740.0011 European War 1939/18742

Memorandum of Telephone Conversation, by the Assistant Secretary of State (Berle)

Lord Halifax telephoned me about six o’clock this evening, relative to the proposed Joint Declaration.

He said that he had had a cable from his Foreign Office which advised:

That India might be included. Unless we regrouped the British Dominions under the United Kingdom, it would be all right to put in the name “India” in alphabetical order, as we now have it.
Of more importance, the Foreign Office wished to use the words “high contracting parties” in place of “governments signatory hereto”; and thereafter to use the words “high contracting parties” in place of the word “governments”, and “each high contracting party” in place of the words “each government”; and in place of the words “governments signatory” etc., to use the words “the high contracting parties signatory” etc.

He said that the reason why they wished this was that inclusion of India raised a troublesome point. Much of India was made up of native states who could only be bound by the signature of their king. By making it a governmental agreement rather than an agreement of chief of state, they would avoid the difficulty.

I said that the use of the words “high contracting party” might raise difficulties on our side. There was a running constitutional question as to the point at which a governmental agreement became a treaty; that the words “high contracting parties” were classically treaty-making words with us, and that if we used this phrase the President might be faced with a demand to submit the agreement to the Senate as a treaty, instead of having it as it was now, an agreement based on his war-making power.

A. A. Berle, Jr.