The Japanese Embassy to the Department of State34

The Japanese Government has received from the Japanese Consul at Mombasa, Kenya Colony, British East Africa, a report to the following effect:

The Government of Kenya Colony, acting under Section 46 of the Defense Regulations, has put into force a system of licensing and control of imports, which went into effect on November 15, 1939. The regulations require that any person who wishes to import any merchandise into Kenya Colony must first apply to the administration of customs for an import license. The application for license must set forth full details of the proposed importation, such as the nature and amount of the merchandise, the f. o. b. and c. i. f. price, the country of origin, the port and vessel of shipment, etc. Importers are also required to provide the customs authorities of the Colony with complete statistics concerning importations of similar merchandise during the period January 1, 1938 to June 30, 1939. The granting or refusal of a license for any one importation is left to the discretion of the customs authorities.

The Governments of Great Britain, the United States and Japan are among the signatories to the convention signed at Saint-Germainen-Laye on September 10, 1919,35 which is known as the Congo Basin Convention. This Convention applies to a specified area in mid-Africa which includes the Kenya Colony and Protectorates. The provisions of Article 2 guarantee that merchandise belonging to nationals of the Signatory Powers shall have free access to the interior of this region, and that no differential treatment shall be imposed upon such merchandise.

It appears to the Japanese Government that the system of import licensing and control which has been instituted by the Government [Page 321] of the Kenya Colony and Protectorate, without the consent of the Signatory Powers of the Congo Basin Convention, is clearly inconsistent with the above-mentioned provisions of the Convention, that the requirement of import-licenses is per se a negation of the guarantee of free access, and that the conferring of a discretionary licensing power upon the local customs authorities constitutes a unilateral negation of the guarantee that no differential treatment shall be imposed on the merchandise belonging to the nationals of any signatory power.

In view of these circumstances, the Japanese Embassy wishes, under instructions from the Foreign Office, Tokyo, to ascertain the views of the Department of State on the relation of Kenya Colony’s import-licensing regulations to the rights enjoyed by United States citizens under the Congo Basin Convention.

If it should be the opinion of the Department that the rights of United States citizens under the Convention are impaired by the action of the Kenya Government, the Embassy would wish further to ascertain what measures on the part of the United States Government the Department would regard as appropriate.

  1. In handing this memorandum to Lawrence E. Salisbury of the Division of Far Eastern Affairs, Shunichi Kase, First Secretary of the Japanese Embassy, stated that it was an informal memorandum of statements made orally by him at the time.
  2. Foreign Relations, 1928, vol. i, p. 437.