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693.001/510
The Ambassador in Japan (Grew)
to the Japanese Minister For Foreign Affairs (Arita) [40]
No. 1153 TOKYO, December 30, 1938.
EXCELLENCY: Acting under the instructions of
my Government I have the honor to address to Your Excellency the following
note:
[40] Delivered by the Ambassador at 11: 30 a.m., December 31, 1938.
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DOCUMENTS
The Government of the United States has
received and has given full consideration to the reply of the Japanese
Government of November 18 to this Government's note of October 6 on the subject
of American rights and interests in China.
In the light of facts and experience the
Government of the United States is impelled to reaffirm its previously
expressed opinion that imposition of restrictions upon the movements and
activities of American nationals who are engaged in philanthropic, educational
and commercial endeavors in China has placed and will, if continued.
increasingly place Japanese interests in a preferred position and is,
therefore, unquestionably discriminatory in its effect against legitimate
American interests. Further, with reference to such matters as exchange
control, compulsory currency circulation, tariff revision. and monopolistic
promotion in certain areas of China the plans and practices of the Japanese
authorities imply an assumption on the part of those authorities that the
Japanese Government or the regimes established and maintained in China by
Japanese armed forces are entitled to act in China in a capacity such as flows
from rights of sovereignty and further in so acting to disregard and even to
declare nonexistent or abrogated the established rights and interests of other
countries including the United States.
The Government of the United States expresses
its conviction that the restrictions and measures under reference not only are
unjust and unwarranted but are counter to the provisions of several binding
international agreements, voluntarily entered into, to which both Japan and the
United States, and in some cases other countries, are parties.
In the concluding portion of its note under
reference, the Japanese Government
states that it is firmly convinced that "in the face of the new
situation, fast developing in Asia, any attempt to apply conditions of today
and tomorrow inapplicable ideas and principles of the past neither would
contribute toward the establishment of a real peace in East Asia nor solve the
immediate issues" and that "as long as these points are understood
Japan has not the slightest inclination to oppose the participation of the
United States and other Powers in the great work of reconstructing East Asia
along all lines of industry and trade."
The Government of the United States in its
note of October 6 requested, in view of the oft reiterated assurances proffered
by the Government of Japan of its intention to observe the principles of
equality of opportunity in its relations with China and in view of Japan's
treaty obligations so to do, that the Government of Japan
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abide by these obligations and carry out these assurances in practice.
The Japanese Government in its reply appears to affirm that it is its intention
to make its observance of that principle conditional upon an understanding by
the American Government and by other governments of a "new situation"
and a "new order" in the Far East as envisaged and fostered by
Japanese authorities.
Treaties which bear upon the situation in the
Far East have within them provisions relating to a number of subjects. In the
making of those treaties, there was a process among the parties to them of give
and take. Toward making possible the carrying out of some of their provisions,
others among their provisions were formulated and agreed upon: toward gaining
for itself the advantage of security in regard to certain matters, each of the
parties committed itself to pledges of self-denial in regard to certain other
matters. The various provisions agreed upon may be said to have constituted
collectively an arrangement for safeguarding, for the benefit of all, the
correlated principles on the one hand of national integrity and on the other
hand of equality of economic opportunity. Experience has shown that impairment
of the former of these principles is followed almost invariably by disregard of
the latter. Whenever any government begins to exercise political authority in
areas beyond the limits of its lawful jurisdiction there develops inevitably a
situation in which the nationals of that government demand and are accorded, at
the hands of their government, preferred treatment, whereupon equality of
opportunity ceases to exist and discriminatory practices, productive of
friction, prevail.
The admonition that enjoyment by the
nationals of the United States of non-discriminatory treatment in China—a
general and well established right—is henceforth to be contingent upon an
admission by the Government of the United States of the validity of the
conception of Japanese authorities of a "new situation" and a
"new order" in East Asia, is, in the opinion of this Government,
highly paradoxical.
This country's adherence to and its advocacy
of the principle of equality of opportunity do not flow solely from a desire to
obtain the commercial benefits which naturally result from the provisions of
that principle. They flow from a firm conviction that observance of that
principle leads to economic and political stability, which are conducive both
to the internal well-being of nations and to mutually beneficial and peaceful
relationships between and among nations; from a firm conviction that failure to
observe that principle breeds international friction and ill-will, with
consequences injurious to all coun-
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tries, including in particular those countries which fail to observe it;
and from an equally firm conviction that observance of that principle promotes
the opening of trade channels thereby making available the markets, the raw
materials and the manufactured products of the community of nations on a
mutually and reciprocally beneficial basis.
The principle of equality of economic
opportunity is, moreover, one to which over a long period and on many occasions
the Japanese Government has given definite approval. It is one to the
observance of which the Japanese Government has committed itself in various
international agreements and understandings. It is one upon observance of which
by other nations the Japanese Government has of its own accord and upon its own
initiative frequently insisted. It is one to which the Japanese Government has
repeatedly during recent months declared itself committed.
The people and the Government of the United
States could not assent to the establishment at the instance of and for the
special purposes of any third country of a regime which would arbitrarily
deprive them of the long established rights of equal opportunity and fair
treatment which are legally and justly theirs along with those of other
nationals.
Fundamental principles such as the principle
of equality of opportunity which have long been regarded as inherently wise and
just which have been widely adopted and adhered to, and which are general in
their application are not subject to nullification by a unilateral affirmation.
