# Memorandum by Mr. Gubbins
THAT the extradition of fugitive criminals should be regulated in a definite manner with as little delay as possible is a question which, in my opinion, admits of no doubt. Mr. Fraser's present Memorandum, and his despatches on this subject written from Japan, as cases of rendition came up for settlement, explain the position clearly, and the need for such action as will place matters on a more solid footing. It is true that the temporary understanding arrived at in the Campos case—which, with some modifications, was adhered to in the subsequent case of Woodin—may serve as a precedent for future cases,
But an understanding of this kind cannot be very satisfactory. The situation must, so long as no definite agreement is arrived at between Japan and ourselves, remain one of great difficulty. It exposes our relations with Japan to grave risks, for we might at any moment, through the indiscretion or over-zeal of a British or Japanese official, be confronted with a serious complication; and it may also fairly be held to weaken the position of our Minister in Tôkio, who is obliged to ask as a favour what he would, were the matter definitely regulated, be entitled to demand as a right.
When speaking to Sir H. Bergne on the 18th ultimo I was under the impression that the proposal to negotiate a regular Extradition Treaty originated with the Foreign Office in London. I have since learnt from the papers which Sir H. Bergne placed in my hands on the 1st December that it is the Japanese Government which desires to substitute an Extradition Treaty for the rendition arrangement accepted in principle by the late Japanese Minister for Foreign Affairs. Under these circumstances I think it right to qualify, in a measure, the opinion I gave to Sir H. Bergne at our first interview, by submitting the following considerations, to which due weight should, I think, be given before Japan's request is granted.
No exception can be taken to the view—so far as it applies to general cases—that, if the subject of extradition is to be regulated at all, this can be done better by a Treaty than by any mere arrangement. But in the case of Japan it is well not to overlook the circumstances of our negotiations with her in the past and the nature of the Government with which we are dealing. The history of all our negotiations with Japan of late years, whether on Treaty revision or extradition, is a record of concessions made by us, and though in many respects these concessions were inevitable, and were the natural outcome of the changing and progressive conditions of the country—as an instance of which I need only point to the recent assumption of jurisdiction by Japan over Portuguese subjects—and other foreign Powers have fared no better than ourselves, it cannot be denied that the policy pursued by Japanese statesmen is one of encroachment. Each party seeks to make capital for itself, and thereby strengthen its position in the country, by advancing fresh pretensions in any negotiations which may happen to be pending, and the advent of a new Ministry to power invariably means the putting forward of new demands.
The position of the Japanese Government, moreover, at the present time is not very favourable to the successful conclusion of any important negotiations. They are weakened by divided counsels, and are embarrassed by the hostility of a Parliament, with which neither they nor their predecessors have ever been in harmony, and which they are often quite unable to control.
The negotiation of a regular Extradition Treaty would mean a fresh advance on our side to meet Japan, and though I am inclined to think that on the whole such a Treaty, with proper safeguards, would be better than an arrangement, it must be remembered that this Treaty, as now drafted, will still fall short of what is found in many similar Conventions elsewhere, and of the stipulations of the Extradition Treaty between the United States and Japan, and that there is a possible danger that Japan may again be tempted to coquet with us, and endeavour to extort from us, by methods with which we are now familiar, the little that is still withheld. For this danger we must be prepared, and for the further eventuality that the Japanese Ministry may on the very eve of concluding negotiations, when all difficulties have apparently been surmounted, be at the mercy of a political faction which will paralyze its action; and it occurs to me, therefore, that it might be possible to ascertain confidentially through Her Majesty's Chargé d'Affaires in Tôkio whether, if we met Japan so far as to accede to her proposal to conclude a regular Extradition Treaty, there are good grounds for believing that she
That is not the case so far as English Treaties are concerned. The draft is on the latest models of our arrangements with civilized Powers, and contains practically all we can grant to any State.—H. G. B.
would accept, without the unreasonable delay and the bad faith which have characterized her previous negotiations, a Treaty on the lines drafted by Sir H. Bergne.
