711.932/19
The Ambassador in China (Gauss) to the Secretary of State
No. 2441
Chungking, April 17,
1944.
[Received May 3.]
Sir: With reference to my telegram no. 663 of
April 15, 5 p.m., in regard to the commercial treaty to be negotiated
between the United States and China, I have the honor to enclose for the
confidential information of the Department, copy of a memorandum submitted
to me by Third Secretary Freeman of the Embassy …
. . . . . . . . . . . . . .
Of special interest is the proposal that the treaty shall provide for
Americans the same rights as nationals of China in regard to patents,
trademarks, and copyrights. Mr. Freeman did not see the article of the
treaty but his informant stated directly what the treaty provided on the
subject.
[Page 1016]
The reference to the activities of missionary organizations is also of
interest; also the comment on coastal trade.
There was, however, no discussion on or reference to the subject of trading
rights of foreign nationals—on the commercial aspects of the treaty which
are of vital importance to American interests.
I have suggested in my telegram to the Department that we get on with the
drafting of our treaty, in order that such draft may be presented in the
near future.
It appears from Mr. Freeman’s memorandum that the Ministry of Justice was
instructed to hasten its examination of the Foreign Office draft. As we know
that Dr. Wei Tao-ming is shortly to return to his post as Ambassador at
Washington, it is likely that the Foreign Office wishes to complete the
examination of the draft in order that it may be carried back by Dr.
Wei.
I have, from time to time, had some casual conversation with the Director of
the Treaty Department of the Foreign Office, in regard to the treaty work on
which he is engaged, and have known from him that studies were being made
for the new Sino-American commercial treaty; but, heretofore, nothing has
come to us to suggest what the Chinese draft would cover.
Needless to say, the Embassy hopes that the source of Mr. Freeman’s
information will be carefully protected.
Respectfully yours,
[Enclosure]
Memorandum of Conversation, by the Third Secretary of
Embassy in China (Freeman)
[Chungking,] April 15, 1944.
On April 13, … of the Ministry of Justice called to see me to ask whether
he might have the loan for a few days of Hyde’s International Law. He said that he was engaged in checking the
draft of the proposed commercial treaty with the United States and
wished to look up several questions. He also discussed the Chinese
equivalent of “misdemeanor” as used in our treaties. I expressed
interest in the fact that he was engaged in checking a draft treaty with
the United States, whereupon he asked whether I had yet seen it; I
replied that I had not, but was of course much interested in it. He
suggested that I drop in at his office this morning and he would show me
the draft. Wishing to pick up the 2 volumes of Hyde’s International Law at that time, I accepted the invitation and
called on him this morning. … told me then that he had been informed
that the draft he was examining was secret, and he could not show it to
me; but he nevertheless brought out the Chinese and English texts of the
draft in my presence and I had the opportunity to observe two articles
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closely in addition to
discussing other aspects of the treaty in a general fashion—all at his
instance and with no urging from me. The points as I recall them may be
summarized as follows:
- 1.
- Article II compares almost word for word with paragraph 3,
Article I of our treaty with Liberia;19 namely, “The nationals of
each High Contracting Party shall enjoy freedom of access to the
courts of justice of the other on conforming to the local laws,
as well for the prosecution as for the defense of their rights,
and in all degrees of jurisdiction established by law.” Nothing
is said about having rights equal to nationals or nationals of
the most-favored nation.
- 2.
- Another article appeared to be almost identical with Article
II of our consular convention with Liberia,20 exempting
consular officers from arrest except when charged with crimes
other than misdemeanors, requiring consular officers to serve as
witnesses in criminal cases and suggesting that officers should
voluntarily give testimony at trials in civil cases though not
demanding such testimony.
- 3.
- The same rights as nationals are guaranteed in regard to
patents, trademarks, copyrights, etc.
- 4.
- In response to a question … stated that the treaty would not
restrict Chinese coastal trade to Chinese vessels alone,
although I could get no information as to whether such rights
would be restricted by the most-favored-nation clause.
- 5.
- … stated that consular officers would be deemed qualified to
act as administrators of estates of nationals who had died
intestate and that the estates would be administered in
accordance with the laws of the state or territory where
deceased had had legal residence.
- 6.
- He also stated that, under the new treaty, missionary
organizations would be permitted to establish and conduct
churches, hospitals, schools, etc., in any part of China. In
answer to a question with regard to the existing regulations
which prohibit foreign missions from operating primary schools,
… responded that those regulations were old and would be
superseded by the provisions of the new treaty, thus permitting
missionaries to operate schools of all classes.
- 7.
- The clause regarding compulsory military service appears to
conform more nearly to that in our treaty with Siam exempting
nationals of one Party residing in the territories of the other
from compulsory service of any kind, rather than the clause in
the Liberian treaty permitting drafting if permanent residence
has been established and the intention to become naturalized has
been declared.
- 8.
- In answer to another question … stated that, as provided in
the draft treaty, American nationals would be permitted to
travel and reside in any part of China and that they would enjoy
the same rights of protection and security as Chinese nationals,
rather than a greater degree of protection such as foreign
nationals have enjoyed in the past.
I gained the impression from talking with … and from glimpsing the
English and Chinese copies of the draft treaty that the
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treaty is in almost final form and is
practically ready for presentation to our Government authorities. The
English text was typewritten, double space, and appeared to number
approximately 25 pages. I was told that both the English and Chinese
texts had been prepared and approved by the Ministry of Foreign Affairs
and that the drafts had been forwarded to the Ministry of Justice for
criticism and checking. … stated, however, that he had been given less
than a week to make his suggestions and criticisms and that the Ministry
of Foreign Affairs was anxious to have the texts returned in the
shortest possible time. He also confirmed my impression that the draft
was originally written in English and later translated into Chinese, for
the Ministry of Foreign Affairs had particularly requested the Ministry
of Justice to check the Chinese translation of the English legal terms
used.
When questioned as to whether the Chinese Embassy in Washington had
already been provided with copies of the draft texts … replied that he
did not think so inasmuch as Dr. Wei Tao-ming is now in Chungking.
