500.A4d/131

The Secretary of State to the Chinese Minister ( Sze )5

Sir: I have the honor to acknowledge the receipt of your note of January 22, 1926, with which you enclosed, under instructions from your Government, a memorandum embodying the views of your Government in regard to the adherence by non-signatory Powers to the Nine Power Treaty signed at Washington on February 6, 1922, relating to principles and policies concerning China. I enclose a memorandum setting forth the views of the Government of the United States relating to the questions raised by the Chinese Government. For the reasons set forth therein the Government of the United States regrets that it finds itself unable to act in accordance with the suggestion of the Chinese Government and withdraw the invitations to adhere to the Treaty which have been extended to Germany, Switzerland, Chile, Persia, Bolivia and Peru.

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.

Accept [etc.]

Frank B. Kellogg
[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.

  1. File copy bears the notation: “Copied to Peking, Berne, Stockholm, Madrid, Lima, Teheran, Oslo, Berlin, Copenhagen, Santiago, Rio de Janeiro, La Paz, Vienna, Lisbon, The Hague, Tokyo, Rome, Paris, London and Brussels.”
  2. China, Imperial Maritime Customs, Treaties, vol. ii, p. 1474.
  3. Foreign Relations, 1922, vol. i, p. 289.
  4. Telegram not printed.