867n.01/371
The Chargé in Great Britain (Wheeler) to the Secretary of
State
London, November 30,
1923.
[Received December 15.]
No. 3180
Sir: Supplementing my telegram No. 536 of
November 30, 5 p.m., 1923,6 I have the honor to enclose two notes from the
Foreign Office, dated November 29, 1923, on the subject of the
difficulties which have arisen in Palestine through the issuance of an
Order in Council conflicting with the agreement made by the American
Vice Consul in Jerusalem with the local authorities, and with regard to
the desire of the British Government to conclude an Anglo-American
Treaty recognizing the British Mandate in Palestine.
I have [etc.]
[Enclosure 1]
The British Secretary of State for Foreign
Affairs (Curzon) to the American
Chargé (Wheeler)
[London,] 29 November,
1923.
No. E 11386/1899/65
Sir: I have the honour to acknowledge the
receipt of your note No. 1069 of 20th ultimo on the subject of
jurisdiction over United States nationals in Palestine7 and to inform you that the matter has
for some time past been under the consideration of His Majesty’s
Government who have been fully aware of the difficulties of the
situation to which you have drawn attention. The salient facts are
substantially as recorded in your note, but the situation has
recently come to a head over a civil suit which was first submitted
to the District Court of Jerusalem in August 1922.
- 2.
- In the course of 1922, correspondence had taken place between
the United States Vice Consul in Jerusalem and the Palestine
administration, as a result of which United States Capitulatory
Rights with certain quite minor modifications were to be
maintained in force until such time as an agreement should have
been concluded between His Majesty’s Government and the United
States Government on the subject of the British mandate for
Palestine. By the terms of the arrangement reached with the
United States Vice Consul it had been laid down in a
confidential notification to the district courts of Palestine
dated 8th February 1922 that in civil cases, where the defendant
was an American citizen, and the court was satisfied that the
latter’s national status was established, the
[Page 226]
case should be referred by the
District Court to the legal secretary of the Palestine
Government for trial by a United States consular court. On the
15th August 1922 one Zaslevsky, an Ottoman subject, sued one
Goldberg, an alleged American citizen, before the District Court
in Jerusalem for the balance of an account. The court in
accordance with the above mentioned notification refused to try
the case on the grounds that the defendant being an American
national was justiciable before a United States consular
court.
- 3.
- Thus far, therefore, the procedure laid down by mutual
agreement pending the conclusion of a treaty between the two
countries in regard to the mandate was rigidly followed.
Negotiations in regard to the terms of the treaty were also in
progress and were so far advanced, that a speedy conclusion was
anticipated.
- 4.
- The necessity of establishing the Legislature and Judicial
Organisation of Palestine on a definite basis as soon as the
terms of the mandate for Palestine were approved by the Council
of the League of Nations, led to the framing of the Palestine
Order in Council of 1922 which actually came into force on 1st
September of that year. This instrument, in the prospect of an
early entry into force of the terms of the mandate, on the one
hand, and of the anticipated early conclusion of an agreement
with the United States Government on the other, contained
provisions for jurisdiction over foreigners in articles 58 and
59 to which you refer. Insofar as other foreigners previously
enjoying capitulatory rights in Palestine were concerned, the
request of the League of Nations that Great Britain should carry
on the administration of Palestine in the spirit of the mandate,
and subsequently the actual entry into force of the terms of
that instrument on 29th September last, have had the effect, in
accordance with article 8 of the mandate, of suspending the
capitulatory privileges of all powers except the United States
of America in that country for as long a period as Great Britain
holds the, Mandate. This suspension of the capitulations in
Palestine may not be legally applicable to the United States of
America until the treaty recognising the mandates is concluded,
but the present situation is none the less that in the absence
of such recognition the United States Government are claiming to
exercise on behalf of United States nationals the privilege of
withdrawing them from a jurisdiction which rests upon British
principles of justice, and which has been accepted by all other
powers.
- 5.
- His Majesty’s Government recognize that the inclusion of
nationals of American states in the category of those foreigners
for whom judicial provisions were made in articles 58 and 59 of
the Palestine Order in Council of 1922 was inconsistent with the
assurances given to the American Vice-Consul in Jerusalem by the
local administration. In these circumstances they admit that it
has become
[Page 227]
necessary
to reconcile the juridical position arising out of the Order in
Council with those assurances, and are ready to consider what
steps should be taken to regularize the position. Recourse
cannot be had to the expedient of modifying the terms of the
Order in Council in accordance with the provisions of article 87
thereof, owing to the fact that over a year has passed since the
Order in Council entered into force, with the result that the
provisions of the article referred to have now lapsed. It was
for this reason, and not, as suggested in the sixth paragraph of
your note, on account of political considerations, that the
American Consulate at Jerusalem was informed that action could
not be taken. His Majesty’s Government are advised that nothing
short of the enactment of fresh legislation would satisfy the
request made in your note under reply, and that this would have
to take the form of an amending Order in Council withdrawing
United States nationals from the operation of the 1922 order
until such time as an agreement shall have been concluded
between the United States of America and Great Britain on the
subject of the mandate. I cannot conceal from you that the
publication of an amending Order in Council of this nature would
at any time be a vexatious administrative measure. Its effect on
the local situation would be particularly unfortunate at the
present time, when the justification of His Majesty’s Government
in singling out United States nationals for special treatment
would not be properly understood either in Palestine or by the
League of Nations when once it is realised that your government
are seeking to maintain in an area under British control what
they have already voluntarily surrendered in Turkey by the
treaty which Mr. Grew signed on behalf of the United States of
America at Lausanne on the 6th August last.8
- 6.
- The last paragraph of your note indicates that the United
States Government are quite ready to take up for early
consideration the convention for the recognition of the British
mandate over Palestine. Since I shall have the honour to address
you a further communication on this matter I will confine myself
here to pointing out that the early conclusion of this agreement
which allows United States nationals to pass under the
jurisdiction of the Palestine Order in Council of 1922 without
further difficulty or delay would obviate the necessity for the
enactment of the amending Order in Council referred to in the
preceding paragraph and would therefore, as far as His Majesty’s
Government are concerned, provide the most satisfactory way out
of the present situation. In these circumstances His Majesty’s
Government earnestly hope that the United States Government will
agree that the best method of regularizing the present position
is by taking immediate steps to negotiate the convention
[Page 228]
referred to above.
Pending the conclusion of this convention, His Majesty’s
Government are willing at once to instruct the High Commissioner
for Palestine to request the Chief Justice to make arrangements
to ensure that American citizens shall enjoy all privileges
accorded to foreigners by the Palestine Order in Council,
whether the American citizen concerned claims the right or
not.
I have [etc.]
[Enclosure 2]
The British Secretary of State for Foreign
Affairs (Curzon) to the American
Chargé (Wheeler)
London, 29 November,
1923.
No. E 11386/1899/65
Sir: With reference to the last paragraph
of your note No. 1069 of the 20th ultimo9 I have the honour to state, for the
information of your Government, that His Majesty’s Government are
most anxious to conclude the treaty for the recognition by the
United States of America of the British Mandate in Palestine as soon
as possible. The last correspondence which was exchanged on this
subject was in October 1922 when a note, a copy of which is enclosed
for your information, was addressed to Mr. Harvey.10
2. I have the honour to request that the views of the United States
Government on the amendments which were introduced into the text of
the treaty to meet the wishes of the State Department, may be
ascertained with a view to the early conclusion of this
instrument.
I have [etc.]
