793.942/23: Telegram

The Minister in China (MacMurray) to the Secretary of State

609. My 557, July 21, 11 p.m.27 In a note of July 31st, draft translation of which was communicated to me last night, the Japanese Minister acknowledged the receipt of Wang’s note of July 19th, which (1) stated that the Sino-Japanese treaty of 1896, its annexed notes and protocol, and the supplementary treaty of 1903 with its annexes,28 all expired on July 20th, (2) proposed the conclusion of a new treaty, and (3) declared that the Nationalist Government would meanwhile and [act?] in accordance with the provisional regulations for the period after treaties between China and foreign countries had been abrogated and not yet replaced.

After quoting article 26 of the treaty, the Japanese note continues as follows:

“There is no stipulation providing for the abrogation [or] expiration of the treaty. It is natural therefore that the treaty can neither be abrogated nor terminated with[out] special mutual consent or agreement between both contracting parties. Further, as it is expressly stipulated in the provisions of the same articles that if the negotiations for the revision were not completed within 6 months, then the treaty and tariffs should remain in force for 10 years more, it admits of no doubt that the treaty and tariffs should remain in force for another 10 years.

The Japanese Government having consistently held the above [view] made it clearly known to the Waichiaopu of the Peking Government in the memorandum of the Japanese Government in reply [Page 424] to that Ministry’s proposal for the revision of the treaty of commerce and navigation, and they have never failed to remind the Chinese authorities thereof on several subsequent occasions when the term for treaty negotiations was renewed.

Three [The] treaties and the accompanying documents being, for the above reasons, still in force then [even] after the expiration of the term for treaty negotiation on July 20th last, the Japanese Government deem it impossible to share the view of the Nationalist Government that [the] expiration of the term for treaty negotiation coincides with the expiration of these [those] treaties.

Moreover, in their note, the Nationalist Government maintain to rule during the interim [period] before the conclusion of a new treaty, with the so-called ‘provisional regulations’ which have been unilaterally drawn up by them, bringing into practice the termination of the present treaties still in effect. It is, on the part of the Nationalist Government, not only an infringement on [of] the terms of the treaty, which is inadmissible in the light of both treaty interpretation and international usages, but also an outrageous act disregarding good faith between [the] nations in which the Japanese Government find themselves absolutely unable to acquire [acquiesce].

As for the revision of the treaties, however, the Japanese Government, as they have declared on more than one occasion, have sincerity and are in readiness for entering into its negotiations with the Nationalist Government in view of the national aspirations of the Chinese people and also the close relationship in every respect between the two countries.

The above attitude of Japan has been, as the Nationalist Government are well aware, clearly evidenced by the fact that in the informal negotiations for treaty revision held at Peking the Japanese Government endeavored to facilitate the treaty revision by consenting several times to the expiration [extension] of the term for treaty negotiations even after the expiration of the original six months. In this connection it must be especially pointed out that the revision was unfortunately not effected during the term, chiefly because of political unrest in China.

In short, the attitude of the Japanese Government towards the treaty revision has in no way been altered. If the Nationalist Government therefore having regard to international fidelity as well as neighborly friendship between Japanese [Japan] and China recognize the validity of the existing treaty [treaties] by withdrawing their declaration to enforce the socalled ‘provisional regulation’, the Japanese Government are ready gladly to agree to the proposal of the Nationalist Government for treaty revision and not in the least dissent [hesitate] to effect such revision as may be considered appropriate. If however the Nationalist Government will stick to their attitude to insist on the expiration [of] the existing treaties, the Japanese Government cannot see their way to open the negotiations for treaty revision and, further, if the Nationalist Government should persistently attempt to enforce the socalled ‘provisional regulations’ unilaterally, the Japanese Government declare hereby that they may be obliged to take such measures as they deem suitable for safeguarding their rights and interest[s] assured by the treaties.”

  1. Telegram in five sections.
  2. Not printed.
  3. MacMurray, Treaties, 1894–1919, vol. i, pp. 68 and 411.