867n.01/371

The Chargé in Great Britain (Wheeler) to the Secretary of State

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.]

Post Wheeler
[Enclosure 1]

The British Secretary of State for Foreign Affairs (Curzon) to the American Chargé (Wheeler)

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.]

Curzon of Kedleston
[Enclosure 2]

The British Secretary of State for Foreign Affairs (Curzon) to the American Chargé (Wheeler)

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.]

Curzon of Kedleston
  1. Not printed.
  2. The Chargés note was apparently based on Department’s instruction no. 977, Oct. 4, p. 222.
  3. Post, p. 1153.
  4. The Chargé’s note was apparently based on Department instruction no. 977, Oct. 4, p. 222.
  5. Foreign Relations, 1922, vol. ii, p. 304.