Foreign Relations of the United States, 1951, The Near East and Africa, Volume V

NEA Files: Lot 57 D 177: “Kuwait, 1950”

Memorandum by the Assistant Legal Adviser for Administration and Foreign Service (Cameron) to the Acting Officer in Charge, Arabian Peninsula Affairs (Awalt)¹

[Washington,] December 29, 1950.

Subject: Exequatur for United States Consul in Kuwait

Reference is made to your memorandum of December 13, 1950,² addressed to NE—Mr. G. Lewis Jones, which was referred to the Office of the Legal Adviser for an appraisal of the importance of the legal principle involved in the question of signature of the exequatur to be issued to an American Consul to be stationed in Kuwait. You state that the British Government insists that under its 1899 treaty with Kuwait the British King should sign such an exequatur, and that furthermore the British have formally rejected the United States’ compromise suggestion that the exequatur might be signed by both the British King and the Sheikh of Kuwait.

Unless this Government were disposed to refuse to recognize that the British Government had any authority over the foreign relations of Kuwait, or unless the Sheikh of Kuwait was unwilling to receive our consul under such circumstances, it would appear that there are no legal objections to accepting the exequatur prepared in the form suggested by the British Government.

It is the practice of this Government and of many other Governments to issue to a foreign consul an exequatur signed by the head of the receiving government, as evidence of his recognition as consul. However, the exequatur is only evidence of recognition. Hackworth (IV: 666) states that recognition need not follow any prescribed form. It may be in the nature of a communication, written or oral, formal or informal, addressed by the foreign office to the local diplomatic representative of the consul’s state or to the consul himself. Under the 1899 treaty between Great Britain and Kuwait, the Sheikh will not “receive the Agent or Representative of any Power or Government … without the consent of the British Government.” If the British wish to signify their consent to the Sheikh’s receiving our consul by issuing him an exequatur, signed by the King, and the Sheikh is satisfied to receive a foreign consul who has been issued such an exequatur, without insisting on co-signing the document, or issuing a formal document under his own signature, it would not appear that the United States was in a position to object.

It is true that in acquiescing in the exequatur issued by the British Government the United States will have recognized that the British do exercise a degree of control over the foreign relations of Kuwait. However, the United States is hardly in a position to insist further upon acceptance of its own interpretation of the 1899 treaty. The United States is not a party to that treaty, and the treaty does not affect any right of the United States. If the Sheikh is satisfied with the British interpretation, that would seem to end the matter. The acquiescence of the United States to this procedure does not, however, constitute recognition that the Sheikh possesses no sovereignty at all, as the Sheikh’s action in receiving our consul, and perhaps issuing him a berat, may be considered as an exercise of his sovereignty. A determination of the measure of sovereignty he retains might well be allowed to wait until such time as the then existing circumstances require the United States to take some positive action on an important question.

1. This memorandum was attached to a memorandum from Cameron to Await, dated January 2, 1951, which read: “The attached memorandum was drafted before our telephone conversation of last week on this subject. It is sent to you herewith for your files and in confirmation of our conversation.”

2. The memorandum reported that the opening of an office in Kuwait had been the subject of discussion between the Department of State and the British for approximately three years. The British recognized the need for an American Consulate in Kuwait but had been reluctant to allow one because they feared similar demands from other countries, which might expose Kuwait to disturbing influences. The most troublesome matter, however, involved the issuance of an exequatur. The British Government insisted that since it was authorized by an 1899 agreement with Kuwait to control its foreign relations, the British King should sign the exequatur; and it had rejected the U.S. compromise solution that the exequatur be signed both by the British King and the Sultan of Kuwait. The Embassy in London reported that the Foreign Office was adamant, and if the United States wanted to open an office in Kuwait it would have to be on the basis of an exequatur signed by the King.

   Awalt’s December 13 memorandum concluded that the problem was purely legalistic and the U.S. decision would have to rest on whether the principle or the office was most important to us. Since the 150 U.S. nationals in Kuwait were expected to be joined by large additional numbers with the anticipated discovery of oil by Aminoil in the Neutral Zone, Await recommended opening a Consulate in Kuwait under the British terms. He suggested, however, that the matter first be referred to the Legal Adviser for an appraisal of the importance of the legal principle involved. (NEA Files: Lot 57 D 177: “Kuwait, 1950, Establishment of a Consulate”)