File No. 4002/245–245.

Chargé Schuyler to the Secretary of State.

No. 560.]

Sir: With reference to my telegram to you under date of yester day,1 I have the honor to transmit to you herewith in duplicate a translation of the note verbale and aide-mémoire which I have received from the ministry for foreign affairs concerning the situation at Harbin.

I also inclose the text of the arrangement of April 27 (May 10) last,2 which I had asked the foreign office to send to the embassy, as the only text we had seen was that published in the newspapers here at the time of the conclusion of the arrangement.

I have, etc.,

Montgomery Schuyler.
[Page 217]

[Inclosure 1—Translation.]

The legal situation of Harbin having occasioned of late certain misunderstandings, most unfortunate for the establishment of order and the development of international trade in that town, the ministry for foreign affairs has the honor to transmit to the American embassy an aide-mémoire giving the views of the Imperial Government on this question.

The text of the convention signed at Peking on the 27th of April (10th of May) last is also inclosed.

[Inclosure 2—Translation.]


The representatives of several powers having commercial interests in China have expressed, both at Peking and St. Petersburg, their doubts on the administrative rights actually exercised at Harbin by the local municipality.

In the notes presented on this subject to the Governments of China and Russia, as also in their oral communications, these representatives have endeavored to show that certain articles of the convention signed in Peking on the 27th April (10th May) last conflicted with the exterritorial rights insured to their national by the treaties with China, and that those articles, as well as certain administrative measures taken at Harbin, were violative of the “international concession” régime, which, in their opinion, had been recently established in that town.

It is easy to prove that this point of view is based on a misunderstanding, for, in the first place, exterritorial rights, in so far as accorded by treaties, only include the right for every foreigner to be tried by his own consul, but in no wise relieve him of the duty of paying municipal and other taxes and of obeying the regime existing in the locality where he resides.

Now, these regimes are not uniform in China and vary according to the type of concession adopted in the various ports in virtue of special conventions with China on the subject. Thus, at Tientsin and at Hankow each nationality has its own concession; at Shanghai the concession is international; at Tsinanfu, Soochow Ningpo, and other places there are no European concessions; the administration is purely Chinese. One rule only is common to all localities open to foreign commerce in China, and that is that all foreigners wishing to reside there are required to submit to existing regulations and taxes, while retaining in their entirety their exterritorial judicial rights.

The difference between purely Chinese open ports, in which there are no concessions or foreign settlements, and those opened on the lands of the Chinese Eastern Railway consists in the Chinese authorities having in the first category of ports full and complete liberty to establish such administrative rules as they see fit. In the second category they are bound by the contract of August 16–28, 1896, article 6 of which provides that the railway company “shall have the absolute administrative right of administration over its own lands,” and by the convention of April 27 (May 10) last, the object of which is to affirm and amplify the above-mentioned contract. By these two arrangements China delegated its right of administration over the lands of the railway to a Russo-Chinese company acting as a private concessionary. Consequently the company in exercising control in Harbin and the other localities on its lands acts as the representative of China. And as in open ports in the interior of China foreigners are obliged to submit to the rule for civil life established there by China, except as regards jurisdiction, so likewise are they required to accept the conditions created by the two previously mentioned arrangements.

In so far as this condition affects international relations it is in absolute agreement with the principles of the treaty of Portsmouth. During the negotiations for this treaty the plenipotentiaries of the two powers, for the purpose of removing all cause of future misunderstanding, declared “that the concession, the building, and the working of the Chinese Eastern Railway in Manchuria are not incompatible with the principle of the open door and of equality of treatment, and that, within the limits of the land secured under the concession, the rights of His Majesty the Emperor of Japan, as well as the nationals of other foreign powers, shall enjoy the same rights and privileges as those of His Majesty the Emperor of Russia.”

So it appears that the treaty of Portsmouth only imposes upon Russia the duty of giving to all foreigners on the railway lands the same rights as to Russian subjects. [Page 218] This duty is strictly discharged by the régime established on the land of the railway company by which foreigners enjoy there absolutely the same civil rights, including that of taking part in the municipal administration.

Another misunderstanding appears to have called forth the assertion that Harbin had been recently transformed into an “international concession” There is reason for positively affirming that such was never the intention of the two contracting parties, and that this term has never even been used in the correspondence exchanged between them, nor in the convention of the 27th of April (10th of May).

For the purpose of clearly defining the peculiar legal situation of Harbin, it is perhaps useful to take a retrospective glance at the various juridical phases through which this question has passed in reaching its present one.

Having erected on its lands and at its expense the town of Harbin, the railway company undertook, in accordance with article 6 of the convention of 1896, the duty of administering this city.

Later on, as the Chinese population at Harbin increased, and as article 6 of the above-mentioned contract, which had been originally drawn up in rather vague terms, was giving rise to misunderstandings between the municipal administration and the Chinese merchants, the railway company took up negotiations with the Chinese Government for the purpose of defining (préciser) its rights as stipulated in article 6. These negotiations ended in the signing of the convention of April 27 (May 10), which, far from impairing the contract of 1896, serves on the contrary to confirm and amplify it. It changes nothing in the legal situation established by the above-mentioned contract, while it opens wide the door to foreigners without distinction of nationality, and gives them not only the right to reside in this town but also to participate therein, on the same footing as Russians and Chinese, in the municipal government.

At the same time Russia put no obstacle in the way of foreigners residing in Harbin of enjoying the privileges provided for by the treaties with China by which the jurisdiction over foreigners belongs exclusively to their consuls, provided, however, the latter are furnished by their Governments with explicit instructions defining the duty of their nationals to submit, like the rest of the population, to all the regulations and rules of the local administration authorities as regards taxes and dues fixed for this population, as well as sanitary and other measures.

It is therefore evident from what precedes that Harbin, as a result of the juridical acts concerning it, as well as of the traditions and local circumstances which have successively affected it, differs from all other settlements existing in China, particularly as regards its exceptionally liberal and hospitable rule in connection with foreigners.

Finally, it should be remarked that the misunderstandings which have recently arisen as a result of a too loose drafting of article 6 have brought about in the territory of the Chinese Eastern Railway and unsettled condition of things which takes from the Russian and foreign populations the certainty of being able to settle there permanently and to build up good business relations. This condition of things is changed completely by the convention of April 27 (May 10) and the forthcoming regulations concerning the civil administration on the territory of the railway. Thanks to these arrangements there will be no obstacles in the way of developing on these lands civil and commercial life. It is consequently to the very interest of the powers to aid in the prompt conclusion of the negotiations now pending between Russia and China and not to put obstacles in their way. Any other attitude would tend to perpetuate the state of disorganization which prevails in the towns situated on the railway lands and would render impossible the keeping up of those towns by the company, which could clearly not undertake to do so at its own expense.

  1. Not printed.
  2. See Mr. Rockhill’s No. 1154, May 19, 1909 p. 208.