MEMORANDUM
THE LEADING OUTSTANDING CASES BETWEEN CHINA AND THE FOREIGN POWERS
(Author's note. The following memorandum was drawn up by Dr. C.C. Wu, Councillor at the Chinese Foreign Office and son of Dr. Wu Ting-fang, the Foreign Minister, and is a most competent and precise statement. It is a noteworthy fact that not only is Dr. C.C. Wu a British barrister but he distinguished himself above all his fellows in the year he was called to the Bar. It is also noteworthy that the Lao Hsi-kai case does not figure in this summary, China taking the view that French action throughout was ultra vires, and beyond discussion.)
BY DR. C.C. WU
Republican China inherited from imperial China the vast and rich territory of China Proper and its Dependencies, but the inheritance was by no means free from incumbrances as in the case of Outer Mongolia, Tibet and Manchuria, and other impediments in the form of unfavourable treaty obligations and a long list of outstanding foreign cases affecting sovereign and territorial rights.
I have been asked by the Editor of the North-China Daily News to contribute an article on some of the outstanding questions between China and foreign powers, instancing Tibet, Manchuria, Mongolia, and to give the Chinese point of view on these questions. Although the subject is a delicate one to handle, particularly in the press, being as it is one in which international susceptibilities are apt to be aroused, I have yet accepted the invitation in the belief that a calm and temperate statement of the Chinese case will hurt no one whose case will bear public discussion but will perhaps do some good by bringing about a clear understanding of the points at issue between China and the foreign Powers concerned, and thus facilitating an early settlement which is so earnestly desired by China. I may say that I have appreciated the British sense of justice and fairplay displayed by the "North-China Daily News" in inviting a statement of the Chinese case in its own columns on questions one of which concerns British interests in no small degree, and the discussion cannot be conducted under a better spirit than that expressed in the motto of the senior British journal in the Far East: "Impartial not Neutral."
1o MANCHURIA
The treaty between China and Japan of 1915 respecting South Manchuria and Eastern Inner Mongolia giving that power special rights and privileges in those regions has given rise to many knotty problems for the diplomatists of the two countries to solve. Two of such problems are mentioned here.
JAPANESE POLICE BOXES IN MANCHURIA AND MONGOLIA
Since the last days of the Tsings, the Japanese have been establishing police boxes in different parts of South Manchuria and Eastern Inner Mongolia always under protest of the local and Peking authorities. Since the treaty of 1915, a new reason has become available in the right of mixed residence given to Japanese in these regions. It is said that for the protection and control of their subjects, and indeed for the interest of the Chinese themselves, it is best that this measure should be taken. It is further contended that the stationing of police officers is but a corollary to the right of exterritoriality, and that it is in no way a derogation of Chinese sovereignty.
It is pointed out by the Chinese Government that in the treaty of 1915, express provision is made for Japanese in South Manchuria and Eastern Inner Mongolia to submit to the police laws and ordinances and taxation of China (Article 5). This leaves the matter in no doubt. If the Japanese wish to facilitate the Chinese police in their duty of protection and control of the Japanese, they have many means at their command for so doing. It is unnecessary to point out that the establishment of foreign police on Chinese soil (except in foreign settlements and concessions where it is by the permission of the Chinese Government) is, to our thinking, at any rate, a very grave derogation to China's sovereign rights. Furthermore, from actual experience, we know that the activities of these foreign police will not be confined to their countrymen; in a dispute between a Chinese and a Japanese both will be taken to the Japanese station by the Japanese policeman. This existence of an imperium in imperio, so far from accomplishing its avowed object of "improving the relations of the countries and bringing about the development of economic interests to no small degree," will, it is feared, be the cause of continual friction between the officials and people of the two countries.
As to the legal contention that the right of police control is a natural corollary to the right of exterritoriality, it must be said that ever since the grant of consular jurisdiction to foreigners by China in her first treaties, this is the first time that such a claim has been seriously put forward. We can only say that if this interpretation of exterritoriality is correct the other nations enjoying exterritoriality in China have been very neglectful in the assertion of their just rights.
In the Chengchiatun case, the claim of establishing police boxes wherever the Japanese think necessary was made one of the demands. The Chinese Government in its final reply which settled the case took the stand as above outlined.
It may be mentioned in passing that in Amoy the Japanese have also endeavoured to establish similar police rights. The people of that city and province, and indeed of the whole country, as evidenced by the protests received from all over China, have been very much exercised over the matter. It is sincerely hoped that with the undoubted improvement of relations between the two countries within the last several months, the matter will be smoothly and equitably settled.
