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

793.003/11–2742

The Department of State to the Chinese Embassy ⁹³

undated

Careful consideration has been given to the suggested modifications of the draft treaty on extraterritoriality which the Department received from the Chinese Embassy on November 10, 1942.

One. As regards paragraph one of the Chinese suggestions, the Government of the United States suggests, in a sincere desire to meet appropriately the wishes of the Chinese Government in this matter, that this question might appropriately be covered in the preamble of the treaty and that the language of the preamble accordingly might be altered to read as follows:

“The United States of America and the Republic of China, in recognition of the friendly relations which have long prevailed between their two peoples and of their common desire as equal and sovereign States that the high principles in the regulation of human affairs to which they are committed shall be made increasingly effective, have resolved to conclude a treaty for the adjustment of certain matters in regard to jurisdiction in China and related questions, and have appointed et cetera.”

Two. As regards paragraph two of the Chinese suggestions, it may be mentioned that the adjective “legitimate” was used in the American draft to describe the rights in question and it would accordingly seem that the additional language suggested by the Chinese Government is not necessary. However, if after further consideration the Chinese Government should prefer, the Government of the United States for its part would be willing to delete from the end of the second paragraph of Articles II and III of the American draft treaty the words “and for the recognition and protection of all legitimate rights therein”, thereby eliminating any basis for the additional clause in question suggested by the Chinese Government.

Three. (a) As regards the first item of paragraph three of the Chinese suggestions, the Government of the United States would be agreeable, if it is considered by the Chinese Government that the term “fraud” in the American draft is too narrow in a technical legal sense, to altering the particular language in question to read, “it is agreed that such existing rights or titles shall be indefeasible and shall not be questioned upon any ground except upon proof, established through due process of law, of fraud or of fraudulent or other dishonest practices in the acquisition of such rights or titles, it being understood that no right or title shall be rendered invalid by virtue of any subsequent change in the official procedure through which it was acquired”.

(b) The Government of the United States concurs in the addition in the second paragraph of Article IV of the American draft of the first part of the proposed sentence, as follows: “It is also agreed that these rights or titles shall be subject to the laws and regulations of the Republic of China concerning taxation, national defense and the right of eminent domain.” As regards the further language proposed by the Chinese Government that such rights or titles may not be alienated to the government or nationals of any third country without the express consent of the Chinese Government, if after further consideration the Chinese Government continues in its desire to include in Article IV a provision along those lines, the Government of the United States would not be inclined to raise objection provided that the Chinese Government for its part should see its way clear to making a declaration in a supplemental note to the effect that the restriction on the right of alienation of existing rights and titles to real property in question would be applied in an equitable manner and that if and when the Chinese Government should decline to give assent to a proposed transfer the Chinese Government would undertake, if the American party in interest should so desire, to take over the right or title in question and pay adequate compensation therefor.

Four. The Government of the United States is prepared, in response to the wish of the Chinese Government, to concur in the deletion from Article V of the American draft of the words “and to the carrying on of commerce”, and is agreeable to deferment of this subject for regulation in the comprehensive treaty to be negotiated in future.

Five. As regards the amendment to Article VI of the American draft proposed by the Chinese Government, it has been the concept and assumption of the Government of the United States that upon the abolition of extraterritoriality and related special rights in China the Chinese Government would of course wish to accord to the United States, its officers and other nationals rights similar to those normally enjoyed in friendly countries under modern international practice. In the light of this concept and assumption and of the favorable attitude which this Government has adopted and is prepared to continue toward requests of the Chinese Government for the opening of Chinese consular offices in American territory, and in the expectation that the Chinese Government would not perceive objection to the opening of American consular offices at such places in China as would be appropriate, this Government would be inclined not to raise objection to the suggested change.

Six. As mentioned heretofore, it has been the concept of the Government of the United States that the interests of both countries could best be served at this time by the conclusion of a brief treaty along broad general lines and containing no unnecessary particularization. Nevertheless, while some of the matters mentioned in the suggested exchange of notes (such as special courts in the International Settlements at Shanghai and Amoy) would seem to be covered in general by the provisions of the draft treaty, and some other points (such as inland navigation and the visits of foreign warships) are not actually related to the question of extraterritoriality, the Government of the United States perceives no objection to an exchange of notes covering various matters of interest to either Government.

