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contemplate the possibility of Shanghai passing under Chinese jurisdiction within the next ten years it seemed of great importance that there should be an adequate transitional stage extending possibly beyond the period of ten years. Difficulties in the way of securing Indefinite Exclusion of Shanghai,
65. These were potent arguments. On the other hand, it was equally to be pointed out that the present National Government could not possibly be induced to agree to exclude the Shanghai area for an indefinite period; that their successors were likely to be more rather than less chauvinistic in their attitude; that a maximum of ten years' life for extra-territoriality in the area of Greater Shanghai was the utmost we could expect to get and that we should be fortunate to secure as much; that the retention by force of extra-territorial rights within the narrow limits of the International Settlement would lead us nowhere; that exclusion for an unnamed period with an undertaking to negotiate within three or five
years (in the unlikely event of the Chinese Government, after all, agreeing to our original proposals) might prove dangerous in practice as rendering the position open to attack from the moment the treaty was concluded; and, finally, that the whole theory of indefinite exclusion subject to negotiation rested on the doubtful promise that the Chinese Government would ever agree to enter into round-table negotiations with the Powers concerned on the subject of the municipal and jurisdictional arrangements to be made in the Shanghai area; so that there seemed to be some danger of our losing the substance (of a fixed breathing-space) by grasping at this shadow (of a satisfactory settlement to be secured by future negotiation).
Views of Shanghai Joint Committee, His Majesty's Consul-General and Judge
Feetham.
66. In accordance with your instructions, I called for the views of the Joint Committee of the China Association and British Chamber of Commerce at Shanghai, as well as those of His Majesty's consul-general and Mr. Justice Feetham, who had been engaged for the past year and a half in his investigation of the Shanghai problem, but had not yet presented his recommendations, the nature of which were at this moment still unknown to me and to Mr. Brenan. The Joint Committee expressed the opinion that the terms of the draft treaty were as favourable as could be expected, and that it was better that a treaty should be concluded on such lines rather than that our extra-territoriality rights should go by default in the absence of an agreed settlement. His Majesty's consul- general concurred in the above opinion, and, with a practical realisation of his own responsibilities, referred to the difficulties of the position we should have to face from a determined attempt to abolish extra-territoriality unilaterally after the 1st January, 1932, with all the hostility on both sides that a series of incidents would create, in view of the fact that we were not, it seemed, prepared to maintain our extra-territoriality rights in China by force of arms (see your despatch No. 303 to Washington of the 7th March). Mr. Justice Feetham, on the other hand, expressed the opinion that the fixing of any time limit for extra- territoriality in Shanghai would definitely be putting a rope round the neck of the Settlement and would be fatal to the future prospects of local self-govern- ment there. These statements were based on the views and recommendations which Mr. Feetham had formulated as the result of his eighteen months' study of the Shanghai problem, namely, that, while the rendition of the settlement to Chinese control was admittedly the ultimate goal, its realisation should be a matter not of years but of decades; that the present régime of local self-govern- ment under foreign control should continue subject to increased Chinese co-operation during the transitional period; that this régime would be impossible without extra-territoriality, and that any time limit for extra-territoriality at Shanghai would therefore destroy in advance the prospects of negotiating an agreement for the continuance of the existing foreign-controlled and extra- territorialised régime during the decades which should elapse before the time was ripe for rendition. The logic of Mr. Feetham's arguments and conclusions was doubtless sound. But his recomendations appeared to ignore the political forces at work in China and to rest on the assumption that we should be able somehow or other to prevail on the Chinese Government to agree to the retention of our extra-territorial rights in the Shanghai area for the period, to he estimated
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in decades, before the time was properly ripe for the rendition of the settlement to Chinese control. At the time of writing there is not the remotest chance of any Chinese Government giving such proposals a hearing. Moreover, we have always to bear in mind the position in the Greater Shanghai (extra-settlement) areas, in which so many British subjects reside, and in which very important British interests, commercial, industrial and shipping, are now concerned; so that, even if His Majesty's Government were to take their stand on Mr. Feetham's recommendations so far as concerns the International Settlement, we should, failing an agreement with the Chinese Government, risk seeing extra-territorial rights go by default outside its immediate boundaries.
Final Discussion, June 5: Duration Article.
67. Having thus secured, as instructed, the above expressions of opinion on the part of those most intimately concerned on the subject of article 16, I awaited your instructions. These were received on the 5th June, and I arranged to see the Minister for Foreign Affairs in the afternoon of the same day. Under these instructions I was authorised to exchange copies of the draft treaty and attached documents, together with covering letters on the lines proposed see paragraph 61 above. At the same time I was instructed that the duration article (21) was to be worded in accordance with a new text which was telegraphed to me. I presented this new draft of article 21, explaining to Dr. Wang that I had, hitherto, assumed your approval of this article in the form we had already agreed upon (the main point, which I had gained after weeks of argument, being the duration period of ten years for the treaty as a whole and five years for the special chambers and legal counsellors see paragraph 51 above); but that I had now at the last moment received this new text, which had been carefully drafted by experts in London and which I requested him to accept. After reading the new text Dr. Wang observed that he feared it was quite unacceptable, as it differed from the previously agreed version in several essential points, most of which had been fully gone into and been disposed of in our previous discussions. Eventually, I induced him to accept the general form of the new draft and was able to narrow his objections down to the following points: (i) That there was no explicit provision for termination at the end of ten years failing agreement as to revision; (ii) that the clause providing for further five yearly periods to which he had been unable to agree in our first draft had been reinserted; (iii) that provision had been made for the continuance in perpetuity of article 18; (iv) that the provision in the previously agreed draft for the non-revival of abrogated clauses in existing treaties had been deleted; and (v) that twelve months had been substituted for six in connexion with giving notice. After some argument I was able to get him to drop the last two points, but was quite unable to move him on the first three. The Chinese are notoriously touchy on this question of duration as a result of their experiences of the duration clauses in the old, so-called unequal treaties," and it had only been with the greatest difficulty that I had previously induced Dr. Wang to agree to a period of ten years. Nor did I, in fact, feel my case to be a good one, for the new text appeared designed so far as concerned the clauses in dispute, to reproduce that very ambiguity in regard to duration after the expiry of the first ten years, which had been such a thorn in the side of the Chinese Government in securing the revision of the old treaties. Under no circumstances will any Chinese Government agree at the present time to the indefinite duration of any treaty provisions granting special privileges to foreigners. This is one of the most fundamental points in their present foreign policy and their drive against the old treaties. I therefore in the end agreed to meet Dr. Wang on his first three points, and we amended your draft text accordingly. I warned Dr. Wang that in accepting these amendments I was acting on my own responsibility. In doing so I was guided by the feeling that the time had arrived when it was essential (in view inter alia of developments at Canton where Mr. Eugene Chen as Minister for Foreign Affairs of a rival Govern- ment had already appealed to the Powers to withdraw recognition from Nanking) for me to leave the capital and wind up these long drawn-out negotiations, either by breaking them off or by exchanging the agreed texts without further delay. I considered therefore that it was most undesirable to risk further indefinite delay by referring these points again to the Foreign Office, while I felt that we were to some extent to blame for this last minute impassé by introducing alterations of
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