CO129-529-5 China- extraterritoriality 23-11-1931 - 31-12-1931 — Page 132

180

179

12

under purely Chinese control. Both as regards protection against violence and disorder, and as regards safeguard for the enjoyment of personal rights, including rights of property, the Settlement régime depends, therefore, to- day on the fact that it is a régime which has the support of foreign nations, and is based on treaties between China and Foreign Powers. The two main problems of govern- ment, the problem of order and the problem of liberty, are at present, by reason of its special status, more suc- cessfully dealt with in the Settlement than in China generally, and the success which the Settlement has at- tained in their solution is due to international co-opera- tion." (Vol. II, Part V, p. 124.)

So far as security depends on protection, "it appears that if the present international status of the Settlement were to disappear, and the authority of its governing body were to be based on a Charter granted by the Chinese Government, the Settlement could no longer rely on securing protection through the active assistance of Foreign Powers, which have in past emer- gencies come to its aid and provided forces for its defence; the special advantages in regard to protec- tion, which it has hitherto enjoyed owing to its international status, would, therefore disappear; until it can be said that there is a reasonable certainty that such emergencies as have occurred not infre- quently in the past will not recur, it is obvious that this diminution in the Settlement's security, which would inevitably result from the substitution of a régime under Charter for the existing régime under the Land Regula- tions, might involve very serious consequences, whatever may be assumed as to the provision made by the Settle- ment, under the new conditions, for its own defence. (Vol. II, Part V, p. 127.)

66

So far as security depends on maintenance of the rule of law, the governing body of the Settlement under a Charter might be endowed with powers such as would enable it not only to maintain, but even to improve, the position as to the rule of law in the Settlement; but its prospect of success in doing so would depend on

13

whether its right to exercise the powers conferred was recognised in practice, and on whether the governing body itself, and its officials, in the general exercise of administrative authority, adhered to the present tradition as to the rule of law, and made effective use, in practice, of the powers conferred by the Charter." (Ibid.)

"No Charter for the Settlement would be worth having unless there were some reasonable guarantee for its permanence and inviolability. Any Charter granted would presumably be embodied in a law duly enacted by the proper legislative authority, or would be issued by the Government under the provisions of such a law. But, apart from some treaty undertaking, there would be nothing to prevent such a Charter being withdrawn or amended by further legislation, or even by executive action. For under present circumstances there would be no effective constitutional safeguard against the enact- ment of a repealing or amending law, or even against the cancellation of the Charter by executive order. That will continue to be the position until China develops a system of constitutional government, and possesses Courts which are not only independent of the Executive, but also strong enough to enforce the observance of law even against the Government itself." (Vol. II, Part V, pp. 127-8.)

V. Mr. JUSTICE FEETHAM'S RECOMMENDATIONS.

the

(a) Retention of Extraterritoriality.-"If extra- territorial rights were generally relinquished, results would be that all proceedings taken by or against the Council would be taken in the Chinese Courts, which would thus become the sole guardians, from the judicial point of view, of the Council's rights, and the sole in- terpreters of its constitution, not only in questions arising between the Council and private parties, but also in questions affecting the position of the Council vis-à- vis other Government authorities. It is obvious that this would involve a fundamental change in the Council's position." (Vol. II, Part V, p. 144.)