Papers Relating to the Foreign Relations of the United States, 1925, Volume II

890g.01/125b

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

Washington , April 20, 1925 .

No. 627

Sir: Referring to the Department’s telegraphic instruction No. 369 of October 21, 1924, and to your telegraphic replies Nos. 442 and 449 of October 28 and November 3, 1924, respectively,⁵⁰ the Department desires to furnish you with the following résumé of its position with respect to the Decision relative to Iraq taken by the Council of the League of Nations, at the fourteenth meeting of its thirtieth session, held at Geneva on September 27, 1924. Reference is made also to your despatch No. 1037 of February 3, 1925,⁵¹ transmitting copies of a British Government publication entitled “Papers Relating to the Application to Iraq of the Principles of Article 22 of the Covenant of the League of Nations.”⁵²

The evident effect of this action of the Council, apparently taken at the instance of the British Government, is the substitution of the Decision of September 27, 1924, (see copy annexed and hereinafter referred to as the Decision)⁵³ together with the Anglo-Iraq Treaty of October 10, 1922, the Protocol of April 30, 1923, and the Subsidiary Agreements of March 25, 1924, for the earlier Draft Mandate for Mesopotamia. In accordance with the Council’s policy with reference to “A” Mandates, this earlier Draft Mandate for Mesopotamia followed the general lines of the Mandates adopted in the cases of Palestine and Syria.

You are already familiar with the correspondence which was carried on by this Government with the British Government and with the Council of the League of Nations between 1920 and 1922, with reference to the right of this Government to be consulted with respect to the form of the Mandatory arrangements for territories detached from Germany and her Allies as a result of the war. This Government in this correspondence further indicated its views with regard to the principles which it considered applicable to Mandated territories. A part of this correspondence, as you will recall, was published in British Parliamentary Paper, Cmd. 1226, Miscellaneous No. 10 (1921) entitled “Correspondence between His Majesty’s Government and the United States Ambassador Respecting Economic Rights in Mandated Territories.” More recent correspondence is contained in the Senate Document⁵⁴ enclosed with the Department’s instruction No. 268, July 9, 1924.⁵⁵ Your attention is particularly directed to the portion of this document, pages 47 to 57, relating to Mesopotamia. Reference may be made also to the Monthly Political Report for January, 1924,⁵⁵ in which is given, on pages 27 to 29, a brief survey of developments in Mesopotamia during the period April 1920 to January 1924.

The Department’s files indicate that the Anglo-Iraq Treaty, Protocol and Subsidiary Agreements were approved by the Iraq Constituent Assembly on June 10, 1924; by the British House of Commons as a result of its approval on July 29, 1924, of the Government’s Middle Eastern estimates; and by the Council of the League of Nations in accordance with the terms of its aforementioned Decision of September 27, 1924.

In considering the effect of the situation thus created in so far as it relates to American interests in Iraq, the Department has found helpful a detailed comparative examination of the Palestine Mandate,⁵⁶ on the one hand, and the corresponding Articles of the Anglo-Iraq Treaty, Protocol and Subsidiary Agreements and the Decision of September 27, 1924, on the other hand.

From such examination it does not appear that any of the latter instruments contain provisions which adequately safeguard this Government’s position with respect to the Capitulations in the event of the termination of British responsibility in Iraq. The penultimate paragraph of the Decision provides:—

“that the privileges and immunities, including the benefits of consular jurisdiction and protection formerly enjoyed by capitulations or usage in the Ottoman Empire, will not be required for the protection of foreigners in Iraq so long as the Treaty of Alliance is in force.”

Article 8 of the Palestine Mandate, on the other hand, after reciting, in terms similar to those used above, that “the privileges and immunities of foreigners … shall not be applicable in Palestine,” concludes as follows:—

“Unless the Powers whose nationals enjoyed the aforementioned privileges and immunities on August 1, 1914, shall have previously renounced the right to their re-establishment, or shall have agreed to their non-application for a specified period, these privileges and immunities shall, at the expiration of the mandate, be immediately re-established in their entirety or with such modifications as may have been agreed upon between the Powers concerned.”

No similar modifying statement appears in the Anglo-Iraq Treaty or related documents.

