People's China and International Law, Volume 2: A Documentary Study 9781400887613

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PEOPLE'S CHINA AND INTERNATIONAL LAW

STUDIES IN EAST ASIAN LAW Harvard University

VOLUME 2

PEOPLE'S CHINA and INTERNATIONAL LAW A Documentary Study JEROME ALAN COHEN and HUNGDAH CHIU

PRINCETON UNIVERSITY PRESS Princeton, New Jersey

The Harvard Law School, in cooperation with Harvard's East Asian Research Center, the Harvard-Yenching Institute, and scholars from other institutions, has initiated a program of training and research designed to further scholarly understanding of the legal systems of China, Japan, Korea, and adjacent areas. A series of publications has been established in conjunction with this program. A list of the Studies in East Asian Law appears at the back of this book. Copyright © 1974 by Princeton University Press All Rights Reserved LCC: 73-2475 ISBN: 0-691-09229-X This book has been composed in Linotype Times Roman with headings in Linotype Bodoni Book by Port City Press, Baltimore, Md. Library of Congress Cataloging in Publication Data will be found on the last printed page of this book. Printed in the United States of America.

Princeton Legacy Library edition 2017 Paperback ISBN: 978-0-691-62850-9 Hardcover ISBN: 978-0-691-65471-3

Contents

Preface Acknowledgments Abbreviations

xiii xvii xxi

VOLUME ONE Introduction

1

Part I The Nature and Basis of International Law 1. Efforts to Define International Law 2. CriticismofBourgeoisTheories 3. Efforts to Develop a "Socialist" Theory

23 26 33 47

Part II Fundamental Principles of International Law 4. Sources of International Law 5. Subjects of International Law 6. The Relationship between International Law and MunicipalLaw 7. Inviolability of Sovereignty 8. Peaceful Coexistence and Socialist Internationalism 9. Nonintervention

65 70 86 101 106 119 156

Part III Participation in the International Community 10. Recognition, Diplomatic Relations, and Their Consequences 11. Representation in International Organizations

203 206 267

Part IV Claims to Territory

315

12. Land 13. Water 14. Air Space and Outer Space

322 467 498

Part V

15. 16. 17. 18. 19. 20. 21. 22.

The Exercise of Territorial Jurisdiction

503

Entry and Exit Internal and Territorial Waters Ports and Boundary Rivers Territorial Air Space Crimes Committed in Chinese Territory Aliens'Personal Affairs Aliens' Economic Activities Responsibility for Causing Injury to Aliens in China

508 528 559 588 605 661 681 717

Part VI

23. 24. 25. 26.

The Exercise of Extraterritorial Jurisdiction

743

Determination of Chinese Nationality Regulation of Chinese Nationals Abroad Protection of Chinese Nationals Abroad Protection of Other Interests Abroad

746 790 797 883

Notes

895

VOLUME

TWO

Abbreviations

ix

Part VII The Immunities and Privileges of Diplomats, Consuls, and Other Agents of International Relations 27. Diplomats 28. Consuls 29. Other Agents of International Relations

929 935 1043 1080

Part VIII The Law of Treaties 30. The Nature of Treaties and the PRC's Succession to the Commitments of Previous Governments 31. The Process of Treaty Making 32. Interpretation of Treaties 33. Treaties and Third States 34. Validity of Treaties 35. Termination of Treaties

1109 1118 1130 1205 1230 1239 1255

Part IX The Law and Practice of International Organizations 36. General Attitude toward the United Nations 37. Constitutional Problems of the United Nations 38. Maintenance of International Peace and Security by the United Nations 39. Other United Nations Activities 40. Activities of Other International Organizations

1283 1289 1301 1322 1362 1389

Part X 41. 42. 43. 44. 45. 46. 47.

Disputes, Hostile Relations, and Arms Control

1411

Peaceful Settlement of International Disputes Legality of Resort to Force Legal Regulation of the Conduct of Conflict Protection of Prisoners and Other Victims of War Treatment of War Criminals Termination of Armed Conflict Arms Control and Disarmament

1418 1457 1497 1522 1583 1602 1618

Notes Glossary Bibliography Chinese- and Japanese-Language Books, A rticles, Periodicals, and Newspapers Index

1645 1669 1681 1747 1767

Abbreviations

A JlL BFSP CB CDSP CFYC CHYYC FBIS FEER FH FKHP

FLHP

GAC JMJP KCWTYC LNTS NCNA PC PR SCMP SGP TIAS TYC UNTS UST WCC

A merican Journal of International Law British and Foreign State Papers Current Background. United States Consulate General, Hong Kong Current Digest of the Soviet Press Cheng-fa yen-chiu (Political-Iegalresearch) Chiao-hsiieh yii yen-chiu (Teaching and research) Foreign Broadcast Information Service Far Eastern Economic Review Fa-hsiieh (Legal studies) Chung-hua jen-min kung-ho-kuo fa-kuei hui-pien (Col­ lection of laws and regulations of the People's Republic of China) Chung-yang jen-min cheng-fu fa-ling hui-pien (Collection of laws and decrees of the Central People's Govern­ ment) Government Administrative Council Jen-min jih-pao (People's daily) Kuo-chi wen-t'i yen-chiu (Studies in international prob­ lems) League of Nations Treaty Series New China News Agency People's China Peking Review Survey of China Mainland Press. United States Consulate General, Hong Kong Sovetskoe gosudarstvo i pravo (Soviet state and law) Treaties and Other International Acts Series Chung-hua jen-min kung-ho-kuo t'iao-yiieh-chi (Collec­ tion of treaties of the People's Republic of China) United Nations Treaty Series United States Treaties and Other International Agree­ ments Chung-hua jen-min kung-ho-kuo tui-wai kuan-hsi wenchien-chi (Collection of documents relating to the for­ eign relations of the People's Republic of China)

The Immunities and Privileges of Diplomats, Consuls and Other Agents of International Relations

27 Diplomats 28 Consuls 29 Other Agents of International Relations

PART VII

In 1951 the People's Republic of China apparently enacted legislation embodying certain principles of international law relating to diplo­ matic privileges and immunities.1 Yet this legislation, unlike the sub­ stantial body of Soviet law that has developed on the subject,2 has never been made public. Nevertheless we have seen in Part V that, both in its international agreements and in domestic legislation that has been published, the PRC has recognized that foreign diplomats are to be exempted from the ordinary exercise of territorial jurisdiction. This part will deal with the special treatment, in theory and in practice, that the PRC has accorded to foreign diplomats, consuls, and other state agents, and it will contrast the regime's treatment of these foreign repre­ sentatives with the claims that it has made to protect its own repre­ sentatives abroad. As the Introduction to this work suggests, Chinese officials first learned about Western principles of diplomatic privileges and immuni­ ties during the Ch'ing dynasty's discussions with the Dutch East India Company in the latter part of the seventeenth century, but these prin­ ciples were not invoked by China itself until the latter part of the nine­ teenth century. Nevertheless, analogous concepts can be found in early Chinese history as well as in the ancient and feudal communities of the West. During the Spring and Autumn period (722 to 481 B.C.) and the Warring States period (403-221 B.C.) the feudal principalities that jockeyed for power under the nominal rule of the Chou dynasty in effect developed a system of interstate relations that rested upon a great deal of diplomatic activity. Although the various states did not main­ tain permanent missions abroad, their rulers, ambassadors, messengers, and other envoys exchanged visits so frequently that it was necessary to evolve an elaborate set of rules for their reception and protection. These rules were sometimes violated, especially by the more powerful states, but diplomatic immunity was of such obvious mutual benefit that it appears to have enjoyed fairly widespread respect.3 The tribute system that developed and endured for over two thousand years following the establishment of the Chinese empire in 221 B.C. transformed the nature of Chinese diplomacy from contacts among states that were formally regarded as equals to contacts between the Chinese emperor, head of the Confucian "family" of East Asia,

932

Immunities and Privileges

and peripheral areas, junior members of the "family" that paid homage in the form of periodic tribute. The Chinese emperor sent "special emissaries to officiate at the investiture of new tributary kings and to confer on them the imperial patent of appointment," 4 and he also dispatched relief missions to aid them in their times of trouble. In return the tributary states periodically sent ad hoc tribute bearers to Peking via an assigned route under Chinese escort; after performing the kowtow, paying tribute, receiving gifts from the emperor, enjoying official hospitality, and selling their native products on the local market for a few days, they were promptly escorted out of China. Tribute bearers "were not allowed to purchase Chinese guns or books while in the capital, lest they make trouble or become too wise. They were not allowed to roam about freely in the streets without first securing per­ mission from the proper Chinese authority, who would then specially guard the streets they were to pass through." 5 These severe restrictions' upon the duration of foreign emissaries' visits and the scope of their activities reflected millennial Confucian distrust of barbarians and the consequent policy of segregating them from Chinese life. Despite the vast differences between the tribute system and the Western system of diplomatic intercourse, the earliest Western missions to China were so eager for trade and so lacking in military force that they yielded to Chinese insistence that they conform to the pattern of tributary missions. Beginning with the famous mission of Lord Macartney in 1793, however, the Western states began to balk at fitting into the tribute system, and the nineteenth century brought increasing demands upon China to abandon its traditional practices and to permit permanent diplomatic representation in Peking according to Western international law. Britain's victory in the Opium War forced China in the Treaty of Nanking of 1842 to permit consular officers to be sta­ tioned ill the five treaty ports that were opened to trade and to give British officials the right to "correspond with" Chinese officials in Peking. It was not until 1858, however, that the British, by threatening another powerful military action, coerced China in the Treaty of Tientsin to "agree that, in accordance with the universal practice of great and friendly nations, Her Majesty the Queen may, if she see fit, appoint Ambassadors, Ministers, or other Diplomatic Agents to the Court of Peking. . . ." 6 This treaty gave Britain the right to maintain a permanent legation in the capital, specified that its diplomatic representative "shall not be called upon to perform any ceremony derogatory to him as representing the Sovereign of an inde­ pendent nation, on a footing of equality with that of China," 7 and set forth his right to security of his person and property, to freedom of travel and correspondence, and to "the same privileges as are accorded

Immunities and Privileges

933

to officers of the same rank by the usage and consent of Western nations." 8 The treaty also prescribed most-favored-nation treatment for British consuls, who were required to be treated with due respect and to be received by local officials on a footing of equality.9 By virtue of separate treaties concluded the following day, France, Russia, and the United States obtained similar concessions, and the Western law of diplomatic privileges and immunities was thus forcibly introduced into China. After China forcibly prevented ratification of these treaties in 1859, the British and French forces literally shot their way into Peking in 1860 to make possible the actual establishment of permanent diplomatic representation there. Although the Treaty of Tientsin of 1858 had also provided for the accreditation of Chinese diplomats to the Court of St. James, not until 1877 did China establish a permanent diplomatic mission there, its first in any country. The intervening period had witnessed the Peking elite's gradual assimilation of Western international law, which did much to overcome the widespread resistance to maintaining diplo­ mats abroad contrary to China's heritage. One of the mandarins' prin­ cipal incentives for learning international law had been the promise that it held forth of providing "laws which can to a considerable extent control the foreign consuls" in China.10 It also came to be perceived, largely through the efforts of missionary W. A. P. Martin, who pre­ pared a dozen essays on the rights and duties of ambassadors and con­ suls, that international law would guarantee protection to envoys whom China might send abroad, thereby putting to rest the traditional fear that foreign envoys might be detained as hostages.11 Scholars of international law can do much more than they have done to study the record of the state practice of the late Ch'ing dynasty and the Republic of China with respect to diplomatic and consular privileges and immunities. It seems clear, however, that prior to the advent of Communism, modernizing Chinese elites had generally assimi­ lated the pertinent principles of the Western law of nations.12 Yet even those with only passing acquaintance with modern Chinese history will recall instances during the past century when China's rulers failed to protect foreign diplomats and consuls. For example, during the socalled "Boxer Rebellion" of 1900, the Ch'ing dynasty declared war against the major foreign powers and permitted a fanatically xenophobic secret society to wreak havoc upon foreigners; although the governors of central and southern China continued to protect foreign consuls and residents, and refused to acknowledge the declaration of war, there was an eight-week military siege of the eleven foreign legations in Peking. Thus the events of the Great Proletarian Cultural Revolution,

934

Immunities and Privileges

which directed worldwide attention to China's treatment of foreign diplomats and consuls, were not without historical antecedents. The Cultural Revolution obviously constituted a significant period in the development of Chinese Communist attitudes toward the repre­ sentatives of other states, and we will present a good deal of material from that era. But it should be remembered that the Cultural Revolu­ tion was an extraordinary chapter in Chinese Communist history, that its worst excesses against diplomats and consuls were of relatively brief duration, occurring in the first nine months of 1967, and that, as the political turmoil subsided, the regime gradually returned to its pre-1967 behavior. Just how unusual 1967 was for China's foreign relations can be seen from the fact that from January until September the Foreign Ministry itself was the scene of an acute struggle between extremist factions, on the one hand, and the more conventional diplo­ matic bureaucracy presided over by Foreign Minister Ch'en Yi, on the other. On January 24, 1967, Ch'en Yi delivered a confession of his errors to ten thousand personnel of the ministry, and, as the campaign against him mounted in intensity in April and May, the ministry was twice assaulted and temporarily occupied by bands of Red Guards. The climax occurred in August when an extremist Red Guard group "seized power" from Ch'en Yi and at least twice subjected him to the harsh abuses of a "struggle" meeting before thousands of witnesses.13 Therefore we should not assume on the basis of events during the Cultural Revolution of 1966-1969 that the PRC acted the same either before or after that period. Moreover, the Cultural Revolution left many aspects of the privileges and immunities of foreign representatives untouched, so that the PRC's earlier record continues to furnish a guide to its present views on these matters. Unfortunately, neither the 1961 Vienna Convention on Diplomatic Relations nor the 1963 Vienna Convention on Consular Relations pro­ vides restraints upon the PRC in addition to those imposed by custo­ mary international law, for the Peking regime was precluded from sign­ ing or acceding to those conventions prior to its entry into the United Nations.14

