The Secretary of State to the Ambassador in China ( Stuart )
926. 1. Following is text Senate resolution June 2, approving FCN treaty:
“Resolved (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the ratification of Executive J, Eightieth Congress, first session, the Treaty of Friendship, Commerce, and Navigation between the United States of America and the Republic of China, together with a protocol thereto, signed at Nanking on November 4, 1946, subject to the following reservation:
The Government of the United States of America does not accept section 5 (c) of the protocol relating to protection against translations of literary and artistic works, and with the understanding that United States interests in this respect will be interpreted in accordance with the provisions of the treaty as to commercial relations signed at Shanghai, October 8, 1903, until further negotiations and agreement concerning translations are forthcoming. The United States stands ready to enter into immediate negotiations with China for further improvement in copyright relationships with particular emphasis upon the desire of the United States to afford protection of translations. The Senate is of the opinion that the protection of the author of literary and artistic property in the exclusive right to translate or authorize the translation of his works is of importance as a matter of justice to the author and is of equal importance as a means for assuring a true translation and faithful presentation for peoples who must receive it in a language other than the original. Under present-day conditions, such protection is essential to promote effective diffusion of literary and artistic works and to encourage responsible industries engaged in the production of such works within a country.
The Senate further understands that the treaty does not obligate either party to extend most-favored-nation treatment with respect to copyright.”
You are requested to seek soonest interview appropriate official Fonoff and inform him Senate has approved treaty in accordance US constitutional procedure, that US will be prepared early date exchange ratifications, and that Dept wishes be informed soonest whether Chinese Govt prepared exchange ratifications with reservation. You should hand him copy Senate resolution quoted above and in referring to reservation explain that it is a substitution, for Protocol 5 (c), of a provision of comparable substance from a former treaty. It is Dept’s hope that, in view of this fact, FonOff, with concurrences Exec. Yuan and Gimo,3 will regard acceptance reservation as matter within province [Page 754] Exec. Branch. You should, therefore, not bring up subject of referring reservation to Legislative Yuan but should present subject in such a way as to avoid, if possible, that procedure. Dept desires this approach be used because in view present anti-American and anti-Chinese Govt agitation Dept doubts whether assent present Legislative Yuan to reservation can be obtained and fears whole question of treaty would be raised again if reservation presented that body for assent. Emb will recall that immediately after signature treaty Fonmin4 hastened obtain ratification before election and convening of new Legislative Yuan because he gravely doubted new body would give approval. Ratification was obtained only 5 days after signature of treaty, shortly before dissolution Legislative Yuan. Written record of Chinese acceptance reservation may properly be limited to appropriate mention in protocol of exchange of ratifications.
In discussing reservation you should state that during consideration treaty Senate For. Rel. Comm. and individual Senators received many protests from authors and publishers against Protocol 5 (c), condemning Dept for recognizing in international agreement what senders considered highly objectionable principle of non-protection against translation, thus establishing bad precedent and taking backward step as to development international copyright relations. If questioned as to intent of reservation, you may utilize following quotations from Report of For. Rel. Comm.5
“As compared with our rights under treaty of 1903, present treaty would afford considerably improved protection for Americans with respect to copyright generally; with respect to translations, it would not appreciably change situation … The Committee had serious objections to the acceptance by the US, in a new and modern treaty, of section 5 (c) of the protocol, which continues the principle of excluding translations from protection. The Committee therefore recommends that Senate do not accept this section, but maintain status quo under earlier treaty of 1903. The relevant provisions of the treaty of 1903 are admittedly inadequate in this respect, but it is felt that further progress can be made and equitable trade practices developed to mutual satisfaction in later negotiations.”
For your information purpose of Senate in adding final sentence to reservation not clear, but since treaty contains no MFN6 provision relating to copyright, the sentence should cause no difficulty.
2. Dept also wishes obtain Chinese agreement to interpretative statement to be included in exchange notes at time exchange treaty ratifications to following effect:[Page 755]
“The provisions of the present Treaty shall not preclude action by either party which is required or specifically permitted by the General Agreement on Tariffs and Trade7 or by Chap IV of the Havana Charter for an International Trade Organization8 during such time as such party is a contracting party to the General Agreement or is a Member of the ITO.”
Paragraph 2 (c) Art. XXVI originally included in treaty for purpose of permitting certain action pursuant to multilateral commercial arrangements then in planning stage. Since GATT now in effect and text ITO Charter now before Govts for ratification Dept considers desirable state more specifically that treaty provisions not intended interfere with obligations or privileges of parties to GATT or ITO Charter. Italy will be asked agree similar exchange notes at time exchange ratifications pending treaty.9
3. Another problem Dept desires deal with in exchange notes at time exchange treaty ratifications concerns Trust Territory Pacific Islands. Trusteeship Agreement concluded July 18, 1947 between US and UN Security Council,10 inter alia designates this Territory as a strategic area and US as administering authority with power to close parts or all of Territory for security reasons. Furthermore, under Art. 8, paragraph 1 of Trusteeship Agreement, members of UN, including China, are granted, subject to security considerations and welfare of inhabitants, MFN treatment in Territory. For these reasons and in view of special responsibilities of US toward inhabitants of Territory, Dept desires obtain adherence Chinese Govt to agreement excepting Trust Territory from territorial coverage of treaty and also excepting advantages which US might grant that Territory from application MFN provisions of treaty. Such an agreement accords with opening phrase Art XXVII of treaty which contemplates possible future agreements limiting territorial coverage. As far as known, Chinese interests would not be affected by proposed exception of Territory from treaty obligations. Effect proposed exchange notes would be same as if words “and the Trust Territory of the Pacific Islands” were added after words “Panama Canal Zone” at end of Art XXVII and in first sentence Art XXVI (4) of treaty. Exception in above sense included in treaty with Italy, and Dept plans include it in future FCN treaties. Referring to phrase in Art 8 (1) Trusteeship Agreement, which would permit nationals and companies of administering authority to receive more favorable treatment than [Page 756] that accorded nationals and companies other United Nations, US representative in Security Council stated: “…12 the US Govt has no intention, through this clause or any other clause, of taking advantage for its own benefit, and to the detriment of the welfare of the inhabitants, of the meager and almost nonexistent resources and commercial opportunities that exist in the scattered and barren islands. …”12
4. Dept hopes Emb can obtain prompt agreement Chinese Govt to above proposals in order that treaty may be put into effect without delay. Upon receipt of telegraphic reply, which should be expedited, Dept will forward drafts necessary notes.
- Chiang Kai-shek, President of the National Government of the Republic of China.↩
- Wang Shih-chieh, Chinese Minister for Foreign Affairs.↩
- Senate Foreign Relations Committee, Executive Report No. 8. Treaty of Friendship, Commerce, and Navigation With China, 80th Cong., 2d sess.↩
- Signed at Geneva, October 30, 1947, Treaties and Other International Acts Series No. 1700, or 61 Stat. pts. 5 and 6.↩
- Department of State, Havana Charter for an International Trade Organization, March 24, 1948 (Washington, Government Printing Office, 1948), p. 23.↩
- Signed at Rome, February 2, 1948; Treaties and Other International Acts Series No. 1965, or 63 Stat. (pt. 2) 2255.↩
- Treaties and Other International Acts Series No. 1665. or 61 Stat. (pt. 3) 3301.↩
- Omission indicated in the original telegram.↩
- Omission indicated in the original telegram.↩