Forced Migration, Refugees and China’s Entry into the ‘Family of Nations’, 1861–1949

Forced Migration, Refugees and China’s Entry into the ‘Family of Nations’, 1861–1949 Abstract This article is concerned with the broad imperial and colonial frameworks that have shaped forced migration and human displacement in Asia. What does it mean, for example, when the international jurisprudence surrounding asylum and refuge was formulated at a time when it was widely assumed—by international lawyers and states alike—that colonial powers could do more or less as they wished with the people under their control? This article argues that such contradictions were not peripheral or incidental, but central to the historical formation of the international regimes governing refugees and forced migrants. My goal is to put the cultural/civilizing discourses of colonialism into the heart of political and economic arguments over how to categorize the movement of people. I focus specifically on China, and the experiences of Chinese migrants overseas, in order to reveal the complex interlocking of European colonialism in Asia around issues of political asylum, labour migration and a complex colonial apparatus of banishment, exile and deportation. Introduction This article is concerned with the broad imperial and colonial frameworks that have shaped approaches to forced migration and human displacement in Asia. What does it mean, for example, when the international jurisprudence surrounding questions such as asylum and refuge was formulated at a time when it was widely assumed—by international lawyers and states alike—that ‘international law has no place for rules protecting the rights of backward peoples’ and that colonial powers could more or less do as they wished with the people under their control (Lindley 1925: 45; Anghie 2004: 32–114)? This article argues that such contradictions were not peripheral or incidental, but central to the historical formation and evolution of the international regimes governing refugees and forced migrants. My goal is to put the cultural/civilizing discourses of colonialism into the heart of political and economic arguments over how to categorize the movement of people. I focus specifically on China, and the experiences of Chinese migrants overseas, in order to reveal the complex interlocking of European colonialism in Asia around issues of political asylum, labour migration and a complex colonial apparatus of banishment, exile and deportation. The article is divided into four parts. The first part examines the introduction of European international law to colonial and semi-colonial Asia in respect to the concept of political asylum and the extradition of political refugees across national and colonial borders. The second section of the article examines the prevalence and significance of colonial practices of banishment, exclusion and deportation as legal instruments for dealing with political dissenters and other undesirables. The third section of the article looks at the significance of indentured labour migrations in relation to emergent international norms with respect to forced migration. Finally, the article considers the role of the International Labour Organization (ILO) in revising international attitudes and practices with respect to forced migration and refugees in the colonial world after 1919. Asylum, Extradition and the Politics of Refuge This section is concerned with what historian Jan Manasek has termed ‘the centrality of asylum to the nineteenth century international system’ (Manasek 2017: 80). Political asylum ‘created an architecture of refugee protection’ that ‘served as a model’ for a set of ‘basic and enduring protocols’ on how states would respond to later refugee movements (70). Manesek was referring to the European state system. However, the nineteenth-century expansion of European colonialism and international law ensured that these questions quickly came to the fore in Asia as well. The concept of the modern political refugee was first introduced in China in the middle of the nineteenth century, as part of a growing international debate over extradition. States increasingly regarded extradition as a necessary response to growing transnational mobility and the need for effective legal mechanisms for repatriating fugitive criminals (Rygiel 2015). At the same time, the French Revolution and the liberal revolutions of the 1830s had ‘forced a reassessment of the nature of criminality—particularly illegal activities against the state carried out in the name of a political ideology’ (Manasek 2017: 70). This resulted in the creation of a new category of ‘political crime’ and gave rise to the principle of the ‘political offence exception’ to extradition (Van den Wijngaert 1980; Manasek 2017: 70). While extradition treaties had become common across Europe by the 1880s, the extradition of persons for political offences was controversial, especially among liberal states that championed the idea of political freedom (Sinha 1971: 171–177; Rygiel 2015; Orchard 2017). Wheaton’s 1866 foundational text on international law—and the first to be translated into Chinese—observed that Britain ‘steadfastly refused to surrender political offenders, or to deny them asylum’ (Wheaton 1866: 182). Indeed, London had become a centre for political exiles from across continental Europe—including, most famously, Karl Marx, who had arrived in the city in 1849 after being expelled from Prussia and France (Carpenter 1999). Crucially, however, the principle of non-extradition for political offences was not an absolute one—especially when it came to anarchists and socialists, whose goal was to overthrow the liberal order. By the late nineteenth century, even champions of political freedom such as Britain and France were increasingly prepared to oblige requests for the extradition of foreign socialists and anarchists on their soil, and to refuse them sanctuary when they sought it (Sinha 1971: 180–181; Caestecker 2003; Burgess 2008; Rygiel 2015: 12–14). What did these international developments mean for China and the non-Western world more generally? The European international lawyers who upheld the principles of personal and political freedom were firmly of the view that such principles were applicable only to the ‘civilized world’ of European states, and saw no contradiction between defending these principles at home while simultaneously denying them to the ‘uncivilized’ peoples of Asia and Africa (Rygiel 2015: 4–5). Nineteenth-century political liberalism and racial particularism often went hand in hand, and were mutually constitutive. At the same time, however, colonial projects also rested upon a set of legal norms and infrastructure. This was true not only at the level of governance and the colonial state’s relationship with ‘native’ populations and institutions (Benton 2002). It was also true with respect to the cross-border movement of colonial and non-colonial subjects. Managing the latter required the establishment of a set of legal procedures and understandings reached with other colonial powers, as well as with sovereign states like China, Japan, Korea, Siam and Turkey. ‘Semi-colonial’ China presents a particularly interesting case. For, although it remained nominally sovereign, by the late nineteenth century, the ailing Qing dynasty had succumbed to the establishment of a patchwork of dozens of foreign-controlled ‘treaty ports’, concessions, leased territories and formal colonies spread across its territorial space. This complex web of colonial and semi-colonial arrangements, enshrined in a series of international treaties and agreements entered into since 1842, meant that questions of sovereignty, residence status and nationality rapidly became a permanent preoccupation of Chinese and foreign officials alike who grappled with the international legal and jurisdictional issues arising from the movement of people across these newly formed internal borders. It was the existence of such legally protected foreign enclaves within China itself that produced China’s first encounter with European international law over questions of political asylum and the definition of a political refugee. Principles and procedures of extradition varied across different European empires (Clarke 1903). Here we are concerned primarily with Sino-British examples and the actions of Britain and the Hong Kong authorities. Extradition clauses were inserted into the very first international treaties that Britain and other European powers imposed upon China following China’s defeat by Britain in the Opium War of 1839–42. The Sino-British Supplementary Treaty of 1843 included an extradition clause designed to secure the mutual rendition of British military deserters in China and fugitive Chinese who fled to Hong Kong and Britain’s other foreign territorial concessions in China (Supplementary Treaty, 1843). Although this treaty made no mention of political crime, the extradition of political offenders quickly became a subject of debate in China and in British colonial spaces within China, as it was in Europe around this time. In 1864, Wheaton’s Elements of International Law was translated into Chinese by the American missionary W. A. P. Martin under the title Wangguo gongfa (万国公法)—The Public Law of a Myriad of Countries. The text quickly became required reading for officials in the Zongli Yamen (总理衙门)—the modern-style Foreign Office that was established by the Qing government in 1861 to negotiate China’s entry and position in the international ‘family of nations’ (Banno 1964). China’s first generation of international lawyers and diplomats scoured Wheaton’s book and other translated treatises on international law for knowledge that could be mobilized to strengthen China’s position in dealing with European powers (Liu 1999). Moreover, the discussion of such issues was not confined to diplomatic corridors; the question of political asylum and states’ refusal to extradite political offenders was also raised in China’s nascent commercial press (Svarverud 2007: 48). Perhaps most importantly, a series of high-profile test cases soon arose, which involved the question of political asylum and extradition of political offenders to and from China and British territories in China. Here we consider three such cases, in order to illustrate how the international politics of asylum were imprinted on China’s early encounter with European-derived international law. The first example is from 1896 and involves perhaps the single most well-known political figure in modern China: Sun Yat-sen (孙逸仙). Widely recognized as the ‘Father of Modern China’ for leading the movement to overthrow the imperial political system and replace it with a modern republic, Sun’s first attempt