Papers Relating to the Foreign Relations of the United States, 1921, Volume II

800.01 M 31/60: Telegram

The Secretary of State to the Ambassador in Great Britain ( Harvey )⁵⁷

Washington , August 4, 1921—8 p.m.

448. Your 634, August 2, 6 p.m.

You may state to the Foreign Secretary that this Government welcomes his suggestion that there should be a discussion of the question of mandates and you may communicate to him the following views of this Government.⁵⁸ Before proceeding to the consideration of the precise terms of draft mandates, it is thought best to restate the general principles which are deemed to be involved.

1. This Government adheres to the position already stated that the right to dispose of the overseas possessions of Germany was acquired only through the victory of the Allied and Associated Powers, and that there can be no valid or effective disposition of these territories without the assent of the United States as one of the participants in that victory.

2. This position of the United States is not opposed, but is confirmed, by the Treaty of Versailles, by which Germany renounces in favor of the Principal Allied and Associated Powers, of which the United States was designated to be one, all her rights and titles over her overseas possessions. It may further be observed that in providing, as stated in Article 440, for the coming into force of that treaty when it had been ratified by Germany and three of the Principal Allied and Associated Powers, it was manifestly not the intention that on such ratification by three Powers there should still remain in Germany any undivided share of title or sovereignty in the overseas possessions described. It would seem to be clear that the renunciation set forth in Article 119 of the treaty was not intended to be divisible.

In the light of all the pertinent considerations, this Government perceives no possible basis for a claim that the other Principal Allied and Associated Powers would be entitled to exclude the United States from full participation, and the United States does not understand that any such claim is made.

3. The right of the United States in the territories in question could not be made the subject of such disposition as is proposed without its assent, and under its constitutional system the giving of this assent is not exclusively within the authority of the President. It is thought, however, that there would be no difficulty in negotiating an appropriate treaty if the terms of the mandates were defined in the line of the following suggestions. It is not the intention of this Government to raise objection to allocation or terms of mandates for the purpose of seeking additional territory or for any other purpose than to safeguard the interests of the United States and the fair and equal opportunities which it is believed the United States should enjoy in common with the other Powers.

4. With respect to mandated territories, other than those which were formerly possessions of Germany, while it is true that the United States did not declare war against Turkey, still the opportunity of the Allied Powers to secure the allocation of mandates and the administration of territories formerly under Turkish rule was made possible only through the victory over Germany, and the United States assumes that by reason of its relation to that victory and of the fundamental principles recognized by the British Government as applicable to the administration of mandated territories, there would be no disposition in relation to any of these territories to discriminate against the United States or to refuse to safeguard equality of commercial opportunity.

5. With this understanding, and without attempting to restate the general principles governing mandates which have been the subject of previous correspondence between the two Governments, this Government desires to submit the following special observations as to the forms of mandates which have been proposed:

Draft A mandates

(a) Capitulatory Rights. In the draft for Syria and Lebanon⁵⁹ there is a provision in Article 5 not found in the mandates for Mesopotamia⁶⁰ and Palestine,⁶¹ to the effect that foreign consular tribunals shall continue to perform their duties until the described new legal organization is set up. It is desired that there should be a similar provision in the mandate for Mesopotamia, and that in the mandate for Palestine it should be provided that capitulatory rights shall be continued until adequate courts are established. Provision should also be made in all A mandates for the revival of capitulatory rights in the event of the termination of the mandate regime.

(b) Provisions against Discrimination. The limitation of protection in Articles 11 and 14 of mandates for Syria and Lebanon and Mesopotamia, and of Articles 18 and 21 of mandate for Palestine to States that are members of the League of Nations should be removed and the protection extended so as to embrace the United States. This could be effected by referring to any State mentioned in the annex to the covenant of the League of Nations. The reference to incorporated companies in Article 11 of the mandate for Mesopotamia and in Article 18 of the mandate for Palestine is too narrow and should be broadened to embrace societies and associations (see Article 11 of mandate for Syria and Lebanon).

It is desired that there should also be provision against discrimination in concessions. British B Mandate for East Africa,⁶² Article 7 provides as follows:

“Concessions for the development of natural resources of the territory shall be granted by the mandatory without distinction on grounds of nationality between the nationals of all states members of the League of Nations but on such conditions as will maintain intact the authority of the local government.”

Similar provision should be inserted in A mandates and broadened to embrace the United States.

There should also be appropriate provision against the granting of monopolistic concessions or the monopolizing of natural resources by the mandatory itself.

(c) Missionaries. In mandate for Syria and Lebanon protection is accorded provided activities are confined “to the domain of religion.” It would appear as if the intention were to restrict, if not to eliminate, educational and charitable missionaries. (See Franco–British Convention, Article 9, signed at Paris, December 23, 1920.)⁶³ It is desired that present and future activities, both religious and educational, of our missionaries should be fully protected, and it is suggested that provision similar to Article 8 of the British B mandate for German East Africa be incorporated in all A mandates.

(d) It will be understood that the consent of the United States shall be necessary to any modification of a mandate after it has been agreed to.

