611.62 m 31/44

The Secretary of State to the Secretary of the Navy

Sir: I have the honor to refer to your letter of May 11, 1927, in which you inquire, in connection with previous correspondence, whether in the opinion of this Department, the negotiations relating to the preferential treatment of British goods imported into the mandated territory of Western Samoa (under the administration of the Government of New Zealand) have reached a stage where the Navy [Page 984] Department would be justified in authorizing the Governor of American Samoa to establish a customs tariff with rates preferential to goods imported from the United States.

The question of the treaty rights of the United States and of New Zealand, respectively, in the mandated territory of Western Samoa and in the portions of the Samoan Islands group which are under the sovereignty and jurisdiction of the United States, has, as you know, been before the American and British Governments for a number of years.

I am in receipt of a letter from the Attorney General of the United States, dated February 9, 1927,52 with which he encloses his official opinion to the effect that the extension of the coastwise laws of the United States to American Samoa by authority of Section 21 of the Merchant Marine Act, 1920,53 is in contravention of and, as a matter of municipal law, overrules Article III of the Tripartite Convention of 1899, between the United States, Great Britain and Germany, adjusting questions in respect of the Samoan Islands.

I need not emphasize here the seriousness of the situation from the point of view of international relations where a country enacts a statute in conflict with the provisions of a treaty to which it is a party; nor need I mention the evident fact that the enactment of such a statute does not relieve the country enacting it from that country’s obligation under the treaty. Article III of the Convention of 1899 is as follows:

“It is understood and agreed that each of the three signatory Powers shall continue to enjoy, in respect to their commerce and commercial vessels, in all the islands of the Samoan group privileges and conditions equal to those enjoyed by the sovereign Power, in all ports which may be open to the commerce of either of them.”

There would seem to be no question that, if discrimination in the matter of shipping opportunities constitutes a violation of this treaty provision, a differential tariff, affecting adversely importations of goods from the other party to the treaty, would equally violate it. Indeed it is precisely such an act, a tariff made applicable by New Zealand in Western Samoa, that forms the basis of protest already made by this Government to the Government of Great Britain. I have reason to believe that the revocation, in so far as they apply to American Samoa, of American coastwise shipping laws would result in a revocation by New Zealand of its differential tariff laws in so far as applicable to Western Samoa.

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The Department is considering what further steps it will take in relation to these negotiations. It is hoped, therefore, that you will instruct the Governor of American Samoa to take no action looking to the establishment of a preferential tariff for American goods entering the territory under his jurisdiction. It would, in my opinion, be most unfortunate, at a time when effort is being made to adjust the differences between the United States and Great Britain in regard to these matters, to take a new step which might be regarded as not less in contravention of Article III of the Tripartite Treaty than was the extension of the American coastwise laws to American Samoa.

I have delayed answering your letter in the hope that I might report definitely the renewal of negotiations. I shall not fail to inform you when such action is taken.

I have [etc.]

Frank B. Kellogg
  1. Apparently refers to letter of Jan. 27, 1927, from the Attorney General, Foreign Relations, 1927, vol. ii, p. 770.
  2. 41 Stat. 988, 997.