Further, there do not appear to be, in the documents relating to Iraq, adequate provisions with respect to equality of economic opportunity in Mesopotamia or adequate safeguards against monopoly of the natural resources of that territory. From a review of this Government’s earlier correspondence with the British Government with regard to Mandates, particularly those for Palestine and Mesopotamia, you will note that while, in view of the special conditions prevailing in Palestine, this Government did not insist on a special provision respecting monopolies in the Palestine Mandate, it expressly reserved its position with respect to other mandate territories, including Mesopotamia. Reference may be made, in this connection, to the Embassy’s note No. 151 of April 5, 1922, to the British Foreign Office,⁵⁸ which reads in part as follows:—

“It should be clearly understood, however, that this position is taken by my Government solely in recognition of the special situation in Palestine and is not to be considered as prejudicial in any respect to the contentions which have been made, and which are still being made, in connection with other mandate territories.”

Article 11 of the Mandate for Syria and the Lebanon may be quoted as indicating the agreement reached after correspondence with this Government in regard to the regime which should be applicable in Mandate Territories in the matter of concessions. Paragraph 4 of this Article reads as follows:

“Concessions for the development of these natural resources shall be granted without distinction of nationality between the nationals of all States members of the League of Nations, but on condition that they do not infringe upon the authority of the local Government. Concessions in the nature of a general monopoly shall not be granted. This clause shall in no way limit the right of the Mandatory to create monopolies of a purely fiscal character in the interest of the territory of Syria and the Lebanon, and with a view to assuring to the territory the fiscal resources which would appear best adapted to the local needs, or, in certain cases, with a view to developing the natural resources either directly by the State or through an organization under its control, provided that this does not involve either directly or indirectly the creation of a monopoly of the natural resources in favour of the Mandatory or its nationals, nor involve any preferential treatment which would be incompatible with the economic, commercial and industrial equality guaranteed above.”

In the penultimate paragraph of your telegram No. 442 of October 28, 1924, and, again, in your telegram No. 449 of November 3, 1924, you represent the position of the British Foreign Office to be that the provisions of Article 11 of the Anglo-Iraq Treaty are sufficient to preclude the possibility of any discrimination in this particular connection. It should be observed, however, that Paragraph 1 of Article 11 of the Mandate for Syria and the Lebanon⁵⁹ is, except for differences in phraseology, similar to Article 11 of the Anglo-Iraq Treaty, and that, in the case of Syria and the Lebanon, it was considered important to add Paragraph 4 quoted above, not only to clarify but also to supplement the provisions of Paragraph 1. No such supplementary provisions are found in the Anglo-Iraq Treaty or related documents.

It will be observed also that the Foreign Office memorandum No. E 14259/37/88 of December 29, 1921,⁶⁰ to which reference is made in the opening paragraph of your note No. 151 mentioned above, contained the following statement:

“I reserve to myself a still further memorandum to Your Excellency regarding the mandate for Mesopotamia. The position of His Majesty’s Government in that country is peculiar … I hope to be in a position at an early date to give you the fullest assurance on this matter.”

Apparently no such assurance has been communicated to this Government. From time to time, however, as the situation in Mesopotamia developed, the British Government has supplied this Government with various publications and information dealing with the changing character of what it considered to be its responsibilities as Mandatory with regard to Mesopotamia. Its communications of June 24, 1922 (see your despatch No. 1412 of June 27, 1922) relative to the progress of the then pending Anglo-Iraq negotiations, of October 11, 1922 (see your despatch No. 1755 of October 13, 1922) relative to the conclusion of such negotiations and of June 13, 1923 (see the Department’s instruction No. 943 of July 21, 1923)⁶¹ communicating the text of the Protocol of April 30, 1923, may be cited in this connection.

