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the codes of any of the interested foreign Powers, subject a guilty person to the imposition of a grave penalty. If jurisdiction is to be ultimately relinquished to Chinese courts where aliens are charged with the commission of heinous offenses, ample provision for appeals by the simplest processes and to the Supreme Court of the Republic should obviously safeguard the rights of accused persons, especially if they are deprived of recourse to the judicial as distinct from political aid of their own countries.4 In its exercise of duties of jurisdiction a state may find that certain of its tribunals and processes which amply suffice in the administration of justice with respect to nationals are wholly inadequate when an alien is a party to the litigation, and especially if he be the victim of local prejudice. The United States has had such an experience. In cases, for example, arising from mob violence directed against resident aliens, it has been found impossible to convict offenders in the State courts.5 Both the Constitution of the United States and certain acts of Congress have given heed to the general problem, by conferring upon aliens the right under some circumstances to invoke the aid of the Federal Courts.6 Such action is not designed to afford the alien more favorable treatment than is accorded the national, but rather to place within reach of the former by a different process, an equal opportunity to secure such a degree of justice as should be available to every resident who invokes the aid of the courts. This principle is to be reckoned with in any project purporting to clothe Chinese courts with jurisdiction over aliens. It may be found that there exist, or are capable of establishment, certain Chinese tribunals which, by reason of their composition or grade or organization or personnel are peculiarly fitted for the task of adjudication, and, like the Federal courts of the United States, able to afford a solid means of protecting the rights of alien litigants. Such tribunals should be utilized accordingly, regardless of
« According to Prof. Willoughby: '' The most promising mode by which the Chinese could be aided in bringing about a situation under which it would be expedient to abolish extraterritoriality would be for the Powers to permit the Chinese, as a first step, to establish courts for the trial of cases in which foreigners are parties either as defendants or plaintiffs, that would be truly 'mixed' in character; that is, tribunals presided over by two or more judges of whom one at least should be a foreigner learned in the law and experienced in its administration. These courts would be Chinese courts, and the judges Chinese officials, the judges who are foreigners, however, to be appointed upon the nomination of, or at least, with the approval of, the foreign offices of the Treaty Powers." (W. W. Willoughby, Foreign Bights and Interests in China, Baltimore, 1920, 79-80.)
BIn at least two instances, however, damages have been collected by dependents against a county or municipality rendered liable in such cases by local statute, through an action maintained in the Federal Court.
«See Constitution, Art. Ill, Section 2; see also paragraph 17 of Federal Judicial Code, 36 Stat. 1093, clothing the District Courts of the United States with original jurisdiction "of all suits brought by any alien for a tort only, in violation of the laws of nations or of a treaty of the United States."
local practices or laws withholding from them jurisdiction in matters pertaining solely to nationals of China.
A further consideration must not go unheeded. It might prove disastrous to yield irrevocably privileges of jurisdiction, in spite of judicial reforms or geographical limitations or skilfully devised restrictions and distinctions pertaining to criminal matters, until at least after the lapse of an experimental period. The success of Chinese judges in administering justice in matters concerning solely Chinese litigants or Chinese persons charged with crime under the most approved system devised to safeguard the rights of such individuals would hardly suffice as a test. There would seem to be required opportunity for Chinese tribunals under a new regime to adjudicate with reference to aliens under conditions such that in the event of an abuse of power, cases might be removed by a process of requisition to the judicial authorities of their own State. The recent convention with Siam offers an interesting precedent. It will be recalled that it is there provided that pending a certain interval of time following the promulgation and operation of certain specified laws and decrees, the diplomatic or consular representative of the United States may requisition causes pertaining to American citizens pending in the lower Siamese courts. This principle may be well applied and extended in the case of China. The Commission may, for example, wisely conclude that during a specified interval of time the appropriate foreign authority may requisition cases pending in the Chinese courts, and even in communities where there is reason to believe that the relinquishment of jurisdiction is most safely yielded. During such an experimental period it may be fairly presumed and possibly provided in terms, that normally cases should be left in Chinese hands, and that no requisitions should be made on frivolous grounds or at the caprice of a foreign official. Moreover, it may even be provided that where a case is requisitioned the appropriate Chinese code rather than that of the foreign State should be applied by its judicial representative. The principle needs emphasis in any formal plan for ultimate adoption that the experimental period is designed not merely to safeguard foreign rights, but equally with a view to ascertain the essential fitness of Chinese tribunals to exercise jurisdiction over foreigners.
