Foreign Relations of the United States: Diplomatic Papers, 1942, China

793.003/1008: Telegram

The Ambassador in the United Kingdom (Winant) to the Secretary of State

London, November 24, 1942—2 p.m.
[Received 5:22 p.m.]

6608. With reference to Department’s 5758, November 17, I have just received the following letter, dated November 23, with enclosure, from Mr. Eden regarding the draft treaty on extraterritoriality in China.

Begin Mr. Eden’s letter:

“Thank you for your letters of 12th and 18th November containing further messages from the Department of State relating to extraterritoriality in China.

I send you herewith a memorandum giving the views of the Foreign Office upon the points raised.

We also would like to see the treaties signed within 3 or 4 weeks and intend to make every effort to achieve this. You will observe that there are only two points of any substance on which it remains for us to coordinate our replies to the Chinese Government, namely, national treatment for the carrying on of commerce and the manner in which we should meet the Chinese desire to cover coastal and inland navigation in the present negotiations. These are points on which we feel strongly that we are fully entitled to ask of the Chinese equal and reciprocal treatment and I very much hope that our suggestions will prove acceptable to the Department of State.” End Mr. Eden’s letter.

Begin enclosure:

“(Numbering of paragraphs below corresponds to numbering of paragraphs in Department of State’s message of 17th November) (number 5758).

One. (1) The Foreign Office attach the highest importance to the principle that the relations between this country and China to be inaugurated by the present treaty should be firmly based on genuine equality and reciprocity. Nevertheless they are ready to concur in the attitude adopted by the Department of State in regard to the proposal for a new article on this point.

(2) and (3) (a) and (b), the Foreign Office agree with the articles in question and for the same reasons.

(4) As the Department of State are aware, the Foreign Office attach importance to obtaining national treatment in the matter of carrying on commerce in China. His Majesty’s Government are entitled to claim on a basis of equality and reciprocity that this principle should be recognized. Nevertheless the Foreign Office appreciate that the application in detail of this principle is a matter which will [not?] fail to be considered in the later comprehensive treaty. In order to bridge the gap and to meet any qualms the Chinese may have on this subject, the Foreign Office propose to instruct His Majesty’s Ambassador to inform the Chinese that while they wish to retain the words “and the carrying on of commerce” in the second sentence of article VI of the British draft treaty (article V of the American draft) they are prepared to agree to the insertion at the beginning of this sentence of the words “pending the conclusion of the comprehensive treaty mentioned in article VIII” (article VII of the American draft). This sentence is already phrased in a tentative way (“will endeavour to accord”) and the insertion of the additional phrase now proposed should from the Chinese point of view emphasize its provisional character, while from our own point of view it will establish that this is a matter for later negotiation. The Foreign Office trust that the Department of State will see their way to concurring in this solution.

(5) The Foreign Office see no objection to concurring in the proposed amendment to article VII of the British draft treaty. (Article VI of the American draft.)

(6) In general the Foreign Office confirm that there is no intention to retain anything which is not normal in international practice. On the other hand, while ready to abandon all inequalities suffered by China, they are not prepared to substitute other inequalities to the detriment of British or any other interests which may be affected by the present treaties. As to the individual points raised:

Treaty ports. Inasmuch as we desire to encourage the Chinese Government to open all parts of the country to foreign commerce, travel and residence, we welcome the proposal to declare the abrogation of the “treaty port system” which confined commerce and residence to certain cities. The Foreign Office propose so to reply to the Chinese Government with the object of eliciting from them whether this is indeed what they have in mind.

Special courts. The Foreign Office agree that these will disappear.

Coastal and inland navigation. See below under three.

Pilots. The Foreign Office also assume that the Chinese Government have in mind the general pilotage regulations of 1868.⁸⁷ Shanghai is the port chiefly affected by this question, and prior to the war there was at Shanghai, as the Department of State are aware, a Foreign Licensed Pilots’ Association functioning under a Sino-foreign charter. Candidates admitted to the Association were required to buy a share in a company formed to own the pilot ships and other property used by the Association. On resignation from the Association members were refunded the amount of their shares. His Majesty’s Government have no wish to retain any special privileges in this respect, but for the safety of big ships (including naval vessels) navigating the difficult entrance to Shanghai they consider that the Chinese Government should be invited to agree to employ a sufficient number of qualified foreign pilots when Shanghai again becomes open to allied shipping and until an adequate number of Chinese pilots can be trained to take their place. It would also be desirable to secure from the Chinese Government an undertaking to assume responsibility for the financial obligation of the Licensed Pilots’ Association toward those of its members whose employment was terminated.

Foreign warships. His Majesty’s Government would not wish to retain any of the special rights which His Majesty’s ships have been accorded in the waters of China. The Foreign Office would suggest that any exchange of notes should acknowledge this and add the following:—

“His Majesty’s Government and the Chinese Government shall extend to each other the mutual courtesy of visits by their warships in accordance with international usage.”

