611.8331/34: Telegram

The Acting Secretary of State to the Minister in Egypt (Gunther)

29. Your despatch No. 349, March 21.11

You may proceed to the conclusion of an agreement by exchange of notes based on the Egyptian formula submitted with the note of March 12 from the Minister for Foreign Affairs, but subject to the following modifications:
In the first sentence of the first paragraph before the word “agreement” insert “provisional commercial” and before the words “most-favored-nation” delete “the” and insert “unconditional.”
To clarify the meaning of the second sentence of the first paragraph insert “also” after the word “will.”
Delete the word “temporarily” in the second sentence of the first paragraph. Since the entire agreement is intended to be a temporary one it seems unnecessary to provide that one provision thereof should be of temporary duration.
Insert in the second paragraph after the words “this regime is accorded” and after the word “applied” respectively the words “by Egypt”, and add to the second paragraph “and with the exception of 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 the treatment which is or may hereafter be accorded to the commerce of the [Page 746] United States with any of its territories or possessions or to the commerce of its territories or possessions with one another.”
Insert new paragraph after second paragraph as follows “the present arrangement does not apply to prohibitions or restrictions of a sanitary character or designed to protect human, animal or plant life or regulations for the enforcement of police or revenue laws.”
Add to the first sentence of the last paragraph “and, subject to the subsequent ratification thereof in accordance with the constitutional procedure of Egypt, shall continue in force until the conclusion of a definitive treaty of commerce and navigation between the United States and Egypt unless sooner terminated by mutual agreement. If, however, either party should be prevented by future action of its legislature from carrying out the terms of the arrangement, the obligations thereof shall thereupon lapse.” Delete last sentence of last paragraph of Egyptian draft, that is, the sentence beginning “it may be denounced.”
With reference to paragraph (f) above you may explain that it has been the practice of this Government in concluding temporary agreements of this character to include therein a provision whereby such agreement shall lapse if either party is prevented by future action of its legislature from carrying out its terms. It is not the practice of this Government to submit agreements containing a provision of this kind to the Senate for its advice and consent to ratification. Since, however, the Egyptian Government envisages ratification by the competent authorities of that Government the draft provision has been framed accordingly. For similar provision see agreement of December 23, 1925 between the United States and Lithuania (Treaty Series No. 742).14
It is hoped that the Egyptian Government can accept the provision contained in paragraph (f) above whereby the agreement would remain in force until a definitive treaty has been concluded. The Department assumes that objection of Egyptian Government to extending duration of agreement beyond February 16, 1931 arises from possibility that before or by that date the Egyptian tariff will be definitely established by law and that the law as finally enacted might conflict with the present agreement. However, if the provision suggested in paragraph (f) above were adopted whereby agreement would lapse if either Party were prevented by act of its legislature from complying therewith, this objection would seem to disappear. You should make every effort, therefore, to obtain acceptance of provision in question but if Egyptian Government is definitely unable to accept it you are authorized to substitute for the words “the conclusion of a definitive treaty of commerce and navigation between the United States and Egypt” the words “90 days after notice of its termination shall have been given by either Party.”
Any proposals for material changes in the text of the agreement as revised in accordance with the above suggestions, should be communicated to the Department with a request for instructions. In the absence of any such proposals you are authorized to sign the agreement with amendments above suggested and such minor changes in form as may be appropriate.