The western world is far from disposed to thwart the aspirations of China. The Kesolution of the Conference reflects the general sentiment. Chinese statesmen may, however, serve well their own country by perceiving that the shortest path to the attainment of jurisdictional independence is likely to involve the early and complete satisfaction of a series of elementary and progressive tests to be laid down by friendly foreign Powers.
Charles Cheney Hyde.
On October 12, 1921, the Council of the League of Nations unanimously adopted a recommendation fixing the boundary line between Germany and Poland in Upper Silesia as follows:
The frontier-line would follow the Oder from the point where that river enters Upper Silesia as far as Niebotschau; it would then run towards the northeast, leaving in Polish territory the communes of Hohenbirken, Wilhelmsthal, Raschutz, Adamowitz, Bogunitz, Lissek, Summin, Zwonowitz, Chwallenczitz, Ochojetz, Wilcza (upper and lower), Kriewald, Knurow, Gieraltowitz, Preiswitz, Makoschau, Kunzendorf, Paulsdorf, Kuda, Orzegow, Schlesiengrube, Hohenlinde; and leaving in German territory the communes of Ostrog, Markowitz, Babitz, Gurek, Stodoll, Niederdorf, Pilchowitz, Nieborowitzer Hammer, Nieborowitz, Schbnwald, Ellguth, Zabrze, Sosnica, Mathesdorf, Zaborze, Biskupitz, Bobrek, Schomberg; thence it would pass between Bossberg (which falls to Germany) and Birkenhain (which falls to Poland) and would take a northwesterly direction, leaving in German territory the communes of Karf, Miechowitz, Stollarzowitz, Friedrichswille, Ptakowitz, Larischhof, Miedar, Hanusek, NeudorfTworog, Kottenlust, Potemba, Keltsch, Zawadski, Pluder-Petershof, Klein-Lagiewnik, Skrzidlowitz, Gwosdzian, Dzielna, Cziasnau, Sorowski, and leaving in Polish territory the communes of Scharley, Badzionkau, Trockenberg, Neu-Repten, Alt-Repten, AltTarnowitz, Rybna, Piassetzna, Boruschowitz, Mikoleska, Drathhammer, Bruschiek, Wiistenhammer, Kokottek, Koschmieder, Pawonkau, Spiegelhof (Gutsbezirk), Gross Lagiewnik, Glinitz, Kochschutz, Lissau.
To the North of the last place, it would coincide with the former frontier of the German Empire as far as the point where the latter frontier joins the frontier already fixed between Germany and Poland.1
Although in the form of a recommendation, the action of the Council had the effect of a final decision, as each of the governments represented in the Supreme Council of the Allied Powers, by which body the question had been submitted to the Council two months earlier, had "formally undertaken to accept the solution recommended by the Council of the League.',J
The history of this difficult and important decision relates back to the Treaty of Versailles and the efforts of the framers of that settlement to apply President Wilson's principles. Under the original conditions of peace handed to the German peace delegation on May 7, 1919, Upper Silesia was to be ceded to Poland, but as the result of the German protest against the proposed cession, it was decided to modify this portion of the peace terms so as to provide for a plebiscite. In communicating this modification to Germany the Allied Powers solemnly declared that it is not true that Poland "possessess no rights capable of being maintained in accordance with the principles of President Wilson" and that they "would have
■Minutes of the extraordinary session of the Council of the League of Nations, Aug. 29-Oct. 12, 1921, p. 19.
zNote transmitted by M. Briand to Viscount Ishii, August 24, 1921, Minutes, ibid., p. 15.
