The Secretary of State to the Chargé in France ( Marriner )

No. 1198

Sir: The receipt is acknowledged of your telegram No. 984 of November 22, 1:00 p.m.,2 and your dispatch No. 2326 of November 23, 1935,3 reporting that the Afghan Minister at Paris had handed a note to the Embassy omitting the guarantee of immediate and unconditional most-favored-nation treatment in the proposed commercial agreement between the United States and Afghanistan.

You are requested to inform the Afghan Minister at Paris that this Government appreciates the sincere efforts of the Government of Afghanistan to arrive at a common understanding with respect to a commercial agreement. It is with deep regret that this Government finds that circumstances do not permit the Afghan Government to enter into an agreement providing for unconditional most-favored-nation treatment. The Government of the United States is so firmly committed to this principle as a basis of commercial relations that it cannot deviate from it.

It is suggested that you advise the Afghan Minister verbally that Afghan goods entering the United States are, in fact, treated on a plane of equality with the goods of the most favored nation, and this Government understands that American goods are similarly treated in Afghanistan. You may further advise the Minister that so long as American goods continue to enjoy most-favored-nation treatment in Afghanistan, similar treatment will continue to be extended to Afghan goods in the United States. You may point out that in the circumstances there would appear to be no prejudice to the commercial relations between the United States and Afghanistan notwithstanding that it has not been found possible to conclude a formal understanding on this point.

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As regards the possible continuance of negotiations, as suggested by the Afghan Minister, it may be observed that, although the elimination of the unconditional most-favored-nation clause from the agreement greatly lessens the interest of this Government in such an accord as might be reached on other matters, it is realized that the Afghans might regard even a very formalistic agreement as desirable and view a complete breakdown of negotiations with disappointment. You are authorized, therefore, in conveying the content of the preceding section of this instruction to the Afghan Minister to suggest that, despite failure to arrive at a complete accord, we should be prepared to give favorable consideration to an agreement relating to friendship and diplomatic and consular representation, which as a matter of fact appear to have been the two points in which the Afghans were particularly interested at the outset. The Department would emphasize in this connection the desirability of assuring yourself informally that such an agreement would be acceptable before proposing it formally.

You will note that juridical protection is not mentioned as a matter upon which this Government suggests further negotiation. For your confidential information in this connection it may be observed that this omission has been made in view of the interpretation which might be placed on that part of Article III4 which prescribes that Afghan subjects in this country shall “be received and treated in accordance with the requirements and practices of generally recognized international law” and “shall not be treated in regard to their persons, property, rights and interests, in any manner less favorable than the nationals of any other country”. The point at issue here is that Afghans are ineligible for American citizenship and under the provisions of Section 13 (c) of the Immigration Act of 19245 may not be granted visas except in certain specific cases. Although the right of this country to prescribe such restrictions by the exercise of the right of sovereignty could not be questioned, it would seem that an agreement based unqualifiedly on the principles of international law and most-favored-nation treatment would hardly be held to be compatible with discriminatory restrictions on the nationals of one of the contracting parties.

The immigration angle of this situation would appear to have been covered adequately by Article IV6 which provided that the agreement should not affect existing statutes in either country regarding immigration. No comparable reservation was made, however, regarding [Page 3] possible restrictions to which Afghans in this country might be subject as a result of their ineligibility to American citizenship, such as, for example, limitations on the holding of property which prevail in certain states. It is obvious, of course, that this problem may be largely theoretical but, on the other hand, the Department would not want to be placed in the position of seeming to grant, even by implication, a right to Afghans not enjoyed by other persons ineligible to citizenship.

It has been suggested that Article III might be modified so as to eliminate the possible danger of such misinterpretation by employing some such wording as the following:

“Subjects of His Majesty …7 and nationals of the United States … shall receive the most constant protection and security of their persons and property.”

The only objection to such a revision of the article in question is that the Afghans would almost surely desire to be informed why such a change was being made after they had agreed to accept the text originally proposed by us. This in turn would lead almost inevitably to the introduction of the ineligibility question, which for obvious reasons it would seem desirable to avoid.

An additional argument that might be presented to the Afghan representative in favor of dropping Article III of the proposed agreement is the following one. That article provides for most-favored-nation treatment with regard to the treatment of the nationals of each contracting party in the territory of the other. You could state that since Afghanistan is unable to proceed with respect to most-favored-nation treatment in customs matters it appears to your Government desirable to omit all reference to such treatment in regard to nationals other than consular officers. On the whole the Department is of the opinion that it would probably be preferable to endeavor to have the Afghan Government forego Article III rather than to endeavor to explain to it why it should have to be altered. However, should your discussion of this matter with the Afghan Minister lead you to a contrary opinion, the Department would be willing to include a revised Article III in the proposed agreement. The Department encloses a proposed draft agreement8 in the sense of the foregoing.

Very truly yours,

For the Secretary of State:
William Phillips
  1. Ibid., p. 563.
  2. Not printed.
  3. The articles refer to the original draft agreement submitted as an enclosure to Department’s instruction No. 692, January 2, 1935, Foreign Relations, 1935, vol. i, p. 556.
  4. 43 Stat. 162.
  5. Reference should be to article V of the original draft.
  6. Omissions indicated in the original.
  7. Revised draft not printed.