793.003/959: Telegram
The Ambassador in the United Kingdom (Winant) to the Secretary of State
[Received 7:40 p.m.]
5923. Department’s 5199, October 21, 9 p.m.57 and 5200, October 21, 10 p.m. I have just received from Mr. Eden a letter dated October 23 [with] enclosure entitled “Memorandum giving the views of His Majesty’s Government in the United Kingdom on the observations of the United States Government dated 22 October regarding the draft treaty with China on extraterritoriality”. Mr. Eden’s letter reads in part as follows:
“I am grateful for the postponement by 2 days of the communication which the United States Government proposes to make to the Chinese Ambassador in Washington. Although we shall not ourselves be able to communicate our draft treaty so early as tomorrow, the postponement will help toward bringing our respective dates of communication nearer together.
[Page 330]“I enclose herein a further memorandum in reply to the message from the Department of State contained in your letter. As you will see, it is our intention to bring our own draft treaty and procedure very closely into conformity with yours. I would, however, draw your attention once again to the important point of principle which arises on article V of your draft treaty (see point C in the accompanying memorandum).
“I am aware that the Chinese Government might see difficulty in granting full national treatment especially in the matter of industrial enterprise, but as I told you on the telephone last night, we feel strongly that if we do not try to obtain national treatment in the matters mentioned in article V from the Chinese Government now it is highly improbable that we shall be able to persuade them to grant it at a later stage when we come to negotiate our comprehensive and detailed treaties. We should have been glad therefore if the United States Government had seen its way to join us in endeavoring to obtain for our commerce ordinary treatment in accordance with international practice such as we are quite prepared to grant to the Chinese ourselves and which carries with it no stigma or vestige of the former inequality.”
Mr. Eden further states that he would be grateful if the Department even at this late hour would either reconsider the suggestions the British have made or make some suggestion of its own which would cover in the present treaties the point the British have in mind. He mentions that his reason for being so insistent in this matter is that, as we know, the British have a larger commercial interest at stake in China than most other countries. He points out in conclusion that the last paragraph of the appended memorandum provides an answer to the inquiry contained in Department’s 5208, October 22, 1 p.m.58
(Begin memorandum) “A. Article III. In deference to the views of the United States Government, His Majesty’s Government in the United Kingdom will delete from their draft the additional sentence.
B. Article IV. H M G note that while the United States Government do not propose to adopt the addition suggested by H M G, they have perceived no objection to H M G’s including the addition in their own draft. H M G do propose to retain this addition for this reason. Paragraph 1 of article IV of the American draft treaty renders all existing titles to real property indefeasible except upon proof of fraud. The expression ‘existing titles’ must mean all titles existing at the date the treaty comes into force. It will therefore cover all titles issued by the Chinese land offices up to that date, including therefore titles issued by the puppet offices which have been functioning in the occupied territory since 1937. Some of the titles [Page 331] issued by the puppet offices should be recognized but some of them, especially those issued in more recent times, may have been acquired as the result of Japanese confiscation. But as we read the American draft, all these titles will be rendered indefeasible except upon proof of fraud.
C. Article V. H M G in the United Kingdom note that the United States Government do not intend to include in their draft treaty any sentence corresponding to the British suggested sentence beginning ‘in all legal proceedings et cetera’. And that they consider this matter might be more appropriately taken care of in the future comprehensive treaty referred to in article VII. Unless the United States Government change their view, H M G will also delete it from theirs. They wish, however, to express their opinion that unless national treatment in matters of carrying on business et cetera is secured in the present treaty it is highly improbable that it will be possible to secure it in the future comprehensive treaty and that a mere right to carry on business, unless national treatment as regards the conditions of its carrying on is secured, may be of little practical value.
G. Article VI. It would appear that one sentence from the British draft of article VI must have been omitted in the text telegraphed to Washington. The text of this article transmitted in the memorandum of the 20th October contained the sentence ‘they (i. e. consular officers) 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’.
H. H M G’s statement that they would take up the substance of the proposed draft note with the Chinese Government informally in the first place meant that they would sound the Chinese informally and ascertain the Chinese reaction. If the Chinese reaction was more favourable to the Chinese giving a statement on their own initiative and as a unilateral act, H M G would willingly accept it. If on the other hand the Chinese seemed to prefer something on the basis of reciprocity then it would appear that the course of reciprocal assurances by exchange of notes would be the best. If finally the Chinese reaction was an absolute refusal to enter into any commitment in this realm at all then H M G would be obliged to accept this refusal.
It will not be possible to obtain the agreement of all the Empire Governments to the final text of the British draft treaty by the morning of 24th October. H M G therefore propose to inform the Chinese Chargé d’Affaires in London and the Chinese Government that they are awaiting the views of the Dominions and India but that they expect their draft treaty to follow closely the text of the American draft with the addition of a clause covering the rendition of the British concessions at Tientsin and Canton.” (End memorandum)