File No. 4002/245–245.
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.
[Inclosure
2—Translation.]
aide-mémoire.
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.
