106 Eggleston to Evatt

Dispatch 63 CHUNGKING, 20 January 1943

I have the honour to report that this morning I presented to the Minister for Foreign Affairs a draft treaty for the abolition of extra-territoriality between His Majesty's Government in the Commonwealth of Australia and the Republic of China.

On receipt of your telegram No. SC. 1 of the 16th January, 1943 [1], I at once prepared a fresh draft of the Treaty and immediately asked for an interview with the Minister for Foreign Affairs, whom I saw at 11.00 a.m. on Wednesday 20th January, 1943.

The draft treaty which I presented to Dr. Soong included Articles I, II, III, IV and VIII of the draft which I had the honour to telegraph to you in my Telegram No. S.149 of the 28th November, 1942. [2]

I interpreted your instructions to negotiate these articles on the lines of my draft as giving me some liberty in the matter of verbage and I therefore decided to adopt the wording which had been accepted in the British Treaty [3] where it differs from mine only in the matter of drafting. I did this because I felt that the Chinese, after having had a long bout with the British and Americans, would resent discussing alternative drafting and might be more disposed to make this the occasion for introducing new matters and thus the negotiations would be prolonged and less satisfactory.

It is necessary to strike while the iron is hot and while they are in the mood. There is to be a celebration for three days, commencing on the 5th February, on the abrogation of extraterritoriality and the Unequal Treaties and I hope that our treaty will be completed before this date.

I enclose a fair copy of the draft I have presented. Your amendment to Article I (1) is included. [4] Mistakes seem to have crept into the original draft from my manuscript.

With regard to Article I (2), the words 'domicile or home' are inserted in the definition of Australian nationals. I feel sure that this definition would have been questioned in the case of Chinese nationals because the Chinese claim to protect Chinese who have lived overseas for generations and they have the doctrine of dual nationality. This would have raised a point and might have caused some trouble. As the phrase 'Chinese nationals' does not appear in the Treaty as now presented, it seemed unnecessary to define it so I have omitted it and the same thing applies to Article I (3). My Telegram No. S.9 [5] explains the position of other amendments suggested or made.

In Article III of the Sino-British Exchange of Notes, the Chinese Government agreed to give the British power to acquire land in a very guarded form-it is subject to Chinese laws and regulations and about this as you are averse to discussing the matters in Article V now omitted and the same questions would be raised.

There is no doubt in my mind that the Chinese intend to raise the question of equality of treatment at some stage and their withdrawal of Article I in their draft [6] only suggests to me that they believe a more convenient occasion will arise. They probably have the peace negotiations in mind. Here, if the precedent of 1919 holds, they will most certainly get a majority behind them. This is the reason why I put it to you, as I did to Mr. W. M. Hughes [7] in 1919, that such a general clause would do good in satisfying the Chinese with a formal declaration provided that you get a positive admission that immigration is a matter of domestic jurisdiction; this would give Australia a very definite advantage. The latter proposition is one which I think will almost certainly secure a majority in a peace conference. I regard the question as postponed.

When I presented the draft, I explained to Dr. Soong that it had always been the intention of His Majesty's Government in the Commonwealth of Australia to associate itself in some way with the abrogation of the 'Unequal Treaties', an act which we had long felt must be taken. I had now been instructed to ask for the negotiation of a treaty on this matter and to this end had prepared a draft which I handed to Dr. Soong. I pointed out that the draft followed closely on the British and American Treaties.

Dr. Soong expressed his pleasure at the decision of His Majesty's Government in the Commonwealth of Australia. He added that Australia was in the position of a successor state to one of the signatories of the original Treaty and it was, therefore, desirable, from the point of view of completeness, that we should be a party to the abrogation. He enquired whether the Exchange of Notes had been included in the draft and I explained that it had not, as most of the matters with which we wished to associate ourselves were covered in the Treaty. He promised to study the draft.

Copies of this despatch are being sent to His Majesty's Australian Ministers at Washington and Kuibyshev and the Australian Minister to the Netherlands.

[F. W. EGGLESTON]

1 On file AA:A989, 43/305/2, v. It instructed Eggleston to open negotiations with the Chinese on Articles 1-4 and 8 of the draft treaty only, pointing out that while Eggleston's drafts of Articles 5-7 'skilfully avoid many of the difficulties inherent in the United Kingdom draft their subject matter would be open to misconstruction and uneasiness on part of Australian public'.

2 On file AA:A981, China 60B, ii.

3 Details of the British draft are contained in Eggleston's cablegram S145 (received in Canberra on 29 November 1942) on the file cited in note 2.

4 Evatt's amendment had been communicated to Eggleston in the cablegram cited in note 1.

5 Received in Canberra on 19 January. On the file cited in note 1.

6 See Eggleston's cablegram S140 of 14 November 1942 and Attlee's circular cablegram D463 of 16 November 1942 on the file cited in note 2. The Chinese Article 1 provided that relations between the United Kingdom and China should be on a basis of reciprocity.

7 Prime Minister 1915-23 and leader of the Australian delegation to the Versailles Peace Conference in 1919. Eggleston had also been a member of the Australian delegation.

