The Secretary of State to the Ambassador in Great Britain (Harvey)
134. Your telegram 199, May 1, 3 p.m. Please hand note to the Foreign Office in the sense of the following:
I have the honor to convey to Your Lordship my Government’s appreciation of the cordial spirit with which the suggestions regarding the Palestine mandate have been received. The Government of the United States is gratified to note that its views, as set forth in my memorandum of April 5, 1922,15 with respect to the various subjects which have been under discussion, have been accepted by His Majesty’s Government, which states its readiness to enter without delay into negotiations for the conclusion of a treaty on the lines proposed.[Page 277]
With reference to the safeguarding of the capitulatory rights of the United States in Palestine, my Government is pleased to note that His Majesty’s Government is willing to provide in the proposed Treaty that the United States does not accept the definite abrogation of its capitulatory rights, but consents to their suspension during the continuance of the mandate. In the light of the understanding as to the appropriate preservation of the capitulatory rights of the United States, my Government would prefer that the mandate itself should not undertake to provide for the abrogation of capitulatory rights and accordingly desires that the provisions of Article 8 of the draft mandate should be altered so as to read:
‘The immunities and privileges of foreigners, including the benefits of consular jurisdiction and protection as formerly enjoyed by Capitulation or usage in the Ottoman Empire, are suspended in Palestine, but shall be revived immediately and completely upon the termination of the mandate régime.’
It is understood, of course, that the assurances given in paragraph 5 (A) of your note of December 29, 1921, will be suitably embodied in the Constitution of Palestine; that is to say that the assurances regarding the establishment of adequate courts and the insertion of a provision 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, which my Government considers satisfactory in view of Anglo-Saxon traditions of law.
The Government of the United States will raise no objection to the suggested amendment of Article 28 of the draft Mandate as set forth in paragraph 4 of your note,15a with the understanding, of course, that any arrangements made by the League of Nations relating to the interests of foreigners in judicial matters would not impair any of the rights and interests of the United States and would be ineffective without the consent of the United States. It would seem, however, that, if Article 8 is amended as proposed, there would be no necessity for the suggested amendment to Article 28.
The Government of the United States appreciates the desire of His Majesty’s Government to lay the terms of the draft mandate before the Council of the League of Nations at its forthcoming meeting, and has no objection to the procedure suggested in paragraph 5 of Your Lordship’s note; provided, that it is understood that the approval of the mandate given by the Council of the League shall not be deemed to be binding upon the United States but shall be subject to the assent of the United States upon the terms and conditions which have been set forth in our correspondence upon this subject. With regard to the suggestion that the correspondence between Your Lordship and myself on the subject of the Palestine mandate should be laid before the Council of the League of Nations, my Government would like to accede to the wishes of His Majesty’s Government but does not desire that the correspondence be made public until in the due course of the negotiation of the proposed treaty it can be made public in the United States. My Government puts forward its [Page 278] preference upon this point upon the assumption that His Majesty’s Government will be able in a convenient manner to inform the Council of the points which have been discussed and upon which the two governments are in preliminary agreement.
It is a pleasure to convey again the assurance that the Government of the United States is prepared to facilitate in every way the negotiation of an appropriate treaty in accordance with the views that have been expressed.