The Secretary of State to Miss Margaret Hiller, National Board, Young Women’s Christian Associations, New York City

Madam: The Department has received your telegram of February 22, 1928,27 inquiring whether it is possible for American citizens in other countries who may desire to do so to waive their right to American military protection, or to any protection. Your telegram states that you recognize that the Department of State may not be bound by any action or statement to this effect, but you inquire whether individuals may waive such rights from their own standpoint.

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The Department’s position is, in general, that the action of American citizens in waiving their right to the diplomatic intervention and other protection of their Government does not divest the Government of its right or obligation to take such action as may be required of it under provisions of law (including treaties), or such action as it may deem expedient subject to the restriction of such provisions. Since this question has arisen latterly particularly in regard to the status of American citizens in China, the Department assumes that your inquiry has particular reference to that country. If this assumption is correct it is appropriate to point out that the treaties concluded between China and the United States are contracts between the two governments. They expressly provide that American citizens in China shall enjoy, with respect to their persons and property, the protection of the local authorities of government, and that they shall be exempt from the process of Chinese laws. It has been repeatedly held that a citizen cannot by his independent act control the right of his government to intervene or afford protection in an appropriate case. In this connection, you may be interested to refer to Moore’s International Law Digest, Vol. VI, page 293.

With reference to the exercise of extraterritorial rights, Congress has, furthermore, enacted legislation extending to American citizens in China the laws and jurisdiction of the United States. No American citizen in China, so long as he remains such, can waive the application to his person or property of such laws by the claim of a preference to be subject to the laws of China.

Moreover, the treaty provisions were intended to bring foreign nationals under the jurisdiction of their own governments not only with a view to protection, but with a view to the exercise by foreign governments of effective restraint upon their nationals. You will realize that, just as some citizens feel, in certain situations and for certain ends, that it is desirable that they be dissociated from the right to and the exercise of protection by their government, so others would be greatly gratified if it were possible for them to divest themselves of all possibility of restraint by their government.

You will also realize, I am sure, that under and by virtue of the treaty provisions, the American Government has obligations as well as rights, both in respect to China and to American citizens, and both in general and in particular.

The Department recognizes, however, that there are American citizens and organizations that feel an objection in principle to invoking the diplomatic intervention of this Government, and the Department’s officials in China have been instructed that when such citizens or organizations become involved in circumstances necessitating, in the opinion of the Department, intervention with the Chinese [Page 216] authorities the wording of protests should indicate that they are not filed at the instance of the injured parties, but on the initiative of the diplomatic or consular officials, acting on behalf of the general rights possessed by American citizens.28 Indemnities, in general, are not asked from the Chinese authorities except at the request of the injured parties, but the Department reserves the right to enter protests against the destruction of American property and to include in such protests a further reservation of its right to file claims therefor. This is a substantive right which the Government of the United States cannot relinquish in view of the possibility that it may be necessary for it to protect the interests of American citizens generally in China at some time or other by a demand for damages.

Since each case calling for diplomatic intervention by this Government on behalf of American interests presents considerations peculiar to itself, the Department is not in a position to set forth any rigid rule applicable to all such cases, but it is hoped that the observations contained in this letter supply the information requested in your telegram under acknowledgment.

I am [etc.]

For the Secretary of State:29
Stanley K. Hornbeck

Chief, Division of Far Eastern Affairs
  1. Not printed.
  2. See telegram No. 298, July 28, 1927, to the Minister in China, Foreign Relations, 1927, vol. ii, p. 139.
  3. This paper bears the notation: “Approved by the Secretary.”