* * * The mandate in its present form could easily be recited in the Convention, and the provisions 23 indicated above might thereafter be inserted in appropriate clauses of the Convention.

It is understood that the administration by Japan of the mandated islands will be subject to the Convention with the United States, and that the terms of the Mandate which are recited in the Convention and of which the United States is to have the benefit will not be modified without the express consent of the United States. It is also desired that, as the United States is not a member of the League of Nations, a report will be made to the United States similar to that which is to be made by Japan to the Council of the League of Nations, as provided in article 6 of the Mandate.24

The Japanese Government acquiesced, by memorandum of October 17, in the American proposals. Objection was made, however, to the proposal that the Japanese Government should submit to the United States an annual report on the administration of the mandated islands.25 Secretary Hughes replied on October 18, 1921, that

In paragraph 6 of the Embassy's memorandum it is requested that specific reference to the question of transmitting to the Government of the United States an annual report regarding the mandate be withheld in the Convention, the Japanese Government not feeling itself at liberty to enter into any binding engagement in the matter apart from and in advance of other nations similarly placed. While it may be remarked that it is, as surmised in the Embassy's memorandum, the intention of this Government to make a similar suggestion to all the mandatories, the American Government cannot perceive that the settlement of that point, rather than any of the other matters concerning the mandate which the Japanese Government has found appropriate for adjustment in the present direct negotiations between the United States and Japan, should require reference to the other mandatory Powers. Inasmuch therefore, as the Japanese Government has indicated its acceptance of the principle that the United States should have the benefit of the engagements set forth in the Mandate, the Government of the United States thinks it proper that, in the event of its assenting to the administration by the Japanese of the Islands in accordance with the terms of the Convention it should be placed in a position not inferior to that of the other Principal Allied and Associated Powers which under the terms of the Mandate are to receive an annual report submitted through the Council of the League, by having addressed to it by the Japanese Government a duplicate of such report.26

By memorandum of December 12, 1921, the Japanese Government yielded its objections and undertook to transmit to the United States a duplicate of the annual report to be made to the Council of the League regarding its administration of the mandated territory.27 The treaty defining the rights of the United States and Japan in the former German islands in the North Pacific was signed on February 11, 1922.28

Shortly after the conclusion of the Yap Treaty, Professor George H. Blakeslee, of Clark University, Technical Adviser to the American Delegation to the Washington Conference, wrote:

The Treaty should satisfy both Japan and the United States, for each secures its essential needs and desires. Japan has gained a clear title as Mandatory. The United States has obtained: (1) equal cable rights in Yap; (2) a definite guarantee, given both in the original Mandate and repeated in the present treaty, that "no military or naval bases shall be established or fortifications erected in the territory," a provision which, in largest part, does away with the menace of these islands remaining in Japan's possessions; (3) protection for American missions and American traders; and (4) a recognition of its rights as one of the original trustees of the Mandate-shown especially by Japan's agreement to send annually to the United

23 The provisions referred to related to the qualifications of and additions to the Mandate, contained in paragraphs b, c, d, and e of the memorandum. They concerned the rights of missionaries, monopolistic concessions, the application to the mandated islands of American-Japanese treaties, and respect for vested American property rights.

24 Ibid., p. 297, Hughes to Shidehara, September 15, 1921.

25 Ibid., p. 301, Memorandum of Japanese Embassy to the Department of State, October 17, 1921. 26 Ibid., p. 303, Memorandum of October 18, 1921.

27 Ibid., p. 306, Shidehara to Hughes, Memorandum of December 12, 1921.

28 Treaty Series, No. 664.

States a duplicate of the report on its administration which is to be made to the Council of the League of Nations.

