711.90f2/13
The Acting Secretary of State to the Ambassador in Great Britain (Mellon)
Sir: The Department refers to the Embassy’s despatch No. 2553 of February 2, 1932, enclosing a counter-draft14 of a proposed provisional agreement to be effected by exchange of notes between the United States and the Kingdom of the Hejaz and Nejd and its Dependencies in regard to consular and diplomatic representation, juridical protection, commerce and navigation. The Hejazi Government has proposed certain changes in the draft of the agreement transmitted by the Department with instruction No. 953 of October 12, 1931. The Department’s attitude regarding each of the proposed changes is as follows.
Part 1 (a). The Hejazi Government has proposed that there be inserted in Part 1 of the draft submitted by this Government the phrase “in the places wherein consular representatives are by local laws permitted to reside,” so that the first clause of the second sentence would read:
“…The consular representatives of each country, duly provided with exequatur, will be permitted to reside in the territories of the other in the places wherein consular representatives are by local laws permitted to reside; …”
You may agree to this proposal.
(b). It is proposed by the Hejazi Government that the last clause of Part 1 of this Government’s draft be omitted. This clause, which refers to the treatment of consular officers, reads:
“… and they shall not be treated in a manner less favorable than similar officers of any other foreign country.”
The Department is reluctant to agree to the omission of this clause. The Hejazi Government has indicated that some importance is attached to the omission of the clause because inter alia certain Mohammedan consuls might have special consideration in certain travel areas, etc. You should point out, however, that the omission of the clause seems unnecessary from the standpoint of the objects which the Hejazi Government apparently has in view. You should suggest that if the only objection to the provision is that it would prevent granting Moslem consuls certain special privileges, the situation might be met by specific qualifications on the subject rather than by the deletion of the provision. You should state that this Government would consider embodying in the provisional agreement, or in a separate exchange of notes, an undertaking [Page 990] not to claim for American consular officers specified privileges enjoyed by Moslem consular officers in certain areas.
If the Hejazi Government hesitates to grant American consular officers general most-favored-nation treatment because of the fear that they might claim the right to the manumission of slaves, which is understood to be enjoyed by British consular officers in the Hejaz, you may state in writing that the laws of the United States do not authorize American consular officers to liberate slaves, and that this Government will not therefore claim for American consular officers the treatment granted to British consular officers in this respect. It is intended, of course, that this statement would be embodied in a communication to the Hejazi Minister in the course of the negotiations regarding the terms of the provisional agreement, and not in that agreement itself.
Part 2. The Hejazi Government proposes that the second sentence of Part 2 of the draft submitted by this Government be modified by omitting the words “and interests”. This sentence reads:
“… In respect of 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 nationals of any other foreign country.”
The objections of the Hejazi Government to the words “and interests” seem to arise from the view that the word “interests” is an undefinable term. While it is true that the term is not definite, it is necessary to use general terms in such an agreement in order to ensure that nationals of each country will enjoy within the territories of the other the complete most-favored-nation treatment which it is understood to be the intention of both Governments to accord.
It is possible that the Hejazi Government may object to the words “and interests” on the technical ground that guarantees of full protection of the laws and authorities of the country should not be applicable to “interests” unless “rights” are involved. You should propose that the second sentence of Part 2 be modified to read as follows, so as to take account of the foregoing distinction:
“… In respect of their persons, possessions and rights, they shall enjoy the fullest protection of the laws and authorities of the country, and they shall not be treated, in regard to their persons, property, rights and interests, in a manner less favorable than the nationals of any other foreign country.”
If the Hejazi Government should nevertheless insist on the omission of the words “and interests” you may agree to the amendment, in which event the second sentence of Part 2 would read as in the counterdraft submitted by that Government.
[Page 991]Part 6. The Hejazi Government has proposed the addition of the following paragraph:
“6. The English and the Arabic texts of the present agreement shall be of equal validity.”
You should point out that acceptance of this proposal would delay the consummation of the agreement materially because it would be necessary for the Department to compare the proposed English and Arabic texts before authorizing you to sign the agreement. If the Hejazi Government insists on its proposal you should ascertain whether it would agree to the following substitute for the text of Part 6:
“6. The present agreement is expressed in English, Arabic and French. The English and Arabic texts shall be of equal validity, but in case of divergence the French text shall prevail.”
If this proposal should be agreed to the Department would forward a French text embodying the terms agreed upon in the course of the negotiations, which would be signed by you and would accompany your note to the Hejazi Minister. It would be understood that the note in reply would embody the terms of the agreement expressed in Arabic and would be accompanied by an identic French text signed by the Minister.
Very truly yours,
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