791.003/140
The Minister in Persia (Philip) to
the Secretary of State
Teheran, May 18,
1928.
[Received June 14.]
No. 599Sir: Adverting to previous telegraphic and
other correspondence exchanged with the Department relative to the
consummation of a provisional agreement to replace our capitulatory
treaty with the Persian Government which expired on May 10, 1928, and
with particular reference to my cable messages Nos. 55 and 56 of May 14,
2 P.M. and May 16, 3 P.M., respectively, I have the honor to transmit
herewith the following enclosures:
- 1.
- A copy of a note from the American Minister to the Persian
Acting Minister of Foreign Affairs, dated May 14, 1928, which
constitutes a provisional arrangement regarding Diplomatic,
Consular, Tariff and other relations between the United States
and Persia.
- 2.
- A copy of a note from the Persian Acting Minister of Foreign
Affairs to the American Minister, dated May 14, 1928, to the
same effect.
- 3 and 4.
- Copies of notes of acknowledgment and cognizance exchanged
between the American Minister and the Persian Acting Minister of
Foreign Affairs, dated May 14, 1928.
- 5.
- A copy and translation of a note from the Persian Acting
Minister of Foreign Affairs to the American Minister, dated May
14 [10?], 1928, which constitutes a
provisional declaration as to safeguards for citizens of the
United States in Persia in the absence of Consular
jurisdictional privileges.
- 6 and 7.
- Copies and translations of notes exchanged between the
American Minister and the Persian Acting Minister of Foreign
Affairs, dated May 14, 1928, in regard to the philanthropic and
educational work of American Missionaries in Persia.
Desirous of complying with the Department’s instructions to supply it
with these copies without delay, I find it difficult in the short period
now at my disposal to submit adequate comments, either upon the various
phases of the negotiations which have led up to the signing of the notes
herewith transmitted or upon the difficulties under which they were
conducted. This I shall hope to do at a later date.
The Department will kindly observe that the last paragraph of Section 2
of the agreements exchanged on May 14th (enclosures 1 and 2 above)
provide for the settlement of the question of personal status and family
law jurisdiction by means of an early exchange of separate notes.
I regretted that the Department was unable to approve the wording of the
draft mentioned in the third paragraph of my cable message No. 48 of May
7, 2 P.M., as a means of reaching an accord with the Persian Government
in the matter of personal status and family law jurisdiction. Had such
approval been possible at the time, I have reason to believe that I
would have been the first to arrive at and sign an agreement with the
Persian Government more satisfactory than had then been accorded to the
other powers.
However, the last minute decision by the British Government to
acknowledge Persia’s new autonomous tariff had the effect of rendering
the situation less acute and of ameliorating the attitude of the Persian
Government toward all interested powers in the matter of
most-favored-nation rights, etc. Our chief strong point in this matter
lay in the fact that having been assured of favored nation rights in
tariff matters our position was independent of such decision as might be
reached by the British Government. Whereas the German representative
together with those of practically all other powers, with the possible
exception of France, had not been so assured, and were awaiting the
outcome of the Anglo-Persian negotiations before taking definite
action.
[Page 723]
As soon as I am able to agree with the Persian Government upon what seems
to be an appropriate text as a basis for an exchange of notes relative
to matters of personal status and family law jurisdiction it will be at
once submitted to the Department for its consideration.
With this exception, which I feel confident will offer no fundamental
difficulty, I consider that the understandings now arrived at and signed
assure to American citizens in Persia a treatment fully as favorable as
that granted, or which may be granted, to the nationals of other foreign
countries.
In my cable message No. 56 of May 16, 3 P.M. I informed the Department
that I had exchanged notes under date of May 14th (enclosures 6 and 7)
relative to the recognition by the Persian Government of the
philanthropic and educational work of American Missionaries in this
country.
