Letter CHUNGKING, 25 November 1942
PERSONAL AND CONFIDENTIAL
I have telegraphed this week my draft of the treaty for abrogation of extraterritoriality and rendition of the Concession [1] together with a telegram on the problems of policy involved [2] and another on the drafting. [3] You will realise that I have had no precedents, no textbooks on treaties or on international law and hardly any books of reference on the history of the subject. I should not be regarded as responsible, therefore, if there is any point which I have missed or mistaken.
There is a special type of drafting used in treaties in which strict legal phraseology is avoided but I have been drafting documents all my life and it is rather hard to get away from the legalistic formulae. You will see that in my draft I have departed from the British draft [4] on several occasions and with good reason, I believe, for it is rather inartistic, and in some places, hardly grammatical.
I have very little to add to what I have said in my telegrams as to drafting and policy. I have been in difficulty because I do not quite know what your objections are to Article VI in the British draft. If it is because you believe that that clause would break down the immigration laws and give the Chinese the right of entry it does not seem to me to do this and naturally the United States would not sign such a clause. Our only difficulty in signing the British clause is that we have, in Australia, a certain number of discriminations against Chinese. These seem to me to be quite unimportant. In order to meet the situation, however, I have devised a reciprocity clause based on Australian standards.
Whether the Chinese will agree to it I have no idea. They are likely to adopt a considerable number of discriminations in favour of Chinese in China and, if so, they will have no ground for complaining against ours. The British clause seems to me to be not only badly drafted but to prevent certain discriminations in favour of their own subjects which may be most desirable. One example would be preferences in the allocation of defence contracts.
I have been guided in my advice by the desire to avoid a public controversy either here or in Australia or elsewhere on the question of immigration restriction. Any difference between our treaty and the British treaty may bring this question up. However, if it comes to the point we should be prepared to take the stand on the principle that immigration is a subject of domestic jurisdiction. We should receive world-wide support for this and if we secured a recognition of this we should be prepared to make any declaration of equality and reciprocity that they wanted. I would refuse pointblank to discuss the question of relaxation of our restriction policy during the war and say that if the Chinese want they can take it up after the war. In a matter of this kind there are other countries to consider, e.g., India.
Meanwhile, it would be better to talk of our ‘immigration policy’ and not a ‘White Australia’ policy. The Commerce Department could give you some idea of Australian interests in Shanghai, Tientsin, Kowloon, and I should say that Bowden’s [5] correspondence would contain references to it. The only other people with interests here are the missionaries whose property is subject to attack but is, I believe, owned by missionary organisations and not by individuals.
[F. W. EGGLESTON]
_1 See cablegram S149 (received in Canberra on 29 November) on file AA:A981, China 60B, ii. See also Document 106.
2 See cablegram S146 (received in Canberra on 29 November) on the file cited in note 1.
3 See cablegram S148 (received in Canberra on 29 November) on the file cited in note 1.
4 See Eggleston’s cablegram S145 (received in Canberra on 29 November) on the file cited in note 1.
5 V. G. Bowden had been Trade Commissioner in China from 1935 to
1941.
_
[AA:A4144, 971 (1941-43)]