CO537-6049 — Page 59

Hackworth, Digest of

Law,

International

Vol. II, p. 548.

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46

CHINA

(d) The fact that the Convention of 27th March, 1898, purported to be without prejudice to Chinese authority (sic, " sovereign rights") shows that the mere provision allowing Chinese officials to exercise jurisdiction in the walled city did not have anything to do with sovereignty as this (whatever it meant) had already been reserved and the Additional Agreement could not reserve more than had been reserved already.

2. The lessee is granted "sole jurisdiction" in the leased territory by the two British leases and by the French lease. By implication the same was true under Article IV of the Russian lease (the text of this document is not very coherent) and by Article II of the German lease.

3. Some attempt is made in the case of the French and Russian lease to make it clear that the lease is without prejudice to Chinese sovereignty; Article II of the German lease (this is the only lease containing a specific prohibition against sub-letting to another Power without Chinese consent) seems to have been drafted with the same intention. Nothing of this sort appears in the two British leases. 4. Generally it appears that in all the leases there is an intention to recog- nise an ultimate Chinese sovereignty over" the leased territories," but, by granting sole jurisdiction to the lessees, the exercise of this sovereignty was renounced for the term of the lease. The special provision regarding jurisdiction in the walled cities of Kowloon, Wei-hai-wei and Kinchow could not therefore add anything further in this respect, unless it amounted to excluding these cities from the lease altogether and that contrary to the Chinese argument was clearly not so.()

5. No satisfactory explanation appears available why military require- ments made the abandonment of Chinese jurisdiction in Kowloon necessary but not in Wei-hai-wei.

6. In connexion with the Russian lease it is interesting to note that it was the opinion of the Department of State in 1909 that the United States did not exercise ex-territorial jurisdiction in Kwantung leased territory. This territory in Southern Manchuria came into Japan's possession after the Russian-Japanese War. The view of the Department of State was that the leased territory was to all intents and purposes a part of Japanese territory and that the consul's exequatur was issued by Japan by virtue of the Treaty of the United States and Japan and gave no authority for the exercise of ex-territorial powers. This is interesting because it shows that during the entire period of the lease, first to Russia and then to Japan, sole jurisdiction had been exercised by the lessee country and this jurisdiction had been acquiesced in by the United States. At the same time, it is worth pointing out that the Department of State, having learned that Japan had no legislation fixing the conditions of a valid marriage in the territory, gave instructions that the marriages of American citizens contracted in Kwantung leased territory should be performed according to the rites observed in other parts of China.

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(1) The words remainder of the new-leased territories to note rebut the argument that the City of Kowloon was not included in the lease.

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