Sino-British Treaty for the Relinquishment of Extra-Territorial Rights in China

China – the cake of Kings and Emperors cartoon showing Britain, Germany, Russia, France and Japan dividing China

Since the Treaty of Nanjing, concluded in 1842, the British government enjoyed extra-territorial rights in China, which included mainly commercial rights for British companies and extra-territorial rights for British nationals in China.[4] British subjects could only be prosecuted for crimes or have civil cases brought against them before British Consular courts or the British Supreme Court for China and Japan.

The need to modify the conditions of extra-territorial rights in China arose from the dire situation of Chinese-British-U.S. military cooperation following the Japanese invasion of China in 1937 and later during the Second World War. On 18 July 1940, British Prime Minister Winston Churchill declared in Parliament his government's intention of relinquishing extra-territorial rights in China once peace was concluded.[5] The issue was raised again following the outbreak of war in the Pacific in December 1941, and at this point the British position was greatly influenced by the U.S. position. Already in March 1942, agreement was reached among State Department officials regarding the need to modify existing agreements with the Chinese government in the latter's favour in order to improve relations.[6] On 25 April 1942, the British government sounded its positions on the matter in a memorandum to the U.S. government, in which it agreed to abolish extra-territorial jurisdiction in principle, but suggested to postpone negotiations to that effect until the end of the war.[7] On 6 May 1942, the U.S. government responded to the British memorandum that it was not desirable to abrogate extra-territoriality in China at the moment, but that it would consider doing so in case approached about it by the Chinese government.[8] On 27 August 1942, U.S. Secretary of State Cordell Hull suggested that in case negotiations for relinquishing extra-territoriality commence, the following provisions should be included in the treaty:

• Abrogation of the Boxer Protocol of 1901 and of the international settlement in Shanghai.
• Settling legal issues resulting from the termination of the diplomatic quarter in Beijing.
• New legal arrangements to be entered in order to allow the retention of some foreign landed property in China under the new policy.
• Granting similar rights to Chinese nationals in the U.S. as U.S. nationals in China.
• Reciprocity in consular representation for the U.S. and China.
• Negotiations for comprehensive new treaties on commerce to start 6 months following the termination of the war.
• Settlement of all disputes on the rights of Americans in China according to norms of international law.

The British government was not receptive at first to Hull's proposals, but the U.S. government began pressing London to start negotiations with Chongqing right away, fearing lest waiting until the war's end will strengthen Chinese public pressures to adopt stiffer positions vis-a-vis the U.S. and British governments. On 3 October 1942, the U.S. government submitted to the British government a draft U.S.-Chinese treaty based on Hull's proposal of 27 August.

First indication for Chinese aspirations to abolish extra-territoriality came around August 1942, in a conversation between Wang Beng-shen, advisor to Chiang Kai-shek on Japanese affairs, and member of the British embassy in Chongqing. The Chinese adviser stated that the Chinese government desired to abolish extra-territorial rights in Shanghai, and was willing to grant some special status to British companies in that city.[9]

As a result of U.S. pressure, the British government agreed in early October 1942 to enter into negotiations with the Chinese government regarding the abrogation of extra-territoriality, and on 9 October the U.S. and British governments officially notified the Chinese government of their initiative to that effect.

Negotiations eventually led to the conclusion of two similar treaties in January 1943 between China and the U.K. and U.S. respectively for the relinquishment of extra-territorial rights in China.

The wording of the treaty was similar to the proposal made by Hull on 27 August 1942, as it remained brief in order to allow for more detailed agreement once the war was over.

• Article 1 stipulated the treaty shall apply to all territories of the British Empire and the Republic of China.
• Article 2 abrogated all international agreements which granted extra-territorial rights in China to any British nationals and companies.
• Article 3 specifically abrogated the Boxer protocol of September 7, 1901 and promised in the future to restore to the Chinese government the control over the Legations Quarter in Beijing (this provision was mainly symbolic, since Beijing was at the time under Japanese occupation).
• Article 4 terminated all British extra-territorial jurisdiction in Shanghai, Tianjin and other main cities (most of which were under Japanese occupation at the time).
• Article 5 permitted the operation of British companies in China, as long as they obeyed Chinese law.
• Article 6 bound the British and Chinese governments to reciprocity in their commercial relations.
• Article 7 regulated the work of diplomatic agents in each country.
• Article 8 provided for negotiations for new treaties of commerce, to begin six months following the conclusion of the war being waged.
• Article 9 provided for ratification of the treaty.

Chiang Kai-Shek attempted to put the issue of Hong Kong onto the two parties' agenda, suggesting that the Kowloon concession should be returned to the Republic of China along with the other foreign concessions. This was fiercely rejected by the United Kingdom's prime minister at the time, Winston Churchill. The United Kingdom also demanded that the Republic of China give their written consent that the Kowloon concession was not included within the unequal treaties, or else they would refuse to sign, so the Republic of China was forced to drop the concession of Kowloon from the agenda. The two sides signed the treaty, with the Republic of China writing a formal letter to the United Kingdom and securing the right to raise the issue of Hong Kong on a later occasion.[10]

• Text of the treaty (PDF)