LEGAL STATUS OF KOREANS IN CHIENTAO

The region which goes by the name of Chientao, a j.a.panese denomination, comprises several districts in the Yenchi Circuit of Kirin Province north of the Tumen Kiang (or the Tiumen River) which here forms the boundary between China and Korea. For over thirty years Koreans have been allowed here to cultivate the waste lands and acquire ownership therein, a privilege which has not been permitted to any other foreigners in China and which has been granted to these Koreans on account of the peculiar local conditions. According to reliable sources, the Korean population now amounts to over 200,000 which is more than the Chinese population itself. In 1909 an Agreement, known as the Tumen Kiang Boundary Agreement, was arrived at between China and j.a.pan, who was then the acknowledged suzerain of Korea, dealing, inter alia, with the status of these Koreans. It was provided that while Koreans were to continue to enjoy protection of their landed property, they were to be subject to Chinese laws and to the jurisdiction of Chinese courts. The subsequent annexation of Korea did not affect this agreement in point of international law, and as a matter of practice j.a.pan has adhered to it until September, 1915. Then the j.a.panese Consul suddenly interfered in the administration of justice by the local authorities over the Koreans and claimed that he should have jurisdiction.

The j.a.panese claim is based on the Treaty Respecting South Manchuria and Eastern Inner Mongolia signed in May, 1915, article 5 of which provides that civil and criminal cases in which the defendants are j.a.panese shall be tried and adjudicated by the j.a.panese consul.

The Chinese view is that this article is inapplicable to Koreans in this region and that the Tumen Kiang Agreement continues in force. This view is based on a saving clause in article 8 of the Treaty of 1915 which says that "all existing treaties between China and j.a.pan relating to Manchuria shall, except where otherwise provided for by treaty, remain in force."

In the first place, the origin of the Tumen Kiang Agreement supports this view. When the j.a.panese a.s.sumed suzerainty over Korea they raised certain questions as to the boundary between China and Korea. There were also outstanding several questions regarding railways and mines between China and j.a.pan. j.a.pan insisted that the boundary question and the railway and mining questions be settled at the same time. As a result, two agreements were concluded in 1909 one respecting the boundary question, the Tumen Kiang Agreement, and the other respecting railways and mines whereby j.a.pan obtained many new and valuable privileges and concessions, such as the extension of the Kirin-Changchun Railway to the Korean frontier, the option on the Hsinminfu-Fak.u.men line, and the working of the Fushun and Yentai mines, while in return China obtained a bare recognition of existing rights, namely the boundary between China and Korea and the jurisdiction over the Koreans in the Yenchi region.

The two settlements were in the nature of quid pro quo though it is clear that the j.a.panese side of the scale heavily outweighed that of the Chinese. Now j.a.pan endeavours to repudiate, for no apparent reason so far as we can see, the agreement which formed the consideration whereby she obtained so many valuable concessions.

Secondly, while Koreans are now j.a.panese subjects, it is contended by the Chinese that the particular Koreans inhabiting the Yenchi region are, as regards China, in a different position from j.a.panese subjects elsewhere. These Koreans enjoy the rights of free residence and of cultivating and owning land in the interior of China, rights denied to other foreigners, including j.a.panese who, even by the new treaty, may only lease land in South Manchuria. For this exceptional privilege, they are subject to the jurisdiction of Chinese laws and Chinese courts, a duty not imposed on other foreigners. It would be "blowing hot and cold at the same time" in the language of English lawyers if it is sought to enjoy the special privileges without performing the duties.

Thirdly, j.a.panese under the Treaty of 1915 are required to register their pa.s.sports with the local authorities. On the other hand, Koreans in Yenchi have never been nor are they now required to procure pa.s.sports. This would seem to be conclusive proof that Koreans in that region are not within the provisions of the treaty of 1915 but are still governed by the Tumen Kiang Agreement.

The question is something more than one of academic or even merely judicial importance. As has been stated, the Koreans in Yenchi outnumber the Chinese and the only thing that has kept the region Chinese territory in fact as well as in name is the possession by the Chinese of jurisdiction over every inhabitant, whether Chinese or Korean. Were China to surrender that jurisdiction over a majority of those inhabitants, it would be tantamount to a cession of territory.