ENCLOSURE

Sino-Australian Treaty

His Majesty the King of Great Britain, of Ireland and of the British Dominions beyond the seas, Emperor of India (hereinafter referred to as His Majesty the King) and His Excellency the President of the National Government of the Republic of China [1]:

Being desirous of defining more clearly in a spirit of friendship the general relations between the Government of the Commonwealth of Australia and the Republic of China and for this purpose to settle certain matters relating to jurisdiction in China:

And as treaties to settle certain like matters have been concluded between His-Majesty the King for the United Kingdom of Great Britain and Northern Ireland and for India:

Have decided to conclude a Treaty for this purpose and to that end have appointed as their Plenipotentiaries:

His Majesty the King for the Commonwealth of Australia:

His Excellency the President of the National Government of the Republic of China:

Who, having communicated to each other their full powers found to be in good and due form, have agreed as follows:-

ARTICLE I

(1) The territories of the High Contracting Parties to which the present Treaty applies are, on the part of His Majesty the King, the Commonwealth of Australia and all territories and places administered by or under the authority of His Majesty's Government in the Commonwealth of Australia, including any territory administered by His Majesty's Government in the Commonwealth of Australia in pursuance of a Mandate; and on the part of His Excellency the President of the National Government of the Republic of China, all the territories of the Republic of China.

Any reference in subsequent articles of the present Treaty to the territories of one or the other High Contracting Party shall be deemed to relate to those territories of that High Contracting Party to which the present Treaty applies.

(2) In the present Treaty, the term 'Australian nationals' shall mean British subjects and all British protected persons whose domicile or home was in the territories of His Majesty to which this Treaty applies.

(3) The expression 'Australian companies' shall be interpreted as meaning limited liability and other companies, partnerships and associations constituted under the law of the territories of His Majesty to which the present Treaty applies.

ARTICLE II

His Majesty the King for the Commonwealth of Australia agrees that all those provisions of treaties or agreements in force between His Majesty the King and his Excellency the President of the National Government of the Republic of China which authorise His Majesty or his representative to exercise jurisdiction over Australian nationals or companies in the territory of the Republic of China shall be abrogated and that Australian nationals and companies shall be subject in the territory of the Republic of China to the jurisdiction of the Government of the Republic of China in accordance with the principles of international law and practice.

ARTICLE III

(1) His Majesty the King for the Commonwealth of Australia considers that the Final Protocol concluded at Peking on the 7th September, 1901, between the Chinese Government and other Governments, including His Majesty's Government in the United Kingdom, should be terminated and agrees that the rights accorded to His Majesty's Government in the United Kingdom under that Protocol and under the agreements supplementary thereto shall cease and also that the International Settlements at Shanghai and Amoy and the British Concessions at Tientsin and Canton should return to the control and administration of the Government of the Republic of China and agrees that the rights accorded to His Majesty in relation to the said settlements and Concessions shall cease.

(2) His Majesty's Government in the Commonwealth of Australia will, if necessary, co-operate in any action legally required for the transfer to the Government of the Republic of China of the administration and control of the Diplomatic Quarter at Peking and the said International Settlements and the said British Concessions, it being mutually understood that all legitimate rights acquired by Australian nationals and companies or His Majesty's Government in the Commonwealth of Australia in such Diplomatic Quarter and in such Concessions and Settlements shall be recognised and protected by the Government of the Republic of China.

ARTICLE IV

(1) In order to obviate any questions as to existing rights in respect of or as to existing titles to real property in the territory of the Republic of China possessed by Australian nationals and companies or by His Majesty's Government in the Commonwealth of Australia and, in particular, questions which might arise from the abrogation of the provisions of treaties and agreements provided for in Article II of the present Treaty, the High Contracting Parties agree that such existing rights or titles shall be indefeasible and shall not be questioned upon any ground except upon proof established through due process of law, of fraud or of fraudulent or dishonest practices in the acquisition of such rights or titles, it being under stood that no right or title shall be rendered invalid by virtue of any subsequent change in the original procedure through which it was acquired. It is also agreed that the exercise of these rights or titles shall be subject to the laws and regulations of the Republic of China concerning taxation, national defence and the right of eminent domain and that no such rights or titles may be alienated to the Government or nationals (including companies) of any third country without the express consent of the Government of the Republic of China. And it is further agreed that the restriction on the right of alienation of existing rights and titles to real property referred to in this article will be applied by the Chinese authorities in an equitable manner and that if, and when, the Chinese Government decline to assent to a proposed transfer by an Australian national or company, the Chinese Government will, in a spirit of justice and with a view to precluding loss on the part of such nationals or companies whose interests are affected, undertake, if so requested by such national or company to whom permission to alienate has been refused, to take over the rights and titles in question and pay adequate compensation therefor.

(2) The High Contracting Parties also agree that if it should be the desire of the Government of the Republic of China to replace by new deeds of ownership existing leases in perpetuity or other documentary evidence relating to real property held by Australian nationals or companies or by His Majesty's Government in the Commonwealth of Australia, the replacement shall be made by the Chinese authorities without charges of any sort and the new deeds of ownership shall fully protect the holders of such leases or other documentary evidence and their legal heirs and assigns without diminution of their prior rights and interests including the rights of alienation.

(3) The High Contracting Parties agree further that Australian nationals or companies and His Majesty's Government in the Commonwealth of Australia shall not be required or asked by the Chinese authorities to make any payments of fees in connection with land transfers for or with relation to any period prior to the effective date of this treaty.

ARTICLE V

The present Treaty shall be ratified and the instruments of ratification shall be exchanged at Chungking as soon as possible.

The Treaty shall come into force on the day of the exchange of ratifications.

In witness whereof the above-mentioned plenipotentiaries have signed the present Treaty and affixed thereto their seal.

Done at Chungking this ... day of the ... month of the 32nd year of the Republic of China, in duplicate in Chinese and English, both texts being equally authentic.

[AA:A989, 43/305/2, v]

1 Lin Sen.

[AA:A989, 43/305/2, v]