to oust the Qing dynasty took place in 1895. When the uprising failed, Sun fled China with a price on his head. The following October, he was in London raising support and funds for the republican cause when Qing agents kidnapped Sun and whisked him off to the Qing legation, where Qing diplomats prepared to extradite him to China to face charges of treason and certain execution. Alerted to his capture and impending fate, the British refused to extradite Sun for a political offence. The Qing government accused Britain violating China’s sovereignty by refusing Sun’s extradition as the latter was being held within the extra-territorial sovereign space of the Chinese legation. After several weeks, however, the Qing relented. Recognizing there was no way they could get Sun from the legation to the ship that would return him to China without passing through British territory, they let him go (The China Mail 1896; Sun 1897). A little more than a decade later, Sun would succeed in toppling the Qing monarchy to become president of the new Republic of China on 1 January 1912. The first president of the Chinese Republic was also China’s first high-profile political refugee. The issue of political asylum, and whether foreign colonial possessions in China should offer sanctuary to persons fleeing political charges in China, grew increasingly acute in the 1920s and 30s, as China’s central government lost authority and the republic disintegrated into warlordism, while at the same time facing a growing insurgency led by the Chinese Communist Party (CCP). Our second example involves Chinese communists who sought refuge in British-ruled Hong Kong following a massacre in which more than 5,700 suspected communists were brutally slain by government forces in the adjacent southern city of Guangzhou (Canton) in December 1927, many of them executed with their hands tied or bound and thrown overboard from boats into the Pearl River (UK National Archives 1927a; Rea 1977: 96–98; Zhonggong Guangdong shengwei 1993: 12; Zhonggong Guangzhou shiwei 1995: 161–165). In the days following the massacre, around 300 Chinese communists sought sanctuary in British Hong Kong, but nearly all of them were turned back at the border. When news of their denied entry broke in Britain, accusations soon appeared in the British press that the ‘Red refugees’ had been ‘sent back to Canton to be slaughtered’ (UK National Archives 1927a). The colony’s Chinese Extradition Ordinances of 1889 and 1927 had explicitly ruled out extradition for political offences (UK National Archives 1928c) and, in considering the case, the Secretary of State for the Colonies affirmed that ‘it would be contrary to British traditions to deny the hospitality of the Colony to political refugees’ (UK National Archives 1928c). But then came the crucial qualifying statement. The secretary was also aware that the actual ‘interpretation’ of this policy ‘must to some extent depend on the degree of good relations existing between Hong Kong and Canton’ (UK National Archives 1928c, emphasis added). In 1927, Britain was eager to establish good relations with the newly established—and staunchly anti-communist—Nationalist government in China and its local authorities in Guangzhou. According to another British official, the fact it was communists who were seeking political sanctuary in a British colony had ‘rendered impossible the strict interpretation of the sanctuary principle’ (UK National Archives 1927b). For its part, Hong Kong’s colonial government resorted to a legal argument that the suspected communists ‘were likely to be a danger to the peace and good order of the colony’ as specified under a 1922 Emergency Ordinance (UK National Archives 1927d). Moreover, since the asylum seekers had not been allowed to enter the colony in the first place, there could therefore be no question of having violated any existing laws and traditions by ‘extraditing’ them back to China (UK National Archives 1927d). Thus, in Hong Kong, as in Britain and other states, the principle of political asylum was applied on a selective basis, with the intent of keeping out communists. In the world of realpolitik, political calculations trumped legal principles. Our third example of the politics of asylum involves the question of extradition and political refuge in an inter-colonial context. In this case, the individual seeking refuge was not a Chinese national, but a Vietnamese colonial subject of France. He had been arrested and detained by the British authorities in Hong Kong in June 1931 at the request of the French government, which described him to the Colonial Office as ‘a threat to all European possessions in the Far East’ (UK National Archives 1931d). The wanted man was a Comintern Agent sentenced to death in absentia by a French colonial court for plotting to overthrow French rule in Indochina. The French had hoped to deal with the matter expeditiously. Rather than lodging a formal extradition request, which would test the British principle of refusing extradition of political offenders, they quietly requested that the man simply be put on board a French ship to face colonial justice in Saigon. The request put Hong Kong’s colonial government in an awkward position, however, because the wanted man had not committed any offences punishable under local laws to justify his deportation. The colony’s attorney general opposed the deportation order ‘on the grounds that it was for all intents and purposes extradition in a case where no extradition proceedings lay’ (UK National Archives 1931a). The Foreign Office, however, took a different view. Officials expressed concerned over the effect on Anglo-French relations of a decision not to hand over the fugitive, it supported the French request. There was also the question of whether Britain’s own colonial interests might also be better served by handing the man over. ‘The decision to be taken regarding this man’s fate depends largely on political considerations and upon our general attitude as regards communist agitators in the Far East,’ wrote one Foreign Office official, ‘in other words, whether we regard such persons as a danger to European powers with possessions in that part of the world, so that the powers in question ought to help each other in dealing with them’ (UK National Archives 1931e). Citing the inherent ‘danger of allowing such a dangerous person to be at large’, Hong Kong’s colonial governor issued the deportation order (UK National Archives 1931c). The accused, however, was not about to go lightly. Within days of his arrest, he had engaged the services of two resident British lawyers in the colony with expert knowledge of British constitutional affairs. During the ensuing Supreme Court proceedings, F. Losely and F. Jenkin accused the Hong Kong and British governments of hypocrisy and willing the wanted man’s execution at the hands of the French. The deportation order, one of them argued, was ‘a sham in that under the cloak of deportation the Executive is in truth attempting to surrender the applicant to the French authorities for an offence of a political character’ (UK National Archives 1931b). There was ‘no power vested in the Hong Kong legislature, or that of any colony, to order the deportation of political offenders’ (UK National Archives 1931b). The court found the deportation order ‘valid’ but granted the accused leave to appeal the decision to the Privy Council. The Hong Kong government's London lawyers asked Sir Stafford Cripps to take on the case, but Cripps declined after deciding that Hong Kong was sure to lose the case (The Legal Case 2006: 285–86; Duncanson 1974: 97–98). In the end, the deportation order was never executed. Instead, the wanted man was quietly allowed to leave the colony on his own accord, to a destination of his own choosing. He departed from Hong Kong’s harbour on 22 January 1933 in the governor’s private launch, which delivered him to the steamship S.S. Anhui, bound for Xiamen on China’s south coast. Nearly two years had passed since his arrest. Throughout this time, he had insisted that he was Sun Man Cho, a Chinese national and native of Guangdong province. But the man was reputed to have more than 200 aliases, and the British referred to him throughout the proceedings by the one for which he would later become most well known: Nguyen Ai-Quoc (‘Nguyen the Patriot’). Apparently unaware that ‘Nguyen’ was the accused’s surname, the British referred to him erroneously throughout by his first name, ‘Quoc’. He is better known to us today as Ho Chi Minh, the Vietnamese nationalist and communist leader who led Vietnam’s struggle for independence against the French. It is worth pondering just how different the history of Asia might have been if Sun Yat-sen had been extradited to China and executed by the Qing government in 1896; had refugees from the CCP won asylum in colonial Hong Kong in 1927; or if Ho Chi Minh had been deported to Vietnam and guillotined by the French in 1931. It is unlikely that the lessons of the politics of asylum were lost on those whose personal and national histories were so dramatically shaped by it. Banishment, Deportation and Exclusion The politics of asylum and the unstable role of colonized spaces as sites of refuge for political dissidents was a key feature of China’s early engagement with the modern international system. However, there was also another, equally significant sense in which China was accorded a place and a position in what international lawyers increasingly referred to as the ‘family of nations’. By the late 1800s, Euro-American juridical discussions had coalesced around the notion of a ‘standard of civilization’ as the basis for claiming membership in the international ‘family of nations’ (Gong 1984b). As Antony Anghie has pointed out, by adopting the notion of an international ‘family’ or ‘society’, jurists effectively linked legal status with cultural distinctions, with the result that ‘completely different standards could be applied to the two categories of people’ (Anghie 2004: 30, 37). An international system constructed around the notion of a binary distinction between civilized and uncivilized states and peoples had profound consequences for how international law regarded issues of forced migration. Some international jurists asserted that ‘international law has no place for rules protecting the rights of backward peoples’ (Lindley 1925: 45). Britain and other colonial powers relied heavily on draconian powers of forced exile, banishment and deportation to rid themselves of anti-colonial agitators and other undesirables from their colonies—even as they granted refuge to China’s political dissidents in the name of defending liberty and humanitarian resolve (Simpson 2001: 75–77). Banishment and