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2016 | OriginalPaper | Chapter

4. ILO, Extraterritoriality and Labour Protection in Republican Shanghai

Author : Yifeng Chen

Published in: Fundamental Labour Rights in China - Legal Implementation and Cultural Logic

Publisher: Springer International Publishing

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Abstract

This article examines the role and interplay of various actors, such as the International Labour Organisation, the Chinese government, the City government of Greater Shanghai, the Shanghai Municipal Council, Chinese and foreign enterprises, and labour activists in their endeavours to promote labour protection in Shanghai during the Republican era. The study reveals that the labour issue in the Republican era was conceptualized prominently as a political issue, despite its self-evident humanitarian nature and that enactment and implementation of labour law were closely intermingled with China’s efforts towards national liberation from colonialism and imperialism. The origination of labour law development in Republican China was largely due to competition with the colonial powers concerning regulatory authority over industrial conditions and arose out of the desire to contain colonial expansion in China. The ensuing contest between the Chinese authorities and the colonial powers over the authority of Factory Law enforcement also shed light on the actual interplay between the political and humanitarian conceptions of labour. Nevertheless, humanitarian vocabularies and commitment by the International Labour Organisation lent considerable political legitimacy to China’s claim to sovereignty in relation to labour protection. Engaging in the humanitarian cause of labour protection also reinforced the political process of state building in China.

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previous chapter Economic, Social, Political and Legal Transition in China

next chapter Implementation Mechanisms for Chinese Labour Law: Institutions, Practices, and Challenges

[Factory Law] 工厂法 (gōng chǎng fǎ), 1929.

See Lieu 1936.

It is estimated that in 1933 Shanghai had up to 350,000 industrial workers. See Ibid., at pp. 112–115. In contrast, the total population in Shanghai amounted to 3,391,909 in the same year, at p. 396.

This article is a continuation of previous research in the same direction, see Chen 2014.

[Provisional Factory Regulations] 暂行工厂通则 (zàn xíng gōng chǎng tōng zé), 1923.

See generally Keeton 1969, Willoughby 1927, and Fishel 1952. It is, however, to be noted that outside the context of the unequal treaties system the term “extraterritoriality” can also be used in a neutural manner, referring to, for example, the immunity enjoyed by foreign diplomats from local jurisdiction, or the application of statutes of a certain country outside its territorial jurisdiction on matters such as anti-trust and human rights.

See Woodhead 1929, at pp. 1–3.

Great Britain and the United States had established special judicial bodies for exercising extraterritorial power. The British Supreme Court for China and Japan was established as early as 1865, and the United States Court for China was established in 1906. For a discussion on the United States Court for China, see Ruskola 2013, at pp. 152–185.

In promulgating the “General Regulations under which British Trade is to be conducted at the Five Ports of Canton, Amoy, Foochow, Ningpo, and Shanghai” on 22 July 1843, China for the first time had to concede consular jurisdiction to the British Empire on a unilateral basis. The “General Regulations” was later incorporated in the Treaty of Bogue concluded by the British and Chinese Empires in Hong Kong on 8 October 1843.

Having declared war against Germany and Austro-Hungary, China promulgated regulations in accordance with international law and abrogated the extraterritorial rights of German and Austro-Hungarian subjects in 1917. Russia formally renounced its extraterritorial privileges in 1924. In 1927 Peru confirmed the renunciation of its extraterritorial rights, as a result of the expiration of the Treaty of Friendship, Commerce, and Navigation between Peru and China of 1874. In an exchange of notes with the Chinese government in 1929, Mexico also confirmed the termination of its extraterritorial right, brought about by the expiration on 30 November 1928 of the Treaty of Amity, Commerce, and Navigation between Mexico and China of 1899. After the Paris Peace Conference of 1919, the Beijing government pursued a policy of seeking revision of unequal treaties with foreign powers with limited success. See [Tang] 唐启华 2010.

Report of the Commission on Extraterritoriality in China 1926, at pp. 20–21.

See Letter from Mr. Palairet to Mr. Austen Chamberlain, dated 10 October 1925, in Jarman 2008a, at pp. 275–276.

For a comprehensive and authoritative record, in Chinese, of the International Settlement and French Concession in Shanghai, see [Shi] 史梅定 2001; documentation for the development and practice of the International Settlement can also be found in Feetham 1931.

Its legality was viewed suspiciously even from a western perspective. After careful examination, Johnstone concludes with the observation that the Land Regulations rested on “an indefinite and decidedly vague legal basis.” Johnstone 1937, at p. 53. Even the British government was sceptical of the foundational basis of the Shanghai Municipal Council and the legal force of the rules and regulations issued by the SMC. See Memorandum on the International Municipal Government of Shanghai by the British Foreign Office, dated 27 July 1925, in Jarman 2008a, at p. 182.

