867n.01/216a: Telegram
The Secretary of State to the Ambassador in Great Britain ( Harvey )
96. Reference your despatches 811 and 831, December 23 and 30 last.8 Please communicate the following textually to Lord Curzon at the earliest moment possible:
“I have the honor to refer to your Lordship’s communications of December 22, 1921, and December 29, 19219 on the subject of mandates. The suggestions of the Government of the United States regarding the terms of the various mandates were set forth in my memorandum of August 24, 1921.10 The position of my Government must necessarily remain as thus stated since the views advanced were confined to the purpose of safeguarding the interests of the United States and the fair and equal opportunities which [Page 272] it was believed the United States should enjoy in common with the other Powers.
In the communication of December 29, 1921, your Lordship drew particular attention to the situation in Palestine. A state of peace between the Allied Powers and Turkey does not yet exist. Nevertheless, the United States appreciates the desire of His Majesty’s Government to remove the existing uncertainties regarding the terms of the mandate for Palestine, in order that a legalized civil administration may be established as early as possible.
The Government of the United States is gratified to note Your Lordship’s cordial expression with respect to the relation of the victory over Turkey to the victory of the Allied and Associated Powers over Germany, and the contribution thereto by the United States, and especially the emphatic disclaimer of his Majesty’s Government of any intention on their part to discriminate against the United States or to refuse to its nationals and companies full equality of commercial opportunity. My Government had entertained no doubt that this was the attitude of His Majesty’s Government.
In view of these assurances, my Government is convinced that there will be no difficulty or delay in the negotiation of a treaty embodying the assent, upon appropriate conditions, of the United States to the terms of the draft mandate for Palestine. The capitulatory rights which the United States possesses in Turkey in common with other Powers rest upon the provisions of a treaty; and, consequently, these rights can be modified or abrogated only by a treaty. For this reason alone a treaty would be desirable, apart from the general considerations mentioned in my memorandum of August 24. Such a treaty could recite the mandate in full and should contain appropriate undertakings on the part of His Majesty’s Government for the suitable protection of the rights and interests of the United States.
In this view, taking up the various points to which Your Lordship refers, it may be observed:
(1) Capitulatory rights.—The assurances given in the note of December 29 regarding the establishment of adequate courts and the insertion of a provision in the proposed constitution of Palestine, by virtue of which nationals of the United States shall have the right to be tried by a court with a majority of British judges, except in trivial cases where this provision would lead to administrative inconvenience when United States nationals will have the special right to appeal to a court composed of a majority of British judges, may be considered satisfactory, in view of Anglo-Saxon traditions of law.
It does not seem possible to accept, however, the suggestion which your Lordship makes with regard to the question of the revival of the American capitulatory rights in the event of the termination of the mandate régime. As my Government now possesses these capitulatory rights, it should be provided that in the event of the termination of the British administration under the mandate, there should be an immediate and complete revival of these rights and, if the circumstances then justify their modification or suspension, the matter could readily be made the subject of suitable agreement.
(2) Discrimination.—I have already alluded to the assurance upon this point contained in Your Lordship’s note. My Government does [Page 273] not desire to insist that the terms of the mandate itself, in its reference to the States, members of the League of Nations, and their nationals, should be altered. It will be sufficient to have an undertaking as suggested by Your Lordship with regard to the equal treatment of the United States, its nationals and companies, and this undertaking may be set out in the proposed treaty. In other words, it should be provided that His Britannic Majesty will guarantee to the United States and its nationals the same freedom from discrimination that Article 18 of the mandate gives to the States, members of the League of Nations, and their nationals.
The treaty should contain a general provision that the United States and its nationals should have and enjoy the benefit of all the engagements of His Britannic Majesty, defined in the mandate, notwithstanding the fact that the United States is not a member of the League of Nations.
With respect to the matter of concessions, my Government has carefully noted the suggestions made by Your Lordship with respect to the peculiar conditions existing in Palestine, and in view of these conditions it is not the intention of my Government to insist on the inclusion of a provision in this mandate against the granting of monopolistic concessions as it is recognized that these may be justified to a certain extent for appropriate local development. The Government of the United States will be satisfied with the assurances which His Majesty’s Government proposes to give in regard to equality of commercial opportunity. It should be clearly understood, however that this position is taken by my Government solely in recognition of the special situation in Palestine and is not to be considered as prejudicial in any respect to the contentions which have been made and which are still being made in connection with other mandate territories. It is also to be understood, of course, that the existing legal rights of American citizens or companies in Palestine are to be fully respected and safeguarded and that the treaty will contain a suitable provision to this effect.
