711.942/170½
Memorandum by the Assistant Secretary of State (Sayre) to the Secretary of State
Mr. Secretary: You will remember that I spoke to you some weeks ago about the question of terminating certain articles in our Treaty of Commerce and Navigation of 1911 with Japan.10 The obligations [Page 536] under Articles V and XIV of this Treaty constitute what amounts to a one-sided obligation imposed upon this Government, in as much as it guarantees most-favored-nation treatment with respect to tariffs, but leaves the broader obligation of general commercial most-favored-nation treatment undefined in so far as the newer economic devices of quota restrictions, exchange control, and similar practices are concerned. In other words, the provisions of the Treaty of 1911 are quite obsolete and should be replaced by more modern provisions. The existing Treaty would prevent the United States from taking various actions such as export embargoes or tariff discriminations against Japan, whereas it does not prevent Japan from discriminating against American trade in China nor does it prevent discrimination in Japan through exchange control measures in a most flagrant way.
From the viewpoint of commercial policy, it seems clear that the old Treaty should be either done away with or replaced by new and more modern provisions. In a meeting of representatives of the various Divisions concerned, I believe that all unanimously agreed to this conclusion.
Since the meeting, however, Senator Pittman has, as you know, introduced a resolution on April twenty-seventh, giving the President authority to embargo exports to or imports from a country violating the Nine Power Treaty. In view of this development, the Far Eastern Division feels that a move at this time to modernize the Treaty would have political repercussions and that we therefore should do nothing at this time.
In my own opinion there are strong arguments for going forward now with the modernization of the 1911 Treaty. This could be done by first talking the matter over with Senator Pittman and suggesting to him that he defer pressing any action on his resolution until after we have a chance to clear up the old Treaty. I think it is plain that no action could be taken under the Pittman resolution without violating the present provisions of the 1911 Treaty. What I fear is that if we do nothing action may be pressed on the Pittman resolution and, if the Senate is then informed that the 1911 Treaty prevents taking action under the Pittman resolution, the Senate may consider or pass a resolution directing the President to denounce the 1911 Treaty. Such a resolution would doubtless be accompanied by inflammatory remarks which, it seems to me, would be very unfortunate and would certainly increase the political embarrassment likely to attend any attempt by us at that time or later to revise the 1911 Treaty. The wiser course, therefore, seems to me for the State Department, after conferring with Senator Pittman, to approach the Japanese Government, asking them to agree to negotiate a new treaty eliminating Articles V and XIV of the old Treaty of 1911. As you will recall from my earlier discussion with you, it is contemplated that if the [Page 537] Japanese desire to negotiate more modern provisions we would be prepared to enter into an informal modus vivendi along the line of the Italian commercial agreement11 adapted to Far Eastern circumstances and, if conditions warranted, in time to embody such provisions in actual treaty form. This proposal is embodied in the aide-mémoire appended hereto.12
There is a conflict of opinion in the different Divisions of the Department. Mr. Hamilton of the Far Eastern Division feels it unwise to move at this time. Mr. Hawkins of the Trade Agreements Division feels, on the other hand, that we ought to move forward so as to rid ourselves of the obligations of the Treaty of 1911 which in effect operate unilaterally against us.
- Signed February 21, 1911, Foreign Relations, 1911, p. 315.↩
- Signed at Rome, December 16, 1937; 51 Stat. 361.↩
- Draft not printed.↩