exile were not unknown in China. For centuries, Chinese imperial states had used banishment and internal exile (liu 流) to frontier regions as a form of punishment for criminals and disgraced officials (Waley-Cohen 1991). With the advent of European colonialism, the banishment and deportation of unwanted Chinese from colonized spaces ‘back’ to China (including those with little or no connection to the country apart from the fact of having been born there) became a prerogative of colonial sovereignty—a practice made easier by the blood-based citizenship policies of successive Chinese governments (enshrined in the Qing dynasty’s 1909 Nationality Law), which claimed the citizenship of all persons born to a Chinese father, regardless of place of birth (Shao 2009). In Hong Kong, for example, the first laws for deporting undesirable Chinese were enacted in 1849, just seven years after the colony’s establishment (Hong Kong Public Record Office 1849). In the ensuing decades, the punishment of deportation was frequently applied to criminal offenders and as a means of ridding the colony of unemployed and down-and-out itinerants. By the end of the century—and not withstanding the growing international concern for the protection of political offenders—it was also being used to rid Hong Kong of political troublemakers. In 1895, for example, Hong Kong’s governor banished Sun Yat-sen—whom we met earlier in this article, when he was kidnapped the following year by Qing agents in London—for five years after Sun’s failed uprising against the Qing dynasty, on the grounds that his continued presence would be ‘dangerous to the peace and good order of the colony’ (Tsang 2007: 81). In 1917, a revised Deportation Ordinance empowered the colony’s governor to deport ‘any person who in his opinion is an Alien, if he deems it to be conducive to the public good’ (UK National Archives 1917). In British Malaya, where a great many Chinese had migrated, the first Banishment Act was introduced in 1864. The stated target of the act was a convicted criminal, but criminality was ‘increasingly and often inaccurately defined in political terms’ (Yong and McKenna 1990: 56–58). In this way, banishment increasingly functioned as a ‘makeshift immigration control’ for deporting Chinese and other troublemakers (Yong and McKenna 1990: 56–58). The practice of banishing Chinese political ‘subversives’ to China increased sharply in the 1920s with the rise of Chinese Nationalist and Communist Party activities in Malaya. It reached a peak in the 1950s, when more than 10,000 ethnic Chinese were deported to the People’s Republic of China in one year alone as part of the colonial government’s ‘Emergency’ response to an uprising led by the Chinese-dominated Malayan Communist Party (Nanfang ribao 18, 26 June 1952; Simpson 2001: 74, 833). Chinese migrants faced restrictive laws and official discrimination in many of the countries where they worked and settled. This was true in the former ‘white settler colonies’ of Australia, New Zealand, Canada and the United States, as well as in many colonies throughout Asia, Africa and the Caribbean, where Chinese migrant labour was recruited for mines, plantations and other forms of colonial extraction (see below). By the early twentieth century, Chinese migrants had become deeply familiar with the various legalized forms of race-based discrimination that prevailed in most migrant destinations, including restrictions on language, education, property ownership and occupation, even organized pogroms and mass expulsion from their countries of residence (McNair 1933; Huang 1936). The term paihua (排华) referred to border exclusions as well as forced expulsions, both of which were recurring features of Chinese migrant life from the Dutch East Indies to the Philippines, South Africa, Cuba, Mexico, Australia, New Zealand, Canada and the United States (‘Moxige paichi huaqiao’ 1933; Qiu 1934; Shen 1970; Pan 1998: 152, 188, 236–239, 258, 262–266, 275, 287–289, 362). Virtually all of these instances of racial and politically motivated discrimination including expulsion, deportation and mass flight took place beyond the purview of international refugee law. The legal status of Chinese migrants abroad was also made complicated by the 1909 Nationality Law enacted by the Qing dynasty and renewed by the Nationalist government in 1929, which defined Chinese nationality according to the principle of jus sanguinus (‘right of blood’). The ensuing problems associated with the dual nationality of Chinese overseas, evident by the 1930s, continued to affect China’s relations with other states—and the treatment of Chinese minorities within those states, well into the 1950s (Qiu 1937; Cheng 2005; Shao 2009). Indentured Labour Migrations Among the most powerful legal identities ascribed to migrant Chinese in the nineteenth and first half of the twentieth centuries was that of indentured labourer. Following the abolition of slavery in the 1830s, Britain and other colonial powers sought to replace African slaves with indentured labourers from China on European-owned sugar plantations in the Caribbean and South Pacific (UK National Archives 1843; Northrup 1995). In the 1850s, some 227,000 persons migrated from southern China to the Americas and Australia, of whom at least 90,000 were indentured labourers bound for Cuba and Peru (McKeown 2008: 58). A second period of colonial expansion that began in the 1880s and peaked in the 1920s saw global demand for Chinese and Indian labour surge. Here are some examples from the 1920s. A representative from the government of Samoa arrived in Hong Kong ‘with the hope’ of recruiting 500 indentured Chinese to work the island’s sugar plantations (UK National Archives 1920a). The Deli Planters Vereeniging petitioned the Hong Kong government for permission to establish a recruiting agency in the colony to secure Chinese plantation labour for Sumatra (UK National Archives 1920b). In Palestine, a certain ‘Major A. J. Love of Haifa’ wrote the Hong Kong Governor requesting Chinese indentured labour for the newly established League of Nations Mandated territory (UK National Archives 1920c). The British-controlled Phosphate Commission of Nauru requested Hong Kong government permission to recruit indentured labour for the island’s guano plants (UK National Archives 1922). And, in 1928, the Spanish Consul General at Manila granted power of attorney to one Juan Mencarini, Spanish resident of Manila and former employee of the Chinese Maritimes Custom Service, to recruit Chinese indentured labour for cacao and coffee plantations on the island of Fernando Po (present-day Bioko) off the west coast of Africa in Spanish New Guinea (present-day Equatorial Guinea). Mencarini hoped to ship 10,000 Chinese labourers annually from Hong Kong to Fernando Po, whose indigenous population was, according to the island’s British Consul, ‘falling off’ on account of the sleeping sickness that was ravishing the island (UK National Archives 1928e). The shadow of slavery hung heavily over the question of international traffic in Chinese labour. The abomination of the slave trade gave way to a resolute determination, championed first by Abolitionists and later by the League of Nations, that labour and labour migration must be ‘free’ and not coerced. But what exactly did it mean to be a ‘free’ migrant? Proponents of indenture argued that signing a labour contract was ‘an expression of free will and consent’, not an instrument of coercion, and that ‘the ability to commit to a contract was both a measure and consequence of freedom and power over one’s person’ (McKeown 2008: 69). Others argued that the notion of a ‘free’ indentured migrant was a fiction, a contradiction in terms, and that indentured labour migration was akin to slavery. When Britain officially abolished indentured labour in 1917, Hong Kong came under pressure not to allow indentured labour recruitment in the colony or British shipping to be used for the transport of indentured labourers. Hong Kong law was revised to ensure that ‘no emigrant ship shall carry any emigrants but free emigrants’ and the ‘free’ emigrant was defined as one ‘who is not under any contract of service whatsoever’ (UK National Archives 1928d). Even so, the problem and abuses stubbornly remained. Labour recruiters adopted the term ‘assisted’ emigration, under which migrants were required to sign contracts upon arriving at their destinations rather than before departing the colony, but officials concluded that ‘in reality, there is but the thinnest of dividing lines between “assisted” and “indentured” emigration’ (UK National Archives 1928b). Some were even willing to admit that ‘there is no accurate definition’ of the different between ‘indentured’ and ‘free’ labour’; and even the colonial government itself was eager not to take too firm a stand, given the profitability of the international ‘coolie’ trade to the colony (UK National Archives 1927c). The League of Nations, the ILO and the Question of Universality It was into this vortex of swirling debates over labour migration, ‘free’ and ‘unfree’ labour, and a world portrayed by its most powerful as divided into ‘civilized’ and ‘uncivilized’ states and peoples that the League of Nations and its affiliate agency, the ILO, stepped after 1919. As the world’s first international governing body, established under the Versailles Treaty, the league was to have a double-edged effect in both revising and, at the same time, reinforcing the idea of a binary world in which different rights and standards applied. On the one hand, the league’s founding Covenant affirmed the notion of a world divided into ‘civilized’ (notably, the Covenant chose the term ‘advanced’—an early sign that the vocabulary for describing difference was shifting) and ‘backward’ nations and peoples. But, through its pronouncements, its institutions and, especially, in the forms of expertise embodied by its technical personnel, the gulf separating the two was gradually redefined in economic rather than racial and culturalist terms, as a problem of ‘development’ (Cooper 2002; Zanasi 2007). This change did not in itself spell the end of colonialism; on the contrary, at least in the short term, it provided colonialism with the discursive means to defend and redefine itself as a progressive, globally minded enterprise for achieving the economic uplift of the portions of humanity. This was a twentieth-century reincarnation of the civilizing mission, recast in scientific terms as a global challenge of ‘modernization’ and ‘development’ (Cooper 2002: 37). What persisted was the notion of European guardianship. However, the league introduced a key modification of this notion: the principle of international oversight. Thus, under the league’s Mandates