Author: William Tang
Translator: Pingbo Zhou
On November 4, 1946 (Year 35 of the Republic of China), the Chairman of the National Government of the Republic of China sent Wang Shijie, Minister of Foreign Affairs of the Republic of China, and Wang Huacheng, Director of the Treaty Department of the Ministry of Foreign Affairs of the Republic of China, to meet with Leighton Stuart, Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of China, and Robert Smyth, Special Commissioner and Consul General of the United States of America at Tianjin. The men met in a conference room on the third floor of the Nanjing National Executive Yuan to sign the Treaty of Friendship, Commence and Navigation between the United States of America and the Republic of China, commonly known as the “Sino-American Treaty of Friendship, Commence and Navigation” or “Sino-American Commerce Treaty”[1].
Normally, treaties were signed at the Ministry of Foreign Affairs. However, the signing of the “Sino-American Commerce Treaty” held special significance as the first treaty signed after the removal of the Unequal Treaties. Song Ziwen, President of the Executive Yuan, held the signing in extremely high regard, so it was carried out at the Executive Yuan.
The signing of this treaty was in accordance with Article 7[2] of the Treaty Between the United States of America and the Republic of China for the Relinquishment of Extraterrestrial Rights in China and the Regulation of Related Matters, also known as the “Sino-American New Equal Treaty”, [2] which was signed on January 11, 1943. Article 7 reads as follows:
The government of the Republic of China and the government of the United States mutually agreed that upon the request of one nation or within six months after the end of World War II, both nations would negotiate a comprehensive modern treaty of friendship, commerce, navigation and consular rights. This treaty would be based on modern principles and procedures of international law and the precedent established by recent treaties that the Republic of China and the United States have negotiated with other governments.
Before the aforementioned comprehensive treaty is established, if any issues arise in the future involving United States citizens (including companies and associations) or the authority of the United States government in the territory of the Republic of China that are not within the scope of this agreement, nor within the scope of existing agreements between the Republic of China and the United States that have not been superseded by this agreement or are in conflict with this agreement or existing treaties between the two governments, then government representatives of both nations should confer and resolve the matter in accordance with the generally recognized principles of international law and modern international practices.
The Sino-American New Equal Treaty was signed on January 11, 1943 in Washington D.C. by Wei Daoming, Republic of China’s Ambassador to the United States, and Cordell Hull, United States Secretary of State.
The key terms of the Sino-American New Equal Treaty were that the United States would forfeit all rights to extraterritoriality in China as well as inland navigation rights. It also abolished the Boxer Protocol and associated articles. After relinquishing extraterritoriality, China’s judicial power finally was allowed to be independent. Therefore, the government of the Republic of China designated January 11 as Judicial Day.
Prior to signing the agreement, the government of United States contacted the Republic of China beginning on October 9, 1942 expressing its willingness to forfeit its rights to extraterritoriality in China and related rights, and committed to providing a draft agreement in the near future. After formal discussions with the Chinese government, both parties began actively negotiating terms in preparation of signing another treaty. On October 24, the United States sent a draft Sino-American treaty to the Republic of China.
The Sino-American New Equal Treaty was ratified in Washington D.C. and came into effect on May 20, 1943 after formal approvals from both parties.
On November 30, 1948 (Year 37 of the Republic of China), the Sino-American Treaty of Friendship, Commence and Navigation came into effect after the mutual exchange of ratifications in Nanjing on that day. The treaty was valid for five years and would remain in effect thereafter if neither party proposed to abolish it within one year of its original termination date. However, because the treaty was not approved by the United States Senate until two years later (November 1949), in actuality the treaty was not approved until the Kuomintang had retreated to Taiwan. Therefore, the terms of the treaty only applied to Taiwan.
Image 1, President of the Executive Yuan, Song Ziwen (left) and Ambassador Extraordinary and Plenipotentiary of the United States of America to the Republic of China, Leighton Stuart (right) toast to celebrate the signing of the Sino-American Treaty of Friendship, Commence and Navigation.
The Sino-American Treaty of Friendship, Commence and Navigation had 30 articles and 68 clauses in total. The Treaty’s opening statement read: “The United States of America and the Republic of China, desirous of strengthening the bond of peace between the two countries by arrangements designed to promote friendly intercourse between their respective territories through provisions responsive to the spiritual, cultural, economic and commercial aspirations of the people thereof, have resolved to conclude a Treaty of Friendship, Commerce, and Navigation.”
Image 2, the Treaty of Friendship, Commerce, and Navigation.
