The Legal Obligations Arising out of Treaty Relations Between China and Other States

The Legal Obligations Arising out of Treaty Relations Between China and Other States

Bibliographic Details

Shanghai: The Commercial Press, Ltd. 1917

Book Review

This work, first prepared as a thesis for the University of London and subsequently revised and enlarged, is the result of a very painstaking, comparative study of China's treaties with other Powers from the earliest, that of 1689 with Russia, down to and including those wrung unwillingly from China by Japan in May, 1915, following the presentation of the Twenty-One Demands. It is not a collection of treaties, such as we find in Hertslet's volumes, but rather an examination of the characteristic provisions of the treaties as illustrating the attitude of other nations toward China and the encroachments made by them upon China's sovereignty. Sir John Macdonell, Professor of Comparative Law in the University of London, writes a Prefatory Note in which he makes this just observation:

Introduction to The Legal Obligations Arising out of Treaty Relations Between China and Other States

It is significant that almost all the treaties concluded for some years with China and indeed, until recently, belong to the class known to jurists as iniquunrn fwdus, the imposed treaty: they are not spontaneous agreements freely entered into by the parties: some of them rather are of the nature of what Roman jurists termed deditio. The narrative tells of the granting of large rights to foreigners in derogation of Chinese sovereignty. I would not seek to make the author of this volume responsible for any of these prefatory words; but in my view it is the duty and the interest of Western States to do all that they can to preserve the integrity of China in the letter and spirit, to strengthen her Government and, as quickly as possible, to undo all that has been done to weaken her. Dr. Tyau gives a brief history of Chinese treaty relations, and reminds us of a truth, which some of us are likely to forget, that “up to the sixteenth century China consistently encouraged foreign intercourse:

Context of The Legal Obligations Arising out of Treaty Relations Between China and Other States

it was only when the newcomers had committed flagrant excesses against Chinese rights and property that it was compelled in self-defense to close its portals.” Remembering that Japan's exclusion of foreigners was due to a similar cause, it is interesting today to find the situation somewhat reversed and Western nations erecting Chinese walls of legislation to exclude the Oriental. The author for his purpose divides the treaties into three classes: Those of a political character, those of an economic character, and those of a general character. Among the interesting topics discussed under the first head is that of Extraterritoriality. In the earliest treaty with a foreign Power, that of 1689 with Russia, provision is made for the trial of offenders by their own officials, but not on foreign soil. Russians guilty of offenises in China were arrested by the Chinese and sent over the frontier to be tried by Russian judges, and Chinese offending in Russia were reciprocally sent back to China to be tried and punished.

Thesis Statement

The arrangement was mutual: the two governments were exactly on equality. Another fact worthy of note is that Japan did not enjoy extraterritorial rights in China until after the war of 1894-95. And even now Korean subjects of Japan residing in the Chientao district on the Chinese side of the boundary and engaged in agriculture are amenable to Chinese jurisdiction. There is a common impression abroad that the acknowledgment of the extraterritorial jurisdiction of foreign states in China was not looked upon by the Chinese as a loss of prestige, that China had always considered sovereignty as personal, not territorial. This is a mistake.

More about The Legal Obligations Arising out of Treaty Relations Between China and Other States

The instance cited of the punishment of Arab traders in Canton by their own headmen is in fact an evidence of the contrary. The foreigners were tried by Chinese judges, but delivered to their headmen to be punished. These headmen did not represent any foreign government and it was a Chinese sentence that was executed.

Analysis of the Text

In the chapter on “Leased Territories,” Dr. Tyau discusses, in a very interesting manner, the status of the territory of Kiaochou, formerly leased to Germany and seized by Japan in the recent war. Dr. Tyau argues that since the lessee is not the sovereign of the territory, the latter enjoys quasineutrality and can not legitimately be an object of attack or capture by an enemy of the lessee. There are very valuable chapters on “Spheres of Influence,” “Treaty Ports,” “Tariffs,” “Extradition and the operation of the “Favored Nation'” clause. The concluding chapter is a plea for treaty revision. If at times Dr. Tyau seems to hold a brief for his own country. As is quite natural, it must be admitted nevertheless that on the whole he writes in a calm, dispassionate manner and withal very convincingly. The work is one which ought to have a place in the library of every student of Far Eastern Affairs.

Book Review Details

This legal book review was published in:

The American Journal of International Law,Vol. 13, No. 2 (Apr., 1919), pp. 369-370

For Legal Meanings:

References to the legal books also in the Legal Definitions, click here

Leave a Comment