The Committee on Roads and Jetties, established in 1846, was charged with a limited duty of self-regulation on civil matters that was authorized by the Chinese government in the Land Regulations of 1845.

The revision of Land Regulations in 1854 by ratepayers without seeking consent from the Chinese government was a critical step for the maturing of an “administrative structure”. The Executive Committee, replacing the Committee on Roads and Jetties, was later renamed the Shanghai Municipal Council. In the same year, the Municipal Police Force was established. These intrusive institutional reforms were backed up politically by the metropolitan centres of the colonial powers. The revised Land Regulations of 1869 were approved by the diplomatic corps in Beijing and then sent to the Chinese government for the record. In addition, a military force, called the “Shanghai Volunteer Corps”, existing between 1853 and 1942, was placed under the Shanghai Municipal Council from 1870.

See Hinder 1944, at pp. 21–23.

Only foreigners who owned property worth 500 taels or more or who paid rent of an equivalent value were eligible to vote, according to the Land Regulations.

Although Chinese residents made up more than 98 % of the local population and were the most important source of tax contribution, only by 1926 did the International Settlement adopt a resolution to allow for Chinese representation.

On this point, see Barnett 1941, at p. 23.

Tax collection activities in the Settlement by Chinese authorities were prosecuted as a criminal offence. See Kotenev 1927.

It was correctly observed that “the existence of foreign ‘Settlements’ and ‘Concession’ in various of her Treaty Ports, operate as a limitation upon her local administrative powers”. Willoughby 1922, at p. 52.

Shanghai Special City was established in 1927 by incorporating 17 adjacent counties and towns into its administration. Having ceded from Jiangsu Province, Shanghai was put under direct control of the Nationalist Government as a special administrative area. The Kuomintang Central Executive Committee approved the Provisional Regulations of Shanghai Special City on 7 May 1927. The Shanghai Special City Government was inaugurated on 7 July 1927.

For an account of the three decades of dynamics between the ILO and China 1919–1949, see generally Chen 2014; useful information can also be found in Wagner 1938, at pp. 175–200; Porter 1994, at pp. 145–159.

See ILC, First Annual Meeting 1920, at p. 231.

Unsigned author 1924, at p. 1009. The Director, Albert Thomas, reported this news to the Governing Body of the ILO with barely concealed excitement: “This Decree is an illustration of the influence which the decisions of the Conference may exercise in a country where social legislation is comparatively new. The Decree is inspired by the Washington Draft Conventions (…) In issuing this Decree, the government has given evidence of its desire to give effect to the proposals made with regard to China by the Commission on Special Countries appointed by the Conference at the Washington Session in 1919.” Governing Body of the International Labour Office 1923, at p. 588.

This movement was particularly encouraged by developments in Hong Kong, the latter resulting in approval by the Hong Kong governor of the Ordinance on Industrial Employment of Children on 29 September 1922. For a useful discussion of the involvement of Christian organizations leading to establishment of the Child Labour Commission, see Anderson 1928, at pp. 102–124.

See Porter 1994, at pp. 74–80.

Full texts of the correspondence can be found in the Municipal Gazette of the Shanghai Municipal Council, 25 Jan 1923.

For a historiographical study of the General Chamber of Commerce, see [Xu] 徐鼎新 and [Qian] 钱小明 1991.

Quoted from Anderson 1928, at pp. 130–131.

See Kotenev 1927, at pp. 108–109.

See Municipal Gazette of the Shanghai Municipal Council, 5 Apr 1923.

[Morning Post] 晨报 1923.

An English translation is provided in Woodhead 1926–7, at pp. 908–910.

[China Office of the International Labour Organisation] 国际劳工组织中国分局编 (guó jì láo gōng zǔ zhī zhōng guó fēn jú biān), 1948, at p. 106.

See Anderson 1928, at p. 21.

The British position was clearly stated as follows: “So far as the British concessions and settlements are concerned, the regulation would be applied by the municipal authorities by means of new bye-laws and inspectors appointed thereunder.” Great Britain Foreign Office 1925, at p. 5.

See Woodhead 1924–5, at p. 657.

It was commented that “the Regulations which marked such a great step forward, marked it on paper only”. Wagner 1938, at p. 97.

Ms. Mayling Song was active in the Young Women’s Christian Association of China. See e.g., Song 1924.