entirely violated the principles which the German Government itself claims to accept, if they had not taken Polish rights over this district into account." Since, however, the German Government maintained "that separation from Germany is not in accordance with the wishes or interests of the population, the Allied and Associated Powers are disposed to leave the question to be determined by those whom it particularly concerns."3
The final terms of the Treaty of Peace were amended accordingly. Germany renounced in favor of Poland "all rights and title over the portion of Upper Silesia lying beyond the frontier line fixed by the Principal Allied and Associated Powers as the result of the plebiscite" (Art. 88, Treaty of Versailles). German troops and officials were required to evacuate the territory within fifteen days, and it was placed immediately under the authority of an international commission designated by the Allied and Associated Powers and occupied by their troops (Annex to Art. 88). The international commission was charged with the duty of insuring the freedom, fairness and secrecy of the vote, the result of which "will be determined by communes according to the majority of votes in each commune." Section 5 of the annex provides for the fixing of the boundary line as follows:
On the conclusion of the voting, the number of votes cast in each commune will be communicated by the Commission to the Principal Allied and Associated Powers, with a full report as to the taking of the vote and a recommendation as to the line which ought to be adopted as the frontier of Germany in Upper Silesia. In this recommendation regard will be paid to the wishes of the inhabitants as shown by the vote, and to the geographical and economic conditions of the locality.
The plebiscite took place on March 20, 1921, and the results were proclaimed on April 24; but the international commission failed to agree upon and therefore did not recommend a frontier line. The results of the plebiscite are thus summarized in a report of Viscount Ishii to the Council of the League of Nations:
The results of the plebiscite in Upper Silesia were unfortunately not of a nature to allow the frontier line to be drawn according to the wishes of the population, nor did the economic and geographical conditions of the localities give any decisive indications to show how a line should be determined. Indeed, the fact that the two considerations had to be taken into account only complicated the situation.
The plebiscite showed that, taking Upper Silesia as a whole, in certain districts toward the North and West, where the agricultural population is predominant, a great majority of the communes voted for Germany. In other districts, towards the South, where the inhabitants are chiefly of the agricultural and mining classes, the vote of the population was largely in favour of Poland. In an extensive territory in the Centre and East, the voting was of a very confused character. Here are to be found the metallurgical and chemical works and important deposits of coal, zinc and iron. The majority of the communes voted for Poland. Although in the big towns large major
sReply to the observations of the German delegation, Minutes, ibid., p. 13.
ities were recorded for Germany, these towns are encircled by the Polish voting communes. It is to be noted that, although in a sense they form a network of their own, they are partly dependent for essential raw materials on outside districts. They are situated near the extreme Eastern limit of Upper Silesia, geographically distant from the bulk of the German voting communes, though the districts which separate them from these communes are not thickly populated.4
The report of the international commission was submitted to the Supreme Council, which appointed a committee of experts to undertake further investigations, but this committee was likewise unable to agree upon a frontier line. Its report is thus summarized by M. Briand in his note to Viscount Ishii above referred to:
The Committee reached entire agreement as to the legal interpretation of the Treaty; it was therefore led to reject the solution which favoured the handing over of the territory in its entirety and which considered the results of the vote as a whole. It also gave general indications as to the degree of importance to be assigned to the geographical and economic conditions referred to in the Treaty. On the other hand, it did not succeed in reaching an agreement on a frontier line. In particular difference of opinion was revealed as to the right method of denning and describing the industrial and mining area of Upper Silesia, one delegation isolating in this area an "indivisible triangle" which could be separated from the southern part of the area, and which contained a German majority, another maintaining that the mining and industrial basin formed a single unit and that it was not possible to imagine the separate existence of the "industrial triangle."5
The Supreme Council, after fruitless efforts to settle the question by negotiation among its members on Aug. 12, 1921, invited the Council of the League of Nations to recommend the line which the Principal Allied and Associated Powers should lay down. The difficulty was submitted to the League in pursuance of Article 11, paragraph 2 of the Covenant, which declares it "to be the friendly right of each Member of the League to bring to the attention of the Assembly or of the Council any circumstance whatever affecting international relations which threatens to disturb international peace or the good understanding between nations upon which peace depends."
The Council accepted the invitation and, as above stated, on October 12, 1921, unanimously recommended the frontier line. The recommendation recited that the Council has made the weighty problem the subject of
♦Minutes, ibid., p. 9.
According to figures published in Commerce Reports, issued by the Bureau of Foreign and Domestic Commerce, Washington, D. C, Nov. 28, 1921, pp. 795 et seq., in the whole plebiscite area 59.C per cent, of the votes were cast for Germany and 40.4 per cent. for Poland. In the districts of the west and north five-sixths of the votes were for Germany; in the southern districts 70 per cent, of the votes were for Poland, while in the central and eastern area the vote was almost evenly divided, about 52 per cent. falling to Germany and 48 per cent. to Poland.
5Minutes, ibid., p. 15.