793.003/954
The Ambassador in the United Kingdom (Winant) to the Secretary of State
[Received October 21—1:45 p.m.]
5876. My 5875, October 21, 1 p.m. I have received from Mr. Eden the following communication entitled “Memorandum giving the views of His Majesty’s Government in the United Kingdom on the observations of the United States Government dated 18 October regarding the draft treaty with China on extraterritoriality” (Department’s 5129, October 17, 5 p.m.).
Begin memorandum.
“(A) Article III. The additional sentence proposed by His Majesty’s Government to article III only covers existing assets already vested in trustees as security for obligations and liabilities. Trustees have at present the right in case of default upon obligations to take over the assets (for instance, the municipal waterworks at Tientsin; in Shanghai similar arrangements have been made) and apply the revenues to payments due upon the obligations. His Majesty’s Government’s desire is that these rights of the trustees should be left unchanged. In the light of this explanation we hope the United States Government will find it possible to adopt this sentence.
(B) Article IV. In the opinion of His Majesty’s Government the effect of the first paragraph of article IV of the American draft is to render all existing rights and titles to real property indefeasible except upon proof of fraud. Consequently a title acquired as the result of Japanese confiscation would be made indefeasible and it was for this reason that the addition was proposed by His Majesty’s Government. In any case there seems no reason to suppose that the Chinese Government would object to this addition and His Majesty’s Government would propose to retain it but hope that on reconsideration the United States Government may also see its utility.
(C) Article V. In deference to the views expressed by the United States Government, the sentence ‘the right to carry on commerce shall only be restricted in time of war and national emergency and then shall only be restricted to such restrictions as are necessary in the interests of national security and which are imposed upon all foreigners’ is being deleted. On the other hand, His Majesty’s Government still attach great importance to retaining the sentence beginning ‘in all legal proceedings’ et cetera. They note that the United States Government are continuing their study of this suggestion and suggest that on this point it would be sufficient if both the American and British draft treaties contained some sentence along these lines [Page 325] and that it would not be necessary that the sentences in the two drafts should be identical. On this point it is possible that a sentence which suits the position in the United Kingdom might not exactly suit the position in the United States, and vice versa.
(D) Article VII. His Majesty’s Government note with pleasure that the United States Government have accepted the addition of the word ‘navigation’ and also the phrase ‘abrogated by or inconsistent with’ and the substitution of the words ‘in future’ for the previous phrase. For their part His Majesty’s Government will now be prepared to adopt the American draft of this article with these three changes.
(E) Article I. In view of the United States Government’s observations, the proposed amendment is dropped.
(G) Article VI. In view of the American acceptance of the two suggestions which His Majesty’s Government have made, there is no difference of substance between us with regard to this article. The text of the article as it is proposed to put it in the British treaty reads as follows:
‘Article VI. The consular officers of one high contracting party, duly provided with exequaturs, shall be permitted to reside in those ports, places and cities of the territories of the other high contracting party which are or may be open to consular officers of any foreign power. The consular officers of one high contracting party shall have the right within their districts in the territories of the other high contracting party to interview, communicate with and to advise the nationals and companies of the former high contracting party, and the nationals and companies of one high contracting party within the territory of the other high contracting party shall have the right at all times to communicate with the consular officers of the former high contracting party. The consular officers of one high contracting party in the territories of the other shall be informed immediately by the appropriate local authorities when any of their nationals are arrested or detained in their consular districts by the local authorities. They shall have the right to visit within the limits of their districts any of their nationals who are under arrest or awaiting trial in prison. Communications from the nationals of one high contracting party in prison in the territories of the other high contracting party addressed to the consular officers of the former high contracting party will be forwarded to the appropriate consular officer by the local authorities. Consular officers of one high contracting party shall be accorded in the territories of the other high contracting party the rights, privileges and immunities enjoyed by consular officers under modern international usage.’
In this connection it ought perhaps to be explained that according to the practice in the United Kingdom it is not possible to give China the right by treaty (which would have to be extended also to other countries later) for her consuls to visit Chinese nationals who have [Page 326] been convicted and are serving their sentences of imprisonment. It is only possible to give this right of visit to prisoners who are under arrest or awaiting trial in prison.
(H) His Majesty’s Government have noted the views of the United States Government as regards the proposed note. They will therefore take up these points with the Chinese Government informally in the first place and they accept with pleasure the American offer also to raise these points informally with the Chinese.
The amendments to the United States draft transmitted in Mr. Winant’s two letters of the 20 October are acceptable to His Majesty’s Government and will be adopted by them.” End memorandum.
(See Department’s 5146, October 19, 5 p.m. and 5147, October 19, 6 p.m.)