The Minister in China ( MacMurray ) to the Secretary of State
[Received 6:15 p.m.]
536. My 535, November 9, noon. Following are, first, Belgian Minister’s aide-mémoire of November 5th to Chinese Foreign Office in regard to revision of the Sino-Belgian treaty of 1865:
“Belgian Legation has not failed to bring to the knowledge of its Government the tenor of the Chinese Government’s aide-mémoire of the 20th [28th] October. Acting on the instructions of the Belgian Government, the Legation has the honor to bring to the notice of the Chinese Government that the Belgian Government does not find the Chinese proposition acceptable.
The last suggestion for a modus vivendi offered by the Belgian Government envisaged the fundamental concession to China of the abrogation, by mutual agreement, of the treaty of 2d November, 1865, but correlatively with this concession which divests it (Belgium) of all its rights, Belgium asked that a modus vivendi should be concluded which would recognize most-favored-nation treatment and concede to Belgium this treatment until a new treaty has been concluded.
The Chinese Government has not agreed to these proposals which constituted a whole and has presumed to reduce the duration of the modus vivendi to a period of a few months, to which an end may be put at the sole initiative of China, if at this moment the Government[s] had not reached an agreement as to the basis of a new [Page 993] treaty, thus placing Belgium in the position of having neither treaty nor modus vivendi.
In any case, Government of the Republic cannot fail to notice that this position at which negotiations have arrived demonstrates clearly that the Belgian Government do not make a question of principle or of doctrine out of the fact of their maintaining the clauses of the former treaty.
The negotiations in question have been carried on by Belgium in a spirit of great good feeling towards China. Far from insisting on the rights which belong to them, under article XLVI of the treaty of November 2d, 1865, the Belgian Government has gone as [so] far as to take under consideration the abrogation, by mutual agreement, of the treaty and only asked in exchange the establishment, by mutual agreement of a transitional regime whereby Belgian undertakings and interests would not be placed on different footing from those of other countries. It is for this reason that, in the course of one of their latest conversations, the Belgian Minister had the honor to bring to the notice of His Excellency the Minister of Foreign Affairs that he was ready to recommend to his Government that there should be no renewal of the modus vivendi after one of the powers equally interested economically in China, such as the United States of America, Great Britain, France and Japan had included [concluded] new treaties with China, Belgium agreeing that from this time on it would accept in the matter of jurisdiction that [sic] the same arrangements as those which exist between China and any one of these powers.
His Majesty’s Government is therefore obliged to discontinue the negotiations which have been carried on and to take the question of law which is raised by the interpretation of article XLVI of the treaty of November 2d, 1865, before the Permanent Court of International Justice at The Hague instituted by the Assembly of the League of Nations on December 13, 1920—in accordance with article XIV of the Covenant of the League of Nations—and which was the subject of the protocol signed at Geneva by the Chinese and Belgian Governments whereby they agreed to recognize the competence of the Court in all questions which the signatories might submit to it.
Consequently His Majesty’s Government has the honor to make the offer to the Government of the Republic to establish by common consent—in accordance with one of the methods provided for [in] article XL84 of the said protocol—the terms of a compromis placing this matter before this International Court.
The recourse to the Permanent Court of International Justice implies, on the part of His Majesty’s Government, no unfriendly feeling for China, His Majesty’s Legation has therefore been instructed to declare to the Government of the Republic that, in the event of a decision of the Court favorable to the Belgian view, the Royal Government will be ready to continue seeking for a conciliatory solution, inspired by the same spirit which has animated it from the beginning of the negotiations, which is only a desire to satisfy Chinese aspirations while safeguarding Belgian interests. Peking, November 5, 1926.”
Second. Foreign Office’s reply of November 6th:
“Monsieur le Ministre: In replying to the aide-mémoire which Your Excellency handed to me yesterday, I [have] the honor to state that the Chinese Government profoundly regret that, in spite of the repeated concessions they have made during the course of the negotiations for a modus vivendi to take the place of the Sino-Belgian treaty of 1865, the Belgian Government did not see its way to accept their proposition which I communicated to you on the 28th of October last embodying an important concession; but, instead, reverting to its original position before the commencement of the present negotiations, it proposed to raise the question of interpretation before the Permanent Court of International Justice. While adhering to their view as regards the terminability of the treaty of 1865 by notice, the Chinese Government cannot but express their keen disappointment that their untiring efforts for an amicable settlement of the question should have failed to bring about the desired result.
