Foreign Relations of the United States, 1955–1957, Volume III, China, Microfiche Supplement

854. Despatch unnumbered from Geneva¹

Geneva, December 12, 1957

SUBJECT

• China Talks—73rd Meeting

1. I opened 73rd meeting with prepared statement:

(a) Mr. Ambassador, when we first met here in August, 1955 again to discuss, among other things, the question of Americans in your country desiring to return to the United States but prevented from doing so, I pointed out to you the fundamental importance of this question to the future relations between our two peoples. I also pointed out to you that the question could have been settled even on the first day of our talks if your authorities had taken the simple and straightforward step of doing no more than matching the action that had been taken by my government with respect to the Chinese in the United States—that is, withdrawing all measures preventing their departure and permitting them to return. This would have permitted us promptly to proceed to the discussion of other questions in an atmosphere that would give greater hope of constructive results. However, your authorities refused to take this straightforward and reciprocal step and you insisted that I enter into public agreement with you on the subject. Although I saw no necessity for such an agreement, I concurred in your proposal, even including your proposal on third party representation in the U.S. I did this on the clear understanding, which was embodied in the specific words of the agreement, that this would promptly resolve the problem of Americans detained in your country. The agreement into which we entered on September 10, 1955 in fact specifically said that your authorities agreed to take measures to permit Americans (not just some Americans, but all Americans) expeditiously to exercise their right to return. Yet eight hundred and twenty four days after we entered into that agreement, Mr. Ambassador, six Americans still remain in your prisons. I have, in the past, and must again today express to you as solemnly as I can, the dissatisfaction of myself, my government and the American people with this absurdly long delay of your authorities in resolving this problem and in carrying out their pledged word in the first agreement ever reached between us.

(b) At our twenty-third meeting on October 27, 1955, I raised with you the question of the failure of your side to account for many U.S. military personnel still missing from the Korean hostilities. I pointed out to you that each of these men were last seen or heard from under circumstances indicating that he was either captured or killed by forces of your side and that your authorities should have information concerning them. I also pointed out many specific cases in which your official radio, as well as press, had specifically identified persons on the list as being prisoners of your side. Yet they were never returned nor was any report even received of their death. In the time that has elapsed during the fifty meetings that have taken place since that period, no satisfactory accounting of these men has been made in the Military Armistice Commission in Korea or here. Surely at one of these meetings it would have been very simple and straightforward for you to have offered to request your authorities to investigate the matter and furnish us information to which we are entitled not only on humanitarian grounds but also by the specific terms of the Korean armistice agreement. Yet you have not done so.

(c) Mr. Ambassador, at our 20th meeting on October 8, 1955 I made to you a proposal suggesting that we renounce in reciprocal terms the use of force in the settlement of issues between us, that is, either we were going to permit our disputes to lead to hostilities between us, or we were going to express our joint determination to seek their settlement by peaceful means only. I pointed out the importance of any such declaration, especially with regard to the Taiwan area, and that such an agreement need not in any way prejudice the position of either side or the pursuit of its policies by peaceful means. Yet you have persisted in misinterpreting and misrepresenting this simple proposal which is in full accord with accepted standards of international conduct and for the past year and a half have not even been willing seriously to discuss it. Mr. Ambassador, this has also been a source of deep disappointment to me and to my country.

(d) Mr. Ambassador, as this is my last meeting with you it is a source of particularly keen disappointment to me this morning to have to recount this record of the failure of your authorities to live up to the first and only agreement reached between us as well as their failure to take any steps to resolve these other outstanding issues. When I came here almost two and one half years ago I had high hopes that your government would be promptly responsive to these few fundamental and mutually advantageous suggestions for the removal of obstacles to the improvement of our relations and thus establish an atmosphere in which other problems could profitably be discussed. I desire to inform you that I am being transferred from Prague to a new post and it will therefore not be possible for me further to carry on these talks with you. However, my government persists in its determination and willingness patiently to seek a settlement of our differences and accordingly desires to continue these talks here. To this end Mr. Edwin Martin will be designated as the United States representative.”