Diplomats

27

1. Nature and Functions of Diplomatic Representation

27-1 "In answer to readers: How to Explain 'Repre­ sentative Abroad With Plenary Power' and 'For­ eign Envoy,' " JMJP (Jan. 23, 1955), p. 6. A representative abroad with plenary power generally is a formal diplomatic agent sent by a state to another state. From the viewpoint of the host state, a representative abroad with plenary power is a foreign envoy. Representatives abroad with plenary power are generally classi­ fied into Ambassador Extraordinary and Plenipotentiary and Envoy Extraordinary and Minister Plenipotentiary. The powers and functions of an ambassador and a minister are the same and mainly include the following: (1) To represent his home state; (2) To protect the interest of nationals of his home state; (3) To assist and develop diplomatic relations between the two states; and (4) To study and to report systematically to his home govern­ ment the political, economic, and cultural conditions of the host state. The distinction between an ambassador and a minister is merely that the rank of an ambassador is higher than that of a minister. The sending of ambassadors or ministers between states must be reciprocal. If state A sends an ambassador to state B, the latter cannot just send a minister to state A. The question of whether a state should send an ambassador or a minister to another state depends upon the closeness of the relationship between the two states and the complexity and volume of the work involved. According to international practice, the dispatch of an ambassa­ dor or a minister to another state must have the consent of the latter state. Since . . . an ambassador or a minister is the representative of the sending state in its intercourse with the other state, he generally lives in the capital of the host state. . . . Moreover, since he repre-

936

Immunities and Privileges

sents not only his home state but also the head of his home state, he is entitled to contact directly with the head of the host state. When an ambassador or a minister is removed from his duty as a result of the expiration of his term or other reasons, his home state will recall him and send another person to replace him. Ambassadors or ministers cannot be sent between states which do not have diplo­ matic relations. Therefore, when a state, due to certain reasons, does not want to maintain relations with another state, it will recall its ambassador or minister accredited to the other state. For instance, in April 1954, because of the extremely discourteous acts taken by the Australian government against the Soviet diplomatic staff in Australia, the Soviet Union recalled its ambassador to Australia and all its embassy staff. Moreover, there is also the case when a diplomatic agent is withdrawn at the request of the host state. For instance, in the middle of October 1952, due to the ill will and hostile attitude against the Soviet Union taken by the American ambassador to the Soviet Union in violation of the generally recognized rule of international law, the Soviet government, acting through its then Foreign Minister, Vishinsky, sent a note to the United States declaring the American ambassador to the Soviet Union, Kennan, as persona non grata and insisting that Kennan be recalled from his post as American ambassador to the Soviet Union. Also if a war is declared between two states, both will recall their respective ambassadors or ministers. In addition to ambassadors or ministers mentioned above, there exists also a category of "special envoys." A special envoy is a plenipotentiary representative whom a state dispatches to fulfill a special mission. In June 1953, when the Queen of England held her coronation ceremony, the Soviet Union appointed its ambassador to England, Malik, as the special envoy to extend congratulations at the ceremony. Furthermore, the permanent delegates of states to the United Nations are also representatives abroad with plenary power. The status of those delegates attending the General Assembly of the United Nations or other important international conferences should be the same as that of representative abroad with plenary power.

27-2 "Diplomatic Agents and Consuls," Shih-shih shouts'e, no. 8:38-40 (Apr. 25, 1955). I. Currently, the permanent diplomatic agents accredited between states may generally be classified into three ranks: ambassador, minister, and charge d'affaires. The ambassador and the minister are sent in the

Diplomats

937

name of the head of a state to the head of another state. The charge d'affaires (permanent) is sent in the name of the foreign minister of a state to the foreign minister of another state. . . . Charge d'Affaires. Charge d'Affaires are classified into "perma­ nent charge d'affaires" and "charge d'affaires ad interim." The charge d'affaires is the lowest rank of diplomatic agent, and generally they are exchanged on a reciprocal basis. For instance, the diplomatic agents now exchanged between our country and Britain are permanent charges d'affaires. A charge d'affaires ad interim is a member of a legation delegated by the ambassador or minister to take care of the business of the legation during his absence on leave. [The head of the legation] usually designates a senior member of the legation (a counsellor, or, in the absence of a counsellor, the secretary) to serve as the charge d'affaires ad interim. Moreover, in the British Commonwealth of Nations, the diplo­ matic agents exchanged between the United Kingdom (Britain) and members of the Commonwealth, and among the members themselves, are called "High Commissioners." Their responsibilities are generally the same as those of the other types of diplomatic agents. Special Envoys. Besides permanent diplomatic agents, a state may sometimes send an agent with plenary powers called a "special envoy" to perform an ad hoc mission. The role of this type of agent is usually of a ritualistic nature (such as attending the celebration of a national day, the ceremony of coronation or the funeral of the head of a state). [The special envoy may also be] sent to a state to inform that state of an important matter. However, sometimes a special envoy plays an important diplomatic role (such as that played by the repre­ sentatives of the President of the United States sent to the Soviet Union and Britain during the Second World War). . . . II. The diplomatic mission headed by an ambassador is called an embassy; if headed by a minister it is called a legation; if headed by a permanent charge d'affaires it is called an office of the charge d'affaires. In a diplomatic mission, there are working members in addition to the head of the mission (ambassador, minister, or permanent charge d'affaires). These members generally may be classified into three cate­ gories: (1) formal diplomatic staff, (2) ordinary staff, and (3) service staff. Counsellors, Secretaries, and Attachis. These are all formal diplomatic personnel and they enjoy diplomatic privileges and immuni­ ties (there are a number of these immunities, such as immunity from arrest, immunity from the jurisdiction of the local court, exemption from the taxes of local governments, and so forth). Counsellors are the senior staff of the legation and are the chief assistants to the head

938

Immunities and Privileges

of a legation. (Some countries classify counsellors into first and second rank, and in comparatively large embassies there are counsellors with the titles of ministers). Secretaries are usually classified into three ranks: first secretary, second secretary, and third secretary. They handle daily business. Attaches, the lowest rank in the diplomatic staff, generally handle routine business. Commissioners and Military A ttaches. In addition to the coun­ sellors, secretaries, and attaches sent by the ministry of foreign affairs of a state, there are other personnel sent by other organs of the sending state to assume the responsibility for studying certain specialized prob­ lems and to maintain liaison with certain organs of the receiving state. The most common of this type of staff are military attaches, naval attaches, air attaches, commercial attaches (or commercial counsellors), cultural attaches (or cultural counsellors), press attaches, and so forth. They have the power to enter into direct relations with the appropriate organs of the receiving state and to conduct negotiations concerning certain problems. They are also formal diplomatic staff and enjoy diplomatic privileges and immunities. There are no commercial coun­ sellors or commercial attaches in the Soviet legations established abroad. They appoint a commercial representative and a deputy representative to take charge of the office of the commercial delegation. Their role is to realize and develop commercial relations between the sending state and the receiving state on the basis of state-run foreign trade, to study the economic situation of the receiving state, and to maintain liaison with the commercial organs and banking, industrial, and commercial circles. The office of the commercial delegation of the Soviet Union is a constituent part of a legation and the commercial representative and deputy representative both enjoy diplomatic privileges. Whether the ordinary staff of a legation, such as clerks, account­ ants, typists, receptionists, decoders, and service staff, such as chauf­ feurs, cooks, doormen, gardeners, are to enjoy certain rights and preferential treatments, is decided in accordance with the relevant laws, regulations, and customs of the receiving state. In the great majority of states (such as our country and the Soviet Union), the ordinary staff of legations do not enjoy diplomatic privileges. There is no uniform international practice to decide how many members (including diplomatic and nondiplomatic personnel) a lega­ tion should have. The matter is to be decided by the government of the sending state in accordance with the requirements of the work. NOTE

In practice, occasionally the PRC has explicitly acknowledged the value of diplomatic relations. In 1955, for example, its consul general in Geneva wrote his Japanese counterpart:

Diplomats

939

Between China and Japan, there are quite a number [of] important outstanding problems involving the interests of both peoples which need to be solved, such as the expansion of normal trade between the two countries, promotion of contacts between both peoples, and proper respect for the legitimate rights and interests of the nationals of both countries. But, obviously, the most urgent problem that needs solution in the first place is the normalization of relations between the two countries. The solu­ tion of these problems would definitely be hampered if the state of war between China and Japan is not ended and their diplo­ matic ties not restored. The Chinese government maintains that the time has come for the governments of both countries to enter into negotiations for normalizing relations between the two coun­ tries. It believes that if the Japanese government entertains the same desire, ways can be found to normalize Sino-Japanese rela­ tions. In this connection, the Chinese government is willing to put forward the further proposal that it welcomes conducting nego­ tiations in Peking with a delegation sent by the Japanese govern­ ment on the question of normalizing Sino-Japanese relations.15 Britain's efforts to exchange ambassadors with the PRC—unsuc­ cessful until March 13, 1972 (recall Note following 10-16)—illustrated the distinction Peking draws between representation at the ambassa­ dorial level and representation at a lower level: Premier Chou En-Iai said here [Peking] tonight that China was holding talks with Britain on the possibility of raising ChineseBritish diplomatic relations to the ambassadorial level. Diplomatic relations between the two countries have remained at the charge d'affaires level since they were instituted in 195[4]. . . . But, Mr. Chou added, "There are still perhaps some difficulties." Observers interpreted this as an allusion to the facts that Britain maintained a consulate in Taiwan and that up to last autumn, although Britain voted for Peking's [representation in] the United Nations, she sided with the United States in declaring the matter [an "important question"] in the General Assembly, which requires a two-thirds vote and which effectively barred Peking's entry.18 The following dispatch offers some insight into the nature and function of a Chinese embassy, one that was located on hostile soil during the Cultural Revolution.

940

Immunities and Privileges

27-3 J. Anthoriy Lukas, "Isolated Chinese in New Delhi Have Few Visitors in Embassy," New York Times (Apr. 25,1967), p. 10. It was 96 degrees in the shade here today, but the big blue swimming pool at the Chinese Communist embassy was as dry as some people find the collected works of Mao Tse-tung. "We haven't opened it yet," a Chinese official said. "There aren't many of us here to use it." China's embassy, which opened this spring after 11 years of plan­ ning and construction, is a monument to the bitterness between Asia's two largest nations. First designed in the middle fifties when Indians chanted "Hindi Chini bhai bhai" (Indians and Chinese are brothers), the embassy was intended to be a symbol of fraternal relations between the two countries. It was assigned a 30-acre plot, the biggest given any nation, in the capital's new diplomatic district, where most embassies are now situated. The next biggest, the American Embassy, has 28 acres. Most have far less.

500-Foot-Long Building The original plans for the Chinese embassy called for a 500-footIong chancery building, a second office building, a club and recreation hall, two dormitories for 60 persons each, three other residential build­ ings beside the ambassador's residence, a garden and outside reception area, swimming pool, tennis courts, basketball courts, and servants' quarters. The Chinese-Indian border war of late 1962 interrupted the pro­ ject and, when an uneasy peace was restored, the Chinese scaled down the project. When the embassy was finally opened for business in February, more than half of the 30 acres were still a wilderness of scrub brush and eroded red earth. Only a five-foot-high brick wall marks the embassy in these areas leading some Westerners to speak of "the great wall of China."

Six Diplomats Left The chancery and office building have been dropped altogether while the club building and dormitories have been partly converted to

Diplomats

941

offices. By the time the embassy was ready to open, there were few Chinese here to occupy it. Last October there were only 10 Chinese diplomats and 22 others here. Since then at least four diplomats, five wives, and half a dozen others have left for home. A Chinese official said: "They have gone home to participate in the great Cultural Revolution; we feel that everybody should be exposed to the great events which are going on at home." The skeleton staff that remains at the embassy is virtually cut off from the life of the capital. Chinese diplomats are not invited to government functions or most private entertaining here. Occasionally, a Chinese diplomat shows up at a reception given by one of the Arab or East European embassies. Indian police agents squat on the grass across the street, watching everyone who enters the embassy. One Indian who entered last week was told by a Chinese official: "You have come for the first time. We hope you will come again. But we are afraid you won't. The police will harass you, and you will not come any more." Movies Are Shown In the hall behind the reception room was a rolled-up cinema screen and a loudspeaker. "Sometimes we invite our Indian friends here for films about China," an official said. "But the police won't let them come." In an effort to reach at least a few Indians, the embassy has recently set up a big glass-encased information board outside the brick wall, topped by a sign reading "China Today." The board, which is illuminated at night, contains information on the economy ("1966—a year of an all-round leap forward in China's national economy") and statements by Chairman Mao ("The Chinese people have lofty aspirations and ability. They will certainly catch up with and surpass the advanced world levels in the not-too-distant future"). NOTE

Although the establishment of embassies is based on the principle of reciprocity, differing conditions in China and certain non-Communist capitals introduce differences in practice regarding facilities, as the new Chinese charge d'affaires in Canada discovered in 1971:

942

Immunities and Privileges After nearly three weeks in the snow-blanketed Canadian capital, the new diplomatic mission from Communist China is still house hunting. . . . It would seem the Chinese "require" a big building, or a com­ pound in which the ambassador and his staff, including cooks and chauffeurs, will work, eat, and sleep. Mr. Hsu has let it be known that the embassy will need a large room for receptions and grounds large enough for a garden. One problem arises from the fact that Rockcliffe, the woodland suburb favored for embassy residences, has zoning regulations barring business offices. Embassy residences there, including that of the United States, have their chanceries elsewhere. . . . In Peking the Canadian mission, headed by John Fraser, charge d'affaires, had its house and office hunting done for it. "The authorities told us what was available, and the choice wasn't great," said an official. "Here we are not in a position to recipro­ cate, and we had to tell Mr. Hsu that." 17

Item 27-4 illustrates the PRC's understandable sensitivity about foreign recognition of the title of its embassy and ambassador.