This is all the more regrettable as the progress of negotiations had already reached a stage when the point at issue only involved the question [of] whether a definite period should not be set for the conclusion of a new treaty. The setting of a definite period within which a new treaty is to be concluded is not an unusual practice in international negotiations. The Chinese Government deem this to be the more necessary, not only because of the existence of a nation-wide sentiment in China against the indefinite continuance of unilateral treaties and unequal treatment, but also as a proof of the earnestness of both Governments of [in] their undertaking to conclude the new treaty within a reasonable period.
While taking note of the declaration of the Belgian Government that as soon as the United States of America, Great Britain, France and Japan shall have concluded a new treaty with China, the Belgian Government engages itself to accept in the matter of jurisdiction, the same dispositions as may be agreed upon between China and any of these powers, the Chinese Government cannot accept it in lieu of a definite period for the conclusion of the proposed new treaty because it is obvious that if every country whose treaty comes up for revision were to take the same position, a vicious circle would be completed and there would be little hope of bringing into existence new treaties so essential to the common interest[s] of China and the foreign powers.
In the face of the position now taken by the Belgian Government, the Chinese Government felt that there was no other course open to them but to declare that the Sino-Belgian treaty of 1865 was terminated. Accordingly, a Presidential mandate, an English translation of which is herewith enclosed, has been issued today [sic] to that effect with the instruction that negotiations for the conclusion of a new treaty with Belgium be started as soon as possible on the basis of equality and mutual respect for territorial sovereignty. It will be noted, however, that in the meantime the local authorities are ordered to extend full and due protection to the Belgian Legation, consulates, nationals, products and ships in China in accordance with the rules of international law and usage, and the Ministries concerned are ordered to propose, in conformity with international practice, [Page 995] arrangements for their favorable treatment and submit these for consideration, approval and enforcement.
In conclusion, the Chinese Government wish to emphasize once more that, in seeking the early conclusion of a new treaty on the basis of equality and mutual respect for territorial sovereignty, they are not only carrying out their bounden, duty to the Chinese people but are prompted by a genuine desire to promote the friendly relations and mutual interests of China and Belgium. The Chinese Government, therefore, are ready at any time to negotiate and conclude a new treaty with the Belgian Government on the basis of the above-mentioned principles.
I have the honor to request Your Excellency to transmit the contents of this note to the Belgian Government and I avail myself of this opportunity to renew to Your Excellency the assurances of my highest consideration.”
Third. So-called Presidential order of November 6th cancelling the treaty:
“Re memorial, submitted for consideration and for instructions to be given stating that the treaty of Peking together with the commercial regulations and tariffs annexed thereto concluded between China and Belgium [in] the fourth year of the Manchu Emperor Tung Che, having expired, should be declared to cease from that date to be effective and that for the promotion of friendly relations a new treaty should be concluded on the basis of equality and mutual respect for territorial sovereignty.
Your memorial has been noted. The treaty of Peking in forty-seven articles together with the commercial regulations and tariffs annexed thereto concluded between China and Belgium on the fourteenth day of the ninth moon of the fourth year of the Manchu Emperor Tung Che, having expired on the 27th of October last, is hereby declared to cease from that date to be effective. For the promotion of friendly relations with Belgium, your Ministry is ordered to negotiate and conclude a new treaty with the Belgian Government as speedily as possible on the basis of equality and mutual respect for territorial sovereignty. With regard to the Belgian Legation, consulates, national[s], products, and ships in China, the local authorities are hereby ordered to extend full and due protection to them in accordance with the rules of international law and usage. At the same time the Ministries concerned are ordered to propose, in conformity with international practices, arrangements for their favorable treatment to be submitted for consideration, approval and enforcement. The remaining items in the memorial shall be carried out as suggested.”
- League of Nations Treaty Series, vol. vi, p. 405.↩