uniform. It varies with the importance of the localities concerned. Shanghai is the national emporium and within its foreign settlements are housed over 18,000 aliens (1915 census). Here the foreign municipalities pay, control and administer their police within the confines of the settlements. But in Ningpo (opened under the’Anglo-Chinese treaty of 1842), Soochow (opened under the Sino-Japanese treaty of 1895), etc., a different system obtains. The police are administered and controlled by the local authorities, a certain portion of, the li-kin proceeds having been earmarked for their upkeep and maintenance. The chief of police, however, is a foreigner employed by the territorial government. If the persons arrested by due process of law be Chinese, they will be handed over to be dealt with by the local authorities. If they be aliens and subjects of states possessing treaty relations with China, they will be surrendered to their own consular officers for trial and punishment in conformity with treaty stipulations. If they be aliens but subjects of non-treaty states, than they will be dealt with conjointly between the local t’aotai and the foreign commissioner of customs. (See Cases on Treaties, bk 28, pt 1, on Police matters 約章成案匯覧二篇二十八巻上捕務類.

But in the case of ports opened voluntarily by China herself since 1898 e.g. Yochow (Hunan) Santuao (Fukien), Changsha (Hanan), Nanning (Kuangsi), Tsinan (Shantung), etc., the municipal administration as well as the police control are vested in the Chinese authorities. In illustration the example of Tsinan which was voluntarily opened on January 10, 1906, may be cited. Here the aliens are restricted in their trade and residence to a settlement definitely delimited and located outside the walls of the city. The city itself and all territory outside the boundaries of the settlement are regarded as subject to the inland regulations; that is, foreigners may not buy land there, nor reside or trade there, and all goods going to and fro between the settlement are treated as shipped or transported into the interior. The regulations provide for the establishment of a Chinese municipal government and a Chinese police administration, but the extraterritoral powers of foreign consuls are recognized:

”In important cases, however, the police may enter any house in search of criminals even without a warrant. All land in the settlement is bought by the Government and is leased to those who wish to occupy it at a fixed annual rental of from $10 to $30 per “mou”, according to class, and an annual tax o’ $2-per “mou” (one-sixth of an acre). The lease runs for thirty years only, and at renewal the rental may be increased. if circumstances warrant. If rent and taxes remain unpaid for a year, the lease is cancelled. At the expiration of sixty years, if the Government so desires, it may take over the property at a valuation to be determined by arbitrators. Within three years from the date of lease buildings must be erected on the ground, or the lease will be cancelled, and no sums already paid for rent and taxes will be refunded” (United States, Foreign Relations, 1906, pt 1, 293).

THE CASE OF PEKING

Perhaps the best instance of Chinese police control is provided by Peking. Under Article VIII of the Anglo-British agreement of Shanghai, November 8, 1858, the capital is specifically excluded from the trading operations of alien merchants. ArticleX of the Sino-Japanese agreement of Shanghai, October 8, 1903, stipulates however that, “in case of and after the complete withdrawal of the foreign troops stationed in the province of Chihli and of the Legation guards”, China will forthwith herself open a place of international trade and residence in Peking. Accordingly.

“a place outside the Inner City, convenient to both parties and free from objection, shall be selected and set apart as a place where merchants of all nationalities may reside and carry on trade. Within the limits of this place merchants of all nationalities shall be at liberty to lease land, build houses and warehouses, and establish places of business; but as to the leasing of houses and land belonging to Chinese private individuals, there must be willingness on the part of the owners, and the terms thereof must be equitably arranged without any force or compulsion. All roads and bridges in this place will be under the jurisdiction and control of China. Foreigners residing in this place are to observe the municipal and police regulations on the same footing as Chinese residents, and they are not to be entitled to establish a municipality and police of their own within its limits except with the consent of the Chinese authorities. . . .” (Annex 6).

