793.003/946: Telegram
The Ambassador in the United Kingdom (Winant) to the Secretary of State
[Received 2:30 a.m.]
5752. Your 5020, October 13, 6 p.m., my 5658, October 10, 8 p.m., your 4938, October 9, 6 p.m., paragraph 2. This morning Mr. Eden forwarded to me the following note together with proposed amendments and suggestions in reference to our draft treaty:
Begin note. “With regard to the draft treaty covering the abrogation of extraterritorial jurisdiction in China which you sent me in your letter of the 5th October and the comments contained in my preliminary reply of the following day, I send you herewith a memorandum containing some suggested amendments for the consideration of your Government and some indications of the points on which additional provisions will be required in the British treaty to cover, for example, the rendition of the British concessions at Tientsin and Canton.
I should be grateful if you would note that these observations are subject to the views of the Governments of the Dominions and India and may therefore be modified in the light of the consultation which [Page 314] is now taking place. But in view of the intention of your Government of which you informed me on the 10th October to hold themselves in readiness to present their treaty to the Chinese within a week, I have thought it best to let you have at once our views even though in provisional form.
you will, I know, understand that while it was possible to consult the Governments of the Dominions and India on the principle of the abolition of extraterritoriality and obtain their replies in a very short time, a breathing space is now required to allow these governments to consider carefully the terms of a treaty which, although brief and drawn in somewhat general terms, will have an important bearing on the treatment of our respective peoples both now and in the future. While therefore it is not essential that His Majesty’s Government and the United States Government present their draft treaties to the Chinese simultaneously, it would be greatly appreciated if the United States Government could in fact postpone the presentation of the treaty for a further week or two until the observations of the Dominions and India have been obtained”. End note.
Begin proposed amendments and suggestions. “Subject to the comments and suggestions made below and to the results of consultation with the Governments of the Dominions and India which is now taking place, His Majesty’s Government in the United Kingdom would be ready to sign with China a treaty following mutatis mutandis the draft treaty enclosed in Mr. Winant’s letter of October 5th.
1. His Majesty’s Government attach importance to the following points:
Article III. At the end of paragraph 2 His Majesty’s Government suggest that the last two or three lines should run as follows. ‘And will make provision for the assumption of the official obligations and liabilities of those settlements and for the recognition and protection of all legitimate rights therein.’ It is desired by the addition of the word ‘liabilities’ to cover in particular the liabilities of the settlements as regards pensions to their employees.
It should also be explained that the Municipal Council of the International Settlement at Shanghai (and perhaps also at Amoy, though this is not certain) has vested municipal assets in the hands of trustees for the purpose of securing the due discharge of certain municipal obligations such as loan debenture issues and pensions for the municipal staff. In order to safeguard the creditors of the respective councils in this respect, His Majesty’s Government would be grateful if the United States Government would consider adding the following sentence to article III: ‘It is understood that where the obligations and liabilities of municipal councils of these settlements are secured upon assets in China, the security and the existing rights of the holders of the obligations to enforce the security will be maintained.’
Article IV. His Majesty’s Government in the United Kingdom would like to draft the end of the paragraph as follows:
[Page 315]‘Except upon proof, established through due process of law, that such rights have been acquired by fraud or as the result of confiscatory action during the Japanese occupation, in which case the property shall be restored on such terms as justice shall require to its previous owners.’
Article V. His Majesty’s Government would desire to add a sentence running as follows: ‘In all legal proceedings and in all matters relating to the administration of justice, the levy of taxes or requirements in connection therewith and the carrying on of commerce, nationals of His Majesty in China and nationals of China in the territories of His Majesty shall enjoy treatment not less favourable than that accorded in those territories to nationals of China or nationals of His Majesty as the case may be. In this provision the expression “nationals of His Majesty’s” includes companies incorporated under the law of any of His Majesty’s territories and the expression “nationals of China” includes companies incorporated under Chinese law. The right to carry on commerce shall only be restricted in time of war and national emergency and then shall only be subjected to such restrictions as are necessary in the interests of national security and which are imposed upon all foreigners.’ His Majesty’s Government in the United Kingdom attach much importance to this addition providing for national treatment in the administration of justice, taxation and the carrying on of commerce.
