The Secretary of State to the Ambassador in Belgium (Fletcher)
20. Reference to your despatch No. 1442, of February 15, 1922. Please communicate the following textually to the Minister for Foreign Affairs at the earliest possible moment.
“I have the honor to refer to Your Excellency’s communication of February 11, 1922,9 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 the memorandum handed to Your Excellency on (here insert date).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 it was believed the United States should enjoy in common with the other Powers.
The Government of the United States is gratified to note the cordial spirit with which the Government of the King has received the views of my Government. In view of this, 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 that part of East Africa under mandate to the King of the Belgians. As was explained in the memorandum of (here insert date), the right of the United States in the territories, to which Germany has renounced her title, could not be disposed of without the assent of my Government, and, for the reasons given in the memorandum, the appropriate manner of expressing this assent would be through a treaty. Such a treaty could recite the articles of the mandate setting forth the engagements of the Mandatory and should contain appropriate undertakings on the part of the Government of the King for the suitable protection of the rights and interests of the United States. This arrangement will, it is believed, obviate any objections such as those suggested by the British and French Governments in their notes of December 22, 1921, by reason of any obligations which the Allied Powers have assumed in the Treaty of Versailles with regard to Germany and with regard to one another.
The references below are to the numbered articles in the text of the draft mandate for the Belgian part of East Africa, a copy of which accompanied Your Excellency’s note of February 11, in which draft the articles, after the second, are numbered differently as compared with those in the draft to which reference was made in the memorandum of (here insert date).
In this view, taking up the various points to which Your Excellency refers, it may be observed:[Page 631]
(1) Discrimination. In the memorandum of (here insert date) allusion was made to the provisions for equal commercial opportunity in Article 7 of the Belgian Mandate for East Africa and attention was called to the fact that these provisions were not extended to the nationals of the United States. My Government does not desire to insist that the terms of the mandate itself, in its reference to States, members of the League of Nations, and their nationals, should be altered. It will be sufficient to recite the terms of Article 7 in the proposed treaty, with the further undertaking that the Government of the King will guarantee to the United States and its nationals the same freedom from discrimination that Article 7 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 the King of the Belgians, defined in the mandate, notwithstanding the fact that the United States is not a member of the League of Nations.
(2) Concessions. With respect to the matter of monopolistic concessions, my Government is gratified to note that the Government of the King has evidently no intention of granting concessions having the character of a general monopoly in the territory in question, or of reserving such concessions to itself.
My Government, accordingly, is prepared to approve the insertion in the mandate after the third paragraph of Article 7, of the following paragraph, with a few changes for the purpose of clarity, so that it will read as follows: ‘Concessions having the character of a general monopoly shall not be granted. This provision does not affect the right of the Mandatory to create monopolies of a purely fiscal character in the interest of the territory under mandate and in order to provide the territory with fiscal resources which seem best suited to the local requirements; or, in certain cases, to carry out the development of natural resources either directly by the State or by a controlled agency, provided that there shall result therefrom no monopoly of the natural resources for the benefit of the Mandatory or its nationals, directly or indirectly, or any preferential advantage which shall be inconsistent with the economic, commercial and industrial equality hereinbefore guaranteed.’
The changes above suggested are assumed, from the tenor of Your Excellency’s note, to be in accord with the intentions entertained by the Government of the King.
It is to be understood, of course, that any existing legal rights of American citizens or companies in the Belgian mandate territory are fully respected and safeguarded and that the treaty will contain a suitable provision to this effect.
(3) Missionaries and Religious Freedom. My Government is pleased to note that the Government of the King is also ready to give to the United States, with respect to missionaries and religious freedom, a similar guarantee, as to equality of treatment, as is suggested with respect to Article 7. The Government of the King has proposed that the text of Article 8 of the mandate should read as follows: ‘Subject to the provision of any local law for the maintenance of public order and public morals, the Mandatory shall insure in the territory freedom of conscience and the free exercise of all forms [Page 632] of worship, and shall allow all missionaries, nationals of any State member of the League of Nations, to enter into, travel and reside in the territory for the purpose of prosecuting their calling, to acquire and possess property, to erect buildings, for religious purposes, and to open schools, provided that they conform to the local law.’
Upon the assumption that the treaty will contain an appropriate provision by which the engagements of the King of the Belgians as defined in the mandate will run to the United States and its nationals, notwithstanding the fact that the United States is not a member of the League of Nations, this provision is acceptable to my Government with the following qualification. My Government suggests that the last clause of the proposed provision, ‘provided that they conform to the local law’, may be omitted, as it appears to be superfluous, the entire clause being qualified by the opening clause, ‘Subject to the provisions of any local law for the maintenance of public order and public morals’. If it is intended, by the insertion of the additional clause, to give any broader application of the local law than is the purport of the opening clause, the addition would appear to be objectionable as the local law in this respect should appropriately be limited to the maintenance of public order and public morals.
(4) Administrative Unions, etc. It is noted that the Government of the King has no objection to the suggestion which has been made by my Government that there should be added to Article 10 of the mandate the following words, corresponding to the provision of Article 10 of the British mandate for East Africa, to wit: ‘provided always that the measures adopted to that end do not infringe the provisions of this mandate.’ It is assumed that the reference in our Excellency’s communication to Article 9 of the Belgian mandate is intended to be to Article 10 of the draft which you enclosed.
(5) Modification of Mandate. My Government notes with pleasure that the Government of the King agrees that any modification of the terms of the mandate shall be subject to the previous consent of the United States.
(6) Extradition. It is assumed that the Government of the King will not object to a provision by which the extradition treaties between Belgium and the United States, pending the making of special extradition agreements, shall apply to the mandated territory in question.
(7) 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 Belgian mandate for East Africa.
If the Government of the King 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.