2. Wang replied. The record of our talks of more than two years shows we have not done the duty given to us to settle the issues pending between our two countries. He came to these talks with me with great hopes. It is a fact that there existed a number of practical issues between our two countries. The existence of such issues between our two countries not only exerts an influence on the relations between our two countries, but also leads to the tense situation in the Far East. It was with the desire of resolving the issues between our two countries as well as to improve our relations that he had in the course of the entire talks made various concrete proposals to bring about this end. Yet he must point out that the Ambassador and the United States Government have not given sufficient attention to proposals that he has made.

3. Wang continued. The progress of our talks has suffered due to the policy of my government during the entire course of these talks to obstruct and drag on deliberately what we have started here. For this his side is extremely dissatisfied with the situation of these talks. And the responsibility for this state of affairs is not on his side at all.

4. Wang continued. At this morning’s meeting he still would like to bring up and discuss with me another matter that is relative to the relations between our two countries. In view of the fact that an American court has requested the Chinese Ministry of Justice for judicial assistance in connection with the Powell case, he now proposed on behalf of his government that our two countries conclude an agreement to render each other judicial assistance. On September 3, 1957 the United States District Court of Northern California corresponded directly with the Ministry of Justice of his country and put forth a request for judicial assistance for Mr. and Mrs. Powell and Mr. Schumann, all American citizens and editors of the “China Monthly Review”. The Chinese authorities are willing to meet the request of the U.S. Court. However, in accordance with international practice, only after the two countries have reached agreement on judicial assistance, can assistance be rendered in specific cases in accordance with the provisions of the agreement. As a matter of fact the U.S. Government has concluded bilateral or multilateral agreements on judicial assistance with other countries. It can readily be seen that the procedure referred to above by the U.S. District Court is not in keeping with proper procedure. For this reason the Chinese Ministry of Justice was obliged to return the original request on October 30 of this year. Nevertheless, in its message of reply the Ministry of Justice specifically stated that if the Chinese and American governments reached agreement for judicial assistance the request in the Powell case would be eligible for consideration. Since the Chinese Ministry of Justice stated the aforesaid position, no step has so far been taken by the American authorities to promote a judicial agreement between our two countries. Yet on November 2 of this year the American State Department issued a passport valid for travel to China to Mr. Wirin, Powells’ defense attorney, for the purpose of taking testimony. It is evident that in the absence of a judicial agreement, it would be impossible for Mr. Wirin to accomplish the purpose of taking testimony.

5. Wang continued. In order to resolve the question of judicial assistance in the case of the Powells as well as other cases which may be raised in either country in the future, he proposed that both sides make the following agreed announcement so that cases can be taken up speedily. It is hoped that I and my government would give careful consideration to this proposal.

6. Wang then handed me the following text:

“Agreed Announcement of the Ambassadors of the People’s Republic of China and the United States of America Concerning Negotiations on Judicial Assistance. Ambassador Wang Ping-nan, on behalf of the Government of the People’s Republic of China, and Ambassador U. Alexis Johnson, on behalf of the Government of the United States of America, agree to announce:

In order to give each other judicial assistance on the basis of equality and reciprocity, the Government of the People’s Republic of China and the Government of the United States of America deem it necessary to reach an agreement on judicial assistance between the two countries. The Governments of the two countries decide to appoint experts to start negotiations on the substance and concrete arrangements of an agreement on judicial assistance between the two countries.” End text.

7. I replied. As communications from his country to Mr. Wirin had indicated their intention of making a proposal of this kind, this matter has already been given careful consideration of my government. First let me point out that it is Mr. Wirin as the defense attorney for the defendants Powell who is seeking to obtain testimony in his country and not the U.S. Government and that the court was simply acting on Wirin’s behalf. A passport has now been issued to Mr. Wirin for the purpose of taking the testimony he seeks on behalf of his clients. It is entirely up to the authorities of his country whether or not they desire to cooperate with Mr. Wirin in the collection of the evidence which he seeks. There is no responsibility of the U.S. Government in this regard. It is clearly not necessary to have a judicial assistance agreement such as he proposed to permit Wirin to take the testimony that he seeks. Countries commonly permit the taking of such testimony without intergovernmental agreements. I myself have often had experience in this regard. I was therefore authorized to inform him that the U.S. Government does not consider it possible to enter into such agreement and does not consider such an agreement necessary for the taking of such testimony.

