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Abrogation of Dutch Extraterritorial Rights in China Full Article Language: En Indien Anders: Engelse Articletitle: 0 _full_alt_author_running_head (neem stramien B2 voor dit chapter en dubbelklik nul hierna en zet 2 auteursnamen neer op die plek met and): 0 _full_articletitle_deel (kopregel rechts, vul hierna in): Abrogation of Dutch Extraterritorial Rights in China _full_article_language: en indien anders: engelse articletitle: 0 Abrogation of Dutch Extraterritorial Rights in China 215 Chapter 4 Abrogation of Dutch Extraterritorial Rights in China 1 The System of Extraterritoriality in China Extraterritoriality is the extension of legal jurisdiction beyond the borders of one state into another state. From the viewpoint of the latter, it is a contraven- tion of the international law principle that a sovereign state has exclusive juris- diction over all persons and goods situated within its territory. The institution of extraterritoriality in China can be traced to the Tang dynasty, when Arab merchants were permitted to retain their own laws when they traded and re- sided along China’s southeastern coast.1 Modern imperialism transformed these voluntary grants of “legal self-governance” into extorted privileges.2 In China, this began with a series of treaties and agreements forced by foreign powers upon the Qing Empire between 1842 and 1844 in the aftermath of the First Opium War. The Treaty of Nanjing and several supplementary instru- ments signed between Britain and the Qing in 1842–1843 provided for the opening of five Chinese ports to foreign trade, tariff exemptions, and immuni- ty from Chinese laws for British subjects.3 The United States and France soon followed suit, exacting similar privileges offering legal immunity and consular jurisdiction under most-favored-nation clauses.4 The resulting framework of 1 Chau, Chinese and Arab Trade, 14–18; Keeton, Development of Extraterritoriality, vol. 2, 164. 2 Kayaoğlu, Legal Imperialism, 42. 3 The Treaty of Nanjing, concluded on 29 August 1842, provided for the opening of the ports of Guangzhou (Canton), Xiamen (Amoy), Fuzhou (Foochow), Ningbo (Ningpo), and Shanghai. Its supplementary instruments, including the Treaty of the Bogue (Humen Tiaoyue 虎门条 约) and the General Regulations for Trade and Tariff (Zhong-Ying Wu Kou Tongshang Zhangcheng 中英五口通商章程), contained provisions on legal immunity and consular jurisdiction. 4 Article 21 of the Treaty of Wanghia (Wangxia Tiaoyue 望厦条约), concluded between the United States and the Qing on 3 July 1844, stipulated 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.” Likewise, Article 27 of the Treaty of Whampoa (Huangpu Tiaoyue 黄埔条 约), concluded between France and the Qing on 24 October 1844, provided that “[i]l en sera de même en toute circonstance analogue et non prévue dans la présente convention, le prin- cipe étant que, pour la répression des crimes et délits commis par eux dans les cinq ports, les Français seront constamment régis par la loi française.” See Fishel, End of Extraterritoriality, 5–6; D. Wang, China’s Unequal Treaties, 14–15. © koninklijke brill nv, leiden, 2020 | doi:10.1163/9789004410923_006 216 Chapter 4 interlocking arrangements and privileges, reinforced by several subsequent “unequal treaties” forced upon the Qing Empire by the Western powers, reached its fullest extent in the late 19th century after the conclusion of the Chefoo Convention of 1876.5 Extraterritoriality initially served as a juridical device to facilitate inter- course between two peoples with different systems of law and diverging no- tions of justice and punishment. Developed by 19th-century European legal scholars specifically to legitimize violation of state sovereignty and sovereign equality, the concept was deeply rooted in the civilization and religion of mod- ern Europe. According to prominent Western jurists and diplomats of the time, extraterritoriality essentially derived from the basic “law” that any “Christian foreigner” (European or American), when residing or sojourning in a “Moham- medan state,” should be exempt from the jurisdiction of local authorities, ow- ing to the “ineradicable differences” between and the “immiscible character” of the Europeans and the Orientals and their religions and laws.6 This “law” was subsequently extended to China and Japan, at least for as long as required, until these nations, in the long run, would conform to “the standard of law and justice which Europe had determined to be just and equitable.”7 The European need for access to trade, proselytizing, and travel, notes Gerrit Gong, is what drove the practical aspect of this “standard of civilization” – protecting the life, liberty, and property of Europeans in other countries – and therefore the de- mand for “‘universal’ minimum standards of legal fairness” and unequal rela- tions where the locals failed to provide these.8 Western “legal imperialism,” argues Turan Kayaoğlu, reflected both the dominance of legal positivism in the West since the early 19th century and European colonial expansion.9 The system of extraterritoriality in China originally involved only the exer- cise of jurisdiction over foreign nationals by consuls and special courts, thus setting aside the Chinese legal and penal system, which the foreign powers considered uncivilized and unfit for their nationals.10 After several decades of development, however, the system came to embody a comprehensive frame- work of various kinds of special rights, privileges, and immunities not gener- ally recognized by international law principles. Following the Treaties of 5 Fishel, End of Extraterritoriality, 6, 19; Feuerwerker, “Foreign Presence in China,” 150–151. 6 Quoted from Fishel, End of Extraterritoriality, 3–4, who cites the English jurists Sir Travers Twiss and William Edward Hall and the American diplomat Caleb Cushing, who at that time was negotiating the Treaty of Wanghia (see n. 4 above). 7 Ibid., 4, citing English judge and politician Sir Robert Phillimore. 8 Gong, Standard of “Civilization,” 24–53, 146–147; Buzan, “China in International Society,” 11; Donnelly, “Human Rights,” 7. 9 Kayaoğlu, Legal Imperialism, notably the introduction, chap. 2, and the conclusion. 10 Fishel, End of Extraterritoriality, 3–5, 216..
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