611.9331/176: Telegram

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

64. Your 56, January 23, 5 p.m.

1. The Department does not desire at the present time to make a formal reply to the Chinese Government’s note of January 18, 1934, but does desire that Peck, subject to such comment as the Legation may deem desirable to make, and with prior submission thereof to the Department, discuss informally the question of treaty revision with the person in Chinese Government circles whom he considers to be the most responsible individual to approach, possibly Chiang Kai-shek62 himself, along the lines indicated below and report with regard to the reactions produced.

In our note of January 13, we expressed our willingness to participate in negotiations for a revision of the treaty of 1903, but, in view of the reference in the Chinese note of December 23 to a “new treaty”, we stated a desire for further information in regard to the plans and proposals which the Chinese Government had in mind. The Chinese Government by its note of January 18 clearly indicates that it not only desires a revision of the treaty of 1903 but that it wishes to have the question of American extraterritorial jurisdiction brought into the negotiations.

With regard to this question, we feel that American extraterritorial jurisdiction in China rests on a broader and more comprehensive basis than merely the provisions of the treaty of 1903. Moreover, the American Government’s attitude in regard to the problem of extraterritorial jurisdiction has been clearly indicated in its notes of August 10, 1929,63 and November 1, 1929.64 Subsequent thereto discussions were entered into between representatives of the two Governments, and, pari passu with somewhat similar discussions and results as between representatives of the Chinese and British Governments, tentative accords were reached by the summer of 1931 in regard to various phases of the question.65

We had every intention of resuming these discussions in the autumn of 1931, but this was rendered impossible, as is well known, by political developments which substantially affected and continue to affect the general situation and hitherto existing expectations in and with regard to China and the Far East.

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These developments have not altered the attitude of the American Government with regard to the problem of extraterritoriality. This Government is animated by a sincere desire to meet the natural desire of the Chinese people for a liquidation of the system of extraterritorial jurisdiction in China. It feels warranted in asking, however, and it does ask, that there shall be an agreement that the process of liquidation shall be gradual, in order that, on the one hand, certain progressive adjustments may be achieved in the Chinese legal and judicial systems and that, on the other hand, American interests which have developed in China during the past 90 years under the system of extraterritoriality may have adequate opportunity to adjust themselves to the new situation which will have evolved while the extraterritorial system is being abolished. However, although there has been no change basically in the position of the American Government with regard to that question, we would be lacking in candor if we failed to point out that in our opinion the chain of events beginning with and flowing from the Manchuria affair warrants a reorientation of the views and efforts of China and the other interested powers in regard to that question.

As is well known, it has been the policy of the National Government of China to take up this and related questions separately with each of the various powers which have a common interest in the extraterritorial system. Whatever may have been the potential advantages to China of that procedure, we would again be lacking in candor if we failed to express our view that recent developments and the present situation in China warrant a suggestion that there is need for a reconsideration of that policy in the light of what has occurred.

Furthermore, the question of extraterritorial jurisdiction in China is one which is not practically susceptible to solution by process of dealing with the powers separately. That system rests on an aggregate of various treaty provisions which, after an existence of 90 years, cannot be liquidated by lopping off here and there, by agreement with individual powers, separate features of that system. The subject is one that should be dealt with as a whole and by all concerned. Nothing useful and lasting would be gained by substituting new patchwork for old. On the other hand, we are not blind to the difficulties attending effort to reach a common accord with regard to the problem of extraterritorial jurisdiction, but we feel that, whatever difficulties may be involved in a course directed toward that end, it would be the course best adapted in the long run toward bringing about the end which all are seeking.

As the Department understands the situation, we all know that the Chinese desire the complete abolition of extraterritoriality; that the bringing about of the abolition of that system involves readjustment or [Page 528] liquidation of various foreign interests built up in China over a period of 90 years under that system; and that the principally interested powers have gone on record as expressing their willingness that there be a readjustment of their interests to meet the aspiration of the Chinese people provided that the process of readjustment be gradual and be brought about pari passu with certain progressive improvements in the Chinese legal and judicial systems. With this in mind we would earnestly urge upon those who now direct the destinies of the Chinese people that they attempt to devise an offer in keeping with known limitations and appropriate for submission to all the principally interested powers.

If the Chinese Government does not desire at this time to give consideration to the above suggestions, we feel on our part that, as our views are so well known both as a result of our express statements on the subject and of the tentative accords which were reached in the course of the discussions in 1929–1931, it is doubtful whether any useful purpose would be served by attempting at this time to inject the question of extraterritorial jurisdiction into discussions in regard to a revision of the treaty of 1903, unless China is prepared to take a practical view of the existing situation and of the difficulties inherent in this problem in the light of that situation. We feel therefore that, if there is to be any hope at the present time of progress toward a solution, as between the United States and China, of the problem of extraterritorial jurisdiction by following the procedure which has been followed in the past, the Chinese should offer specific proposals giving indication of a realization by them of the actualities of the existing situation. We are quite prepared to examine sympathetically any such specific proposals that China may wish to put before us.

Aside from the question of extraterritoriality, we are, of course, prepared, as provided in Article 17 of the treaty of 1903, to enter into discussion of any specific proposals for a revision of that treaty. However, as it is China, not the United States, that has raised the question of revision, we feel that specific proposals in regard to the nature of the revision desired by China should be formulated by the Chinese Government. A mere statement of desire to negotiate a new treaty, such as has so far been communicated to us, is not sufficient, as it does not afford sufficient basis for an adequate consideration of the problem. As a general rule, almost without exception, the party seeking revision of a treaty submits with its request an outline or text of its desiderata.

The above views and suggestions are tendered in a spirit of sincere desire to be helpful, in the hope that some at least of the factors which constitute obstacles in the way of a solution of the problems involved may be removed in advance of negotiations. In all frankness, the [Page 529] principal obstacle which has impeded negotiations in the past has been China’s policy of approaching these questions on lines dictated by nationalistic sentiment without adequate regard for actualities.

2. You may, if and when this discussion takes place, inform your British colleague in confidence of the substance thereof.

  1. Chairman of the Chinese Military Council and Commander in Chief of the Army, Navy, and Air Forces.
  2. See telegram No. 254, August 1, 1929, 11 a.m., Foreign Relations, 1929, vol. ii, p. 596.
  3. See telegram No. 958, November 4, 1929, 5 p.m., ibid., p. 616.
  4. See ibid., 1931, vol. iii, pp. 893908.