711.949712

Memorandum by the Assistant Secretary of State (Castle) of a Conversation With the Japanese Ambassador (Matsudaira)

The Ambassador came to discuss with me the question of a liquor treaty with Japan, a draft of which was submitted by the Department in an instruction to Tokyo of April 5, 1924.1

The Ambassador says that he does not understand why there has been so long a delay on the part of his Government. He says that his Government is now, however, quite ready to conclude such a treaty and, in fact, he would be very grateful if this could be done promptly because his Government would like to have him sign it and, as he is leaving here on the first of June, it will take some time before he can receive his full powers.

The Ambassador left with me a copy of the instructions he had received from his Government in the way of comments on the American draft. I shall take up here what he said as to these various instructions as given in the copy he left with me.

Preamble. The Ambassador said he understood any comment was quite unnecessary since in the two copies of treaties it was always customary to transpose the order of the signatories.

Article 1. The Japanese Government suggested no changes in this article.

Article 2 (a). In this article I stated that we have no objection whatever to the change “The Japanese Government agree that they will” from “His Majesty agrees that he will.”

(b). The Ambassador said that he hoped that it could be clearly understood, possibly by an exchange of notes, that the words “private vessels” absolutely excludes government vessels. I told him that the treaty, of course, was not meant to refer to government [Page 121]vessels, but to merchant ships, private yachts, etc., that I saw no reason why he could not be given assurance of this.

(c). The Ambassador explained to me what was meant in this paragraph. He said that a misunderstanding was almost out of the question, but that the Japanese Government wanted to be sure that Section 3 referred only to territorial waters and to the high seas. He said, for example, that between Guam, which belongs to the United States, and Rota Island (the Ambassador had no idea how this Island was spelled as he had it only in Japanese) which belongs to Japan under mandate, the distance is only 32 miles. I am inclined to think the danger of smuggling from Rota Island to Guam is not a serious one.

(d). The Ambassador wanted it to be understood, as he said he believed it was understood in all the other treaties of this kind, that there would be no general order for all vessels to stop at a specified place, for example, all Japanese merchant ships going to San Francisco. He said that if every ship coming into this country had to stop at a specified place and wait for inspectors, it might be bad for trade. I told him that this was not in the least intended, that the only ships stopped would normally be ships which were suspected and that this merely gave the Coast Guard the right to stop such a ship. The Ambassador said this was his understanding of the matter, and that it was quite satisfactory, but that he wanted to confirm that understanding.

Article 3 (a). The Japanese Government suggested to the Ambassador that the question as to sea stores might be made clear by a separate protocol. The reason for this is that the Japanese Government feels that should there be a change in the domestic laws of the United States governing this point, the existing law should remain in force until the two governments could come to an agreement in the matter in so far as it affected the terms of the treaty. I told him that I thought an understanding could be clearly reached in this matter, but that I thought also a protocol would be an unfortunate method of reaching such an understanding, that if any definitions were necessary it might better be brought about by an exchange of notes. The Ambassador said he agreed with this entirely, but that as his Government instructed him to suggest a protocol, he had to do so, but if we preferred some other method he was sure his Government would agree and said he would be glad to telegraph.

(b). The Ambassador said his Government was not exactly clear as to the meaning of the latter part of the article. I told him that I thought it was meant to cover the passage of liquor under seal through the Panama Canal and that this was to make clear that such passage would not be prohibited. The principal point that he made as to this paragraph was the meaning of the term “unladen.” He said [Page 122]that if this term meant the ordinary discharge of cargo, it was, of course, satisfactory, but that, if possible, his Government wanted to prevent an embargo, for example, on transshipment of sealed stores from one Japanese ship to another within territorial waters. He said that it was conceivable that a cargo of sake might be sent from Japan to the Argentine and that it would be very important to transship to another Japanese vessel in San Francisco. He said the case was not likely to arise, but that if it could be made clear that “unladen” meant discharge into the United States, he did not want to press the point, but he would prefer to leave it for discussion should such a contingency ever arise.

Article 4. The Japanese Government accepts this article as it is.

Article 5. In this article the Japanese Government is only anxious that it be understood that if modifications in the terms of the treaty are to be proposed they should be proposed in time to give merchant vessels warning of the change. In other words, he did not feel that there should be any change in the terms of the treaty without a warning of three months.

Article 6 (a). The purpose of this comment is to make sure that ships should be protected against any sudden change. The Japanese Government had suggested the omission of this paragraph, but the Ambassador said that they would not press for such omission if it could be in some way made clear that either high contracting party should engage to give notice to the other contracting party one or two months at least before the automatic lapse of the treaty through, for example, a court decision.

(b). In this case the Ambassador simply wants assurance that if a case arises for adjudication while the treaty is in effect, but cannot come up for adjudication until after the lapse of the treaty, it should be decided in accord with the terms of the treaty. This would appear to me to be only common sense.

