The Secretary of State to the Ambassador in China (Gauss)
Sir: There is enclosed for your convenience a draft of a proposed Consular Convention between the United States and China which has been prepared in the Department.1
The provisions of the enclosed draft of a Consular Convention in general follow the provisions with regard to the rights, exemptions and immunities of consular officers which have been included in recent treaties or conventions between the United States and other countries, such as the Treaty of Friendship, Commerce and Consular Rights with Germany (1923);2 the Treaty of Friendship, Commerce and Consular Rights with Finland (1934);3 the Consular Convention with Liberia (1938);4 and the Convention Concerning Consular Officers with Mexico (1942).5 Copies of these treaties and conventions are enclosed. Certain phraseological changes and certain minor substantive changes have been made in the provisions as included in the enclosed draft of a Convention with a view to greater clarity or with a view to meeting problems which have arisen recently with other countries.
The Department would appreciate receiving any comments or suggestions with regard to the enclosed draft of a Consular Convention which you may have to offer.
As you are aware, the Department has been working for some time upon a draft of a proposed Commercial Treaty between the United States and China.6 It is hoped that the draft of a Commercial Treaty or sections of the draft will be in form to send to you for your consideration and comment before long. It is the feeling of the Department that if the drafting of the proposed Commercial Treaty with China is completed in the near future, drafts of the Consular Convention and of the Commercial Treaty, revised in the light of any comments which you may have to offer, might be presented simultaneously [Page 1024]by you to the Chinese Government if an opportune occasion arises. If on the other hand the reaching of decisions upon certain difficult points in connection with the draft of a Commercial Treaty should lead to a considerable delay in the completion of the draft, it is the Department’s feeling that it might be desirable to proceed with the presentation to the Chinese Government of the draft of a Consular Convention without awaiting the completion of the draft of a Commercial Treaty.
There are given below comments upon certain provisions of the enclosed draft of a Consular Convention which the Embassy may find helpful in considering this draft.
- Articles I and XVI: Relation between the Extraterritoriality Treaty and the proposed Consular Convention. It is stipulated in the draft (Article I) that the provisions of the Consular Convention shall supplement the provisions of Article VI of the Treaty Between the United States and China of January 11, 1943, for the Relinquishment of Extraterritorial Rights in China and the Regulation of Related Matters,7 and it is also stipulated in the draft (Article XVI) that all provisions of the Extraterritoriality Treaty and accompanying Exchange of Notes are to remain in full force and effect. In some cases, in order to make the Convention complete in itself, matters covered in the Extraterritoriality Treaty have also been covered expressly in the draft (e. g., Article II relating to exequaturs and Article VIII relating to notification with regard to the arrest of nationals, et cetera). In such cases, either the exact wording of the Extraterritoriality Treaty has been followed or phraseology used which is intended to supplement but not to conflict with the provisions in the Extraterritoriality Treaty.
- Article II, paragraph 1: Recognition, exequaturs, et cetera. The first sentence of this paragraph relating to the giving of written notice of the appointment of consular officers and requesting recognition for them has been added because of problems which have arisen in recent years. The Department has proposed inclusion of a similar provision in the draft of a Consular Convention which is now under negotiation between the American and British Governments.
- Article II, paragraph 2: Definition of “consular officers” as excluding honorary consuls and vice-consuls. In paragraph 2 of Article II (last sentence) it is provided that the term “consular officers” as used in the draft includes “consuls general, consuls and vice consuls who are not honorary”. This provision is believed to be desirable in view of the subsequent provision (Article XV) specifying the rights, exemptions and immunities which are to be enjoyed by honorary consuls and honorary vice consuls. The draft in this respect follows the general lines of the Mexican Convention.
- Article II, paragraph 4: Dual commissioning. It will be noted that the provisions relating to dual commissioning which were first incorporated in the Mexican Convention have here been revised. This revision was felt to be desirable by concerned offices of the Department.
