366 Full Cabinet Submission by Evatt

Agendum 761 CANBERRA, 6 December 1944

ABROGATION OF EXTRATERRITORIAL RIGHTS IN CHINA A PROPOSED AUSTRALIAN - CHINESE TREATY

The Chinese Minister [1] recently raised again the question of a treaty between China and Australia abrogating extraterritorial privileges on the same lines as that signed between China and Canada.

2. Before Sir Frederic Eggleston left for China in 1941 this question was considered by the Advisory War Council. [2] Sir Frederic was told that Australia was in favour of abrogation and should act with other parties interested. He therefore, when in China, urged on the representatives of the United Kingdom and the United States the desirability of abrogation. This was intended as the termination of a system which was not suitable to modern conditions and as a gesture of friendliness and goodwill to the Chinese Government and people.

3. The Governments of the United Kingdom and the United States started negotiations in October, 1942, and on January 11th, 1943, treaties were signed.

4. Australia then started negotiations for a separate treaty and proposed to the Chinese Government in January 1943 a simple treaty confined to a renunciation on the part of the Commonwealth of extraterritorial rights and privileges in China. [3]

5. On 29th January, 1943, the Chinese Government submitted a counter-proposal which contained provisions virtually the same as the Australian proposals but added articles dealing with reciprocal rights of travel, residence and commerce, consular representation and a mutual undertaking to negotiate a general treaty of friendship, commerce, navigation, etc. [4] At the time it was felt that these additional provisions were irrelevant to the main matter. Such clauses, however, were included in the United Kingdom and the United States Treaties.

6. In pursuance of the United Kingdom Treaty a United Kingdom Order-in-Council was made on 22nd March, 1943, abolishing the British machinery in China by which the privileges flowing from extraterritoriality were made effective; this Order-in-Council recited that the Commonwealth of Australia had requested and consented to the making of the Order as regards those interests with which it was concerned.

7. On the view that as the Commonwealth had adhered to the Order- in-Council and that extraterritorial privileges were at an end so far as Australia is concerned, an exchange of Notes was thereupon proposed by the Australian Government in lieu of the proposals to negotiate a treaty. [5] No progress has been made with this proposal.

8. On the 14th April, 1944, the Government of Canada signed a Treaty and Exchange of Notes with China containing the additional provisions referred to in paragraph 5 above.

9. Since the signature of the Canadian Treaty, the Chinese Government has repeatedly expressed the wish for conclusion of a similar treaty with Australia. In present circumstances it is clear that the conclusion of such a treaty between Australia and China will have substantial political value.

10. Attached hereto as Annex 'A' [6] is the text of a treaty drafted on the general lines of the Canadian Treaty to each clause of which has been appended a note on the point involved. A draft Exchange of Notes, similar to those accompanying the Canadian Treaty, is also attached as Annex 'B'. [7]

11. These documents are submitted for the consideration of Cabinet with a view to the authorization of negotiations with the Chinese Government for an agreement on the lines generally indicated therein.

H. V. EVATT

1 Dr Hsu Mo.

2 See Documents on Australian Foreign Policy 1937-49, vol. V, Document 33.

3 See ibid., vol. VI, Document 106.

4 ibid., Document 110.

5 ibid., Documents 137 and 150.

6 Not published.

7 Not published.

[AA:A2700, VOL. 13, i]