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

No. 631

Sir: The Department has received your telegram No. 94 of March 7, 1925, wherein you report that the Foreign Office has been informed by the British Ambassador in Washington that the United States Senate has advised and given its consent to the ratification of the Convention between the United States and Great Britain, signed at London on December 3, 1924, with respect to the rights of the two Governments and their nationals in Palestine. It is noted that, in an informal communication, the Foreign Office has asked whether this [Page 218] Government is prepared to proceed to the exchange of ratifications of this Convention.

Your telegram raises again the questions which were the subject of the Embassy’s telegram No. 516 of December 11 and the Department’s reply No. 473 of December 17, 1924,16 i. e.

The status of certain cases, involving American citizens or interests, adjudicated by the Palestine Courts in contravention of the capitulatory rights of the United States and in disregard of the provisional arrangement, made in 1922 and 1923 between the American Consul at Jerusalem and the Legal Secretary of the Palestine Government,17 as to the procedure to be followed in civil and criminal cases arising in Palestine in which American citizens or interests should be defendants, and
The necessity of this Government’s assent to the imposition upon American citizens or interests of any dues or taxes not contemplated by the capitulatory regime or to the collection from its nationals or interests of any increase in such dues or taxes.

Since the receipt of your above-mentioned telegram of March 7, 1925, the Department has communicated by telegram with the Consul at Jerusalem18 with a view to obtaining a recapitulation of all matters in which the Palestine authorities would appear to have taken action prejudicial to the rights of American citizens or interests as outlined above. In reply, the Consul reports19 that, in disregard of the agreement between the Consulate and the Legal Secretary, eight judgments against American citizens or interests have been rendered by the Palestine Courts, that two of such judgments have been executed without the assistance of the Consulate and that there is now pending in a Palestine Court one case wherein an American citizen is named as defendant. The Consul adds that, in each of the cases referred to, he has lodged a written protest against the action of the Palestine authorities.

In making such protests the Consul has based his action on the following considerations: Article 8 of the Convention of December 3, 1924, provides that it shall enter into effect only upon the exchange of ratifications by the contracting parties; Article 8 of the Mandate for Palestine (incorporated in the preamble to the Convention) provides that, during the period of the Mandate, “the privileges and immunities of foreigners, including the benefits of consular jurisdiction and protection as formerly enjoyed by capitulation or usage in the Ottoman Empire, shall not be applicable in Palestine”; and the United States Government has consistently maintained the position that the privileges and immunities in question could be relinquished [Page 219] only by treaty agreement. The conclusion logically to be drawn from the foregoing considerations was that, pending the exchange of ratifications of the Convention of December 3, 1924, the Consul at Jerusalem should continue to exercise extraterritorial jurisdiction in cases, involving American citizens, which, under the capitulatory regime, were properly within the jurisdiction of the American Consular Court.

That this conclusion was accepted in principle is shown by the above-mentioned agreement concluded in 1922 and 1923 between the Consulate and the Legal Secretary of the Palestine Government. The detailed scope of this provisional agreement is set forth in the enclosures to the Department’s instruction No. 977 of October 4, 1923,20 which enclosures the Department desires you to study carefully in connection with its present instruction.

You will also find in the Department’s instruction No. 977 of October 4, 1923, a discussion of the circumstances which, in certain cases, led to the non-application of the terms of this provisional agreement. In this connection reference is also made to the Department’s instruction No. 1004 of October 30, 1923,21 transmitting a copy of a judgment, rendered by the Palestine Court of Appeals, in which the Court set forth its reasons for not following the procedure provided for in the provisional agreement. It is presumably under the provisions of this judgment that the Palestine Courts have taken cognizance of the nine cases involving American citizens to which reference has been made above. For the reasons already stated, however, the conclusions of the Palestine Court of Appeals were inacceptable to this Government, and in each of the nine cases in question, a formal written protest was made by the Consul at Jerusalem to the proper authorities of the Palestine Government.

These reasons persist today, and before proceeding to the exchange of ratifications of the Convention of December 3, 1924, the Department desires you to ascertain whether the British Government is prepared to give assurances in the following sense:

That the pending case will be dropped,
That the two judgments, already rendered by the Palestine Courts and executed in disregard of the provisional agreement, will be cancelled and that sums collected from American citizens without the assistance of the Consulate will be refunded, and
That the six judgments, already rendered but not as yet executed, will not be executed after the exchange of ratifications.

The Department desires that you discuss this question informally with the proper official of the Foreign Office and report the results of your representations. In such conversations you may add that, [Page 220] after the entering into effect of the Convention of December 3, 1924, this Government would, of course, have no objection to the retrial of the nine cases in question. You may suggest also that a further reason for desiring these assurances is that, in some, if not all, of the cases in question, judgment was rendered in absentia, the American defendant having absented himself from the court of trial upon the advice of the American Consulate and as a protest against the assumption of jurisdiction by the Palestine Court.

You will be careful, in your conversations at the Foreign Office, to reserve for further discussion the question of the imposition upon American nationals of the increased Palestine import duties which have not received the assent of this Government. That question will be made the subject of a separate instruction which will be sent to you at an early date.

I am [etc.]

Frank B. Kellogg