711.933/371b: Telegram

The Secretary of State to the Ambassador in the United Kingdom (Winant)26

4087. Department’s 3199, July 11, 5 p.m.

1. The Department’s study of the question of relinquishment of this country’s extraterritorial and related rights in China has continued. In this study we have of course taken into account the trend of public opinion in this country. While there has been no strong concerted pressure upon the Government to take action, it has been obvious from editorial comment and from speeches by and letters received from interested persons that popular sentiment in favor of action toward abolishing extraterritoriality is fairly widespread. It is believed that any request by the Chinese Government for abolition would receive strong support in the United States. In the light of this and other factors, we are inclining to the view that, although this is not an entirely opportune moment to take some affirmative steps in the matter, it is doubtful whether any much more favorable occasion is likely to occur in the near future. On the contrary, we might later, because of the natural trends of political thinking in China as well as in this and other countries, find ourselves in a position less advantageous than at the present while the question of initiative is within our control.

2. In our examination of the whole problem we have, of course, endeavored not only to consider the advantages and disadvantages of taking action but have also given thought to the question of what means of initiating action would be most effective and beneficial to all concerned in case decision to take action should be made. In this connection our thought inclines to a procedure and action as set forth in paragraph numbered 3 below.

3. A confidential approach to the Chinese Government along lines as follows:

The American and the British Governments have been giving continuing thought to the question of relinquishment respectively of [Page 283]American and British extraterritorial rights in China. They would both be pleased if they could find some practicable step which might be taken at this time to clarify further the fact that they favor the termination of extraterritorial rights and practices in China and regard themselves pledged to give up the special rights of that character which they now possess. They believe that such a step would serve to delineate by additional particularization the general framework of the relationship which will exist in the future between the United States and China and between Great Britain and China, especially in the post-war world. They believe also that it might be helpful to the peoples of all three countries to have more precise information than is now available with regard to the concepts and purposes of the three Governments in reference to the question of extraterritorial jurisdiction. An orthodox way of proceeding would of course be for the American and the Chinese Governments and for the British and the Chinese Governments to enter into negotiations for the conclusion of new treaties based on the best modern international practices and conforming with the general norms in international relationships, which treaties would supplant existing treaties of special character and provide for the complete and final termination of extraterritorial rights and for the substitution therefor of the usual rights of trade and of establishment. Such a procedure would be in conformity with and a practical manifestation of the principle to which the American, the British, and the Chinese Governments are committed of proceeding in international relationships by orderly process of negotiation and agreement.

Up to this time the American Government and the British Government have made no approach to the Chinese Government on this matter in view of the statement on this subject contained in the letter of the Secretary of State of May 31, 1941, to the appointed Chinese Minister for Foreign Affairs and of the like, and indicated, position of the British Government. A further factor has been that the question of American and British extraterritorial rights in China has not seemed to be a question of urgent practical importance at this particular time when the main efforts of the United States, Great Britain and China are necessarily directed toward achieving military success in the war.

If the Chinese Government should feel that it is advisable that affirmative action be taken now, the American and the British Governments would be agreeable to entering immediately into negotiations with the Chinese Government directed toward termination of extraterritorial and related rights by and with the conclusion of new modern treaties. The modern treaties which the American Government and the British Government have made a practice of concluding [Page 284]during recent years are comprehensive documents covering a considerable variety of subjects. While the provisions are in a sense fairly well standardized, still the negotiation of such a treaty normally requires some months for full interchange of views to the end that entirely satisfactory conclusions agreeable to both parties may be arrived at. In view of China’s place in the family of nations and of the complexity of modern international intercourse, it is assumed that the Chinese Government would in principle also favor the conclusion of such comprehensive treaties.

In addition to the fact that negotiation of this type of treaty would probably not be completed for several months, the fact that the negotiations are in process could probably not be kept confidential. The enemy governments might be expected to seize every available opportunity to criticize to their own advantage any delay in negotiations or any apparent differing of views between the parties to the negotiations. While there is not to be anticipated any undue delay or the emergence of important difficulties, it is believed that the factors which have been mentioned need to be taken into consideration.