27-4 "Chinese Embassy Protests Most Strongly against Indonesian Government's Anti-China Provocations," PR 10.11:38-39 (Mar. 10, 1967). The Chinese embassy in Indonesia, in a note to the Indonesian Foreign Ministry on March 6, expressed the utmost indignation and lodged the most serious protest against the repeated virulent insults and grave provocations against the People's Republic of China by the Indonesian "Provisional People's Consultative Congress" and against the latter's despicable and outrageous act of changing the name of the great People's Republic of China. Recently, the Indonesian "Provisional People's Consultative Con­ gress" has repeatedly hurled virulent insults and made extremely grave provocations against the People's Republic of China. On February 28, in its invitations to the Chinese ambassador to attend the opening and closing sessions of its "special session," the leading clique of this Indo­ nesian organ went so far as to write the name of the People's Republic of China as the "Republic of China" to serve its vicious purpose. The Chinese embassy promptly expressed its stern stand by rejecting the invitations and lodged a strong protest through the bearer of the invita-

Diplomats

943

tions. On March 3, in similar invitations sent by the same clique, this time to the charge d'affaires ad interim of the Chinese embassy, the People's Republic of China was written as the "People's Republic of Tjina." The Chinese embassy once again sharply denounced this and returned the invitations. It expressed the utmost indignation and lodged the most serious protest with the Indonesian government in connection with the actions of the leading clique of the "Provisional People's Con­ sultative Congress" in deliberately insulting the Chinese people and repeatedly making outrageous provocations. The Chinese embassy's March 6 note said: "It is known to all that the so-called 'Republic of China' is nothing but the name of Chiang Kai-shek's small bandit gang which has long been discredited by the Chinese people and which has been reared by US imperialism. It is by no means accidental that the leading clique of your so-called 'supreme organ of state power' has openly used this dirty name to insult the great People's Republic of China." The note pointed out that their vicious acts only thoroughly exposed the ugly features of the Indonesian au­ thorities as willing pawns of US imperialism, slavishly serving their master's scheme of creating "two Chinas." The note went on to point out that, when the imperialists and colonialists ruled Indonesia, they used the word "tjina" to insult the Chinese people. The note said: "We want to tell you frankly that the 700 million Chinese people, who are armed with the great thought of Mao Tse-tung, are not to be insulted. Such despicable behaviour of yours not only will be opposed by the Indonesian people but also will be condemned by the people of the world." In its note, the Chinese embassy solemnly demanded that the Indonesian government immediately make a public apology for this incident and guarantee against the recurrence of similar incidents in future. Otherwise, the Indonesian government would be held fully responsible for all the consequences arising therefrom.

27-5 "On the Establishment of Diplomatic Relations and Other Questions," Shih-shih shou-ts'e, no. 11:42 (June 10, 1956). . . . What does an "ambassador-at-large" do . . .? An "ambassador-at-large" is a diplomatic official of a certain state (such as the United States) who possesses the title of ambassador but is not accredited to any state. The head of a state may at any time authorize an ambassador-at-large to go to certain states for a special

944

Immunities and Privileges

mission. He enjoys the privileges and immunities due to an ambassador (such as freedom from arrest, immunity from the jurisdiction of the local courts, and exemption from local taxes, and so forth) in the states he visits. He ordinarily in his capacity as an ambassador-at-large represents the head of his state, handling various problems of inter­ national affairs or attending international conferences. For example, Jessup was once an American ambassador-at-large and, during the tenure of United States Secretary of State Acheson, he was a power­ ful assistant to Acheson and concurrently chairman of Far Eastern Policy Planning Commission. As an ambassador-at-large he [visited] states in the Far East several times. He handled many important matters which Acheson was not willing to handle personally. He was authorized with full powers to handle various problems in international affairs on behalf of Acheson.

27-6 "On the Establishment of Diplomatic Relations and Other Questions," Shih-shih shou-ts'e, no. 11:42 (June 10, 1956). Do the Personal Representatives Sent by the Head of a State Have Diplomatic Status? Do They Have the Authority to Sign Diplomatic Documents? Why Does the Head of a State Send a Personal Representative instead of a Formal Representative? When the head of a state executes the external policy of a state, he cannot easily leave his country because his duties are heavy and his position is important; therefore, it is necessary for him to send out representatives. The most common types of representatives are am­ bassadors, special envoys, and so forth. In addition to these, the head of a state may send a personal representative to another state to handle a specific problem. For instance, in 1941 the President of the United States, [Franklin D.] Roosevelt, sent Hopkins as his personal repre­ sentative to the Soviet Union and other states. The so-called personal representative of the head of a state does not need to be appointed through formal process; nor does he possess credentials of full powers. He merely brings with him a letter of intro­ duction from the head of his state. He will transmit the views and opin­ ions of the head of his state concerning certain important political problems to the head of the state of the other party, or to the responsi-

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ble officials of the other government, and at the same time he will inquire into or explore the opinions and attitudes of the other party. Insofar as he is representing the head of a state, this type of representa­ tive enjoys a rather high status politically. However, since he is the personal representative of the head of a state and does not himself represent a state, legalistically speaking he does not have the authority to sign a treaty or other diplomatic documents on behalf of his state. It is customary for a state to grant diplomatic treatment to the personal representative of the head of another state. This is due to international courtesy. The primary reason for the head of a state to send a personal representative instead of a formal representative is the convenience of maneuver. At the same time this guarantees a more cordial reception by the host state. During the periods of the First and the Second World Wars, Presidents of the United States, on a number of occasions, sent out personal representatives.

27-7 "What Is Presentation of Credentials?" Shih-shih shou-ts'e, no. 16:41-42 (Aug. 25, 1956). Question: What are credentials? Answer: When the head of a state appoints or recalls from abroad a diplomatic agent, he will use the formality of a letter to notify the head of the receiving state. This is not an ordinary letter, but a type of formal diplomatic document to be signed personally by the head of a state and to be countersigned by the foreign minister. This type of document is what is meant by credentials. Question: What are [the different] types of credentials? Answer: Generally, there are several types of credentials as follows: (1) Letter of credence. This is a letter addressed by the head of a state to the head of a receiving state when sending a diplomatic agent abroad. The letter will state the name and rank of the diplomatic agent sent to the receiving state and will express the hope that the receiving state will give him credence and assistance. (2) Letter of recall. This is a letter written by the head of the sending state to the head of the receiving state when recalling its diplomatic agent from the receiving state. The letter will inform the head of the receiving state of the decision to recall a certain diplomatic agent from that state and will express gratitude for the assistance granted during the term of the diplomatic agent. (3) Besides the two types of credentials mentioned above, when a

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state has an important ceremony or when its head of state passes away, other states send special envoys to express congratulations or con­ dolences. The special envoy also carries credentials. An example of this practice occurred in March of this year [1956], at the founding of the Pakistan Islamic Republic. To celebrate the event our country's special envoy, Vice Premier of the State Council Marshall Ho Lung, presented a letter of congratulations to the President of Pakistan. Question: What does "presentation of credentials" mean? Answer: The presentation of credentials and their acceptance indicate the formal taking of office by a diplomatic agent. After completing this process, the status of this diplomatic agent as well as his rights and duties are confirmed. The precedence of diplomatic agents of various states in the diplomatic corps of the receiving state shall be determined by the dates of presentation of credentials. Question: Who accepts credentials? Answer: According to international practice, the head of the receiving state shall personally accept credentials. This is explicitly provided by the constitutions of many states. The Soviet constitution provides that the Presidium of the Supreme Soviet shall accept credentials. Our country's constitution provides that the Chairman of the People's Republic of China shall receive foreign diplomatic agents. If the head of a state, due to illness, vacation, absence, or other reasons, cannot personally accept credentials, the credentials shall be accepted by the deputy head of state or some other legally authorized person. For instance, in our country if the Chairman of the People's Republic of China cannot personally accept credentials, the latter shall be accepted by the Vice-Chairman. If both the Chairman and the Vice-Chairman cannot accept credentials, the credentials shall be accepted by the chairman of the Standing Committee of the National People's Congress. In the German Democratic Republic, if the Presi­ dent cannot personally accept credentials, they shall be accepted by the President of the Volkskammer [People's Chamber], In the Kingdom of Sweden, if the king cannot personally accept the credentials, the crown prince accepts the credentials. Question: What constitutes the process and ceremony for presenting credentials? Answer: The situation is generally as follows: When a diplomatic agent is sent abroad to take up office, he carries with him credentials signed formally by the head of his state, and a copy of that document. After arriving at the receiving state, the diplomatic agent may request a meeting with the foreign minister of the receiving state. At such time as the meeting takes place, he shall hand over the copy of his credentials and a draft of the speech he intends to deliver at the time he presents

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credentials. He shall also consult with the foreign minister on the date and ceremony concerning presentation of credentials. When the diplomatic agent is scheduled to present his credentials, the receiving state shall send a state carriage to take him and his attaches, accompanied by the director of the protocol department of the Foreign Ministry, to the place where the credentials are to be presented. (The United States does not provide a state carriage, so the diplomatic agent uses his own car to reach [the place for presenting credentials].) Simultaneously, the head of the receiving state and his ministers are waiting for the diplomatic agent to arrive. When the diplomatic agent enters the hall where he will present his credentials, the director of the protocol department of the Foreign Ministry of the receiving state first announces the name and official title of the diplo­ matic agent, then the diplomatic agent himself presents his credentials to the head of [the receiving] state. Afterwards, the diplomatic agent delivers a speech (sometimes called the commendatory speech), fol­ lowing which the head of the state replies. After the diplomatic agent introduces the other diplomatic staff of his legation to the head of the state, the latter will conduct private conversation with the diplomatic agent in a separate guest room. The foreign minister of the receiving state is also present during the course of the conversation. When the conversation is concluded, the director of the protocol department shall send the diplomatic agent and his attaches back to their legation. The above describes how a diplomatic agent with the rank of ambassador or minister presents his credentials. A permanent charge d'affaires does not carry credentials with him, but does present a letter of introduction from the foreign minister of his state to the foreign minister of the receiving state. There is no ceremony for presenting the letter of introduction. In the course of diplomatic relations, the credentials should be replaced if the form of a state changes, or if the head of a monarchy passes away, and on other occasions. However, when the head of a republic changes, there is no need to present new credentials. NOTE

On the day that the United Kingdom and the PRC agreed to exchange ambassadors (recall Note following 10-16), Reuters reported from Peking: Tonight, [Vice-Foreign Minister] Ch'iao Kuan-hua hosted a dinner at the Chinese Government Guest House for [John] Addis [British charge d'affaires who had been designated the United

948

Immunities and Privileges Kingdom's first ambassador], British diplomats and their wives in a move seen here as an exceptional courtesy. Such a dinner is not normally given until after an ambassador has presented his credentials, and the Chinese waived protocol to treat Mr. Addis as an ambassador from the start.18

The most recent and most innovative example of Chinese willing­ ness to depart from customary practice relating to the establishment of diplomatic missions was the 1973 agreement between the PRC and the United States to establish official "liaison offices" in each other's capital, despite the fact that the two governments did not maintain formal diplomatic relations (see Note following 29-11).

27-8 "On the Establishment of Diplomatic Relations and Other Questions," Shih-shih shou-ts'e, no. 11: 41-42 (June 10, 1956). Does Recall of Envoys or Closure of Legations Constitute Severance of Diplomatic Relations? . . . Generally, the mission of a diplomatic agent may be terminated, and he himself may be recalled for the following reasons: (1) The government of the sending state decides to terminate the mission (because of the transfer of the envoy to another place, his resignation, or his dismissal). Under these circumstances, the recall of the diplomatic agent does not mean the rupture of relations between two states because, after the recall of the original diplomatic agent by the sending state, the latter will appoint a new diplomatic agent to suc­ ceed him. Moreover, during the time between the absence of the original agent and the arrival of the new agent, the sending state [would usually] appoint a charge d'affaires ad interim to handle diplo­ matic affairs. Although the diplomatic agent has been recalled, the legation is not closed; therefore, relations between the sending state and the receiving state do not terminate. (2) The government of the receiving state requests the sending state to recall its envoy on grounds of improper conduct by the envoy. (He is declared persona non grata in international law.) Under such circumstances, if the government of the sending state agrees to replace the envoy, naturally no problem will arise. However, if the sending state does not consider the conduct of its envoy improper, and the re-

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ceiving state insists upon the recall of that envoy, then the act of requesting recall may lead to the rupture of diplomatic relations. (3) Both states may recall their respective diplomatic agents on grounds of serious deterioration of relations or the outbreak of war. This situation is generally called ["!severance of diplomatic reIations["]. That is to say, the legation is closed when the personnel of the diplo­ matic representative organ withdraw. The sending state will entrust to the envoy of a third state the care of the interests of its nationals [in the receiving state].

