I should further like to suggest that the text of the Treaty might be
amended in the following points:
In Art. XV b par. 2 the word “customs” between “said” and “officials”
should be erased.
In Art. XXIII par. 2 the words “or misdemeanours” should be inserted
after the word “crimes”.
It might further be useful, to make the Preamble conform with the heading
of the Treaty by inserting after the word “Commerce” the words “and
Consular Rights”.
[Enclosure]
Memorandum Regarding the Conference Held in the
State Department between Messrs. Castle, Hyde, McClure, Metzger,
and Barnes, on behalf of the United States, and Messrs.
Wiedfeldt and Von Lewinski, on behalf of Germany, December 1,
1923
The Draft of a Treaty of Friendship and Commerce was discussed
Article by Article.
[Page 25]
Article I
(1) It was explained that the sentence concluding paragraph 1
(“submitting themselves,” etc.) refers to the entire contents of
Article I, par. 1.
(2) The term “local laws and regulations” as used in section 1
comprises all laws, whether National, State, Provincial, Municipal
or otherwise, duly in force at the time when and at the place where
any event occurs which comes within the terms of the Treaty.
(3) Whereas the Treaty only confers the right to own buildings within
the territory of either High Contracting Party to the nationals of
the other, it does not exclude such nationals from the right to own
land as far as the local laws permit that land may be owned by
foreigners.
(4) It was mentioned that under the law of some States of the United
States buildings may be owned though the owner of such building is
not the owner of the lot on which the building is erected, that,
however, under German law it is impossible that the owner of the lot
be not at the same time the owner of the building, the ownership of
the building following the ownership of the lot.
Article II
(5) This article takes regard only of relatives and dependents of an
injured party and is intended to place the nationals of one of the
High Contracting Parties in the same position in respect to the
subject matter of the Article as the nationals of the other Party
enjoy.
Article IV
(6) It is ascertained that par. 1 refers only to immovable property
and par. 2 to movable property.
(7) This Article is intended to secure to the beneficiaries of a will
and to heirs the right to dispose of the property bequeathed or
descending to them and to receive the proceeds of the sale of the
property notwithstanding that, according to local law they, because
of alienage, are not eligible to own the property.
Article VII
(8) The term “manufactured” in par. 2 shall include any kind and any
stage of manufacturing process regardless of the material used in
such process.
Article VIII
(9) The view was expressed that the term “duties, charges, and taxes”
as used in the Treaty throughout shall comprise all duties, charges,
taxes, fees or other pecuniary burdens whatsoever, which are duly
imposed by National, State, or Provincial laws and/or [Page 26] regulations, and levied by or on
behalf or by authority of the competent authorities. It was observed
that Article VIII implies that no discrimination of whatever kind
shall by any means take place in regard of the goods, wares and
merchandise of the nationals of either High Contracting Party within
the territory of the other in respect of the before-mentioned
duties, charges and taxes.
Article IX
(10) It was the consensus of view that Government vessels, if used
for mercantile purposes, shall come under this provision.
Article XII
(11) The view was expressed that corporations and associations should
be deemed to come within the meaning of this Article only in so far
as they are distinct and separate legal entities under the laws of
the respective countries, and that partnerships do not constitute
legal entities within the meaning of the Article.
Article XV
(12) It was indicated that it was not intended, with reference to
Section d, that the usual charges for personal baggage other than
samples should be effected or that preference shall be granted in
regard to transportation facilities or railway charges or
otherwise.
Article XVII
(13) It was the prevailing view that the term “reciprocity” as used
in this Article meant “mutually”.
(14) It was the consensus of opinion that under the provisions of
this Article consular officers of the other High Contracting Party
might take the testimony on oath of the nationals of the country
where such consular officers reside, provided that such nationals
are willing to give their testimony before such consular
officers.
Article XVIII
(15) The question was raised whether the term “consular officials”
comprises consuls de Carrière, vice-consuls, honorary consuls,
interpreters, vice-interpreters. It was the general view that the
term included these officials.
Article XXII
(16) It was explained that under the German law certain acts for the
passing of title in real property situated in Germany are reserved
for and are to be executed before courts of law. The view was
expressed that nothing in this Treaty should be construed to
dispense with the respective provisions of the German law.
[Page 27]
Article XXIII
(17) The view was expressed that controversies having a criminal
aspect might come within this Article and that consular officers are
so far subjected to the law of procedure of the country within the
territory in which they reside that they may not claim the right to
appear before the judicial authorities when such laws prevent them
from doing so.
Article XXIV
(18) The question was asked whether the expression “pending the
appointment of an administrator” meant the appointment of an
administrator by the authorities of the country in which the
consular officer resides. It was answered in the affirmative.
Article XXVI
(19) It was observed that the German Government would find difficulty
in imposing pressure upon the master or crew of any foreign vessel
to admit a consular officer. It was the view that such pressure was
not contemplated.
Article XXX
(20) In respect of this Article special reference is taken to par.
3[2], section 1 of Article II of the
Treaty Restoring Friendly Relations between the United States and
Germany concluded August 25, 1921,3 reading as follows:
“The United States in availing itself of the rights and
advantages stipulated in the provisions of that Treaty
mentioned in this paragraph will do so in a manner
consistent with the rights accorded to Germany under such
provisions.”
Germany, when concluding the treaties ending the
world war, undertook to conclude certain further treaties and give
certain rights to third powers. All treaties which have in
consequence of these former treaties been concluded or will be
concluded by Germany granting certain treatment in economic
questions, customs, prices, transportation facilities, or otherwise,
would be concluded in compliance with the peace treaties as an
obligation and a right of Germany, establishing thereby no precedent
out of which claims for a most-favored-nation treatment may arise
except as such claims might be made under the Treaty of August 25,
1921, between the United States and Germany and the provisions of
the Treaty of Versailles to the benefits of which the United States
became entitled by the Treaty of August 25, 1921, and provided that
Germany does not grant such treatment to [Page 28] any third power to which she is under no
obligation to fulfill one of the above-mentioned treaties concluding
the world war.
This memorandum is prepared as a minute of conversations, and is in
no sense an agreement supplemental to the treaty or binding on the
parties to the treaty as interpretative of its provisions.