The unannounced omission of such a statement from the Persian declaration
on safeguards caused me both surprise and indignation. Subsequently, I
learned that, for reasons of its own, the Persian Government had decided
to eliminate this from its general declarations, but that it was
prepared to exchange separate notes on the subject and that it had, in
fact, done so in the case of the British Minister. I consulted with Sir
Robert Clive, who appears to be much pleased with the result of his
negotiations, and obtained from him copies of his note regarding
missionary interests and the section of his provisional treaty which
refers to personal status and family law jurisdiction. The text of my
own note regarding missionary interests is practically identical with
the former.
With regard to the question of personal status, etc., all my colleagues
with whom I have discussed it seem to be of the opinion that, under the
circumstances, there is no particularly vital issue involved therein;
that the practical result will be that foreigners will administer their
own laws of personal status, etc., in Persia, while Persians abroad will
be only too desirous of seeking the assistance of the tribunals of the
country of their residence whenever possible.
It was only toward the close of my negotiations with Teimourtache and
when his hand had been palpably stiffened by success in other directions
that he developed a definite intention of insisting upon the unilateral
nature of the agreements under discussion.
This, I understand, was due to the fact that according to the Persian
laws all bi-lateral agreements must be submitted to the Medjliss for its
approval, whereas those of a unilateral nature are not subject to
parliamentary discussion. At the same time, Teimourtache was equally
insistent that my note should represent the initiative action to which
that of the Persian Government would
[Page 724]
be a reply. I took exception to this and insisted
in turn that if the notes were to be unilateral they must also be
identical as to the initiative taken. So acrimonious did the discussion
of this apparently trivial point become that a complete breach of
negotiations was for a time threatened. Finally the matter was adjusted
by a mutual agreement to exchange supplementary notes expressing mutual
receipt and cognizance.
This was rendered additionally necessary owing to the fact that
Teimourtache, under the advice of the French legal adviser of the
Foreign Office, consistently refused to embody in the note of the
Persian Government reference to the contents of Sub-section 1 of my text
of the provision regarding the treatment of Cuba, Panama Canal Zone,
territories and possessions, etc. I understand that this refusal was
based entirely upon the supposition that a repetition of the text of
these reservations would be a departure from the unilateral nature of
the arrangement.
I beg to mention also that Teimourtache requested the deletion from the
text of the word “arrangement” wherever employed in a sense descriptive
of the main document, and the substitution for it of the words
“stipulation”, or “stipulations”.
Apparently, it was desired in this way to avoid the semblance of a more
formal instrument in the eyes of the Persian public.
I have [etc.]
[Enclosure 1]
The American Minister (Philip) to the Persian Acting Minister for Foreign
Affairs (Pakrevan)
Excellency: I have the honor to inform you
that my Government, animated by the sincere desire to terminate as
soon as possible the negotiations now in progress with the Imperial
Government of Persia in regard to the conclusion of a Treaty of
Friendship, as well as Establishment, Consular, Commercial and
Tariff Conventions between the United States of America and Persia,
has instructed me to communicate to the Imperial Government of
Persia in its name the following provisional stipulations:
1) After May 10, 1928, the diplomatic representation of Persia in the
United States, its territories and possessions, shall enjoy, on a
basis of complete reciprocity, the privileges and immunities derived
from generally recognized international law.
The Consular representatives of Persia, duly provided with exequatur,
will be permitted to reside in the United States, its territories
and possessions, in the districts where they have been formerly
admitted.
[Page 725]
They shall, on a basis of complete reciprocity, enjoy the honorary
privileges and personal immunities in regard to jurisdiction and
fiscal matters secured to them by generally recognized international
law.
2) After May 10, 1928, Persian nationals in the United States, its
territories and possessions, shall, on a basis of complete
reciprocity, be received and treated in accordance with the
requirements and practices of generally recognized international
law.
In respect to their persons and possessions, rights and interests,
they shall enjoy the fullest protection of the laws and authorities
of the Country, and they shall not be treated, in regard to the
above mentioned subjects, in a manner less favorable than the
nationals of any other foreign country.