See Report of Child Labour Commission 1924, Municipal Gazette of the Shanghai Municipal Council, 19 July 1924, at pp. 259–282. A reprint of the Report can also be found in Woodhead 1925–6, and in Papers Respecting Labour Conditions in China 1925, at pp. 113–130.

Municipal Gazette of the Shanghai Municipal Council, 19 July 1924, at pp. 259–282.

See Henry 1927, at p. 32.

Kotenev 1927, at p. 115.

Ibid., at p. 113.

For documentation of the Chinese opposition, see Woodhead 1926–7, at pp. 907–908.

Anderson 1928, at pp. 19–20.

See Porter 1994, at pp. 5–6.

For documentation of the Chinese opposition, see Woodhead 1926–7, at pp. 907–908.

Hinder 1944, at p. 5.

For an analysis of various underlying contributing factors, see Porter 1994, at pp. 111–114.

Wagner 1938, at p. 95.

It is however noteworthy that after 1927 the Kuomintang Party turned to a more conservative position towards the labour movement. For a study of the Kuomintang’s early labour policy and labour law-making activities up to 1928, see Chan 1929.

This is closely related to the Kuomintang official ideology of the Three Principles of Peoples, namely, nationalism, democracy, and the livelihood of the people.

For the full texts of those laws, in both English and Chinese, see Yuen 1935.

For an overview of the work by the Factory Inspection Bureau, see Djang 1944.

Program for the Enforcement of Factory Inspection, issued by the Central Factory Inspection Bureau and approved by the Ministry of Industries in April 1934. Full version available in Yuen 1935, at pp. 40–47.

See Shanghai Municipal Council 1936, at p. 1.

“Questions for Readjustment Submitted by China to the Peace Conference”, a full text with selective appendixes, is reprinted in Chinese Social and Political Sciences Review, 1920, at pp. 116–161; the same reprint is also reproduced in Woodhead 1921–2, at pp. 719–739.

The Commission on Extraterritoriality in China, composed of the representatives of the United States, Great Britain, France, Japan, Belgium, the Netherlands, Italy, Portugal, Spain, Denmark, Sweden, Norway and China, was established in 1926 in pursuance of Resolution V adopted at the Washington Conference 1921. For the full report of the Commission on Extraterritoriality in China, see Report of the Commission on Extraterritoriality in China, Peking, 1926.

At the Washington Conference 1921 China again vigorously demanded abolition of extraterritoriality. An excellent exposure of China’s involvement in the Washington Conference can be found in Willoughby 1922.

Some Chinese sources offered useful discussion on the implementation of factory regulations and the problem of extraterritoriality. See generally [Cheng] 程海峰 1934; [Chen] 陈宗城 1933; [Zhu] 朱懋澄 1933.

See Wagner 1938, at p. 143.

Porter 1994, at p. xiv.

See Henriot 1993, at p. 197. The concession was motivated by British indifference to Chinese education in the International Settlement. See a dispatch from the British Consul-general Mr. J. F. Brenan respecting Chinese education in the International Settlement dated 12 February 1931, in Jarman 2008c, at pp. 35–38.

Coble 1980, at p. 19.

For a discussion on this point, see Memorandum Respecting the Problem in Shanghai, dated 14 August 1929, authored by J. T. Pratt, in Jarman 2008b, at pp. 388–393. For useful documentation on the practice of the Mixed Court 1864–1924, see Kotenev 1925. For a Western assessment of its performance, see Stephens 1992.

Coble 1980, at p. 40.

See ibid., at p. 40; see also Wakeman 1995, at p. 71.

See Bergere 2009, at pp. 167–168.

To the contrary, it is noted that in 1881 the British Government authorized the extraterritorial application of the UK Companies Act of 1862 to China. Joint-stock companies in the International Settlement could be registered with the British Consular Court of Shanghai, and the shareholders were consequently protected by liability limited to the amount of their investment in the company, a system which is contrary to the customary practice in China of unlimited liability for investors. See Bergere 2009, at pp. 75–76.

For example, during preparation of the ILO at the Paris Peace Conference in 1919, the matter of applying labour law to colonies was conceived. The commission responsible for drafting the ILO Constitution was of the opinion that “in the case of colonies which are not fully self-governing, the mother country undertakes the obligation to apply labour conventions to them, unless local conditions render it impossible to apply them either wholly or in part”. The Commission on International Labour Legislation 1920, at p. 10. Of course, the status of the International Settlement was fundamentally different from a colony.

Papers Respecting Labour Conditions in China 1925, at p. 18.

Hinder 1944, at p. 9.

See also Porter 1994, at p. xvii.

Henry 1927, at p. 31.

