793.003/1007a: Telegram
The Secretary of State to the Ambassador in the United Kingdom (Winant)83
5859. Department’s no. 5440, October 31, 3 p.m. to London and paragraph numbered 3 of no. 1075, November 13, 11 a.m., to Chungking.84
1. During his call at the Department on November 13, the Minister Counselor of the Chinese Embassy discoursed at some length on the Chinese aversion to the “most favored nation” clauses which in the old extraterritorial treaties with China had worked, he said, to China’s great disadvantage almost from the very beginning of extraterritoriality in that country. He indicated that enlightened Chinese officials of course understood the use of the clause in modern treaties concluded between nations on a basis of equality and reciprocity but pointed out that the general conception of the clause in the Chinese official and public mind is that it is an integral and much resented part of the extraterritorial system. He referred to recent articles in the Ta Kung Pao of Chungking advocating that the Chinese take a strong stand to insure that no such clause be included in the contemplated, new treaties between China and the United States and between China and other countries. He pointed out that the clause in question had grown to be anathema to the Chinese Government and people because under it in the extraterritorial treaties various countries, large and small, as they came on the scene in China had been able to acquire for themselves special rights and privileges and as a result the system of extraterritoriality had become more and more tightly fastened upon China.
It is our opinion that the Minister Counselor correctly described and explained Chinese feeling in this regard, and it has occurred to us that our negotiations with the Chinese might be facilitated by substituting for any specific reference in the treaty to “most favored nation treatment” other language which will be no less effective and which might be more acceptable to the Chinese and might thus obviate avoidable opposition and delay. The only reference to “most favored nation treatment” in the texts now under consideration occur in the second paragraph of our proposed additional article on coasting trade, inland navigation, etc. We are of the opinion that the language of that paragraph might be altered to read: “The Government of the United States of America and the Government of the Republic of China mutually agree that the merchant vessels of each country shall be [Page 361] permitted freely to come to the ports, places, and waters of the other country which are or may be opened to overseas merchant shipping, and that the treatment accorded such vessels in such ports, places and waters shall be no less favorable than that accorded to national vessels and shall be as favorable as that accorded to the vessels of any third country. The coasting trade and inland navigation of each country are excepted from the requirement of national treatment and are to be regulated according to the laws of each country in relation thereto. It is agreed, however, that vessels of either country shall enjoy within the territory of the other country with respect to the coasting trade and inland navigation treatment as favorable as that accorded to the vessels of any third country.”
2. Chinese desires as exemplified in the Chinese suggestion for an additional article to be adopted as Article I to the effect that the relations between China and the United States shall be “based on the principles of equality and reciprocity” might be met by altering the preamble of our draft treaty to read: “The United States of America and the Republic of China, in recognition of the friendly relations which have long prevailed between their two peoples, of their common commitment to high purposes in the regulation of human affairs and their common desire that the principle of equality among sovereign States be made increasingly effective, have resolved to conclude a treaty for the adjustment of certain matters in regard to jurisdiction in China and related questions, and have appointed et cetera.” We propose to make a suggestion along those lines to the Chinese.
3. With reference to paragraph 2 of the Chinese suggestion, it occurs to us that the deletion from the end of the second paragraph of Articles II and III of our draft treaty of the words “and for the recognition and protection of all legitimate rights therein” would eliminate any basis for the additional clause suggested by the Chinese Government. We propose to suggest to the Chinese that this question be resolved in this manner.
4. With a view to resolving the question raised by the Chinese in the first part of paragraph 3 of their suggestions, we propose to suggest that the particular language under discussion be altered to read: “it is agreed that such existing rights and titles shall be indefeasible and shall not be questioned upon any ground except upon proof, established through due process of law, or fraud or of fraudulent or other dishonest practices in the acquisition of such rights or titles, it being understood that no right or title shall be rendered invalid by virtue of any subsequent change in the official procedure through which it was acquired.”
Sent to London and Chungking.