Foreign Relations of the United States, Diplomatic Papers, 1942, China

793.003/946: Telegram

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

Washington, October 17, 1942—5 p.m.

5129. Your 5752, October 15, 1 a.m. We are glad to have the proposed amendments and suggestions of the British Government and we appreciate the expedition and the spirit of helpful cooperation with which those suggestions have been presented.

The Department’s comments with regard to the British amendments and suggestions, following the order set forth in your telegram under reference, are as follows:

(a) Article III. With regard to the suggested change at the end of the second paragraph, we are agreeable to the change.

With regard to the suggestion that there be added to Article III an additional sentence, we are not sure that we understand precisely what the British Government has in mind and would therefore appreciate clarification. Does the British Government have in mind by the suggested additional sentence only assets which are presently in being or does it have in mind such assets plus a continuing obligation to apply future revenues to meet such obligations and liabilities, or does the British Government have in mind providing simply as a principle that the rights which the holders of the obligations now have to appropriate process of enforcement would continue to be recognized under Chinese law? In this connection, the Department observes that in drafting we endeavored to phrase Article III, as other articles of the draft treaty, in broad general terms. Article III as drafted by us envisages possible future discussion of certain types of questions which may after this treaty is concluded arise.

(b) Article IV. We do not perceive the relevancy to the subject matter of the article of the reference to confiscatory action during Japanese occupation. In our draft we have endeavored to provide for regulation of the relations between American nationals and the Chinese Government in regard to property rights as affected by relinquishment of extraterritorial jurisdiction. We have not endeavored to deal with questions arising as a result of Japanese occupation which in our view are in a wholly different category from the subject matter of this treaty. On the basis of our understanding of the suggested British amendment we therefore feel it advisable to retain the original language of this paragraph.

(c) Article V. The suggested British addition covers matters which from our point of view might more appropriately be taken care of in the comprehensive treaty which we envisage negotiating with China at some subsequent time. It might also in the form proposed raise for us difficult questions relating to Federal and State jurisdictions. With regard to the last sentence of the suggested British addition, the American Ambassador at Chungking has pointed out that mention of a right to impose restrictions on the basis of war and national emergencies is open to the danger that the Chinese Government might interpret such a provision much more broadly than other governments are likely to do. We are therefore reluctant to include in our draft the British suggestion. We are, however, continuing our study of the British Government’s suggestion under reference. The subject matter of the suggestion might of course be brought up by any of the interested parties, including the Chinese, after the drafts of treaties have been presented to the Chinese Government.

(d) Article VII. We accept the suggested addition of the word “navigation”.

The British interpretation of the intention of Article VII of the American draft is correct. While we perceive no strong objection to the rephrasing as a whole suggested by the British Government, we deliberately drafted the second paragraph of this article with a view to avoiding emphasis on provisions of existing treaties, conventions, or agreements, in as much as those treaties, conventions, and agreements are associated in the popular mind and in the mind of the Chinese Government with the concept of “unequal treaties”. We would therefore hope that upon reconsideration the British Government would adopt our original phrasing.

We do not understand why the British Government in its rephrasing omits reference to rights of this Government and of the British Government respectively. We believe it advisable to retain mention of rights of governments.

We like the suggested British substitution in the body of the paragraph under reference for the words “as a consequence of the relinquishment of extraterritorial rights” of the words “in future” and are making this change.

(e) Article I. With regard to the suggested insertion of the words “which shall be exercised”, we deliberately drafted this statement in general terms. We feel that the insertion of the suggested words would be likely to offend Chinese susceptibilities and to cause the Chinese Government to ask that this sentence stop with the words “the Republic of China”. We therefore do not favor the insertion of the words suggested.

(f) Article II. It is not the intention of the Government of the United States to preserve any subsequent agreements relating to the disposal of the American share of the Boxer Indemnity.

