China Aviation Law
8Sep/10Off

Shanghai Jewish Refugee Museum 上海犹太难民纪念馆

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While I was researching the property law of the treaty ports, I learned much about the unique political situation of the international settlement in Shanghai.

The international settlement essentially has an extra-territorial, independent government. The city was a harbor for culture, literature, and the arts. When the Qing dynasty, and later the Nationalist government, cracked down on liberal writers, they fled to Shanghai to publish their political criticisms. During the various rebellions of the 19th century, the settlement remained neutral. When the Japanese invaded northern China, the city remain isolated from the effects of the first Japanese war and creation of the Manchuguo.

Shanghai Concession Area - century old buildings, tourists, pollution -

After the Nazi party was elected in 1933, many German Jews fled to Britain, Canada, and the US, but eventually, those countries limited their visa allowance and shut their doors. Shanghai was the only city in the world that allowed free entry without a visa and it soon attracted thousands of Jewish refugees from across Europe. Even after the Japanese invaded Shanghai in 1937, Jews continued to flee to China.

As WWII raged on the the Nazi's pressured the Japanese to hand over the Jewish refugees. Folklore (Wikipedia) has it that the after receiving this message a Japanese governor was curious: "Why do the Germans hate you so much?" "Without hesitation and knowing the fate of his community hung on his answer, Reb Kalish told the translator (in Yiddish): "Zugim weil mir senen orientalim — Tell him [the Germans hate us] because we are Orientals." The governor, whose face had been stern throughout the confrontation, broke into a slight smile. In spite of the military alliance, he did not accede to the German demand and the Shanghai Jews were never handed over."  http://en.wikipedia.org/wiki/Shanghai_Ghetto

Instead, the Japanese Government moved the refugees into the Hongkou Ghetto known as the "Restricted Sector for Stateless Refugees." This area housed the refugees for the remainder of the war. The area was immediately overcrowded with over 20,000 refugees crammed into a square mile area. They faced problems of starvation and poor sanitation. However, aid soon arrived from international humanitarian organizations the ghetto flourished as a center for Jewish culture and society.

Today, a portion of the Ghetto area has been restored as a museum of the refugees.

What amazed me about my visit to the museum is the dichotomy that is existed between the past and the present situation of the Jews in China. Like so many other museums in China, there is a gap in the history from 1949 to the 1990s. The reality is that just as the Jews fled Nazi Europe during WWII, the Jews fled Shanghai immediately after the war as the Chinese civil war expanded. Almost the entire community vanished within the space of a couple of years.

Altar in the rebuild synagogue

Today, Judaism is not an officially recognized religion in China, which means that followers may only have a limited presence in China. The construction of houses of worship and the holding of meetings are limited. This is situation that is shared with many other faiths including many protestant denominations including - Mormons, Baha'i, and Christian Orthodox. (The officially recognized religions of China are Buddhism, Islam, Protestantism, Taoism, and Catholicism.) While there are some Jews in China, their population is sparse. I asked my guide if she (a Chinese) could join a Jewish church, and she said that she probably could not.


17Jul/10Off

Amy and Immigration

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I have a coworker who is second child, I'll call her Amy. For whatever reason, (likely lack of available contraception in rural china), her parents decided to have a second child at the height of the one child policy. The result was a government crackdown that led to a very hard life for my coworker. As punishment, the government condemned her family's property and razed it to the ground. Amy had to be smuggled out of the province and was sent to live with far away and impoverished aunt.

She lived in a small hut out in the country and cooked over an open fire for most of her childhood.

(This condition of poverty is not uncommon in China today. I found a similar hut attached to the fence at the Beijing international airport.)

However, my coworker is a lucky story. She was able to get enough education to break away from home atage 16 with fifteen dollars in her pocket. She made it south to Shenzhen and has slowly worked her way up to a slightly better life. I know before she was in this office she was working 7 days a week as a Realtor. At our company, she makes around $450 a month as a secretary.

When I asked her about her thoughts on her treatment and her past, she did not have the reaction that I expected. I would be angry at the government for treating me and my family so poorly. She, in contrast, has no real animosity toward the government. Her perspective is that her family broke the law and should have been punished. They committed a crime and she is an illegal citizen, thus, her lot in life is what should have been expected.

To an American audience this is hard to grasp. We believe that a right to decide how many children you should have is  fundamental freedom, not something that should be dictated by the government. If her parents hadn't broken the law, she would not even exist, and thus, she should be grateful that her parents made such a sacrifice.