The legal status of Japan's title as Mandatory, as a result of the new treaty, is an interesting one. The title is derived in part from Great Britain, France, Italy, and Japan, as four of the Principal Allied and Associated Powers, and is granted by the Mandate, ratified by the League of Nations; but it is also derived in part from the United States, as the remaining Principal Allied and Associated Power, and is granted by the present treaty, which ratifies the Mandate and stipulates for certain additional advantages. The essential parts of the Mandate cannot be modified without the consent both of the Council of the League and of the United States; the necessity for the consent of the Council is stipulated for in the terms of the Mandate; while the consent of the United States is assured by a provision in the present treaty. As Japan derives its title from two sources, given by two differing legal documents, so it is also responsible for its administration to two trustees: (1) the Council of the League, for administering in accordance with the terms of the Mandate; and (2) the United States, for administration in accordance with the terms of the Treaty of February 11, 1921.29

The Japanese Government appears to have consulted with the Principal Allied Powers in the course of the negotiations with the United States, so that the results of those negotiations may be said to represent the consensus of the powers, and to have a direct bearing upon the meaning of the identical provisions in the Palestine Treaty.30 In support of the demands made on the British Government, repeated appeal was made to the Japanese Treaty, which was the model after which the Palestine Treaty was expressly patterned. Both treaties reflect the entire legal equality of the United States with the Principal Allied Powers in the disposition of former German and Turkish territories, outside Europe.31

The negotiations with Great Britain concerning the mandates to be allocated to that Power were begun by memorandum of August 24, 1921, transmitted by Ambassador Harvey to Lord Curzon,32 identic memoranda being transmitted to the Governments of France, Italy, and Japan,33 containing the observations of the United States concerning the various classes of mandates and the alterations in the draft texts which it proposed. These memoranda were considered in concert by the Powers addressed, and identic notes sent in reply.34

Two distinct, if related, claims were advanced by the United States. The first was a claim of right to participate in the discussion of the terms of the mandate. The other, upon which the first was founded, was that the consent of the United States was indispensable for any valid determination concerning the disposition of these territories. The logical consequence of this latter fundamental assertion of right was the demand that the legal status of the United States in relation to the future regime should not be inferior to that of its late associates.

The memorandum of August 24, 1921, opened with a restatement of the general principles involved. It was laid down that the right to dispose of the overseas possessions of Germany was acquired only through the common victory and that there could be no valid or effective disposition of them without the assent of the United States. It was asserted that this position was not opposed, but was confirmed by the Treaty of Versailles, and that the Government of the United States perceived no possible basis for a claim to exclude the United States from full participation. Nor was any such claim understood to have been made.

2 George H. Blakeslee: "The Mandates of the Pacific," Foreign Affairs (September, 1922), vol. 1, No. 1, pp. 104-105.

30 Cf. the note from the French Government of April 5, 1921, For. Rel., 1921, vol. 2, p. 288; the memorandum of a conversation between Secretary Hughes and Ambassador Geddes of April 12, 1921, ibid., p. 284; the Italian note of April 29, 1921, ibid., p. 287; the Japanese memorandum of December 2, 1921, ibid., p. 304. 31 Secretary Hughes wrote in the memorandum of August 24, 1921, that "it is not the intention of the Government of the United States to raise objection to allocation or terms of mandates for the purpose of seeking additional territory or for any other purpose than to safeguard the interests of the United States and the fair and equal opportunities which it is believed the United States should enjoy in common with the other powers." That limitation does not support a restrictive interpretation of the Palestine treaty and was not designed to assure mere equality of commercial opportunity as is shown by the fact that the subsequent offer of assurances of such equality, which was coupled with a challenge to American equality of right, was rejected as giving inadequate recognition to the entire legal equality of the United States with the Principal Allied Powers and their successors, see infra, p. 20.

12 For. Rel., 1921, vol. 2, p. 106.

83 For. Rel., 1921, vol. 1, p. 922, and vol. 2, p. 106, n. 57.

4 The British reply of December 22, 1921, For. Rel., 1921, vol. 2, p. 111; the French reply of December 22, 1921, For. Rel., 1921, vol. 1, p. 925. It was perhaps not without importance that these replies were not sent until after the conclusion of the negotiations with Japan relating to the Pacific mandate allocated to that Power. The Japanese Government appears to have consulted with the Allies as the suggestion that the British Delegates to the Washington Conference be invited to discuss certain points relating to the Japanese mandates shows: Memorandum of December 2, 1921, from the Japanese Embassy to the Department of State, For. Rel., 1921, vol. 2, p. 304.

