Consular jurisdiction in Japan

The consular jurisdiction in Japan protected from 1856 until shortly after 1900, the most living there foreigners from thirteen contracting nations before accessing the Japanese judiciary, had until this achieved through reforms reasonable for Western understanding standard.

The western theory of international law in the 19th century was based on the assumption that a Christian, and thus per se “civilized” white man would not leave his home area if he went to non-Christian and thus “uncivilized” areas. This resulted in a legal unequal treatment between colonial rulers and natives in the colonies. For the few independent, non-Christian states such as the Ottoman Empire or Siam , protection rights arose, which were contractually enforced (e.g. surrender of the Ottoman Empire ), and in the case of less powerful princes also by gunboat diplomacy . In contrast, consular jurisdictions in Japan were contractually based in all cases.

Contractual bases

Various conventions regulated Japan's (trade) relations with the outside world and with extraterritoriality . The Americans, forcing the end of the 250-year closure , reached the Kanagawa Treaty (March 31, 1854). This was followed by the Anglo-Japanese friendship treaty of October 4, 1854, and the Shimoda treaty with Russia (February 7, 1855). These early agreements, which included most-favored nation clauses, restricted Japanese sovereignty over foreign citizens.

However, it was not until the treaty with the Netherlands of January 30, 1856, amended on October 16, 1857, that expressis verbis stipulated that their citizens, if they break Japanese law, should be brought before a Dutch court. Something similar can be found in the revised Harris Treaty (July 29, 1858) with the USA, which also served as a template for a revision of the agreement with Russia (August 7, 1858), and in the treaty with France of October 9, 1858 .

On the basis of the most-favored nation treatment, corresponding regulations, namely that civil and criminal complaints from the Japanese were to be negotiated by or in front of the respective consul, were included in the subsequent contracts. Such contracts were concluded with Portugal (August 3, 1860), Belgium (August 1, 1866), Italy (August 25, 1866), Denmark (January 12, 1867), Sweden-Norway (November 11, 1868), Spain (August 12, 1866). November 1868) and China (1871), here with mutual consular jurisdiction.

The Prussian-Japanese friendship, trade and shipping treaty of January 24, 1861, expressly restricted civil matters to complaints brought against Prussia by the Japanese. A damaged Prussian had to go to the Japanese judge. The agreement with Switzerland on February 6, 1864 was identical.

Japan committed itself by a cabinet resolution of February 3, 1868 ( Japanese慶 応 4/1/10) to adhere to recognized international law practices.

The contract with the North German Confederation on February 20, 1869 (and the identical wording with Austria-Hungary on October 18, 1869) contained the most comprehensive regulation on consular jurisdiction. This became the general standard as a result of most-favored nation treatment.

Abolition of consular jurisdiction

The treaty with Mexico in 1888 was the first in which Japan was an equal, “civilized” partner. From the beginning, Mexican citizens in Japan were subject to Japanese jurisdiction only.

All of the aforementioned agreements had stipulated dates for possible renegotiation. Japan negotiated the abolition of consular jurisdiction beginning in July 1899 through amended treaties with Great Britain on July 16, 1894, the USA on November 22, 1894, Italy on December 1, 1894, Russia on June 8, 1895 and the German Empire on April 4, 1896 , followed soon after by France and in the same year Switzerland. Portugal had not had a consul in the country since 1892, which is why an Imperial Japanese decree on July 14, 1892 repealed its consular jurisdiction. Belgium remained steadfast the longest and did not renounce its consular jurisdiction until 1911.

The approval of the great powers made it easier to introduce a modern western legal system. On April 27, 1896, a civil code ( 民法 , Minpō ) was announced, which almost completely adopted the draft of a civil code for the German Empire from 1887. The first criminal law reform based on the French model was carried out in 1880, and there was a new penal code in 1907.

The Shimonoseki Treaty, concluded after the victory over China in 1895, was an unequal treaty in favor of Japan. The Chinese consular courts have been repealed. Japan's foreign policy has been aimed at equality with the imperialist great powers since the 1890s. The intervention of Shimonoseki , however, showed the Japanese painful to their limits. It was only after the victory over Russia in 1905 that there was increased pressure to have the remaining extraterritorial rights abolished.

