761.91/102
The British Ambassador (Howard) to the Secretary of State
Sir: It will be within your recollection that in his note No. 836 of September 27th last, Mr. Chilton outlined the views of His Majesty’s Government on the legal position of British subjects in Persia resulting from the abrogation of the Treaty of Turcomanchai by the [Page 577] Russo-Persian Treaty of 1921, and at the same time enquired whether the attitude of the United States Government was similar to that held by His Majesty’s Government. In your reply dated January 21st, you were good enough to inform my predecessor, that the United States Government did not consider that the acquiescence by His Majesty’s Government in the present attitude of the Persian and Soviet authorities would afford it any ground for objection—nor did such action on the part of His Majesty’s Government appear to be calculated to prejudice the position of the United States Government or of its nationals in Persia, in view of the firm bases, other than the Treaty of Turcomanchai, upon which such rights rest.
The whole question of the capitulatory privileges enjoyed by British subjects in Persia has continued to be under the consideration of His Majesty’s Government, and I have been instructed by His Majesty’s Principal Secretary of State for Foreign Affairs to acquaint you with the following synopsis of the instructions which he has sent to His Majesty’s Minister in Teheran, for the guidance of Sir Percy Loraine in his future dealings with the Persian Government.
It would not be desirable to admit in any discussion with the Persian Government that the abrogation of the Treaty of Turcomanchai must necessarily affect any rights in respect to exterritorial jurisdiction enjoyed by His Majesty’s Government in Persia … But apart from the Treaty of Turcomanchai there are other bases, upon which the situation of British subjects may be safeguarded.
In civil matters a secure foundation is to be found in the French Treaty with Persia of 1855, and in the German Treaty of 1873, to the clauses of which His Majesty’s Government are entitled to appeal by virtue of their most-favoured-rights. Put briefly, the French Treaty provides that disputes in civil matters between French citizens shall be settled by French authorities—disputes between French and Persian nationals by the Persian tribunals in the presence of a French representative, and disputes between French citizens and nationals of other Powers by the authorities of the countries concerned. These provisions, mutatis mutandis, cover British subjects’ and the Persian Government would have no possible grounds for contesting the right of British subjects to have their civil disputes settled in accordance with the long established regime.
As regards criminal matters the position is more obscure because the French and German treaties mentioned above only contain most-favoured-nation-treatment, and do not specify details of procedure. In criminal cases the procedure laid down in the Turcomanchai Treaty has never been in effect—it is indeed impossible, that it could [Page 578] ever have been carried out, for British law would not permit of British authorities executing upon a British subject a sentence, which had been imposed upon him by a Persian tribunal. The present practice as regards British subjects who are involved in criminal cases is analogous to that which applies to French citizens and rests upon long usage rather than upon specific treaty rights, and the arguments put forward by Sir P. Loraine in any dispute with the Persian Government should take into account the length of time during which the present system has been in vogue. For example the (British) Persia Order-in-Council, which has governed British action since 1889 makes no provision for carrying out the Turcomanchai procedure, but Article 9 of that Order makes provision for the trial of British subjects accused of offences against Persians or other foreign nationals, which is entirely consistent with the usage, which had been previously and since followed.
For example, at the present time a British subject accused of a criminal offence against a foreigner who enjoys extra-territorial rights, would be tried in the British Consular Court, and not (as laid down in the Treaty of Turcomanchai) by a Persian tribunal in the presence of a British representative. It is not known when this usage sprang up, but even if it arose originally from a successful Russian attempt to stretch the interpretation of the Treaty of Turcomanchai, this does not necessarily mean that His Majesty’s Government are not now entitled to rely upon such usage.
As regards criminal cases in which all the parties concerned are British subjects, it has been impossible to obtain any information as to the practice before 1828. As, however, such cases are normally the first on which jurisdiction is conferred on Consuls, it is extremely probable that such jurisdiction existed before the signature of the Treaty of Turcomanchai, and it is within the knowledge of His Majesty’s Government that the French Government considers its extra-territorial rights on this point as long antedating that Treaty. In these circumstances, His Majesty’s Government are of opinion that British subjects would be entitled to the same treatment as is allowed to French citizens.
In view of these considerations, Mr. Secretary MacDonald has instructed His Majesty’s Minister in Persia to avoid raising the question with the Persian Government, and to assume that extra-territorial rights will continue to be enjoyed by British subjects in Persia in the same respects in future as in the past. If, however, the Persian authorities press Sir Percy Loraine on the point at issue, he is to urge that in matters of civil import British subjects have clearly defined treaty rights, quite irrespective of any provisions arising from the Treaty of Turcomanchai, and that criminal questions are held by His Majesty’s Government to come under the category [Page 579] of rights established by custom. In any case, Sir Percy is to contend that extra-territorial rights in matters of jurisdiction must be treated as a whole, and that an obviously impossible situation would arise if it was urged by the Persian authorities that His Majesty’s Government had a clear treaty right to ex-territorial jurisdiction in civil cases, but no rights at all in criminal matters.
In instructing me to inform you in confidence of the above views of His Majesty’s Government, Mr. MacDonald states that he is simultaneously communicating them to the Governments of France, Italy and Belgium through His Majesty’s representatives, in order that the Ministers in Teheran of these countries may be acquainted with the line, which will be taken by Sir Percy Loraine in the event of the question being raised by the Persian Government. Mr. Mac-Donald has expressed to me the hope that you may concur in his views on this question, and that, in that case, you may be pleased to instruct the United States Minister in Persia to adopt a similar attitude should the Persian authorities endeavour to discuss with him the problems of extra-territoriality.
I have [etc.]