793.003/1001: Telegram
The Secretary of State to the Ambassador in the United Kingdom (Winant)
5758. Department’s 5325, October 27, 5 p.m.; 5656, November 11, 6 p.m.; 5658, November 11, 8 p.m.;78 and your 6401, November 13, midnight.
[Page 356]One. [Here follows summary of memorandum dated November 13, printed on page 350.]
Two. For the information of the British Foreign Office, we perceive no objection to covering in an exchange of notes, if the Chinese continue in their desire therefor, such questions as foreign pilots, special courts and treaty ports, especially, as regards the latter, if there is included in the body of the treaty some appropriate provision relating to inland navigation which would grant us reciprocal rights. For our part we might have one or two additional matters to cover in such notes as, for example, the question of the disposition of cases pending before the United States Court for China. While we have not yet obtained sufficient factual information in regard to the number, kind and importance of such cases, it is understood that they are chiefly bank receiverships and estates in occupied China, and that some of the estates are being handled informally by the Swiss authorities in that area. In the light of the impossibility in the near future of formally adjudicating such matters in occupied China, we are inclined to the view that the simplest way of disposing of them would be to include in the suggested exchange of notes a stipulation somewhat as follows:
“It is mutually understood that the orders, decrees, judgments, decisions and other acts of the United States Court for China and of the Consular Courts of the United States in China shall be considered as res judicata. It is further understood that any cases pending before the United States Court for China and the Consular Courts of the United States in China at the time of the coming into effect of this treaty shall be remitted to the appropriate courts of the Government of the Republic of China which shall proceed as expeditiously as possible with their disposition and in so doing shall in so far as practicable apply the laws of the United States.”
The British Government doubtless has a similar problem in regard to the British courts in China.
Three. There would seem now to be three important questions for decision, as follows:
(1) The question of the additional article which the Chinese have suggested be adopted as Article I. As we have indicated, the Department feels strongly that we should not concur in the suggested inclusion of such article.
(2) The questions of inland navigation, et cetera. We have given careful thought to the questions of the special rights which vessels of the United States have been accorded with regard to coastal trade and inland navigation and the special rights which naval vessels of the United States have been accorded in the waters of China. These questions were raised by the Chinese Foreign Minister orally before his recent departure for China; they were raised again orally by the Chinese Minister Counselor on October 26; they were raised in the [Page 357] document which the Chinese Ambassador handed to me on November 10 and they were raised for the fourth time by the Minister Counselor on November 13.
As indicated in the Department’s 5325, October 27, 5 p.m., paragraph 2, our inclination in general has been toward including in the treaty some appropriate provisions on these subjects, especially if the Chinese should so desire. It has become apparent that the Chinese definitely desire the inclusion of such provisions in the treaty or in a supplemental exchange of notes. Our impression is that the Chinese will be insistent in this respect because, for one thing, the rights in China which we possess in regard to coastal trade and inland navigation (including navigation of inland waters by our naval vessels) are special and unilateral rights and, for another thing, those rights, although not actually related to extraterritoriality, are strongly associated in both the Chinese official and public mind with extraterritoriality.
Throughout the course of our talks with Chinese officials we have repeated and emphasized that we do not have any thought of seeking to reserve or retain or to obtain from China anything that is not normal and usual in international relations; that it has been our concept and assumption that the brief treaty would once and for all eliminate the anomalies in the relationships between the two countries; and that the primary objective of the treaty is to accomplish the abolition of extraterritorial and other special rights and to take care of such additional matters as require attention because of the abolition of rights of a special character.
It would be most unfortunate if the signing of the treaty should be delayed because of difficulty over questions relating to any special rights which it has been our intention in general to take care of by means of the treaty. In all probability the existence of difficulties in regard to important issues would not remain long unknown to the public in China or in this country. Any unwarranted delay in the signing of the treaty would of itself probably furnish indication of the existence of controversy or other important difficulty. We feel sure that public opinion here would be adversely critical of any development which might have the appearance of an endeavor to retain important special and unilateral rights which we for our part are not in position to grant to the Chinese.
In the light of the above, we would suggest that the British Government might wish to give further consideration to the question of adopting an article along the general line of ours. In this connection we have of course taken note of Mr. Eden’s statement in his letter of November 12 mentioned above that, if the inclusion in the treaty of [Page 358] such additional article should become unavoidable, the British Government would be agreeable thereto although it would wish to bring the wording in the British draft in line with comparable provisions in other British treaties.
We accept the suggestion of the British Foreign Office that the words “overseas merchant shipping” be substituted for the words “foreign commerce” in paragraph 2 of our suggested article following reference to the ports, places, and waters which are to be opened to overseas merchant shipping. (We do not interpret the phrase “and carry on trade” in Article V of our draft as granting or implying rights of inland navigation, et cetera.)
(3) The question of the clause in regard to commerce in Article V. It will be recalled that we concurred in the suggested inclusion of this clause at the earnest request of the British Government although we felt that it might logically be regarded as one of the questions to be considered in the later comprehensive treaty. As indicated in One (4) we for our part would not object to deleting from Article V the words “and to the carrying on of commerce” but would be pleased to receive the further views of the British Government in the matter.
Four. Our draft treaty was presented to the Chinese Government on October 24. We are, for obvious reasons, desirous of proceeding expeditiously toward agreement with the Chinese on the final draft. It would be gratifying to us if the treaty could be signed within the next three or four weeks.