In general, they shall enjoy in every respect the same treatment as
the nationals of the Country, without, however, being entitled to
the treatment reserved alone to nationals to the exclusion of all
foreigners.
Matters of personal status and family law will be dealt with in
separate notes to be concluded and exchanged at the earliest
possible date.
3) After May 10, 1928, and as long as the present stipulations remain
in force, and on a basis of complete reciprocity, the United States
will accord to merchandise produced or manufactured in Persia upon
entry into the United States, its territories and possessions, the
benefits of the tariff accorded to the most favored nation; from
which it follows that the treatment extended to the products of
Persia should not be less favorable than that granted to a third
country.
In respect to the regime to be applied to the Commerce of Persia in
the matter of import, export, and other duties and charges affecting
commerce as well as in respect to transit warehousing and the
facilities accorded commercial travelers’ samples; and also as
regards commodities, tariffs and quantities in connection with the
licensing or prohibitions of imports and exports, the United States
shall accord to Persia, on a basis of complete reciprocity, a
treatment not less advantageous than that accorded to the commerce
of any other country.
It is understood that no higher or other duties shall be imposed on
the importation into or disposition in the United States, its
territories or possessions, of any article, the product or
manufacture of Persia, than are or shall be payable on like
articles, the product or manufacture of any foreign country;
similarly, and on a basis of complete reciprocity, no higher or
other duties shall be imposed in the United States, its territories
or possessions, on the exportation of
[Page 726]
any articles to Persia than are payable on the
exportation of like articles to any foreign country.
On a basis of complete reciprocity, any lowering of duty of any kind
that may be accorded by the United States in favor of the
merchandise of any other country will become immediately applicable
without request and without compensation to the commerce of Persia
with the United States, its territories and possessions.
Providing that this understanding does not relate to:
- 1)
- The treatment which the United States accords or may
hereafter accord to the commerce of Cuba, or any of the
territories or possessions of the United States, or the
Panama Canal Zone, or to the treatment which is or may
hereafter be accorded to the commerce of the United States
with any of its territories or possessions, or to the
commerce of its territories or possessions with one
another;
- 2)
- Prohibitions or restrictions authorized by the laws and
regulations in force in the United States, its territories
or possessions, aiming at the protection of the food supply,
sanitary administration in regard to human, animal or
vegetable life, and the enforcement of police and revenue
laws.
The present stipulations shall become operative on the day of
signature, and shall remain respectively in effect until the entry
in force of the Treaty and Conventions referred to in the first
paragraph of this note, or until thirty days after notice of their
termination shall have been given by the Government of the United
States to the Imperial Government of Persia, but should the
Government of the United States be prevented by future action of its
legislature from carrying out the terms of these stipulations the
obligations thereof shall thereupon lapse.
I shall be glad to have your confirmation of the understanding thus
reached.
I avail myself [etc.]
[Enclosure 2—Translation46a]
The Persian Acting Minister for Foreign
Affairs (Pakrevan) to the American
Minister (Philip)
Mr. Minister: I have the honor to advise
you that my Government, animated by the sincere desire to terminate
as soon as possible the negotiations now in progress with the
Government of the United States relative to the conclusion of a
treaty of friendship, as well as establishment, consular, customs,
and commercial conventions, has
[Page 727]
directed me to communicate to you, in its
name, the following provisional stipulations:
1. On and after May 10, 1928, the diplomatic representation of the
United States of America in Persian territory shall enjoy, on
condition of complete reciprocity, the privileges and immunities
sanctioned by generally recognized international law.
The consular representatives of the United States of America in
Persian territory, duly provided with an exequatur, shall be
permitted, on condition of complete reciprocity, to reside there in
the localities to which they were admitted up to that time.
They shall enjoy, on the condition of complete reciprocity, the
honorary privileges and personal immunities in regard to
jurisdiction and fiscal matters sanctioned by generally recognized
international law.
2. On and after May 10, 1928, the nationals of the United States in
Persia shall on the basis of complete reciprocity be admitted and
treated in accordance with the rules and practices of generally
recognized international law.
