Memorandum by Mr. J. Rives Childs of the Division of Near Eastern Affairs
In a despatch, no. 780 of November 25, 1938,45 from the American Consul General in Jerusalem there was transmitted the minutes of a conference of American Jews in Palestine held to consider, among other questions, the protection of the rights and interests of such citizens in Palestine under the mandate and the American-British Mandate Convention.
In a resolution adopted by the conference it was observed in part that:
“Pursuant to and encouraged by the American-British Mandate Convention of December 3, 1924, which Convention, after reciting that the principal Allied Powers had agreed to entrust the Mandate of Palestine to His Britannic Majesty, incorporating the terms of the said Mandate, the American Jews contributed and invested sums estimated at over 80,000,000 Dollars; and furthermore thousands of American Jewish citizens on the strength of their faith in the terms of the said Convention of December 3, 1924, have established their domiciles and have invested all or large shares of their resources in Palestine …”
On the occasion of the conference Mr. Nathan B. Kaplan, President of the American-Jewish Association in Palestine, is reported to have declared:
“that most of the American citizens in Palestine came to the country and made their investments in their respective enterprises on the strength of the Balfour Declaration and the Mandate; and moreover, relying on Great Britain’s agreement with the U. S. A., in which Great Britain’s undertaking to facilitate the creation of a Jewish National Home in Palestine is incorporated. The Americans in Palestine have a right to expect that the undertaking be honored in full and that the American Government take the appropriate steps in this direction.”
As these are arguments which are likely to be increasingly stressed by our Jewish citizens and are likely to be invoked by them, in particular, in the endeavor to induce this Government to withhold its assent to any change in the mandate which may impair the obligations [Page 726] assumed by Great Britain under the Balfour Declaration, it has appeared pertinent to examine these arguments very carefully in consultation with the Legal Adviser’s office.
Our rights, of course, in respect of changes in the Palestine Mandate differ according to whether the mandate is modified or terminated. If the mandate is modified the consent of the United States is not required unless its specific rights as set forth in the American-British Mandate Convention are affected. On the other hand, if the mandate is terminated we have the right to be consulted “with respect to the conditions under which the territory is subsequently to be administered” (see Press Releases of August 14, 1937, pages 116 to 118).
It is possible that any changes which may be made in the mandate may involve a modification of the mandate, in part, and a termination of another part of it. This would involve obtaining our assent to such modifications as may affect the rights set forth in the American-British Mandate Convention, as well as our assent to the disposition of those parts of the mandate which may be terminated.
So far as concerns the particular subject matter of the resolution which has been cited, it may be mentioned that our Consul General in Jerusalem has estimated that there are some 9,000 American citizens in Palestine, of whom the preponderant proportion are Jews. It has been estimated that these 9,000 include 2,250 native citizens and 6,750 naturalized citizens, the last category including 4,750 against whom the presumption of expatriation has arisen. It is of interest to note, in this connection, that the resolution, which has been quoted, refers to American citizens who have “established their domicile in Palestine”. Naturalized American citizens are presumed to have expatriated themselves upon the establishment by them of a permanent residence prolonged for two years in the country of their origin and of five years in any other foreign country. Our mandate convention may hardly be interpreted as intended to offer encouragement to American citizens to settle in Palestine.
With regard to the property interests of Jewish-American citizens in Palestine and the extent to which those interests may be impaired by the abrogation in whole or in part of the mandate, it is likely that particular emphasis will be given by such property holders to Articles 3 and 7 of our Mandate Convention with Great Britain.
So far as article 3 is concerned, which states that “vested American property rights in the mandated territory shall be respected and in no way impaired”, it is suggested that this was intended to insure that established American property rights should not be impaired, or, in other words, that they should not be usurped. This article could hardly imply either the guarantee in perpetuity of the political status quo in Palestine or that the value of property rights were assured of their maintenance intact by this Government.[Page 727]
So far as the terminability of the Palestine Mandate is concerned, it may be observed that the termination of the mandate is specifically envisaged in the terms of the mandate itself (vide articles 8, 27 and 28).
So far as the Balfour Declaration is concerned, we have never been committed to its fulfillment and we successfully objected to any reference to it, as proposed by the British Government, in the Preamble to our Mandate Convention, on the ground that it was not explanatory of the purpose for which that convention was concluded. Instead, the United States agreed to include, with the text of the mandate forming part of the preamble, the preamble to the mandate as defined by the League of Nations, containing a reference to the Balfour Declaration. The preamble to the mandate was omitted from the Syrian Convention although the terms of the mandate proper were included in the preamble of both instruments. However, in as much as Article 2 of the Palestine Mandate, which had in any case to be recited in the Preamble to the Palestine Convention, contained an explicit reference to the preamble to the mandate, this Government agreed to the insertion of the whole mandate, including the preamble, in the preamble to the convention. The reference to the Balfour Declaration in the preamble to the mandate (both forming part of the preamble to our convention) entails no more of an obligation on our part for its fulfillment than that of the fulfillment of the terms of the mandate, which is contained likewise in the preamble.