27-9 Fu Chu, "Diplomatic Privileges," Shih-chieh chihshih, no. 21:32 (Nov. 10, 1965). The diplomatic personnel sent by a state permanently or tem­ porarily to a foreign state enjoy certain special rights and preferential treatment in addition to the deference required by etiquette. These rights and preferential treatment are generally referred to as "diplomatic privi­ leges" or "diplomatic privileges and immunities." The receiving state grants these diplomatic privileges both out of respect for the sending state and in order to ensure and facilitate the smooth performance of normal functions on the part of the diplomatic personnel. . . . The basic content of diplomatic privileges. According to inter­ national practice, diplomatic personnel generally enjoy the following special rights and preferential treatment: (1) The person, premises, residence, official papers, files, and property of diplomatic personnel are inviolable. (2) Diplomatic personnel enjoy immunity from crimi­ nal, civil, and administrative jurisdiction. That is to say, they are immune from the criminal, civil, and administrative jurisdiction of the receiving state. (3) [Diplomatic personnel enjoy] freedom of communi­ cation (including the use of cipher, telegram, and the dispatch of couri­ ers). (4) [Diplomatic personnel enjoy] exemption from taxes and dues. (5) [Diplomatic personnel] enjoy precedence and preferential treatment in etiquette, including the right to display their national flag and to bear their national emblem. The inviolability of the person of diplomatic personnel. The inviolability of the person of diplomatic personnel is the most funda­ mental and important element of diplomatic privilege. It is one of the universally recognized principles of international intercourse. Between states maintaining diplomatic relations, if one state agrees to accept the establishment of an embassy on its territory by another state, then it

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naturally assumes the obligation to ensure the personal safety of the diplomatic personnel [of the sending state]. This condition is most basic to the proper functioning of diplomatic personnel. In accordance with this privilege, neither the armed forces and police, nor any other personnel of the receiving state may search the person of diplomatic personnel, arrest them, detain them, or even insult them. Moreover, the government of the receiving state is obligated to take all steps necessary to ensure the personal inviolability of diplo­ matic personnel and to protect them from any violent attack or insult whatever. If anyone attacks or insults diplomatic personnel, the govern­ ment of the receiving state is under an obligation to punish the offender. The inviolability of the embassy premises, files, and official docu­ ments. The inviolability of the embassy premises (including the offices and the residences) of diplomatic personnel is another very basic diplomatic privilege. This privilege is granted out of respect for the dignity of diplomatic personnel. Also, it is a necessary condition to enable them to smoothly carry out their normal functions immune from outside interference. International practice dictates that the armed forces as well as the judicial, tax, and other officials of the receiving state may not enter the premises of diplomatic personnel without special permission from the head of the embassy. They may not search the premises either. At the same time, the government of the receiving state is obligated to take all appropriate measures to ensure that a foreign embassy is immune from invasion. Another privilege enjoyed by diplomatic personnel is the inviola­ bility of the embassy's files and official documents. This is to ensure that the staff is free to carry out their functions. In other words, none of the embassy's official documents and files may be investigated, de­ tained, destroyed, or confiscated [by the receiving state] anywhere or at any time. The responsibility of the receiving state toward the personal safety of diplomatic personnel. According to international law and international practice, the government of the receiving state is obligated to take all necessary measures to ensure the safety of the person of the diplomatic personnel, as well as the security of the embassy prem­ ises. . . . Any attack on the person of diplomatic personnel or on the embassy premises constitutes a serious act of international delinquency. The government of the receiving state must bear all the consequences [of this international delinquency]. This includes [the responsibility of making] an apology, providing compensation, punishing the criminals responsible, and so forth.

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NOTE The previous items in this chapter suggest that scholars and publicists in the People's Republic share the orthodox view of the nature and functions of diplomatic representation and the privileges and immunities of diplomats. The materials in the following sections will indicate the extent to which the PRC has actually conformed to the generally accepted notions of the law of diplomacy recited above. Before presenting these materials, we reproduce two items of interest: some rules that, according to Nationalist Chinese sources, govern the conduct of Chinese diplomats; and a French legal scholar's interpre­ tation of Peking's diplomatic conduct, an interpretation colored by the author's personal experience on the staff of the French embassy in Peking during the early phases of the Cultural Revolution but that nevertheless purports to be based on earlier practice as well.

27-10

*

"Working Regulations Governing [Staff Activities] outside the Embassy," in Li Shih-fen, Kung-fei tuiwai cheng-ts'e yii huo-tung (Foreign policies and activities of the Communist bandits; Taipei, 1966), pp.58—59. (Referred to as "twelve articles for working abroad.") 1. Be loyal to the motherland and to the party. Neither do nor say anything which is harmful to the motherland. 2. Carry out vigorously the foreign policy of the party, establish proletarian internationalism, and oppose big-power chauvinism. 3. No relationship may be maintained between [an embassy staff member] and any foreign organs and their staff members. [An embassy staff member] shall not take advantage of performing his duty in order to make personal profit; nor shall he give or receive gifts in private. 4. Strictly maintain the standpoint of a proletarian. Do not be over­ come by power and force, and do not be corrupted by fortune and honor. 5. Strictly comply with the collective report system and the request for instruction system. Respond faithfully to all situations, and strictly manage all matters according to instructions. 6. Strictly carry out the system of keeping secrets. Do not leak the secrets of the state and the organization. Do not enter any foreign recreation areas.

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Immunities and Privileges

7. Maintain a fearless and brave spirit, and engage in a ruthless struggle against the class enemy. 8. Love relationships with foreigners are prohibited, as are marriages. 9. Drunkenness is forbidden. When drinking liquor at a reception or party given by a foreigner, do not drink more than one-third of capacity. 10. [When dealing with foreigners,] be neither rude nor cringing, but humble and cautious. 11. Observe the usages, customs, policy, and laws of the receiving state. 12. Foster the tough and simple style of working, and oppose the pur­ suit of bourgeois living. (Note: Do not copy the articles stated. Memorize them word for word, then burn.) (These articles shall be complied with by all personnel working abroad.)

27-11 Philippe Ardant, "Chinese Diplomatic Practice during the Cultural Revolution," in Jerome Alan Cohen, ed., Chinas Practice of International Law: Some Case Studies (Cambridge, Mass., 1972), pp. 86—91 (notes omitted). The behavior of Chinese authorities in conducting diplomatic re­ lations is difficult to understand in terms of the norms and customs currently accepted in international society. Indeed, foreign diplomats stationed in Peking find themselves in a peculiar and uncomfortable situation. In Peking, they do not receive the treatment to which they are accustomed. Their position ensures them of few special considera­ tions or facilities and is instead a source of frequent unpleasantness. Sometimes, they face annoying or even tragic circumstances without being able to rely on the sympathy or protection of the state to which they are accredited. In the same way, the attitude of Chinese diplomats in the service of their country often appears surprising. Their language contrasts with traditional diplomatic parlance, and some of their actions and initiatives are characterized by a taste for the spectacular, sometimes the provocative, which at times seems like a deliberate breach of the reserve generally characteristic of embassies. A series of offensive episodes and the permanence of this provoca­ tive behavior denote an obvious unwillingness to bend to the rules of diplomatic life that have been refined by international practice. This refusal is not the expression of a pragmatism considered a better guarantee of effective diplomatic action. It is, instead, a strategy

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based on a coherent, original conception of diplomatic relations. The Chinese believe their attitude is dictated by the actual state of interna­ tional society and is, therefore, the only proper one. The practices they have chosen must contribute to opening a path to the kind of world they dream of and toward which they labor. At this point, Chinese diplomacy goes beyond the framework of China's foreign relations; it would appear to be a model intended as a substitute for the diplomatic rules consecrated by the Convention of Viennaof 1961. In effect, China's policy tends to make the People's Republic the center of world revolution, a title to which the Soviet Union, "cor­ rupted by revisionism," can no longer pretend. While Chinese policy­ makers may at one time have fancied forming an international organiza­ tion rivalling the United Nations, they are no longer attached to the concrete realization of this design, and the hopes given birth by the departure of Indonesia from the UN in 1965 have been disappointed. For the moment, they strive to display an active concern toward the malcontents in the present international order. They exploit and seek to amplify all the antagonisms: poor peoples against rich nations, exploited masses against "corrupt governments," colored peoples against white societies, the Afro-Asian countries against Western states, and so forth. They place themselves at the heart of associations which are under their protection and are without ties to the United Nations, such as Afro-Asian writers and journalists, athletes of the "newly emerging forces," and so forth. To all those who rise or seek to rise against the current interna­ tional order, China exemplifies a course of action destined to overthrow this order. At the same time and by another viewpoint, it prefigures relations which conform to Chinese beliefs. Present Chinese diplomatic practice is only one element of this attitude. Chinese diplomacy is thus an instrument in the service of world revolution, and as such, it cannot obey the same rules as Western or Soviet diplomacy. Therein resides the essential explanation of the conduct of diplo­ matic relations by the Chinese authorities. If they do not bend to the traditional rules of diplomacy, if they have never displayed an interest in the Convention of Vienna of 1961, the reason is that, from their viewpoint, these customs and this document correspond to the require­ ments of contemporary international society and are fashioned by "the bourgeoisie and other exploitative classes to ascertain and perpetuate their domination." At their core, the Soviet Union and the people's democracies are progressively more influenced by revisionism. As the fruit of bourgeois ideology, approved by these deviant revisionists, traditional diplomatic practice is challenged by China.

954

Immunities and Privileges

All of this notwithstanding—and a priori this is one of the para­ doxes of the Chinese attitude—the Peking government attaches great importance to the adherence by nonrevolutionary states to the tradi­ tional rules of diplomacy in their relations with China. The Chinese Ministry of Foreign Affairs thus frequently takes the position of a censor, an intransigent guardian of bourgeois legality; it puts into practice the duality of attitude toward liberty espoused by Louis Veuillot: "I demand liberty from you in the name of your principles, but I refuse it to you in the name of mine." Chinese authorities demand for their diplomats all the facilities and privileges springing from inter­ national practice. At the same time, they refuse to place themselves under corresponding obligations or to accord the same facilities and privileges to the members of foreign diplomatic missions in China. . . . But, and this complicates the picture one wants to draw, the Chinese have never—to my knowledge—declared openly and officially that they considered the rules of traditional diplomatic practice not bind­ ing upon them. Moreover, on occasion they assert that their conduct conforms to the "guiding principles of international relations" or to "international usage." This declaration generally appears in those cases where Chinese diplomats have suffered harassment or persecution by authorities of the state to which they are accredited. In such instances, they protest that nothing in their behavior can be considered so irregu­ lar as to justify the treatment they have received. Their submission to traditional practice, then, seems like a convenient argument without general significance. Moreover, analysis of the behavior of Chinese authorities clearly verifies the impression that China has no intention of submitting to the "norms of international law." It has its own conception of diplomatic relations, which, it is true, is not opposed to a conditional reference to "international usage" when this usage is favorable to Chinese interests and world revolution. China's attitude, furthermore, cannot be explained solely by its current ideology or by the role it wishes to play in the world; history has a part in all that astonishes a Westerner in the scheme we have just drawn. It should not be forgotten that until recently China had little experience with relations between equal states or political groups. . . . Have things changed very much since the end of the nineteenth century? Knowledge of the foreign now comes in a simplistic vision, implanted by daily propaganda, of a world divided between good and evil, where truth is incarnated in the thought of Mao Tse-tung. China is the leader of world revolution; other peoples must study its example and be inspired by its methods and achievements. Not a day passes

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without the world being invited to pay attention to the Chinese ex­ perience. The old superiority complex of the Middle Kingdom fits this new role well. At the same time, the China of today is ill at ease in international society. It suifers, more or less consciously, from having been rejected by the UN for twenty-two years and ignored by other international institutions, from being recognized by a minority of states, and from being slandered and vilified by the others. A newcomer in 1949 to an international order which was constructed without it and where its place was contested, China does not always know its rules and does not will­ ingly make an effort to assimilate them. To Chinese diplomats, the fabric of the practices observed by other states seems antiquated and bourgeois, and they [Chinese diplomats] seem to be afraid of not know­ ing how to operate in this traditional diplomatic context. Sometimes China gives the impression of being an unexpected guest at a reception, or of someone entering a club whose customs are unfamiliar. Con­ fronted by this strange environment, certain individuals—often because of personal idiosyncracies—exaggerate their awkwardness or behave in an insolent or rude manner. Under these conditions, the personnel representing foreign states in Peking and those who deal with Chinese diplomats are confronted daily by a diplomatic practice that questions the traditional definition of diplomatic status and that challenges the customary notion of embassy functions. The Chinese, in effect, propose an original model of diplo­ matic relations with respect to both the position of a diplomatic mission and its agents and the delimitation of their activities.

