Institute of Pacific Relations

The Sino-American Treaty -- IIAuthor(s): Charles J. FoxSource: Far Eastern Survey, Vol. 16, No. 15 (Aug. 13, 1947), pp. 178-180Published by: Institute of Pacific RelationsStable URL: http://www.jstor.org/stable/3023043 .

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percent criticized "the U. S. position as setting a bad

precedent for Russia, feared Russia might demand sole

trusteeship in her areas in return for her agreement to our trusteeship, and pointed out that the U. S. position had weakened the principle of international trustee-

ship."(5) Our policy in regard to the strategic trust territory

has achieved the following results. First, by indicating quite clearly that considerations of national security far overshadowed those of collective security we under- mined to an extent not yet determined the position of the United Nations as an effective international

organization. The primacy of the strategic concept cer?

tainly would not have been doubted in areas of direct

strategic importance, but in the present instance legiti- mate and embarrassing doubts can be raised.

Second, we succeeded in undermining what prestige we may have won at San Francisco and later in our

championing of the cause of non-self-governing people. It is unfortunate that we had to use the arguments that the area concerned was insignificant in size, that the total population was minute, and that it could not be foreseen when the people would be ready either for

self-government or for independence. Third, we placed ourselves in a position in which

our motives can be legitimately questioned by both sides if in the future we attempt aggressive support of the peoples of non-self-governing areas.

It is too late to remedy the situation, but it is clear that two alternative courses were open to us. First, we could merely have continued in occupation and control of the islands as we have since we took them over from

Japan. We threatened to revert to this situation when it seemed as if the agreement might be seriously altered

against our wishes. The American position has not come under serious attack, except by the Russians who

periodically inveigh against us for building a world- wide network of bases for future aggression. This would have meant a continuation of the status quo until the peace settlement when the whole problem of

Japanese mandates and possessions could have been solved. Thus we could have avoided compromising, at least temporarily, some of the principles we have

sponsored regarding trusteeship. Second, we could have placed the islands under the

ordinary trusteeship system, thus escaping the far from

savory "security" clauses in the agreement and the

appearance of exclusive American sovereignty over the islands.

Either course of action would have served the re?

quirements of our national security, not exclusively in themselves, but as a part of the total strategic and

power situation in the Pacific. In addition, this coun?

try would have been in a much stronger political and moral position, a consideration of great importance in the current unhappy state of the world's affairs.

THE SINO-AMERICAN TREATY-II

BY CHARLES J. FOX

From the American and from an international legal

point of view, the most significant aspect of the Sino-American Treaty of Friendship, Commerce and

Navigation, if approved by the United States Senate without reservation, relates to the jurisdiction of the International Court of Justice. Article XXVIII of the

treaty provides that any dispute between the Govern? ments of the United States and China as to the inter?

pretation or the application of the treaty which the Governments cannot adjust satisfactorily by diplomacy shall be submitted to the International Court of

Justice, unless the two Governments shall agree to settlement by some other specific means. This obliga- Dr. Fox, editor and publisher of the North China Star, an Ameri? can daily newspaper in Tientsin, from 1918 to 1941, is a member of the bar of the District of Columbia and of the former U. S. Court for China. He was for many years legal advisor to the Chinese Foreign Office in Nanking.

The first part of Dr. Fox's study of the Sino-American Treaty appeared in the Far Eastern Survey of Tune 18, 1947.

tion is set forth in a few lines toward the end of the

10,000 word treaty which mentions almost every matter which could possibly arise in the diverse international relations between the two countries.

The Chinese Government bound itself to such com?

pulsory jurisdiction when on October 26, 1946 it filed with the Secretary General of the United Nations at Lake Success a declaration accepting such jurisdiction without reservation or condition. This action was taken subsequent to the adoption by the United States Senate on August 2, 1946 by a vote of sixty to two of Senate Resolution 196 as amended by Senators Con-

nally and Vandenberg. The all-important Connally reservation would be weakened, if not actually ren- dered void, by Senate approval of the treaty in its

present form by a two-thirds vote, as in this country a

treaty duly ratified becomes the law of the land and where the Senate or Congress enacts inconsistent laws the more recent in point of time prevails.

Senate Resolution 196 accepts the jurisdiction of the International Court of Justice, in relation to any other

<-r?) Twohey Analysis of Newspaper Opinion, for week ending April 5, 1947, p. 7.

178 FAR EASTERN SURVEY

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state accepting the same obligation in all legal matters

regarding the interpretation of a treaty, any question of international law, or the existence of any fact that constitutes a breach of an international obligation; but the Resolution stipulates that the jurisdiction shall not apply to disputes on matters which are essentially within the domestic jurisdiction of the United States, as determined by the United States, nor to disputes arising under a multilateral treaty unless all the parties to the treaty affected by the decision are also parties to the case before the Court.

