MEMORANDUM ON MEASURES FOR PUBLIC SAFETY
IN THE SHANGHAI INTERNATIONAL SETTLEMENT
IN THE EVENT OF CHINA DECLARING WAR ON
GERMANY
BY W. F. TYLER
THE main considerations appear to be these:-
I. Should precautionary measures be taken independently of or
in conjunction with the Chinese Authorities? Should those precautions taken rest on the authority of the community's officials or
should they rest on the declaration by China regarding public safety,
or should both grounds operate?
II. What rights exist under international law to deal with Germans in China and the Settlement? Should acts in connection
with Germans be limited to what is permissible under international
law, having in view the general discarding of all law by the
Germans?
III. What precautions are desirable in regard to public safety
and to which of them is it expedient to give effect?
As regards I.: — The status of the Settlement is very exceptional,
and the subject of this memorandum cannot be satisfactorily dealt
with without some reference to it.
So far as treaties are concerned China has almost full sovereignty
within it, except as regards jurisdiction over foreigners. That
right of full sovereignty has, however, to a considerable extent lapsed
owing to the gradual growth of practices which have in effect disregarded it. The Chinese Government has actively in some cases
and tacitly in others acquiesced in certain of these practices, so that
they may be considered as legally operative notwithstanding their
variance with the treaties. Towards other practices the Chinese
Government has been in passive opposition, and towards some in
active opposition.
These practices can be stated in three categories:-
(i) Those which were obviously necessary for the existence and
welfare of the Settlement, e.g. freedom from unrestricted
jurisdiction over Chinese residents in the Settlement by
Chinese officials.
(ii) Those which may be admitted to be for the good of the
Settlement, but which involved such a further alienation of
China's treaty rights as to cause her to oppose them, e.g. the
existing question of the status of the Mixed Court.
(iii) Those which are based on extravagant and wrong ideas, and
which are harmful both to the Settlement and to China,
e.g. the so-called ' rights of asylum.'
These practices — good, doubtful and bad — have come into existence in connection with needs or supposed needs in time of quietude
and in times of domestic turbulence in China, and their justification
can be based only on needs in those circumstances.
Now comes a state of war between China and Germany, and
China in accordance with her undoubted right repudiates the
hitherto treaty rights of Germans to exterritoriality. Even if the
abrogation of this right is not complete, it will at all events exist in
respect to matters affecting ` the safety of the state.'
Thus a properly constituted authority exists for taking those
exceptional precautions against Germans which a state of war makes
necessary or desirable. On the other hand, the Settlement Authorities have no legal authority for the taking of extraordinary precautions against Germans, which do not come within the four corners
of peace practice. They could, of course, as an emergency measure
act without that authority as a matter of expediency, and should
the need arise it is to be hoped that they will do so. It would,
however, be unwise — because unnecessary — to so act, in the
presence of China's legal authority in the matter, so long as that
authority was adequately exercised. Accordingly, it is assumed
that, at all events to start with, extraordinary action in connection
with Germans in the Settlement should rest on the authority of the
Chinese Government.
There is, however, much more in this matter of Chinese Authority
than is indicated in the foregoing. On the declaration of war China
becomes the Ally of the Entente Powers. We want her to be more
than an ally merely in name. There is valuable assistance which she
can give in various directions which need not be mentioned here.
As she will be a partner — to whatever degree in the great undertaking
— she must be treated as a partner. No longer must the Settlement
look upon the Chinese Government as something to traditionally
oppose. It becomes something to co-operate with in the most
cordial possible manner and to encourage. There could be no
greater discouragement to the Chinese Government than a failure
on the Settlement's part to give this cordial co-operation.
The restricted municipal view must be discarded; the broad
view of what is for the good of the Great Cause must be adopted, and
anything which stands in its way — whatever prejudices may have
previously been attached to it — must be swept aside.
It would appear that the best policy for the Settlement Authorities
to adopt would be as follows
(a) If the Chinese Government desire any reasonable act in the
Settlement, to offer to undertake it with the municipal
police or to do it in conjunction with the Chinese, as may
be considered best.
(b) If the Settlement Authorities desire any extraordinary action,
to seek the authority of the Chinese officials thereto, and
either give effect to it by themselves or jointly with the
Chinese, as may be considered best.
(c) To support and encourage the co-operative exercise of Chinese
authority in connection with the situation, so long as it is
reasonable and proper.
