The Ambassador in the United Kingdom ( Bingham ) to the Secretary of State
[Received April 29—3:08 p.m.]
251. Your 145, April 22, 1 p.m. Further discussion at the Foreign Office has not resulted in elucidation of the British position and has served only to reaffirm and emphasize arguments previously made.
The issue, it is insisted, is one between the United States and “His Majesty’s Government in New Zealand”. The New Zealand Government has from the beginning pressed for the maintenance of the present regime in Western Samoa and the offer made to the United States by New Zealand in 1924,9 the Foreign Office stated, would not have been made except upon the suggestion and insistence of the Government in London. The United States did not reply to that offer and New Zealand maintains that it must be considered as a tacit abrogation of the stipulations of the treaty of 1899. The Foreign Office admits that there is a possible basis for differences as to whether tacit abrogation of the treaty took place. It was frankly stated, however, that they agree with the stand taken by the New Zealand Government. They admitted that this moral support, even considering the British disclaimer of responsibility, must be a comfort to the Government of New Zealand.
The Foreign Office still prefers (my telegram 153, March 18, 3 p.m.) not to answer our note of February 18, 1937 as they could not, they say, avoid what might appear to be acrimonious argument in refutation of certain points set forth in our note. They specifically mentioned the stated inability of the United States to fulfill the treaty by reasons of adverse legislation and said that, while they fully realized the difficulty then confronting the United States in their opinion it is no argument in law. They also discount the argument that British officials in the United States must have been aware of the efforts being made by the Department to cause the defective legislation to be remedied and allege that the British Government could not be legally cognizant of those efforts unless advised by the United States Government. The Foreign Office several times referred to the offer made to the United States in 1924 which they say is evidence of good will and even more strongly emphasize the fact that the United States did not reply to that offer. The Foreign Office would prefer, therefore, to keep the discussions on their present oral and [Page 216] informal basis and to await the reply of the United States Government to the Government of New Zealand’s note of June 3, 1936.
The sum of the New Zealand Government’s case as supported by the Government in London seems to be that they think there are sufficient grounds for considering the treaty was tacitly abrogated and because a reversal of the stand in this matter now would cause considerable domestic difficulties for New Zealand in its relations with Western Samoa, they are determined not to do so if it can possibly be avoided.