System for administering former Ottoman and German territories, the ‘mandatory’ powers (principally Britain and France) were required to submit annual ‘progress’ reports on their efforts to prepare the inhabitants of their territories to ‘stand on their own’ (Pedersen 2015: 4–5, 12–13). The ILO performed a similarly significant role in focusing international light on colonial labour practices and making them subject for the first time to a limited form of regular international scrutiny. The ILO drew its authority from Article 421 of the Treaty of Versailles, which required Member States to extend the application of international labour conventions that they had ratified at home ‘to their colonies, protectorates and possessions’—unless ‘local conditions’ rendered them inapplicable, in which case they could make ‘such modifications as may be necessary’ (Versailles Treaty 1919). It was the tension between these two provisions that formed the basis for the ensuing ILO debate over forced and indentured labour. The ‘native labour’ question had been a focus of ILO concern as early as 1921. In 1926, the league formally instructed the ILO to take up the question of forced labour and ‘conditions analogous to slavery’ in colonial territories (Maul 2007; Zimmerman 2010). A ‘Committee of Experts on Native Labour’ was established, which was made up almost entirely of current and former colonial administrators. The committee’s composition represented the ILO’s attempt to gain legitimacy for its efforts in the eyes of colonial powers by including them in the deliberations, but it also provided them with an important means of shaping the terms of the debate over forced labour. That debate was leavened, however, by the unique tripartite structure of the ILO’s annual International Labour Conference, composed of delegates representing governments, employers and workers. In 1927, the conference adopted the Indian Worker’s Delegate resolution to ‘place the question of forced and indentured labour’ on the conference agenda at the earliest moment (ILO 1927). The reaction of the colonial powers was hostile. The Colonial Office worried that the practice of the British Colonial Governments in … recruiting Chinese labour under the indenture or contract system will come in for the most searching enquiry by the International Labour Conference (UK National Archives 1928a). It even convened a special conference on labour recruitment practices in Hong Kong to prepare for the ILO investigation (UK National Archives 1928a, 1928b). When the issue was formally debated at the 1929 conference, colonial government and employer delegates defended compulsory labour on the grounds that it was economically ‘necessary’; in the public interest of the colonized themselves; and sanctioned by ‘local custom’ (Alcock 1971: 83–84). They also defended indentured labour on the grounds that the contracts were voluntary. The Dutch East Indies employer’s delegate claimed that, since ‘every care [was] taken’ (ILO 1929) to ensure those who signed long-term contracts were aware of the terms, there could be no analogy to ‘forced’ labour. The Netherlands government delegate argued that, while the ‘ruling motive’ of every member was the ‘desire to secure an amelioration in the lot of peoples subject to the burden of forced labour’, progress could never be achieved by extending metropolitan laws to the colonies, where ‘civilization is as yet little advanced’ and the people are ‘not ready for it’ (ILO 1929). In the end, the 1930 Geneva Convention on Forced Labour was something of a mixed achievement. On the one hand, it embodied the league’s ambivalence towards empire, while on the other it clearly reflected the interests of Britain and France, the two major colonial powers who were also the principal architects of the convention. Thus, for example, while the convention pledged to ‘suppress the use of forced labour in all its forms within the shortest possible period’ (Forced Labour Convention 1930), its immediate aim was simply to ‘regulate’ its use in colonial territories. It even lent legitimacy by acknowledging that certain forms of colonial forced labour were acceptable so long as it they were employed ‘in the public interest’ (forced labour). And the convention sidestepped the thorny issue of indentured labour entirely, studiously avoiding any mention of the term in favour of words like ‘forced’ and ‘compulsory’ labour. When it appeared that some colonial governments were moving from administrative coercion to contract-based labour recruitment on the grounds that the latter contracts were voluntary, the International Labour Conference adopted a resolution to place the question of indentured labour on the agenda of the ILO Governing Body. A formal report on the practice was presented to the International Labour Conference in 1935, but the league made no further attempt to secure an international convention against indentured labour (The Report). It is important to recognize that these international debates were not seeking to address waning practices that were in the process of disappearing anyway. On the contrary, the period from 1900 through the early 1930s witnessed rapid development of colonial economic infrastructure not just in Asia, but across the colonial world in the form of railways, roads and bridges, and large-scale cultivation and extraction of raw materials—all of which required an expanding supply of labour. While many of these development schemes were privately run, colonial governments played a critical role in furnishing the labour for such projects, and China and India were major sources of recruitment. In 1935, Ramaswamy Mudaliar, the Indian workers’ delegate to the 19th Session of the International Labour Conference, proposed that migrant indentured labourers be accorded property rights as well as basic civil and political rights in their (often long-term and effectively permanent) countries of residence, including equal status in courts of law. The resolution met with unabashed hostility from government and employer delegates, who dismissed it as a ‘political’ resolution. The Belgium employers’ delegate declared that it ‘would only create disorder in the minds of people unable to assimilate such ideas’ (International Labour Conference 1935: 420–422, 443–444). And so it went. Just a few years earlier in 1929, the Chinese delegate to the League of Nations conference on minority rights called upon the league to extend on a global scale the 24 minority rights treaties that had been drawn up to protect minorities in newly formed countries in central and eastern Europe after World War One. In this way, he said, minority rights would become ‘essentially international and world-wide’ and ‘the laws of each country … [will] provide effective and equal protection for all its citizens without distinction of language, race, or religion’ (Lake and Reynolds 2008: 337). However, it too was roundly defeated. Conclusion Viewed from a European perspective, the history of the international system over the 150 years is a story about the gradual expansion of a Europe-centred ‘international society’ into a truly global society (Gong 1984a). However, the evidence examined in this article suggests that the history of China’s incorporation into the modern world order is also a story about how international law and colonial practice were used to marginalize China and Chinese migrants overseas. The real driving identity ascribed to the migrant Chinese throughout the late nineteenth and first half of the twentieth century was that of economic actor-labourer (hence histories of indentured labour migration) and security threat (hence expulsions, deportations and exclusion). As China disintegrated and political instability mounted after 1911, those fleeing China because they found themselves on opposite sides of whatever party or faction was currently in power were sometimes able to find political refuge—but could only do so by seeking sanctuary within the colonized spaces of Chinese territory, which were themselves violations of Chinese sovereignty and glaring symbols of the very national weakness that many dissidents claimed to be struggling to overcome. The irony of having to flee a weak and disintegrating China for the safety of foreign colonial jurisdictions that were themselves both cause and consequence of that weakness and disintegration was a powerful one for nationalist-minded Chinese everywhere. Nearly all of the themes discussed in this article—the origins of the concept of political asylum and the political refugee, colonial practices of exclusion, banishment and deportation, and indentured labour migrations—continued to shape China’s experience of, and approaches towards, human displacement in subsequent decades (Lam 2000). The international politics of political asylum reached an apogee during the Cold War era, when both sides used the practice to score points against the other. According to a leading historian of the UNHCR, the persecution-centred definition of the refugee enshrined in the 1951 UN Refugee Convention was aimed primarily at ‘escapees’ and ‘defectors’ from communist states (Loescher 2001). Wang Tieya (王铁崖), one of China’s leading scholars of international law, observed that ‘capitalist countries and socialist countries have fundamentally different views of what kind of person can be considered a so-called “political refugee”’ (Deng 1993: 233). Indeed, the first constitution of the People’s Republic of China, promulgated in 1954, included a provision (Article 99) for the right of asylum for ‘any foreign national persecuted for supporting a just cause, for taking part in the peace movement or for engaging in scientific activity’ (Constitution 1961). Today, the giving or withholding of asylum for political dissidents in Asia and elsewhere remains enmeshed in the political calculus of realpolitik. Similarly, many of the discriminatory and exclusionary practices that colonial powers instituted against their ethnic Chinese populations were perpetuated and sometimes enthusiastically expanded by post-colonial states in the name of nation-building (Golay et al. 1969; Hooker 2002; Lu 2005). Questions of citizenship and national belonging that have been at the heart of the politics of some post-colonial multiethnic nations in Southeast Asia had their origins in the colonial constitutional reforms of the 1930s, which opened the political process to limited participation by Asians and in so doing begged the question of who should be allowed to participate. This in turn set the stage for a larger debate about the meaning of nationhood and ‘the status—indeed the very definition—of “indigenous” and “immigrant” groups’ (Amrith 2011: 95). 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Forced Migration, Refugees and China’s Entry into the ‘Family of Nations’, 1861–1949