2 MACAO

The dispute between China and Portugal over the Macao question has been one of long standing. The first treaty of commerce signed between them on August 13, 1862, at Tientsin, was not ratified in consequence of a dispute respecting the Sovereignty of Macao. By a Protocol signed at Lisbon on March 26, 1887, China formally recognized the perpetual occupation and government of Macao and its dependencies by Portugal, as any other Portuguese possession; and in December of the same year, when the formal treaty was signed, provision was made for the appointment of a Commission to delimit the boundaries of Macao; "but as long as the delimitation of the boundaries is not concluded, everything in respect to them shall continue as at present without addition, diminution or alteration by either of the Parties."

In the beginning of 1908, a j.a.panese steamer, the _Tatsu Maru_, engaged in gun-running was captured by a Chinese customs cruiser near the Kauchau archipelago (Nove Ilhas). The Portuguese authorities demanded her release on the ground that she was seized in Portuguese territorial waters thus raising the question of the status of the waters surrounding Macao.

In the same year the Portuguese authorities of Macao attempted the imposition of land tax in Maliaoho, and proposed to dredge the waterways in the vicinity of Macao. The Chinese Government thereupon instructed its Minister in France, who was also accredited to Portugal, to make personal representations to the Portuguese Foreign Office in regard to the unwarrantable action of the local Portuguese authorities. The Portuguese Government requested the withdrawal of Chinese troops on the Island of Lappa as a quid pro quo for the appointment of a new Demarcation Commissioner, reserving to itself the right to refer to The Hague Tribunal any dispute that may arise between the Commissioners appointed by the respective Governments.

After protracted negotiations it was agreed between the Chinese Minister and the Portuguese Government by an exchange of notes that the respective Governments should each appoint a Demarcation Commissioner to delimit the boundaries of Macao and its dependencies in pursuance of the Lisbon Protocol and Article 2 of the Sino-Portuguese Treaty of 1887, subject to the decision of their respective Governments.

THE PORTUGUESE CLAIM

In February, 1909, Portugal appointed General Joaquim Machado and China Mr. Kao Erh-chien as their respective Commissioners and they met at Hongkong in June of the same year.

The Portuguese claim consisted of the whole of the Peninsula of Macao as far north as Portas do Cerco, the Island of Lappa, Green Island (Ilha Verde), Ilhas de Taipa, Ilha de Coloane, Ilha Macarira, Ilha da Tai-Vong-Cam, other small islands, and the waters of Porto Interior.

The Portuguese Commissioner also demanded that the portion of Chinese territory between Portas de Cerco and Peishanling be neutralized.

In the absence of evidence, doc.u.mentary or otherwise, China could not admit Portugal's t.i.tle to half the territory claimed, but was prepared to concede all that part of the Peninsula of Macao south of Portas do Cerco which was already beyond the limits of the original Portuguese Possession of Macao, and also to grant the developed parts of Ilhas de Coloane as Portuguese settlements. The ownership of territorial waters was to remain vested in China.

The negotiations having proved fruitless were transferred to Lisbon but on the outbreak of the Revolution in Portugal they were suspended. No material progress has been made since.

3 TIBET

In November, 1911, the Chinese garrison in Lha.s.sa, in sympathy with the revolutionary cause in China, mutinied against Amban Lien-yu, a Chinese Bannerman, and a few months later the Tibetans, by order of the Dalai Lama, revolted and besieged the Chinese forces in Lha.s.sa till they were starved out and eventually evacuated Tibet. Chinese troops in Kham were also ejected. An expedition was sent from Szechuan and Yunnan to Tibet, but Great Britain protested and caused its withdrawal.

In August, 1912, the British Minister in Peking presented a Memorandum to the Chinese Government outlining the att.i.tude of Great Britain towards the Tibetan question. China was asked to refrain from dispatching a military expedition into Tibet, as the re-establishment of Chinese authority would, it is stated, const.i.tute a violation of the Anglo-Chinese Treaty of 1906. Chinese suzerainty in regard to Tibet was recognized. But Great Britain could not consent to the a.s.sertion of Chinese sovereignty over a State enjoying independent treaty relations with her. In conclusion, China was invited to come to an agreement regarding Tibet on the lines indicated in the Memorandum, such agreement to be antecedent to Great Britain's recognition of the Republic. Great Britain also imposed an embargo on the communications between China and Tibet via India.