LEGAL STATUS OF KOREANS IN CHIENTAO
The region which goes by the name of Chientao, a Japanese denomination, comprises several districts in the Yenchi Circuit of Kirin Province north of the Tumen Kiang (or the Tiumen River) which here forms the boundary between China and Korea. For over thirty years Koreans have been allowed here to cultivate the waste lands and acquire ownership therein, a privilege which has not been permitted to any other foreigners in China and which has been granted to these Koreans on account of the peculiar local conditions. According to reliable sources, the Korean population now amounts to over 200,000 which is more than the Chinese population itself. In 1909 an Agreement, known as the Tumen Kiang Boundary Agreement, was arrived at between China and Japan, who was then the acknowledged suzerain of Korea, dealing, inter alia, with the status of these Koreans. It was provided that while Koreans were to continue to enjoy protection of their landed property, they were to be subject to Chinese laws and to the jurisdiction of Chinese courts. The subsequent annexation of Korea did not affect this agreement in point of international law, and as a matter of practice Japan has adhered to it until September, 1915. Then the Japanese Consul suddenly interfered in the administration of justice by the local authorities over the Koreans and claimed that he should have jurisdiction.
The Japanese claim is based on the Treaty Respecting South Manchuria and Eastern Inner Mongolia signed in May, 1915, article 5 of which provides that civil and criminal cases in which the defendants are Japanese shall be tried and adjudicated by the Japanese consul.
The Chinese view is that this article is inapplicable to Koreans in this region and that the Tumen Kiang Agreement continues in force. This view is based on a saving clause in article 8 of the Treaty of 1915 which says that "all existing treaties between China and Japan relating to Manchuria shall, except where otherwise provided for by treaty, remain in force."
In the first place, the origin of the Tumen Kiang Agreement supports this view. When the Japanese assumed suzerainty over Korea they raised certain questions as to the boundary between China and Korea. There were also outstanding several questions regarding railways and mines between China and Japan. Japan insisted that the boundary question and the railway and mining questions be settled at the same time. As a result, two agreements were concluded in 1909 one respecting the boundary question, the Tumen Kiang Agreement, and the other respecting railways and mines whereby Japan obtained many new and valuable privileges and concessions, such as the extension of the Kirin-Changchun Railway to the Korean frontier, the option on the Hsinminfu-Fakumen line, and the working of the Fushun and Yentai mines, while in return China obtained a bare recognition of existing rights, namely the boundary between China and Korea and the jurisdiction over the Koreans in the Yenchi region. The two settlements were in the nature of quid pro quo though it is clear that the Japanese side of the scale heavily outweighed that of the Chinese. Now Japan endeavours to repudiate, for no apparent reason so far as we can see, the agreement which formed the consideration whereby she obtained so many valuable concessions.
Secondly, while Koreans are now Japanese subjects, it is contended by the Chinese that the particular Koreans inhabiting the Yenchi region are, as regards China, in a different position from Japanese subjects elsewhere. These Koreans enjoy the rights of free residence and of cultivating and owning land in the interior of China, rights denied to other foreigners, including Japanese who, even by the new treaty, may only lease land in South Manchuria. For this exceptional privilege, they are subject to the jurisdiction of Chinese laws and Chinese courts, a duty not imposed on other foreigners. It would be "blowing hot and cold at the same time" in the language of English lawyers if it is sought to enjoy the special privileges without performing the duties.
Thirdly, Japanese under the Treaty of 1915 are required to register their passports with the local authorities. On the other hand, Koreans in Yenchi have never been nor are they now required to procure passports. This would seem to be conclusive proof that Koreans in that region are not within the provisions of the treaty of 1915 but are still governed by the Tumen Kiang Agreement.
The question is something more than one of academic or even merely judicial importance. As has been stated, the Koreans in Yenchi outnumber the Chinese and the only thing that has kept the region Chinese territory in fact as well as in name is the possession by the Chinese of jurisdiction over every inhabitant, whether Chinese or Korean. Were China to surrender that jurisdiction over a majority of those inhabitants, it would be tantamount to a cession of territory.
2o MACAO
The dispute between China and Portugal over the Macao question has been one of long standing. The first treaty of commerce signed between them on August 13, 1862, at Tientsin, was not ratified in consequence of a dispute respecting the Sovereignty of Macao. By a Protocol signed at Lisbon on March 26, 1887, China formally recognized the perpetual occupation and government of Macao and its dependencies by Portugal, as any other Portuguese possession; and in December of the same year, when the formal treaty was signed, provision was made for the appointment of a Commission to delimit the boundaries of Macao; "but as long as the delimitation of the boundaries is not concluded, everything in respect to them shall continue as at present without addition, diminution or alteration by either of the Parties."