It was declared that the right of the United States could not be made the subject of such disposition as was proposed without its consent, and that under the constitutional system, the giving of that assent was not exclusively within the authority of the President. It was thought, however, that there would be no difficulty in negotiating an appropriate treaty if the terms of the mandates were defined in the line of the suggestions that followed. The same principles were regarded as applicable to former Turkish territories.35

Without attempting to restate the general principles governing mandates, which had been the subject of earlier correspondence between the two governments, the memorandum then commented upon those provisions of the mandate drafts which bore upon capitulatory rights, monopolistic concessions, missionary activities, and economic discrimination which, it was proposed, should be extended by collective definition to embrace the United States. It was, finally, understood that the consent of the United States should be necessary to any modification of a mandate after it had been agreed to.

The reply of the British Government of December 22, 1921,36 which dealt with the African mandates, disclaimed any intention to deprive the United States of the fruits of a victory to which it had contributed so generously. The British Government was quite willing to meet the wishes of the United States as regarded the British mandates. Detailed consideration of the general considerations in the American note seemed, therefore, unnecessary. The following general observations were, however, made:

The cooperation of the United States in the making of peace was a necessary corollary of their cooperation in the war and in the victory. The treaty of Versailles was the outcome of the cooperation. It was entered into by the Allied powers upon the assumption that it represented the common views of all those who had taken part in its preparation after their combined effort to achieve the victory. It was upon the faith of this assumption that the Allied powers undertook obligations not only towards Germany, but also towards each other, and from which it is now impossible for them to escape.

The decision of one of the Allied and Associated powers not to ratify the treaty does not modify the obligations which that treaty imposed upon those who have ratified it, nor release them from the pledges it contains; nor can they now enter into new engagements which would be inconsistent with its terms.

What is said above is preeminently true with regard to the overseas territories which formerly belonged to Germany. By the treaty of Versailles Germany renounced all her sovereignty over them; that renunciation was intended, as pointed out in the American note, to be indivisible; no part of that sovereignty remains to Germany today. But Germany parted with her sovereignty upon the terms laid down in the treaty. Among the conditions so laid down was the assurance that these territories would in future be administered by mandatories on behalf of, and subject to, the general control of the League of Nations in connection with the mandates over these territories; they can consent to no arrangement with any power which is inconsistent with the pledges they have given.

It was in these circumstances and because

*

* the aim of the mandatory system is to make the mandatory Power permanently responsible for the fulfillment of certain duties to those States which have adhered to the covenant of the League of Nations [that] His Majesty's Government find it difficult, therefore, to accept a proposal that the terms of the mandate should refer to any other States, whether by name or by collective definition.

35 "It is important to note that this claim was preferred by the United States not against Turkey, but against its enemies with which the United States was aligned in the general conflict. To the United States the method by which the sovereignty was transferred from the Ottoman possessor was of slight concern. The significant fact, from an American point of view, was not only that some time before the conclusion of any treaty of peace Turkey had been ousted from actual control, but also that its victorious enemies had decided that there must be a new sovereign." Charles Cheney Hyde, "Charles Evans Hughes," American Secretaries of State, New York, 1929, vol. 10, p. 434. In this connection it is of interest to note that the fundamental contentions of the United States with respect to former German territories had been advanced before the date of the treaty with Germany of August 25, 1921. Cf. Secretary Hughes' instruction to Chargé Bell of April 2, 1921, For. Rel., 1921, vol. 2. p. 279: "the right accruing to the Allied and Associated Powers through the common victory is shared by the United States and that there could be no valid or effective disposition of the overseas possessions of Germany, now under consideration, without the assent of the United States."

