793.003/1008: Telegram
The Secretary of State to the Ambassador in the United Kingdom (Winant)
5931. Your 6608, November 24, 2 p.m. It has, of course, been our earnest desire to meet British wishes in regard to various questions in connection with the draft treaty on extraterritoriality and supplemental exchange of notes to the greatest extent that would be compatible with our broad interests and fundamental policies. In response to Mr. Eden’s suggestions contained in your telegram under reference and in the light of the wish of both governments to get forward in the matter, the question what means might be adopted to enable us to come closely to paralleling, if not in all cases adopting, the British suggestions has been given further study and as a result we offer comment and suggestions as the basis of reply to Mr. Eden as follows:
One. (1) Our suggestion in this respect was contained in our no. 5859, November 21, 3 p.m.
(2), (3), (a) and (b). See our 5859, November 21, 3 p.m. (With further reference to (3) (b) we intend as indicated in our no. 5914, November 24, 7 p.m. to incorporate the Chinese suggestion in full in Article IV of our draft.)
(4) The British suggestion in regard to the reference, inserted in Article V of our draft, to “the carrying on of commerce”: As previously explained, this question tends to raise difficult questions of State and Federal jurisdiction in this country. Consequently we have not been happy about the matter; we feel that the fundamental difficulty involved has not been adequately taken care of; and, now that the Chinese have raised objection to the inclusion of the phrase and have pointed out that it involves a matter which most appropriately might be covered by the subsequent comprehensive treaty, we do not feel that we can consistently do other than accept the Chinese suggestion that it be deleted, especially as it is believed that there is little if any possibility of overcoming Chinese opposition to inclusion of the phrase.
(5) Agreement has been reached in regard to this question.
(6) This question was covered in our no. 5859, November 21, 3 p.m. We now propose, in the light of the modification of the provision concerning coasting trade and inland navigation discussed in paragraph numbered 3 below to insert in the suggested note from the Chinese Government after the reference to treaty ports a sentence as follows: “As regards the question of the treatment of overseas merchant shipping, it is mutually understood that the vessels of each country shall [Page 372] be permitted freely to come into the ports, places, and waters of the other country which are or may be open 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.”
We do not feel that we can ask the Chinese to agree to continue the employment of foreign pilots but perceive no objection to the British Government, for its part, following its suggestions in this matter. As regards the question of the financial obligations of the Licensed Pilots’ Association, it is our view that this question might fall within the purview of the second paragraph of Article VII of our draft.
Foreign Warships. We are adopting the British suggestion and now propose to insert in the draft note from the Chinese Government language as follows: “It is mutually understood that the Government of the United States of America relinquishes the special rights which naval vessels of the United States of America have been accorded in the waters of the Republic of China and that the Government of the Republic of China and the Government of the United States of America shall extend to each other the mutual courtesy of visits by their warships in accordance with international usage and comity.”
Two. (a) We accept the British suggestion.
(b) We accept the British suggestion.
Three. It seems to us that the divergence of views which has obtained between this Government and the British Government in regard to the questions of coasting trade and inland navigation arise from necessary differences in the practices of the two governments. For example, as previously indicated, we cannot grant the Chinese reciprocal rights in these matters. In the light of our concept of policy toward China, we cannot consistently seek to reserve or retain special rights. However, in consideration of the importance which the British Government attaches to the questions of coasting trade and inland navigation, we are prepared to abandon our proposal that these questions be covered by an additional definitive article and now propose, as a suitable alternative within the necessary framework of our general policy, the insertion in the proposed note from the Chinese Government of language as follows: “While the question of rights in connection with the coasting trade and inland navigation in the waters of the Republic of China is not related to extraterritorial jurisdiction and is a matter which it is appropriate to reserve for the comprehensive treaty of commerce, navigation, et cetera which will be negotiated subsequently by the two governments, it is mutually understood that the Government of the United States of America relinquishes the special rights which vessels of the United States have been accorded [Page 373] in connection with the coasting trade and inland navigation in waters of the Republic of China and that, while the Government of the Republic of China reserves the right to limit the coasting trade and inland navigation to the Chinese flag, the Government of the Republic of China does not contemplate applying restrictions which would have the effect of making material alterations in the existing practice pending the making of further arrangements between the two governments. It is further understood that it is the concept and intention of the Government of the Republic of China and the Government of the United States of America that questions in regard to coasting trade and inland navigation will be resolved on the basis of what is normal and usual in modern international treaties between friendly countries.”
Four. We perceive no objection to the British Government’s expressing to the Chinese Government 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 interests and those of the holders of bonds secured by the customs’ revenue. We do not, however, for our part, feel in position to make reference to the matter in the proposed exchange of notes or to make to the Chinese Government any formal representations in the matter in connection with this treaty.
Five. As regards the Chinese suggestion that there be inserted in the exchange of notes a sentence in regard to questions “which affect the sovereignty” of China, we assume, and the Chinese Embassy here has indicated to us that it similarly assumes, that this sentence is intended to cover various possible questions such as the employment of a foreign national as Inspector General of the Chinese Maritime Customs, the employment of foreign engineers, et cetera, for certain railways, et cetera. We, for our part, are prepared to accept the Chinese suggestion as indicated in our no. 5914, November 24, 7 p.m.
Six. It is believed that, with the above, we have now reached substantial agreement with the British Government or have come as closely as is possible within the necessary framework of our concepts, policies, and practices to paralleling the British suggestions. We accordingly expect, unless the British Government has in mind modifications that will be compatible with the requirements of the situation from the point of view which we feel impelled to adopt, to proceed, along the lines we have indicated, with the preparation of a document to be handed to the Chinese Embassy on Friday, November 27 (or at the latest on Saturday, November 28) in reply to the Chinese document presented to us on November 10.