The Chinese Government must realize that the Treaty of Washington
relating to the principles and policies to be followed in matters
concerning China was formulated at the Washington Conference on the
suggestion of the Chinese Government for the purpose of putting into
treaty form the general principles which would recognize the
[Page 1019]
sovereignty, independence
and territorial administrative integrity of China and provide for the
fullest and most unembarrassed opportunity to China to develop and
maintain for herself an effective and stable government; that under
Article VIII the United States bound itself to invite adhesion to that
Treaty by all non-Signatory Powers having treaty relations with China
and having governments recognized by the Signatory Powers. It was not,
as has been represented to the United States, only those powers which
had special treaty rights but all powers having treaty relations with
China. There is no agreement whatever in this Treaty by which China in
any way limits its sovereignty, independence, or territorial
administrative integrity, in fact, quite the contrary, and I am unable
to understand why it should not be considered to the advantage of China
for all of the powers having treaty relations with her to subscribe
themselves to the principles and policies set forth in a Treaty, the
whole purpose of which is to insure to China the fullest and most
unembarrassed opportunity to develop itself and to obtain for itself an
effective and stable government. I am, therefore, at a loss to
understand the apparent disposition of the Chinese Foreign Office to
question the action of the American Government in conveying to Germany
and other non-Signatory Powers an invitation in literal fulfillment of
the provisions of the Treaty signed with full cognizance of its import
by the representatives of the Chinese Government at the Washington
Conference. It seems to me unnecessary to remind the Chinese Government
of the repeated evidences of friendly disposition and helpful attitude
of the United States Government, an attitude and a disposition which
still exists and which it is my pleasure to evidence on every
appropriate occasion. I venture, therefore, to express the hope that in
the light of this explanation the Chinese Government will recognize that
the adoption of its views would amount to a repudiation of the
conclusions of the Washington Conference and of the principles of
friendly cooperation which inspired it.
[Enclosure]
Memorandum
The Chinese Government refers to an oral exchange of views between
the Chinese Minister and the Secretary of State regarding its
objection to the adherence by Germany to the Treaty relating to
principles and policies to be followed in matters concerning China
which was signed on February 6, 1922, at the Washington Conference
on the Limitation of Armament, by the United States of America,
Belgium, the British Empire, China, France, Italy, Japan, The
Netherlands, and Portugal. Similar objection is now raised in the
[Page 1020]
memorandum which
accompanies the Chinese Minister’s note of January 22, 1926, to
adherence by Switzerland, Chile and Persia, it being declared that
adherence by these countries was not contemplated by the Treaty.
Objection is made in the same memorandum to adherence by Bolivia on
the ground that treaty relations between Bolivia and China did not
become effective until the ratifications of the Treaty of Friendship
between China and Bolivia had been exchanged on December 17, 1924,
and that consequently they did not exist at the time of the
Washington Conference. Finally objection is made to adherence by
Peru on the ground that Peru is now negotiating a new treaty with
China, and need not for that reason be invited to adhere. The
Chinese Government suggests in conclusion that the invitations sent
by the United States Government to the five Powers above mentioned,
namely, Switzerland, Chile, Persia, Bolivia and Peru be
recalled.
Article VIII of the Treaty imposes certain duties upon the Government
of the United States. This Article reads as follows:
“Powers not signatory to the present Treaty, which have
Governments recognized by the signatory Powers and which
have treaty relations with China, shall be invited to adhere
to the present Treaty. To this end the Government of the
United States will make the necessary communications to
non-signatory Powers and will inform the contracting Powers
of the replies received. Adherence by any Power shall become
effective on receipt of notice thereof by the Government of
the United States”.
Article IX of the Treaty states that the Treaty “shall take effect on
the date of the deposit of all the ratifications which shall take
place at Washington as soon as possible”. All of the ratifications
were deposited at Washington on August 5, 1925, on which date the
Treaty became effective. On October 1, 1925, the Government of the
United States, pursuant to the obligation imposed upon it by Article
VIII of the Treaty, made the necessary communications to the
following Powers for the purpose of inviting them to adhere to the
Treaty: Austria, Bolivia, Chile, Denmark, Germany, Norway, Persia,
Peru, Spain, Sweden, Switzerland. On November 21, 1925, a similar
communication was sent to Brazil.
Careful consideration was given by this Government to the views of
the Chinese Government as expressed orally by the Chinese Minister
to the Secretary of State on the subject of adherence by Germany and
the Chinese Minister was informed that the Department of State found
itself unable to share the Chinese Government’s opinion that
Germany’s adherence was not contemplated by the framers of the
Treaty. Similar consideration has been given to the corresponding
views of the Chinese Government as set forth in its memorandum on
the subject of adherence by Switzerland, Chile and Persia
[Page 1021]
and in respect to
adherence by these countries the Department of State is also unable
to find itself in agreement with the Chinese Government. Article
VIII of the Treaty which is quoted above designates the Powers that
are to be invited by the United States to adhere as those “which
have Governments recognized by the signatory Powers and which have
treaty relations with China”. All of the Powers named have
Governments recognized by the signatory Powers and the Chinese
Government does not deny that they have treaty relations with
China.
The statement contained in the Chinese Government’s memorandum that
Bolivia’s treaty relations with China did not commence until
December 17, 1924, the date when the ratifications of the Treaty of
Friendship between China and Bolivia were exchanged, may be accepted
as a correct interpretation of the effect of the deposit of
ratifications. The weight of authority on the question is that when
a treaty expressly provides that it is to be effective on
ratification, it has no validity or binding force prior to the date
of ratification and that ratification is not retroactive. The same
rule of interpretation applies to the Nine Power Treaty relating to
principles and policies. Article IX of that Treaty, as indicated
above, provides that it is to take effect “on the date of the
deposit of all the ratifications” at Washington. Deposit of
ratifications at Washington was not effected until August 5, 1925.
Prior to that date the Treaty had no validity or binding force.
Bolivia’s treaty relations with China became effective on December
17 of the preceding year and therefore Bolivia, like Germany,
Switzerland, Chile and Persia on October 1, 1925, belonged to the
category of Powers having Governments recognized by the signatory
Powers and having treaty relations with China to which the
Government of the United States was obliged by Article VIII to send
invitations to adhere.
The memorandum enclosed with the Chinese Minister’s note of January
22 is the first intimation that the Government of the United States
has had that there is any question as to Peru’s treaty relations
with China. The records available to the Department of State,
namely, the second edition of Treaties,
Conventions, Et Cetera, between China and Foreign States,
published in 1917 by the Maritime Customs of China, indicate that
Peru has enjoyed treaty relations with China since 1874. It was the
Treaty of 1874 between Peru and China6 which placed Peru in the category of Powers “having
by treaty extraterritorial rights in China” and therefore entitled
to receive invitations to adhere to Resolution V of the Washington
Conference which provides for a commission to make an investigation
into the present practice of extraterritorial jurisdiction in
[Page 1022]
China.7 As late as
October 31, 1925, or a month after the invitation to adhere to the
Nine Power Treaty relating to principles and policies had been sent
to Peru, the Department of State was informed by the American
Minister at Peking,8 in connection with the question of adherences by
the Powers to Resolution V, that he had been asked by the Chinese
Minister for Foreign Affairs to ascertain whether Peru intended to
appoint its commissioner under that Resolution. It is therefore
evident that subsequent to October 1, 1925, the Chinese Government
recognized that the Treaty of 1874 between it and Peru was still in
effect and that the Government of the United States was justified in
considering that Peru was to be classed in the category of Powers to
which under Article VIII of the Nine Power Treaty relating to
principles and policies, invitations to adhere were to be
addressed.