- Article III, paragraph 1 (last sentence) and elsewhere in the Convention: Employees in a Consulate. The privileges and exemptions of consular officers have been extended to employees in a consulate in a number of instances in the draft.
- Article IV, paragraph 1: Provisions relating to land. Provision is here made for the Government of either High Contracting Party to acquire and hold (as well as lease) land in the territories of the other High Contracting Party required for diplomatic or consular purposes. A similar provision is contained in the Treaty of Friendship, Commerce and Navigation between the United States and Siam (1937),8 Article XIV. Provision for the acquisition of land by the Governments of the two countries concerned has been included in this draft in as much as the Department hopes to be able to include in the draft of a Commercial Treaty provision for the acquisition of land by the nationals of either High Contracting Party in the territories of the other but the precise basis on which land may be acquired by such nationals is still under study.
- Article IV, paragraph 2: Exemptions from taxation in respect of land and buildings. Provisions relating to this subject in other treaties and agreements concluded by the United States have here been revised and rephrased.
- Article VI: Exemptions in respect of customs duties. The provisions of this Article have been drafted with a view to taking account of the procedure laid down in the exchange of notes between the American and Chinese Governments in 1930,9 in as much as it is intended that these notes shall be terminated upon the entrance into force of the Convention as provided in Article XVII.
- Article IX: Notarial functions. In paragraph 1 (a) provision for “oaths” and “affirmations” has been made. In general this Article differs somewhat in phraseology from the relevant Articles in the Liberian and Mexican Conventions. These changes have been made for purposes of clarity. Any comments which you may have to offer with regard to this Article would be especially appreciated.
- Article XVI: Termination of provisions in certain existing treaties or agreements relating to the rights, privileges and immunities of consular officers. The separation of the Articles relating to consular rights, privileges and immunities from the draft of a Commercial Treaty has presented difficulties in connection with the question of the termination of provisions in existing treaties or agreements between the United States and China which relate to the rights, privileges and immunities of consular officers. Article XVI of the enclosed draft relating to the termination of such provisions in existing treaties or agreements other than the Extraterritoriality Treaty has been drafted on the assumption that the proposed Consular Convention would enter into force prior to the entrance into force of the proposed Commercial Treaty. If both the Consular Convention and the Commercial Treaty should be ratified simultaneously it would probably be possible to arrange for the exchange of ratifications of the Consular Convention to precede the exchange of ratifications of the Commercial Treaty.
- Omission of provisions relating to exemptions for officials other than consular officials. The Liberian Convention contains provisions whereby certain of the exemptions accorded in the Convention to consular officers are extended also to other officials “who are duly appointed by one of the High Contracting Parties to exercise in its behalf essential governmental functions in the territory of the other High Contracting Party” (paragraph 2 of Articles III and IV). Similar provisions were included in the Mexican Convention (paragraph 2 of Articles III and IV). However, these provisions have not been included in the enclosed draft because it is felt that such provisions would result in extending the exemptions in question to a very considerable number of Chinese officials (there are approximately one thousand Chinese “officials” in the United States at the present time), while the number of American officials in China to whom the exemptions would be extended would be relatively small.
Very truly yours,
- Not printed.↩
- Signed December 8, 1923, Foreign Relations, 1923, vol. ii, p. 29.↩
- Signed February 13, 1934, Department of State Treaty Series No. 868, or 49 Stat. 2659.↩
- Signed October 7, 1938, Treaty Series No. 957, or 54 Stat. 1751.↩
- Signed August 12, 1942, Treaty Series No. 985, or 57 Stat. 800.↩
- For correspondence on this subject, see pp. 1008 ff.↩
- Treaty Series No. 984, or 57 Stat. 767.↩
- Signed November 13, 1937, Treaty Series No. 940, or 53 Stat. 1731.↩
- Foreign Relations, 1930, vol. ii, pp. 636–637.↩