(g) Article VI. It seems to us that the points made in the first paragraph of the British suggestions are covered substantially in our draft. In addition, we would find it difficult to omit the words “upon notification to the appropriate authorities” in as much as we have included those words in recent treaties with other countries. However, in the light of the British suggestions we are amending our draft as follows:

(1) In the second sentence of the first paragraph of our draft we are altering the second and third clauses to read as follows: “they shall be informed immediately whenever nationals of their country are under detention or arrest or in prison or are awaiting trial in their consular districts and they shall, upon notification to the appropriate authorities, be permitted to visit any such nationals; and, in general, the consular officers of each country shall be accorded, et cetera”.

(2) After the last sentence of the article and as part of the last paragraph we are adding a sentence “Communications to their consular officers from nationals of each country who are under detention or arrest or in prison or are awaiting trial in the territory of the other country shall be forwarded to such consular officers by the local authorities”.

(h) (1) With regard to paragraphs numbered 1 and 2 in the suggested note from the Chinese Government, the Department feels that the Chinese Government would be likely, on the ground that the making thereof would be a limitation on Chinese sovereignty, to object to a suggestion that it make such statements. The adoption of such a suggestion would also serve to continue in existence in agreements between China and foreign countries provisions for the making of distinctions between the treatment accorded in China to Chinese nationals and to foreign nationals. We are inclined to believe that the Chinese Government will voluntarily and perhaps by definite regulation or stipulation of law accord treatment along the lines suggested in these two paragraphs. We therefore feel strongly that it would be inadvisable to suggest that the Chinese Government be asked for a note covering the points raised in these two paragraphs. We would perceive no objection, should the British Government wish to do so, to the British Government’s informally raising for the consideration and decision of the Chinese Government the question whether the Chinese Government might not wish to take whatever steps it might consider appropriate to provide for treatment of foreigners in China along the lines set forth in the first two paragraphs of the proposed Chinese note. We should be prepared, in case the British Government considered that such a step on our part would be useful, to offer similar informal comment to the Chinese. In so doing we would wish to emphasize that the whole matter is one for the Chinese Government’s consideration and sole determination.

(2) With regard to paragraph numbered 3 in the suggested note from the Chinese Government, it is not in accordance with the treaty practice of the United States to include such a provision in its treaties and an attempt to do so might raise difficult questions of authority and policy in the field of Federal and State relations in the United States. In as much as we wish to keep this treaty as far as feasible on broad general lines, to include only matters not likely to create difficulties in either the United States or China, and to leave detailed arrangements for the subsequent comprehensive treaty which is envisaged, we for our part would not wish to raise this matter for inclusion in this treaty or accompanying documents. It might be feasible to raise the question informally with the Chinese Government along the lines suggested with regard to paragraphs numbered 1 and 2 of the proposed Chinese note, but this Government would wish to reserve decision as to whether it would desire to specify all the points mentioned in paragraph numbered 3. Should the British Government, however, wish to endeavor to exchange notes with the Chinese Government along the lines set forth in paragraph numbered 3, this Government would perceive no objection, except that such procedure would detract from the advantage which may be expected to accrue from having the two treaties as nearly as possible identical.

We realize that the British Government will include in its treaty appropriate definitions of the British territories and nationals to which the treaty will apply and provision for the rendition of the British Concessions at Tientsin and Canton; also, that the amendments and suggestions offered by the British Government are provisional in the sense that the British Government has not as yet received the comments of the Governments of the Dominions and of India.

In as much as we wish to present a draft treaty to the Chinese Government for its consideration at the earliest feasible moment and as we wish to synchronize our approach as nearly as we can with the British approach, the Department suggests a procedure as follows: We would hand the Chinese Ambassador here our draft treaty perhaps next Wednesday or Thursday and, if the British draft should not be completed by that time due to non-receipt of comments from some of the Dominions or India, we suggest that the British Foreign Office might inform the Chinese Chargé in London on the same day as our action is taken that the British Government is in general accord with the proposals which appear in the draft which the United States Government is presenting to the Chinese Ambassador in Washington but finds it necessary to give consideration to certain points not covered in that draft, including suggestions which may be offered by the Governments of the Dominions or of India.

The Department would appreciate receiving as early as possible (1) the British Government’s views on this suggested procedure, (2) the clarification requested in regard to the sentence which the British propose be added to Article III, and (3) such further comment as the British Government may wish to offer.

Welles