In the beginning of 1908, a Japanese steamer, the Tatsu Maru, engaged in gun-running was captured by a Chinese customs cruiser near the Kauchau archipelago (Nove Ilhas). The Portuguese authorities demanded her release on the ground that she was seized in Portuguese territorial waters thus raising the question of the status of the waters surrounding Macao.
In the same year the Portuguese authorities of Macao attempted the imposition of land tax in Maliaoho, and proposed to dredge the waterways in the vicinity of Macao. The Chinese Government thereupon instructed its Minister in France, who was also accredited to Portugal, to make personal representations to the Portuguese Foreign Office in regard to the unwarrantable action of the local Portuguese authorities. The Portuguese Government requested the withdrawal of Chinese troops on the Island of Lappa as a quid pro quo for the appointment of a new Demarcation Commissioner, reserving to itself the right to refer to The Hague Tribunal any dispute that may arise between the Commissioners appointed by the respective Governments.
After protracted negotiations it was agreed between the Chinese Minister and the Portuguese Government by an exchange of notes that the respective Governments should each appoint a Demarcation Commissioner to delimit the boundaries of Macao and its dependencies in pursuance of the Lisbon Protocol and Article 2 of the Sino-Portuguese Treaty of 1887, subject to the decision of their respective Governments.
THE PORTUGUESE CLAIM
In February, 1909, Portugal appointed General Joaquim Machado and China Mr. Kao Erh-chien as their respective Commissioners and they met at Hongkong in June of the same year.
The Portuguese claim consisted of the whole of the Peninsula of Macao as far north as Portas do Cerco, the Island of Lappa, Green Island (Ilha Verde), Ilhas de Taipa, Ilha de Coloane, Ilha Macarira, Ilha da Tai-Vong-Cam, other small islands, and the waters of Porto Interior. The Portuguese Commissioner also demanded that the portion of Chinese territory between Portas de Cerco and Peishanling be neutralized.
In the absence of evidence, documentary or otherwise, China could not admit Portugal's title to half the territory claimed, but was prepared to concede all that part of the Peninsula of Macao south of Portas do Cerco which was already beyond the limits of the original Portuguese Possession of Macao, and also to grant the developed parts of Ilhas de Coloane as Portuguese settlements. The ownership of territorial waters was to remain vested in China.
The negotiations having proved fruitless were transferred to Lisbon but on the outbreak of the Revolution in Portugal they were suspended. No material progress has been made since.
3o TIBET
In November, 1911, the Chinese garrison in Lhassa, in sympathy with the revolutionary cause in China, mutinied against Amban Lien-yu, a Chinese Bannerman, and a few months later the Tibetans, by order of the Dalai Lama, revolted and besieged the Chinese forces in Lhassa till they were starved out and eventually evacuated Tibet. Chinese troops in Kham were also ejected. An expedition was sent from Szechuan and Yunnan to Tibet, but Great Britain protested and caused its withdrawal.
In August, 1912, the British Minister in Peking presented a Memorandum to the Chinese Government outlining the attitude of Great Britain towards the Tibetan question. China was asked to refrain from dispatching a military expedition into Tibet, as the re-establishment of Chinese authority would, it is stated, constitute a violation of the Anglo-Chinese Treaty of 1906. Chinese suzerainty in regard to Tibet was recognized. But Great Britain could not consent to the assertion of Chinese sovereignty over a State enjoying independent treaty relations with her. In conclusion, China was invited to come to an agreement regarding Tibet on the lines indicated in the Memorandum, such agreement to be antecedent to Great Britain's recognition of the Republic. Great Britain also imposed an embargo on the communications between China and Tibet via India.
In deference to the wishes of the British Government, China at once issued orders that the expeditionary force should not proceed beyond Giamda. In her reply she declared that the Chinese Government had no intention of converting Tibet into another province of China and that the preservation of the traditional system of Tibetan government was as much the desire of China as of Great Britain. The dispatch of troops into Tibet was, however, necessary for the fulfilment of the responsibilities attaching to China's treaty obligations with Great Britain, which required her to preserve peace and order throughout that vast territory, but she did not contemplate the idea of stationing an unlimited number of soldiers in Tibet. China considered that the existing treaties defined the status of Tibet with sufficient clearness, and therefore there was no need to negotiate a new treaty. She expressed the regret that the Indian Government had placed an embargo on the communications between China and Tibet via India, as China was at peace with Great Britain and regretted that Great Britain should threaten to withhold recognition of the Republic, such recognition being of mutual advantage to both countries. Finally, the Chinese Government hoped that the British Government would reconsider its attitude.