Responsibilities

The aforementioned regulation of 1869, which has become standard, provided that:

• Civil law suits by Japanese against a foreigner are to be brought before his consul and only that person may pass judgment.
• Japanese authorities are not allowed to interfere in disputes between foreigners.
• Foreigners who are accused of a criminal offense are to be brought before their consul, who will judge according to domestic criminal law.
• Foreigners who wanted to take civil action against Japanese people must do so before Japanese authorities under their law.
• Japanese people who have harmed a foreigner through a crime go to a Japanese court.

The great powers defined extensively who was a privileged “fellow patron”. For Great Britain it was all subjects of the Empire, including “protected persons,” as it was e.g. B. were the Arab residents of the Persian Gulf Residency . France claimed for itself all Catholic priests and monks, subjects of friendly states who had no consul in the country, and all of the Japanese employed by them.

Certain ambiguities arose when the foreigners involved were citizens of different states or of non-contracting states (e.g. Latin Americans or Ottomans) or with seafarers who had been hired on merchant ships from another contracting nation.

organization

The consular courts were constituted according to the regulations of their home countries, which, however, could provide for deviations from the court system in the country of origin. For example, a German consul did not necessarily have to be “qualified to be a judge” - however, all German professional consuls of the imperial era were lawyers with at least a first state examination. In criminal matters, the consuls were often police, public prosecutor and magistrate all rolled into one.

Practically all contracting states had a consulate in the most important export port of Yokohama , and in many cases also in the rapidly growing Kobe (or Hyōgo), which is mainly used for imports , and where a German professional consul had been in office since April 1, 1874.

Grande ordonnance de la marine

Almost all countries followed the French model in their court organization, which for consular courts has its origins in the Grande ordonnance de la marine of July 31, 1681:

1st instance: Consul with two assessors who are elected from among the citizens resident in the consular district. The American consul only took assessors when the amount in dispute exceeded $ 500, his Swiss colleague from 800 fr.

In criminal cases, a consul judged violations alone (for Americans e.g. up to 60 days in prison), in the case of offenses the assessors acted as lay judges, the consul judged crimes as examining magistrate, the court is only the prosecution, the higher instance makes a judgment.

2nd instance: A specific higher court, also responsible for appeals.
For the French this was z. B. in Saigon, for Portuguese in Goa, for Americans the District Court of California. For Prussia, the 2nd instance was the tribunal in Stettin, and then possibly the higher tribunal in Berlin ; after 1879 only the imperial court . The Russians used a legation court in Tokyo headed by the oldest legation secretary and appointed by the respected local Russian as an assessor. In the absence of a local public prosecutor, the Germans had to send the accused and files to the German Reich for serious crimes . In Swiss practice there was only one appeal, in 1893, as a result of which the Federal Council decided that it was the competent authority.

According to the contract, fines for violations of commercial or customs law always went to the Japanese treasury.

Cooperation between consulates was regulated by agreements, especially in smaller ports. Thus, the 1898-1902 as German Consul General in was Nagasaki incumbent George Coates (1853-1924) responsible for Italians and citizens of Sweden-Norway, which made him more work than about 30 Germans in the town.

British Court for Japan

The British organized their overseas courts according to the provisions of the Consular Act of 1843 and 1890 respectively. As early as 1859 they established a special career, the British Japan Consular Service .

A provincial court with the local consul as chairman and 2-3 assessors - British people who live in the district - acted as the initial instance. Since 1879 there was a special British Court for Japan in Yokohama. Here the judge, a qualified lawyer with at least seven years of experience as a barrister, ruled with five jurors. The British consul in Yokohama was ex officio assistant judge . The appeal or revision instance was the British Supreme Court for China in the international branch of Shanghai (as early as 1871–78 a judge was permanently appointed from there).

The judges in Yokohama were:

• Richard Temple Rennie 1879-81
• Nicholas John Hannen 1881–91
• Robert Anderson Mowat 1891-97
• Hiram Shaw Wilkinson 1877–78 as “Acting Law Secretary”, as judge from 1897 until abolished in 1900

literature

Wikisource: German legal texts on consular jurisdiction  - sources and full texts