8. Wang replied. He considered the response made by me to this question as not satisfactory. No matter who is going there to take testimony, the case is not one of an individual applying to the Chinese Ministry of Justice, but it is the District Court of Northern California that has made the request to the Ministry of Justice. Clearly this court is an institution of the United States and cannot be anything else. The statement has been made to the effect that an individual person may proceed to obtain testimony in a foreign country without the agreement of the government concerned. Such a statement cannot be regarded as correct. That statement does not conform even with the accords signed by the United States itself with foreign countries.

9. Wang continued. He just would cite one case. At the 6th Inter-American Conference held in Havana in 1928 a Bustamante code was adopted at that conference at which the U.S. was represented. Article 388 of this code states that every judicial step which a country has to take in another country will be carried out by letters consular or letters rogatory submitted through diplomatic channels. If, as I said, the possibility of judicial assistance existed without the necessity of agreement between the governments concerned, then this article in the Bustamante code in which U.S. has associated itself would appear to be irrelevant. Now the fundamental fact is that an institution of the U.S. has put forward such a request to his authorities and his authorities have expressed willingness to meet this request so that it can be handled by proper channels and procedures. Since I had made a remark that it was not necessary for governments to reach agreement on the handling of judicial assistance and if this is the considered opinion of the U.S. does this mean that the U.S. no longer seeks such judicial assistance. If so, the U.S. has reversed its position.

10. I replied. I happened to have had personally considerable experience in this field while serving as consular officer at various posts. It is up to each country to determine for itself whether it will permit the taking of testimony within its territory and under what circumstances it will permit the taking of such testimony. Letters rogatory are merely one form for taking of such testimony. There are many other forms. It is up to the country in which the testimony is to be taken to determine in what form it may be taken and the courts in the country where the testimony is to be used to determine the acceptability of that form. The 1928 Havana Convention which he cited certainly has not supported the statement that testimony cannot be taken in the absence of such agreement. It merely agrees that letters rogatory will be the form. In the absence of agreements, it is up to each country to decide for itself. Mr. Wirin has been issued a passport at his request for the purpose of taking testimony in Wang’s country. Whether Wang’s government permits Wirin to do so and in what form it permits him to do so is entirely up to the decision of his authorities. It is not a matter in which the U.S. Government has responsibility.

11. Wang replied. There exist two forms of judicial assistance between two countries. One of the forms is to proceed in accordance with international practice. The other is to proceed not in accordance with international practice; one of the forms shows respect for the other country whereas the other form does not show such respect. One of the sides has requested judicial assistance from the other while at the same time it is not going to follow international practice in this regard. This cannot be considered as showing respect for another country. Suppose an official institution in China approaches a court of the U.S. Government. He would presume the U.S. Government would not agree to this procedure. His side has already made clear that they are ready and willing to consider the request made by the American court. But this matter must be handled and settled in accordance with proper procedures in this respect. Since I had made it clear that the U.S. will not consider entering into an agreement to cooperate on this matter, it appears that on the one hand the U.S. has made the request while on the other it refuses the acceptance of this request and its satisfaction. He much regretted the failure to reach an agreement on a matter on which his authorities were first approached by an American institution. It would appear that the U.S. Government has made up its mind not to resolve any issues between our two countries. He cannot but express regret and dissatisfaction. He wants to make clear that they will take steps to make known their position in this matter.

12. Wang continued. I had just informed him of my transfer to a new post. He recalled that the present series of talks between us was started by the two of us and at one time was carried on by the Consuls General of our two governments in Geneva. Then, on the initiative of the U.S., the consular contacts were elevated to the present level of Ambassadors. He regretted that he had not been able to accomplish the tasks and hopes entrusted to us by our peoples and governments. One thing on which he wanted to be clear following my transfer whether my government is going to change nature talks at Ambassadorial rank.