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Abstract

Abstract This article is concerned with the broad imperial and colonial frameworks that have shaped forced migration and human displacement in Asia. What does it mean, for example, when the international jurisprudence surrounding asylum and refuge was formulated at a time when it was widely assumed—by international lawyers and states alike—that colonial powers could do more or less as they wished with the people under their control? This article argues that such contradictions were not peripheral or incidental, but central to the historical formation of the international regimes governing refugees and forced migrants. My goal is to put the cultural/civilizing discourses of colonialism into the heart of political and economic arguments over how to categorize the movement of people. I focus specifically on China, and the experiences of Chinese migrants overseas, in order to reveal the complex interlocking of European colonialism in Asia around issues of political asylum, labour migration and a complex colonial apparatus of banishment, exile and deportation. Introduction This article is concerned with the broad imperial and colonial frameworks that have shaped approaches to forced migration and human displacement in Asia. What does it mean, for example, when the international jurisprudence surrounding questions such as asylum and refuge was formulated at a time when it was widely assumed—by international lawyers and states alike—that ‘international law has no place for rules protecting the rights of backward peoples’ and that colonial powers could more or less do as they wished with the people under their control (Lindley 1925: 45; Anghie 2004: 32–114)? This article argues that such contradictions were not peripheral or incidental, but central to the historical formation and evolution of the international regimes governing refugees and forced migrants. My goal is to put the cultural/civilizing discourses of colonialism into the heart of political and economic arguments over how to categorize the movement of people. I focus specifically on China, and the experiences of Chinese migrants overseas, in order to reveal the complex interlocking of European colonialism in Asia around issues of political asylum, labour migration and a complex colonial apparatus of banishment, exile and deportation. The article is divided into four parts. The first part examines the introduction of European international law to colonial and semi-colonial Asia in respect to the concept of political asylum and the extradition of political refugees across national and colonial borders. The second section of the article examines the prevalence and significance of colonial practices of banishment, exclusion and deportation as legal instruments for dealing with political dissenters and other undesirables. The third section of the article looks at the significance of indentured labour migrations in relation to emergent international norms with respect to forced migration. Finally, the article considers the role of the International Labour Organization (ILO) in revising international attitudes and practices with respect to forced migration and refugees in the colonial world after 1919. Asylum, Extradition and the Politics of Refuge This section is concerned with what historian Jan Manasek has termed ‘the centrality of asylum to the nineteenth century international system’ (Manasek 2017: 80). Political asylum ‘created an architecture of refugee protection’ that ‘served as a model’ for a set of ‘basic and enduring protocols’ on how states would respond to later refugee movements (70). Manesek was referring to the European state system. However, the nineteenth-century expansion of European colonialism and international law ensured that these questions quickly came to the fore in Asia as well. The concept of the modern political refugee was first introduced in China in the middle of the nineteenth century, as part of a growing international debate over extradition. States increasingly regarded extradition as a necessary response to growing transnational mobility and the need for effective legal mechanisms for repatriating fugitive criminals (Rygiel 2015). At the same time, the French Revolution and the liberal revolutions of the 1830s had ‘forced a reassessment of the nature of criminality—particularly illegal activities against the state carried out in the name of a political ideology’ (Manasek 2017: 70). This resulted in the creation of a new category of ‘political crime’ and gave rise to the principle of the ‘political offence exception’ to extradition (Van den Wijngaert 1980; Manasek 2017: 70). While extradition treaties had become common across Europe by the 1880s, the extradition of persons for political offences was controversial, especially among liberal states that championed the idea of political freedom (Sinha 1971: 171–177; Rygiel 2015; Orchard 2017). Wheaton’s 1866 foundational text on international law—and the first to be translated into Chinese—observed that Britain ‘steadfastly refused to surrender political offenders, or to deny them asylum’ (Wheaton 1866: 182). Indeed, London had become a centre for political exiles from across continental Europe—including, most famously, Karl Marx, who had arrived in the city in 1849 after being expelled from Prussia and France (Carpenter 1999). Crucially, however, the principle of non-extradition for political offences was not an absolute one—especially when it came to anarchists and socialists, whose goal was to overthrow the liberal order. By the late nineteenth century, even champions of political freedom such as Britain and France were increasingly prepared to oblige requests for the extradition of foreign socialists and anarchists on their soil, and to refuse them sanctuary when they sought it (Sinha 1971: 180–181; Caestecker 2003; Burgess 2008; Rygiel 2015: 12–14). What did these international developments mean for China and the non-Western world more generally? The European international lawyers who upheld the principles of personal and political freedom were firmly of the view that such principles were applicable only to the ‘civilized world’ of European states, and saw no contradiction between defending these principles at home while simultaneously denying them to the ‘uncivilized’ peoples of Asia and Africa (Rygiel 2015: 4–5). Nineteenth-century political liberalism and racial particularism often went hand in hand, and were mutually constitutive. At the same time, however, colonial projects also rested upon a set of legal norms and infrastructure. This was true not only at the level of governance and the colonial state’s relationship with ‘native’ populations and institutions (Benton 2002). It was also true with respect to the cross-border movement of colonial and non-colonial subjects. Managing the latter required the establishment of a set of legal procedures and understandings reached with other colonial powers, as well as with sovereign states like China, Japan, Korea, Siam and Turkey. ‘Semi-colonial’ China presents a particularly interesting case. For, although it remained nominally sovereign, by the late nineteenth century, the ailing Qing dynasty had succumbed to the establishment of a patchwork of dozens of foreign-controlled ‘treaty ports’, concessions, leased territories and formal colonies spread across its territorial space. This complex web of colonial and semi-colonial arrangements, enshrined in a series of international treaties and agreements entered into since 1842, meant that questions of sovereignty, residence status and nationality rapidly became a permanent preoccupation of Chinese and foreign officials alike who grappled with the international legal and jurisdictional issues arising from the movement of people across these newly formed internal borders. It was the existence of such legally protected foreign enclaves within China itself that produced China’s first encounter with European international law over questions of political asylum and the definition of a political refugee. Principles and procedures of extradition varied across different European empires (Clarke 1903). Here we are concerned primarily with Sino-British examples and the actions of Britain and the Hong Kong authorities. Extradition clauses were inserted into the very first international treaties that Britain and other European powers imposed upon China following China’s defeat by Britain in the Opium War of 1839–42. The Sino-British Supplementary Treaty of 1843 included an extradition clause designed to secure the mutual rendition of British military deserters in China and fugitive Chinese who fled to Hong Kong and Britain’s other foreign territorial concessions in China (Supplementary Treaty, 1843). Although this treaty made no mention of political crime, the extradition of political offenders quickly became a subject of debate in China and in British colonial spaces within China, as it was in Europe around this time. In 1864, Wheaton’s Elements of International Law was translated into Chinese by the American missionary W. A. P. Martin under the title Wangguo gongfa (万国公法)—The Public Law of a Myriad of Countries. The text quickly became required reading for officials in the Zongli Yamen (总理衙门)—the modern-style Foreign Office that was established by the Qing government in 1861 to negotiate China’s entry and position in the international ‘family of nations’ (Banno 1964). China’s first generation of international lawyers and diplomats scoured Wheaton’s book and other translated treatises on international law for knowledge that could be mobilized to strengthen China’s position in dealing with European powers (Liu 1999). Moreover, the discussion of such issues was not confined to diplomatic corridors; the question of political asylum and states’ refusal to extradite political offenders was also raised in China’s nascent commercial press (Svarverud 2007: 48). Perhaps most importantly, a series of high-profile test cases soon arose, which involved the question of political asylum and extradition of political offenders to and from China and British territories in China. Here we consider three such cases, in order to illustrate how the international politics of asylum were imprinted on China’s early encounter with European-derived international law. The first example is from 1896 and involves perhaps the single most well-known political figure in modern China: Sun Yat-sen (孙逸仙). Widely recognized as the ‘Father of Modern China’ for leading the movement to overthrow the imperial political system and replace it with a modern republic, Sun’s first attempt to oust the