Which is the correct reaction? What are some of the justifications for the one child policy? Unchecked, the Chinese population would grow at a rate that is unsustainable. Without enough land to sustain the population, the entire country/region could face a humanitarian crisis as people fight for control of resources. Are those justifications sufficient to support the policy?

I'm going to make a stretch of an analogy. I think Amy's reaction is one I've heard many times this summer during the immigration debate.

Sam Feinson posted an interesting link a couple of days to a opinion piece about the immigration debate. The crux of the argument attacked a middle ground position that I have taken in the debate. The position sounds something like this: I agree that the immigration laws in the US are screwed up. The are unfair, cumbersome, and a pain in the neck to try to work through. However, I don't believe that the solution is to break the law. Some people in the US are here illegally. I don't believe that should allow the leniency because they have worked around the system. We cannot that our laws should not be obeyed. As illegal residents, they ought to be deported. But, in the meantime, we should work to provide a better system of immigration into this country.

My co-worker would likely agree with this position. They are illegal. They have broken the law. It is totally within the Government's right to crackdown on them. Yet, like my gut reaction above, it seems like the question should not be so simple. To make a decision about the immigration debate, you have to look past the question of illegal/legal, but actually look at the law.

I'll leave that level of analysis to others, but I'd like to put up a couple of questions to think about and add my own anecdotal experience on the treatment of foreigners in the US and China. Maybe a strict immigration policy is necessary. One of the reasons that American's have such a high quality of life is that we have an incredible amount of resources for a small population of people. An open door would certainly decrease that ratio of resource to people. On the other hand, maybe there is fundamental right that people should be able to move between countries in search of work.

I have a friend who came to US to get an education. She is a good student, worked hard, got her degree and graduated. However, she didn't want to go back to Asia, because she had a boyfriend and a good job in Utah. Most graduate students are allowed one year of option professional training on their education visa before they must return to their home country. She decided to stay and then overstay her visa. Now, she is facing deportation back to Asia, were she will definitely have a harder life and will not be able to return to US for 10 years.

(Home being torn down by the government in Shanghai. One person is reluctant to leave.)

As for the Arizona Law...

I just started watching Battlestar Galattica, which turns out is a pretty good show. At one point, they are face with a problem with enforcing the law throughout their new armada of civilian ships. Unfortunately, the only personnel that are trained/armed are the military. The admiral believes that using the military as police should not be a problem, but the acting president says something profound. The military is trained to fight enemies. When the military starts to police the people, the people become the enemy.

This is the problem I have with the Arizona law. The Feds/Department of Homeland Security are the ones who have the job of protecting the border. That is what they are trained to do and I think it is an important job. But, it is wholly separate from the job of the police. The police need to be able to work within a community to support and protect it. They need to be able to build trust within that community. This cannot happen when the people become the enemy. By giving the police the mandate of checking people's immigration status, you've redefined their roll and undermined their ability to protect.

There are very many crimes within the immigrant community that go unpunished - domestic abuse, labor abuse, ect. That go unpunished because people are afraid to go to the police. They make a choice between continued abuse and deportation. I don't think that is a choice that should be made.

As a foreigner in China, I am treated much better than foreigners in US.

My wife is not a native of the US. She is Taiwanese with long black hair. She does not look like a white American nor does she get stopped by police at the rate of white Americans. In the whole of my driving career, I have been pulled over by the police 3 times. In the 4 years she has been driving in Provo, she has been pulled over close to 3 times as often. (Now this may be a statement on her driving, but as far as I can tell, she follows the road rules much better than I)  Only one of these stops resulted in a ticket. Most of the time, the police never had a very clear answer as to why he pulled her over. (So, is it racial profiling? I don't know. But, it bothers me that it happens.)

Hanging out with my Chinese friends in Seattle has brought some interesting experiences. I am amazed at how poorly we treat people who do not speak English very well. I went to Elysian to for happy hour with a group of international  students - (koreans, thai, chinese). Their English wasn't too bad, but if you've ever learned another language you know that you speak slowly and it takes a few more seconds to process whatever is being said. Unfortunately, the waitress would have none of this. She asked for an order. They would try to respond. She would get impatient, roll her eyes, and walk away. (Yes, only an anecdote, but unfortunately one I've seen all too many times.)

In contrast, my foreign friends get nothing but deference here in China. They don't speak a word of Chinese, but by and large, the restaurants will either go get an English speaking employee, or take their time to make work out some system of communication. In the US, I've heard plenty of people complain about someone not speaking English both to their face and behind their back. In China, while many will talk about you in Chinese while you are next to them, surprisingly, I have yet to hear a negative comment. While learning Chinese  in Taiwan, people where more than happy to help me. A pilot just told me  about how he needed to get some stamps. So, he drew a picture of stamp on an envelope and showed it to his Chinese neighbor. His neighbor was kind enough to drop what she was doing and walk him down the block to the post office to help him buy stamps.