13. I replied. There is no intent to change the nature of these talks. As I told him it is the desire of my government that they continue. However, compelling reasons do not make it possible for us to designate a person of Ambassadorial rank at this time for this purpose. As he knows, Mr. Martin is a senior and experienced officer of our foreign service who as he knew, except for a brief interval, has been connected with these talks from the beginning. He has the full confidence of the U.S. Government and it is the opinion of the U.S. Government that he is best able to carry them on at this time.

14. Wang replied. The purpose of his asking the question was to clarify the nature of the talks and not an expression of opinion on any individual person. With regard to my information he was not in a position to make a reply but he had to report back to his government. He will consult with his government and when any reply was received he would let me know.

15. I suggested that Mr. Lai or Mr. Chiu could address a letter to Mr. Martin at the Consulate General here. I added that Mr. Martin is authorized to agree to a time and place for the next meeting.

16. Wang replied that in any event he will communicate to me the opinion of his government about arrangements for the next step.

17. I commented that it might delay this as I might be leaving shortly.

18. Wang replied that they could communicate with me via Mr. Martin.

19. I stated that at the close of the meeting I was no longer the U.S. representative but that it was all right to address the letter to me if he [illegible in the original] as long as Mr. Martin gets it.

20. Wang replied that the important thing is that arrangements for these talks to continue is a matter to be decided by two not one party.

21. I stated that I was not arguing that point but that Martin is our channel.

22. Wang replied. He wanted to make it clear that he was not expressing an opinion on a person but that these talks at Ambassadorial rank had been raised from consular rank and were known as Ambassadorial talks. Of course he welcomed Mr. Martin’s designation, but as he understood it, Mr. Martin had not been given the rank of Ambassador. In this respect it involves a change in their nature and thus the talks cannot be considered as Ambassadorial talks. Again he wanted to state it does not involve any personal opinion against Mr. Martin. He personally appreciates Mr. Martin’s ability and Mr. Martin certainly enjoys the U.S. Government’s confidence. Mr. Martin is well informed on our problems.

23. Wang continued that he wanted further clarification. We began with Ambassadors who had their advisers. Each team was headed by an Ambassador. Now that I was being transferred and Mr. Martin designated, the talks cannot be considered as Ambassadorial but between advisers.

24. I asked whether we needed to raise the problem. The talks were being continued between the representatives of the two governments. As I told him previously, it was not possible to designate an Ambassador at this time.

25. Wang replied. He recalled that our association began in 1954. I would recall that after the talks between us were instituted I was unable to continue. I agreed to designate an administrative officer to continue the contact. As I was aware the talks were on the same level. If there is any change in the level, it involves a change in the nature of talks and the nature of the problems to be settled will be influenced. The nature or rank of diplomatic negotiations has a bearing on their ability to resolve problems in negotiations. For instance, matters handled at the supreme level between heads of government cannot be handled by foreign ministers.

26. I stated that I thought it was up to each government as to the authority and competence it gives to each representative. Mr. Martin will be diplomatic representative.

27. Wang replied that he had to consult his government on this matter and would give a reply when he had been informed.

28. I stated that the reply, however, should be addressed to Mr. Martin at the Consulate. I added that there was the matter of a press announcement. If we could give a date, there would be less press speculation. We could give a date without discussing the level. I would suggest “Representatives of the U.S. and the Peoples Republic of China will meet on January 9th”. That is four weeks from today. If for any reason there is a change, that could subsequently be announced.

29. Wang replied, should we make announcement along this line, “Ambassador Johnson has been given a new appointment. For this reason the present talks between the two countries are suspended. The procedure for the future talks will subsequently be agreed between the two sides”.

30. I stated that that presented a personal difficulty for me. He was the first to be told of my transfer. I had not yet informed the Czechoslovak Government. I would prefer that a statement on the future of the talks be made. What I had in mind was: “Ambassadors U. Alexis Johnson and Wang Ping-nan held their 73rd meeting today. They stated an announcement would subsequently be made as to the date of the next meeting.”

31. When Wang appeared to demur at this, I suggested the substitution of “concerning” for “as to the date of”.

32. Wang agreed.

U. Alexis Johnson
American Ambassador

1. Source: Department of State, Central Files, 611.93/12–1257. Confidential; Limit Distribution. Received on December 19.