2. Protection Otving to the Premises of Diplomats

27-12 Beckman v. Chinese People's Republic, Sweden, Supreme Court, March 1, 1957, Nytt Juridiskt Arkiv, 1957, p. 195; English translation in H. Lauterpacht, ed., International Law Reports, 1957 (London, 1961), XXIV, 221-222. THE FACTS.—The plaintiffs in this case, Carin Beckman and Ake Beckman, children and heirs of Bengt Johansson, applied to the City Court of Stockholm for a summons against the Chinese People's Republic. They alleged that on October 4, 1954, certain real property situated in Stockholm and belonging to the estate of their deceased

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Immunities and Privileges

father had been sold to the Republic by the administrators of the estate of their late father without their consent and against their protests. They further alleged that the sale had not been required for the ad­ ministration of the estate and that it had been disadvantageous to them. On this ground they demanded that the purchase—for which the King in Council had granted permission on September 17, 1954— should be declared invalid. Upon inquiry by the Royal Swedish Ministry for Foreign Affairs, the Chinese embassy declared that it pleaded diplomatic immunity and that it was not willing to enter a defense. The City Court of Stockholm thereupon held that the application for a summons against the Republic must be rejected. The Court said: "As the dispute described in the application, which dispute concerns the question of ownership of a property purchased by the Republic and intended for use by its embassy in this country, is of such a nature that the Republic is entitled to immunity, and as all other circumstances are such that it must be regarded as evident that proceedings on that ground are barred, the City Court considers it right to dismiss the present application for a summons against the Republic." On appeal, the Court of Appeal held that the ruling of the City Court must be confirmed. On further appeal, to the Supreme Court, permission to bring the case before that Court was granted. When, on May 9, 1956, the case was presented to the Supreme Court, the latter decided to request the Minister for Foreign Affairs to procure information, to the extent that it conveniently could be done, concerning legal provisions, cases, and doctrinal views on the immunity of a foreign state from suit regarding real property and execution against such property, and especially with regard to property intended for use by the diplomatic mission of a foreign state. As a result of this request, letters and .detailed statements from the Swedish diplomatic missions in Washington, Brussels, Paris, Rome, Peking, The Hague, Berne, London, and Bonn, and by the Swedish Representative at the United Nations, were transmitted to the Court. Held: (by a majority of the Supreme Court—Strandberg, Lind, E. Soderlund, and Nordstrom JJ.): that the decision of the Courts below must be upheld. The reporting judge who presented the case to the Supreme Court stated in the report: "With a certain exception which may here be disregarded, written Swedish law does not contain any provisions es­ tablishing a right for foreign States to enjoy immunity from action in a Swedish court. Such a right to immunity must, however, be considered as recognized in Swedish law, and has constituted the ground for several decisions by the Supreme Court.

Diplomats

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"According to doctrines of international law, Swedish as well as foreign, the right to immunity is considered to be limited in such a way, among others, that actions concerning real property—regardless of the fact that the owner enjoys immunity—may be examined by a court in the state in which the property is situated. This principle—which accords closely with the generally accepted rule of procedure to the effect that the forum rei sitae is the exclusive forum for actions regarding real estate—has not, so far as is known, been confirmed in any leading case in Swedish legal practice, but must nevertheless be regarded as expressing Swedish legal opinion. "In the present case, Carin and Ake Beckman, as part owners of the estate of the deceased Johansson, have brought an action against the Chinese People's Republic before the City Court of Stockholm and have asked that the Republic's purchase of the real property No. 7 in the block 'Sidensvansen' in Stockholm be declared invalid. The circum­ stance that the property is used by the Republic for its embassy in this country cannot be considered as barring examination by the City Court of the case brought by Carin Beckman and Ake Beckman, the object of which examination is to determine the ownership of the real property in question. "It is my submission, therefore, that the Court should consider it right to set aside the rulings of the Courts below, and to refer the case back to the City Court, the further examination of the case to be resumed by that Court without the necessity for a renewed application by the plaintiffs." In its majority decision the Supreme Court said: "As the property in this case is used by the Republic for its embassy in this country, and the Republic for this reason must be regarded as entitled to plead im­ munity from the action brought by Carin and Ake Beckman, the Court upholds the ruling of the Court of Appeal." Justice Ljunggren approved the conclusion of the reporting Judge.

27-13 Wang T'ieh-yai, "On the Incident of Attacking the Rumanian Legation in Switzerland, from the View­ point of International Law," JMJP (Mar. 15, 1955), p. 3. The incident of an attack on the legation of the Rumanian Peo­ ple's Republic in the Swiss capital of Berne by a group of armed fascist gangsters on February 14 [1955] has caught the attention of many persons. This incident is obviously a violation of the rules concerning diplomatic privileges in international law, and at the same time it also

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Immunities and Privileges

seriously threatens the maintenance of normal diplomatic relations between states. In the Swiss capital the fascist gangsters, carrying grenades, auto­ matic weapons, gas masks, and other equipment, rushed to the house of the Rumanian legation, injured the members of the legation, and occupied the legation for 38 hours. An incident of an attack on a foreign legation in the capital of a state maintaining diplomatic rela­ tions with the state of that foreign legation is shocking and is previously unknown in the history of international law. It is one of the oldest rules of international law that foreign diplo­ matic envoys are entitled to enjoy privileges and immunities granted by international law. Earlier writers on modern international law unani­ mously have stressed this rule, and one earlier famous international law scholar, produced by Switzerland itself, Vattel, once emphatically explained, from the viewpoint of establishing diplomatic relations be­ tween states, the importance of having foreign legations enjoy privileges. Vattel said: "The same law of nations which obliges nations to receive foreign ministers likewise clearly obliges them, in receiving those ministers, to accord them all the rights they require and all the privileges necessary for the performance of their duties." 19 Since the seventeenth century, this rule has been a well-established rule of international law, and nowadays it also generally is recognized, and no state should violate this rule. The primary point of this rule is that foreign diplomatic envoys are inviolable. Inviolability is the most fundamental principle of the privileges of foreign diplomatic envoys, and the principle of inviolability requires that the host state should provide adequate protection for for­ eign diplomatic envoys. . . . However, the February 14 incident shows that the Rumanian legation in the Swiss capital was violated. The purpose of the fascist gangsters who rushed into the Rumanian legation was to harm the Rumanian envoys, and their violence threatened the security of all members of the Rumanian legation. It should be pointed out that the inviolability of foreign envoys includes the inviolability of not only the envoys themselves but also of the houses of the legation. England's Oppenheim said: "The pro­ tection of diplomatic envoys is not restricted to their own persons, but must be extended to the members of their family and suite, to their official residence, their furniture, carriages, papers, and likewise to their intercourse with their home states by letters, telegrams, and special messengers." 20 All international law scholars agree upon this point. The 1929 draft convention on diplomatic privileges and immunities adopted by l'lnstitut de Droit International also pointed out [in Article 8]

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that "l'hotel du chef de mission est inviolable . . ." and "l'inviolabilite de !'hotel s'etend a toute demeure ou reside, meme momentanement, Ie chef de mission." 21 The inviolability of the house of a legation not only is essential to the personal security of the envoy, but also is an essential condition enabling an envoy to carry out his function. The incident of attack on the Rumanian legation fully illustrates that the inviolability of the house of the Rumanian legation was totally under­ mined. Armed gangsters not only rushed into the house of the legation, but also occupied the legation, thereby causing the Rumanian legation in fact to lose the very minimum protection [of the host state]. It should be pointed out that the fascist gangsters' attack on the Rumanian legation also injured severely a chauffeur of the legation, who later died of the injuries. The chauffeur of a legation also is a member of the legation, and members of the legation also are subject to the protection of the host state. Oppenheim pointed out: "It is a uni­ versally recognized rule of International Law that all members of a lega­ tion are as inviolable and exterritorial as the envoy himself." 22 The death of the chauffeur of the legation from injury inflicted upon him by gangsters in the legation definitely is not an ordinary case of homicide, but is a case involving the undermining of the inviolability of a member of the legation. . . . According to international law, the Swiss government as the government of the host state has the duty to guarantee the inviolability of foreign envoys and also to provide adequate protection to foreign envoys. Moreover, the protection provided to foreign envoys by the host government should not be restricted to the protection given to ordinary foreigners, but should be a special protection. The host gov­ ernment not only should forbid members of its government to violate foreign envoys at will, but also should take special care to protect for­ eign envoys from violation by anyone. It not only should prohibit members of its government to enter foreign legations at will, but should also prevent the attempts of anyone to rush into the foreign legations. International law requires the host government to take all the necessary measures to provide special protection for foreign envoys. In this inci­ dent, the Swiss government obviously did not live up to the requirements of international law and failed to carry out its duty. . . . Since the Swiss government should bear the responsibility for this incident, which seriously undermined rules of international law con­ cerning diplomatic privileges, it should seriously handle all the problems which resulted from this incident in accordance with rules of interna­ tional law. It should severely punish the fascist gangsters who com­ mitted the crime, and, where necessary, it should extradite them to the Rumanian government for punishment according to law. It must com-

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pensate for the damage done to the Rumanian legation and the losses suffered by the members of the legation, and it also must take necessary measures to restore fully the diplomatic privileges of the Rumanian legation. NOTE In commenting on the same incident, Chou Keng-sheng, vicepresident of the Chinese People's Institute of Foreign Affairs and mem­ ber of the Council of the Political Science and Law Association, echoed the views of Professor Wang, who was professor of law at Peking Uni­ versity. Chou added: "All civilized countries necessarily attach su­ preme importance to this principle [inviolability of the person, buildings, and documents of diplomatic envoys] in order to maintain normal diplo­ matic relations with other countries." 23 Until the Cultural Revolution the PRC's practice corresponded rather closely to the principles set forth by these Chinese scholars re­ garding the protection owing to diplomatic premises. Certain lapses did occur, however. During both the Suez crisis of 1956 and the Lebanon crisis of 1958 massive demonstrations were held at the com­ pound of the British charge d'affaires in Peking to protest the UK's actions. On both occasions the demonstrators covered the compound walls with slogans, and in 1956 they even entered the compound, ap­ parently forcibly, to deliver their protests. Yet these departures appear to have been relatively modest and carefully controlled. In 1958, for example, the Chinese press, while describing in detail how the demon­ strators' posters covered virtually every square inch of the compound walls, noted that "the only clear spot was the British coat of arms." 24 Ominously, on the eve of the Cultural Revolution, the Chinese Foreign Ministry protested against measures taken by the Soviet Union to protect and to make amends to the American embassy in Moscow during and after a demonstration by Chinese students. The most perti­ nent passage of the Foreign Ministry's note cited the 1956 demonstra­ tions in Peking as a favorable precedent: After the [Moscow] incident, the Soviet Ministry of Foreign Affairs lost no time in making apologies to the US ambassador, and on the very next day hastened to send workers to clean the walls and glaze the windows of the US Embassy. How ruthless you were to the demonstrators against US imperialism, and how abjectly subservient you were to the US imperialists! It is useless to claim that such demonstrations against the missions of imperialist powers would not be permitted in Peking either. When the people of Peking were holding gigantic demon-

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strations against Anglo-French aggression in Egypt at the time of the Suez events, their representatives entered the compound of the Office of the British Charge d'Affaires in Peking to deliver innumerable letters of protest and plastered the walls of the com­ pound with posters denouncing British imperialism. The Chinese Foreign Ministry did not send anyone to the Office of the British Charge d'Affaires to help clean the walls, and there was no question at all of the Chinese government apologizing to it.2 Yet as events in Indonesia soon made clear, the PRC continued to insist that other states recognize the inviolability of its missions abroad. The widespread belief that the PRC was heavily involved in the Indonesian Communist Party's unsuccessful attempt at a coup d'etat on September 30, 1965, stimulated extreme anti-Peking senti­ ments on the part of both the revamped Indonesian government and the traditionally anti-Chinese Indonesian masses. On October 18, 1965, NCNA charged that Indonesian military personnel had sacked the office of the Chinese commercial counsellor and related premises in Djakarta, and on November 4, 1965, the PRC issued the first of almost a score of official protests that it was to make by the end of 1965 against Indo­ nesian attacks on Chinese diplomatic and consular premises and per­ sonnel and on Chinese nationals and their property.26 Sino-Indonesian relations deteriorated further through the end of April 1966, when the series of hostile acts against the PRC and Chinese nationals temporarily subsided until the following year. Item 27-14 illustrates the protests made by the PRC against Indonesian violations of the premises of China's diplomats, violations that moved Foreign Minister Ch'en Yi to compose a poem to the heroism of the PRC's embassy staff in Djakarta (frontispiece). Item 28-7 will illustrate Peking's protests against Indo­ nesian attacks on its consular premises.

27-14 "Strongest Protests against Indonesian Govern­ ment's Deliberate Anti-China Outrages," PR 9.18:22-23 (April 29, 1966). [The following is a summary of a note sent April 22, 1966, by the Chinese Ministry of Foreign Affairs to the Indonesian embassy in Peking.] According to preliminary reports received by the Chinese govern­ ment, about 70 Indonesian right-wing hooligans, supported by the 323rd Battalion of the Siliwangi Division of the Indonesian army, sacked and

962

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seized the Office of the Commercial Counsellor of the Chinese embassy at 09:45 hours on April 20, 1966. After forcing their way into the front courtyard in trucks and motor cars, they climbed over the wall and the house, entered the inner courtyard and engaged in rabid wreck­ ing and looting, smashing up the furniture, equipment as well as doors and windows. They smeared the walls with anti-Chinese slogans and even smashed a bust of the Chinese people's beloved leader Chairman Mao and burnt or carried away the Chinese national flag and national emblem. Having locked up in one room the employees taking care of the building, they opened and ransacked the storeroom, kitchen, and bedrooms and carried away the seized property in several trucks. They shouted that they had come on orders to take over the building and that it henceforth belonged to them. They also hoisted the flag of the rightwing organization, "The Union of Islamic Students of Indonesia," on the flagstaff of the Commercial Counsellor's Office. On the morning of April 21, the above-mentioned troops and hooligans repeatedly forced the caretaker employees to move out and threatened: "We have taken over this place. We'll kill you if you don't move out." Then they forcibly escorted these employees out of the Commercial Counsellor's Office. After the incident, the Chinese embassy made repeated protests and representations with the Indonesian Ministry of Foreign Affairs and the police authorities concerned, demanding that they take im­ mediate measures to expel the hooligans, stop the looting, and protect the employees looking after the building. However, the Indonesian government refused to handle the matter [procrastinating] and quib­ bling. The police authorities concerned even declared: "We cannot expel them without orders from above." At 13:30 hours on April 21, another group of more than 30 right-wing hooligans, equipped with pistols, rifles, and other weapons and led by armed soldiers, seized the living quarters of the Chinese consulate-general. They climbed over the wall into the compound, smashed open a door, and grabbed the keys from the employee taking care of the house. They then opened all the doors, swarmed into and ransacked all the rooms, seized property and smeared the walls with anti-Chinese slogans. They declared that they had occupied the house and forced the caretaker employee [j/c] to leave. At 24:00 hours on April 21, still another group of more than 50 armed soliders and hooligans, carrying knives and other weapons, broke into the living quarters of the Chinese embassy at No. 72 Djati Petamburan Street, Djakarta. They declared to the caretaker employee [sic] that they had come to take over the house. Then they broke into all the rooms, looted the property, and carried away a great deal of furni­ ture and other things in trucks.