The declaration accepting the jurisdiction of the World Court is to remain in force for a period of five

years and thereafter until the expiration of six months after notice may be given to terminate the declaration. It might, of course, be argued that this provision would

protect the United States even in the event that the

treaty is ratified as it stands. On the other hand, it is rather generally admitted by those who have written on the subject that a government may renounce only reservations made in its declaration which would in? crease rather than derogate from the jurisdiction of the Court.

This jurisdiction of the International Court of

Justice, the judgment of which is "final and without

appeal," is set forth in Article 36 of the Court's Statute. This Statute, with the Charter of the United Nations, was approved by the Senate without reservation on

July 28, 1945 and was proclaimed by President Truman on October 21, 1945. Article 36 provides that the

jurisdiction of the Court shall comprise all cases which the parties refer to it and all matters specifically pro? vided for in the Charter of the United Nations or any treaties or conventions in force. Declarations made under this article shall be deemed to be acceptances of the compulsory jurisdiction of the Court and in the event of a dispute as to whether the Court has juris? diction the Court itself shall settle the matter.

If either the United States or China should decline to accept the judgment of the Court, either party could

appeal to the Security Council of the United Nations in accordance with Article 94 of the Charter which

provides that each member of the United Nations undertakes to comply with the decision of the World Court in any case to which it is a party, and if any party fails to perform the obligations incumbent on it under a judgment rendered by the Court, the other

party may have recourse to the Security Council, which

may, if it deems necessary, make recommendations or decide measures to be taken to give effect to the judg? ment. Of course, both the United States and China, as members of the Big Five, could exercise the veto

power in the Security Council, but such action would no doubt arouse hostile criticism among other mem? bers of the United Nations.

It is true that only states are parties to cases brought before the International Court of Justice, but the

treaty with China deals with many subjects which are

really of a domestic nature and countless issues for determination by federal courts may well arise there- under.<x> Yet Article XVIII of the treaty, if not amended by the Senate, would give the government of China the right to insist upon reviewing even a case decided by the United States Supreme Court, on the

ground that any dispute over the interpretation and

application of the treaty must be passed upon by the International Court of Justice.

The treaty provides also that it shall not be so con- strued as to prevent the imposing of exchange restric? tions in conformity with the Articles of Agreement of the International Monetary Fund, signed December 27, 1945. The provisions according most favored nation treatment shall not apply to advantages which are, or may be, accorded to adjacent countries to facilitate frontier traffic; nor to advantages accorded by a cus? toms union of which either country may, after con? sultation with the government of the other country, become a member, so long as such advantages are not extended to any other country which is not a member of such customs union; nor to advantages accorded to third countries pursuant to a multilateral conven? tion of general applicability, including a trade area of substantial size, having as its objective the liberaliza- tion and promotion of international trade, or other international economic intercourse, and open to adop? tion by all the United Nations.

The provisions of the treaty shall not be construed

(l) The multiplicity of the treaty is shown by the fact that, in addition to the right to reside, travel, and carry on trade, already referred to, there are many other subjects mentioned in the treaty, including immigration, exploration for and exploitation of mineral resources, guaranteed reasonable and humane treat? ment, due process of law and prompt payment of just and effec? tive compensation, foreign exchange, full faith and credit by the courts of either country to arbitration, ownership of real prop? erty, rights of devisees or heirs to real or immovable property, rights of personal property, inventions, trade marks, trade names, literary and artistic works, copyrights, patents, taxation, mutual protection of revenue, double taxation, commercial travelers, free? dom of worship, schools, public morals, burial, civil liability for bodily injuries or death, compulsory military or naval training or service, etc.

In addition to the long list of subjects mentioned in the treaty there are also some which are specifically excluded by Article XXVI and also by the protocol. Nothing in the treaty shall be construed to prevent the adoption or enforcement of measures relating to the importation or exportation of gold or silver which, according to the protocol, is to include bullion and coin; traffic in arms, ammunition and implements of war and in special circumstances all other military supplies; the exportation of na? tional treasures of historic, archeological or artistic value; meas? ures necessary in pursuance of obligations for the maintenance of international peace and security, or for the protection of the essential interests of the country in time of national emergency.

