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GREAT BRITAIN 1

NEGOTIATIONS TO ENSURE BY TREATY THE RIGHTS OF THE UNITED

STATES IN TERRITORIES UNDER BRITISH MANDATE?

Palestine

867n. 01/266

Mr. A. J. Balfour 3 to the Secretary of State

WASHINGTON, January 13, 1922. MY DEAR MR. HUGHES: You will remember that some days ago I mentioned my great anxiety to get the agreements in regard to the Mandate for Palestine * advanced a stage in order that the Council of the League of Nations might give it their blessing at the meeting which is now, I think, going on at Geneva. We have all been so busy that you have not been able to find a moment in which to discuss this matter with me, at which I am by no means surprised; but as it is pressing I venture again to trouble you about it.

The task which the British Government have undertaken in Palestine is one of extreme difficulty and delicacy. At Paris I always warmly advocated that it should be undertaken, not by Britain, but by the U.S.A.; and though subsequent events have shewn me that such a policy would never have commended itself to the American people I still think that, so far as the Middle East is concerned, it would have been the best. However this may be, the duty has devolved upon Great Britain; and I hope the American Government will do what they can to lighten the load.

Your Ambassador in London will have forwarded you the official Note upon the subject. Let me add to what Lord Curzon has said one or two further remarks.

We have got in Palestine to deal with a country in which the majority of the population are Arabs, in which there is an important Jewish minority to whom we desire largely to entrust the task of fitting the country, with the help of outside Jewish assistance, to be a home for the Jewish race; and we have Christian ecclesiastical interests-Greek, Roman and Protestant--divided not merely by

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See also subjects wder Canada, vol. I, pp. 669 ff.
Continued from Foreign Relations, 1921, vol. II, pp. 106-118.

Member of the British Delegation to the Disarmament Conference, held at Washington, Dec. 12, 1921, to Feb. 6, 1922.

* For text of draft mandate for Palestine, see Foreign Relations, 1921, vol. I, p. 110.

theological, but also by national differences, and jealously watching anything which can be twisted into interference with their position or their traditional interests in the Holy Places.

If such a situation is to be dealt with successfully by the civilian Government, the position of that Government must not only be secure, but must seem secure in the eyes of the populations concerned. Without this it cannot possess the necessary prestige, or exercise the necessary influence. Now it cannot be doubted that the long delay in settling this Mandate question,-partly due to the fact that peace has not yet been signed by Turkey and the Allied Powers, partly to the fact that the Mandate has not yet been approved, and partly to the fact that, owing to these circumstances, military administration has not yet been wholly replaced by a civilian system,-has made the task, which would in any case be difficult, almost impossible. I am sure the United States Government regret this as much as we do; and it is for that reason, and that reason alone, that I venture to ask your special attention to the problem which has been already brought to your notice through more formal channels. Yours sincerely,

ARTHUR JAMES BALFOUR

867n.01/266

The Secretary of State to Mr. A. J. Balfour

WASHINGTON, January 27, 1922. MY DEAR MR. BALFOUR: Referring to our informal conversation of yesterday afternoon with regard to the Mandate for Palestine, I venture to confirm what I then said that it would not be possible to deal with the question by a mere exchange of notes on account of the reasons set forth in the American memorandum of August last." You will recall my pointing out that we enjoyed capitulatory rights by virtue of a provision in the Treaty with the Ottoman Empire and that consequently these rights could be modified or abrogated only by a Treaty, hence for this reason alone a Treaty would be necessary apart from the general considerations mentioned in the August memorandum, which, in themselves, would make a Treaty desirable.

The assurances given in the British note of December 29° regarding the establishment of adequate courts and the insertion of a provision in the proposed Constitution of Palestine, in virtue of which nationals of the United States shall have the right to be tried by a court with a majority of British Judges, except in trivial cases where this provision would lead to administrative inconvenience when United States nationals will have the special right to appeal to a court composed of a majority of British Judges, may be considered satisfactory, in view of Anglo-Saxon traditions of law. On the other hand, the suggestion with regard to the question of the revival of the capitulations, as set forth in the British note above mentioned, is not satisfactory and it will be necessary to provide for the revival of our original rights in that respect upon the termination of the Mandate régime. Even in case a Jewish State should survive, it would still be necessary for the United States to reach a decision for itself on the question at that time.

5 See telegram no. 448, Aug. 4, 1921, to the Ambassador in Great Britain, ibid., vol. II, p. 106.

Ibid., p. 115.

With regard to provisions against discriminations, it would be sufficient to recite the terms of the Mandate in the Treaty, to which I have referred above, and provide for the extension to the United States and its nationals of the same privileges enjoyed by members and by nationals of members of the League of Nations.

In view of the paucity of the resources of Palestine, and particularly in view of the special conditions there prevailing, to which reference is made in the British note of December 29, it is not my intention to insist on the proposals put forth in the American memorandum of August last for the inclusion of appropriate provisions against the granting of monopolistic concessions. We will be satisfied with the assurances that your Government proposes to give us with regard to the equal treatment of United States citizens and companies. I should, however, make it clear and repeat my statement of yesterday that in withdrawing from the position heretofore taken in this regard, it is fully understood that this action is without prejudice to the contentions in this regard which have been made and which are still being made in connection with other mandate territories.

