Above the Law? Extraterritoriality and the Gucci 3

It’s not every day I hear my favorite Boston sports talk radio hosts discuss the intricacies of Chinese law, but the detention of UCLA basketball players LiAngelo Ball, Cody Riley and Jalen Hill in Hangzhou last week for allegedly shoplifting sunglasses and other items has focused attention on China’s judicial system and its treatment of foreigners. Earlier this week, President Donald Trump took credit for orchestrating the release of the “Gucci Three.” One wonders if Trump even considered the price of Xi Jinping’s intervention. Has anyone checked on the whereabouts of Guo Wengui lately?

To the three UCLA basketball players I say: You're welcome, go out and give a big Thank You to President Xi Jinping of China who made…..

— Donald J. Trump (@realDonaldTrump) November 16, 2017

This was not the first time — nor will it be the last time — that foreigners have asked for special treatment after running afoul of Chinese law

On November 24, 1784, the British merchant ship Lady Hughes was anchored along the banks of the Huangpu River outside of Guangzhou. Seeing off one of her fellow ships, she fired a salute that struck a nearby Chinese boat, killing two of the occupants and seriously wounding a third. The British East India Company, under whose license the Lady Hughes was trading, recorded the incident as an unfortunate misadventure, and the gunner “innocent from any criminal intention.”

The authorities in Guangzhou took a different view: they wanted to arrest the gunner for murder. The captain of the Lady Hughes dissembled, telling the authorities he wasn’t sure which gunner had fired the fatal shots, at which point Chinese authorities seized the business manager of the ship and told the captain that unless he produced the actual culprit, justice would fall on the unfortunate manager.

For the British East India Company, this was a barbarous example of collective punishment, Exhibit A in their quest to have all crown subjects put under the authority of British jurisprudence even in this far-flung corner of their trading empire.

For the Chinese, the crew of the Lady Hughes had violated the law when they first fired the salute, as the discharge of cannons and firearms was prohibited in local waters. Nor did the local authorities believe it was an unavoidable accident. The Chinese ship had been stopped nearly alongside the Lady Hughes when the latter fired her guns. It was a case of criminal negligence at best and, at worst, outright murder if the gunners had seen the Chinese ship in their line of fire and discharged their salute anyway.

Eventually, a gunner — if not the gunner — was found and handed over to the Guangzhou authorities. The captain of the Lady Hughes, still convinced that this was all just a misunderstanding, sailed back to India assuming his former crewman would emerge from the loving arms of the Qing judicial system unscathed.

Sun Shiyi

Instead, after a lengthy debate between the spineless local governor Sun Shiyi (one of the less effective members of the Qing bureaucracy in the late-18^th century, and that’s saying something) and the court in Beijing, the gunner was found guilty and executed by strangulation. Governor Sun wished to avoid invoking the wrath of the violent and unpredictable foreign merchants, and wanted to ship the gunner back to England to face whatever justice the barbarians had in mind. The emperor wanted to send a message about Qing imperial law and order. In a passage quoted in a 2009 article Li Chen, the emperor remarked:

If after they have violated the fundamental law of our Empire and we spare them simply because we fear some difficulty, they will never learn how to behave properly. They will then become more arrogant and commit more crimes. Instead of diminishing trouble, we will only breed it.

In the years to follow, British and American merchants and officials would use the Lady Hughes incident and others like it — such as the 1821 execution of an American sailor after he dropped a ceramic pitcher from the deck of the ship Emily, killing a woman in an adjacent boat — as evidence that China’s legal system was barbaric and backwards. They called for extraterritoriality to be granted to their subjects and citizens — that is, the right to be tried by a “civilized” court rather than be subjected to the inhumanity of Chinese law.

Eventually, that right was conceded to British subjects by the 1842 Treaty of Nanjing, which concluded the First Opium War (1840-1842). Subsequent agreements gave the same right of extraterritoriality to citizens of the United States, France, and the other powers operating along the Chinese coast.

A hearing at the International Mixed Court at Shanghai, 1905

For nearly a century, the foreign community enjoyed near immunity from prosecution by Chinese authorities. Extraterritoriality was a constant reminder of the humiliation of the lopsided treaties signed with the foreign powers and the impotence of local Chinese officials to arrest or investigate foreigners in their jurisdiction. Extraterritoriality eroded the authority of the state in the eyes of the people, even as the empire was coming apart at the seams.

To be fair, the Qing legal system — at least by modern standards — could be brutal. Torture was the norm in interrogations, as was collective punishment, and there was no presumption of innocence. Even by the standards of Anglo-American law at the time, the Qing penal code left a lot to be desired.

But at the same time, the judicial systems of the European powers and the United States weren’t too far removed from barbarities of their own (see: Witch Trials, Salem). Moreover, the issue of extraterritoriality wasn’t about protecting foreign subjects from capricious Chinese officials — it was about establishing a new form of sovereignty along the Chinese coast to benefit at first the British East India Company, and later the commercial interests of all the foreign powers. India could be colonized, but China would be cowed.

The young men from UCLA were lucky — others have been less so

It is understandable given this history why China in the present day is sensitive to interference and criticism of its judicial system. It is regrettable that this history is also used to deflect valid concerns about human rights and rule of law in the PRC. The young men from UCLA were lucky. Others have been far less so. We should be sensitive to how the past can refract external criticism, but that doesn’t mean we should stop putting pressure on all governments — around the world — to do a better job of fostering rule of law and a judiciary that upholds public order while protecting the rights of citizens.

Cover image: ABC