893.00/11–3049
Memorandum by the Director of the Office of Chinese Affairs (Sprouse) to the Assistant Secretary of State for Far Eastern Affairs (Butterworth)
Chou En-lai’s note as reported in Peiping’s telegram No. 2129 November 30 is not entirely clear. There would seem to be no objection to the statement that no matter where the defeated troops of the National Government flee, the Communists reserve “the right to take up this matter.” But his subsequent statement that the government of any country which “gives shelter” to Nationalist armed forces must take responsibility in this regard and must accept all consequences arising therefrom, is ambiguous in that it is not clear whether he refers to shelter to armed forces which have been disarmed and interned by the neighboring country or whether he has in mind shelter to armed forces which retain their arms and independent command structure. From his earlier reference to bases for staging a comeback at an opportune moment, the latter might be inferred.
From a discussion with Mr. Snow in L4 and Dr. Bacon,5 it appears that the legal aspects of the matter may be summarized as follows: Countries adjoining China are under obligation to disarm and intern Chinese armed forces of either side which cross into their territories. The French are informing Chou En-lai that they will take these steps. However, it is reasonably certain that considerable portions of the frontier between Indochina and China are not under effective French control and there is some doubt that the French would in all cases be able to carry out this action promptly, if at all. The legal situation which would arise in the event that the French did not so disarm and [Page 624] intern Chinese armed forces entering their territory is not clear-cut. It is believed that French failure to take this action would constitute grounds for a complaint by the Chinese against the French authorities. In some cases failure of an adjacent country to prevent the use of its territory for the assembling of armed forces hostile to a neighbor has been used to justify action by the other party, as for example in the case of the US and Mexico in connection with Villa.6
The legal situation is somewhat further confused by the fact that neither the French nor the US recognize the Chinese Communist regime. Consequently neither the US nor French would from a strictly legal standpoint consider that that regime has any rights as a government. However, from a practical standpoint, it is believed that the views outlined above remain applicable. Certainly we could not hope to impress the Chinese Communists with a legal argument based on their not being a government and not enjoying any rights as such.
It is believed that under the circumstances no reply should be made to the note in question7 for the following reasons: (1) The legal situation is not clear-cut and any attempt to bring to Chou’s attention the principles of international law applicable to the case would be so hedged and qualified as to impress him little and would almost inevitably lead us into a discussion of French obligations to disarm and intern retreating armed forces—an obligation which the French may not be able to discharge and which we perhaps should not emphasize; (2) We are not directly a party of interest in the matter, and the French, who have replied to the note, have not asked for our assistance or support.
It is not believed that our failure to reply could be properly construed as acquiescence, since (1) We do not recognize the Communist regime and are consequently under no obligation of any sort to reply to its notes; and (2) the wording of the note itself is so ambiguous as to permit differing interpretations.
- Conrad E. Snow, Assistant Legal Adviser for Political Affairs.↩
- Ruth E. Bacon, United Nations Adviser of the Bureau of Far Eastern Affairs.↩
- For documentation, see Foreign Relations, 1916, pp. 483 ff.↩
- Marginal notation by the Deputy Assistant Secretary of State for Far Eastern Affairs (Merchant): “I agree. LM”.↩