The amplification of the provisions of the Mandate with a view to safeguarding more effectively the present and future activities, both religious and educational, of American missionaries, as has been proposed by your Government, can, it is believed, be readily arranged.

An undertaking on the part of the British Government that it will not propose nor accept any modifications in the terms of the Mandate without previous consultation with the Government of the United States would not, I fear, adequately meet the wish expressed in the memorandum of August last that the consent of the United States shall be obtained before any alteration is made in the text of the Mandates.

As I informed you yesterday, Japan has agreed to furnish a duplicate, not a copy, of their annual report to the League of Nations. A provision to this effect is incorporated in the Treaty with Japan relating to the mandated Islands [in the Pacific] north of the Pacific [equator] ? and the same provisions should be included in the Treaty relating to Palestine, inasmuch as Japan has been promised that the same undertaking would be secured in the case of other Mandate forms.

To sum up briefly:

For the reasons already stated it is necessary to have a Treaty, in which the Mandate will be recited in full and which will make the provisions as to privileges accorded to members and nationals of members of the League of Nations run to the United States and nationals of the United States and also include the other provisions, to which reference is made above.

Lastly, permit me to recall once again our understanding that our conversation of yesterday and this letter will be considered as entirely informal and personal between us, in view of the fact, as I explained yesterday, that I have not had an opportunity for consultation on the subject with the Chairman of the Foreign Relations Committee of the Senate which I should desire to have before expressing any views formally in the matter. Yours sincerely,

CHARLES E. HUGHES

867n.01/216a : Telegram

The Secretary of State to the Ambassador in Great Britain (Harvey)

WASHINGTON, April 3, 1922—4 p.m. 96. Reference your despatches 811 and 831, December 23 and 30 last. Please communicate the following textually to Lord Curzon at the earliest moment possible:

“I have the honor to refer to your Lordship's communications of December 22, 1921, and December 29, 1921° on the subject of mandates. The suggestions of the Government of the United States regarding the terms of the various mandates were set forth in my memorandum of August 24, 1921.10. The position of my Government must necessarily remain as thus stated since the views ad. vanced were confined to the purpose of safeguarding the interests of the United States and the fair and equal opportunities which it was believed the United States should enjoy in common with the other Powers.

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Post, p. 600. & Foreign Relations, 1921, vol. II, pp. 110 and 115, respectively.

Ibid., pp. 111 and 115, respectively. 19 See telegram no. 448, Aug. 4, 1921, to the Ambassador in Great Britain, ibid., p. 106.

In the communication of December 29, 1921, your Lordship drew particular attention to the situation in Palestine. A state of peace between the Allied Powers and Turkey does not yet exist. Nevertheless, the United States appreciates the desire of His Majesty's Government to remove the existing uncertainties regarding the terms of the mandate for Palestine, in order that a legalized civil administration may be established as early as possible.

The Government of the United States is gratified to note Your Lordship’s cordial expression with respect to the relation of the victory over Turkey to the victory of the Allied and Associated Powers over Germany, and the contribution thereto by the United States, and especially the emphatic disclaimer of his Majesty's Government of any intention on their part to discriminate against the United States or to refuse to its nationals and companies full equality of commercial opportunity. My Government had entertained no doubt that this was the attitude of His Majesty's Government.

In view of these assurances, my Government is convinced that there will be no difficulty or delay in the negotiation of a treaty embodying the assent, upon appropriate conditions, of the United States to the terms of the draft mandate for Palestine. The capitulatory rights which the United States possesses in Turkey in common with other Powers rest upon the provisions of a treaty; and, consequently, these rights can be modified or abrogated only by a treaty. For this reason alone a treaty would be desirable, apart from the general considerations mentioned in my memorandum of August 24, Such a treaty could recite the mandate in full and should contain appropriate undertakings on the part of His Majesty's Government for the suitable protection of the rights and interests of the United States.

In this view, taking up the various points to which Your Lordship refers, it may be observed:

(1) Capitulatory rights.The assurances given in the note of December 29 regarding the establishment of adequate courts and the insertion of a provision in the proposed constitution of Palestine, by virtue of which nationals of the United States shall have the right to be tried by a court with a majority of British judges, except in trivial cases where this provision would lead to administrative inconvenience when United States nationals will have the special right to appeal to a court composed of a majority of British judges, may be considered satisfactory, in view of Anglo-Saxon traditions of law.

It does not seem possible to accept, however, the suggestion which your Lordship makes with regard to the question of the revival of the American capitulatory rights in the event of the termination of the mandate régime. As my Government now possesses these capitulatory rights, it should be provided that in the event of the termination of the British administration under the mandate, there should be an immediate and complete revival of these rights and, if the circumstances then justify their modification or suspension, the matter could readily be made the subject of suitable agreement.

(2) Discrimination.-I have already alluded to the assurance upon this point contained in Your Lordship's note. My Government does

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