You will of course appreciate that this Government could not acquiesce in the view that any agreement between Great Britain and Iraq or any instrument accepted by the Council of the League of Nations with reference to Iraq could prejudice existing American rights in that territory. In particular, the Capitulatory rights of the United States are considered still to persist in Iraq pending the consummation of a suitable treaty arrangement with the appropriate authorities. The Department considers, therefore, that, when an appropriate opportunity arises, it may be desirable to conclude with the competent authorities an agreement embodying its consent, on appropriate terms and provided the proper safeguards for American interests are secured, to the arrangements which have been reached with reference to Iraq. It is possible that such an agreement might best be concluded in the form of a convention between the United States and Great Britain, and possibly Iraq, embodying a reference to the Anglo-Iraq Treaty and related documents and to the text of the Decision, and containing operative articles similar to those included in the Anglo-American Convention of December 3, 1924, with respect to Palestine⁶² and in the Convention of April 4, 1924, between the United States and France with respect to Syria and the Lebanon.⁶³

The foregoing discussion of this Government’s views regarding the situation created by the Decision of September 27, 1924, may be supplemented by a brief reference to the exchange of notes early in 1921 between the Secretary of State and the President of the Council of the League of Nations. The pertinent sections of the Secretary’s note of February 21, 1921,⁶⁴ and the complete text of the Council’s reply of March 1, 1921,⁶⁵ are quoted on pages 8 to 10 of the Department’s confidential publication, printed and distributed November 12, 1924, Series C, No. 54, Syria No. 1, entitled “Mandate for Syria and the Lebanon,” a copy of which was duly transmitted to your Embassy. In Paragraph 7 of the Council’s reply, the following statement is made:—

“No conclusions will therefore be reached with regard to ‘A’ Mandates until the United States Government has had an opportunity to express its views.”

A reference to pages 10 to 15 of the above mentioned confidential publication is believed to be sufficient to establish the fact that this Government’s views with regard to “A” Mandates were brought to the attention of the Principal Allied Governments and of the Council of the League of Nations, as well as the fact that such views were duly considered by the Council to the satisfaction of this Government’s contentions in so far as concerned the adoption of the final form of the Syrian Mandate. As already indicated, similar consideration of this Government’s views was given in the adoption of the final draft of the Palestine Mandate. The Department has noted, therefore, with some apprehension that, in connection with the determination of the nature and extent of the responsibilities of Great Britain as the Mandatory Power in Iraq, the British Government, before seeking the approval of the Council of the League of Nations, omitted to consult with this Government and presumably did not take into consideration certain of its expressed views with regard to “A” Mandates, to wit, particularly those views relative to “Capitulatory rights” and to “Provisions against discrimination” (see page 11 of the Department’s confidential publication respecting Syria referred to above).

The Department desires, therefore, that you supplement the informal representations to which reference was made in its telegram No. 369 of October 21, 1924, by communicating to the British Foreign Office a note in the following sense:—⁶⁶

“Among the documents recently published by the League of Nations my Government has noted the text of a decision of the Council of the League under date of September 27, 1924, relating to the application of the principles of Article 22 of the Covenant of the League to the territory of Iraq. It appears that this decision was taken at the instance of the Government of His Britannic Majesty following the submission to the Council of a statement by Lord Parmoor with respect to the circumstances which made it appear to His Majesty’s Government to be impracticable to exercise in Iraq a mandate of the form contemplated in the document which His Majesty’s Government submitted to the Council in December, 1920. With a draft of the decision which was adopted by the Council, Lord Parmoor submitted a copy of the Treaty of October 10, 1922, between His Britannic Majesty and His Majesty the King of Iraq, together with a protocol dated April 30, 1923, and subsidiary agreements dated March 25, 1924. Lord Parmoor stated that the Treaty and the connected documents placed the British Government in a position vis-à-vis Iraq to discharge its obligations toward the League and that all the points embodied in the original draft mandate would be found to be covered by these documents, supplemented by the further undertakings embodied in the draft decision. The effect of the Council’s decision, so far as concerns the governments which accepted that decision, appears to be to substitute for the original draft mandate the arrangements of His Majesty’s Government with the Government of Iraq and the undertakings oi His Majesty’s Government towards members of the League.

