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(See page 264)



THE main considerations appear to be these:-

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?

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?

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:-

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.

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.

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

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.

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.

To support and encourage the co-operative exercise of Chinese authority in connection with the situation, so long as it is reasonable and proper.

To particularly avoid any unnecessary manifestation of jealousy to such action.

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.

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:-

War can be held as sufficient grounds for cancelling the provisions of a treaty giving exterritorial rights to Germans.

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.

Enemy subjects can be compelled to leave China.

Commercial intercourse between belligerent subjects is a matter for ' municipal' law. It will be interesting to see what China does in this connection.

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.