In addition, Your Excellency will also find enclosed a copy of a note
addressed on November 25, 1929, by the Ministry of Foreign
[Page 648]
Affairs to the Embassy of
Great Britain at Paris, in reply to a memorandum from the latter. This
note sums up the whole French viewpoint in the question of
extraterritoriality.
[Enclosure 1]
Summary of Instructions Sent by the French Minister of Foreign Affairs to
the French Ambassador in
London
According to information received from the French Minister in China,
the Chinese Minister in London sent, on November 25th, to the
British Foreign Office, a note on extraterritoriality. When he made
delivery of the note, the Chinese Minister let it be known that it
was the intention of his Government to make an unilateral
declaration on January 1st, proclaiming the suppression of
extraterritoriality. It is understood that the British Government
replied in the sense of the French note suggesting at the same time
to his representative in China to enter upon negotiations with the
Government of Nanking before the threat of the Chinese Government
becomes an accomplished fact.
The British Minister in China has advised his Government against such
step, and favors an energetic attitude similar to that of the
American and French Governments. He made the suggestion that it
would be wise to get ready now to notify the Chinese Government that
they have no right to abrogate treaties by unilateral declarations
and that the British Government reserves for itself the right to
take all necessary measures in order to secure for its citizens the
exercise of rights resulting from treaties as long as those treaties
have not been modified by mutual agreement.
It is the opinion of the French Government that the concessions made
up to date, in agreement with the English and American Governments,
in view of a gradual revision of treaties upon the basis of mutual
consent, have not had the effect which was expected. In its opinion,
a firm attitude by the interested powers might compel the Chinese
Government if not to give up entirely its idea of making a
declaration on January 1st, at least to make a moderate declaration
which would not carry practical application. Furthermore, at the
time when the attention of the Russian and Chinese Governments has
been called upon their conflict, the Chinese Government should not
have the impression that the problem of extraterritoriality may be
solved by means other than pacific means and usual legal
proceedings.
Consequently the French Government is in favor of a project of note
to the Chinese Government to be drafted by the Minister in
Peking.
[Page 649]
The French Ambassador in London is requested to ask that instructions
in that sense be sent to the British Envoy in China. A similar
action on the part of the American Government for gradual
proceedings would be deeply appreciated./.
Washington,
December 6,
1929.
[Enclosure
2—Translation]
The French Ministry for
Foreign Affairs to the British
Embassy in France
Paris, November 25,
1929.
Political Bureau
The Embassy of Great Britain at Paris was kind enough to transmit to
the Ministry of Foreign Affairs, on November 15, a memorandum
setting forth the general principles which, in the opinion of the
British Government, appear to be those which should inspire any
attempt to find a solution to the problem of the suppression of
extraterritoriality in China.
In thanking the British Embassy for that communication, which it
noted with interest, the Ministry of Foreign Affairs has the honor
to inform it that the French Government, equally desirous of
adopting a liberal and friendly attitude with respect to the
legitimate aspirations of the Chinese people, is in entire agreement
with the British Government in acknowledging the necessity of
steadfastly preventing any Chinese demand to proceed to the total
and immediate surrender of extraterritoriality. Because of the
instability of the administration of China, and the rudimentary
character of its legislation and its judicial institutions, in the
functioning of which the military authorities are in the habit of
interfering, the study of the actual suppression of
extraterritoriality can be undertaken only if it is subject to the
acceptance, by the Chinese Government, of the very principle of a
process of gradual evolution, the rate of which will be determined
by the efficacy of the guarantees which China will agree to furnish
at each of the stages of the future régime of transition.
The method of progressive surrender by category of jurisdiction
suggested by the British Government has the advantage of being
inspired by juridical considerations and of preserving for the
longest possible time the guarantees of national jurisdiction with
respect to penal matters and matters having to do with personal
status. On this account it seems to the Ministry of Foreign Affairs
to deserve a most attentive examination, although its adoption might
create a complicated situation as to jurisdiction. The progressive
geographical surrender suggested by other Governments seems simpler
at first glance, but it seems unlikely that the choice of
geographical zones
[Page 650]
would
be decided unanimously by the Powers, whose interests are not
equally developed in the various parts of China.
In order to permit the establishment of a line of conduct common in
principle among the various Powers concerned, the Ministry of
Foreign Affairs believes it preferable to combine the British idea
of surrender by category of jurisdiction with that of geographical
surrender. This method would permit the nature and location of the
interests of each Power to be taken into account at the same time as
the real improvements in Chinese justice in each region considered.
The effect could be that, according to circumstances,
extraterritoriality would be suppressed in a certain region for a
certain category of jurisdiction in proportion as modern Chinese
courts were created, for the institution of which the Powers would
demand guarantees according to the importance of their interests in
the region where these courts would have jurisdiction.
Whatever the method (geographical or jurisdictional) finally adopted
to determine the process of evolution, the Ministry of Foreign
Affairs believes that the Chinese courts designated, as they are
organized, to be competent with respect to foreigners, would be
modern Chinese courts with broad jurisdiction (ratione materiae et ratione loci). Foreign judges
appointed by the Chinese Government should sit on these courts
beside Chinese judges, and foreigners should have the right to be
represented there by counsel of their nationality. The process of
gradual evolution should, as the British Government suggests, first
affect civil suits and, after experimentation in the functioning in
this regard of modern Chinese courts defined as above, it should be
extended progressively to misdemeanors, then to penal matters and
leave matters concerning personal status out of the question. It
also goes without saying that suits between French citizens should
continue to be judged by French courts. Lastly, there should be
reserved for later negotiations, the problems relative to the
additional guarantees of extraterritoriality properly so-called,
such as exemption from taxation, inviolability of property and
vessels, right of coastwise trading, missions, territorial
concessions, etc.
The Ministry of Foreign Affairs believes that it is upon these bases,
and without prejudice to the other conditions contemplated in the
notes transmitted by the Legations concerned August 12 and November
1, 1929, to the Chinese Government, that the quest of a project to
solve the problem of the suppression of extraterritoriality should
be conducted by the Ministers of the Powers at Peking.
The Ministry of Foreign Affairs adds that it does not consider that
it is expedient to take the initiative now in making offers to the
Chinese Government and that it is preferable to await the specific
proposals which there may be to make.