[Chen] 陈宗城 1933, at pp. 85–92.

See Wagner 1938, at p. 158.

See Pone 1932, at pp. 600–601.

Governing Body of the International Labour Office 1931, at p. 381.

Ibid.

Tian 2008, at pp. 101–106.

For a report and self-account of the experience in China concerning labour improvement, see Anderson 1928.

In response to Thomas Tchou concerning the question of foreign settlements, Adelaide Anderson replied: “I am immensely interested in the important question you refer to in the foreign industrial establishments and feel very sure that from my own countrymen we shall obtain ready sympathy and support for uniform, efficient methods of inspection. To win their co-operation we shall have simply to convince them that it is not only being aimed at but practically being secured in Chinese Factories.” Letter from Adelaide Anderson to Thomas Tchou, 25 April 1930.

See Letter from Thomas Tchou to Adelaide Anderson, 26 March 1930.

Governing Body of the International Labour Office 1931, at p. 382.

Ibid., at pp. 382–3.

Ibid., at pp. 233–238.

See the report by Pone to the Governing Body of the International Labour Office 1932, at pp. 183–189.

Pone 1932, at pp. 591–604.

Governing Body of the International Labour Office 1932, at p. 183.

See Woodhead 1932, at p. 276; see also Governing Body of the International Labour Office 1932, at pp. 187–188.

Archive of the Shanghai Municipal Council at the Shanghai Archive Library, Numbered U1-6-111, quoted from [Ma] 马长林 2002, at p. 64.

Letter from Adelaide Anderson to Eleanor M. Hinder, 22 January 1932.

Letter from Camille Pone to Adelaide Anderson, 1 December 1932.

ILC, First Annual Meeting 1920, at p. 231.

Draft Resolution concerning the application of labour legislation to the nationals of certain States which enjoy the privilege of extra-territorial jurisdiction or similar privileges, see ILC, 1929, at pp. 709–711.

ILC, 1929, at p. 620.

100

See ILC, 1929, at pp. 619–627.

101

For a record of the votes, see ibid., at p. 628.

102

[Ministry of Industry Compilation Committee of the Chinese Labour Yearbook] 实业部中国劳动年鉴编纂委员会 (shí yè bù zhōng guó láo dòng nián jiàn biān zuǎ n wěi yuán huì) 1933, at pp. 13–15.

103

See Draft Resolution concerning the equitable treatment of seamen, both the original text and revised text, in ILC, 1929, at p. 322.

104

See ILC, 1929, at p. 232.

105

See Draft Resolution concerning modification of the conditions which prevent development of Chinese navigation, in ibid., at p. 323.

106

For the text of the draft resolution, see ILC, 1933, at p. 509.

107

Ibid., at p. 199.

108

See ILC, 1933, at pp. 197–200. The chair of the sitting Italian government delegate Giuseppe De Michelis even resisted taking a record of the vote. At the insistence of some delegates, a vote record was taken on the morning of the second day where 49 votes were recorded in favor. See ibid., at pp. 216–217.

109

ILO, The World Textile Industry: Economic and Social Problems, 1937.

110

See Wagner 1938, pp. 193–194.

111

See ILC, 1937, at pp. 785–786.

112

Ibid., at p. 484.

113

Ibid., at p. 485.

114

See Porter 1994, at p. 151.

115

Djang 1944, at p. 292.

116

See Woodhead 1932, at p. 276.

117

See dispatch from the British Consul-General Mr. J. F. Brenan dated 1 March 1933, in Jarman, 2008c, at pp. 589–590.

118

See Wagner 1938, at p. 19; see also Hinder 1944, at pp. 7–8.

119

See dispatch from the British Consul-General Mr. J. F. Brenan dated 1 March 1933, in Jarman, 2008c, at p. 590.

120

In commenting on the revision of Bylaw 34, Hinder said “I know this, that nothing will induce this Settlement to give way to its thesis of the administrative integrity within this area: and being a practical person I am ready for negotiations and compromise…. I therefore understood the viewpoint of the YWCA when it published a statement pointing out that the Council’s action was a limitation on China’s sovereignty.” Letter from Eleanor M. Hinder, 20 April 1933.

121

Hinder 1944, at p. 7. However, the change of the bylaw is considered to be “a pyrrhic victory”, as the bylaw could not be enforced by the First Special District Court of Shanghai. See Porter 1994, at pp. 136–137.

122

See Shanghai Municipal Council 1934, p. 36; also Kotenev 1927, at pp. 113–115.

123

Ibid., at p. 10.

124

See the speech by Mr. Li Pingheng the Chinese delegate to the Governing Body, Governing Body of the International Labour Office 1937, at p. 43.

