765.84/4638

Memorandum by the Chief of the Division of Near Eastern Affairs (Murray)

The attached memorandum1 discusses the attitude of the United States with respect to the termination of its extraterritorial jurisdiction in Eastern countries which have been annexed by, or placed under the protection of, great Powers.

It appears that in those cases where territory has been annexed outright, as in the case of Madagascar, Tripoli and Korea, we have abandoned our extraterritorial jurisdiction once we have been assured that the annexing Power has established proper courts or extended [Page 241] our treaty rights to the new territory. On the other hand, in those cases where the territory has merely come under the protection of a great Power, we have as a general rule continued to exercise our extraterritorial rights and have insisted upon a preservation of those rights until we surrendered them by treaty. Thus we continued to exercise our extraterritorial jurisdiction in Tunis long after that country became a French Protectorate and only surrendered our jurisdiction by treaty in 1904.2 Similarly, our extraterritorial rights in the British Protectorate of Zanzibar continued until terminated by treaty in 1905.3

At the time of the annexation of Tripoli by Italy in 1912,4 Mr. Adee was careful, in replying to the request of the Italian Chargé d’Affaires at Washington that we address him a note “recognizing” the annexation, to explain that “the United States did not undertake to form a judgment looking to the recognition of de jure sovereignty” over annexed territories; that we “simply conformed to de facto conditions”. Shortly thereafter, upon receiving notice from Italy that extraterritorial jurisdiction in Tripoli had been terminated, we instructed our diplomatic and consular officers to “conform to the legal situation thus established in Libya”.

It might be argued, therefore, that our failure to protest the recent Italian decree extending Italian jurisdiction over American nationals (and other foreigners in Ethiopia) or its application to American nationals would not constitute de jure recognition of the Italian annexation of Ethiopia. However, our failure to protest might be interpreted as a recognition of the de facto conditions in Ethiopia.

From a purely practical point of view, and considering solely the question of the administration of justice to our nationals in Ethiopia, it is hardly to be doubted that Italian tribunals would be superior to those before which our nationals in Ethiopia have come hitherto.

In general, it may be said that no final decision can be made with respect to the question of our extraterritorial jurisdiction in Ethiopia until such time as a decision has been made with respect to our recognition of the Italian annexation. In the event such recognition takes place, it is assumed that a final termination of our extraterritorial rights would follow automatically.

Wallace Murray
  1. Not printed.
  2. Treaty between the United States and France, signed March 15, 1904, Foreign Relations, 1904, p. 304.
  3. Treaty between the United States and Great Britain, signed February 25, 1905, ibid., 1905, p. 485.
  4. See ibid., 1912, pp. 63233, and ibid., 1913, pp. 608611.