Diplomats

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Following close on the armed raid of the Chinese embassy by hooligans organized by the Indonesian government, there have occurred these successive grave incidents of wrecking and seizure of the Office of the Commercial Counsellor of the Chinese embassy, the office and living quarters of the Chinese consulate-general, and the living quarters of the embassy. This is obviously a planned action of the Indonesian government. From continually organizing hooligans to attack and wreck the Chinese diplomatic missions, you have gone still further to take the grave measure of occupying them by force. This shows that the Indonesian government is fast pushing the relations between the two countries to a complete rupture. The Chinese government hereby lodges the strongest protest with the Indonesian government against the above-mentioned grave incidents. The Chinese government sternly demands that the Indonesian government at once expel the hooligans who have forcibly occupied the Office of the Commercial Counsellor of the Chinese embassy, the living quarters of the embassy, and the office and living quarters of the Chinese consulate-general, compensate for all the losses and truly ensure the safety of the Chinese missions. The Chinese government reserves the right to raise further demands. NOTE The question of the legal protection owing to diplomatic premises also figured prominently in the Sino-Soviet dispute, which entered a new and more bitter phase on January 25, 1967, following a clash at Lenin's tomb between Soviet police and Chinese students returning from abroad. (Recall 25-14 and Note following.) This triggered a series of massive demonstrations outside the Soviet Embassy in Peking. Exhorted by the People's Daily, by January 29 the demonstrators numbered "well over one million." 27 They posted signs stating slogans such as "Fry Kosygin" and "Shoot Brezhnev" on the walls of the embassy compound and hung dunce caps on the twenty-foot-high embassy gate. After strong Soviet protests containing threats of sanc­ tions were received, trucks with loudspeakers were driven up to the Soviet embassy to blare incessant slogans, and the Soviet leaders were burned in effigy on the embassy gates. Meanwhile, back in Moscow, after the Lenin Mausoleum had been closed "for repairs," on February 1 over two hundred Chinese students marched around their embassy shouting anti-Soviet slogans and the works of Chairman Mao. On February 3 the Soviet Foreign Ministry summoned the Chinese charge d'affaires and instructed him to remove six illuminated display cases in front of the PRC embassy that depicted the Chinese version of the clash at Lenin's tomb. Item 27-15 is a statement issued on February 5, 1967, which reveals what Peking claims happened a few hours later.

964

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27-15 "Strongest, Most Vehement Protest against Soviet Revisionists' Fascist Outrage" [Chinese govern­ ment statement], PR 10.7:6—7 (Feb. 10, 1967). After the sanguinary suppression of Chinese students by its soldiers and policemen on January 25, the Soviet government moreover directed hooligans to break into the Chinese embassy in the Soviet Union and savagely beat up Chinese diplomatic representatives and working personnel on February 3. This is a fresh anti-Chinese incident deliberately created by the Soviet revisionist ruling clique in further hiring itself out to US imperialism and constitutes an extremely grave provocation to socialist China and the great Chinese people. The Chinese government and people express utmost indignation at this and solemnly raise their most stern and vehement protest. At a meeting with An Chih-yuan, charge d'affaires ad interim, of the Chinese embassy in the Soviet Union, on the morning of Febru­ ary 3, N. G. Sudarikov, Director of the Far Eastern Department of the Soviet Ministry of Foreign Affairs, raised the unreasonable demand that the embassy's display cases be pulled down immediately. He peremp­ torily declared that this matter brooked no argument and that if the Chinese embassy refused to pull them down, the Soviet side would take measures to do so. At 18:50 hours (Moscow time) on the same day, carloads of 160 to 170 plainclothesmen organized by the Soviet revision­ ist leading clique suddenly turned up in front of the Chinese embassy, and, with both flanks of the street sealed off, broke into the front com­ pound of the embassy, wilfully damaged and forcibly carried away the six display cases erected behind the fence within the front compound and brutally beat up Charge d'Affaires ad interim An Chih-yuan and other diplomatic or working personnel of the Chinese embassy who had come to stop the act by reasoning with them. The thirty-one Chinese personnel at the scene were all brutally beaten up, and three were seriously injured, including Second Secretary Wang Chin-ching. An Chih-yuan, charge d'affaires ad interim of the Chinese embassy, was violently struck on the head. Commercial Counsellor Tsai Hsin-teh was knocked down, trampled on, and injured in the chest. Far from stopping the outrage of the hooligans, the more than a dozen Soviet policemen who were "guarding the embassy" helped them beat the personnel of the Chinese embassy. Throughout this outrage by the hooligans, the Soviet authorities cut off the telephone connections be­ tween the embassy and Peking. The facts have eloquently shown that this extremely grave incident was carefully planned and directly created by the Soviet revisionist leading clique headed by Brezhnev and Kosygin.

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It must be pointed out that the great socialist China is an inde­ pendent sovereign state. The Chinese embassy in the Soviet Union enjoys diplomatic privileges which are inviolable. The display cases were erected within the bounds of the embassy. It is a flagrant encroach­ ment upon China's sovereignty as well as a violation of the most ele­ mentary principles guiding diplomatic relations that the Soviet plainclothesmen carrying axes and other murderous weapons should have broken into the Chinese embassy to commit unbridled sabotage and outrage. It must be pointed out that the Chinese diplomatic personnel are representatives of the Chinese people. In the absence of the ambassador, the charge d'affaires of the embassy is the official representative of the Chinese government. It is a gross insult to the People's Republic of China and the 700 million Chinese people as well as a most serious crime of sabotaging the relations between China and the Soviet Union that the Soviet revisionist leading clique should have organized hooligans to savagely beat up Chinese diplomatic personnel and official repre­ sentatives in the Soviet Union. It must be pointed out that after the outrage on February 3, Soviet hooligans four times raided the Chinese embassy on February 4 under the direction of police cars in an attempt to eliminate the criminal evidence. In order to defend China's sovereignty, our embassy staff are safeguarding the security of the embassy day and night and therefore get no rest or sleep. This has completely disrupted the normal function and activities of our embassy staff. This is rarely seen in the history of international relations and absolutely cannot be tolerated. It must be pointed out that only Hitler's fascist Germany and US imperialism, the common enemy of the people of the world, are capable of perpetrating this outrage committed by the Soviet revisionist leading clique in brazenly violating the most elementary principles guiding inter­ national relations. It is entirely the making of the Soviet revisionist leading clique that Sino-Soviet relations have been damaged to such a serious extent. The peoples of China, the Soviet Union, and the rest of the world are now closely watching how far the Soviet government will go in disrupting Sino-Soviet relations. The Soviet revisionist leading clique is a teacher by negative example for the Chinese and Soviet peoples as well as the revolutionary people of the whole world. The most savage fascist atrocity it has com­ mitted provides one more proof that it is a bunch of out-and-out rene­ gades betraying the great Lenin and the great Soviet people. The Chinese government hereby lodges the most, most vehement protest with the Soviet government against the new fascist outrage it

966

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has committed within the bounds of the Chinese embassy! The Soviet government must publicly admit its mistakes, apologize to all the vic­ tims in the Chinese embassy, severely punish all the culprits, restore the six display cases of the Chinese embassy, and guarantee against any recurrence of similar incidents in the future. Otherwise, the Soviet government must be held fully responsible for all the grave consequences arising therefrom. We hereby tell the Soviet government in all serious­ ness: There must be no encroachment on China's sovereignty. There is a limit to the Chinese people's forbearance. The Chinese people armed with Mao Tse-tung's thought cannot be cowed by fascist axes. All the reactionaries who set themselves against the Chinese people will definitely come to no good end. NOTE

Peking officials did not appear to be embarrassed at disregarding the rules of diplomatic immunity at home while claiming their protection abroad. As the next section of this chapter will indicate, despite con­ tinuing Soviet protests and threats, further instances were reported of Red Guard abuses of Soviet diplomats and their dependents, who were being evacuated from China. Although an earlier Soviet statement had conceded that the howling mob around its Peking embassy had not yet penetrated the compound but had merely thrown objects over the wall, on February 8 Moscow Radio claimed that Red Guards had smashed the embassy gates and paraded through its grounds, waving signs and threatening violence. The following day the Chinese charge d'affaires in Moscow claimed that on February 8 four or five hundred "specially sent hooligans" had broken into the Chinese embassy com­ pound. According to the New York Times, what actually happened in Moscow was that Soviet workers and students had been vainly attempt­ ing to present protest resolutions to embassy officials when the Chinese unexpectedly unlocked a door to the embassy, permitting a crowd of Russians to surge in. Soviet security agents promptly herded the crowd that had entered the compound back onto the street.2S Meanwhile, in Peking, the PRC warned the Soviet embassy that it would be dangerous for its officials to leave their compound, a fact that was already known to the Russians in view of the inability of certain staff members to return to the compound the preceding day after they had escorted dependents to the airport. On February 8 the Russians used loudspeakers to broadcast to the Chinese embassy the protests the Chinese had refused to receive and to demand that the Chinese stop using two loudspeakers located inside their embassy. And on February 9 the Soviets sent the following note to Peking.

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27-16 "USSR Foreign Ministry Note to [PRC] Em­ bassy," broadcast, TASS, Moscow (Feb. 9, 1967), in FBIS, no. 29/67:BB7-8 (Feb. 10, 1967). (Text) The USSR Ministry of Foreign Affairs, on behalf of the government of the USSR, declares the following to the CPR [PRC] embassy in Moscow: During the past few weeks an intolerable situation of organized persecution and wild hooligan violence has been created around the USSR embassy and other Soviet institutions and missions in Peking. In violating the most elementary norms of international law and ethics, not to speak of the relations arising from the treaty of friendship, alliance, and mutual assistance between the Soviet Union and the CPR, the Chinese authorities are kindling a shameful campaign of enmity and hatred toward the Soviet Union and the Communist Party of our country and are permitting and encouraging systematic dirty insults against everything that is dear and sacred to the Soviet peoples. Unruly escapades are being continued against Soviet people who are in Peking to carry out their duties in supporting normal relations between the Soviet Union and the CPR. Matters have reached the point where unheard-of humiliations and acts of physical violence are being carried out against Soviet diplomats, women and children, and members of families of Soviet officials in the CPR. All this arouses just indignation in the Soviet Union, and indeed throughout the world. Firmly maintaining the principled line of the CPSU and the Soviet state of maintaining normal relations between our countries and in defense of the great cause of friendship between the Soviet and Chinese peoples and unfailingly guided by the high principles of socialist inter­ nationalism, the Soviet government and all Soviet people, including those in the CPR, have displayed exceptional patience and control in this situation created by the Chinese side in the face of constant anti-Soviet provocations organized by the Chinese embassy and citizens of the CPR on the territory of the Soviet Union. Many times the Soviet government has drawn the attention of the CPR government to the fact that the anti-Soviet campaign which has been developed by the Chinese side, the provocative actions with regard to Soviet officials in China, and the intolerable situation created around them which is hindering their work are doing enormous harm to the cause of Soviet-Chinese friendship. In its statement of 4 February and in the statement of the USSR

968

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Ministry of Foreign Affairs of 6 February, the Soviet government de­ manded the creation of normal conditions for the functioning of the embassy of the Soviet Union in Peking and warned the CPR govern­ ment of the consequences which might ensue from the arbitrary rule and violence organized by the Chinese authorities with regard to the embassy and its workers as well as the workers of other Soviet institu­ tions in the CPR. The Chinese authorities have not only failed to take these warn­ ings into account, but have gone further. On 6 February the CPR Foreign Ministry told the USSR embassy that its staff was "temporarily forbidden to go outside the grounds of the Soviet Embassy" and that should they do so the Chinese authorities would not guarantee their safety. This means that the Chinese authorities have virtually deprived the USSR embassy of the opportunity of carrying out its functions as a mission of the Soviet Union in the CPR, including matters concerned with the solution of concrete questions regarding the military and eco­ nomic aid being sent to the struggling Vietnamese people through China. In these circumstances the USSR Foreign Ministry, on the instruc­ tions of the Soviet government, declares: The steps taken by the Chinese authorities can mean either a deliberate intention to undermine the relations between the CPR and the Soviet Union or inability of the authorities to insure in their own country the elementary conditions for the safety and activities of representatives of a state which is maintaining normal diplomatic relations with the CPR. The Soviet government demands an immediate end to the arbitrary measures taken by the Chinese authorities against the Soviet embassy in Peking and freedom of movement for its staff. If this is not done within a very short time, the Soviet side reserves the right to take the necessary retaliatory measures. NOTE

