drawal of the American forces of occupation, my Government feels therefore that the circumstances which warranted it in maintaining its unofficial observer with the Commission no longer exist. "My Government further instructs me to express its sincere appreciation of the many courtesies which the Commission and its members have shown to the Government of the United States and to its unofficial observer." 87 (2) You should transmit to the Department the records of your office in so far as these concern your work as American Observer with the High Commission. HUGHES OBJECTIONS BY THE UNITED STATES TO DISCRIMINATORY REGULATIONS ON EXPORTS FROM THE OCCUPIED REGION OF THE RUHR 611.629 Ruhr/1 : Telegram The Secretary of State to the Ambassador in France (Herrick) [Paraphrase] WASHINGTON, March 5, 1923-4 p.m. 85. The Department states its opinion on the principles governing the situation in the Ruhr, particularly in regard to American commercial interests, as follows, solely for your confidential information: 38 The entrance by France into the Ruhr regions is believed to be a matter that should be dealt with purely as a question of fact irrespective of any consideration as to the legality or the propriety of the action taken by France, and without manifesting any criticism or approval of such action. The position taken by neutral powers towards the belligerent occupation of foreign territory furnishes a counterpart to the conduct suggested. Sovereignty over foreign territory is not transferred by such occupation, which is necessarily provisional, notwithstanding the fact that during the time of such occupation the lawful sovereign is deprived of the power to exercise its rights as such sovereign. The relinquishment of power to the occupant and the act of depriving the lawful sovereign of power result directly from the action of the occupying power in obtaining actual control of the occupied territory. Neutral States are permitted by international law to accept this result and irrespective of the merits of the occupant's cause to deal with it accordingly. Neu This statement was communicated by General Allen to the president of the Interallied Rhineland High Commission, on Feb. 3, 1923. "The remainder of the paraphrase except for the last paragraph was made by the Office of the Solicitor for the Department of State in May, 1923 (file no. 611.629 Ruhr/60). tral States are not to be considered as taking sides in the conflict if they act in accordance with this principle of international law. There is seldom in times of peace as distinguished from periods of war, any occasion for occupying a friendly foreign State. There may arise, however, an occasion for such occupation during times of peace. Vera Cruz was occupied by the United States in 1914, first by naval forces and later by military forces. The United States remained in possession of Vera Cruz for a period lasting several months. The Government of the United States during this period made collection of duties and exercised otherwise a broad control with respect to the area in the possession of this Government. The United States should, in dealing with the occupation of the Ruhr by the French as an actual fact, to be dealt with as such, disclaim any disposition of assuming towards Germany an attitude of unfriendliness or any disposition of yielding to influences of the French, and any intention of taking sides in the contest should also be disclaimed. This Government should accentuate the fact that its sole desire is to protect its own interests and it should be scrupulous to emphasize its neutrality. There should, in the process of accepting the fact of control by the French, be no action taken that would justify an inference that approval is given to the occupant's cause with respect to entering the Ruhr regions, or in regard to the action of the occupying power in maintaining the present regime in these regions. France must, as the power occupying the Ruhr, be considered to be able to exercise, without objection by foreign neutral States, the fullest administrative powers, and must as an incident of such occupation, be deemed to be able to fix the conditions under which foreign trade may be conducted. If neutral States and their citizens are not discriminated against and there is no abuse of power, it is difficult to find any basis upon which objection could be made to the right of the occupying power to make collection of duties or to license exports or to establish embargoes. The actual conflict which is at present in the process of development between American commercial interests and French authority relates to cases where abuse is alleged. For example, these cases raise questions as to whether all exports to Germany can be placed under embargo; whether there can be requisitioned or seized all products of any particular class (such as metallurgical products); whether nationals of Germany can as such nationals, be prohibited from applying for export licenses, and whether a failure on the part of a shipper to present an export license which was issued in October 1922 (but which is at the present time in Berlin in the possession of the German Clearing House at that place), would justify confiscation. There is also the broader question, whether there can be imposed upon the same transaction by any lawful means two export taxes (one German and the other French). Notwithstanding the broad powers exercised by the occupying power there are two forms of conduct that should be guarded against and protested against in a special manner. (a) Where any discrimination is applied against American traders in favor of traders who are French nationals, making it possible for these nationals to take advantage, for their own benefit, of existing conditions. (b) Any action that would have the result of duplicate export taxes being exacted. Only one authority can, in contemplation of law, exercise control over a particular place at any one time. The sole authority to exact an export license is the government, whether of France or of Germany, which actually asserts and exercises control over localities in the Ruhr from which exports are made. In the case of MacLeod v. United States, 229 U. S. 416, 432, the Supreme Court of the United States in 1912 [1913?] declared in substance as follows: A Government is without right to impose the collection of duties a second time where an attempt