THE SIMLA CONFERENCE
In May, 1913, the British Minister renewed his suggestion of the previous year that China should come to an agreement on the Tibetan question, and ultimately a Tripartite Conference was opened on October 13, at Simla with Mr. Ivan Chen, Sir Henry McMahon, and Lonchen Shatra as plenipotentiaries representing China, Great Britain, and Tibet, respectively.
The following is the substance of the Tibetan proposals:—
1. Tibet shall be an independent State, repudiating the Anglo-Chinese Convention of 1906.
2. The boundary of Tibet in regard to China includes that portion of Sinkiang south of Kuenlun Range and Altyn Tagh, the whole territory of Chinghai, the western portion of Kansuh and Szechuan, including Tachienlu and the northwestern portion of Yunnan, including Atuntzu.
3. Great Britain and Tibet to negotiate, independent of China, new trade regulations.
4. No Chinese officials and troops to be stationed in Tibet.
5. China to recognize Dalai Lama as the head of the Buddhist Religion and institutions in Mongolia and China.
6. China to compensate Tibet for forcible exactions of money or property taken from the Tibetan Government.
The Chinese Plenipotentiary made the following counter-proposals:—
1. Tibet forms an integral part of Chinese territory and Chinese rights of every description which have existed in consequence of this integrity shall be respected by Tibet and recognized by Great Britain. China engages not to convert Tibet into a province and Great Britain not to annex Tibet or any portion of it.
2. China to appoint a Resident at Lhassa with an escort of 2,600 soldiers.
3. Tibet undertakes to be guided by China in her foreign and military affairs and not to enter into negotiations with any foreign Power except through the intermediary of China but this engagement does not exclude direct relations between British Trade Agents and Tibetan authorities as provided in the Anglo-Chinese Convention of 1906.
4. Tibet to grant amnesty to those Tibetans known for their pro-Chinese inclinations and to restore to them their property.
5. Clause 5 of Tibetan claims can be discussed.
6. Revision of Trade Regulations of 1893 and 1908, if found necessary, must be made by all the parties concerned.
7. In regard to the limits of Tibet China claims Giamda and all the places east of it.
THE BOUNDARY DEADLOCK
The British plenipotentiary sustained in the main the Tibetan view concerning the limits of Tibet. He suggested the creation of Inner and Outer Tibet by a line drawn along the Kuenlun Range to the 96th longitude, turning south reaching a point south of the 34th latitude, then in south-easterly direction to Niarong, passing Hokow, Litang, Batang in a western and then southern and southwestern direction to Rima, thus involving the inclusion of Chiamdo in Outer Tibet and the withdrawal of the Chinese garrison stationed there. He proposed that recognition should be accorded to the autonomy of Outer Tibet whilst admitting the right of the Chinese to re-establish such a measure of control in Inner Tibet as would restore and safeguard their historic position there, without in any way infringing the integrity of Tibet as a geographical and political entity. Sir Henry McMahon also submitted to the Conference a draft proposal of the Convention to the plenipotentiaries. After some modification this draft was initialled by the British and Tibetan delegates but the Chinese delegate did not consider himself authorized to do so. Thereupon the British member after making slight concessions in regard to representation in the Chinese Parliament and the boundary in the neighbourhood of Lake Kokonor threatened, in the event of his persisting in his refusal, to eliminate the clause recognizing the suzerainty of China, and ipso facto the privileges appertaining thereto from the draft Convention already initialled by the British and Tibetan plenipotentiaries. In order to save the situation, the Chinese delegate initialled the documents, but on the clear understanding that to initial and to sign were two different things and that to sign he must obtain instructions from his Government.
China, dissatisfied with the suggested division into an Inner and Outer Tibet the boundaries of which would involve the evacuation of those districts actually in Chinese effective occupation and under its administration, though otherwise in accord with the general principles of the draft Convention, declared that the initialled draft was in no way binding upon her and took up the matter with the British Government in London and with its representative in Peking. Protracted negotiations took place thereafter, but, in spite of repeated concessions from the Chinese side in regard to the boundary question, the British Government would not negotiate on any basis other than the initialled convention. On July 3 an Agreement based on the terms of the draft Convention but providing special safe-guards for the interests of Great Britain and Tibet in the event of China continuing to withhold her adherence, was signed between Great Britain and Tibet, not, however, before Mr. Ivan Chen had declared that the Chinese Government would recognize any treaty or similar document that might then or thereafter be signed between Great Britain and Tibet.