In respect of their persons and property, rights and interests, they
shall enjoy there the fullest protection of the laws and the
territorial authorities of the country, and they shall not be
treated in regard to the above-mentioned matters in a manner less
favorable than the nationals of other foreign countries.
They shall enjoy, in every respect, the same general treatment as the
nationals of the country, without being entitled, however, to the
treatment reserved to nationals alone, to the exclusion of all other
foreigners.
Matters of personal status and family law shall be treated in special
notes to be drawn up and exchanged as soon as possible.
3. On and after May 10, 1928, and as long as the present provisions
shall remain in force, and on condition of complete reciprocity,
merchandise produced or manufactured in the United States, its
territories and possessions, on their entry into Persia, shall enjoy
the tariff accorded to the most favored nation, so that the
treatment accorded to the United States for its merchandise shall
not be less favorable than the legal treatment accorded to a third
country.
In respect to the régime applicable to the commerce of the United
States of America, in the matter of import and export and other
duties and charges relating to commerce, as well as to transit,
warehousing, and the facilities accorded to commercial travelers’
samples, and as to facilities, tariffs, and quantities in connection
with the licensing and prohibition of imports and exports, Persia
shall accord to the United States, its territories, and possessions,
on condition of complete reciprocity, a treatment not less favorable
than that accorded to the commerce of any other foreign country.
[Page 728]
It is understood that other or higher duties shall not be applied to
the importation into or the sale in Persia of any articles, produced
or manufactured in the United States, its territories and
possessions, than those which would be payable on like articles
produced or manufactured by any other foreign country.
Similarly and on condition of complete reciprocity, no other or
higher duties shall be imposed in Persia on the exportation of any
articles to the United States, its territories or possessions, than
those which would be payable on the exportation of like articles to
any other foreign country.
On condition of complete reciprocity, any lowering of duties of any
kind that may be granted by Persia in favor of the products of any
other country shall be immediately applicable, without request and
without compensation, to the commerce of the United States, its
territories and possessions, with Persia.
It is understood that these provisions do not refer to the
prohibitions and restrictions authorized by the laws and regulations
in force in Persia for protection of the food supply, sanitary
administration in regard to human, animal, or vegetable life, the
interests of public safety and fiscal interests.
The stipulations of the present note shall go into effect to-day and
they shall remain respectively in force until the entry into effect
of the corresponding treaty and conventions referred to in the first
paragraph of this note or until the expiration of a period of thirty
days from the notice which may be given to the Government of the
United States by my Government of its intention to terminate them,
but in case my Government should be prevented from fulfilling its
engagements by the effect of a legislative measure, these
stipulations shall lapse.
I would be glad to have confirmation of our understanding on these
points.
Please accept [etc.]
[Enclosure 3]
The American Minister (Philip) to the Persian Acting Minister for Foreign
Affairs (Pakrevan)
Excellency: I have the honor to inform you,
in the name of my Government, that I have received and taken note of
the contents of your note of to-day’s date setting forth provisional
stipulations in regard to Diplomatic, Consular, tariff and other
relations between the United States and Persia.
I avail myself [etc.]
[Page 729]
[Enclosure 4—Translation46b]
The Persian Acting Minister for Foreign
Affairs (Pakrevan) to the American
Minister (Philip)
Mr. Minister: I have the honor, in the name
of my Government to acknowledge receipt of and place on record the
contents of your note of to-day’s date, specifying the provisional
stipulations relative to diplomatic, consular, customs and other
relations between Persia and the United States of America.
Please accept [etc.]
[Enclosure
5—Translation]
The Persian Acting Minister for Foreign
Affairs (Pakrevan) to the American
Minister (Philip)
Teheran, May 10 [14?], 1928.