Article VII.
1. His Majesty’s Government would suggest the insertion of the word ‘navigation’ after the words ‘friendship, commerce’ and before the words ‘and consular rights’.
His Majesty’s Government attach great importance to ensuring that pending the conclusion of comprehensive modern treaties of commerce, etc., at a later date all those provisions of the existing treaties which are not inconsistent with the present jurisdiction treaty shall remain in force. This is doubtless the intention of article VII of the American draft, but in order that there should be no room for ambiguity on the subject, it is hoped that the United States Government may be able to agree to the amendment of the second paragraph of that article on the following lines:
‘Pending the conclusion of a comprehensive treaty of the character referred to in the preceding paragraph, all provisions of the existing treaties, conventions or agreements between the high contracting parties shall remain in force insofar as they are not inconsistent with the present treaty. If any questions affecting the rights in the territory of the Republic of China of the nationals of (His Majesty) (including corporations or associations) should arise in future and if these questions are not covered by the previous treaties and agreements [Page 316] above mentioned which are not inconsistent with this treaty, such questions shall be discussed by representatives of the two governments and shall be decided in accordance with generally accepted principles of international law and with modern international practice.’
2. The following are minor points mainly of a drafting nature:
In Article I of the American draft treaty His Majesty’s Government suggest that the words ‘which shall be exercised’ should be inserted in the last sentence after the words ‘Republic of China’ and before the words ‘in accordance with.’ The object of this amendment is to obtain an undertaking from China that they will exercise their jurisdiction in accordance with the principles of international law and practice.
Article II. His Majesty’s Government in the United Kingdom have no comments on the text of the article. But they would be glad to learn whether it is the intention of the United States Government to preserve any subsequent agreements relating to the disposal of the American share of the Boxer Indemnity.
Article VI. His Majesty’s Government would suggest to the United States Government the desirability of including in their draft of article VI express provisions giving consular officers the right to visit within the limits of their districts any of their nationals who are in prison, under arrest, or awaiting trial and stating that communications from nationals in prison to their consular officers will be forwarded to them by the local authorities.
It will be necessary in the British treaty to make the appropriate definitions of the territories and the nationals of His Majesty to which the treaty will apply. Further, it will be necessary to cover the rendition of the British concessions at Tientsin and Canton.
3. In addition to proposals already made as regards the text of the treaty itself, His Majesty’s Government would suggest that the Chinese Government should be invited to give certain assurances regarding the treatment of our nationals after extraterritoriality has been abolished. These it is hoped would be of a nature to facilitate our everyday relations with the Chinese Government in jurisdictional matters and would help to avoid misunderstandings and disputes. A suggested draft of such a note from the Chinese Government is as follows:
‘With reference to the treaty concluded between us today, I have the honor to declare on behalf of my Government that they will accord to nationals of His Majesty in China the following treatment in regard to judicial and other matters, namely,
- (1)
- Except in cases where considerations of national security or military necessity in time of war are involved, nationals of His Majesty in China will be subject to the jurisdiction of no other tribunals than the established courts of justice (Fa Yuan) and, in case of police [Page 317] offences, to that of the police authorities in accordance with the duly promulgated laws, ordinances and regulations of China.
- (2)
- Nationals of His Majesty under detention or sentence of imprisonment will only be detained or imprisoned in such prisons as are specified by order of the Ministry of Justice for the detention of foreign prisoners or in other premises suitable for their detention or imprisonment.
- (3)
- In all matters of personal status, among which are included all questions relating to marriage, conjugal rights, divorce, judicial separation, dower, paternity, affiliation, adoption, capacity, majority, guardianship, trusteeship and interdiction, and in all matters relating to succession whether by will or on intestacy, and to the distribution and winding up of estates and family law in general, the law of the territory within the British dominions from which the party concerned originates will be applied by the Chinese courts as regards nationals of His Majesty in China.’
The British note in reply would give similar assurances to the Chinese Government regarding the treatment of their nationals in the territories of His Majesty to which the treaty applies.” End proposed amendments and suggestions.