(d) To particularly avoid any unnecessary manifestation of
jealousy to such action.
(e) To require, however, that no action be taken by the Chinese
officials in the Settlement without the Settlement Authorities' acquiescence. The need for this obviously exists both
in the interest of China and of the Settlement.
(f) In the case of an arrested German, to frame the charge, if
possible, so that according to the Chinese declaration he
come under the jurisdiction of the Mixed Court.
There is perhaps some danger that the Chinese officials may
cause the question of China's jurisdiction over Germans in the
Settlement to be involved with the question of the constitution and
status of the Mixed Court as it now is. This is a matter that would
require great tact in dealing with were it raised. What is involved
in this matter — the history of the question and all that belongs to it —
is little understood, and the mixing up of the matter with the war
situation would be very regrettable.
As regards consideration II.: The rights under international
law which would cover action in connection with Germans in China
and the Settlement cannot help us much, because international law
can, as the result of Germany's practices, hardly be said to exist.
There remains only the law of humanity.
Yet it may be worth considering what international law used to say
on the subject.
The only points of interest appear to be these:-
(a) War can be held as sufficient grounds for cancelling the
provisions of a treaty giving exterritorial rights to Germans.
(b) German subjects in China should not be made prisoners, i.e.
should not be interned.
This law no longer exists. Internment of enemy subjects has become the rule rather than the exception.
(c) Enemy subjects can be compelled to leave China.
(d) Commercial intercourse between belligerent subjects is a
matter for ' municipal' law. It will be interesting to see
what China does in this connection.
(e) Private enemy property may not be confiscated, except ships
and their cargo in certain circumstances, which are not
those of German ships in Chinese ports.
This question hardly concerns the subject of this memorandum,
but it may be said that, in view of the way Germany has treated
private property in occupied territory, she is no longer entitled to
the operation of the above rule in her favour.
The war, as conducted by the Germans and also to some extent
in other respects, has brought about such a disregard for previously
accepted principles that international law as it existed before hardly
does so now. On the part of Germany all law has been thrown
to the winds, including that of elementary humanity. The
Allies are fighting an essentially lawless and barbarous enemy.
The Allies have adhered to principles of humanity, but Great
Britain in particular has been forced in other respects to
override previously accepted principles in dealing with neutral
shipping and trade.
There is thus no outstanding need for China to be guided by the
strict letter of what is laid down in text-books on international law.
She need only consider what is expedient for securing her safety
and for assisting her Allies within the limits of humane conduct.
As regards III.: — The subject of desirable precautions will be
dealt with herein only in a general manner.
It should be realized that the need for precautions generally and
the nature of those precautions cannot be gauged solely by a consideration of danger considered to be actually existent.
In times like these it is not merely probabilities that require
guarding against but possibilities. The world — and the Settlement
itself — has had ample evidence of Germany's organization for destruction even in neutral countries — and even where such destructions seemed objectless. That organization could not now be
stopped by the German Government itself. Its danger here is
quite independent of the general spirit of the Germans in the
Settlement.
It is not intended to imply that there is positively such danger
here. But there undoubtedly may be. The Settlement might, for
example, form the shelter for an attempt to damage the Arsenal, as
it has so often served before.
Apart, however, from the existence or non-existence of danger,
precautions require to be taken and control instituted as a matter of
principle to, as it were, mark and label the situation. There should,
it is considered, be no desire to humiliate the individual German;
but that the Germans generally should be made to realize that they
are under special control and supervision by or on behalf of the
Chinese Government, and that the Chinese should realize that fact,
is but a suitable and proper condition in all the circumstances of
the case.
Obviously the Germans should be obliged to register.
It is
believed that the registration already ordered by the Government
has not been completed. It would be well to have a joint registry
and some periodic means of keeping it up to date, and of controlling
the movements of Germans.
The mere declaration of war-like articles by German merchants
and the handing over of such declared articles is not sufficient. To
meet the case searches are obviously necessary.
It is not considered that the internment of Germans against
whom there is no suspicion of evil intention is desirable. It would
be a very expensive proceeding; would be very difficult for China
to carry out effectively and creditably, and there seems to be no
necessity for it.
On the other hand, it seems suitable that any German now in the
country, who by his previous occupation can be considered to be
under the direct control of his government, should be so interned.
This would include such men as ex-members of the legation guard
and any consular officials who have not left.