In deference to the wishes of the British Government, China at once issued orders that the expeditionary force should not proceed beyond Giamda. In her reply she declared that the Chinese Government had no intention of converting Tibet into another province of China and that the preservation of the traditional system of Tibetan government was as much the desire of China as of Great Britain. The dispatch of troops into Tibet was, however, necessary for the fulfilment of the responsibilities attaching to China's treaty obligations with Great Britain, which required her to preserve peace and order throughout that vast territory, but she did not contemplate the idea of stationing an unlimited number of soldiers in Tibet. China considered that the existing treaties defined the status of Tibet with sufficient clearness, and therefore there was no need to negotiate a new treaty. She expressed the regret that the Indian Government had placed an embargo on the communications between China and Tibet via India, as China was at peace with Great Britain and regretted that Great Britain should threaten to withhold recognition of the Republic, such recognition being of mutual advantage to both countries. Finally, the Chinese Government hoped that the British Government would reconsider its att.i.tude.

THE SIMLA CONFERENCE

In May, 1913, the British Minister renewed his suggestion of the previous year that China should come to an agreement on the Tibetan question, and ultimately a Tripart.i.te Conference was opened on October 13, at Simla with Mr. Ivan Chen, Sir Henry McMahon, and Lonchen Shatra as plenipotentiaries representing China, Great Britain, and Tibet, respectively.

The following is the substance of the Tibetan proposals:--

1. Tibet shall be an independent State, repudiating the Anglo-Chinese Convention of 1906.

2. The boundary of Tibet in regard to China includes that portion of Sinkiang south of Kuenlun Range and Altyn Tagh, the whole territory of Chinghai, the western portion of Kansuh and Szechuan, including Tachienlu and the northwestern portion of Yunnan, including Atuntzu.

3. Great Britain and Tibet to negotiate, independent of China, new trade regulations.

4. No Chinese officials and troops to be stationed in Tibet.

5. China to recognize Dalai Lama as the head of the Buddhist Religion and inst.i.tutions in Mongolia and China.

6. China to compensate Tibet for forcible exactions of money or property taken from the Tibetan Government.

The Chinese Plenipotentiary made the following counter-proposals:--

1. Tibet forms an integral part of Chinese territory and Chinese rights of every description which have existed in consequence of this integrity shall be respected by Tibet and recognized by Great Britain. China engages not to convert Tibet into a province and Great Britain not to annex Tibet or any portion of it.

2. China to appoint a Resident at Lha.s.sa with an escort of 2,600 soldiers.

3. Tibet undertakes to be guided by China in her foreign and military affairs and not to enter into negotiations with any foreign Power except through the intermediary of China but this engagement does not exclude direct relations between British Trade Agents and Tibetan authorities as provided in the Anglo-Chinese Convention of 1906.

4. Tibet to grant amnesty to those Tibetans known for their pro-Chinese inclinations and to restore to them their property.

5. Clause 5 of Tibetan claims can be discussed.

6. Revision of Trade Regulations of 1893 and 1908, if found necessary, must be made by all the parties concerned.

7. In regard to the limits of Tibet China claims Giamda and all the places east of it.

THE BOUNDARY DEADLOCK

The British plenipotentiary sustained in the main the Tibetan view concerning the limits of Tibet. He suggested the creation of Inner and Outer Tibet by a line drawn along the Kuenlun Range to the 96th longitude, turning south reaching a point south of the 34th lat.i.tude, then in south-easterly direction to Niarong, pa.s.sing Hokow, Litang, Batang in a western and then southern and southwestern direction to Rima, thus involving the inclusion of Chiamdo in Outer Tibet and the withdrawal of the Chinese garrison stationed there. He proposed that recognition should be accorded to the autonomy of Outer Tibet whilst admitting the right of the Chinese to re-establish such a measure of control in Inner Tibet as would restore and safeguard their historic position there, without in any way infringing the integrity of Tibet as a geographical and political ent.i.ty. Sir Henry McMahon also submitted to the Conference a draft proposal of the Convention to the plenipotentiaries. After some modification this draft was initialled by the British and Tibetan delegates but the Chinese delegate did not consider himself authorized to do so. Thereupon the British member after making slight concessions in regard to representation in the Chinese Parliament and the boundary in the neighbourhood of Lake Kokonor threatened, in the event of his persisting in his refusal, to eliminate the clause recognizing the suzerainty of China, and ipso facto the privileges appertaining thereto from the draft Convention already initialled by the British and Tibetan plenipotentiaries. In order to save the situation, the Chinese delegate initialled the doc.u.ments, but on the clear understanding that to initial and to sign were two different things and that to sign he must obtain instructions from his Government.