Key provisions of the Treaty of Friendship, Commerce, and Navigation included:
1. Mutual peace and friendship between China and the United States.
2. Equal treatment for citizens: nationals of each country are allowed to reside, travel, and engage in trade in the other country without interference and without requiring any travel documents other than either valid passports or other official identification documents issued by the other country.
3. Equal treatment for corporations: corporations of each country shall be permitted to engage in any activities that the other country allows, and will be treated the same as those of a most-favored nation. This also applies to all legal individuals and associations or groups.
4. Rights regarding mineral resources: any rights granted by one of the countries for nationals and corporations of a third country to explore for or produce mineral resources in its territories shall extend the same rights to the nationals and corporations of the other country.
5. No restrictions over imports or exports: neither country is allowed to impose restrictions on any imports or exports of the other, and shall enjoy the most-favored nation tax rate.
6. Equal tax privileges: U.S. goods in China enjoy the same tax rate and treatment as Chinese-made goods. Chinese goods in the U.S. also enjoy the same tax rates and treatment as U.S.-made goods; Chinese and American citizens pay the same taxes and fees as nationals when abroad in the other country.
7. Co-management of territorial waters: ships of both countries can freely enter the other country’s aquatic boundaries and inland channels, and operate the domestic routes of the other country. In times of distress, one side’s ships may unconditionally enter restricted waters on the other side.
How the Treaty Related to Other Treaties
The 29th article of the Treaty of Friendship, Commerce, and Navigation formally abolished the nine previous treaties that had been signed between the Chinese and United States government between 1844-1928 [3,4].
These nine treaties were:
1, The Treaty of Wangxia, signed July 3, 1844;
2, The Treaty of Tianjin, signed June 18, 1858;
3, The Treaty Establishing Trade Regulations and Tariff, signed November 8, 1858;
4, The Burlingame Treaty, signed July 28, 1868;
5, The Immigration Treaty, signed November 17, 1880;
6, The Treaty of Commercial Intercourse and Judicial Procedure, signed November 17, 1880;
7, The Treaty as to Commercial Relations, signed October 8, 1903;
8, The Treaty Establishing Rates of Duty on Imports into China, signed October 20, 1920; and
9, The Treaty Regulating Tariff Relations, signed July 25, 1928.
The 29th article of the Treaty of Friendship, Commerce, and Navigation also stated that nothing in this treaty shall be construed to impose any limitations on the rights and privileges granted to the Republic of China in the Sino-American New Equal Treaty signed on January 11, 1943.
The Significance of Abolishing American Extraterritoriality in China
China had long been subjected to unequal treaties with the United States and England. After the Pacific War broke out in 1941, China, who was an ally against fascism, requested that the unequal treaties be abolished. The United States agreed to relinquish its extraterritorial privileges in China in August 1942, and England followed suit on September 8th of that year. On January 11, 1943, the United States and England respectively signed agreements in Washington and Chongqing, giving up their extraterritorial rights in China and other related rights and interests, including consular jurisdiction, consulate boundaries and garrison areas, concessions, and special courts. This led to concern in the United States over whether or not citizens and businesses in China would receive adequate protections. Clarence Gauss, U.S. Ambassador to the Republic of China, emphasized “the need for mutual consideration and reciprocity; Americans in China and U.S. interests should have rights commensurate with those of Chinese in the United States”. The Magnuson Act passed in December 1943 abolished the Chinese Exclusion Act of 1882, ending this 61-year long discriminatory law that specifically targeted one group.
After the end of WWII, American capitalists were extremely interested in the massive Chinese market and the U.S. State Department was eager to satisfy the business community’s demands for immediate negotiations. However, the government of the Republic of China was still preoccupied with figuring out how to rebuild the nation’s economy and infrastructure after the war and was not in a hurry to come to the table since it had not yet had time to establish the necessary economic regulations and procedures. The Chinese did not begin to research and discuss the matter until April 1945, when it received a draft treaty from the United States. [5,6]
Opposition and Repeal from China
The Treaty of Friendship, Commerce, and Navigation had three major impacts. It helped protect the lives and property of Chinese workers in America, who were no longer subject to the discriminatory Chinese Exclusion Act. The 29th article of the Treaty required that the United States abolish the unequal treaties that had been in place since the late Qing Dynasty. After its passing, America became open for access to China, but at the same time China’s land was open to the United States as well. This severely damaged Chinese sovereignty.
While the Treaty of Friendship, Commerce, and Navigation appeared to be equal, because the gap in economic development between the United States and China was so extreme, the benefits conferred by the Treaty significantly favored the United States. Chinese politicians, political parties, and academics spoke out in opposition of this Treaty.