With regard to the implication in the
Japanese Government's note that the "conditions of today and
tomorrow" in the Far East call for a revision of the ideas and principles of
the past, this Government desires to recall to the Japanese Government its
position on the subject of revision of agreements.
This Government had occasion in the course of
a communication delivered to the Japanese Government on April 29, 1934, to
express its opinion that "treaties can lawfully be modified or be
terminated,— but only by processes prescribed or recognized or agreed upon by
the parties to them".
In the same communication this Government
also said, "In the opinion of the American people and the American
Government, no nation can, without the assent of the other nations concerned,
rightfully endeavor to make conclusive its will in situations where there are
involved the rights, the obligations and the legitimate interests of other
sovereign states". In an official and public statement on
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July 16, 1937, the Secretary of State of the United States declared that
this Government advocates "adjustment of problems in international
relations by processes of peaceful negotiation and agreement".
At various
times during recent decades various powers, among which have been Japan and the
United States, have had occasion to communicate and to confer with regard to
situations and problems in the Far East. In the conducting of correspondence
and of conferences relating to these matters, the parties involved have
invariably taken into consideration past and present facts and they have not
failed to perceive the possibility and the desirability of changes in the
situation. In the making of treaties they have drawn up and have agreed upon
provisions intended to facilitate advantageous developments and at the same
time to obviate and avert the arising of friction between and among the various
powers which, having interests in the region or regions under reference, were
and would be concerned.
In the light of these facts, and with
reference especially to the purpose and the character of the treaty provisions
from time to time solemnly agreed upon for the very definite purposes
indicated, the Government of the United States deprecates the fact that one of
the parties to these agreements has chosen to embark—as indicated both by
action of its agents and by official statements of its authorities—upon a
course directed toward the arbitrary creation by that power by methods of its
own selection, regardless of treaty pledges and the established rights of other
powers concerned, of a "new order" in the Far East. Whatever may be
the changes which have taken place in the situation in the Far East and whatever
may be the situation now, these matters are of no less interest and concern to
the American Government than have been the situations which have prevailed
there in the past, and such changes as may henceforth take place there, changes
which may enter into the producing of a "new situation" and a
"new order", are and will be of like concern to this Government. This
Government is well aware that the situation has changed. This Government is
also well aware that many of the changes have been brought about by the action
of Japan. This Government does not admit, however, that there is need or
warrant for any one Power to take upon itself to prescribe what shall be the
terms and conditions of a "new order" in areas not under its
sovereignty and to constitute itself the repository of authority and the agent
of destiny in regard thereto.
It is known to all the world that various of
the parties to treaties concluded for the purpose of regulating contacts in the
Far East and avoiding friction therein and therefrom—which treaties contained,
for those purposes various restrictive provisions—have from time
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to time and by processes of negotiation and agreement contributed in the
light of changed situations toward the removal of restrictions and toward the
bringing about of further developments which would warrant in the light of
further changes in the situation, further removals of restrictions. By such
methods and processes, early restrictions upon the tariff autonomy of all
countries in the Far East were removed. By such methods and processes the
rights of extraterritorial jurisdiction once enjoyed by Occidental countries in
relations with countries in the Far East have been given up in relations with
all of those countries except China; and in the years immediately preceding and
including the year 1931, countries which still possessed those rights in China
including the United States were actively engaged in negotiations—far
advanced—looking toward surrender of those rights. All discerning and impartial
observers have realized that the United States and others of the "treaty
powers" have not during recent decades clung tenaciously to their
so-called "special" rights and privileges in countries of the Far
East but on the contrary have steadily encouraged the development in those
countries of institutions and practices in the presence of which such rights
and; privileges may safely and readily be given up; and all observers have seen
those rights and privileges gradually being surrendered voluntarily through
agreement by the Powers which have possessed them. On one point only has the
Government of the United States, along with several other governments,
insisted: namely, that new situations must have developed to a point warranting
the removal of "special" safeguarding restrictions and that the
removals be effected by orderly processes.
The Government of the United States has at
all times regarded agreements as susceptible of alteration, but it has always
insisted that alterations can rightfully be made only by orderly processes of
negotiation and agreement among the parties thereto.
The Japanese Government has upon numerous
occasions expressed itself as holding similar views.
The United States has in its international
relations rights and obligations which derive from international law and rights
and obligations which rest upon treaty provisions. Of those which rest on
treaty provisions, its rights and obligations in and with regard to China rest
in part upon provisions in treaties between the United States and China and in
part on provisions in treaties between the United States and several other
powers including both China and Japan. These treaties were concluded in good
faith for the purpose of safeguarding and promoting the interests not of one
only but of all
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of their signatories. The people and the Government of the United States
cannot assent to the abrogation of any of this country's rights or obligations
by the arbitrary action of agents or authorities of any other country.
The Government of the United States has,
however, always been prepared and is now prepared to give due and ample
consideration to any proposals based on justice and reason which envisage the
resolving of problems in a manner duly considerate of the rights and obligations
of all parties directly concerned by processes of free negotiation and new
commitment by and among all of the parties so concerned. There has been and
there continues to be opportunity for the Japanese Government to put forward
such proposals. This Government has been and it continues to be willing to
discuss such proposals, if and when put forward, with representatives of the
other powers, including Japan and China, whose rights and interests are
involved, at whatever time and in whatever place may be commonly agreed upon.
Meanwhile, this Government reserves all
rights of the United States as they exist and does not give assent to any
impairment of any of those rights.
I avail myself [etc.]
JOSEPH C. GREW