(Of course, the cynical side of me knows that much of the special treatment we receive is because we are white, from the US, and have money. I know the Philippinos, Thais and Africans, received many more cold shoulders than I did in Taiwan. )

Regardless, I hope that  people understand how difficult it is to be stranger in a strange land.

Chinese Outhouse in Beijing

16Apr/10Off

Unequal Treaties and Property Law in China

***So, this semester I'm researching property law in China for my research job. This is one of my memos. The story of the treaty ports is a very interesting time in China. I'm excited to get to Shanghai this summer and see some of the old city. Sorry for the weird citation system, but the bluebook is a very ugly and inflexible system.***

Unequal Treaties and Property Law

By the summer of 1842, the British had defeated the Chinese at the mouth of the Yangzi River and occupied the city of Shanghai. 10 The Cambridge History of China 206 (Denis Twitchett & John K. Fairbank eds., 1978) [hereinafter Cambridge]. In August, the British fleet, led by Major-General Henry Pottinger were preparing to invade the Ming dynasty capitol of Nanjing. Id. at 207. On that threat, the Qing dynasty emperor dispatched an envoy to end the hostilities. Id. at 210. Out of this meeting came what was later to be called by the Chinese the first “unequal treaty” with the west – The Treaty of Nanking. Id. at 211.

The Treaty of Nanking [Nanjing] opened the doors of the Chinese empire to the western world. It ceded the Port of Hong Kong to the British Empire and opened five ports to British merchants – Guangzhou, Xiamen, Fuzhou, Ningbo, and Shanghai. Treaty of Nanking, U.K. - China, art. 2, Aug. 29 1842, reprinted in 1 Treaties, Conventions, Ect., Between China and Foreign States, at 352 (photo. reprint AMS Press, Inc. 1973) (1917) [hereinafter Nanking].

One of the immediate questions settlers faced, was how were they to move in? How would a British subject acquire real property? In this essay, I will review the effect that the opening of property had on the real estate/property system and land laws/regulations in China.

Treaty of Nanking (1842)

The Treaty of Nanking was designed to protect British merchants and to provide security for trade with China. Cambridge at 216. To this end, the treaty provided the British subjects with a number of rights. It established a system of consular jurisdiction over British nationals. Id. at 217. It provided reciprocal protection so that subjects could “enjoy full security and protection for their persons and property within the Dominions of the other [state]”. Id. It also allowed merchants to “trade 'with whatever persons they please', as opposed to trading with an official monopoly”. Id.

While the Treaty of Nanking allowed British subjects to resided in the treaty ports “without molestation or restraint,” the treaty provided little specific guidance. Nanking art. 2, at 352. Indeed, in November of 1842 the British formally prohibited trade with any of the treaty ports until there were established consuls. Cambridge at 223. Throughout the year following the Treaty of Nanking, the Chinese and British negotiated the details of the opening of the treaty ports. Id. at 218. These negotiations led to the a supplementary treaty between the two governments – the Treaty at the Bogue.

The Treaty at the Bogue (8 Oct 1843)

The Treaty at the Bogue stated that the treaty ports were to be “thrown open.”Treaty at the Bogue, U.K. - China, art. 5, Aug. 29 1842, reprinted in 1 Treaties, Conventions, Ect., Between China and Foreign States, at 391 (photo. reprint AMS Press, Inc. 1973) (1917) [hereinafter Bogue]. To facilitate this goal the treaty provided much more detail on the settlement and acquisition of land in the five ports. British subjects were allowed reside in the treaty ports “without molestation or restraint”. Id. art. 7 at 392. The rent was to be “fairly and equitably arranged for, according to the rates prevailing amongst the people, without exaction on either side”. Id. All houses built or rented were to reported annually to the local Chinese officers and the British Consul. Id. However, the total number of houses could be limited by the Chinese government. Id.

While opening the doors to the treaty ports, the treaty also tightly restricted foreign expansion into other areas of China. Foreign occupants were specifically restricted to the treaty ports. Merchants could only trade with the five treaty ports - under penalty of seizure by the Chinese. Id. art. 4 at 392. Residents of the ports could not travel to the surrounding countryside, except for short distances. Id. art. 6 at 392.

