793.003/756a: Telegram
The Acting Secretary of State to the Minister in China (Johnson)
228. 1. The Department is mailing to the Embassy at London a memorandum86 in regard to Article XVI, Reserved Areas, of the proposed new Treaty relating to the extraterritorial rights of the United States in China, together with the texts of a draft of this Article and of the exchange of notes relating thereto which the Department has under consideration. Pertinent excerpts from this memorandum are as follows:
“The Department of State views with some misgivings the provisions of the draft of Article XVI—Reserved Areas—and of the exchange of notes in regard thereto, as agreed upon between the British Minister to China and the Chinese Minister for Foreign Affairs, as those provisions would permit the new treaty safeguards and reservations [Page 891] with regard to Shanghai to come to an end at the expiration of 10 years without there necessarily having been reached any mutually satisfactory agreement in regard to the important questions involved at Shanghai some of which are not dealt with in the proposed new Treaty. The Sino-British draft referred to provides that negotiations shall be entered into at the end of 5 years from the coming into force of the new Treaty and that, if no agreement is reached as a result of these negotiations, subjects of His Majesty in the Shanghai area shall become, at the expiration of the Treaty, amenable to the jurisdiction of the Chinese courts. Under this provision the Chinese authorities would be able to delay or block the negotiations referred to and other negotiations looking toward the settlement of other outstanding questions at Shanghai, to the end that, at the expiration of 10 years, this area, except in so far as the Shanghai Land Regulations provide otherwise, will fall under Chinese jurisdiction.
The Department of State has prepared a draft of Article XVI and of an exchange of notes in regard thereto, copies of which are attached hereto, which the Department prefers to the Sino-British draft and which it proposes to submit to the American Minister to China with instructions that the Minister endeavor to obtain the assent of the Chinese Minister for Foreign Affairs to this draft.
While both the Sino-British draft of Article XVI and the Department’s draft of this Article as referred to above provide for the reservation of an area at Tientsin during a period of 5 years, the Department would be prepared, as a last resort, to give up this reservation in exchange for the assent of the Chinese authorities to that portion of the Department’s draft of Article XVI relating to the reserved area at Shanghai. The Department believes, however, that authorization to make this concession should not be given to the American and British negotiators in China until they have exhausted every effort to obtain a reservation in regard to Tientsin.
The Department’s draft of Article XVI provides that negotiations for the conclusion of an agreement to alter the status of the reserved area at Shanghai may be entered into at the expiration of 9 years. This period has been chosen because it synchronizes with the 12 months’ notice period provided in Article XXI of the proposed Treaty in regard to the period of duration.
The Department of State realizes, particularly in view of the draft which the British Minister and the Chinese Minister for Foreign Affairs have initialed, that the Chinese Government will probably make every effort to oppose the provisions of the Department’s draft of Article XVI which seek to reserve the Shanghai area for an indefinite period, depending upon the coming into force of a mutually satisfactory agreement in regard to the questions involved at Shanghai, and that the Chinese Government will probably oppose any attempt to reserve an area at Tientsin. The Department is of the opinion, however, that an effort should be made to obtain these reservations substantially in the form provided in the Department’s draft. It is believed that if the Chinese Government is made to realize that the American and British Governments insist upon satisfactory arrangements in regard to Shanghai, the Chinese Government, in the last resort, will not because of their objection to this forego the opportunity to conclude a Treaty which will give them complete jurisdiction in all other parts of China.
[Page 892]The Department of State has been led to believe that the views of the British Foreign Office are substantially in accord with those of the Department as outlined above. The Department would, however, appreciate receiving the comments and suggestions of the Foreign Office with a view to the issuance to the American Minister and to the British Minister to China of instructions that, upon their return to Nanking, they endeavor to obtain the assent of the Chinese authorities to provisions substantially along the lines proposed in the Department’s draft of Article AVI and exchange of notes in regard thereto.”
2. The texts of the Department’s draft of Article XVI and of the exchange of notes in regard thereto are as follows:
“Until the coming into force of a separate agreement to be concluded between the United States of America and China as hereinafter provided, the provisions of the present Treaty shall not be applicable within the area of Greater Shanghai, as shown on the map annexed hereto, to nationals of the United States of America, who, within that area, shall continue to be subject to the jurisdiction and laws of the United States of America and entitled to all rights and privileges accorded by the treaties concluded between the United States of America and China. Negotiations for the conclusion of an agreement to alter the status of nationals of the United States of America in the area of Greater Shanghai referred to above shall, upon request by the Government of China, be entered into at any time after the expiration of 9 years from the coming into force of the present Treaty.
Until the expiration of 5 years from the date of the coming into force of the present Treaty, the provisions of the present Treaty shall not be applicable within the area at Tientsin, as shown on the map annexed hereto, to nationals of the United States of America. Pending the application of the present Treaty within this area at Tientsin, nationals of the United States of America within that area shall continue to be subject to the jurisdiction and laws of the United States of America and entitled to all rights and privileges accorded by the treaties concluded between the United States of America and China.
Notwithstanding the provisions of the two preceding paragraphs, nationals of the United States of America resident in the areas of Greater Shanghai and Tientsin, as shown on the maps referred to herein, shall, from the coming into force of the present Treaty, be subject to taxation by the Chinese Government in accordance with Article VI of the present Treaty; provided, that such taxation shall not discriminate in any way against nationals of the United States of America as compared with Chinese citizens and/or the nationals of any other country.”
“Excellency: With reference to Article XVI of the Treaty concluded between the United States of America and the Republic of China, I have the honor to inform Your Excellency that the Government of the United States of America is prepared to support immediate negotiations for a solution of the question of the extra-Settlement roads at Shanghai subject to satisfactory arrangements being made in regard to the policing and maintenance of the said roads and the payment of rates and provisions for municipal services in the areas in question.
[Page 893]I have the honor to request Your Excellency’s confirmation of my understanding that, under the provisions of Article XVIII of the present Treaty, nationals of the United States of America in any of the areas in China in which Chinese administrative jurisdiction does not at present apply shall enjoy such exemptions from Chinese jurisdiction as may be enjoyed by nationals of any country.
I avail myself of this opportunity to renew to Your Excellency the assurance of my highest consideration. (signed) American Representative.”
“Excellency: I have the honor to acknowledge the receipt of Your Excellency’s note of today’s date referring to the Treaty concluded today between the Republic of China and the United States of America in which you request my confirmation of your understanding as follows:
(Note to be quoted)
I hereby confirm your understanding quoted above as correct.
I avail myself of this opportunity to renew to Your Excellency the assurance of my highest consideration. (signed) Chinese Representative.”
3. The above texts are being telegraphed to you in order that you may inform the British Minister whom the Department assumes the British Foreign Office will consult before replying to the Department’s memorandum.
- Sent under date of July 14, 1931, as enclosure to instruction No. 852 (793.003/756c).↩