From the legal point of view as well as that of all good sense, the above detailed stipulations are judicious, since their very precision will minimize or obviate any possible controversies and so ensure the peace and tranquillity of the community. They are also instructive in that they show

”a growing determination on the part of the Chinese to construe the treaties as strictly as possible, and to reduce the privileges heretofore enjoyed by foreign residents so far as can be done without a violation of these treaties. The newly awakened (December. 1906), feeling of national unity, and the efforts being made to repurchase concessions made to foreign syndicates and develop the resources of the Empire with Chinese capital under Chinese control, are parts of the same general movement“ (E. T Williams, at present Chief of the Far Eastern Division of the Washington Department of State, in U.S. For. Rel., 1906, 293.

This determination is natural and legitimate, and deserves every encouragement so long as foreign residence in this country under the aegis of extraterritoriality constitutes a positive international servitude. In the interests of international trade all these artificial barriers should be broken down, and the sooner they are done the better they are for China and the world. The remedy consists in the early relinquishment by all treaty states of their rights of extraterritoriality, for, as has been well said by Sir Robert Hart, a true friend of China, China

“so to speak, would be on its honour, and the whole force of Chinese thought and teaching would then be enlisted in the foreigner’s favour. . . . Such a change of principle in the making of treaties would widen and not restrict the field for both merchant and missionary, would do away with irritating privileges and place native and foreigner on the same footing, would remove the sting of humiliation and put the Government of China on the same plane as other Governments. . . . Restore jurisdiction (to the Chinese), and the feeling of the responsibility to protect as well as the appreciation of (foreign) intercourse will at once move up to a higher plane” (These from the Land of Sinim: Essays on the Chinese Question, 1900, 143-146),

Thus the Japanese establishment of a police-station in Amoy is unwarranted and a violation de jure et de facto of China’s sovereignty. If, as has been reported, it is true that the Japanese Government demands the extension of this police system in South Manchuria likewise on the pretext of better protection and control of its own subjects, then the recent treaty of May 25, 1915, respecting South Manchuria and Eastern Inner Mongolia, should be studied. Article II permits Japanese subjects therein to “lease by negotiation” land necessary for erecting suitable buildings for trade and manufacture or for prosecuting agricultural enterprises. Article III. concedes to Japanese subjects the right “to reside and travel in South Manchuria and to engage in business and manufacture of any kind whatsoever.” Article IV stipulates that if Chinese and Japanese desire jointly to undertake agricultural enterprises and industries incidental thereto, the Chinese Government will give its permission. Then Article V reads as follows:―

“The Japanese subjects referred to in the preceding three articles, besides being required to register with the local authorities passports which they must procure under the existing regulations, shall also submit to the police laws and ordinances and taxation of China” (China’s Official History of the Recent Sino-Japanese Treaties, 1915, 49).

Now it is a fundamental rule of treaty interpretation that the provisions of a treaty must either stand or fall together, any attempt being considered as unlawful which purports to enforce some of the stipulations but nullify the others. That is to say, “where the words of a stipulation or provision, taken by themselves, fail to yield a plain and reasonable sense, recourse should be had either to the immediate context, or, if necessary, to the general purport and tenor of the agreement, including a consideration of its title and statement of objects and headings” (Pitt Cobbett, Cases and Opinions on International Law, vol. I, 333). Fortunately, in the present case, there is no room for doubt. The words of Article V are clear, plain and explicit: “The Japanese subjects shall also submit to the police laws and ordinances and taxation of China”. Consequently, to permit the establishment of Japanese police-stations in South Manchuria in face of the express provision that Japanese subjects shall submit to Chinese police laws, is to render the stipulation in question meaningless—a procedure which is a direct contravention of the axiom that “it is to be taken for granted that the contracting parties intend the stipulations of a treaty to have a certain effect, and not to be meaningless” (Oppenheim, International Law, vol I, 586). In the absence of any declaration that the treaty of 1915 is null and of no effect, its provisions are still valid, and therefore the demand of the Japanese to establish police-stations in South Manchuria is invalid and indefensible. It is to be hoped that in the reported settlement of the Cheng-chia-tun negotiations the foregoing premises will find ample justification; otherwise the convention under discussion will be bracketed as another “scrap of paper”.