Selbstregulierung einer Fremdenkolonie: Deutsche Konsulargerichtsbarkeit in Japan und Korea, 1861–1913

Abstract

SUMMARY

Western extraterritoriality in East Asia has long been considered a symbol of asymmetrical power relations and criticized as an infringement of the sovereignty of China, Japan and Korea. By contrast, imperial powers justified their need to maintain “the rule of law” in an uncivilized East Asian region lacking rational and humane ways of justice. Recent scholarship paints a more balanced and nuanced picture of a system that was more complex with multiple stakeholders. Most international research, however, focused on the interaction of the major Anglo-Saxon states, especially Great Britain, with China and Japan. Little attention has so far been paid to Imperial Germany and its system of consular jurisdiction in Japan and Korea. This article is the first study of its kind and therefore it relies heavily on unpublished primary sources from diplomatic archives and on late nineteenth century press reports. Its aim is to recreate the German consular court experience and contextualize it in the broader framework of Western extraterritoriality and of German legal history. It narrates three interrelated chronological stories, how international bilateral treaties and German laws formed the backbone of the system, how the German consular courts worked in practice, and finally how Japan terminated the German and Western consular court system in her own country and in Korea.
Imperial Germany was one of the major players in operating extraterritorial jurisdiction in Japan and Korea. It guarded its rights and privileges with caution, sometimes in cooperation and sometimes in competition with the other European powers. Lagging behind the UK and the US in the total number of judgments, especially due to fewer criminal cases, it can be estimated that the German consular courts in Japan conducted about 2,000 trials whereas their counterpart in Korea barely decided less than thirty cases over the years of extraterritoriality. As seen through the statistics and extant records of decisions it appears to have been a reasonably well-functioning system of justice administration across national and language barriers. A Japanese coolie or a local maid could successfully sue their German employers for damages or could enforce contracts. Nevertheless, elements of an “unfair system” may still have existed in terms of the willingness to admit oral evidence when the counterpart was not “a Christian gentleman”. Conversely a Japanese Court rejected a case by a German plaintiff merely on the formal grounds that the Japanese government refused to communicate with its court. Different laws applied to similar crimes when committed in Yokohama. Two individuals who had cooperated in stealing newspapers were sentenced by different national courts to jail sentences ranging between 7 days (German) and one year (Japanese) according to the criminal codes of their respective countries that were then in force.
Theoretically expected to apply German law, in many of the trade and commercial affairs the German consular court followed what one could call “treaty port customary law”, which was neither strictly German nor Japanese. In fact the German law of consular jurisdiction of 1879 explicitly permitted such a use of local customary law in commercial affairs. One does see consular court judges, Germans and others, considering the wider community implications of their actions and asking questions about the laws and regulations of countries of the parties and Japan and finally settling the case by proposing a compromise. Sometimes a court would simply defer a decision altogether in respect to law suits in other national courts within the same litigation complex of suits and countersuits. Although the scope of this study was mostly confined to the German consular court as an institution of justice, tracing some of the cases involving German speakers in other courts as plaintiffs and witnesses shows an intricate web of transcultural social and economic relations across national and institutional boundaries. Contrary to the popular image evoked by the term “unequal treaties” the majority of law suits, civil as well as criminal, in both the German and other consular courts stayed within the parameters of the Western community and this study argues that they may have contained the further spread of Western imperialism through legal self-regulation. Extraterritoriality receded when Japan had convinced foreign powers of the reliability of her new justice system modeled after Western laws and procedures. Previously, nationalist fervor, through public opinion and administrative action, also helped in confining the “midas touch of extraterritoriality” to stretch beyond the legal defense of individuals in the consular courts of their own nations. The application of Japanese administrative laws such as quarantine, firearm, custom and press regulations became contested ground in the process leading up to revising the unequal treaties. Although Imperial Germany was involved in some of these controversial incidents, together with the United States, she was one of the first Western powers willing to give up her extraterritorial privileges in Japan to the chagrin of the British diplomats. In a series of diplomatic conferences and consultations all Western powers agreed to a settlement that ended the consular court system in Japan by July 1899. In contrast to Japan, the initial unequal treaties with Korea had extended the scope of extraterritoriality to land acquired by foreigners and gave foreigners broad travel permissions in the country at large. Due to the small number of German residents in Korea these treaty stipulations were not a core issue except that a German subject was one of the largest foreign landowners benefitting from extraterritorial stipulations. When Japan unilaterally cancelled Korea´s international treaties with the annexation of Korea in August 1910, the German Consul to Korea questioned the legality of the Japanese action and insisted on the continuation of Western extraterritorial rights. In a process of multilateral negotiations Japan then addressed the legal and commercial concerns of Western diplomats and by April 1913 signed an agreement mutually ending Western consular jurisdiction in Korea. After all Western nations had already agreed that Japanese laws where in principle on par with their own, it was difficult on this ground to maintain consular court privileges in Korea and oppose the extension of Japanese laws Korea.