CHINA'S STANDPOINT
With the same spirit of compromise and a readiness to meet the wishes of the British Government and even to the extent of making considerable sacrifices in so far as they were compatible with her dignity, China has more than once offered to renew negotiations with the British Government but the latter has up to the present declined to do so. China wants nothing more than the re-establishment of Chinese suzerainty over Tibet, with recognition of the autonomy of the territory immediately under the control of the Lhassa Government; she is agreeable to the British idea of forming an effective buffer territory in so far as it is consistent with equity and justice; she is anxious that her trade interest should be looked after by her trade agents as do the British, a point which is agreeable even to the Tibetans, though apparently not to the British; in other words, she expects that Great Britain would at least make with her an arrangement regarding Tibet which should not be any less disadvantageous to her than that made with Russia respecting Outer Mongolia.
Considering that China has claimed and exercised sovereign rights over Tibet, commanded the Tibetan army, supervised Tibetan internal administration, and confirmed the appointments of Tibetan officials, high and low, secular and even ecclesiastical, such expectations are modest enough, surely. At the present moment, with communication via India closed, with no official representative or agent present, with relations unsettled and unregulated, the position of China vis-à-vis Tibet is far from satisfactory and altogether anomalous, while as between China and Great Britain there is always this important question outstanding. An early settlement in a reciprocal spirit of give and take and giving reasonable satisfaction to the legitimate aspirations and claims of all parties is extremely desirable.
4o OUTER MONGOLIA
The world is more or less acquainted with the events in Urga in December, 1911, and the proclamation of independence of Outer Mongolia with Jetsun Dampa Hutukhtu as its ruler. By the Russo-Chinese Declaration of November 5, 1913, and the Tripartite Convention of Kiakhta of 1914 China has re-established her suzerainty over Outer Mongolia and obtained the acknowledgment that it forms a part of the Chinese territory. There remains the demarcation of boundary between Inner and Outer Mongolia which will take place shortly, and the outstanding question of the status of Tannu Uriankhai where Russia is lately reported to be subjecting the inhabitants to Russian jurisdiction and expelling Chinese traders.
The Tannu Uriankhai lands, according to the Imperial Institutes of the Tsing Dynasty, were under the control of the Tartar General of Uliasutai, the Sain Noin Aimak, the Jasaktu Khan Aimak and the Jetsun Dampa Hutkhta, and divided into forty-eight somons (tsoling). Geographically, according to the same authority, Tannu Uriankhai is bounded on the north by Russia, east by Tushetu Khan Aimak, west by the various aimaks of Kobdo, and south by Jasaktu Khan Aimak. By a Joint Demarcation Commission in 1868 the Russo Chinese boundary in respect to Uriankhai was demitted and eight wooden boundary posts were erected to mark their respective frontiers.
In 1910, however, a Russian officer removed and burnt the boundary post at Chapuchi Yalodapa. The matter was taken up by the then Waiwupu with the Russian Minister. He replied to the effect that the limits of Uriankhai were an unsettled question and the Russian Government would not entertain the Chinese idea of taking independent steps to remark the boundary or to replace the post and expressed dissatisfaction with the work of the Joint Demarcation Commission of 1868, a dissatisfaction which would seem to be somewhat tardily expressed, to say the least. The case was temporarily dropped on account of the secession of Uliasutai from China in the following year.
While Uriankhai forms part of Autonomous Outer Mongolia, yet since Outer Mongolia is under China's suzerainty, and its territory is expressly recognized to form part of that of China, China cannot look on with indifference to any possible cession of territory by Outer Mongolia to Russia. Article 3 of the Kaikhta Agreement, 1915, prohibiting Outer Mongolia from concluding treaties with foreign powers respecting political and territorial questions acknowledges China's right to negotiate and make such treaties. It is the firm intention of the Chinese Government to maintain its territorial integrity basing its case on historical records, on treaty rights and finally on the principle of nationality. It is notorious that the Mongols will be extremely unwilling to see Uriankhai incorporated into the Russian Empire. While Russia is spending countless lives and incalculable treasure in fighting for the sacred principle of nationality in Europe, we cannot believe that the will deliberately violate the same principle in Asia.
INDEX
[A] [B] [C] [D] [E] [F] [G] [H] [I] [J] [K] [L] [M] [N] [O] [P] Q [R] [S] [T] [U] [V] [W] X [Y] Z