Foreign Relations of the United States Diplomatic Papers, 1936, The Near East and Africa, Volume III

765.84/4525

Memorandum by the Legal Adviser (Hackworth)

[Washington,] May 7, 1936.

If Italy carries out to a logical conclusion the statement in Mussolini’s speech of May 5 that “Ethiopia is Italian”, our first question will be whether we should accept unqualifiedly the new order of things and readjust our international relations accordingly, or whether we should await the action of other countries more directly and materially concerned. Unless the Ethiopians under some new form of leadership shall continue the struggle (which does not at the present moment seem likely), leaving the possible eventual outcome in an unsettled state, we shall probably be under the necessity of treating with Italy as the sovereign power in Ethiopia. While it is not necessary to come to any immediate decision on the course to be followed, we should be prepared to act advisedly at any time that action seems to be required.

It is more than likely that the first question requiring attention will have to do with our diplomatic representation in Ethiopia. The Italian Government will undoubtedly make a move sooner or later to terminate the foreign missions in Addis Ababa.

Other questions which will undoubtedly shortly arise will be:

(1) whether our consular officers in Ethiopia will be required as a condition precedent to the exercise of consular functions to obtain exequaturs from the Italian Government;

(2) whether we shall be permitted to exercise extraterritorial jurisdiction over our nationals in Ethiopia, as we have been doing by virtue of Article III of the treaty of 1903⁷⁸ and the corresponding Article of the treaty of 1914⁷⁹ with Ethiopia;

(3) whether treaties between the United States and Ethiopia will be regarded by Italy as still in force, or whether the treaties between the United States and Italy will be regarded as applicable to Ethiopia. The principal treaty between the United States and Ethiopia is that of commerce of 1914.

If Italy actually takes over Ethiopia, I do not think that we could successfully contend that the treaties with the latter country thereafter subsist, or that we could exercise extraterritorial jurisdiction in Ethiopia if the Italian Government objected, which it undoubtedly will do.

In 1905, when Japan and Korea entered into an agreement by which Japan was given control and direction of the external relations of Korea, Japan undertook to see to the execution of the treaties existing between Korea and other countries and Korea undertook not to conclude any additional treaties or agreements, except through the medium of the Government of Japan. The agreement provided that Japan should be represented at the court of the Emperor of Korea by a resident general who should take charge of and direct matters relating to diplomatic affairs. When that agreement was communicated to this Government by the Japanese Legation at Washington, the Department in a note of November 24, 1905, to the Japanese Minister, stated that it had on that day directed by telegraph the withdrawal of the American Mission to Korea, and had given instructions that the representation of the United States in diplomatic matters and relations with Korea would thereafter be conducted directly with the Japanese Legation at Washington, or through the American Legation at Tokyo. (1905 For. Rel. pp. 612–614).

Later, on August 22, 1910, Japan and Korea concluded a treaty by which the Emperor of Korea ceded all rights of sovereignty over the whole of Korea to Japan. At the time this treaty was concluded, Japan made a declaration with reference to matters relating to foreigners and foreign trade in Korea. Among other things the declaration stated that—

“Treaties hitherto concluded by Korea with foreign powers ceasing to be operative, Japan’s existing treaties will, so far as practicable, be applied to Korea. Foreigners resident in Korea will, so far as conditions permit, enjoy the same rights and immunities as in Japan proper, and the protection of their legally acquired rights, subject in all cases to the jurisdiction of Japan. The Imperial Government of Japan are ready to consent that the jurisdiction in respect of cases actually pending in any foreign consular courts in Korea at the time the treaty of annexation takes effect shall remain in such courts until final decision.” (1910 For. Rel. 682.)

In acknowledging the receipt of the communication from the Japanese Embassy at Washington transmitting the copies of the treaty and the declaration, the Department in a note of September 17, 1910, stated that—

“While I am constrained by the great importance of the interests of American citizens in Korea to make all necessary reservations as to their rights and privileges, I beg to inform your excellency that the Government of the United States is gratified to note the assurances already given by the Imperial Japanese Government concerning matters relating to foreigners and foreign trade in Korea.” (Ibid. 683).

Upon the permanent occupation of Madagascar in 1895 by France, the French Government in response to an inquiry by the United States stated that the Treaty of Friendship and Commerce of 1881 between the United States and Madagascar,⁸⁰ under which consuls enjoyed certain rights of civil and criminal jurisdiction, would be inconsistent with the new order of things created by the occupation. At the same time assurances were given by France that the conventions applicable to the government and citizens of the United States in France or French possessions would be extended to the Island. After the passage of the law of August 6, 1896, for the formal annexation of the Island as a French colony, the treaties previously existing between Madagascar and foreign countries were declared to be at an end, and the system of conventions in force in French colonies to be substituted therefor. This Government accepted the position of the French Government.⁸¹

In the Joint Resolution of Congress of July 7, 1898,⁸² by which the Hawaiian Islands were annexed to the United States, it was declared that all treaties then existing between those Islands and foreign powers should forthwith cease and be replaced by the treaties then existing or thereafter to be concluded between the United States and such foreign powers.

Other instances could be cited, but these will suffice to show that, generally speaking, when a country is absorbed by another country, whether by treaty or by force of arms, treaties between the annexed country and third powers cease to exist, and the territory of the annexed or incorporated state becomes impressed with the treaties of the acquiring state, so far as locally applicable.

Since the foregoing was dictated, telegrams have been received from Addis Ababa and Rome indicating that a military form of government has been established by Italian authorities, and that Legation officials will be allowed, “pending further disposition regarding the cessation of hostilities and the new status of the country”, to enjoy prerogatives accorded to them for the representation of the interests of their countries. This, as the note handed the American Minister⁸³ clearly indicates, is but a temporary measure and may be changed at any time. A military occupant, especially one who has conquered and subjugated a country, has supreme power over the territory occupied, and, to all intents and purposes, is the sovereign during the period of occupation. The belligerent military occupant, for example, possesses an unquestioned right to regulate all intercourse between the territory under his control and the outside world. The situation in Ethiopia is different in some respects from that obtaining in Belgium during the World War. In that case Germany was in the position of a military invader, as distinguished from a conqueror, as is the case of Italy in Ethiopia, yet, in the case of Belgium, the German Government announced in November, 1914, that exequaturs of neutral consular officers in Belgium would be regarded as having expired. Minister Whitlock, however, remained in Brussels and continued to enjoy diplomatic privileges and immunities until the severance of diplomatic relations between the United States and Germany (February 3, 1917) when the German authorities withdrew his diplomatic privileges. Nevertheless, Mr. Whitlock remained in Brussels until the end of March 1917, when he and other American officials in Belgium were ordered by this Government to withdraw.

For the time being action by this Government should await further announcements on the part of Italy.

Green H. Hackworth

78. Signed at Addis Ababa, December 27, 1903, Foreign Relations, 1904, p. 298.
79. Signed at Washington, June 27, 1914, ibid., 1920, vol. ii, p. 243.
80. Malloy, Treaties, 1776–1909, vol. i, p. 1061.
81. See Foreign Relations, 1896, pp. 117 ff.
82. 30 Stat. 750.
83. See telegram No. 298, May 6, 11 a.m., from the Minister Resident in Ethiopia, p. 286.