is made to impose such second collection upon a cargo which has been consigned from a foreign port to a port which is under the occupation of a de facto government in cases where the de facto government has "compulsorily required" the making of a payment of like duties; and the Court interpreted an Act of Congress as not having such a violation of international law in contemplation. Thus where exports are actually controlled by the French Government that Government should be required to adopt the following course: Either to prevent levying by foreign authority of any other like taxes or if payments have been exacted by a foreign authority within the Ruhr to respect such payments. If it is to be considered that France in fact controls the region of the Ruhr any German administrative agencies that may be allowed to operate within this region must be considered, from an international standpoint, to be agencies of the French. The Government of the United States is justified in taking this position and in demanding in cases where second payments have been exacted in territory which has been declared to be under the control of the French a refunding of the second payments. The Government of the United States should, in the course of its efforts to obtain protection for American commercial interests, be careful to avoid being drawn into a controversy of any kind on the question of whether the French occupation is justified by the Treaty of Versailles. (notably by Article number 18 of Annex number II following Article number 244, or by Articles Numbers 428, 429 and 430). This Government should also refrain from giving any expression of opinion as to whether, aside from the Treaty of Versailles, the Government of France is justified in its conduct; also as to whether the treatment accorded nationals of Germany by the French in the Ruhr is abusive or illegal in nature. Any effort that may be made by the Government of the United States should be limited to an attempt to check any conduct of the occupying state that may be directed in an unjust manner against American commercial interests either in the way of discrimination against them or otherwise. Any method which may be adopted for the protection of American interests is complicated somewhat by the considerations which follow: (a) The broad scope of the power or authority of the occupying State; (b) The meager facts to which the attention of the Department of State is called at the time when complaints are made; (c) The effect of the many complaints in individual cases on the influence of the Government of the United States to obtain the recognition by the Government of France of the exact principle upon which the Government of the United States acts. Every one of these points is deserving of brief attention. Notwithstanding the fact that the region of the Ruhr is not French territory, but German, the rights of the occupying power in this region are vast. The rights of the occupying State as tested by the powers of a belligerent occupant of hostile territory enable the occupying power to be the judge in the last analysis of the existence of its own emergency and the extent to which such emergency may exist. The quasi-neutral State is not to be considered as occupying the position of spokesman of the inhabitants (inhabitants of German nationality in this case) of the region concerned; and the quasi-neutral power is not in a position to make complaint of ruthless treatment of such inhabitants except to the extent that it may generally in cases of barbarities which shock the sensibilities of civilization, raise its voice in protest against such barbarities. Thus with a view to seeing whether the exact conduct complained of is a violation of the solid rights of its own, the quasi-neutral State must ever be on the alert. Any action that may be taken by the Department of State based on a meager set of facts, to the extent that such action embraces the making of a complaint, is likely to have a result of an unfortunate nature. This objection is, however, obviously not applicable in cases where consular investigations of particular cases are made, particularly where information furnished by telegraph points to treatment of a severe nature on the part of the occupying power or to an emergency existing at the time. If, in individual cases, complaints are to be made, such complaints should be based on the most solid legal grounds and should rest on facts not to be refuted. Individual interposition may be justified in cases of double taxation or in cases of special discrimination directed against an American firm, or possibly also in cases of flagrant injustice, (which the facts in a particular case may develop). However that may be, the Department should, it is believed, seek primarily to point out clearly to the Government of France the broad and exact grounds upon which the Government of the United States as a quasineutral asserts its rights. It is believed, in a word, that the Government of the United States should make a demand for the recognition of the principle that occupation by the Government of France carries with it responsibility of the French for any occurrences within the region of the Ruhr which the Government of the United States may fairly regard as being contrary to international law; and that the occupying power will be held to strict accountability for any abuses of power, such as above indicated, and in particular for the levying of double taxes on exports and for any discriminatory acts that are distinctly adverse to American citizens. Repeat the foregoing to the Embassies in Great Britain as Department's no. 45, in Germany as no. 17, in Belgium as no. 23, and in Italy as no. 17. Send a summary by courier to the American consul at Cologne for his confidential information. HUGHES 662.009 Ruhr/47 The Ambassador in France (Herrick) to the Secretary of State No. 2973 PARIS, March 22, 1923. SIR: I have the honor to transmit herewith enclosed copy and translation of a circular dated March 15th, 1923, received from the Foreign Office, setting forth the resolution adopted by the Interallied Rhineland High Commission, at its meeting of March 15th, which grants certain temporary facilities to foreign purchasers in regard to orders placed before February 1st, 1923, with German firms in German territory at present occupied by French troops. MYRON T. HERRICK I have [etc.] |