(3) Missionaries and religious freedom.—My Government has noted the provision of Article 2 of the proposed mandate for Palestine to the effect that the Mandatory shall be responsible “for safeguarding the civil and religious rights of all the inhabitants of Palestine, irrespective of race and religion.”
And also the provisions of Article 15 as follows:
“The Mandatory will see that complete freedom of conscience and the free exercise of all forms of worship, subject only to the maintenance of public order and morals, is ensured to all. No discrimination of any kind shall be made between the inhabitants of Palestine on the ground of race, religion or language. No person shall be excluded from Palestine on the sole ground of his religious belief. …”11
And also the following provision of Article 16:
“The Mandatory shall be responsible for exercising such supervision over religious or eleemosynary bodies of all faiths in Palestine as may be required for the maintenance of public order and good government. Subject to such supervision, no measures shall be taken in Palestine to obstruct or interfere with the enterprise of such bodies or to discriminate against any representative or member of them on the ground of his religion or nationality.”
Also that the Mandatory accepts “all responsibility in connection with the Holy Places and religious buildings or sites in Palestine, including that of preserving existing rights, or [of] securing free access to the Holy Places, religious buildings and sites and the free exercise of worship, while insuring the requirements of public order and decorum”.
In addition, my Government has noted the statement of Your Lordship that His Majesty’s Government would be prepared to make a declaration in suitable terms regarding the rights of United States missionaries, that is, that they “shall have the right to acquire and possess property, to erect buildings for religious purposes and to open schools, providing that they conform to the local law.”
My Government is satisfied with these stipulations and assurances on the assumption, as already stated, that there will be a general provision in the proposed treaty giving to the United States the benefits, rights and privileges which under the proposed mandate are to accrue to the States which are members of the League of Nations.
(4) Modification of mandate.—My Government has observed the statement of Your Lordship in your note of December 22, to which you refer in your note of December 29, that it would be difficult to insert in the mandate itself a provision that the consent of the United States should be obtained before any alteration is made in the text of the mandate. My Government does not believe such an insertion to be necessary, in view of the fact, to which Your Lordship adverts, that there is “nothing to prevent the Mandatory giving a separate undertaking to this effect.” Such an undertaking may be embodied in the proposed treaty. It would not, however, be deemed by my Government to be sufficient to provide merely for consultation with the United States.
(5) As His Majesty’s Government is aware, the Japanese Government has agreed to furnish a duplicate, not a copy, of its annual report which is to be submitted to the League of Nations on the administration of mandate territories. A provision to this effect is incorporated in the treaty between the United States and Japan relating to the mandated islands in the Pacific north of the equator and it is desired that a similar provision should be included in the treaty relating to the mandate for Palestine.
(6) My Government assumes that any provisions which may be agreed upon, as necessary to safeguard the rights and interests of the United States will apply to the territories mentioned in Article 25 of the mandate.
If His Majesty’s Government is willing to meet the wishes of the United States with reference to the matters upon which concurrence has not already been indicated, the Government of the United States is prepared to enter immediately upon the negotiation of the necessary treaty.
In conclusion, I beg to convey additional information regarding the Philippine Petroleum Act, which was referred to in your Lordship’s note of February 28, 1921,12 and in my memorandum of August 24, [Page 275] 1921. The Governor-General of the Philippines has reported that the Act was amended at the last session of the Philippine Legislature so that it now permits equality of treatment in accordance with the principle of reciprocity embodied in the United States general leasing law.13 I have, etc.”
- Foreign Relations, 1921, vol. ii, pp. 110 and 115, respectively.↩
- Ibid., pp. 111 and 115, respectively.↩
- See telegram no. 448, Aug. 4, 1921, to the Ambassador in Great Britain, ibid., p. 106.↩
- Omission indicated in the Secretary’s telegram.↩
- See telegram no. 160, Mar. 1, 1921, from the Ambassador in Great Britain, Foreign Relations, 1921, vol. ii, p. 80.↩
- See ibid., pp. 547 ff.↩