711.932/10–3148: Telegram

The Ambassador in China ( Stuart ) to the Secretary of State

2046. Legislative Yuan October 26 passed resolution regarding Senate reservation. Translation accurate newspaper text follows in separate telegram. Resolution approved Senate reservation regarding section 5 C of Protocol. It stated that “rights with respect to literary and artistic works referred to in third sentence article IX of Treaty” shall be interpreted according relevant provision Treaty 1903, and authorized Chinese Government to exchange ratifications with the US in accordance with the understanding expressed in the Yuan’s resolution. It closed with statement regarding purpose translations and authorized government negotiate copyright agreement in conformity spirit article XI of Treaty 1903. Foreign Office attempting expedite transmittal official text Yuan resolution to Executive Yuan and Foreign Office. Action thereon and decision regarding wording Protocol must await Foreign Minister return scheduled November 2 or 3. As President Chiang signed document of ratification November 11, 1946, Embassy assumes exchange ratification now awaits agreement on wording of Protocol and arrival American instrument.

It is noted that (a) above quoted wording failed to specify translations; (b) resolution inadvertently omitted reference to understanding expressed by Senate regarding MFN treatment; and (c) avoided reference to Senate resolution. Because of omission Legislative Yuan resolution the position of Treaty Department regarding Protocol even more uncertain than at time of Embtel 1955, October 21. Spokesman wonders whether Protocol will have to make reference to (or append texts of) both Legislative Yuan resolution and Senate resolution, and whether further reference must be made to Legislative Yuan to obtain language specifying that rights of translation will be interpreted according to Treaty 1903. He believes in interest of speed Foreign Office should avoid further reference to Yuan and that Foreign Minister can give assurance without reference to Yuan that Senate understanding regarding MFN treatment acceptable Chinese Government. Treaty Department still wishes amend language paragraph 2 (2) of Protocol in view strong views of its director (who accompanied Foreign Minister to Paris) and Foreign Minister’s prior consideration thereto. Foreign Office position based on strong rejection by Legislative Yuan of opinion expressed in Senate resolution regarding right of author to protection of translations. Spokesman feels suggested Foreign Office amendment can be revised to read “the provisions of article XI relating to translations being excepted.” However, [Page 770] position contained Deptel 1435, October 12 will be presented to Foreign Minister on his return.

Treaty Department states Foreign Minister will probably prefer to exchange notes regarding GATT, ITO and Trustee Territories within few days after exchange of ratifications so as to avoid publicity thereon and thereby escape almost certain Legislative Yuan protests that all changes in the FCN Treaty had not been referred to it for prior approval.

Embassy feels that amended language suggested informally by Treaty Department would meet Department objection raised point 4 Deptel 1435, October 12. Objection point 3 can be met by Foreign Minister specifying in Protocol that Senate understanding regarding MFN treatment acceptable to Chinese Government. With regard Department’s position stated on point 1, main purpose of Foreign Office in seeking amendment seems to be to eliminate direct or indirect reference to portions of Senate resolution which Chinese Government finds objectionable. This, Foreign Office believes, can be done by clarifying reservation and understanding in Protocol, by reference to Legislative Yuan resolution, or by appending Legislative Yuan resolution. Embassy believes an amendment paragraph 2 desirable if amendment has result of avoiding reference to appending Legislative Yuan resolution which both Embassy and Foreign Office find inadequate. Foreign Minister will consider Department view that article XI need not be kept in force [. Embassy] recommends that ITO, GATT, Trustee Territory notes be exchanged as proposed by Foreign Office.

Embassy believes it essential in US interest to reach agreement and expedite exchange of ratification. Chinese Government as now composed, in Embassy opinion, will ratify treaty quickly subject to Senate reservation regarding section 5 (c) of Protocol and Senate understanding that protection of American interests regarding translations to be based on provisions of Treaty of 1903. There is no assurance, however, that any successor government would be similarly disposed and as Department is aware, fall this Government is within range of immediate possibilities. Accordingly Embassy strongly recommends that (a) it be granted by Department maximum discretion in agreement to language for Protocol of exchange of ratification and (b) Department do all possible physically to speed to Embassy instruments of ratification even though agreement not yet reached regarding wording Protocol in order to enable immediate exchange if and when agreement reached.