893.52/225

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

No. 165

Sir: The Department refers to the Legation’s despatch No. 2409 dated November 1, 1929, enclosing a copy of despatch No. 345 dated October 23, 1929, from the American Consul at Tsingtao90 in which the Legation’s instructions were requested regarding the attitude to be adopted by the Consulate toward certain restrictions placed by the Chinese authorities upon the transfer of real property held by foreigners in Tsingtao. The Legation requested the Department’s instructions in the premises. The Department refers, also, to despatch No. 351 dated November 6, 1929, from the American Consul at Tsingtao addressed to the Legation on the same subject.91

The right of American citizens to acquire and hold property in China is based, in general, on the provisions of the treaties entered [Page 573] into between China and the United States. Among the pertinent treaty provisions is one found in Article XII of the Treaty of 1858,92 which reads, in part, as follows:

“Citizens of the United States, residing or sojourning at any of the ports open to foreign commerce, shall be permitted to rent houses and places of business, or hire sites on which they can themselves build houses or hospitals, churches and cemeteries.”

Article III of the Treaty of 190393 provides that property within certain areas may be leased in perpetuity.

“Citizens of the United States may frequent, reside and carry on trade, industries and manufactures, or pursue any lawful avocation, in all the ports or localities of China which are now open or may hereafter be opened to foreign residence and trade; and, within the suitable localities at those places which have been or may be set apart for the use and occupation of foreigners, they may rent or purchase houses, places of business and other buildings, and rent or lease in perpetuity land and build thereon.”

With reference to the tenure of land by foreigners at Tsingtao, it is to be noted that in the Treaty for the Settlement of Outstanding Questions Relative to Shantung, concluded between China and Japan on February 4, 1922,94 the Chinese Government made the following declarations:

  • “Art. XXIII.… The Government of the Chinese Republic, on its part, declares that the entire area of the former German leased territory of Kiaochow will be opened to foreign trade, and that foreign nationals will be permitted freely to reside and to carry on commerce, industry and other lawful pursuits within such area.
  • “Art. XXIV. The Government of the Chinese Republic further declares that vested rights lawfully and equitably acquired by foreign nationals in the former German leased territory of Kiaochow, whether under the German régime or during the period of the Japanese administration, will be respected.”

In connection with the application to leases of land at Tsingtao of Article III of the Sino-American Treaty of 1903 providing for leases in perpetuity, the Department understands that the Chinese authorities contend that Tsingtao has the status of a port opened by China itself and that the treaty stipulations regarding the right to lease in perpetuity do not necessarily apply there. These two contentions, it is understood, are not admitted by the Japanese authorities. With reference to the contention of the Chinese authorities that the right of foreigners to lease land in perpetuity does not apply to land at self-opened ports, you are referred to the Department’s instruction to the [Page 574] Legation, No. 365 of March 31, 1923,95 in which the Department expressed the view that the language used in Article III of the Treaty of 1903 clearly includes all ports opened to foreign residence and trade irrespective of whether such ports were opened to foreign commerce voluntarily or by treaty, and that this Government does not admit that China may by local regulations abridge or restrict rights guaranteed to American citizens by treaty stipulations.

However, in view of the peculiar circumstances at Tsingtao, the Department is not disposed to assert on behalf of American citizens greater rights in the matter of land tenure at Tsingtao than are enjoyed by Japanese subjects or other foreign nationals. The Department desires that the Legation and the American Consulate at Tsingtao watch the situation carefully, in order that American citizens shall not be subjected to discriminatory treatment in this regard.

A copy of this instruction is enclosed for transmission to the American Consul at Tsingtao.

I am [etc.]

For the Secretary of State:
Francis White
  1. Neither printed.
  2. Not printed.
  3. Malloy, Treaties, vol. i, 1776–1909, p. 211.
  4. Foreign Relations, 1903, p. 91.
  5. Ibid., 1922, vol. i, p. 948.
  6. Not printed.