The Secretary of State to the Chargé in the United Kingdom (Atherton)
Sir: Reference is made to the Embassy’s despatch No. 2242 dated June 5, 1936,7 transmitting Foreign Office note dated June 3, 1936, in regard to the treatment of American commerce in Western Samoa.
I am convinced that the Department has possibly erred in the past by having conducted correspondence on this matter as if it were a matter strictly between the Government of the United States and the Government of New Zealand, even though the correspondence has passed through the various offices at London where its tenor could be observed. It is not my intention that the New Zealand Government shall be denied the courtesy of an acknowledgment to its present note, which shall be forthcoming in due course, but I believe the best approach to the question at the present time should be to initiate correspondence with the British Government where, in our opinion, the responsibility chiefly lies. Accordingly, in handing to Mr. Eden the note which is quoted below, you are requested to inform him that the Government of New Zealand may expect, in due course, an acknowledgment to its note of June 3, 1936, and that the present note is addressed to the British Government, not with reference to any previous correspondence, but because of a situation arising out of apparent disregard by the Government of Great Britain of its obligations to the United States under the Tripartite Treaty of December 2, 1899, between the United States, Germany, and Great Britain.8
The text of the note follows:
“This note discusses the obligations toward one another of the United States, Great Britain and Germany to fulfill certain promises made in a treaty signed by the three countries on December 2, 1899, respecting the administration of the Samoan Islands.
“By that treaty the United States and Germany guaranteed to Great Britain equal rights with themselves in the regions defined by the Treaty and impliedly designated thereby for administration as protectorates by the United States and Germany. The United States has administered the Eastern group continually since 1899, while Germany lost administration of the Western group in 1914. During the first fifteen years of the Treaty the United States and Germany accorded [Page 211] to each other equal rights in their respective protectorates and both accorded to Great Britain equal rights in both protectorates. During the British military administration of the Western group the United States and Great Britain satisfactorily fulfilled their treaty obligations, the British Administration apparently taking the view that the rights of the United States in Western Samoa were not to be impaired by a change of administration within the circle of the signatories of the Treaty under reference. That action indicated that Great Britain, so long as it was concerned with the Western group in either an administrative or an advisory capacity, intended to secure for the United States its treaty rights in that group.
“The administrative capacity of Great Britain temporarily ceased when His Britannic Majesty issued the Samoa Customs Order, 1920, and permanently when, the Council of the League of Nations having conferred upon His Britannic Majesty a Mandate, His Britannic Majesty designated his Ministers composing the Government of New Zealand as administrators of the territory, responsible to His Britannic Majesty as well as to the League of Nations. The advisory capacity of Great Britain, however, did not cease with those acts, as is evidenced by the fact that a New Zealand Order in Council of April 20, 1920, discriminating as between the customs treatment to be accorded to goods of British Empire and of American origin, was issued under advice from His Britannic Majesty’s Ministers in London. The approval of that Order in Council by those Ministers indicated a change of feeling on their part regarding the obligations of Great Britain under the Treaty of 1899.
“Concurrent with this action by His Britannic Majesty’s Ministers and personal representatives, but not because of it, a Merchant Marine Act8a was being discussed and enacted in the United States Congress. Through inadvertence the Act as passed proved inconsistent with the Treaty of 1899 to the extent that, without its amendment, the Act would deprive the vessels of Great Britain and Germany of equal rights with United States vessels in American Samoa. Since the violation of treaty obligations, whether by municipal law accidentally inconsistent with them or by official act made in full realization of them, is repugnant to the Government of the United States, it devoted its best efforts to secure an amendment to that Merchant Marine Act. His Britannic Majesty’s representatives in the United States could hardly have failed to be aware of the fact that there was no Committee discussion of the treaty aspects of Section 21 before passage of the Act, which fact makes it evident that the Congress of the United States was not motivated by any spirit of retaliation for the action of His Britannic Majesty’s ministers. These representatives must also have known that existing statutes empowered the Government of the United States to retaliate, if it felt so disposed. Moreover, they could most certainly not have failed to take note of the bills subsequently introduced at the instance of the Government and to have realized that their purpose was the reparation of an oversight by the legislative body. Failure of the United States Government to give periodic notice to Great Britain of its renewed efforts to restore to British shipping equal rights with American shipping in Eastern [Page 212] Samoa, cannot, in view of the public nature of those efforts, be interpreted as silence.
“On the other hand His Britannic Majesty’s Ministers, on constant notice of the efforts of the United States Government, continued to condone the discrimination against American commerce by the Administrator of Western Samoa, apparently using the American statute as justification. This state of affairs continued despite the fact that there existed in the British system no constitutional obstacle to immediate reinstatement of American commerce on an equal footing with British commerce in Western Samoa. That state of affairs continues today, more than two years after the necessary amendment of the Merchant Marine Act has been effected, and the Government of the United States would be both surprised and disappointed if the British Government would condone its further continuance. It looks to the British Government for a solution of the problem and would be grateful for a very early response to this note.”
Very truly yours,