Qing dynasty took place in 1895. When the uprising failed, Sun fled China with a price on his head. The following October, he was in London raising support and funds for the republican cause when Qing agents kidnapped Sun and whisked him off to the Qing legation, where Qing diplomats prepared to extradite him to China to face charges of treason and certain execution. Alerted to his capture and impending fate, the British refused to extradite Sun for a political offence. The Qing government accused Britain violating China’s sovereignty by refusing Sun’s extradition as the latter was being held within the extra-territorial sovereign space of the Chinese legation. After several weeks, however, the Qing relented. Recognizing there was no way they could get Sun from the legation to the ship that would return him to China without passing through British territory, they let him go (The China Mail 1896; Sun 1897). A little more than a decade later, Sun would succeed in toppling the Qing monarchy to become president of the new Republic of China on 1 January 1912. The first president of the Chinese Republic was also China’s first high-profile political refugee. The issue of political asylum, and whether foreign colonial possessions in China should offer sanctuary to persons fleeing political charges in China, grew increasingly acute in the 1920s and 30s, as China’s central government lost authority and the republic disintegrated into warlordism, while at the same time facing a growing insurgency led by the Chinese Communist Party (CCP). Our second example involves Chinese communists who sought refuge in British-ruled Hong Kong following a massacre in which more than 5,700 suspected communists were brutally slain by government forces in the adjacent southern city of Guangzhou (Canton) in December 1927, many of them executed with their hands tied or bound and thrown overboard from boats into the Pearl River (UK National Archives 1927a; Rea 1977: 96–98; Zhonggong Guangdong shengwei 1993: 12; Zhonggong Guangzhou shiwei 1995: 161–165). In the days following the massacre, around 300 Chinese communists sought sanctuary in British Hong Kong, but nearly all of them were turned back at the border. When news of their denied entry broke in Britain, accusations soon appeared in the British press that the ‘Red refugees’ had been ‘sent back to Canton to be slaughtered’ (UK National Archives 1927a). The colony’s Chinese Extradition Ordinances of 1889 and 1927 had explicitly ruled out extradition for political offences (UK National Archives 1928c) and, in considering the case, the Secretary of State for the Colonies affirmed that ‘it would be contrary to British traditions to deny the hospitality of the Colony to political refugees’ (UK National Archives 1928c). But then came the crucial qualifying statement. The secretary was also aware that the actual ‘interpretation’ of this policy ‘must to some extent depend on the degree of good relations existing between Hong Kong and Canton’ (UK National Archives 1928c, emphasis added). In 1927, Britain was eager to establish good relations with the newly established—and staunchly anti-communist—Nationalist government in China and its local authorities in Guangzhou. According to another British official, the fact it was communists who were seeking political sanctuary in a British colony had ‘rendered impossible the strict interpretation of the sanctuary principle’ (UK National Archives 1927b). For its part, Hong Kong’s colonial government resorted to a legal argument that the suspected communists ‘were likely to be a danger to the peace and good order of the colony’ as specified under a 1922 Emergency Ordinance (UK National Archives 1927d). Moreover, since the asylum seekers had not been allowed to enter the colony in the first place, there could therefore be no question of having violated any existing laws and traditions by ‘extraditing’ them back to China (UK National Archives 1927d). Thus, in Hong Kong, as in Britain and other states, the principle of political asylum was applied on a selective basis, with the intent of keeping out communists. In the world of realpolitik, political calculations trumped legal principles. Our third example of the politics of asylum involves the question of extradition and political refuge in an inter-colonial context. In this case, the individual seeking refuge was not a Chinese national, but a Vietnamese colonial subject of France. He had been arrested and detained by the British authorities in Hong Kong in June 1931 at the request of the French government, which described him to the Colonial Office as ‘a threat to all European possessions in the Far East’ (UK National Archives 1931d). The wanted man was a Comintern Agent sentenced to death in absentia by a French colonial court for plotting to overthrow French rule in Indochina. The French had hoped to deal with the matter expeditiously. Rather than lodging a formal extradition request, which would test the British principle of refusing extradition of political offenders, they quietly requested that the man simply be put on board a French ship to face colonial justice in Saigon. The request put Hong Kong’s colonial government in an awkward position, however, because the wanted man had not committed any offences punishable under local laws to justify his deportation. The colony’s attorney general opposed the deportation order ‘on the grounds that it was for all intents and purposes extradition in a case where no extradition proceedings lay’ (UK National Archives 1931a). The Foreign Office, however, took a different view. Officials expressed concerned over the effect on Anglo-French relations of a decision not to hand over the fugitive, it supported the French request. There was also the question of whether Britain’s own colonial interests might also be better served by handing the man over. ‘The decision to be taken regarding this man’s fate depends largely on political considerations and upon our general attitude as regards communist agitators in the Far East,’ wrote one Foreign Office official, ‘in other words, whether we regard such persons as a danger to European powers with possessions in that part of the world, so that the powers in question ought to help each other in dealing with them’ (UK National Archives 1931e). Citing the inherent ‘danger of allowing such a dangerous person to be at large’, Hong Kong’s colonial governor issued the deportation order (UK National Archives 1931c). The accused, however, was not about to go lightly. Within days of his arrest, he had engaged the services of two resident British lawyers in the colony with expert knowledge of British constitutional affairs. During the ensuing Supreme Court proceedings, F. Losely and F. Jenkin accused the Hong Kong and British governments of hypocrisy and willing the wanted man’s execution at the hands of the French. The deportation order, one of them argued, was ‘a sham in that under the cloak of deportation the Executive is in truth attempting to surrender the applicant to the French authorities for an offence of a political character’ (UK National Archives 1931b). There was ‘no power vested in the Hong Kong legislature, or that of any colony, to order the deportation of political offenders’ (UK National Archives 1931b). The court found the deportation order ‘valid’ but granted the accused leave to appeal the decision to the Privy Council. The Hong Kong government's London lawyers asked Sir Stafford Cripps to take on the case, but Cripps declined after deciding that Hong Kong was sure to lose the case (The Legal Case 2006: 285–86; Duncanson 1974: 97–98). In the end, the deportation order was never executed. Instead, the wanted man was quietly allowed to leave the colony on his own accord, to a destination of his own choosing. He departed from Hong Kong’s harbour on 22 January 1933 in the governor’s private launch, which delivered him to the steamship S.S. Anhui, bound for Xiamen on China’s south coast. Nearly two years had passed since his arrest. Throughout this time, he had insisted that he was Sun Man Cho, a Chinese national and native of Guangdong province. But the man was reputed to have more than 200 aliases, and the British referred to him throughout the proceedings by the one for which he would later become most well known: Nguyen Ai-Quoc (‘Nguyen the Patriot’). Apparently unaware that ‘Nguyen’ was the accused’s surname, the British referred to him erroneously throughout by his first name, ‘Quoc’. He is better known to us today as Ho Chi Minh, the Vietnamese nationalist and communist leader who led Vietnam’s struggle for independence against the French. It is worth pondering just how different the history of Asia might have been if Sun Yat-sen had been extradited to China and executed by the Qing government in 1896; had refugees from the CCP won asylum in colonial Hong Kong in 1927; or if Ho Chi Minh had been deported to Vietnam and guillotined by the French in 1931. It is unlikely that the lessons of the politics of asylum were lost on those whose personal and national histories were so dramatically shaped by it. Banishment, Deportation and Exclusion The politics of asylum and the unstable role of colonized spaces as sites of refuge for political dissidents was a key feature of China’s early engagement with the modern international system. However, there was also another, equally significant sense in which China was accorded a place and a position in what international lawyers increasingly referred to as the ‘family of nations’. By the late 1800s, Euro-American juridical discussions had coalesced around the notion of a ‘standard of civilization’ as the basis for claiming membership in the international ‘family of nations’ (Gong 1984b). As Antony Anghie has pointed out, by adopting the notion of an international ‘family’ or ‘society’, jurists effectively linked legal status with cultural distinctions, with the result that ‘completely different standards could be applied to the two categories of people’ (Anghie 2004: 30, 37). An international system constructed around the notion of a binary distinction between civilized and uncivilized states and peoples had profound consequences for how international law regarded issues of forced migration. Some international jurists asserted that ‘international law has no place for rules protecting the rights of backward peoples’ (Lindley 1925: 45). Britain and other colonial powers relied heavily on draconian powers of forced exile, banishment and deportation to rid themselves of anti-colonial agitators and other undesirables from their colonies—even as they granted refuge to China’s political dissidents in the name of defending liberty and humanitarian resolve (Simpson 2001: 75–77). Banishment and exile were not