611.9431/176½
Memorandum by the Legal Adviser (Hackworth) to the Secretary of State
I attach Mr. Baker’s memorandum of May 17, 1939,13 regarding discrimination by Japan against American trade and commerce in China.
I should suppose that the Congress in enacting Section 338 of the Tariff Act14 had in mind discrimination by a country in its own territory. The situation with respect to occupied territory such as exists in China being so unusual was probably not thought of at the time the section was under consideration. Yet, the terms of the section are broad enough to cover the Sino-Japanese situation if it should be deemed desirable to invoke the section.
Article V of the treaty of 1911 with Japan would seem to prevent this Government from prohibiting the importation of Japanese goods. The protocol attached to the treaty of 1911 and the tariff provisions in the treaty of November 22, 1894 referred to therein, impose a like prohibition. These latter provisions also prohibit the imposition of higher duties on articles the produce or manufacture of the territories of Japan, than are imposed on like articles imported from any other country. (1 Treaties, Conventions, etc. (Malloy, 1910) 1028, 1030–31).
It would therefore seem desirable to get rid of the treaty of 1911 as a preliminary step to resorting to Section 338 of the Tariff Act of 1930.