The Entry of European Refugees Regulation 1939: Its Relationship With International Law and Chinese Sovereignty in the Context of International Settlement of Shanghai

Abstract

The purpose of this paper is to analyse the Entry of European Refugees Regulation (EERR) introduced in 1939 in order to stem the uncontrolled influx of Jewish refugees entering the International Settlement of Shanghai (in existence from 1863-1941). The Settlement’s executive organ-the Shanghai Municipal Council- could exercise border controls on the Settlement’s territory through this regulation. Since controlling borders is part of the territorial rights reserved to a sovereign state, the question this paper addresses is whether the EERR had a legal basis flowing from the treaties formed between western powers and China that lead to the creation of the International Settlement, the so-called Unequal Treaties and the Land Regulations being focused on in particular.

First of all, an introduction and explanation of the International Settlement’s relation with the aforementioned treaties is. Next, a legal basis for the EERR is searched for in the Land Regulations, because it was the basis for most of the Municipal Council’s competences, including limited adjudicative powers. The conclusion made is that the Regulation did not provide the Council competence to introduce or enforce the EERR. After this, whether the EERR was in conflict with Chinese national law is determined. Due to China being in the midst of multiple chaotic power struggles at the time, the author concludes that determining what constituted a valid legal source goes beyond the scope of the paper. Therefore, this issue remains not entirely conclusive.

Finally, the essay goes beyond the lex specialis of the Settlement to the lex generalis found in the case law of the Permanent Court of International Justice. Two aspects are considered. Firstly, whether the International Settlement was a sovereign entity independent from China. The essay argues that the Settlement was not independent, because Chinese sovereign rights permeated the constitutional documents of the Settlement. Secondly, if the high level of independence the Chinese informally allowed the Settlement to enjoy constituted rights the Settlement could claim under customary international law. The conclusion reached is that no such rights could be claimed, because the situation did not satisfy the requirements required by the Court.