The Secretary of State to the Minister in China (Johnson)
356. Your 1173, October 6, 5 p.m., and 1198, October 17, 5 p.m.
1. Department approves your instructions to the Consul General at Shanghai as quoted in paragraph 2 of the first telegram under reference and in the first paragraph of the second telegram under [Page 664] reference, but offers for your consideration certain observations as follows:
2. After a study of the provisions of the Chinese law and regulations referred to in paragraph 1 of your first telegram under reference, the Department is of the opinion that, as in the case of the Chinese regulations for the registration of companies and supplemental rules (see Department’s No. 266, September 26, 1930,24 in regard to those regulations and rules), this law and these regulations provide for a kind and degree of Chinese administrative and judicial control over extraterritorial nationals registering under them which would make it extremely difficult, if not impossible, for American newspapers and periodicals in China to effect registration and at the same time to retain their extraterritorial rights and status. Although the American Government might be prepared in certain cases, when the circumstances so warrant, to acquiesce in a denial to American nationals of postal facilities by the Chinese authorities, as for instance in the recent case of the Isaacs publication at Shanghai, the American Government does not admit the right of the Chinese Government generally to deny postal facilities to American nationals in order to compel them to comply with a Chinese law which, under the extraterritorial system, is not applicable to them and which subjects them to penal provisions which the Chinese authorities have no right to impose.
3. Referring to the concluding paragraph of your 1198, October 17, 5 p.m., the Department informs you that China is obligated, as a member of the Universal Postal Union, to grant liberty of transit to mail originating in any other country member of the Union and it could not, of course, limit the enjoyment of that right to companies registered in China. The right of American nationals in China to use the postal facilities of China for legitimate purposes is too obvious to require discussion, and, as above stated, that right cannot be granted on any condition inconsistent with the treaty rights of American nationals. Department does not desire, however, that you inject into this matter the question of mail originating abroad.
In this connection it may be observed that the resolution adopted at the Washington Conference on February 1, 1922, agreeing to the abandonment of the postal agencies in China, formerly maintained by the United States and other powers, was adopted on the express condition “that an effective Chinese postal service is maintained”.25 Obviously American nationals were intended to obtain the benefit of that service without any impairment of their treaty rights.[Page 665]
4. Please keep Department informed with regard to developments, including action taken by your colleagues.