AUGUST 13, 1947 179

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to accord any rights or privileges to corporations and associations engaged in political activity. Furthermore, each party to the treaty reserves the right to deny any of the rights and privileges accorded by the treaty to

any corporation or association, created or organized under the laws and regulations of either country, which is directly or indirectly owned or controlled, through majority stock ownership or otherwise, by nationals,

corporations, or associations of any third country or countries*

According to the protocol the treaty shall not be construed to confer any right upon nationals, cor?

porations, or associations of either party to engage in

agriculture within the territories of the other party. The last paragraph of the protocol provides that ad?

vantages which are, or may hereafter be accorded, by the United States, its territories or possessions, or the Panama Canal Zone, to one another or to the Republic of Cuba, or to the Republic of the Philippines, shall be extended to China whenever such advantages are extended to any other country.

Article VI of the treaty provides that the property of

nationals, corporations and associations of either coun?

try shall not be taken within the territories of the other country without due process of law and without "the prompt payment of just and effective compensa? tion." On the other hand those who receive such com?

pensation are to be permitted without interference to withdraw the compensation by obtaining foreign ex?

change. But each party to the treaty reserves the right, "if it deems necessary, to allow such withdrawal in reasonable installments over a period not to exceed three years." This same provision of the right to extend the withdrawal by foreign exchange during a

period not in excess of three years after application for such exchange is likewise contained in Article VIII in the case of persons succeeding as devisee, or as heir to real or other immovable property situated in the

territory of either party. In other words, in at least two articles of the treaty nationals or corporations re?

ceiving funds in either country may be compelled to wait for a period not exceeding three years in order to withdraw such funds by obtaining exchange in the

currency of the other party. Such three year periods are hardly in keeping with the provisions of the treaty for the "prompt" payment of just and effective com?

pensation. The treaty is to continue in force for a period of five

years from the date of the exchange of ratifications

and, unless one year before the expiration of this

period notice is given to the other party of intention to terminate the treaty, it shall continue in force until one year from the date on which such notice to ter? minate is given.

As the treaty is lengthy, multifarious and compli-

cated, the Senate Committee on Foreign Relations has a big task in giving it the detailed consideration its

importance demands. In view of the fact that the Com? mittee did not act on the treaty before Congress re-

cessed, it is hoped consideration will be given the treaty during the next session.

B O O K S ON THE PACIFIC AREA

ASIA IN THE MODERN WORLD. By H. Venkatasubbiah. New Delhi: Delhi Press, 1947. 118 pp. Rs. 5.

BOOKS ON ASIA. Compiled by I. H. Baqai. Madras: G. S. Press, 1947. 111 pp.

ASIA: Asian Relations Conference Book. Indian Council ot World Affairs; New Delhi: Hindustan Times Press, 1947. 80 pp. Rs. 3. These three publications were issued under the auspices of the

Indian Council of World Affairs on the occasion of the Asian Relations Conference in New Delhi during March and April, 1947. They were intended to be reference material for the dele? gates. Asia in the Modern World has thumbnail sketches of Asian history and Asia's contemporary position in the world, and a brief comparative description of population, agriculture, in? dustry and economic resources throughout the continent. Illus- trating the text are diagrams and tables which add emphasis to the reading matter. Although the English stumbles occasionally, the thoughts are direct and relevant, and Mr. Venkatasubbiah has managed to turn a great many facts, dates and figures into an interesting body of information, which succeeds in one of its main purposes ? that of treating Asia as a unity.

Books on Asia is a bibliography of 111 pages, compiled re? gional and national sections. It includes general, political, eco? nomic and social lists of books on each country. By no means exhaustive, it is a useful reference list for everyday use. The Asian Relations Conference Book was compiled as a souvenir for the conference delegates. It contains short, illustrated articles on each Asian country. Since these sketches are by different con? tributors, each has a different emphasis ?on history, economics, art or the like. The book is thus varied in its presentation, and the photographs point out the diverse backgrounds of the dele? gates who gathered at Delhi to try to evolve, for the first time, an enduring and cooperative friendship. adrian mayer

FAR EASTERN SURVEY

Editor: laurence e. salisbury Associate Editor: shirley jenkins Editorial Assistant: elizabeth converse

PUBLISHED FORTNIGHTLY BY THE AMERICAN INSTITUTE OF PACIFIC RELATIONS, INC, l EAST 54TII ST., NEW YORK 22, N. Y. robert c sproul, Chairman; edward c. carter, Executive Vice Chairman; donald b. straus, Treasurer; celestine g. mott, Secretary; tillie g. shahn, Assistant Treasurer. ANNUAL SUBSCRIPTION, $5.00; SINGLE COPIES, 2$$.

The American Institute of Pacific Relations does not ex- press opinions on public affairs. Responsibility for state? ments of fact or opinion appearing in the Far Eastern Survey rests solely with the author.

180 FAR EASTERN SURVEY

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