Mr. Minister: In reply to requests that
have been formulated, and on the eve of the realization of its
decision to abolish on May 10, the regime heretofore known as the
Regime of Capitulations, the Imperial Persian Government animated by
a desire to dissipate any concern arising from a lack of familiarity
with the new system to be applied to them hereafter, which might be
entertained by foreign nationals residing in Persia, and desirous,
through your intermediary, of placing your nationals in possession
of the dispositions taken in their behalf by legislation and by the
Persian Government, addresses to you for communication to your
nationals, the present decision.
It is unnecessary to state, that the Persian Government, itself,
vitally interested in securing to the citizens of Persia a maximum
of guarantees and to maintain in the accomplishment of this aim a
judicial system as nearly perfect as possible, has achieved very
appreciable judicial reforms both in regard to personnel and
legislation.
Without mentioning legislation familiar to every one, a knowledge of
legal matters the equivalent of that represented by a degree in law
is one of the obligatory conditions to entry in the judicial
career.
Regarding the situation of the nationals of the United States of
America as it results from this decision, the following measures,
taken by the Persian Government, will be applicable as of May 10,
1928:
(1) On a basis of complete reciprocity, they will be received and
treated in Persia in accordance with the rules and practices of
international law, and will enjoy the most entire protection of the
Persian laws and authorities, and will enjoy the same treatment as
the nationals of Persia.
[Page 730]
(2) In civil or commercial suits where one of the parties is a
national of the United States only written testimony shall be
admitted.
In all suits, even criminal, sentences will be drawn up in writing
and will set forth the considerations of law and of fact on which
they are based.
Parties to a suit, or persons authorized by them, will have the right
to obtain copy of the testimony and the judgment, on the condition
of paying the regular fees.
In criminal cases, since oral testimony is normally accepted, the
interests of the accused are safeguarded by Articles 215 and 216 of
the Penal Code which provides against false-witness.
(3) Only the Courts and Tribunals directly under the Ministry of
Justice, and no others, shall be competent in a suit where one of
the parties is a national of the United States.
Only the Criminal Courts directly under the Ministry of Justice may,
in general, pronounce a sentence of imprisonment in cases involving
nationals of the United States.
However, should a state of siege be proclaimed, and a suit has come
before a specially formed Tribunal this Tribunal will be able to
take cognizance of the suit in which a national of the United States
is one of the parties.
Moreover, in fiscal matters and, in general, in a litigation between
an Administration and a national of the United States concerning a
purely administrative matter, the Administrative Courts retain their
competence.
(4) In any case a national of the United States will not be brought
before any but Lay Courts, and only Lay Laws will be applicable to
him.
(5) Simple Police Courts shall be competent in the case of nationals
of the United States only in matters of minor importance punishable
by a small fine.
They may not give prison sentences unless the national of the United
States should himself request that the fine which he has been
sentenced to pay be commuted to imprisonment. In conformity with law
simple Police Courts may never pronounce a prison sentence of more
than one week. It is understood that they will never sentence the
said foreign nationals to corporal punishment.
(6) A national of the United States arrested in flagranti delicto for an act which is termed a misdemeanor
or a crime may not be kept in prison for more than 24 hours without
being traduced before the competent judicial authority.
Except in cases of flagranti delicto no
national of the United States shall be arrested or imprisoned
without an order emanating from the competent judicial
authority.
Neither the private house nor business premises of a national of the
United States shall be entered forcibly or perquisitioned unless a
warrant has been issued by the competent judicial authority, with
guarantees against abuse the character of which will be defined
later.
(7) Nationals of the United States who have been arrested and
imprisoned will have the right, in conformity with the prison
regulations, to communicate with their nearest Consul, and their
Consuls or their representatives will have permission to visit them,
upon conforming to prison regulations.
[Page 731]
The Governmental authorities will immediately transmit such requests
for communication with prisoners to the addressee.
(8) The Imperial Government has envisaged a set of generous
regulations governing release on bail, which shall be granted in
every instance except in case of crime (as Crime is defined by the
Penal Code).
The sum demanded for bail will be reasonably proportioned to the
degree of the misdemeanor.
