793.003/11–1342
Memorandum by the Assistant Chief of the Division of Far Eastern Affairs (Atcheson) of a Conversation With the Minister Counselor of the Chinese Embassy (Liu Chieh)
Mr. Liu telephoned me late November 11, referred to the informal memorandum in regard to proposed Chinese modifications of the draft [Page 351] treaty which was handed to the Secretary by the Chinese Ambassador on November 10, and stated that he would be at our disposal at any time to discuss this matter. I stated that we were studying the Chinese suggestions but had not got very far with them, that there appeared to be one or two points on which we might like some clarification, and that I would communicate with him again. After consultation with Mr. Hornbeck I asked Mr. Liu to call this afternoon. He came at five o’clock.
After some general discussion we went over the Chinese suggestions point by point.
In regard to the suggested new article to be Article I of the treaty, I said that this suggestion raised some definite questions. It seemed to us to be an unnecessary addition because the treaty speaks for itself and the facts of the relationships between this Government and the Chinese Government as exemplified in the treaty are more important than descriptive phrases. As the Chinese know, our concept of the brief treaty has been that it would accomplish without delay the relinquishment of extraterritorial and special rights and would take care of such immediately related questions as would require attention because of the relinquishment of extraterritorial rights. We had hoped to achieve our purpose in these respects in such a way as to avoid bringing in extraneous matters which might cause difficulty either in this country or in China and in our opinion the suggested additional article contains language which would be subject to misconstruction by persons in this country as affecting broad questions which are necessarily not within the scope of our present endeavors.
In response to an inquiry by Mr. Liu whether the use in the suggested article of the words “equality and reciprocity” was in itself considered harmful, I went over the points mentioned above and added that it was not customary to employ such phrases in the modern treaties which we had concluded with other countries as it was to be assumed that the treaties constituted treaties between equals and, having in mind the comprehensive treaty which we hope to conclude with China later on, it was a matter of policy to adhere as closely as possible to the language we had employed in such treaties. In other words, our concept of this whole matter is that we are proceeding to wipe out anomalies in our relations with China and to place those relations on a basis of what is normal and usual in modern international practice. Mr. Liu said that he supposed the Chinese Government put store by the suggested language because of the inequalities of the past which had existed in the relationships between China and various other countries and that it had for some years been the policy of the Chinese Government to have inserted some such language in [Page 352] the new and modern treaties which it had concluded with a number of countries. In this connection he cited Article III of the Sino-Portuguese Treaty of 1928:
“The two High Contracting Parties have decided to enter as soon as possible into negotiations for the purpose of concluding a Treaty of Commerce and Navigation based on the principles of absolute equality and non-discrimination in their commercial relations and mutual respect for sovereignty.” (Underscoring added.)
I restated in other terms the Department’s objections to the suggested article and we proceeded to discuss the other Chinese suggestions. At the end of his call Mr. Liu reverted to the suggested new article and mentioned that the Chinese Ambassador in handing the memorandum of suggestions to the Secretary on November 10 had made some mention of the question of immigration. I referred to the Secretary’s remarks on that occasion and said again what I had said before—that we had hoped in the brief treaty to take care of extraterritoriality and immediately related matters and to avoid going into extraneous questions or wandering afield in any way that might cause delay.
As regards the other suggestions, I stated to Mr. Liu that we had not got far in our study of them and the questions I would like to ask him were purely personal and informal. He said that he was glad to have an opportunity to talk informally and unofficially, as that was always helpful.
I went on to say that I did not quite understand the suggested amendment in paragraph 2 of the Chinese memorandum, as the additional words which the Chinese desired would seem to vitiate rights in the Quarter and Settlements which stemmed from provisions of treaties and agreements and were in accordance therewith but which had grown up outside the purview of Chinese regulations and of Chinese laws other than the treaties. As an example, I did not know whether the contract between the Shanghai Power Company and the Municipal Council of the International Settlement had been drawn up in accordance with Chinese legal procedure; I assumed that it had been drawn up in accordance with American law and that it was a perfectly legal and legitimate contract. I added that the word “legitimate” in our draft as describing the rights in question was a good safeguard to the Chinese Government and it seemed to me offhand that it was sufficient. Mr. Liu said that, while he did not know, he supposed that the Chinese Government had in mind some kinds of illegal contracts that might exist such as, for example, a contract for a gambling concession in the French area of Shanghai and as the new treaty with the United States would be a model for treaties with other [Page 353] extraterritorial countries his Government was naturally being as careful as possible in regard to questions of phraseology, et cetera. He did not think there would be any disposition on the part of the Chinese authorities to deny legitimate rights and he would make inquiry of his Government on this point.