In this connection there is appended a suggested new draft note from the Chinese Government to cover various questions raised by the Chinese Government, including the questions of coasting trade, inland navigation and visits of naval vessels, as well as matters which the Government of the United States would, for its part, wish to be covered in such exchange of notes. As regards the questions of coasting trade, inland navigation and visits of naval vessels, these questions were mentioned by the Chinese Foreign Minister before his recent departure for China and the Chinese Government appears to desire that these subjects be covered in the exchange of notes supplemental to the treaty; accordingly the Government of the United States has endeavored to meet the Chinese wishes in this respect in an appropriate manner.

Washington, November 27, 1942.

[Annex]

Draft Exchange of Notes Between the United States and China

. . . . . . ., 1942.

Excellency: Under instruction of my Government, I have the honor to state that in connection with the treaty signed today by the Government of the Republic of China and the Government of the United States of America, in which the Government of the United States of America relinquishes its extraterritorial and related special rights in China, it is the understanding of the Government of the Republic of China that the rights of the Government of the United States of America and of its nationals in regard to the systems of treaty ports and of special courts in the International Settlements at Shanghai and Amoy and in regard to the employment of foreign pilots in the ports of the territory of China are also relinquished. In the light of the abolition of treaty ports as such, the Government of the Republic of China desires to make known that the following ports in its territory are considered to be open to overseas merchant shipping of the United States of America: [It is assumed that here the Chinese Government will wish to insert the names of the ports which are normally open to foreign commerce with, and to the overseas merchant shipping of, friendly countries.]⁹⁴

As regards the question of the treatment of overseas merchant shipping, it is mutually understood that the vessels of each country shall be permitted freely to come to the ports, places, and waters of the other country which are or may be open to overseas merchant shipping and that the treatment accorded such vessels in such ports, places, and waters shall be no less favorable than that accorded to national vessels and shall be as favorable as that accorded to the vessels of any third country.

It is mutually understood that the Government of the United States of America relinquishes the special rights which naval vessels of the United States of America have been accorded in the waters of the Republic of China and that the Government of the Republic of China and the Government of the United States of America shall extend to each other the mutual courtesy of visits by their warships in accordance with international usage and comity.

While the question of rights in connection with the coasting trade and inland navigation in the waters of the Republic of China is not related to extraterritorial jurisdiction and is a matter which it is appropriate to reserve for the comprehensive treaty of commerce, navigation, et cetera which is to be negotiated subsequently by the two Governments, it is mutually understood that the Government of the United States of America relinquishes the special rights which vessels of the United States have been accorded in connection with the coasting trade and inland navigation in waters of the Republic of China and that, while the Government of the Republic of China reserves the right to limit the coasting trade and inland navigation to the Chinese flag, the Government of the Republic of China does not contemplate applying restrictions which would have the effect of making material alterations in the existing practice pending the making of further arrangements between the two Governments. It is further understood that it is the concept and intention of the Government of the Republic of China and the Government of the United States of America that questions in regard to coasting trade and inland navigation will be resolved on the basis of what is normal and usual in modern international practice between friendly countries.

It is mutually understood that questions which are not covered by the present treaty and exchange of notes and which may affect the sovereignty of the Republic of China 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.

[If the Chinese suggestion of a reference to a restriction on the right of alienation of existing rights and titles to real property is included in Article IV:]⁹⁵ With reference to Article IV of the treaty, the Government of the Republic of China hereby declares that the restriction on the right of alienation of existing rights or titles to real property referred to in that article will be applied by the Chinese authorities in an equitable manner and that if and when the Chinese Government declines to give assent to a proposed transfer the Chinese Government will, in a spirit of justice and with a view to precluding loss on the part of American nationals whose interests are affected, undertake, if the American party in interest so desires, to take over the right or title in question and to pay adequate compensation therefor.

It is mutually understood that the orders, decrees, judgments, decisions and other acts of the United States Court for China and of the Consular Courts of the United States of America in China shall be considered as res judicata and shall, when necessary, be enforced by the Chinese authorities. It is further understood that any cases pending before the United States Court for China and the Consular Courts of the United States of America in China at the time of the coming into effect of this treaty shall, if the plaintiff or petitioner so desires, be remitted to the appropriate courts of the Government of the Republic of China which shall proceed as expeditiously as possible with their disposition and in so doing shall in so far as practicable apply the laws of the United States of America.

I shall be much obliged if Your Excellency will confirm the foregoing.

I avail myself of this opportunity to renew to Your Excellency the assurances of my highest consideration.

93. Handed on November 27 to the Minister Counselor of the Chinese Embassy by Mr. Hornbeck and Mr. Atcheson (see memorandum of conversation, supra). A summary was sent to the Ambassador in China in Department’s telegram No. 1159, November 27, 7 p.m.
94. Brackets appear in the original.
95. Brackets appear in the original.