When a person appeals from a sentence the same facilities for release
on bail as mentioned above shall be granted him until the sentence
of the Appellate Court shall have been handed down.
(9) Since, according to Persian law, Court proceedings are, in
general, and in all but exceptional cases, open to the public,
therefore the parties interested in the suit or in the welfare of
the litigants have the right to be present as spectators, in all but
exceptional cases, without, however, having the right to take active
part in the trial in any way whatsoever.
(10) In penal matters the accused is entirely free to choose his
counsel or counsels, who may even be fellow nationals.
(11) The Imperial Government has decided to ameliorate the condition
of the prisons so that they may be more in conformity with modern
requirements; and a sum of money sufficient to establish prisons in
Persia, meeting necessary demands of hygiene, has been already
appropriated.
Meanwhile, nationals of the United States condemned to imprisonment
for more than one month (Since imprisonment for one month or less
may be commuted to a fine) will be transferred on their request to a
prison meeting the necessary requirements of hygiene.
(12) In matters of taxation, nationals of the United States will be
treated on an equal footing with Persian nationals, and will not be
subject to any dues, fees, or other taxes whatsoever which Persian
nationals are not required to pay.
(13) With respect to judicial matters, all judgments given by former
Courts—even if they have not been executed—are considered as
definitely settled and in no case may be reviewed; also all
definitive judgments rendered by the former Courts must be executed.
In short, all suits terminated under the old judicial system are
considered as definitively settled and may not again be opened.
Unfinished proceedings before the Tribunal of the Ministry of Foreign
Affairs or before the Tribunals of Governors of Provinces shall be
terminated before these Tribunals unless the party of foreign
nationality should demand prior to the conclusion of hearings that
the case be taken to the law Courts.
The time limit granted by the Imperial Government in which to wind up
unfinished litigation before these Tribunals is until May 10, 1929,
at the latest.
(14) All questions relating to security for costs, to the execution
of sentences, to the service of judicial and extra-judicial decrees,
to commissions rogatories, to orders for the payments of costs and
expenses, to free legal assistance, and to imprisonment for debt,
are left to be regulated by special conditions between Persia and
the United States of America.
[Page 732]
(15) All Arbitration and stipulations of Arbitration being admitted
under Persian law in civil or commercial matters and the decisions
thus handed down being executory at the order of the President of
the Court of First Instance upon whom it shall be mandatory to issue
such order except in a case where the arbitral decision would be
contrary to public order, obviously, nationals of the United States
of America will enjoy the full benefits of these legal
provisions.
(16) Nationals of the United States of America cannot be arrested nor
their personal liberty restrained, as a measure of provisional
protection in civil claims, except where the distraint to be made on
his property actually located in Persia would appear to involve
serious risk to the debtor or where no other measure of protection
may be resorted to.
(17) In respect to immovable property and rights pertaining thereto,
it is understood that nationals of the United States of America
shall be permitted to occupy, acquire and possess property necessary
to their residence and to the conduct of their commercial or
industrial activities.
(18) It being possible to exclude questions relating to personal
status from the jurisdiction of National Tribunals the procedure to
be followed in such matters will be dealt with and detailed in a
special arrangement.
Accept [etc.]
[Enclosure 6—Translation47]
The American Minister (Philip) to the Persian Acting Minister for Foreign
Affairs (Pakrevan)
Mr. Acting Minister: I should be very glad
to receive from Your Excellency an assurance on the part of the
Imperial Government that American missionaries in Persia will be
permitted, as in the past, to carry on their charitable and
educational work.
I avail myself [etc.]
[Enclosure
7—Translation]
The Persian Acting Minister for Foreign
Affairs (Pakrevan) to the American
Minister (Philip)
Mr. Minister: In reply to your request
relative to American missionaries, I have the honor to inform you
that they will be authorized to carry on their charitable and
educational work on the condition that it contravenes neither the
public order nor the laws and regulations of Persia.
Please accept [etc.]
