CO129-588-23 China- British extra-territorial rights- negotiations with China 28-3-1942 - 27-11-1942 — Page 12

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On thinking over the text of Article 6 again, I must confess that I do not feel at all happy about its wording. The first sentence purports to state as a fact what is certainly not a fact; because there are many places (apart from India and Malaya) in the British territories to which the Treaty is to apply, where Chinese have not been allowed to "reside and carry on commerce For example, there are on the one hand the European residential areas, and on the other hand the native reserves, in various of the African Colonies, and I am inclined to think that the wording of the first sentence of this Article should receive wider consideration in the Office.

Quite apart from the fact that this sentence purports to recite as a fact something which is not a fact, there is the difficulty whether, even if it were now put in the form of a reciprocal obligation to be followed in the future, we should be able to give effect to it in some of the Colonies, especially in Africa.

As regards the European residential areas, we had a good deal of correspondence about the claim of the Japanese (under the Anglo-Japanese Commercial Treaty of 1911) to live in the European residential area in Mombasa, but ended in a compromise (Sir Joseph Byrne's so-called "Gentleman's Agreement"). But it seems to me that the greater difficulty arises in relation to the native reserves in Africa.

In this connection it may be of interest to recall that, in relation to the disputes with the Japanese mentioned above, we had some discussion with the F.0. as to what "national treatment" means in relation to a Colony. The C.0. tried to argue, although the F.0. were unable to accept the avgement, that, in relation to (e.g. Kenya), "nationd treatment" means the treatment enjoyed by the natives of Kenya, and not by white men in Kenya.

In view of X above, it would seem that the statement in para. 2 of No. 20 that "the first sentence would in theory prevent your stopping Chinese nationals entering tribal territory" does not quite hit the nail on the head, beeBS

cocepoint joe and I do not see what the answer is to difficulties suggested in this minute, but I do suggest that they require further consideration from a general point of view.

J.Je

24.10.42.