Although the Ottoman Empire was the first to enact a capitulatory system that established the basis for extraterritorial privileges, it was in China that the extraterritoriality system was developed most extensively. The origin of extraterritoriality in China has been traced to the T'ang dynasty (618–907). As early as the ninth century, the Chinese allowed Arabs to reside and trade along the coast of Chekiang province and to govern themselves under their own headman. When the Portuguese arrived in Macao in 1557, the emperor permitted them to live according to their own customs and laws. In the first treaty with Russia in 1689, China agreed that each nation would be responsible for its own subjects.
However, though China treated all barbarians equally, permitting them to enjoy the blessings of Chinese civilization and granting to all the privilege of trade, barbarians were required to accept China's conditions of trade. The Chinese exempted foreigners from their law in part because they believed that foreigners lacked the capacity to understand the complex rules of Chinese society; in part because such exemption freed the Chinese from the difficulty of trying to govern aliens who had strange customs, language, and traditions; and in part because the Chinese felt the barbarians should be given a chance to observe their civilized way of life and, by so doing, eventually become assimilated. The Chinese always insisted upon complete control over foreign residence, and Westerners ultimately secured the acknowledgment and extension of extraterritorial rights only by the threat or use of force.
In China, the tribute system established the basis of relationships with barbarians. Foreigners who wanted to trade with China were compelled to abide by the rules and regulations set forth by the emperor. Until the first Anglo-Chinese (Opium) War (1839–1842), Western merchants accepted China's institutional framework and adapted to Chinese requirements of trade. This meant adhering to the Canton system, which confined all foreign trade to the Canton area—the "factory" section of the city and at Whampoa and Macao—and its supervision by the Co-Hong, a Chinese merchants' guild. The Canton system in effect preserved a tribute-and-trade nexus that coincided with the traditional Chinese way of dealing with barbarians.
The Opium War shattered this institutional arrangement. It was replaced by the Western "treaty system," built on treaties signed by China with England, the United States, France, and Russia. The British-dictated Treaty of Nanking (1842) led to the collapse of the Co-Hong system; the opening to trade of the ports of Canton, Amoy, Foochow, Ningpo, and Shanghai; and the altering of relations with China. The treaty system pivoted on two significant stipulations: a most-favored-nation clause, which automatically extended concessions granted by China to one nation to other treaty powers, and the right of extraterritorial jurisdiction.
Before the Opium War, the British and other Europeans had willingly acknowledged, for the most part, China's jurisdiction in both civil and criminal matters. But a gap steadily widened between the British and Chinese on the interpretation and procedures of the law, on matters of responsibility, on evidence, and on punishment. On occasion, the British resisted compliance, particularly by refusing to surrender their nationals who were accused in homicide cases. Westerners were also alarmed by the Chinese practice of torturing prisoners and by the corruption of Chinese magistrates and judicial authorities. Americans, however, readily submitted to China's laws and jurisdiction to avoid interference with trade.
The position of the United States changed drastically after the signing of the Treaty of Nanking, and the supplementary Bogue Convention (1843), which gave British consuls limited jurisdiction to deal with crimes committed by British nationals. Although England first took the initiative in asserting jurisdiction over British subjects in China nearly a decade before the Chinese formally agreed to the principle of extraterritoriality, no direct steps were taken to establish a court of justice, with criminal and admiralty jurisdiction, at Canton. Because this measure was opposed by the Chinese and lacked approval of Parliament and the public, England hesitated to take any action. As a result, the imposition of an extraterritoriality system in China was effected mainly by the United States.
Caleb Cushing, who was appointed the first official American envoy to China in 1843, was responsible for obtaining China's full recognition of the principle of extraterritoriality. Cushing argued that jurisprudence of Western Christendom alone guaranteed equitable treatment of foreigners. "This fact," he boldly claimed, was "the result of evidence of the superior civilization and respect for individual rights consequent thereon, which prevail in Christendom." Cushing insisted that the United States demand extraterritorial rights in China for American citizens, not as a concession on China's part, but as a principle of established international law.
Cushing's major achievement was the negotiation of the Treaty of Wanghia, signed on 3 July 1844, which granted the United States the right not only to determine punishment of American offenders but also to exercise absolute extraterritorial jurisdiction in both civil and criminal cases. Article XXI of the treaty stipulated: "Subjects of China who may be guilty of any criminal acts towards citizens of the United States, shall be arrested and punished by the Chinese authorities according to the laws of China: and citizens of the United States, who may commit any crime in China, shall be subject to be tried and punished only by the Consul, or other public functionary of the United States, thereto authorized according to the laws of the United States." From the mid-nineteenth century to World War II, American diplomacy in China was occupied with problems relating to the administration of judicial affairs, shipping regulations, piracy, and claims. Other matters that explicitly concerned extraterritorial rights dealt with the buying and leasing of land; crimes against American persons and property; ensuring the guarantee of fair trials, whether in Chinese courts or consular courts; the safety of travel inland; and the rights to trade, to worship freely, and to propagate the faith. At the same time, extraterritoriality became a cloak for the development of successful foreign commercial enterprises and a means to secure control over much of China's foreign trade. It also offered a protective shield to Christian missionary activities, buttressed the creation of international settlements, and stimulated the use of foreign gunboats. By the twentieth century, the protection of Americans and other foreign nationals was provided not only by gunboats but also by the presence of foreign troops.
