761.91/97
The British Chargé (Chilton) to the Secretary of State
Sir: I have the honour, under instructions from my Government, to inform you that His Majesty’s Minister at Tehran recently asked His Majesty’s Principal Secretary of State for Foreign Affairs for a ruling regarding the validity in general of the treaty of Turcomanchai, (signed in 1828 between Russia and Persia)29 as the basis of rights enjoyed by His Majesty’s Government and British subjects in Persia.
Sir P. Loraine expressed himself as doubtful whether it would be wise to leave unchallenged the Persian Government’s contention that no claims can be based on the treaty of Turcomanchai, because it has been annulled by the Russo-Persian Treaty of 1921,30 although, hitherto, no such assertion has yet been made in any official communication addressed to him direct by the Persian Government. The question arose, however, incidentally in the course of conversation between Sir P. Loraine and the Persian Minister for Foreign Affairs, who seemed quite astonished to learn that not only His Majesty’s Government but also other Christian governments maintained that the treaty of Turcomanchai was valid in their regard.
[Page 568]By the Anglo-Persian Treaty of Peace of March 4th, 185731 His Majesty’s Government are guaranteed most favoured nation treatment. Furthermore, in order to safeguard British interests, His Majesty’s Minister at Tehran on December 23rd, 1920 addressed a warning to the Persian Government that the rights and interests of His Majesty’s Government could not be exposed to infringement by any negotiations conducted by the Persian Government with the Russian Soviet or other governments. In reply the Persian Minister for Foreign Affairs stated on March 3rd, 1921 that “the Imperial Government have always respected and protected the rights and interests of the British Government” and that “whatever negotiations may be conducted with the Soviet Government of Russia will not interfere with the foundation of the relations between our respective governments. Of course this point of view applies to the rights which British subjects have obtained in accordance with the law and other legal disputes”.
Thus until recently Sir P. Loraine has continued to resist Persian pretensions to consider the treaty of Turcomanchai, on which, hitherto, British most favoured nation treatment has been regarded as resting, as having lapsed on account of the conchision of the Russo-Persian Treaty of 1921.
The whole question has now, however, received careful attention at the hands of His Majesty’s Government, involving the consideration of the three following points:—
- (1)
- Whether the Russo-Persian Treaty of 1921 specifically cancels the 1828 Treaty.
- (2)
- If so, whether His Majesty’s Government recognise the validity of the treaty entered into by a government which has not, hitherto, been recognised de jure.
- (3)
- Whether His Majesty’s Government can be deprived of a right by an instrument to which they are not a party and in respect of which they were not consulted.
As to (1) the Russo-Persian Treaty of 1921 cancels (clause 1) all treaties “concluded by the late Tsarist Government”. Clause II declares null and void “all conventions … concluded by the late Government of Russia”. There can be little doubt that the intention, as confirmed by practice, was that the cancellation applied to all treaties concluded by the Tsarist system of government rather than those concluded by a particular, i. e. the late Government. For instance, Clause 16 of the 1921 Treaty completely reverses the privileges conferred on Russians by the 1828 Treaty.
As regards point (2), His Majesty’s Government have not, hitherto, signed a formal treaty with the present Russian Government similar [Page 569] to the 1921 agreement between Russia and Persia. Such an act would involve de jure recognition. But de facto recognition on the part of His Majesty’s Government and the conclusion of the Anglo-Russian Trade Agreement have forced His Majesty’s Government to recognise the validity of Russian legislation, and by analogy it would seem to follow that His Majesty’s Government recognised as being in force their treaty arrangements with other powers. Moreover, the recognition by the allied powers of the right of the Soviet Government to sign the Straits Convention in the Treaty of Lausanne32 would appear to strengthen the above arguments.
Regarding point (3), the most favoured nation rights which His Majesty’s Government derive from the 1828 treaty of Turcomanchai are indirect in their nature. His Majesty’s Government demand that no Russian should be treated preferentially to a British subject. But they have no absolute right to claim any treatment which may have been accorded to Russians in the past, but which is now withheld. It therefore follows that His Majesty’s Government have not actually lost any rights at all and that they have not got a good case for a protest that they were not consulted before the abrogation of the treaty of Turcomanchai.
The view of His Majesty’s Government is, therefore, that it would be wrong to base any claim against the Persian Government on the supposed continuance in force of the Treaty of Turcomanchai, and the case of His Majesty’s Government for capitulatory rights must rest upon the rights conceded by treaty to various other powers such as France (Franco-Persian Treaty of 1855 Article 5. “Hertslet’s Persian Treaties” page 82) and Germany (Treaty of 1873. “Hertslet’s Persian Treaties” pages 84–92), and upon definite concessions granted to His Majesty’s Government or upon usage, as is the case in Abyssinia.
Sir Percy Loraine has therefore been instructed to adopt the attitude laid down in the preceding paragraph of this note, in case the Persian Government should at any time raise the question of capitulatory rights in Persia. He has, however, expressed the opinion, which is shared by His Majesty’s Government, that should he have occasion to make a communication in that sense to the Persian Government, the attitude of other powers might thereby be prejudiced, since it is understood that the representatives of France, Italy, the United States and Belgium are disposed still to hold by the treaty of Turcomanchai.
In these circumstances, His Majesty’s Government desire me to enquire whether the point of view outlined above also represents the [Page 570] attitude of the United States Government in the matter. I am instructed to add that in inviting an expression of the opinion of the United States Government, Lord Curzon has in mind the desirability of the five Powers offering, if possible, a united front in this important question in case of a challenge by the Persian Government.
A similar enquiry is being addressed to the French, Italian and Belgian Governments by His Majesty’s representatives at Paris, Rome and Brussels.
I have [etc.]