800.01 M 31/125
The Department of State to the British Embassy
The Department of State has received the British Chargé d’Affaires’ Aide-Mémoire with regard to the negotiations that have been carried on by the American, British, and French Governments, respecting the mandates for certain former German territory in Africa; and an accompanying draft treaty to be concluded between the United States and Great Britain, defining the position of the United States with respect to these mandates. It is stated that the draft has been drawn up after the model of the American–Japanese Treaty of February 11, 1922, relative to the mandate conferred on the Emperor of Japan over former German islands in the Pacific Ocean; that His Majesty’s Government desires to reach a final settlement concerning the mandates for the territories in Africa; and that it would be of assistance if the concurrence of the Government of the United States in the terms of these mandates could be obtained before the meeting of the Council of the League of Nations, which is to be held on July 15.
The comments contained in His Majesty’s Chargé d’Affaires’ Aide-Mémoire with respect to the draft treaty have been examined, and it is deemed necessary to present a few observations with respect to questions raised by the draft concerning which it is believed there should be no difficulty in reaching an understanding. It is especially desired that the model of the Treaty with Japan should be followed as closely as possible.
It is suggested that it might be desirable to insert in the first paragraph of the preamble of the draft the date of the signing of the so-called Treaty of Versailles, since several treaties were signed when peace was concluded with Germany, and since it is merely by custom that the Treaty of Peace is called the Treaty of Versailles.
It is deemed desirable that following the second paragraph of the preamble there should be inserted a recital with respect to the Treaty concluded August 25, 1921, between the United States and Germany. The United States did not become a party to the Treaty of Versailles, but Germany has agreed to accord to the United States rights and benefits stipulated for the benefit of the United States in the Treaty of Versailles, including rights and benefits under Section 119 of that Treaty. A copy of the Treaty of August 25, 1921, is annexed to this memorandum.45 A recital of the fact will doubtless not be objectionable to the British Government, and it is therefore suggested [Page 323]that the following paragraph be inserted, which is in the same terms as the recital in the Treaty with Japan to which the British Chargé d’Affaires’ Aide-Mémoire refers:
“Whereas the benefits accruing to the United States under the aforesaid Article 119 of the Treaty of Versailles were confirmed by the Treaty between the United States and Germany, signed on August 25, 1921, to restore friendly relations between the two nations.”
As pointed out in the memorandum given by the American Embassy in London to the British Government on August 24, 1921,46 the assent of the United States to the exercise of mandates over former possessions of Germany, is not, under the constitutional system of the United States, exclusively within the authority of the President, and it is necessary that such an assent should be given by an appropriate treaty. In view of the fact that the United States has not agreed that His Britannic Majesty should exercise a mandate over the former German Colony of East Africa, it is considered desirable to substitute for the third paragraph of the preamble the following:
“Whereas four of the Principal Allied and Associated Powers, to wit: the British Empire, France, Italy and Japan, agreed that His Britannic Majesty should exercise the mandate for part of the former Colony of German East Africa”.
It is deemed advisable that, in reciting in the preamble of the proposed treaty the terms of the Mandate, only the articles of the Mandate should be inserted and not the preamble of the Mandate. This will avoid the inclusion of the recital in the Mandate that “the Principal Allied and Associated Powers agreed that a mandate should be conferred.” This, as has already been pointed out, is not an accurate recital, as the United States has not so agreed.
Note has been taken of the observation in the Embassy’s Aide-Mémoire with respect to the use of the word “concurs” in Article I of the draft Treaty. It is not disputed that the four Principal Allied and Associated Powers could have reached an agreement among themselves with respect to their interests in the former German territories, but they could not, as the Government of the United States has heretofore pointed out, by such agreement, without the consent of the United States, deal with the interests of the United States. It may also be pointed out that the Treaty between the United States and Japan, which uses the word “consents”, the purposes of which are similar to those of the proposed treaty, has [Page 324]been duly ratified by both countries, and the exchange of ratifications is about to take place. For this reason it is deemed to be desirable that the same expression should be used in the Treaty between the United States and Great Britain. The United States Government, however, does not desire to insist on a particular locution, especially as the expression “concurs” in the view of the United States is quite as expressive of the right of the United States as the word “consents.” If, however, the word “concurs” is used in the Treaty, it must be with the distinct understanding that the United States completely reserves its position with respect to its relation to the former overseas territories of Germany as this position has been stated in its former communications to the British Government upon this subject.
The word “concurring” is found in the second paragraph of the preamble following the recitation of the terms of the mandate. Its use there would seem to be unnecessary. It is suggested that a substitution might be made for this paragraph and for the following paragraph of the preamble, and that without subsequent repetitions the general purpose of the treaty could be briefly and succinctly stated as is done in the Treaty with Japan. The following substitute paragraph is suggested:
“Whereas the Government of the United States and the Government of Great Britain desire to reach a definite understanding with regard to the rights of the two Governments and their respective nationals in the aforesaid former Colony of German East Africa.”
With respect to Article 1 of the draft treaty the following is suggested as a more appropriate form:
“Subject to the provisions of the present Convention, the United States consents to (concurs in) the administration by His Britannic Majesty, pursuant to the aforesaid mandate of the former German territory, described in Article I of the Mandate.”
The phrase “including therein equality as regards commercial opportunity” appearing in Article 2 would seem to be unnecessary in view of the fact that it is the purpose of the Article to place the United States and its nationals on a footing of equality generally as regards all rights and benefits defined by the Mandate with all members of the League of Nations and their nationals. It is suggested that the purposes of this Article might be fully and accurately expressed as follows:
“The United States and its nationals shall have and enjoy all the rights and benefits secured under the terms of Articles 3, 4, 5, 6, 7, 8, 9 and 10 of the mandate to members of the League of Nations and their nationals, notwithstanding the fact that the United States is not a member of the League of Nations.”
With respect to the Mandate itself the following changes are proposed in Article 8:
- In line 2, the word “in” should be substituted for the
word “to” so that it shall read:
“the mandatory shall insure in the territory freedom of conscience,” et cetera.
- In lines 3 and 4 the words:
“Subject to such control as may be necessary for the maintenance of good government”
should be struck out. It would seem that a limitation in such broad and vague terms would cast a doubt on the efficacy of the entire Article. It should be noted that the opening clause:
“Subject to the provisions of any local law for the maintenance of public order and public morals,”
should be deemed to qualify the whole Article and is sufficient for the apparent purpose.
What has been said with respect to the Treaty and Mandate in the case of the British Mandate for East Africa, will apply mutatis mutandis to the Treaties and Mandates in the case of the British mandates of Togoland and the Cameroons.