36 For. Rel., 1921, vol. 2, p. 111.

It appeared to His Majesty's Government that

the best way to meet the wish expressed in the American note would be for the British Government to give to the Government of the United States a guarantee that citizens of the United States shall enjoy in all respects in the mandated territory the same rights and privileges as citizens of States members of the League of Nations, it being understood that they will be subject to the same conditions.

This undertaking might be embodied in an exchange of notes which might also include guarantees of the freedom of missionaries to exercise their vocation. To the wish expressed by the Government of the United States that the consent of the United States should be obtained before any alteration was made in the text of the mandates, the British Government made objection that

It would be difficult to insert in the mandate itself a provision of this nature as between the League of Nations and a Power which is not a member of the League. There is, however, nothing to prevent the mandatory giving a separate undertaking to this effect.

In these circumstances the best method of satisfying the desire of the United States would appear to be that His Majesty's Government, as mandatory, should give the American Government an undertaking that they will not propose nor accept any modifications in the terms of the mandate without previous consultation with the Government of the United States.

The terms of the British note of December 29, 1921,37 which dealt with the Middle East, were the same, mutatis mutandis, as those of the note of December 22, 1921.

The general observations of the British Government were marked by reluctance to admit that the failure of the United States to approve the peace settlement had not deprived if of the rights derived from the common victory. This reluctance was reflected in the inadmissible proposal that the disposition of American rights be dealt with by an exchange of notes, instead of treaty.

There was apparent failure to distinguish between the mandate principle and the machinery for its enforcement. That principle was not inseparably bound up with the League of Nations, although the existence of that body made it possible to assure the regular scrutiny of mandatory administration. Conventional limitations even on sovereignty in an altruistic behalf are not unknown.38 This confusion of the mandate principle and of the method of its enforcement resulted in a misunderstanding of the relation between American substantive contention and the American suggestion that the provisions of the mandate be extended by collective definition to embrace the United States. If that suggestion was inacceptable, it was only because the mandate purported to define the relations between the League of Nations and the mandatory, thus making mention of the United States inappropriate.39 The principle, however, to which the suggestion was intended to give effect, was the entirely valid one that as the United States had been an equal partner in the victory, its equality in the disposition of the fruits of that victory should be recognized by providing that the engagements of the mandatory should run to it also and that it should have an equal voice in the modification of the terms of administration, although it was not a member of the League of Nations and hence could not be a member of the Council.

The British Government was not left uncertain as to the inadequacy of its proposals. The presence of Mr. Balfour, as he then was, at the Washington Conference on the Limitation of Armaments afforded an opportunity for the exploration of the questions at issue. Mr. Balfour was informed that

An undertaking on the part of the British Government that it will not propose nor accept any modification in the terms of the mandate without

37 For. Rel., 1921, vol. 2, p. 115, Crowe to Harvey, Dec. 29, 1921.

38 One example is the British reservation of the right to safeguard the welfare of the aboriginal inhabitants of Queensland and New Guinea, title to which had been transferred to Australia, Temperley, History of the Peace Conference, vol. 2, p. 236. A more striking example is offered by the treaty of Managua of January 28, 1860, whereby Great Britain resigned its protectorate and recognized the sovereignty of Nicaragua over the Mosquito Indians. Article 3 of the treaty provided, however, that "The Mosquito Indians, within the district designated in the preceding Article, shall enjoy the right of governing, according to their own customs, and according to any regulations which may from time to time be adopted by them, not inconsistent with the sovereign rights of the Republic of Nicaragua, themselves, and all persons residing within such district. Subject to the above-mentioned reserve, the Republic of Nicaragua agrees to respect and not to interfere with such customs and regulations so established, or to be established within the said district;" British and Foreign State Papers, vol. 60, p. 96. By agreement between the parties, the question of the right of Great Britain to interpose to assure to the Mosquito Indians the performance of Article 3 of the Treaty of Managua was presented to the Emperor of Austria for decison. He held for Great Britain. See Award, July 2, 1881, in H. La Fontaine; Pasicrisie Internationale, Histoire Documentaire des Arbitrages Internationaux, Berne, 1902, pp. 385-393.