• Barduzzi, Carlo Enrico; La giurisdizione consolare nelle terre islamiche, nell'Estremo Oriente, negli stati vassalli, nei protettorati; con un'appendice sugli ordinamenti giudiziari coloniali; Torino 1909
• Brücklmeier, Eduard ; The historical development of consular jurisdiction and its legal structure for Germany after the World War; Leipzig 1927 (Mäser) (= also dissertation, University of Würzburg, 1927)
• Fuess, Harald ; German consular jurisdiction in Japan and Korea, 1861–1913;
• Fukushima Sayoko; Consular Courts and Japan during the Early Meiji Era; Vol. 23 (1980), No. 2, pp. 99-106; DOI: 10.5356 / jorient.23.2_99 (Jap.)
• Hinckley, Frank Erastus; American consular jurisdiction in the Orient; Washington 1906
• Hornby, Edmund [1825-1896]; Instructions to Her Majesty's consular officers in China and Japan, on the mode of conducting judicial business: with comments on the China and Japan order in council, 1865, and the rules of procedure framed under it; Shanghai 1885 (Kelly & Walsh); [ark: / 13960 / t9f487n23 Scan]
• Katō Hideaki; Ryōji saiban no kenkyū - Nihon ni okeru; Hōsei Ronshū, Vol. 84 (1980), pp. 301-361 ["Research on consular jurisdiction in Japan"]
• Lehr, Ernest [1835-1919]; Nouvelle organization judiciaire du Japon et ses traités avec l'Angleterre et les États-Unis tendant à la suppression de la juridiction consulaire; Extrait de la Revue de droit international et de législation comparée, 1895, t. XXVII
• Marchand, Marcel Gustav; Consular jurisdiction with special consideration of the Swiss consular jurisdiction in China; Bern 1947 [diss.]
• Malfatti di Monte Tretto, Josef Frh. V .; Handbook of the Austro-Hungarian Consular System; ²1904
• Мартенс, Федор Федорович [1845–1909]; О консулахъ и консульской юрисдикціи на Востокѣ [ O Konsulakh i Konsulʹskoĭ i︠u︡risdikt︠s︡īi na Vostoki︠e︡ ]; St. Petersburg 1873
• Roijen, Jan Herman van; Consulaire jurisdictie in Japan; Groningen 1895 (Scholtens & Zoon)
• Scidmore, GH; Digest of leading cases decided in the United States Consular Court at Kanagawa, Japan, of decisions and opinions of the United States Minister in Japan, of decisions of the United States Circuit Court for the District of California, of opinions of the Attorney General of the United States, and of instructions from the Department of State of the United States, relating to consular court jurisdiction in Japan; Yokohama 1882
• Scidmore, GH; Outline lectures on the history, organization, jurisdiction, and practice of the Ministerial and Consular Courts of the United States of America in Japan; Tokyo 1887 (Igirisu horitsu gakko)
• Senga Tsurutaro [ 千 賀鶴 太郎 ; 1857-1929]; Design and criticism of today's consular jurisdiction in Japan; Berlin 1897 [diss.]
• Strisower, Leo [1857-1931]; Consular jurisdiction; Vienna 1895 (Hölder)
• Twiss, Travers; La juridiction consulaire dans les pays de l'orient et specialement au Japon; 1893, Extrait de la Revue de droit international et de législation comparée. ([ark: / 13960 / t4pk0bw0r Scan], Zschr.-Jg .: [ark: / 12148 / bpt6k57497712])
• Weiser, Walther [* 1888]; German consular jurisdiction in civil matters; or, The activity of the German consular courts in civil litigation; Berlin 1912 (Puttkammer & Mühlbrecht)

Individual evidence

1. ↑ Art. 5 to 7 of the friendship, trade and shipping treaty between the North German Confederation and the members of the German Customs and Trade Association not belonging to this confederation on the one hand and Japan on the other in the RGBl. 1870, Volume I, pp. 1-24.
2. ↑ RGBl. 1896, p. 715.
3. ↑ 中 網 栄 美 子 [Nakaami Emiko]; ポ ル ト ガ ル 領事 裁判 権 の 回収 回収 に つ い て [ Abolition of Portuguese Consular Court in Meiji Japan ]; 2005. There p. 86 table of foreigners resident in Japan broken down by year.
4. ^ For further information: Hecker, Hellmuth; Protection citizenship and citizenship in Germany; Archiv des Völkerrechts, 21 (1983), pp. 433-91.
5. ↑ Required for new hires in accordance with Section 7 of the law on the organization of the professional consulate , dated November 8, 1867. Final regulation in the law on consular jurisdiction of July 10, 1879. Participants in the Austrian “consular eleven examination” also had to prove knowledge of international and commercial law.
6. ↑ Also known as Ordonnance royale de 1681, or Ordonnance de Colbert. Changed and supplemented many times. The training of the consuls was regulated by an ordinance dated October 6, 1847 ( digitized on Gallica )
7. ^ Colonial Courts of Admiralty Act 1890.