These two treaties allowed for British to acquire land, but Chinese government was still hesitant to directly sell land to the barbarians. Chen Yu, Land, Title Deed, and Urban Transformation: Foreigners’ Acquisition of Real Property in Xiamen (1841–1945) 4 (Chinese Cities in Transition: the Next Generation of Urban Research, July 7–9, 2005), available at http://mumford.albany.edu/chinanet/shanghai2005/chenyu_ch.doc [Hereinafter Chen]. The result was rent-in-perpertuity system (永租制) that allowed the foreign government to acquire property, while maintaining China's claim to territorial sovereignty. Id. In practice, the leasing government would pay a initial land value (地价), which would be followed by annual rent or tax (地税) paid to the Chinese Government. Id. As such, the 23 acres on which the British built their consulate at Shanghai was not purchased, but leased-in-perpetuity for a lump sum of money. 1 Hosea Ballou Morse, The International Relations of the Chinese Empire, 347 (1910) [hereinafter Hosea].

This rent-in-perpetuity system of property in China created two styles of land acquisition in the treaty ports – concessions and settlements. Ching-Lin Hsia, Studies in Chinese Diplomatic History 48 (The Commercial Press) (1933) [hereinafter Hsia]. A concession was land held by a foreign power under the rent-in-perpetuity system. Id. A foreign government would first lease large areas of land from the Chinese government. Id. Then, in turn, the foreign government would sublease land to foreign residents. Id.

In contrast, the residents of “settlements” dealt directly with the Chinese owners to acquire land. Id. at 49. Thus, the deeds were not between governments, but rather, between a foreign purchaser and a Chinese landowner. Id.

Shanghai was an example of an international settlement. The site of the settlement was selected as residence for foreigners; however, the land was not leased to a controlling foreign power. Id. at 48. Instead, it was acquired by individual deals with Chinese landowners, which were then registered with the Chinese authorities Id. at 49.

Foreigners had a choice of either using existing traditional Chinese deeds in their transactions or a modified foreign title deed. Chen at 5. The traditional Chinese deed usually consisted of two parts – a deed of sale (契)and a deed-end (契 尾). T. T. Meadows, Remarks on the Acquisition, Tenure, and Alienation of Real Property in China; Accompanied by a Deed of Sale, 18 The Chinese Repository 571, 579 (1849) [hereinafter Meadows]. The deed of sale was granted by the seller. Id. It was printed on durable coarse brown paper and kept as evidence of ownership of the property. Id. The deed-end was acquired from the Superintendent of Finance with the payment of an alienation and registration fee. Id. While these two documents were legally sufficient to convey the property, often the purchaser would request any previous deeds that the seller had in their possession. Id. In the case of a foreign purchaser, the deeds were also then sent to the Foreign Consul for registration. Chen at 6.

The Start of Settlement

The treaty ports were opened in sequence - “Canton [Guangzhou] on 27 July 1843; Amoy [Xiamen], 2 November; Shanghai, 17 November; Ningpo [Ningbo], 1 January 1844; and Foochow [Fuzhou] in June 1844.” Cambridge at 224. Over the first decade, the settlements of Guangzhou and Shanghai developed a major foreign occupancy, while the other settlements were small outposts with no more than 30 foreign residents. Id. at 227. Shanghai, for example, by the mid-1850's, “grew to some seventy firms and over three hundred foreign residents, not counting families, with eight consulates and thirty-six Protestant missionaries”. Id. It was in this quickly growing city that the first land conflicts and administration regulations developed.

As foreign settlers entered Shanghai, the British consul quickly found that it had no power to levy taxes on non-British Subjects for the maintenance of public roads and jetties. Hosea at 350-51. As a result, in 1845, the first land regulations were established between the British and the Chinese. Id. These regulations granted certain extraterritorial authority over the residents and standardized the title-deed registration system. Id. Under the regulation, three land renters were elected to a Committee of Roads and Jetties which levied taxes to maintain the public areas. Id. Non-British subjects were allowed to acquire land, with consent of the British consul, if they observed the land regulations. John T. Pratt, The International Settlement and French Concession at Shanghai, 19 Brit. Y.B. Int'l L. 1, 2, (1938).

This quickly created a conflict between the land regulation and the treaties that the Chinese had signed with the French and American governments. Id. at 2. An American wishing to acquire land in Shanghai under the 1845 regulation would have to register it with the British consul. This conflict was resolved in 1854, with the passage by all three treaty powers in Shanghai of a multilateral land regulation. Id. at 3. This regulation would become a model for land regulations in other settlements in the other treaty ports. Id.

