From: hiraga@Csli.Stanford.EDU (Yuzuru Hiraga)
Subject: Re: on extraterritoriality
Organization: Stanford University CSLI
Date: Sat, 9 Jan 1993 12:24:52 GMT

In article <MS-C.726461210.1147902781.mrc@Tomobiki-Cho.CAC.Washington.EDU> mrc@Tomobiki-Cho.CAC.Washington.EDU (Mark Crispin) writes:
>Yuzuru Hiraga writes:
>>Are you claiming that extraterritorialism is merely a way of seclusion
>>to ensure safety of your own people?
>>This, of course, won't do.
>
>That was, in fact, precisely what the excuse for extraterritorality was.

So it IS an excuse.

>There was abundant evidence to suggest that foreigners were
>*not* safe in Japan (or China) without special protections.

As a preparation, we'd better clarify here (for the other readers)
that "not safe" is addressed primarily against domestic jurisdiction,
and that extraterritoriality is less effective towards individual
terrorism.
As for terrorism, there were no "abundant evidence" of it at the time
of the 1858 treaty -- which is obvious since only after the treaty
can foreigners land in abundance and have contact with the natives.

>This isn't to say I necessarily say that it was right.

OK; though it didn't sound that way.

>But, suppose you were to live with a bunch of cannibals.  Wouldn't you
>want some sort of special agreement that exempted you from the laws
>that said that under certain circumstances you could be eaten?

Uh-oh.
From the other side that means that domestic laws are completely
ignored by those that roam its territorial grounds.
And if you're drawing any parallelism between "being (legally:-) eaten"
and the situation in Japan (or China or whereever), you'd better
mention it rather than being rhetorical.
There are other ways than total evasion (or exemption, if you like)
to achieve the projected goal.
No -- as said before, extraterritoriality in essence is aimed at
building a nation-within-nation, can be equated with (bounded)
colonialization, drawing on far more privilege than what its
seemingly meek justification can provide.

>>[Extraterritoriality]
>>takes over legal jurisdiction (which means that a native citizen would
>>be tried by foreign laws)
>
>This is not true.  The natives were tried in native courts.

If I was short in words here -- I meant, of course, cases
"involving" foreign citizens, as in:
>However, if a native wished to bring a suit against a foreigner with
>extraterritorial rights, he did so in the court of that foreigner's
>country.

And although my use of "tried" is a bit inappropriate in theory,
there nevertheless were cases where the punishment of natives
were demanded (i.e. effectively enforced).

>There is no doubt that this arrangement allowed foreign criminals to
>escape justice, but this was more often due to the native victim
>lacking the understanding or resources to pursue it in the foreign
>court ...

Which, of course, should not happen in an independent state.
And doesn't this argument sound similar to what Japan is being
accused of of its non-tariff barriers?
Practical deprivation of rights is no different from
the violation of rights per se.

>...than any effort by the foreign governments to shelter criminals.

Which did exist.

>The American and British courts for China *did* imprison or even
>execute criminals for crimes committed against Chinese.

It would be surprising, based on the formal reading of the treaties,
if such cases did NOT exist.
Their existence is no evidence that opposite situations
did not happen or were commonplace.

>More commonly, the settlements were havens for native criminals or
>more often defeated native politicians or generals.

Political refugees aside, being a haven for native criminals is
precisely another reason to condemn the vice of extraterritoriality.
Of course one can't claim that being a political asylum as
its a-priori virtue, either.

>>If you're saying that there is universality in the claim that
>>extraterritorialism is acceptable, then how much do we find it in
>>today's world?  How much is it approved of?  Surely there must be
>>countries that are "below" the standard of 19C. Japan (or China).
>
>That's why there are travel restrictions to such countries in modern
>times; such countries are generally international outcasts.

But that doesn't answer my question.
Actually, it's stating precisely the opposite position against
extraterritoriality (as another netter put it, it's none of their
business being there in the first place).

>Japanese people aren't permitted to go to north Korea, for instance.

Surely, Japan is not restricting North Korean travel for
"security" reasons.

>>Sakamoto was killed by Bakufu Mimawari-gumi, while working for
>>a Satsuma-Choushuu coalition.
 ["while" should be "after": YH]
>
>Sakamoto was most likely killed by Satsuma/Cho^shu^ agents who
>masquerading as being from Totsukawa.

That is a novel conjecture, but being so, it IS a conjecture.
# Totsukawa? In Nara? Tokugawa?

>The Shinsengumi and
>Mimawarigumi were blamed for the attack, but later on there was
>evidence that having accomplished the resignation of the last sho^gun,
>Sakamoto's subsequent democratic program was too much for the feudal
>leaders of Satsuma and Cho^shu^ who merely wanted to replace one
>feudal system with another.

But I can also argue against this that:
* Sakamoto was essentially a gradualist; and by no means a republican
  (I don't mean GOP :-).  After all, he was after a constitutional-
  monarchy typed system centered by the Emperor.
* The Bakufu had every reason to kill him, as they already raided him
  few years before.  This would have been even more keen since it was
  Sakamoto's contribution that motivated Yamauchi Youdou to advice
  the Shougun to resign.
* Since the assasination was only about a month after the resignition,
  this would be too short a time for either Sakamoto to make a radical
  shift, or for Satsuma and Choushuu to change their attitude against
  him.  At that time when Satsuma and Choushuu were considering further
  dismantling of the Shogunate, Sakamoto was still more exploitable
  rather than being an obstacle.

And I'm not sure what you mean by "another" feudal system,
or who is addressed by "feudal leaders": see below.

>Note the Satsuma backing of Saigo^'s revolt and the assasination of Ookubo.

There is quite a time lapse and total change of situations between
Sakamoto's assasination and these incidents.
Those that supported Saigou were (ex-)lower-class bushi; who at the
time of 1867 were enthusiastic for a radical reform (to better their
position).  The then "feudal leaders" were quite slack by the time
of Saigou's revolt (observe how the Shimazu family is still
prominent to this day).

>On the other hand, there were
>revolts by people who felt that the Meiji government wasn't moving
>fast enough (e.g. Eto^'s revolt).

Err... this is irrelevant to the above issue.

[About Iwakura mission]
>That was because Iwakura's attempt to do so had failed, and they
>salvaged what they could from the mission by their survey.  Ookubo and
>Ito^ came back *very* impressed with the Prussian state.

As given in my correcting post, I agree with the above.  However:
>The reason why Iwakura failed is that the Meiji government was too
>unstable, with periodic revolts including central figures in the Meiji
>government resigning and revolting all the time...

This cannot serve as much of a reason (again, more of an excuse).
At the time of Iwakura mission, the government gained relative
stability after their initial reform policies took off (otherwise,
how can so many of the central figures take leave for such a long
period?).  It was after their return that an uncompromisable rupture,
eg. resignation of Saigou and Itagaki came on.


Back to extraterritoriality -- once gained privileges carry a momentum
that are not easily abandoned, maintaining themselves for their own sake.
With the treaties being unequal from their conception, there is no
guarantee that they will be lifted even if the "required" conditions
are met (one can endlessly invent excuses).
Sovereignity was and can be regained not through benevolence, but
by conscious struggle for it.

-Yuzuru Hiraga
Newsgroups: soc.culture.japan