793.003/409
The British Embassy to the Department of State
Aide-Mémoire
The final paragraph of Article 10 of the draft agreement on Extraterritoriality in China dated June 4th and forwarded by Mr. Hornbeck to Mr. Campbell in his letter of June 10th last reads:
“American commercial vessels in Chinese ports or coastal waters or rivers shall not be subject to restraint or to any form of commandeering, requisition, inspection or search, nor shall such vessels be boarded by Chinese police, military or other armed authority except by agreement with the captain of the vessel, or upon a warrant formally issued by a modern law court specifically citing by title and section the law under which such action is authorized. American commercial vessels shall not be compelled to carry Chinese troops, whether armed or unarmed, or Chinese military supplies. Nothing in this article shall be interpreted, however, as limiting the present authority of the Chinese Maritime Customs with regard to American vessels.”
Sir M. Lampson will shortly present the draft agreement to the Chinese Government, as the United States Embassy in London were recently informed.
In the draft which Sir M. Lampson will present to the Chinese the final paragraph of Article 10 will read as follows:
“British commercial vessels in Chinese ports or coastal waters or rivers will as heretofore comply with such regulations as may be reasonably necessary for the prevention of fraud or smuggling. They will not however be subject to any form of commandeering or requisition nor will such vessels be inspected, searched, boarded or subjected to any kind of restraint by Chinese military or other armed authority except by agreement with the Captain of the vessel. They may not be boarded by Chinese Police nor may any person subject to the [criminal]55 jurisdiction of Chinese Courts be arrested on board any such vessel except upon a warrant formally issued by a modern law Court specifically citing by title and section the law under which such action is authorized. In the absence of such a warrant Chinese Police may only board a vessel by agreement with the Captain. British commercial vessels will not be compelled to carry Chinese troops whether armed or unarmed or Chinese military supplies. In general, treatment accorded to British commercial vessels shall be in conformity with that accorded under recognised international practice by maritime nations to vessels of other countries in their ports and territorial waters.”
The reasons for which the wording of this paragraph of Article 10 has been thus changed in the British draft are as follows:—As a result of Articles 21, 36 and 46 of the Treaty of Tientsin of 1858,56 together with other treaty stipulations conferring extra-territorial privileges on British subjects in China, no Chinese officials, except those acting under the authority of the Chinese Maritime Customs, have hitherto been empowered to exercise any functions on board a British vessel in Chinese waters. This position however has been somewhat weakened in recent years by the fact that special bureaux have been organised to collect duties on and prevent the smuggling of certain articles—particularly opium and salt—which do not come under the cognisance of the Chinese Maritime Customs, and in view of the terms of Article 46 of the Treaty of Tientsin it is difficult to object to searches of vessels by the employees of these bureaux. The first sentence of the new British draft has been inserted to meet this situation. Difficulties have however arisen from the fact that the search parties sometimes consisted of bands of armed and undisciplined men, while in some parts of China, particularly in the Upper Yangtze, similar armed bands were sent on board British vessels by semi-independent generals with a view to extracting revenue from the various kinds of cargo [Page 461] carried. Armed bands have also boarded British vessels for the purpose of arresting absconding criminals, political offenders or some persons suspected of having committed a crime on board the vessel. In these circumstances it appears desirable to His Majesty’s Government that this practice of arbitrarily invading British vessels with armed parties—whether for the purpose of protecting the revenue or of arresting criminals—should be declared illegal. The new draft is designed to secure this desideratum. Provided this is secured it seems that the Chinese should have full power to adopt all reasonable means of protecting their revenue and that they should have the same power of arresting on board British vessels persons subject to the criminal jurisdiction of their courts as is enjoyed by other sovereign states under international law. The wording of the new draft is intended not to exclude this power. It does not however appear necessary to set out in the agreement any declaration of the rule under international law that the Chinese courts should not exercise jurisdiction in respect of matters which have no effect outside the British vessel in question, since it is believed that the Chinese would not show any desire to intervene in the case of offences affecting only the internal order and discipline of the vessel and that consequently it is improbable that difficulties will arise from this source.
The concluding paragraph of Article 10 in the draft of June 4th would appear to be open to the interpretation that it allowed the warrant of a Chinese “Modern Law Court” to run on board a British vessel without restriction. There is of course a wide practical recognition that a country should have no jurisdiction over a foreign vessel in its ports in matters which have no effect outside the vessel itself—exception being allowed to a certain degree in the case of specially scandalous crimes. It is a recognised practice not to interfere with the internal discipline of a ship unless the consequences of an offence committed on board extend beyond the ship itself. This principle was recognised at the recent conference at the Hague on the codification of international law57 and it is not believed that the Chinese could raise any objection in principle to a suitably worded provision designed to safeguard this point. Accordingly the final sentence of the present revised draft has been added in order to ensure that British vessels shall receive the treatment generally accorded by maritime nations to the vessels of foreign flags.
It has further been deemed necessary to draw a clear distinction between “commandeering” and “requisition” on the one hand and “inspection”, “search”, “boarding” or any other form of “restraint” on the other; thus whereas the present draft contemplates certain conditions under which inspection, search, boarding or restraint by Chinese military or other armed authority could be tolerated, it is [Page 462] the view of His Majesty’s Government that British vessels should not be subject to commandeering or requisition by any Chinese authority. This is a recognised principle to which His Majesty’s Government attach great importance. The wording of the second sentence of the enclosed draft is designed to make this point clear.
His Majesty’s Government would be glad to learn whether the United States Government feel disposed to amend their draft to bring it into line with the new British draft.
- Corrected on basis of letter of September 8 from the Counselor of the British Embassy to the Chief of the Division of Far Eastern Affairs (793.003/410).↩
- Treaty between China and Great Britain, signed on June 26, 1858; British and Foreign State Papers, vol. xlviii, pp. 47, 51, 54, 56.↩
- Held from March 13 to April 20, 1930; see vol. i, pp. 204 ff.↩