Between 1842 and 1942 the principal symbol and exercise of foreign power in China were the treaty ports, small territorial enclaves or enclosures where foreign governments established extraterritorial jurisdictions throughout much of coastal and eastern China. In them were located foreign consulates, local offices of foreign businesses and commercial concerns, concessions, and settlements. Here also were separate courts, police with foreign officers and staff, and often small military and security forces.
Treaty ports, usually on the coast or along navigable waterways, were open to foreign commerce and contained a Chinese maritime customs office administered by foreigners. In many instances these ports had a de jure foreign district. Direct commercial activities, residence, and property rights were restricted to designated treaty ports and other specified cities open to foreign trade.
Settlements and concessions were municipalities separate from the surrounding Chinese cities. Both foreigners and Chinese were allowed to lease or own property and to live in the settlement area. Foreign nationals dominated the municipal councils of these settlements until the late 1920s. Settlements were generally considered Chinese soil governed by foreigners. Concessions were de jure colonies of the nation leasing the property. Most were organized with a municipal council that had ultimate administrative and political authority over the concession. The law of a concession, which was leased foreign soil, could exclude Chinese and nationals of other countries excluded from entry, residence, and property ownership.
Setting up the machinery and administrative apparatus of the extraterritoriality system produced many problems. For example, down to 1906, few American consuls in China had adequate knowledge or competence to handle legal disputes. Many consuls were attached to American mercantile firms; their meager consular fees and dependence on commercial houses seriously affected judicial administration. Bias for one's own nationals could not be eliminated. Moreover, the complexity of laws and procedures, and the difficulties of appeal, as well as of securing witnesses or producing evidence for trials of foreigners who had committed offenses in the interior, made the handling of cases onerous. The creation of a mixed court at Shanghai in 1864 sought to remedy these judicial problems; a Chinese magistrate presided and a foreign consular "assessor" sat with him as a co-judge. Although the removal of consular appointments from politics and the establishment of the U.S. court at Shanghai in 1906 helped to improve the situation, the abuses of extraterritoriality persisted.
In the 1840s, the Chinese were not aware of the implications of extraterritoriality or of other concessions granted to foreigners. Nor were they disturbed by consular jurisdiction, since it did not directly affect China's political structure. But as foreign control over the Chinese economy steadily increased, these expectations rapidly disappeared. First applied to about 350 foreigners in five treaty ports, the extraterritoriality system by the beginning of the twentieth century was extended to about ninety treaty ports and some twenty-five ports of call for steamships, and embraced approximately a third of a million foreign residents.
For more than a half-century after the Opium War, China was racked by insurrections, economic dislocations, and the spread of European and Japanese imperialism. Compelled to accept the West's goods and ideas, China by the turn of the twentieth century reached the depths of humiliation with its defeat in the first Sino-Japanese War, the crushing of the Boxer Rebellion, and the signing of the Boxer Protocol in 1901. The latter provided for a huge indemnity and the permanent quartering of foreign troops in the capital as legation guards.
Nationalism and reform movements, however, steadily gained momentum. As they did so, the "unequal treaties" and extraterritoriality in China increasingly became targets of attack. To counter the agitation, the Western powers and Japan signed a series of treaties in 1902 and 1903. The agreements indicated the willingness of these powers to help China in its efforts to effect judicial reform so that extraterritoriality could, in time, be ended. In the treaty of 1903, the United States conferred upon China more jurisdiction over domestic affairs, including mineral rights, coinage, and the regulation of trademarks, patents, and copyrights. Article XV conditioned the renunciation of extraterritorial rights on the "Westernization" of Chinese law: "The government of China having expressed a strong desire to reform its judicial system and to bring it into accord with that of Western nations, the United States agrees to give every assistance to such reform and will also be prepared to relinquish extra-territorial rights when satisfied that the state of Chinese laws, the arrangements for their administration, and other considerations warrant it in doing so."
When China entered World War I on the Allied side in 1917, steps were immediately taken to cancel the extraterritorial privileges of Germany and Austria. At the Paris Peace Conference, the Chinese delegation set forth a program that called for the return of all foreign concessions, settlements, and leased territories; the gradual abolition of extraterritoriality; and complete tariff autonomy. But to their dismay and anger, Woodrow Wilson endorsed Japan's claims to Shantung, which had been obtained in 1914 by the expulsion of the Germans. Delegates at the Paris Conference refused to reconsider the Shantung question or China's arguments on the abolition of extraterritoriality. As a result, the Chinese declined to sign the Treaty of Versailles.