China, dissatisfied with the suggested division into an Inner and Outer Tibet the boundaries of which would involve the evacuation of those districts actually in Chinese effective occupation and under its administration, though otherwise in accord with the general principles of the draft Convention, declared that the initialled draft was in no way binding upon her and took up the matter with the British Government in London and with its representative in Peking. Protracted negotiations took place thereafter, but, in spite of repeated concessions from the Chinese side in regard to the boundary question, the British Government would not negotiate on any basis other than the initialled convention.

On July 3 an Agreement based on the terms of the draft Convention but providing special safe-guards for the interests of Great Britain and Tibet in the event of China continuing to withhold her adherence, was signed between Great Britain and Tibet, not, however, before Mr. Ivan Chen had declared that the Chinese Government would recognize any treaty or similar doc.u.ment that might then or thereafter be signed between Great Britain and Tibet.

CHINA'S STANDPOINT

With the same spirit of compromise and a readiness to meet the wishes of the British Government and even to the extent of making considerable sacrifices in so far as they were compatible with her dignity, China has more than once offered to renew negotiations with the British Government but the latter has up to the present declined to do so. China wants nothing more than the re-establishment of Chinese suzerainty over Tibet, with recognition of the autonomy of the territory immediately under the control of the Lha.s.sa Government; she is agreeable to the British idea of forming an effective buffer territory in so far as it is consistent with equity and justice; she is anxious that her trade interest should be looked after by her trade agents as do the British, a point which is agreeable even to the Tibetans, though apparently not to the British; in other words, she expects that Great Britain would at least make with her an arrangement regarding Tibet which should not be any less disadvantageous to her than that made with Russia respecting Outer Mongolia.

Considering that China has claimed and exercised sovereign rights over Tibet, commanded the Tibetan army, supervised Tibetan internal administration, and confirmed the appointments of Tibetan officials, high and low, secular and even ecclesiastical, such expectations are modest enough, surely. At the present moment, with communication via India closed, with no official representative or agent present, with relations unsettled and unregulated, the position of China _vis-a-vis_ Tibet is far from satisfactory and altogether anomalous, while as between China and Great Britain there is always this important question outstanding. An early settlement in a reciprocal spirit of give and take and giving reasonable satisfaction to the legitimate aspirations and claims of all parties is extremely desirable.

4 OUTER MONGOLIA

The world is more or less acquainted with the events in Urga in December, 1911, and the proclamation of independence of Outer Mongolia with Jetsun Dampa Hutukhtu as its ruler. By the Russo-Chinese Declaration of November 5, 1913, and the Tripart.i.te Convention of Kiakhta of 1914 China has re-established her suzerainty over Outer Mongolia and obtained the acknowledgment that it forms a part of the Chinese territory. There remains the demarcation of boundary between Inner and Outer Mongolia which will take place shortly, and the outstanding question of the status of Tannu Uriankhai where Russia is lately reported to be subjecting the inhabitants to Russian jurisdiction and expelling Chinese traders.

The Tannu Uriankhai lands, according to the Imperial Inst.i.tutes of the Tsing Dynasty, were under the control of the Tartar General of Uliasutai, the Sain Noin Aimak, the Jasaktu Khan Aimak and the Jetsun Dampa Hutkhta, and divided into forty-eight somons (tsoling).

Geographically, according to the same authority, Tannu Uriankhai is bounded on the north by Russia, east by Tushetu Khan Aimak, west by the various aimaks of Kobdo, and south by Jasaktu Khan Aimak. By a Joint Demarcation Commission in 1868 the Russo Chinese boundary in respect to Uriankhai was demitted and eight wooden boundary posts were erected to mark their respective frontiers.