Article II. I do not think there is reason to anticipate any difficulty in regard to the list of crimes. The present Revised Penal Code in Japan, which is founded on the Code Napoléon, probably embraces all the crimes specified, but I cannot speak with absolute certainty on this point.
Article III, para. 1.
I do not think that the Japanese Government will be likely to object to the stipulation as to non-surrender of nationals. In the Extradition Treaty between her and the United States a discretionary right is reserved in these cases, and in the present temper of the people the extradition of a Japanese subject to any foreign State would cause great excitement in the country,
Para. 2. Having regard to the vague condition of the question of naturalization in Japan it might, perhaps, be best to omit this paragraph.*
Article IV. para. 1. I agree with Mr. Fraser that this provision is essential. There is a great difference between the immunity which, under the Rendition Arrangement, the subjects of a third Power would enjoy—and to which objection is taken in the 6th paragraph of the Japanese Memorandum of the 4th October last—and the conditional extradition provided for by this Article.
Para. 2. I think with Mr. Fraser that Japan would object to this stipulation, and it is not easy to see how the difficulty is to be overcome. For even if we were to obtain from her an undertaking in the form of a note, to bear the same date as the Treaty, that, so long as British Consular jurisdiction was exercised in Japan, she would not surrender a British subject to a third Power without our consent, our position would still be somewhat illogical, since the very negotiation of a regular Extradition Treaty implies, or may be taken to imply, the admission that offences committed out of Japan do not come within the province of our extra-territorial jurisdiction in that country. At the same time a British subject arriving in Japan becomes at once amenable to British jurisdiction, and the Japanese authorities would, I think, be bound to obtain our concurrence before proceeding even to arrest such individual, much more to extradite him.
As Mr. Fraser points out in his Memorandum, there is no possibility of a British subject being surrendered by Japan to the Chinese authorities for a crime committed in China, for the offence would be judiciable by our Courts in China. And the same remark applies to Corea and to all other countries where we exercise Consular jurisdiction.
It should not, however, be forgotten that our authorities in Japan may be called upon at any moment to deal with the case of the surrender of a British subject, who is a fugitive offender, to the British authorities in China, Corea, or Siam, for an offence committed in any of those countries, and that, similarly, a demand for the apprehension and extradition of a British subject who has committed an offence in Japan may be made by the British authorities in the latter country. So long as Consular jurisdiction exists anywhere there will be fugitive offenders of this class; and yet if a demand be made by a third Power, such as the United States, for instance, for the surrender of a British subject who has taken refuge in Japan, we cannot, if we negotiate either an Extradition Treaty, or an Arrangement, with Japan, base our argument, as regards extradition, upon the existence of our Consular jurisdiction.
Perhaps some understanding in the direction I have indicated might be possible, and we might in that case strengthen our argument by drawing Japan's attention to the fact that, so far as the extradition of British subjects by Japan to the United States is concerned, the Extradition Treaty between her and United States must, failing our concurrence, remain a dead letter.
Article XII. The Japanese Government will probably wish to alter the wording of this Article.‡
Article XVI. As Mr. Fraser states in his Memorandum, the cases of extradition between Japan and the British Isles will be very rare. The question derives its greatest importance from the growing intercourse between Japan and our Colonies, and between Japan and States in proximity to her where we exercise Consular jurisdiction.
In conclusion, I would only point out that, as matters now stand, Japan may be expected to extradite British fugitive offenders on the application of our authorities in Japan, whereas we on our side cannot, until the subject is definitely regulated, surrender any Japanese fugitive offender to Japan; and, although it may fairly be held that the advantage under these circumstances rests with Japan, since she is not forced to harbour
I see no objection to omitting this paragraph.—H. G. B.
We might perhaps retain it as a point to be surrendered if necessary in negotiation. We must have one or two things to give up, as it cannot be expected that Japan will swallow the draft whole.—H. G. B.
We should invite them to do so if they wish.—H. G. B.
Page 323