125

For the English text of the draft agreement, see Shanghai Municipal Council 1937, at pp. 1–2; see also Wagner 1938, at pp. 161–162; for the Chinese text, [Draft Agreement Respecting the Implementation of Factory Law in the International Settlement] 上海剬共租界内施行工厂法之协定草案 (shàng hǎi gōng gòng zū jiè nèi shī xíng gōng chǎng fǎ zhī xié dìng cǎo àn), see Labour Monthly, 1935, pp. 7–8.

126

See Shanghai Municipal Council 1937, at p. 2.

127

See Shanghai Municipal Council 1937, at p. 2.

128

See Shanghai Municipal Council 1928.

129

See Shanghai Municipal Council 1935, at pp. 1–2, 6–7; see also Shanghai Municipal Council 1936, at pp. 6–9; also Porter 1994, pp. 118–120.

130

See Shanghai Municipal Council 1937, at p. 8.

131

Hinder 1944, at p. 38.

132

Ibid.

133

See Shanghai Municipal Council 1937, at pp. 11–12.

134

See Shanghai Municipal Council 1939, at pp. 14–16.

135

See Porter 1994, at pp. 125–127.

136

Woodhead 1939, at p. 496.

137

See Lieu 1936, at pp. 133–135.

138

Ibid., at p. 394.

139

See Shanghai Municipal Council 1939, at p. 34.

140

Ibid.

141

See Porter 1994, at pp. 124–125.

142

Hinder 1944, at pp. 22–23.

143

Hinder 1944, at p. 22.

144

Hinder 1944, at p. 15.

145

Ibid., at p. 24.

146

Municipal Gazette of the Shanghai Municipal Council, 30 October 1942.

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Record of proceedings of the International Labour Conference: First Annual Meeting (29 October – November 1919), Washington, DC, USA, 1920.

Record of Proceedings of the International Labour Conference, 12th session, Geneva, 1929.

Record of proceedings of the International Labour Conference, 13th session, Geneva, 1929.

Record of proceedings of the International Labour Conference, 17th session, Geneva, 1933.

Record of proceedings of the International Labour Conference, 23rd session, Geneva, 1937.

Other International Law Sources

Supplementary Treaty of Commerce and Navigation between Japan and China, 8 October 1903.

Treaty of Amity, Commerce, and Navigation between Mexico and China, 14 December 1899.

Treaty of Bogue concluded between the British Empire and China, 8 October 1843.

Treaty of Friendship, Commerce, and Navigation between Peru and China, 26 June 1874.

Treaty between the United Kingdom and China Respecting Commercial Relations, 5 September 1902.

Treaty between the United States and China for the Extension of the Commercial Relations Between Them, 8 October 1903.

Chinese Regulation

[Factory Law] 工厂法 (gōng chǎng fǎ), Nationalist Government, adopted 21 December 1929.

[Factory Inspection Law] 工厂检查法 (gōng chǎng jiǎn chá fǎ), Nationalist Government, adopted 10 February 1931.

[Labour Union Law] 工会法 (gōng huì fǎ), Nationalist Government, adopted and effective 21 October 1929.

[Law Governing the Settlement of Disputes between Employers and Employees] 劳资争议处理法 (láo zī zhēng yì chǔ lǐ fǎ), Nationalist Government, adopted and effective 9 June 1928.

[Provisional Factory Regulations] 暂行工厂通则 (zàn xíng gōng chǎng tōng zé), Ministry of Agriculture and Commerce, Beijing Government, adopted and effective 29 March1923.

Publications of Shanghai Municipal Council

Municipal Gazette of the Shanghai Municipal Council: 25 January 1923; 5 April 1923; 19 July 1924; 30 October 1942.

Shanghai Municipal Council. 1928. Handbook of licence conditions 1928. Shanghai: Kelly and Walsh.

Shanghai Municipal Council. 1934. Report for the year 1933. Shanghai: Kelly and Walsh.

Shanghai Municipal Council. 1935. Regulation of industrial conditions, reprinted from the 1934 annual report. Shanghai: The North-China Daily News & Herald.

Shanghai Municipal Council. 1936. Regulation of industrial conditions, reprinted from the 1935 annual report. Shanghai: The North-China Daily News & Herald.

Shanghai Municipal Council. 1937. Regulation of industrial conditions, reprinted from the 1936 annual report. Shanghai: The North-China Daily News & Herald.

Shanghai Municipal Council. 1939. Regulation of industrial conditions, reprinted from the 1938 annual report. Shanghai: The North-China Daily News & Herald.

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