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substance in regard to points on which we knew the Chinese could not in fact meet In any case the texts were only being accepted ad referendum to our Govern- ments, so that any really essential changes could still be made.
us.
Discussion on June 5: Minister for Foreign Affairs' Final Reservation on
Article 16.
68. After we had disposed of the last outstanding point in connexion with the ratification article 22 (see paragraph 62 above) I turned to the final question of the exchange of copies of the agreed texts and covering letters (see para- graph 61) and 1 informed Dr. Wang that I was now authorised to proceed on the lines proposed; and I hinted at the desirability of winding matters up as soon as practicable in view of the possibilities of trouble arising in connexion with the establishment of the new Government at Canton. Dr. Wang said he also was prepared to exchange the letters, but he desired to make some remarks on the subject of article 16. It would not be fair to me if he did not state that he was having great difficulties with his colleagues in the Government in connexion with this article, which might not be confirmed in its entirety, with special reference to the reserved area at Tientsin; in fact he hinted plainly that the article would go through if Tientsin were dropped, but that otherwise it might not do so. I was prepared for this move, since Mr. Hsü-Mo had made a similar statement, for my information, in private conversation with Mr. Teichman on the 3rd June, and the point had also been raised by the Chinese Minister in London on the 4th June. Mr. Teichman had replied that there was not the remotest prospect of His Majesty's Government, who were by no means satisfied with the terms of article 16, giving way over the reserved area at Tientsin; and I now took the opportunity of reading to Dr. Wang your telegram No. 141, Tour Series, of the 5th June, 1931, in which you informed me of the reply given to Mr. Sze in London, namely, that His Majesty's Government could not go beyond the position stated by me in the course of the negotiations, that they had gone to the greatest lengths in meeting the wishes of the Chinese Government, and that as far as they, His Majesty's Government, were concerned, the limit of concessions had been reached.
Texts of Draft Treaty exchanged on June 6.
69. On the following day, the 6th June, the texts of the draft treaty and attached documents and the covering letters were exchanged, the latter stating that the drafts were acceptable to us and were being referred to our respective Governments. Thus, after almost exactly three months of intensive negotiations, an agreement ad referendum has been reached, but in the shadow of a new civil war, and with two crucial articles-16, concerning the reserved areas, and 21, concerning duration, not finally disposed of. But whatever the future may hold in store, we have, at any rate, on record, as accepted by the Minister for Foreign Affairs of the National Government and myself, a fair and reasonable draft treaty settlement of the vexed question of jurisdiction on which we can take our stand and with which we can meet any future threats of unilaterial abrogation of our extra-territorial rights. In the meantime we can sit back and await developments in the internal political situation, with an eye on the date, the 1st January, 1932, on which, according to their latest mandate, the Chinese Government intend taking jurisdiction over all foreigners. As aptly stated in your despatch to His Majesty's Ambassador at Washington, No. 303 of the 7th March last, the true criterion is not whether the Chinese are fit to assume jurisdiction over foreigners, but whether they are politically sufficiently stabilised to give effect to their determination to put an end to the extra-territorial system." Agreed Texts: Comments on: Difficulties over Reciprocity.
70. I had the honour in my despatch No. 157, Tour Series, dated Nanking, the 6th June, to enclose copies of the covering exchange of letters and of the texts of the draft treaty and attached documents, the former consisting of a preamble and twenty-two articles, and the latter comprising three declarations by the Minister for Foreign Affairs regarding the Chinese courts and the legal counsellors, two exchanges of notes concerning articles 8 and 16, two notes from the Minister for Foreign Affairs to me regarding translations of legislation and miscellaneous matters, an unpublished letter on the subject of the Chinese arbitra- tion law, and an unpublished agreed minute, the latter incorporating a number
of verbal assurances which Dr. Wang for various reasons could not be induced to put in writing. It will be noted that the drafts cover practically all the provisions of the British-American draft of September 1930, except for the major safeguards concerning evocation, foreign co-judges, the reservation of criminal jurisdiction, and the excluded areas, which the Chinese Government refused from the outset to consider in their original form, and which, in accordance with my main instructions issued in March, were to a greater or less extent progressively abandoned to secure satisfaction on other points. On these other points the present texts are in many respects an improvement on our original draft of last September. I have refrained in this report, which is already swollen to undue size, from any detailed account of the discussions of all the various clauses which eventually resulted in the present agreed draft texts. Copies of the records of these discussions were in most cases forwarded to you at the time. Pursuing, as we did, the line of least resistance in our attempt to build up an agreed treaty on a gradually broadening basis of common ground, and thus taking the less contentious points first, we naturally found our task becoming more and more difficult as we progressed, until for the last few weeks the negotiations were concentrated entirely on a few outstanding points, and mainly on the question of the reserved areas at Shanghai and Tientsin, and it is for this reason that greater attention is paid in this report to the details of the negotiations con- cerning the later and more contentious, but not in every case more important, articles. Indeed, practically every clause in the treaty involved interminable argument and wrangling and references backwards and forwards, more especially (apart from the later articles dealt with in greater detail in this report) the provisions concerning transfer of jurisdiction, legal counsellors, safeguards in connexion with arrests, imprisonment and trial, guarantees in regard to taxation, arbitration arrangements, rights in immovable property, rights of companies, and shipping immunities. At an early stage in the proceedings we encountered difficulties in connexion with national and most-favoured-nation treatment and reciprocity, for, though we were admittedly not negotiating a treaty on the basis of reciprocity and mutuality," nowadays so dear to the Chinese heart, but making special arrangements for a transition period covering the abandonment of extra-territoriality rights, yet there were many points on which we found it difficult to avoid raising the question of reciprocity, or, rather, on which we were unable to get what we wanted without the bait, or excuse, of reciprocal treatment. Unfortunately, it was ascertained that in most of these cases concerning legal or quasi-legal matters, while practical reciprocity for Chinese in British territory existed, His Majesty's Government in the United Kingdom was unable for technical reasons to grant full reciprocity. For this reason the reciprocal clauses are on our side mostly worded on lines of most-favoured-nation treatment. Another difficulty over reciprocity arose in connexion with the Dominions and their varying laws. It was for this reason that we had to induce the Chinese Government and fortunately we were able, after much argument, to do so in the case of this particular treaty to accept reciprocity provisions confined to the United Kingdom, though it was from the outset understood that the treaty should be signed on behalf of, and its benefits enjoyed by, all parts of the British Empire. The Chinese negotiators were fully alive to these points, and it was no easy matter to get them to accept our solutions. For convenience of reference, an index to the paragraphs of this report is attached.
Appreciation of Mr. Teichman's Services.
71. I cannot close this despatch without once more bringing to your notice the admirable services of Mr. Teichman. Throughout the long drawn out and highly involved discussion he has been a veritable tower of strength. It is no exaggeration to say that without his ingenuity, his unfailing patience and his unflagging energy and resource we should never have achieved the results that we have done. I desire formally to record my deep sense of gratitude to him.
I have, &c.
MILES W. LAMPSON.
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