In the closing paragraph the Japanese Government naturally wants the words “of our Lord” omitted. The Ambassador said they would have no objection to the “year 1928 of the Christian Era”, but that in many treaties which Japan had with other countries, it was simply “the year 1928” or whatever it might be without any further expression. He said that if we wanted to put in “of the Christian Era” his Government might insist on including the statement in the Japanese manner also. The Ambassador thought that this was unnecessary and confusing and hoped that we might be willing merely to say “year 1928.”

I told the Ambassador that I would pass on his comments to the Solicitor of the Department immediately and that I should ask for a very prompt answer. He said that either he or the Counselor would be glad to come to the Department during my absence to talk with the [Page 123]Solicitor, if it was considered necessary to discuss any of these points further, that it might be possible for the Department in writing to explain our understanding of the different sections.

(In leaving with me this copy of instructions the Ambassador said that he was not absolutely certain that he had another copy and, therefore, hoped the Department would keep this one intact as he might need to ask for its return.)

W. R. C[astle, Jr.]
[Enclosure]

Copy of Instructions From the Japanese Foreign Office to the Japanese Ambassador (Matsudaira)

The Preamble. In the text to be retained by Japan, “His Majesty the Emperor of Japan” should precede “the President of the United States of America,” and the name of the Japanese Plenipotentiary, that of the American Plenipotentiary.

Article 1.

Article 2.

(a)
The first Section of this Article should begin with “The Japanese Government agree that they will”, instead of “His Majesty agrees that he will”.
(b)
An understanding should be reached to the effect that “private vessels” mentioned in the first section signify “merchant vessels,” which mean and include all vessels other than those over which the Japanese Government exercise control and for the conduct of which they assume full responsibility, as defined in Paragraph (e), Section 2201, Article 22 of Regulation 2, relative to Permits for Manufacture of and Traffic in Intoxicating Liquor.
(c)
While Section (3) authorizes the authorities of the United States to exercise the rights conferred by this Article within the distance from the coast of the United States, its territories or possessions, which can be traversed in one hour by the vessel suspected of endeavoring to commit the offense, an understanding should be had that the sphere in which such rights are exercised should be limited to the territorial waters of the United States and the high seas, and that it should not under any circumstances be extended to territorial waters of the other party.
(d)
In view of the treatment generally accorded by the authorities of the United States to the vessels of various countries, it is not likely that Japanese vessels would be requested to stop for inspection regularly at certain places and wait for the arrival of an inspection vessel without being given a specific order to do so by such vessel, yet a clear understanding on this point should be reached between both parties.
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Article 3.

(a)
Sea Stores. As existing domestic laws of the United States authorize the vessels in American ports to hold and use a certain amount of liquor for non-beverage purposes, an understanding should be had that in the application of the present Treaty, questions in regard to such liquor should be regulated by such domestic laws.
(b)
The meaning of the latter part of this Article, which reads: “Such carriage shall be as now provided by law with respect to the transit of such liquors through the Panama Canal, provided that such liquors shall be kept under seal continuously while the vessel on which they are carried remains within said territorial waters and that no part of such liquors shall at any time or place be unladen within the United States, its territories or possessions;” is ambiguous. It should be clarified.
(c)
While the closing part of this Article reads: “that no part of such liquors shall at any time or place be unladen within the United States, its territories or possessions;” it should be understood that the term “unladen” means ordinary discharge of cargo, and that it does not apply to transshipment of cargo to other vessels or to temporary landing for the purpose of such transshipment.

Article 4.

Article 5.

In regard to Paragraph 2, “three months before the expiration of the said period of one year” should be understood in the sense that either High Contracting Party may give notice of its desire to propose modification in the terms of the Treaty not later than three months before the expiration of the said period.

Article 6.

(a)
Paragraph 1 of Article 6 should either be struck from the provisions of the Treaty, or be so amended as to signify that either of the High Contracting Parties shall engage to give notice to the other Party one or two months before the automatic lapse of the Treaty.
(b)
All cases which may arise while the Treaty is still in effect should be adjudicated in accordance with its provisions after its lapse.
(c)
In the second paragraph of this Article in the text to be retained by the Japanese Government, “His Majesty the Emperor of Japan” should precede “the President of the United States” in conformity with the provision of the Preamble.

The Closing Paragraph.

“Our Lord” before the numerals of the Christian Era should be omitted.

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Protocol

The Government of Japan and the Government of the United States have, through their respective Plenipotentiaries, agreed upon the following stipulation in regard to Article 3 of the Treaty between Japan and the United States for the Prevention of the Smuggling of Intoxicating Liquors signed this day:

Questions regarding sea stores of liquors shall be governed by the existing domestic laws of the United States.

In witness whereof, the respective Plenipotentiaries have signed this Protocol in duplicate and have hereunto affixed their seals.

  1. Not printed. The draft was similar to the treaty signed between the United States and the Netherlands on August 21, 1924, Foreign Relations, 1924, vol. i, p. 207. A copy of the draft was handed the Japanese Ambassador by the Secretary of State on March 20, 1924 (file No. 711.949/3).