In regard to the first item of paragraph three of the Chinese suggestions, a similar discussion ensued. Mr. Liu stated that this was also a question of legal phraseology, that “fraud” did not technically cover, for example, misrepresentation.
In regard to the second item of paragraph three, Mr. Liu said that he hoped we understood the purpose of the suggestion, which was, of course, to preclude after the war widespread purchase of land by Japanese. I said that I wondered if the same result could not be achieved by regulation, that even under extraterritoriality land is governed by the lex loci and certainly after extraterritoriality should be abolished there would be nothing in the way of the Chinese Government’s looking after matters of that kind by means of regulation and procedure. It accordingly seemed to me unnecessary to emphasize the matter, especially the political aspects of it, in the treaty. I said that my concern was that considerable American land holdings would be for sale and the Chinese suggestion would appear to impose a restriction which if applied in an arbitrary manner by local officials might mean that the American land holder would get next to nothing for such land as he might wish to dispose of.
In regard to paragraph four of the Chinese suggestions, I indicated that this point might be deferred for subsequent discussion.
In regard to paragraph five of the Chinese suggestions, I said that the suggested addition did not seem to me to be necessary as treaty ports would be abolished as such, our relations would be on a normal basis, and the question of appointment of Consuls at particular places would of course be a matter of agreement. I said that I did not know of any modern treaties which this country has with other countries in which this language is used as it is naturally assumed that such questions are resolved by mutual agreement. Mr. Liu stated that obviously in this instance the Chinese Government had in mind the Japanese and also the most-favored-nation clause which, as I knew, had grown to be anathema to modern Chinese because under that clause in the extraterritoriality treaties various countries large and small coming late on the scene had been able to acquire for themselves special rights and privileges and as a result the extraterritorial system had become more and more tightly fastened upon China.
In regard to paragraph six of the Chinese suggestions, I said that it was our hope to avoid particularization as much as possible in the treaty and that some of the points mentioned in the suggested exchange [Page 354] of notes would seem to be already covered by the general terms of the draft treaty. For example, the question of special courts in the International Settlements would not seem to arise if there were no International Settlements. As regards the mention of treaty ports, I said that treaty ports as such were of course part of the extraterritoriality system and the abolition of them was within our concept of what the treaty should accomplish. I mentioned that their abolition would leave the American public and the world at large in the dark as to which Chinese ports were considered to be open to foreign commerce. The United States Customs, for example, published a list of the ports of the United States open to foreign commerce. As regards the question of pilots, I assumed that what the Chinese Government had in mind was the compulsory employment of foreign pilots under the old pilotage regulations and I mentioned that of course under the port regulations of large ports it was usually required of foreign vessels that pilots be employed. We understood the Chinese desire to get rid of the provisions of the pilotage regulations requiring the employment of a certain number of foreign pilots. As regards the question of coastal trade, inland navigation, and the visits of foreign naval vessels, I remarked that these questions were entirely unrelated to the question of extraterritoriality—there was, for instance, the example of the Amazon River, which is open to foreign commerce—but, as Mr. Hamilton had indicated to him during his call on October 26, the Department would look into them if the Chinese Government so desired. I went on to say, as Mr. Hamilton and I had also said to him on October 26, that in regard to these matters mentioned in the suggested exchange of notes we had no thought of seeking to keep or reserve or obtain from China anything that was not normal in modern international relations.
Mr. Liu stated that he would seek clarification of various points from the Chinese Foreign Office at Chungking and inquired when we might have a more formal and definitive discussion of the Chinese suggestions. (In regard to the suggested additional article he understood, of course, that I had given him the opinion of the Department whereas the remainder of our discussion was purely personal and informal.) He said that the Chinese Government was very anxious to get forward with the treaty. I replied that we too wished to expedite the matter and that I would make every effort to advance it. Mr. Liu stated that he was leaving for New York tomorrow and would return to Washington on Wednesday, November 18.
The conversation was most cordial and friendly in every way.