Apparently the Soviet government decided upon serious retaliatory measures very shortly after sending the above note, for on February 10 Peking Radio announced that the Soviet Union had unilaterally broken the Sino-Soviet Consular Agreement of 1956 by informing the PRC the preceding day that beginning February 12 all Chinese citizens in the Soviet Union would require visas. Also, in a special interview with TASS on February 11, a Soviet international law expert, Dr. Martin Lazarev, accused the PRC of flouting "international rules governing the attitudes toward diplomatic missions" and claimed that the PRC was trying to goad the USSR into breaking diplomatic relations, an event that the East German party newspaper Neues Deutschland predicted

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would occur as a result of Chinese "provocatives." 29 The strong Soviet action and the threat of even more serious consequences temporarily put an end to this embroglio over embassy immunity; although the Chinese Foreign Ministry continued to emit propaganda and to send protests to Moscow, such as one charging "a break of international diplomatic custom by the Soviet revisionist leadership clique," 30 and although it announced that henceforth Soviet citizens would require visas in China (15-3), on February 12 it called the Soviet embassy to say that Soviet diplomats could leave their embassy without risking trouble, and the demonstrators' siege of the embassy immediately came to an end. The Sino-Soviet dispute over the inviolability of diplomatic prem­ ises was only one of many in which the PRC became involved during the first nine months of 1967. In April, for example, Chinese protests against new Indonesian abuses of Chinese nationals led to another series of hostile acts by Indonesia against the Chinese mission and diplomats, which in turn produced another series of hostile acts by the PRC against the Indonesian mission and diplomats. The Chinese Foreign Ministry called on the Indonesian government to "guarantee the security of the Chinese embassy and of the embassy's diplomats" in accord with international law and international custom, when it protested against the detention of Chinese Consul-General Hsu Jen by Indonesian authorities on April 22, 1967.31 Similarly, on June 3 the Chinese mission in London lodged a "strong" protest with the British Foreign Office against the "shameless provocations" of "gangsters and hooligans" whose insulting letters and phone calls culminated in the arrival at the mission of ten or twenty persons who, together with the police, made "a shameful display" singing "God Save the Queen." Two of the demonstrators attempted to deliver a letter of protest, which Chinese inside the mission pushed back.32 In Peking four days later, during a pro-Arab demonstration of 100,000 people, a group of approximately one hundred Chinese, British, American, and Arab Communists "forced their way into the British mission, tore down the Union Jack, destroyed a picture of Queen Eliza­ beth, punched two diplomats, and carried the wife of one and another diplomat outside the premises. No one was hurt, however." 33 Signifi­ cantly, the Chinese account of this incident failed to mention any entry into the mission compound.31 Despite the accumulation of such incidents in Peking the PRC rejected charges that it was failing to live up to its responsibility to protect diplomatic premises and persons. In a note to Indonesia on June 13, the Foreign Ministry stated that these charges were "a gross insult to the Chinese government and people" and represented an Indo-

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Immunities and Privileges

nesian effort to divert attention from Djakarta's transgressions. It said: "The Chinese government has always protected the security of foreign representative organizations in China and their personnel. The question of so-called menaces to the security of foreign embassy staff does not arise at all." 35 The end of June witnessed an extremely grave violation of the Chinese embassy in Burma that substantially contributed to rapidly deteriorating relations between the two countries and elicited the follow­ ing diplomatic response.36

27-17 "Chinese Government Statement: Strongest and Most Serious Protest against the Burmese Govern­ ment's Fascist Atrocities in Opposing China and Persecuting Overseas Chinese," (June 29, 1967), PR 10.28:17 (July 7, 1967). In disregard of the Chinese government's repeated serious pro­ tests, the Burmese government has pursued even more feverishly its policy of opposing China and persecuting overseas Chinese by con­ tinuing to organize and abet ruffians in assaulting the Chinese embassy and the Chinese agencies in Burma, killing an expert sent by China to work on an aid project in Burma, wounding our experts and diplomatic personnel, and massacring large numbers of patriotic overseas Chinese, and has thus perpetrated fascist atrocities rarely found in the history of international relations and aggravated the relations between China and Burma to an unprecedented extent. Following the incidents of opposing China and persecuting over­ seas Chinese on a large scale on June 26 and 27, several thousand ruf­ fians twice broke into the Chinese embassy on the noon and afternoon of June 28, stabbing people and engaging in extensive destruction. Comrade Liu Yi, a Chinese expert working on an aid project in Burma, was brutally stabbed and died heroically on the spot. A number of Chinese diplomatic personnel were stabbed and wounded. Meanwhile, thou­ sands of ruffians in separate groups assaulted the Chinese embassy's Office of the Military Attache, Consular Department and Office of the Economic Counsellor as well as the branch offices of the Hsinhua News Agency [NCNA] and the General Administration of Civil Aviation of China, beating up people, committing arson, and indulging in all kinds of outrages. On June 29, Burmese troops moreover besieged the Chinese embassy and forbade its personnel to go out.

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In the last few days, Burmese ruffians were running amuck in their atrocities of brutally killing, arresting, and plundering the overseas Chinese. While raiding and setting fire to the office of the Overseas Chinese Teachers' Federation, they beat to death nearly 30 overseas Chinese teachers and students. In Rangoon, the homes, organizations, and shops of the overseas Chinese are everywhere being raided, many overseas Chinese are being barbarously murdered and countless others have been wounded and arrested. The whole of Rangoon is now under fascist white terror. The above unprecedently grave atrocities of opposing China and persecuting overseas Chinese are entirely engineered by the Burmese government. The Burmese government has landed itself in a very difficult position and is having a very hard time as a result of the re­ actionary policy against the Communist Party and the people which it has pursued over a long time. Catering to the needs of US imperialism and Soviet revisionism, it has staged this series of monstrous atrocities of opposing China and persecuting overseas Chinese in a vain attempt to divert the strong dissatisfaction of the broad masses of the Burmese people with the Burmese government. However, this scheme will never succeed. The Chinese side has repeatedly lodged strong protests with the Burmese government against its atrocities of opposing China and perse­ cuting overseas Chinese. On June 28, Hsiao Ming, charge d'affaires ad interim of the Chinese embassy in Burma, personally put forward five just demands to U Ohn Khin, Executive Secretary of the Burmese Foreign Ministry: 1. Severely punish the culprits, 2. give relief to the families of the victims, 3. publicly offer apologies, 4. guarantee the safety of the Chinese embassy in Burma and the Chinese agencies and all their Chinese personnel, and 5. immediately put an end to the fascist atrocities against overseas Chinese. The Chinese government solemnly points out that the profound friendship fostered jointly by the Chinese and Burmese peoples over many years is not to be sabotaged. The Chinese government and people absolutely will not tolerate the above series of fascist atrocities perpe­ trated by the Burmese government. The Chinese government hereby lodges once again the strongest and most serious protest with the Burmese government. In view of the fact that the Burmese government has already aggravated the relations between the two countries to such a grave extent, the Chinese government decides not to send back the ambassador of the People's Republic of China to Burma and will take other necessary measures in accordance with possible developments of the situation. The Burmese government must rein in before the precipice, im-

972

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mediately put an end to all its atrocities in opposing China and perse­ cuting overseas Chinese and immediately fulfil the solemn and just demands of the Chinese side. If the Burmese government recklessly clings to its perverse course in defiance of the strong desire of the 25 million Burmese people for friendship with the Chinese people, then it can be stated categorically that the Burmese government will gain nothing out of this, but will only have its feet crushed by the rock it has lifted.

NOTE The PRC did not limit itself to diplomatic protests against Burma. On the day that the above note was sent, "thousands of Chinese smashed windows of the Burmese embassy in Peking . . . in protest against 'fascist atrocities' in Burma. They hung effigies of General Ne Win, Burma's premier, on the embassy gates." 37 The Chinese press failed to mention the window smashing, but it did reveal that the de­ monstrators had covered the embassy walls with posters.38 The Burmese government demanded that the demonstrations cease, but a "responsible member of the First Department of Asian Affairs of the Chinese Foreign Ministry" rejected the demand, asking how Burma could "ask the Chinese government to prevent these just actions of the Chinese people," which were "entirely just and only natural," in the face of what was taking place in Rangoon, where the Chinese embassy was under siege.39 A few days later, as Burmese attacks continued against China's diplomatic premises and the persons and property of Chinese citizens, the PRC took stronger measures. It announced that the Burmese govern­ ment had created conditions that made it impossible for the Chinese aid to that country to be continued, and, therefore, China would discontinue the $84 million interest-free loan that had been granted to Burma for construction materials and technical services. Under the loan, a river bridge and a sugar refinery had already been completed, a number of other projects were under way, and still others were in the planning stage.40 As the "long, hot summer" of 1967 unfolded in Peking, the PRC became embroiled in an even larger number of disputes arising from violations of various diplomatic immunities and privileges to which the agents of other states were entitled. We will subsequently deal with several of these. Here we can consider only the two most serious actions against foreign embassies. Although Premier Kosygin's threat to break off trade with China led to the release of the Soviet ship Svirsk on August 13 (17-5), the following day, while two hundred Chinese troops stood between

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them and the Soviet embassy compound, tens of thousands of Chinese demonstrators denounced "the seriously provocative acts" of the crew of the Svirsk. And on August 17 a swarm of demonstrators forced their way into the compound, smashed furniture and set fire to files in a consular department building, and smashed the windows of the main building but did not break in. According to Soviet diplomats present, Chinese troops and policemen stationed outside the embassy took no steps to prevent the disorders.41 Just a few days later a crisis that had been developing over British action against Chinese Communist newspapermen and other Chinese sympathizers in Hong Kong and that had led the PRC to confine Anthony Grey to his quarters (21-14, 25-18, 25-23 and notes following) came to a head. On August 20 a "responsible person" in the Bureau of West European Affairs of the Foreign Ministry lodged the "most strong and urgent" protest with the British charge d'affaires, demanding that: The British government and the British authorities in Hong Kong must, within 48 hours, cancel the ban on the Hong Kong Wanpao, the T'ien-fung Jih-pao and the Hsin Wu Pao, declare the above-mentioned 19 patriotic Chinese journalists and 34 staff members innocent and set them free, call off the illegal lawsuits against Ta-kung Pao, the Ching Pao and the Nam Cheung Printing Co., Ltd., and the Hong Kong Press Enterprise, Ltd., and make it possible for all the above-mentioned papers and printing companies to resume their normal operation. Otherwise, the British government must be held responsible for all the consequences arising therefrom.42 As the deadline approached, the Chinese employees of the British mission read a similar ultimatum to the British charge, who refused to bow his head and admit the UK's guilt. The following account sum­ marizes what took place at the time the ultimatum expired.

27-18 Derek Davies, "Twisting the Lions' Tails," FEER 61.31:229 (Aug. 1,1968). A similar British reticence about the sacking and burning of the mission in Peking last August has resulted in the true horror of that atrocity never being communicated to the world—and to the British public in particular. The full story remains to be told, but the night was one of horror. The Red Guards burst into the compound of the

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mission and treated the British diplomats, the staff and their families, in the most appalling way. Photographs were taken as the staff were lined up, punched, kicked, and spat at in an attempt to make them "bow their heads" to a portrait of Mao Tse-tung. A few girls, sec­ retaries at the mission, attempted to escape and a couple of them did succeed in getting across to the nearby Finnish embassy. Two others were unfortunate enough to run to the Albanian embassy opposite to ask for asylum, but the gate was shut in their faces and their Albanian "colleagues" laughed and jeered through the iron grill of their gate as the girls were seized and manhandled by a mob of young hooligans, who pulled hanks of hair from their heads and thrust their hands down the fronts of their dresses. Other diplomats were taken outside and made to run several times up and down the street be­ tween ranks of Red Guards who kicked and struck them as they staggered up and down the gauntlet. Inside the mission the Red Guards indulged in an orgy of destruction, smashing furniture, crockery, porcelain, and pictures and even breaking up bathrooms and toilets before they set the building alight. This "bloody incident" appears to have been organised by an ultraleftist gang of Red Guards, reportedly owing allegiance to Chiang Ch'ing [the wife of Chairman Mao] and was mounted during a period when Ch'en Yi, the Foreign Minister, had been temporarily toppled from his post, the man in charge being a former Chinese ambassador to Djakarta. There is every indication that the assault proved acutely embarrassing to the less extreme leaders such as Ch'en Yi himself and Chou En-lai, but revolutionary pressures probably prevented them from apologising. Instead it is reported that the Chinese authorities at present resolutely refuse to admit that the incident occurred at all— even to the extent of solemnly delivering mail to the blackened shell of the burnt-out Chancellery building. The final Alice in Wonderland touch came recently when, after the charge's residence had been re­ painted, the Chinese decorators blandly enquired whether the British would like the ruin next door to be repainted too. NOTE

In addition to sending strong protests, the UK immediately re­ sponded to the devastation of its mission in Peking by denying Chinese officials the right to leave Britain without permission, restrict­ ing their travel to within five miles of the center of London in the absence of forty-eight hours' notice to the Foreign Office and prevent­ ing the Chinese from using their transmitter to communicate with Peking until the British government reestablished contact with its mission in the Chinese capital. The British Minister of State told the

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Chinese charge d'affaires that the attack in Peking had been "de­ liberately instigated by the Chinese government," that it was "in con­ travention of all norms of diplomatic behavior," and that it was "an outrageous and uncivilized act which would bring the Chinese gov­ ernment into disrepute around the world." 43 Exactly a week after the sacking of the British mission, two violent incidents broke out within two hours in front of the Chinese mission in London. Twenty or more Chinese officials swinging clubs, iron bars, axes, and, incongruously, baseball bats clashed with police, hecklers, bystanders, and newspapermen in what the British Foreign Office termed "a deliberate attempt by the Chinese mission to provoke violence in order to try to justify action which Chinese have taken" against the British mission in Peking.44 The PRC's version of these events and the sanctions that it invoked as a consequence are revealed in item 27-19.