39 Note, however, that the Council of the League of Nations had found no difficulty in inviting the United States to meet with it to discuss the terms of the mandates.

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.40

The determination of the Government of the United States that its position should be in no way inferior to that of the other Principal Powers was revealed further by Secretary Hughes in the proposal that the treaty to be concluded should provide for the submission to the United States of a duplicate of the annual report to the League of Nations. A copy, Mr. Balfour was informed, would not be sufficient. Secretary Hughes wrote:

A provision to this effect is incorporated in the treaty with Japan, relating to the mandated islands north of the Pacific, and the same provisions should be included in the treaty relating to Palestine, inasmuch as Japan has been promised that the same undertaking will be secured in the case of other mandate forms.41

On April 5, 1922, formal communication was made to the British Government of the views which had already been made known to it through the informal exchange with Mr. Balfour. It was stated that the Government of the United States had observed Lord Curzon's statement in the note of December 22, 1921, that it would be difficult to insert in the mandate itself a provision that the consent of the United States should be obtained before any alteration was made in the text of the mandate, and that it was not believed that such an insertion was necessary, in view of the fact, to which Lord Curzon had adverted, that there was "nothing to prevent the Mandatory giving a separate undertaking to this effect." Such an undertaking might be embodied in the proposed treaty. It would not, however, it was said, "be deemed by my Government to be sufficient to provide merely for consultation with the United States."

Mention was again made of the agreement of the Japanese Government to furnish a duplicate, not a copy, of its annual report to the League of Nations on the administration of mandated territories, and the request was made that a similar provision should be included in the treaty relating to the mandate for Palestine.42

By note of April 29, 1922, the British Government signified, its acquiescence in the American proposals and was thereupon informed that there would be no objection to the submission of the draft mandate to the Council of the League for approval at its forthcoming meeting

providing that it is understood that the approval of the Mandate given by the Council of the League shall not be deemed to be binding upon the United States, but shall be subject to the assent of the United States upon the terms and conditions which have been set forth in our correspondence upon this subject.43

By note of June 20, 1922, the British Foreign Office transmitted to the American Ambassador at London, a draft treaty regarding the Palestine mandate. The preamble recited the Turkish renunciation of all rights and titles to Palestine, the purport of Article 22 of the Covenant of the League of Nations, Article 95 of the Treaty of Sèvres, the entrusting of the mandate to His Britannic Majesty by the Principal Allied Powers, the terms of the mandate, the issuance of the mandate upon the coming into force of the Treaty of Sèvres, the contribution of the United States to the defeat of Turkey and the Turkish renunciation of title, the desire of the President of the United States to concur in the mandate for Palestine, and the desire of His Britannic Majesty to ensure to the United States and its citizens the same rights as they would enjoy if the United States were a member of the League of Nations.44

The preamble of the British draft was not acceptable to the United States, because it was deemed not to be expressive of the reasons for the negotiation of the treaty, and because the United States was not a signatory of the unratified treaty of Sèvres. Hence it was suggested that there should be no reference to the treaty of Sèvres in the preamble of the treaty and that the preamble of the mandate, because of its reference to the treaty of Sèvres, should be omitted. By way of substitute, it was suggested that recitals similar to those in the other mandate conventions then in course of negotiation should be inserted.45

40 Department of State: Mandate for Palestine, Washignton, 1931, p. 59, Hughes to Balfour, Jan. 27, 1922, 41 Ibid.

42 Ibid., pp. 61, 64-65, Harvey to Curzon, April 5, 1922.

43 Ibid., p. 67, Wheeler to Curzon, May 10, 1922.

44 Ibid., p. 70, British Foreign Office to Harvey, June 20, 1922.

45 Ibid., p. 75, Memorandum from the Department of State to the British Embassy, July 12, 1922.