Your Excellency will undoubtedly recall the extended correspondence between His Majesty’s Government and the Government of the United States, as well as the correspondence which my Government had with the Council of the League of Nations, regarding the right of the United States to be consulted with respect to the character and conditions of the administration of territories detached from the Ottoman Empire as a result of the common victory over the Central Powers. I refer, in this connection, to a communication of December 29, 1921,⁶⁷ in which His Majesty’s Government asserted that it had no desire to challenge the statement of my Government concerning the relation of the victory over Turkey to the victory over Germany and disclaimed any intention to discriminate against nationals of the United States or refuse them full equality of commercial opportunity in territories detached from Turkey as a result of the common victory. It was the understanding of my Government that its right to be consulted with respect to the character and conditions of the administration to be established in Mesopotamia was fully acknowledged by His Majesty’s Government, as well as by the Council of the League of Nations, and after the statement of Sir Eyre Crowe in the communication of December 29, 1921, above mentioned, with reference to the presentation of a further memorandum in which he hoped to be able to give the American Ambassador the fullest assurance regarding the mandate for Mesopotamia, my Government entertained no doubt that it would be consulted before the consummation of final arrangements in regard to the administration of Mesopotamia. The expectation of my Government that it would be consulted in regard to the administration of this territory was supported by the fact that, before the adoption by the Council of the League of the British mandate for Palestine and the French mandate for Syria and the Lebanon, my Government was given an opportunity to express its views regarding the terms of those mandates.

My Government has fully appreciated the fact that the political situation in Iraq has changed in material respects since the draft mandate for that territory was first presented. It has no disposition to question in principle the necessity for a modification of the mandatory arrangement in the general sense of the decision adopted by the Council on September 27, 1924. It has noted, however, with some apprehension, the omission from the modified arrangement of provisions similar to those inserted in the mandate for Syria and the Lebanon respecting the reestablishment of the capitulations upon the termination of the mandatory arrangements and respecting the observance of the principle of equality of opportunity in regard to the exploitation of the natural resources of the mandated territory. It is firmly of the opinion that no arrangements to which it is not a party could modify the rights to which it is entitled in Iraq by virtue of the capitulations of the Ottoman Empire, and it believes that, in accordance with the principles which my Government has consistently advocated and which it is not believed His Majesty’s Government would be disposed to contest, American nationals should be placed on an equal footing with the nationals of any of the Allied Powers with respect to economic and other rights in Iraq.

While my Government has no desire to question the finality of the acceptance which other governments may have accorded to the arrangements between His Britannic Majesty and His Majesty the King of Iraq, and is not disposed to suggest a reconsideration of the general arrangement reached, it would be pleased to be informed whether His Majesty’s Government, as the Mandatory Power in Iraq, is prepared to give assurances of the character believed to be necessary for the regularization of the situation of Iraq in relation to the United States. Such assurances, I may state, might, in the opinion of my Government, be appropriately embodied in a convention somewhat similar to that recently concluded with respect to Palestine. In view of the particular situation existing in Iraq it might be desirable to consider the possibility of securing the concurrence of Iraq in any such arrangement.”

I am [etc.]

Frank B. Kellogg

50. Telegrams Nos. 369 and 499 printed supra; telegram No. 442 printed in Foreign Relations, 1924, vol. ii, p. 68.
51. Not printed.
52. Great Britain, Cmd. 2317 (1925).
53. Ibid., p. 6.
54. Oil Concessions in Foreign Countries, S. Doc. 97, 68th Cong., 1st sess.
55. Not printed.
55. Not printed.
56. Quoted in convention between the United States and Great Britain regarding rights in Palestine, signed Dec. 3, 1924, Foreign Relations, 1924, vol. ii, p. 212.
58. See telegram No. 96, Apr. 3, 1922, 4 p.m., to the Ambassador in Great Britain, Foreign Relations, 1922, vol. ii, p. 271.
59. Text of the mandate is quoted in convention between the United States and France regarding rights in Syria and the Lebanon, signed Apr. 4, 1924; ibid., 1924, vol. i, p. 741.
60. Ibid., 1921, vol. ii, p. 115.
61. None of these documents printed.
62. Foreign Relations, 1924, vol. ii, p. 212.
63. Ibid., vol. i, p. 741.
64. See telegram No. 107, Feb. 21, 1921, 7 p.m., to the Ambassador in France, ibid., 1921, vol. i, p. 89.
65. Ibid., p. 93.
66. In accordance with this instruction, a note was addressed to the British Secretary of State for Foreign Affairs on May 5, 1925.
67. Foreign Relations, 1921, vol. ii, p. 115.