unknown in China. For centuries, Chinese imperial states had used banishment and internal exile (liu 流) to frontier regions as a form of punishment for criminals and disgraced officials (Waley-Cohen 1991). With the advent of European colonialism, the banishment and deportation of unwanted Chinese from colonized spaces ‘back’ to China (including those with little or no connection to the country apart from the fact of having been born there) became a prerogative of colonial sovereignty—a practice made easier by the blood-based citizenship policies of successive Chinese governments (enshrined in the Qing dynasty’s 1909 Nationality Law), which claimed the citizenship of all persons born to a Chinese father, regardless of place of birth (Shao 2009). In Hong Kong, for example, the first laws for deporting undesirable Chinese were enacted in 1849, just seven years after the colony’s establishment (Hong Kong Public Record Office 1849). In the ensuing decades, the punishment of deportation was frequently applied to criminal offenders and as a means of ridding the colony of unemployed and down-and-out itinerants. By the end of the century—and not withstanding the growing international concern for the protection of political offenders—it was also being used to rid Hong Kong of political troublemakers. In 1895, for example, Hong Kong’s governor banished Sun Yat-sen—whom we met earlier in this article, when he was kidnapped the following year by Qing agents in London—for five years after Sun’s failed uprising against the Qing dynasty, on the grounds that his continued presence would be ‘dangerous to the peace and good order of the colony’ (Tsang 2007: 81). In 1917, a revised Deportation Ordinance empowered the colony’s governor to deport ‘any person who in his opinion is an Alien, if he deems it to be conducive to the public good’ (UK National Archives 1917). In British Malaya, where a great many Chinese had migrated, the first Banishment Act was introduced in 1864. The stated target of the act was a convicted criminal, but criminality was ‘increasingly and often inaccurately defined in political terms’ (Yong and McKenna 1990: 56–58). In this way, banishment increasingly functioned as a ‘makeshift immigration control’ for deporting Chinese and other troublemakers (Yong and McKenna 1990: 56–58). The practice of banishing Chinese political ‘subversives’ to China increased sharply in the 1920s with the rise of Chinese Nationalist and Communist Party activities in Malaya. It reached a peak in the 1950s, when more than 10,000 ethnic Chinese were deported to the People’s Republic of China in one year alone as part of the colonial government’s ‘Emergency’ response to an uprising led by the Chinese-dominated Malayan Communist Party (Nanfang ribao 18, 26 June 1952; Simpson 2001: 74, 833). Chinese migrants faced restrictive laws and official discrimination in many of the countries where they worked and settled. This was true in the former ‘white settler colonies’ of Australia, New Zealand, Canada and the United States, as well as in many colonies throughout Asia, Africa and the Caribbean, where Chinese migrant labour was recruited for mines, plantations and other forms of colonial extraction (see below). By the early twentieth century, Chinese migrants had become deeply familiar with the various legalized forms of race-based discrimination that prevailed in most migrant destinations, including restrictions on language, education, property ownership and occupation, even organized pogroms and mass expulsion from their countries of residence (McNair 1933; Huang 1936). The term paihua (排华) referred to border exclusions as well as forced expulsions, both of which were recurring features of Chinese migrant life from the Dutch East Indies to the Philippines, South Africa, Cuba, Mexico, Australia, New Zealand, Canada and the United States (‘Moxige paichi huaqiao’ 1933; Qiu 1934; Shen 1970; Pan 1998: 152, 188, 236–239, 258, 262–266, 275, 287–289, 362). Virtually all of these instances of racial and politically motivated discrimination including expulsion, deportation and mass flight took place beyond the purview of international refugee law. The legal status of Chinese migrants abroad was also made complicated by the 1909 Nationality Law enacted by the Qing dynasty and renewed by the Nationalist government in 1929, which defined Chinese nationality according to the principle of jus sanguinus (‘right of blood’). The ensuing problems associated with the dual nationality of Chinese overseas, evident by the 1930s, continued to affect China’s relations with other states—and the treatment of Chinese minorities within those states, well into the 1950s (Qiu 1937; Cheng 2005; Shao 2009). Indentured Labour Migrations Among the most powerful legal identities ascribed to migrant Chinese in the nineteenth and first half of the twentieth centuries was that of indentured labourer. Following the abolition of slavery in the 1830s, Britain and other colonial powers sought to replace African slaves with indentured labourers from China on European-owned sugar plantations in the Caribbean and South Pacific (UK National Archives 1843; Northrup 1995). In the 1850s, some 227,000 persons migrated from southern China to the Americas and Australia, of whom at least 90,000 were indentured labourers bound for Cuba and Peru (McKeown 2008: 58). A second period of colonial expansion that began in the 1880s and peaked in the 1920s saw global demand for Chinese and Indian labour surge. Here are some examples from the 1920s. A representative from the government of Samoa arrived in Hong Kong ‘with the hope’ of recruiting 500 indentured Chinese to work the island’s sugar plantations (UK National Archives 1920a). The Deli Planters Vereeniging petitioned the Hong Kong government for permission to establish a recruiting agency in the colony to secure Chinese plantation labour for Sumatra (UK National Archives 1920b). In Palestine, a certain ‘Major A. J. Love of Haifa’ wrote the Hong Kong Governor requesting Chinese indentured labour for the newly established League of Nations Mandated territory (UK National Archives 1920c). The British-controlled Phosphate Commission of Nauru requested Hong Kong government permission to recruit indentured labour for the island’s guano plants (UK National Archives 1922). And, in 1928, the Spanish Consul General at Manila granted power of attorney to one Juan Mencarini, Spanish resident of Manila and former employee of the Chinese Maritimes Custom Service, to recruit Chinese indentured labour for cacao and coffee plantations on the island of Fernando Po (present-day Bioko) off the west coast of Africa in Spanish New Guinea (present-day Equatorial Guinea). Mencarini hoped to ship 10,000 Chinese labourers annually from Hong Kong to Fernando Po, whose indigenous population was, according to the island’s British Consul, ‘falling off’ on account of the sleeping sickness that was ravishing the island (UK National Archives 1928e). The shadow of slavery hung heavily over the question of international traffic in Chinese labour. The abomination of the slave trade gave way to a resolute determination, championed first by Abolitionists and later by the League of Nations, that labour and labour migration must be ‘free’ and not coerced. But what exactly did it mean to be a ‘free’ migrant? Proponents of indenture argued that signing a labour contract was ‘an expression of free will and consent’, not an instrument of coercion, and that ‘the ability to commit to a contract was both a measure and consequence of freedom and power over one’s person’ (McKeown 2008: 69). Others argued that the notion of a ‘free’ indentured migrant was a fiction, a contradiction in terms, and that indentured labour migration was akin to slavery. When Britain officially abolished indentured labour in 1917, Hong Kong came under pressure not to allow indentured labour recruitment in the colony or British shipping to be used for the transport of indentured labourers. Hong Kong law was revised to ensure that ‘no emigrant ship shall carry any emigrants but free emigrants’ and the ‘free’ emigrant was defined as one ‘who is not under any contract of service whatsoever’ (UK National Archives 1928d). Even so, the problem and abuses stubbornly remained. Labour recruiters adopted the term ‘assisted’ emigration, under which migrants were required to sign contracts upon arriving at their destinations rather than before departing the colony, but officials concluded that ‘in reality, there is but the thinnest of dividing lines between “assisted” and “indentured” emigration’ (UK National Archives 1928b). Some were even willing to admit that ‘there is no accurate definition’ of the different between ‘indentured’ and ‘free’ labour’; and even the colonial government itself was eager not to take too firm a stand, given the profitability of the international ‘coolie’ trade to the colony (UK National Archives 1927c). The League of Nations, the ILO and the Question of Universality It was into this vortex of swirling debates over labour migration, ‘free’ and ‘unfree’ labour, and a world portrayed by its most powerful as divided into ‘civilized’ and ‘uncivilized’ states and peoples that the League of Nations and its affiliate agency, the ILO, stepped after 1919. As the world’s first international governing body, established under the Versailles Treaty, the league was to have a double-edged effect in both revising and, at the same time, reinforcing the idea of a binary world in which different rights and standards applied. On the one hand, the league’s founding Covenant affirmed the notion of a world divided into ‘civilized’ (notably, the Covenant chose the term ‘advanced’—an early sign that the vocabulary for describing difference was shifting) and ‘backward’ nations and peoples. But, through its pronouncements, its institutions and, especially, in the forms of expertise embodied by its technical personnel, the gulf separating the two was gradually redefined in economic rather than racial and culturalist terms, as a problem of ‘development’ (Cooper 2002; Zanasi 2007). This change did not in itself spell the end of colonialism; on the contrary, at least in the short term, it provided colonialism with the discursive means to defend and redefine itself as a progressive, globally minded enterprise for achieving the economic uplift of the portions of humanity. This was a twentieth-century reincarnation of the civilizing mission, recast in scientific terms as a global challenge of ‘modernization’ and ‘development’ (Cooper 2002: 37). What persisted was the notion of European guardianship. However, the league introduced a key modification of this notion: the principle of international oversight. Thus, under the league’s Mandates System