Draft B mandates

(a) The provisions of Article 6 of the British and French mandates for the Cameroons and Togoland⁶⁴ and of the Belgian mandate for German East Africa⁶⁵ and of Article 7 of the British mandate for German East Africa are not extended to the nationals of the United States. This should be corrected, and it might be sufficient to substitute “nationals of States mentioned in the annex to the covenant of the League of Nations” for “nationals of States members of the League of Nations” in each of these articles.

In the third paragraph of the same article in each mandate it should also be provided that monopolistic concessions should not be granted by the mandatory, nor should natural resources of the mandated territory be monopolized by the mandatory itself.

(b) Article 8 of the British mandate for East Africa is acceptable and its provisions should be substituted for those of the corresponding article numbered 7 in the other B mandates.

(c) Article 10 of the British mandate for East Africa contains a clause “provided always that the measures adopted to that end do not infringe the provisions of this mandate”, which might well be added to the corresponding article 9 of the other B mandates.

(d) The consent of the United States will be necessary to modify the mandate terms.

Draft C mandates ⁶⁶ except for Tap

(a) Article 5 should be changed so as to embrace nationals of United States, and to avoid ambiguity as to educational and charitable activities of missionaries it would be preferable to have the same provision as in Article 8 of the British B mandate for German East Africa.

(b) All C mandates treat mandated territory for administration and legislation as integral portion of territory of mandatory. This, unless qualified, would permit discrimination. It is desired that the mandatories respectively should guarantee to United States most favored nation treatment in all C mandate territories, reserving, however, the present special treaty rights of the United States as to German Samoa under Article 3 of the treaty concluded at Washington, December 2, 1899.⁶⁷ This Government has already protested against the discriminatory tariff imposed by New Zealand in violation of this treaty (see Department’s telegram of November 17, 1920.⁶⁸) Despatch on this point will go by next pouch.

(c) There should be provision similar to that proposed in the other forms of mandates prohibiting monopolistic concessions by the mandatory or the monopolizing of natural resources by the mandatory itself.

(d) As in other cases modification of mandate will be subject to assent of United States.

The Island of Yap, because of its special characteristics and availability for communication purposes, should be treated specially, and negotiations to this end are in progress.⁶⁹ It is not desired to include Yap in the present representations as to terms of mandates.

6. In connection with the question of A mandates, the following additional points should be noted:

(a) In the note of His Majesty’s Government of February 28, 1921,⁷⁰ relating to the application of the principle of equality of treatment to former Turkish territories, it was observed that by Article I of the Philippine Petroleum Act approved August 31, 1920, participation in the working of public lands in the Philippine Islands containing petroleum is confined to citizens or corporations of the United States or of the Philippines. This enactment was mentioned as inconsistent with the general principles announced by this Government.

To avoid misapprehension upon this point, it should be stated to the Foreign Secretary that shortly after the enactment in question the Government of the United States recommended that it should be so amended as to conform to the reciprocity provision of the United States general leasing law of February 25, 1920.⁷¹ At the last session of the Philippine Legislature an amending bill was passed the object of which was to relax substantially the restrictions embodied in the original Act. Nevertheless, in the opinion of the Government of the United States, the proposed amendment did not sufficiently meet the situation, and it is the intention of this Government to take all appropriate steps with a view to bringing about at the next session of the Philippine Legislature in October a further amendment so that it may conform to the reciprocity provision above described.

(b) In the same note of His Majesty’s Government reference is made to a concession said to have been granted before the war by the Turkish Government to the Turkish Petroleum Company. This Government has already pointed out in its note of November 20, 1920,⁷² that such information as it then had indicated that prior to the war the Turkish Petroleum Company possessed in Mesopotamia no rights to petroleum concessions or to the exploitation of oil. The information possessed at present by this Government confirms this view. This Government is unable to conclude that any concession was ever granted by the Turkish Government to the Turkish Petroleum Company, and this Government will shortly take up the considerations advanced by His Majesty’s Government upon this subject.⁷³ It is desired that if the claim of the Turkish Petroleum Company continues to be asserted appropriate provision be made for the determination of this claim by a suitable arbitration.

Hughes

57. On Aug. 7 somewhat similar instructions were sent to the representatives in France, Italy, and Japan; see telegram no. 377 to the Ambassador in France, vol. i, p. 922.
58. A memorandum embodying these views was handed to the British Foreign Secretary under date of Aug. 24.
59. Vol. i, p. 99.
60. Vol. i, p. 105.
61. Vol. i, p. 110.
62. Vol. i, p. 121
63. Vol. i, p. 137.
64. Vol. i, pp. 109 and 125, respectively.
65. Vol i, p. 133.
66. See letter of Feb. 17, 1921, from the Secretary General of the League of Nations, vol. i, p. 118.
67. Malloy, Treaties, vol. ii, pp. 1595 ff.
68. Not printed.
69. See pp. 263 ff.
70. See telegram no. 160, Mar. 1, from the Ambassador in Great Britain, p. 80.
71. 41 Stat. 437.
72. Foreign Relations, 1920, vol. ii, p. 669.
73. See instruction no. 233, Nov. 4, to the Ambassador in Great Britain, p. 86