The drafters of 1845 Land Regulations expected that through the gradual foreign acquisition of land the native Chinese would be excluded from the settlement. Id. at 2. To this end, the regulation prohibited native inhabitants from selling or renting land to other Chinese and prohibited foreigners from “building houses for renting to, or for the use of Chinese.” Hosea at 354 (quoting Land Regulations of 1845, art. 16). Due to civil unrest and the unique political scheme in Shanghai, that expectation of the 1845 regulation was quickly shown to be misguided.

During the Taiping rebellion, the international settlement in Shanghai remained neutral territory and by 1854, thousands of refugees had fled into the settlement for protection. Id at 354. Faced with growing administrative challenges and to accommodate the influx of Chinese residents, the foreign powers removed the prohibitions on Chinese leaseholders from the 1854 Land Regulations. Id. However, the foreign government did not afford the Chinese the same voice in the elected committee as the foreign landowners. Chinese residents would have to apply to a foreign Consul for approval of any land lease. Id. Because the Chinese were not citizens of any treaty power, a Chinese subject was required to apply through his landlord thus did not retain the right to vote in committee meetings. Id.

Land Regulation of 1854

The Land Regulation of 1854 was a model that many of the other treaty ports followed. It outlined the procedure and process of purchasing land, assessed an annual tax on the land, and created an elected committee which oversaw the maintenance of the public facilities in Shanghai.

The Land Regulation of 1854 defined the process of acquiring land in China. The foreign purchaser would first have to apply to the Consul of his nation, or if none was appointed, to the consul of a friendly power. Land Regulations of 1854, art. 2, North China Herald (Shanghai), July 8, 1854, at 3. The application would specify the plan, location, boundaries and measurements of the land to be purchased. Id. The Consul would in turn check for any prior impediments on the land from third parties or other foreigners. Id. If there were no impediments, the buyer could then settle the price and conditions of sale with the Chinese landowner. Id. art 3. A copy of the agreement of deed of sale would then be sent to the Consul and Intendant of Circuit (Chinese government position) for examination. Id. If the sale was regular, the copy of the deed would be returned to the purchaser and the money could then be paid. Id. On completion of the sale, the Intendant of Circuit would issue a deed in triplicate and send notice to the Consular representatives of England, France, and the United States. Id. art. 4.

The regulation assessed an Annual Rent or Land Tax to the Chinese Government. Id. art. 7. The amount was calculated by land area at a rate of 1500 cash per mou. which was due on the 15th of December. Id. If a landowner defaulted on the tax, the Chinese could request enforcement by the Consul. Id.

The regulation also established a committee to control the assessment of taxes for the maintenance of public facilities. At an annual meeting of the renters of the land, the renters were to appoint the committee and assess any necessary taxes. Id. art. 10. The committee, which had three or more members, would have the power to levy rates, apply funds, and sue for enforcement against defaulters. Id.

Defeat in the Second Opium War and Subsequent Regulations

Following defeat in the Second Opium War, the Chinese signed the Treaty of Tientsin [Tianjin]. This treaty opened many more ports to trade, and foreigners were allowed access to China's interior. Treaty of Tientsin, U.K. - China, art. 9-11, June 26, 1858, reprinted in 1 Treaties, Conventions, Ect., Between China and Foreign States, at 407-08 (photo. reprint AMS Press, Inc. 1973) (1917). Specifically, the ports of Niuzhuang, Dengzhou [Yantai] , Taiwan, Chaozhou, and Qiongzhou [Hainan] were opened to trade. Id. art. 11 at 408.

With that opening, the treaty also included some of the broadest language giving foreigners access to China. Foreigners had the “right of residence, of buying and renting houses, of leasing land therein, and the building of Churches, Hospitals and Cemeteries.” Id. Additionally, “British subjects, whether at the Ports or at other places, desiring to build or open Houses, Warehouses, Churches, Hospitals, or Burial-grounds, shall make their agreement for the land or buildings they require, as the rates prevailing among the people, equitably, and without exactions on either side.” Id. art. 12

The end of the Second Opium war also brought about a redrafting of the land regulations in Shanghai. This time they were not drafted in concert with the Chinese authorities, but unilaterally by the Municipal Council in Shanghai. J.H. Haan, Origin and Development of the Political System in the Shanghai International Settlement, 22 Journal of the Hong Kong Branch of the Royal Asiatic Society 31, 35 (1982). The draft did not change much of the process of land acquisition, but rather focused on clarifying political procedure for the Municipal Council and providing better authority to the council for enforcement. Id. Aside from the addition and amendment of various byelaws through the next years, the regulations remained largely unchanged until the territory was returned China in 1943. Id.

*** I didn't put much of a conclusion. I'm up for any comments or suggestions. ***