for administering former Ottoman and German territories, the ‘mandatory’ powers (principally Britain and France) were required to submit annual ‘progress’ reports on their efforts to prepare the inhabitants of their territories to ‘stand on their own’ (Pedersen 2015: 4–5, 12–13). The ILO performed a similarly significant role in focusing international light on colonial labour practices and making them subject for the first time to a limited form of regular international scrutiny. The ILO drew its authority from Article 421 of the Treaty of Versailles, which required Member States to extend the application of international labour conventions that they had ratified at home ‘to their colonies, protectorates and possessions’—unless ‘local conditions’ rendered them inapplicable, in which case they could make ‘such modifications as may be necessary’ (Versailles Treaty 1919). It was the tension between these two provisions that formed the basis for the ensuing ILO debate over forced and indentured labour. The ‘native labour’ question had been a focus of ILO concern as early as 1921. In 1926, the league formally instructed the ILO to take up the question of forced labour and ‘conditions analogous to slavery’ in colonial territories (Maul 2007; Zimmerman 2010). A ‘Committee of Experts on Native Labour’ was established, which was made up almost entirely of current and former colonial administrators. The committee’s composition represented the ILO’s attempt to gain legitimacy for its efforts in the eyes of colonial powers by including them in the deliberations, but it also provided them with an important means of shaping the terms of the debate over forced labour. That debate was leavened, however, by the unique tripartite structure of the ILO’s annual International Labour Conference, composed of delegates representing governments, employers and workers. In 1927, the conference adopted the Indian Worker’s Delegate resolution to ‘place the question of forced and indentured labour’ on the conference agenda at the earliest moment (ILO 1927). The reaction of the colonial powers was hostile. The Colonial Office worried that the practice of the British Colonial Governments in … recruiting Chinese labour under the indenture or contract system will come in for the most searching enquiry by the International Labour Conference (UK National Archives 1928a). It even convened a special conference on labour recruitment practices in Hong Kong to prepare for the ILO investigation (UK National Archives 1928a, 1928b). When the issue was formally debated at the 1929 conference, colonial government and employer delegates defended compulsory labour on the grounds that it was economically ‘necessary’; in the public interest of the colonized themselves; and sanctioned by ‘local custom’ (Alcock 1971: 83–84). They also defended indentured labour on the grounds that the contracts were voluntary. The Dutch East Indies employer’s delegate claimed that, since ‘every care [was] taken’ (ILO 1929) to ensure those who signed long-term contracts were aware of the terms, there could be no analogy to ‘forced’ labour. The Netherlands government delegate argued that, while the ‘ruling motive’ of every member was the ‘desire to secure an amelioration in the lot of peoples subject to the burden of forced labour’, progress could never be achieved by extending metropolitan laws to the colonies, where ‘civilization is as yet little advanced’ and the people are ‘not ready for it’ (ILO 1929). In the end, the 1930 Geneva Convention on Forced Labour was something of a mixed achievement. On the one hand, it embodied the league’s ambivalence towards empire, while on the other it clearly reflected the interests of Britain and France, the two major colonial powers who were also the principal architects of the convention. Thus, for example, while the convention pledged to ‘suppress the use of forced labour in all its forms within the shortest possible period’ (Forced Labour Convention 1930), its immediate aim was simply to ‘regulate’ its use in colonial territories. It even lent legitimacy by acknowledging that certain forms of colonial forced labour were acceptable so long as it they were employed ‘in the public interest’ (forced labour). And the convention sidestepped the thorny issue of indentured labour entirely, studiously avoiding any mention of the term in favour of words like ‘forced’ and ‘compulsory’ labour. When it appeared that some colonial governments were moving from administrative coercion to contract-based labour recruitment on the grounds that the latter contracts were voluntary, the International Labour Conference adopted a resolution to place the question of indentured labour on the agenda of the ILO Governing Body. A formal report on the practice was presented to the International Labour Conference in 1935, but the league made no further attempt to secure an international convention against indentured labour (The Report). It is important to recognize that these international debates were not seeking to address waning practices that were in the process of disappearing anyway. On the contrary, the period from 1900 through the early 1930s witnessed rapid development of colonial economic infrastructure not just in Asia, but across the colonial world in the form of railways, roads and bridges, and large-scale cultivation and extraction of raw materials—all of which required an expanding supply of labour. While many of these development schemes were privately run, colonial governments played a critical role in furnishing the labour for such projects, and China and India were major sources of recruitment. In 1935, Ramaswamy Mudaliar, the Indian workers’ delegate to the 19th Session of the International Labour Conference, proposed that migrant indentured labourers be accorded property rights as well as basic civil and political rights in their (often long-term and effectively permanent) countries of residence, including equal status in courts of law. The resolution met with unabashed hostility from government and employer delegates, who dismissed it as a ‘political’ resolution. The Belgium employers’ delegate declared that it ‘would only create disorder in the minds of people unable to assimilate such ideas’ (International Labour Conference 1935: 420–422, 443–444). And so it went. Just a few years earlier in 1929, the Chinese delegate to the League of Nations conference on minority rights called upon the league to extend on a global scale the 24 minority rights treaties that had been drawn up to protect minorities in newly formed countries in central and eastern Europe after World War One. In this way, he said, minority rights would become ‘essentially international and world-wide’ and ‘the laws of each country … [will] provide effective and equal protection for all its citizens without distinction of language, race, or religion’ (Lake and Reynolds 2008: 337). However, it too was roundly defeated. Conclusion Viewed from a European perspective, the history of the international system over the 150 years is a story about the gradual expansion of a Europe-centred ‘international society’ into a truly global society (Gong 1984a). However, the evidence examined in this article suggests that the history of China’s incorporation into the modern world order is also a story about how international law and colonial practice were used to marginalize China and Chinese migrants overseas. The real driving identity ascribed to the migrant Chinese throughout the late nineteenth and first half of the twentieth century was that of economic actor-labourer (hence histories of indentured labour migration) and security threat (hence expulsions, deportations and exclusion). As China disintegrated and political instability mounted after 1911, those fleeing China because they found themselves on opposite sides of whatever party or faction was currently in power were sometimes able to find political refuge—but could only do so by seeking sanctuary within the colonized spaces of Chinese territory, which were themselves violations of Chinese sovereignty and glaring symbols of the very national weakness that many dissidents claimed to be struggling to overcome. The irony of having to flee a weak and disintegrating China for the safety of foreign colonial jurisdictions that were themselves both cause and consequence of that weakness and disintegration was a powerful one for nationalist-minded Chinese everywhere. Nearly all of the themes discussed in this article—the origins of the concept of political asylum and the political refugee, colonial practices of exclusion, banishment and deportation, and indentured labour migrations—continued to shape China’s experience of, and approaches towards, human displacement in subsequent decades (Lam 2000). The international politics of political asylum reached an apogee during the Cold War era, when both sides used the practice to score points against the other. According to a leading historian of the UNHCR, the persecution-centred definition of the refugee enshrined in the 1951 UN Refugee Convention was aimed primarily at ‘escapees’ and ‘defectors’ from communist states (Loescher 2001). Wang Tieya (王铁崖), one of China’s leading scholars of international law, observed that ‘capitalist countries and socialist countries have fundamentally different views of what kind of person can be considered a so-called “political refugee”’ (Deng 1993: 233). Indeed, the first constitution of the People’s Republic of China, promulgated in 1954, included a provision (Article 99) for the right of asylum for ‘any foreign national persecuted for supporting a just cause, for taking part in the peace movement or for engaging in scientific activity’ (Constitution 1961). Today, the giving or withholding of asylum for political dissidents in Asia and elsewhere remains enmeshed in the political calculus of realpolitik. Similarly, many of the discriminatory and exclusionary practices that colonial powers instituted against their ethnic Chinese populations were perpetuated and sometimes enthusiastically expanded by post-colonial states in the name of nation-building (Golay et al. 1969; Hooker 2002; Lu 2005). Questions of citizenship and national belonging that have been at the heart of the politics of some post-colonial multiethnic nations in Southeast Asia had their origins in the colonial constitutional reforms of the 1930s, which opened the political process to limited participation by Asians and in so doing begged the question of who should be allowed to participate. This in turn set the stage for a larger debate about the meaning of nationhood and ‘the status—indeed the very definition—of “indigenous” and “immigrant” groups’ (Amrith 2011: 95). 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