Wang Shijie, Minister of Foreign Affairs of the Republic of China and one of the signers of the Treaty, wrote in his journal that “because the United States and China have different economic circumstances, supposed reciprocal benefit is in reality a one-sided advantage.”
Economist Ma Yinchu denounced the Treaty as “a sacrifice of the entire nation’s interests in order to receive weapons of war used to kill our own people; establishing this Treaty is the most we could have done to shame our nation and ruin our economic interests.”
The Chinese Communist Party was in staunch opposition to this Treaty. On November 26, 1946, the Liberation Daily newspaper published an editorial on the Treaty, calling it “the most shameful, traitorous treaty in history” and saying that “Jiang’s government treats China as a tributary to the United States…the Chinese have suffered a new national humiliation.”
On February 1, 1947, the Chinese Communist Party declared: “The Communist Party refuses to acknowledge or take responsibility, now or in the future, for any foreign debts taken on or any humiliating treaties and concessions established after January 10, 1946 by the Kuomintang.”
On October 1, 1949, the Central People’ Government of the People’s Republic of China announced that it was “abolishing all unequal treaties”, which meant the end for the Treaty of Friendship, Commence and Navigation in mainland China. However, the Treaty was not officially repealed in Taiwan.
In 1979, the United States and People’s Republic of China established diplomatic relations, and the Treaty phased out of relevance.
The Modern Academic View on the Treaty of Friendship, Commence and Navigation
Renowned modern-day thought leader, author, and historian Qian Wenjun had this to say about the Treaty of Friendship, Commence and Navigation in a chapter of his book, “Works by Qian Wenjun”.
“In effect, the Sino-US Treaty of Friendship, Commerce and Navigation has completely ended all unequal treaties between the United States and China. In fact, as early as June 16, 1928, when United States had not yet recognized the government of the Republic of China, the Nanjing government proposed to the U.S. government to abolish the current tariffs and restore China’s independent tariffs. On June 27, the American Assistant Secretary of State indicated to France that the U.S. was planning to independently negotiate the removal of the current tariffs. On July 25, the Treaty Regulating Tariff Relations was signed. The Treaty established: “The various clauses in the effective treaties between China and the United States concerning taxes, tariffs, and other fees shall be immediately revoked and voided, and China shall have complete autonomy over its tariffs. The involved countries shall enjoy the same treatment in each other’s territory with respect to this matter as the treatment enjoyed by other countries.” Therefore, China’s right to tariff independence was already established by law, and the U.S. was the first nation to abolish its previous tariff regulations in China. China was able to achieve tariff independence because England, France, Germany, and other countries all followed suit after the United States took the lead.
“Past treaties between China and the Western Powers were unequal because they were based on the one-sided principle of “most-favored nation” status, which was established international practice at the time and began as early as the 17th century. These treaties were clearly unequal because only one party enjoyed this status. The Treaty of Friendship, Commence and Navigation was truly equal because it granted this status to both parties. Because the U.S. and China differed in economic development and technological advancement, this Treaty did not necessarily result in equal outcomes for both nations. However, this cannot be used as a reason to claim the Treaty was unequal. It cannot be expected that a developed, strong nation would sign a treaty to disadvantage itself in order to compensate a lesser-developed nation.
“Because this Treaty was distorted and maligned in 1946, it has become accepted as common fact that it was unfair and deemed unfit for further discussion. In reality, this Treaty was much more equal than the later Sino-Soviet Treaty of Friendship, Alliance and Mutual Assistance. It could even be said that even in the present, China has never signed another treaty that was as favorable as the Treaty of Friendship, Commence and Navigation.”
References：
- Treaty of Friendship, Commerce and Navigation between the United States of America and the Republic of China. The American Journal of International Law. Vol. 43, No. 1, Supplement: Official Documents (Jan., 1949), pp. 27-52 (26 pages). Published By: Cambridge University Press. https://www.cambridge.org/core/journals/american-journal-of-international-law/article/abs/treaty-of-friendship-commerce-and-navigation-between-the-united-states-of-america-and-the-republic-of-china1/E0FE4B2C16511F7381E6494E57128B10
- Cordell Hull, China-United States: Treaty for the Relinquishment of Extraterritorial Rights In China and the Regulation of Related Matters. With Supplementary Exchange of Notes Signed at Washington, January 11, 1943. Cambridge University Press: 12 April 2017. https://www.cambridge.org/core/journals/american-journal-of-international-law/article/abs/chinaunited-states-treaty-for-the-relinquishment-of-extraterritorial-rights-in-china-and-the-regulation-of-related-matters/EB7ECE5A7666FA04ED0E9B54A4CB431A
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