893.05/174
The Consul General at Shanghai (Cunningham) to the Minister in China (MacMurray)85
Sir: I have the honor to refer to the Legation’s telegram No. 148 of August 24, 6 p.m., concerning the proposed negotiations in connection with the Provisional Court and possibly other problems of the International Settlement of Shanghai, and to submit herewith my comments on the questions raised by the Department.
With regard to the matter of a preliminary meeting between the officers of the Legations and the representatives of the Chinese Foreign Office, it is not believed that such a meeting should be held since it is feared that a considerable delay would result in beginning the actual negotiations. The Provisional Court questions are pressing, and only four more months remain before January first when the three year period named in Article 7 of the Rendition Agreement will expire. No time should be lost, therefore, in beginning the actual negotiations. I am submitting the above, however, as my own personal view without desiring in any way to prejudice the Legation in deciding upon this point.
With regard to the recommendations of the Senior Consul’s Deputies mentioned in paragraph two of the Legation’s telegram, these were submitted to the Department and to the Legation as the views of the Deputies only and it has never been my belief that it would be desirable to press them one and all to such an extent as to deadlock negotiations. With regard to the example cited by the Department in respect to the recommendation that no decision of the Court in criminal cases be final without the consent of the Deputy, it is agreed that this recommendation should not be pressed to the extent of bringing negotiations to a deadlock although I do believe it imperative [Page 693] that some provision for dealing with the protests of the Deputies be provided for or else the right of protest, as now provided in Section (iii), Article I, is nothing more than a fiction. This, however, is a matter of the interpretation of a clause in the Rendition Agreement rather than a matter of the increase of foreign authority in respect to the Provisional Court. In general, no increase of foreign authority should be sought but in many instances clarifying interpretations of the original intention could be decided upon in order to minimize disputes.
With regard, however, to civil and criminal cases in which foreigners having extraterritorial rights are plaintiffs or complainants, it is felt that unqualified provision should be made for joint hearings, which was really the original intention of the Mixed Court Rendition Agreement. If this is not done, American, British and Japanese nationals will be in a less favorable position than French nationals, for instance, who bring their suits in the French Mixed Court for joint hearings. In this connection, it ought also to be borne in mind that the administration of justice in the French Mixed Court to-day is to a much greater extent in the hands of the French authorities than is the administration of justice in the Provisional Court.
It is impossible and of little moment to discuss all the details of the recommendations of the Senior Consul’s Deputies, since they can better be dealt with by the Sino-foreign Committee appointed for that purpose. However, in general, it is believed that our first line of defense should be that no rights which we enjoy under the present agreement should be surrendered, particularly in regard to the policing of the Settlement, while on the other hand it is not believed that foreign demands for additional rights should be allowed to deadlock negotiations.
With regard to the suggestion made by the Department that it might now be advisable to initiate in Shanghai the policy of advising American plaintiffs to file their suits in the modern Chinese Courts without asking for the presence of an American official to watch the proceeding, I consider such a step most undesirable. It would destroy the solidarity of policy among the representatives of the powers concerned with the judicial administration of the Settlement and place ourselves in the position of sympathizing with the extreme demands of the Chinese authorities. After the proposed negotiations have been concluded, it might be possible to make a beginning along this line by authorizing this Consulate General to refrain, at its discretion, from sending an American official to watch civil cases. There are at present a large number of such cases in connection with rent matters and in many instances the actual American interest involved is questionable since it is a known fact that large amounts of Chinese capital are invested in foreign real estate firms in Shanghai. The American [Page 694] authorities, therefore, on their own initiative might make a beginning along the line of the Department’s suggestion by refraining from sending an official to watch such cases. Gradually this policy could be extended.
With regard to the question of the scope of the negotiations, raised by the Department in paragraph four of the Legation’s telegram, I am firmly convinced that it should be confined primarily to the solution of the Provisional Court problems. These problems are by far the most pressing and are so fraught with dangerous possibilities that negotiations for their settlement should not be encumbered with other problems of a less pressing nature. Once, however, the Court problems have been solved, the Sino-foreign Committee might be authorized to undertake a settlement of other problems, such as the extra-Settlement roads, the Whangpoo Conservancy or even the administration of the Settlement, if these problems have not already been by that time otherwise settled. In answer, therefore, to the Department’s first query relative to the likelihood of arriving at a satisfactory solution, it is believed that a solution can be reached, if the Powers concerned and the Chinese Government actually empower a joint committee to settle the question and do not burden that committee with a discussion of other questions in their entirety simultaneously.
With regard to the Department’s second query relative to the best methods of approach, the view of this office has already been expressed in the preceding paragraph. A joint Sino-foreign Committee should be empowered to deal, first, with the Provisional Court problems and, following their satisfactory solution, the other problems might be taken up one at a time until all have been settled. In this way a semi-permanent committee would come into existence for dealing with all the problems of the Settlement until an ultimate solution for each and every one had been secured. It is possible, however, that the Chinese Government may decide to confine its efforts to the general question of extraterritoriality and refuse to join in the above proposal. In that event, the only recourse would be to demand that the status quo be maintained.
I have [etc.]
- Copy transmitted to the Department without covering despatch; received October 26, 1929.↩