After World War I, extraterritoriality was viewed as a key symbol of foreign domination. At the Washington Conference in 1921–1922, the Chinese delegation again made a strong bid for recognition of its full sovereignty. But the United States, Britain, France, and Japan balked at agreeing to treaty revisions. Although the Nine-Power Treaty (1922) confirmed China's independence and its territorial and administrative integrity, the agreement upheld the existing privileges of the signatory powers in the country. China secured only the promise of a study on the question of extraterritoriality, and real tariff autonomy was postponed indefinitely.
Although the Western powers and Japan resisted the relinquishment of extraterritorial rights in China, stressing that significant treaty revisions had to await China's progress in legislation and adoption of adequate judicial reforms, the extraterritoriality system deteriorated during the interwar years. Meanwhile, the Bolshevik Revolution made itself felt in China, spurring the growth of nationalism and radicalism in the country. Affirming its desire to deal with China on the basis of equality, the Soviet Union renounced extraterritoriality, and in May 1924 a Sino-Soviet agreement officially relinquished Russia's privileges.
Although the Washington Conference adopted a resolution that provided for the establishment of a fact-finding commission to investigate extraterritoriality in China, the chaotic conditions in the country and a squabble between France and China over Boxer indemnity payments delayed the convening of the Commission on Extraterritoriality until January 1926. After almost a year of investigation and the assembling of a mass of detailed information on China's judicial system and practices of extraterritoriality, the members unanimously concluded that until more effective judicial reforms were carried out, the abolition of extraterritoriality was unwarranted.
In the meantime, the Nationalist revolution coalesced under Chiang Kai-shek's leadership, and by 1928 defeated the northern government. Pledged to end the extraterritoriality system, the Kuomintang (Nationalists) adopted a provisional constitution in October and immediately took steps to establish a new basis of relations with foreign powers. At the end of the year, China reached agreements with Belgium, Denmark, Italy, Portugal, and Spain that provided for tariff autonomy; accepted, in principle, the ending of extraterritoriality; and promised that rights would be relinquished when other states had done so.
In May 1929 the Kuomintang government announced that it intended to promulgate civil, criminal, and commercial laws to replace the extraterritoriality system. Three months later, it issued regulations that ended the provincial and local handling of diplomatic matters and prescribed new procedures for dealing with aliens. But the Nationalists did not unilaterally abrogate extraterritoriality. They expressed the hope, instead, that the system could be abolished by mutual consent by 1 January 1930. Since the United States and Britain insisted upon a gradual relinquishment of extraterritorial rights—and only if China gave evidence of improvements in its judicial system that ensured "effective enforcement of jurisprudence"—the Kuomintang declared its dissatisfaction with this response. On 28 December 1929, the Western powers were informed that beginning 1 January 1930, "all foreign nationals in the territory of China who are now enjoying extra-territorial privileges shall abide by the laws, ordinances, and regulations duly promulgated by the Central and Local Government of China." This mandate was qualified two days later, when China stated its intent was merely to abolish extraterritoriality in principle. With the understanding that 1 January would be regarded simply as the date from which the process of gradual abolition would be said to have commenced, Washington, London, and Tokyo agreed to further negotiations "within a reasonable time."
For almost a year and a half, the United States and Britain attempted to work out an acceptable agreement with China. By June 1931 the points in dispute were resolved, but London, Washington, and Tokyo left final agreement in abeyance, pending an examination of the treaty terms. When the Japanese invaded Manchuria on 8 September 1931, the treaties, not yet ratified, were suspended indefinitely. Efforts to resume negotiations and to arrive at final agreements on the abolition of extraterritorial rights were made in the mid-1930s, but the outbreak of the second Sino-Japanese War in July 1937 once again halted the discussions.
The issue of extraterritoriality was not further considered until World War II. After Japan's bombing of Pearl Harbor in December 1941 and America's entry into the conflict, the State Department decided that it would be advantageous to end extraterritoriality. On 11 January 1943, China simultaneously concluded with the United States at Washington, and with Britain at Chunking, the Treaty for the Relinquishment of Extraterritorial Rights in China and the Regulation of Related Matters. By these treaties, together with exchanges of notes, the United States and England surrendered not only their extraterritoriality rights but also their unilateral privileges in China that had previously been acquired by the "unequal treaties." American and British nationals would now be subject to the jurisdiction of the government of the Republic of China, in accordance with the principles of international law and practice. The long-standing grievances relating to extraterritoriality, concessions, settlements, legation quarters, and the right to station foreign warships in Chinese waters and foreign troops on Chinese soil were thus ended.
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