27-19 "Government Protests Anti-[PRC] Acts in London," broadcast, NCNA-English, Peking (Aug. 30, 1967), in FBIS, no. 169/67:BBBl-2 (Aug. 30, 1967). Peking—Vice-Foreign Minister Lo Kuei-po early this morning summoned British Charge d'Affaires in China D. C. Hopson and lodged the most urgent, most serious, and strongest protest with the British government for the provocations against the office of the Chinese charge d'affaires and other offices of the [PRC] in Britain and for the beating up of the personnel of the office of the Chinese charge d'affaires. Lo Kuei-po announced two measures taken by the Chinese government in relation to the office of the British charge d'affaires in China. Lo Kuei-po said: "For the past few days the British government has successively sent out large numbers of policemen and plainclothesmen to surround and carry out various provocations against the office of the Chinese charge d'affaires in Britain and the commercial office attached to it, the London office of NCNA, and the London branch of the Bank of China. On the morning of 29 August the British govern­ ment moreover instigated ruffians to beat up personnel of the office of our charge d'affaires. On the afternoon of the same day, the British government went even further and instigated its policemen and ruffians to carry out provocations once again. The British police-

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men, clubs in hand, flagrantly and brutally beat up personnel of the office of our charge d'affaires. According to initial reports, three of our personnel have been seriously wounded from brutal beatings by British policemen, and more than 10 others have been injured. The Chinese government hereby lodges the most urgent, most serious, and strongest protest with the British government against these barbarous atrocities. "The Chinese government demands that the British government immediately adopt effective measures to prevent the recurrence of atrocities, provid[e] the wounded with medical facilities, truly insure the safety of the Chinese diplomatic mission, press, and commercial establishments in Britain and the safety of all their members, punish the culprits, and compensate for our losses. The Chinese government also reserves the right to raise further demands." Lo Kuei-po said: "It must be pointed out that the occurrence of the above-mentioned incident is by no means accidental. On 22 August the British government had taken illegal measures against the office of the Chinese charge d'affaires in Britain and other Chinese establishments, unwarrantedly imposed restrictions on the freedom of movement and exit from Britain of the Chinese diplomatic personnel and functionaries, and attempted to cut off the normal diplomatic telecommunications of the office of the Chinese charge d'affaires in Britain. This series of illegal measures and barbarous acts is the continuation of the fascist atrocities committed by the British gov­ ernment and the British authorities in Hong Kong in wantonly suppressing the Chinese. The Chinese government hereby asks the British government in all seriousness: Where do you want to push the relations between China and Britain?" He pointed out that the British government must immediately cancel all its unwarranted limitation measures against the Chinese diplomatic mission, press, and commercial establishments, and stop all provocations and intimidations. Otherwise, the British government must bear the responsibility for all the consequences arising there­ from. Lo Kuei-po announced in conclusion: "The Chinese government has now decided that "1—Starting from today no personnel of the office of the British charge d'affaires in China may leave Chinese territory without the permission of the Chinese Ministry of Foreign Affairs, and the exit visas already issued to the personnel of the office of the British charge d'affaires are all cancelled; "2—All the personnel of the office of the British charge d'affaires in China must confine their activities within the sphere of the office

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and their respective residences and between them. Application must be submitted 48 hours in advance if there is to be any activity beyond the above sphere." NOTE

The sacking of the British mission was the high point, or rather the low point, of Chinese misconduct against foreign diplomatic pre­ mises. Early in September 1967 the Tokyo newspaper Asahi an­ nounced that Premier Chou En-Iai had forbidden further violation of diplomatic missions,45 and the Peking Municipal Revolutionary Com­ mittee called for an immediate end to the "violent struggles."46 Despite the fact that in September the PRC continued to issue protests against a variety of actions by foreign governments and to take measures against foreign diplomats, consuls, and newspapermen, there were no reports of demonstrations in front of foreign missions in Peking during the entire month; nor were there subsequent infringements of diplomatic premises in the Chinese capital. This abrupt improvement in the PRC's behavior appears to be attributable to the reported reassertion of control over the Foreign Ministry by Premier Chou En-lai. The PRC has continued to be vigorous in claiming customary international immunity for the premises of its missions abroad. In 1968, for example, it lodged strong protests with the Indian govern­ ment against the allegedly illegal intrusion of Indian policemen into its New Delhi embassy,47 and its protests to the French and Norwegian governments against attacks on the Chinese embassies in those coun­ tries elicited in both cases a formal expression of regret, an admission of responsibility for damage suffered, and a promise to take measures to prevent recurrence of such incidents.48 Item 27-20 indicates SinoSoviet differences over the immunity of embassy premises in a third country.

27-20 "Protest over Soviet Occupation Troops' Provo­ cations against Chinese Embassy in Prague," PR 11.38:41-42 (Sept. 20, 1968). A responsible member of the Department of Soviet Union and East European Affairs of the Chinese Foreign Ministry summoned Υ. N. Razdukhov, charge d'affaires ad interim of the Soviet embassy in China, on September 5. The Chinese official again lodged a strong protest with the Soviet government and seriously warned it over the

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continued intensification of provocations since August 27 by Soviet troops, which had invaded and occupied Czechoslovakia, against the Chinese embassy there, their intensified encirclement and surveillance of the embassy, interrogation and obstruction of those entering it, and their serious interference in its normal activities and threat to its safety. The responsible member pointed out: "On August 27, the Soviet occupation troops greatly increased the number of sentries surround­ ing and keeping watch on the Chinese embassy in Czechoslovakia. A captain of the Soviet occupation troops shamelessly told the staff mem­ bers of the embassy that they were there to 'defend' it. The next day, personnel going to work in the embassy were unwarrantedly interrogated by the Soviet troops who, on August 29, tried to obstruct Czechoslovak workers from entering the embassy for house repairs. Beginning on August 30, the Soviet occupation troops illegally distributed antiChinese propaganda material in front of the embassy to people visiting it. On August 31, they went so far as to hang out to dry on the embassy gate and its railings along the street several dozen articles of clothing they had washed. During this period, the Soviet troops many times intercepted foreigners going to the Chinese embassy on busi­ ness. They also crudely interfered with the normal activities of the embassy personnel and threatened them." The responsible member sternly pointed out in conclusion: "The above-mentioned serious provocations by the Soviet occupation troops occurred after the Chinese government had lodged on August 26 a serious protest and raised just demands with the Soviet government over incidents of a similar nature. This fully proves that the Soviet occupation troops' provocations were no accident; they were deliberate anti-China actions by the Soviet side. This can only arouse great in­ dignation among the Chinese people. I have been authorized to lodge once again a strong protest and issue a serious warning to the Soviet government. We resolutely demand that the Soviet government immediately withdraw the Soviet occupation troops encircling and keeping watch on the Chinese embassy and stop all provocative acts. Otherwise, the Soviet government must bear full responsibility for all the consequences arising therefrom." NOTE

The Chinese protest of August 26 had complained that Soviet troops had illegally entered the Chinese embassy and fired dozens of shots in the air.19 The following dispatch suggests the extent to which Peking's treatment of diplomatic missions had returned to pre-Cultural Revolu­ tion normalcy by mid-1971.

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27-21 Seymour Topping, "Key Chinese Official Reported in Prison," New York Times (June 21, 1971), PP- 1, 7. A prominent Chinese diplomat accused of having been responsible for violence against foreign embassies committed during the Cultural Revolution has been imprisoned, according to reports circulating in Peking. The diplomat, Yao Teng-shan, was a member of a revolutionary group that was in control of the Foreign Ministry in August, 1967, when the office of the British charge d'affaires was burned and attacks were made on the Indonesian and Burmese embassies. Mr. Yao, according to the reports, was taken June 11 to a mass trial in an indoor stadium in Peking, attended by 4,000 people, and denounced. He was said to have been accused of plotting in 1967 to do personal injury to Premier Chou En-Iai and of holding Ch'en Yi, then Foreign Minister, as a prisoner for several days. The mass denunciation has not been mentioned in the press. However, foreign diplomats have become aware of the trial through a number of Africans and Asians who said they had been invited to attend the trial. The extraordinary proceedings were seen as an effort to relieve the government of responsibility for excesses committed during the most convulsive stage of the Cultural Revolution, which have been a source of embarrassment. Premier Chou, who is pursuing a new pragmatic foreign policy, has been at pains to portray China as a responsible member of the world community. . . . It was understood that Premier Chou had privately expressed his regrets to John D. Denson, the British charge d'affaires, about the 1967 attack on the British office. Donald Hopson, who was then charge d'affaires, was injured in scuffles with extremist Red Guards. . . . In a further move to absolve the present government of any responsibility for violations of diplomatic immunity during the Cul­ tural Revolution, articles in the Chinese press in recent weeks have attacked leftist extremists as plotters against the Communist party and the government. In December, in a conversation with Edgar Snow, the American writer, Chairman Mao Tse-tung said he was not in control of the Foreign Ministry in 1967 and 1968. . . . Mr. Yao became a leading member of an extreme leftist faction that took over the Foreign Ministry after he returned from Indonesia, where he had been charge d'affaires.

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According to some reports, Ch'en Yi, former Foreign Minister who disappeared for a number of years, attended the mass meeting. Mr. Ch'en, who is still a vice-chairman of the influential military affairs commission of the party, showed up for the first time in many months at May Day celebrations this year. Chi Peng-fei, who is now identified as acting Foreign Minister, was also said to have been present at the denunciation. NOTE

As the so-called doctrine of diplomatic asylum is founded upon the principle of the inviolability of mission premises, it seems appro­ priate to consider here the PRC's theory and practice relating to this doctrine. Item 27-22 is the best available statement by Chinese scholars on the question. Item 27-23 illustrates pre-1966 Chinese practice, and item 27-24 describes what may turn out to be either an isolated "sport" inspired by the Cultural Revolution or an abiding Chinese innovation in this field. The question of "consular asylum" will be considered in Chapter 28.

27-22 Shih Chiu-yung and Cheng Wen-hua, "Talking about the Right of Legation Asylum with Respect to the Incident of the United States Granting Asylum to Mindszenty," Kuang-ming jih-pao (Dec. 21, 1956), p. 4. On November 4, 1956, the Hungarian Revolutionary PeasantWorker Government was established, and the Nagy regime which had indulged the counterrevolutionary force, fell. The escaping criminal and counterrevolutionary element Mindszenty (Cardinal) and others ran to the American legation in Budapest and hid there. This in­ cident involves the question of "legation asylum" in international law. We must view two aspects of this question: what is the "right of legation asylum," and has a legation the right to grant asylum to criminals? According to international law, foreign legations enjoy some privileges and immunities. "Immunity of domicile" is one of these privileges and immunities. The government or authorities of the re­ ceiving state cannot exercise jurisdiction in an envoy's office or domicile without consent of the envoy concerned. For example, judicial officers or police and others cannot enter the office or residence of a

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diplomatic envoy without permission. Therefore, a person who is sought by the lawful authorities of his own country sometimes uses this inviolability of the domicile of diplomatic envoys by running into a foreign legation and asking the envoy to grant asylum so that he can escape prosecution under the law of his own country. Does a legation have the right to grant asylum to this type of escaped criminal? In principle modern international law does not recognize that legations have the right to grant asylum. Prior to the 19th century, many states in practice treated asylum as a right of a legation. Its [theoretical] basis was that the envoy's enjoyment of immunity of domicile reflected the status of the legation as "a part of the territory of the envoy's own state" or "outside the territory of the receiving state." Therefore, criminals running into a legation are running into the territory of the envoy's state and therefore the authorities of the receiving state can no longer follow and arrest them. Now few persons still use this theory to explain the immunities of legations. International law grants immunity of domicile to diplomatic envoys to respect the independence and inviolability of envoys and the inviol­ ability of official documents and files. The American international law jurist Hyde once maintained: "Immunity from local jurisdiction is granted foreign embassies and legations to enable the foreign repre­ sentatives and their suites to enjoy the fullest opportunity to represent the interests of their states. The fundametnal principle of legation is that it should yield entire respect to the exclusive jurisdiction of the territorial government in all matters not within the purposes of the mission. . . . The affording of asylum is not within the purposes of a diplomatic mission." a The Draft Convention on Diplomatic Privileges and Immunities compiled by Harvard Research in International Law in the United States provides in Article 6: "A sending state shall not permit the premises occupied or used by its mission or by a member of its mission to be used as a place of asylum for fugitives from justice." b The Soviet international law jurist Kozhevnikov says: "Ac­ cording to the current rules of international intercourse, the inviolability of residence does not mean that diplomatic officers have the right to detain anyone in their residence, nor can one arrested by local authori­ ties take shelter there."c The British international law jurist Hall points out: "In Europe, however, it has been completely established a Charles C. Hyde, International Law, Chiefly as Interpreted and Applied by the United States, 2nd ed. (Boston: Little, Brown and Co., 1947), III, 1287. " AJIL, Supp. 26 (1932), p. 62.