890d.01/185: Telegram

The Secretary of State to the Ambassador in France (Herrick)

64. Your written despatch 3908, February 1, regarding Syrian Mandate.

Paragraph 5 of French draft note refers to agreement of French Government “not to maintain in favor of consuls of both countries the rights stipulated in the Convention of 1853 to request the arrest in the United States and in France of deserters from war and merchant ships, etc., etc.” The United States considers that Articles 8 and 9 of the Consular Convention of 1853 with France, which deal with this matter, were abrogated on July 1, 1916, by notice given in pursuance of the La Follette Act of March 14 [4], 1915.12 In this connection it is noted that in the previous sentence of the draft note (i. e. last sentence, paragraph four) the French Foreign Office gives assurances that so far as the privileges and immunities attached to their duties are concerned the consuls and vice consuls of the United States will benefit by “all the provisions of the Franco-American Convention of 1853”. The statement in the French note might be taken to imply that Articles 8 and 9 are not abrogated but that there is an understanding not to exercise the rights conferred thereby. In order not to bring into question the position of the United States that Articles 8 and 9 of the Convention are abrogated, it is desired that the statement last quoted should be amended to read “all the existing provisions of the Franco-American Consular Convention of 1853”.
For the reasons hereafter set forth, Paragraph five of the French draft note should be omitted. The reference in that paragraph to rights not to be exercised by consuls of France with regard to Syrian and Lebanon sailors in the United States carries the inference that the application of the Consular Convention of 1853 would be reciprocal, i. e., apply to nationals of Syria and the Lebanon in the United States as well as to American nationals in the mandate territory. This is not the correct view. The same principles apply to the Consular Convention as in the case of the Extradition Treaty. (See Department’s telegram 13, January 12, 3 p.m.) In the case [Page 736] of the Consular Convention it is even clearer that its provisions cannot be made applicable to nationals of Syria and the Lebanon in the United States, since there is no provision in the Mandate extending the application of Consular Conventions between France and other countries such as is found in Article 7 of the Mandate with respect to extradition conventions. The extension of treaty rights enjoyed by French nationals under the Consular Convention to nationals of Syria and the Lebanon in the United States could only be effected by Treaty. An appropriate Article in the proposed Convention was accordingly suggested by this Government. If France, for reasons which she deems satisfactory, does not desire to have such an Article incorporated in the Convention, the Department will not press the matter, since the French Government states that it is prepared to extend to the United States and its nationals in Syria the benefits of the provisions of the Extradition Treaty and the Consular Convention. It is believed, however, in order that the record may be entirely clear, that the Department’s view in this matter should be communicated in writing to the French Government along the following lines, with appropriate reference to your previous written and oral representations.

“In previous communications and conversations (here make appropriate reference by date) I have had the honor to bring to Your Excellency’s attention the desire of my Government that the existing provisions of the Extradition Treaty of 1909 and Consular Convention of 1853 between the United States and France should be reciprocally extended to the United States and to Syria and the Lebanon by an appropriate provision to this effect in the proposed Convention with regard to the Mandate. It is my understanding that for reasons which have already been explained it is not the desire of your Government to include such a provision but that the French Government is prepared to assure to the United States and to American nationals in the mandated territory the rights and privileges provided under the Treaty and Convention respectively.

I am instructed by my Government to express its appreciation of the assurances of the French Government in this respect and to state that on the basis of this understanding, and of the assurances which you have embodied in your communication of November 2, 1923,13 and of this date (here insert date of French draft note as finally communicated) is prepared to proceed to the signature of the Convention.

In order, however, that there may be no misunderstanding with regard to the position of nationals of Syria and the Lebanon in the United States, my Government desires me to state that the provisions of the Consular Convention of 1853 would not be applicable with respect to such nationals in the absence of a treaty provision specifically providing for such application, and that, furthermore, the Government of the United States could not assure the application [Page 737] to such nationals in the United States of the provisions of the Extradition Treaty of 1909, in the absence of a treaty provision so providing. At the same time, I take pleasure in informing you that upon the conclusion and ratification of the Mandate Convention my Government will raise no objection to the assumption by the diplomatic and consular officers of France of the protection of the interests of the nationals of Syria and the Lebanon in the United States.”

You may show above note to the French Foreign Office in draft form and in case the latter is prepared to omit paragraph five of their draft note and to make the slight amendments suggested in paragraph one of this telegram and in the paragraph next below numbered (5) and thoroughly appreciates the position of this Government with regard to the non-reciprocal character of the Consular and Extradition Treaties, the Department is prepared to proceed to the immediate signature of the Mandate Convention as enclosed with your written despatch 3645 November 7, 192314 with the slight modifications indicated in enclosure to your 3908, February 1, 1924.15 The French note enclosed with your 3908 together with Department’s draft communication quoted above should be exchanged at the time of and just prior to the signature of the Convention.
In view of fact that the French note of November 2, 192314 enclosed with your 3645, November 7, contains important assurances which supplement the draft note enclosed with your 3908, Department desires that latter French note should refer to the former. Such reference could appropriately be inserted in the concluding paragraph of draft note, after “these assurances” and before “give satisfaction”, as follows: “as well as the assurances contained in the communication of November 2, 1923”.
Telegraph promptly whether agreement can be reached on this basis and full powers will be immediately sent you for signature.