In view of the circumstances as outlined above, the American and the British Governments suggest that, in case the Chinese Government should feel that it would be useful for some further step to be taken at this time, the American and the Chinese Governments and the British and the Chinese Governments might respectively immediately enter into negotiations for the conclusion of brief treaties which would provide for the relinquishment by the United States and by Great Britain of American and British extraterritorial and related rights in China and for the adjustment of a few broad questions which would arise upon and in connection with relinquishment of extraterritorial rights. The negotiation of such a brief treaty would probably take much less time than the negotiation of a detailed, comprehensive treaty and would not incur the same risk of premature publicity. Thus, the negotiation of a brief treaty would not be open to the same disadvantages as the negotiation at this time of a comprehensive treaty. Moreover, during a period of war and while the enemy is in temporary military occupation of parts of China’s territory, there would arise some doubt as to the practicality of endeavoring at this time to provide in a treaty for detailed provisions covering all usual aspects of international intercourse.

It is our thought that a brief treaty between the United States and China of the type in mind would contain:

(a)
Provision for immediate relinquishment of American extraterritorial and related rights, including American rights under the Boxer Protocol of September 7, 1901,27 and in relation to the International Settlements at Shanghai and at Amoy;
(b)
Provision for discussion between American and Chinese representatives of any questions relating to satisfaction of contractual obligations entered into with American nationals by the authorities of the Diplomatic Quarter at Peiping or of the International Settlements at Shanghai and at Amoy;
(c)
An undertaking by the Chinese Government to regard as indefeasible existing American rights in China relating to real property, with provision that the Chinese Government might effect replacement of American-held leases in perpetuity by new deeds of ownership such as are issued to Chinese owners of land, and with provision that American nationals shall not be required to pay any past land taxes or fees or charges of any nature with respect to land in addition to those already paid;
(d)
A provision that in as much as the American Government has long accorded to Chinese nationals while within the territories of the United States of America rights to travel, reside and carry on trade, except in respect to certain areas closed for reasons of national security, the Chinese Government would accord similar rights to American nationals while within the territories of China;
(e)
Reciprocal provision for consular representation by consular officers duly provided with exequatur;
(f)
Provision that the American and the Chinese Governments will upon the request of either Government or in any case within 6 months after the cessation of hostilities enter into negotiations for the conclusion of a comprehensive modern treaty of friendship, establishment, consular rights, commerce and navigation, such treaty to be based upon principles of modern international law and practice; and
(g)
Provision that until such a comprehensive modern treaty shall have been concluded, any questions affecting the rights in China of American nationals arising as a result of relinquishment of American extraterritorial rights shall be decided, where not covered by existing treaties, on the basis of generally accepted principles of modern international law.

4. As part of the approach outlined in paragraph numbered 3 above, it is suggested that the American Government and the British Government present to the Chinese Government for consideration brief draft treaties as described.

5. If any approach should be made to the Chinese Government, it might ensue that the Chinese Government would, after consideration of various factors, prefer that no action be taken in reference to this matter at this particular time. It is also possible that an approach at this time might cause the Chinese Government to press for immediate and final relinquishment of American and British extraterritorial rights in China without waiting for the negotiation of new treaties. While being aware of this possibility, our present thought inclines to favoring the making of an approach.

6. Please communicate the foregoing to Mr. Eden and state that we should appreciate receiving an early expression of the British Government’s views. You may add that we are, of course, as we have [Page 286]previously indicated, desirous of dealing with this matter in consultation and cooperation with the British Government.

Hull
  1. Substance repeated to the Ambassador in China in Department’s telegram No. 770, August 27, 2 p.m.
  2. Foreign Relations, 1901, Appendix (Affairs in China), p. 312.