The British Government, having enunciated the Balfour Declaration, is presumably the sole judge of whether or when it has been fulfilled. That declaration obligated the British Government to facilitate the achievement of the establishment in Palestine of a National Home for the Jewish people. The British Government may now deem that that objective has been achieved. Moreover, that declaration provided that, in the attainment of the Jewish National Home, “nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine”. The British Government may well hold that those rights have been and are prejudiced.
From a careful study which has been made of this Government’s relation to the Balfour Declaration, it has been concluded that:
“this Government has never been committed either before or after the issuance of the Balfour Declaration to its support, that so far as regards the statements of President Wilson they were made without any thought of imposing a Jewish political State upon the inhabitants of Palestine irrespective of the will of the inhabitants of that country—a notion repudiated even by Dr. Weizmann himself in answer to the inquiry of Secretary Lansing—and that the Joint Resolution of Congress of 192246 not only contained no reference to the Balfour Declaration but its author specifically maintained that there [Page 728] ‘is no indication or implication of pledging our support (of the establishment of a Jewish National Home in Palestine) in this resolution’.”
The argument may be advanced that the expressions of sympathy in the establishment in Palestine of a Jewish National Home on the part of President Wilson and of Congress engaged the support of this Government for the furtherance of that objective. This argument is believed to have no more validity than if it were contended that the espousal of the principle of self-determination by Mr. Wilson committed this Government to the application of that principle.
The foregoing was submitted informally to Mr. Ward, Assistant Legal Adviser, who, in stating that he was “in full accord with the observations and conclusions” set forth above, added the following:
“I think that the resolution and the views expressed in its support must be regarded as merely a reiteration in different form of the claim heretofore frequently made that because of the inclusion of the Palestine mandate in the convention of 1924 the United States became a party to the mandate and assumed responsibility for its administration. That contention has been thoroughly examined and found wholly untenable and your memorandum emphasizes the correctness of its repudiation by the Department and correctly appraises the limited purpose and effect of the mandate convention. It hardly seems necessary to add anything to your memorandum and to the numerous preceding memoranda on the general subject of the obligation of the Government of the United States under the mandate convention, but I submit for your consideration the following brief observations.
“The first numbered paragraph of the resolution declares that large financial contributions and investments were made by American Jews in Palestine and that thousands of American Jews established domiciles in that country ‘pursuant to and encouraged by the American-British mandate convention of December 3, 1924’. The necessary interpretation of the quoted language is that it was the definite purpose of the mandate convention to induce American citizens to
- contribute funds for the development of a Jewish home in Palestine,
- invest their money in enterprises established in Palestine,
- establish domiciles in Palestine.
“It would seem to be difficult to suggest a more complete misunderstanding of the purpose of this Government in concluding any treaty and particularly of its purpose in concluding the Palestine mandate convention. As has been repeatedly explained, that convention was concluded solely for the protection of existing and future American rights in Palestine. It was not intended to provide any greater protection for American interests in Palestine than was provided for in any of the other mandate conventions concluded by this Government in which the respective mandates were also included in the mandate conventions and it is of course wholly inadmissible to contend, as the declaration of the resolution in effect does, that the Government of the United States, in providing by treaty for appropriate [Page 729] recognition of American rights in Palestine, had the intention of inducing or encouraging American citizens to contribute funds in Palestine; to invest funds in that country; or to establish domiciles therein.
“Such a contention is irreconcilable not only with the provisions of the Palestine mandate convention but with the purpose and function of governments generally in concluding treaties for the protection of their nationals’ interests. It requires little discussion to establish that it is not a proper or sensible function of a government to enter into treaties for the purpose of encouraging its nationals to deplete the national wealth by contribution of funds or investment of funds in foreign countries and it is incredible that anyone could seriously believe that the Government of the United States had adopted by treaty or otherwise the policy of encouraging its nationals to establish domiciles in foreign countries with consequent risk—in the case of naturalized citizens—of becoming subject to the presumption of expatriation and denial of American protection.
“As you correctly point out, the Palestine mandate contains within itself provision for its revision and eventual termination and neither the mandate nor the mandate convention could reasonably be interpreted as providing for any particular character of personal or property protection for American citizens in Palestine in perpetuity. All that the convention was intended to accomplish and all that any such convention could accomplish was to insure a proper recognition and treatment of legitimate rights of American citizens and the avoidance of unfair discrimination against American interests.
“The consideration of the resolution and the statements of Mr. Kaplan and others made in its support, confirms the impression heretofore mentioned, that the resolution and the statements are based on the theory that the United States has assumed responsibility for the establishment of the Jewish home in Palestine and responsibility for seeing that the mandate is administered by the British Government in accordance with its terms.
“Since this contention has been definitely repudiated by this Government and since neither the resolution under examination nor any of the statements in its support afford any basis for any change in this Government’s position respecting the Palestine mandate, there would appear to be no proper ground on which this Government could take any action other than that already taken or proposed in consonance with the public declaration of the official interpretation of this Government’s rights under the Palestine mandate convention.”