Two. The Foreign Office would see no objection to exchanging notes on treaty ports, special courts, the employment of pilots and visits of foreign warships on the lines indicated above. They agree that it would be desirable to cover the problem of cases pending before the British courts in China and judgments already delivered in an exchange of notes in the terms proposed by the Department of State, subject to the two following insertions:

(a) at the end of the first sentence:—“… and shall, when necessary, be enforced by the Chinese authorities”;

(b) before the words “be remitted”:—“… if the plaintiff or petitioner so desires”. This is desired in order to cover cases where the parties might prefer to settle, or to submit the dispute to arbitration.

In rendering the final phrase for the purposes of the British draft treaty it will be necessary to say “apply the laws which a British court would apply”. The Foreign Office assume that there will be no objection to Consuls finishing uncontested probate and administration matters in a nonjudicial capacity. It will also be necessary in matrimonial cases where a decree nisi has already been granted to arrange for the decree to be made absolute, but it is hoped that this could be done without any explicit provision being required.

Three. Points (1) and (3) in this section of the Department of State’s message have already been dealt with above, under One (1) and (4). This leaves outstanding point (2)—inland and coastal navigation.

As regards His Majesty’s ships, see under One (6) above. As regards coastal trade and inland navigation by merchant vessels, the Foreign Office think it greatly preferable to adhere, at least in the first instance, to the attitude set out in the memorandum sent to His Excellency the American Ambassador on November 12. In doing so they do not consider that they are attempting to preserve unilateral and unequal privileges in China because in the United Kingdom, the colonies and in India, Chinese shipping is in practice permitted to engage in these trades. The Foreign Office would for instance call the attention of the Department of State to the Burma convention concluded between Great Britain and China in 1894⁸⁸ of which article 12 reads as follows:

“The British Government, wishing to promote frontier trade between the two countries by encouraging mining enterprize in Yunnan and in the new territorial acquisition of China referred to in the present convention, consent to allow Chinese vessels carrying merchandise, ores, and minerals of all kinds, and coming from or destined for China, freely to navigate the Irrawaddy on the same conditions as to dues and other matters as British vessels.”

The Foreign Office propose that the above should be pointed out to the Chinese Government. If, however, the Chinese Government insist on their request to have the subject of coastal trade and inland navigation included in the proposed exchange of notes, His Majesty’s Government would be prepared to comply on the following lines. His Majesty’s Government would state that they do not reserve any unilateral treaty rights which they possess in respect of coastal trade and inland navigation, in return for which the Chinese Government would state in effect that while reserving the right to limit these trades to the Chinese flag, they would permit the existing practice to continue pending further arrangements.

His Majesty’s Government have now received proposals similar to the above from the Chinese Government for the amendment of the British draft treaty and for an exchange of notes. In the British exchange of notes the Chinese Government wish, however, to add to the matters for abrogation already mentioned to the United States Government “the employment of a foreign national as inspector general of the Chinese Maritime Customs.” Since the United States Government are also interested in the Chinese customs and the financial obligations secured thereof His Majesty’s Government would be glad to learn their views on this last mentioned request. They for their part are prepared to agree to the inclusion of this point in the exchange of notes, but they would propose to express the hope that the Chinese Government will continue to maintain the administration of the customs service as at present constituted both in China’s own interest and those of the holders of Chinese bonds secured on the customs revenue.

The Chinese Government also wish to insert in the Sino-British exchange of notes a final sentence which reads:—“Questions which are not covered by the present treaty and exchange of notes annexed thereto and which affect the sovereignty of the Republic of China shall be discussed by the representatives of the high contracting parties and shall be decided in accordance with the generally accepted principles of international law and with modern international practice.” The Foreign Office are not clear as to the purpose underlying this proposal and are asking for an explanation.

It should be added in conclusion that apart from the questions of common interest to the United States and Great Britain and India, the Chinese Government have asked for the inclusion in article V of the Sino-British treaty of additional clauses terminating the convention for the extension of the Hong Kong territory signed at Peking in 1898.⁸⁹

The Foreign Office share the desire of the Department of State that the negotiations should if possible be concluded in the next 3 or 4 weeks. It is proposed therefore to instruct His Majesty’s Ambassador at once in the sense of the observations made above, but he will not be authorized to act upon them until the further views of the Department of State are received.” (End enclosure)

The Department’s 5859, November 21 has been communicated to the Foreign Office and its views will be transmitted to the Department when received here.

Winant

87. Hertslet’s China Treaties: Treaties, etc., Between Great Britain and China; and Between China and Foreign Powers; and Orders in Council, Rules, Regulations, Acts of Parliament, Decrees, etc., Affecting British Interests in China (London, 1908) vol. ii, p. 658.
88. Signed at London, March 1, 1894, British and Foreign State Papers, vol. lxxxvii, p. 1311.
89. Signed at Peking, June 9, 1898, British and Foreign State Papers, vol. xc, p. 17.