The Counselor of the German Embassy (Von Lewinski) to the Solicitor for the Department of State (Hyde)

My Dear Mr. Hyde: Enclosed I beg to transmit the draft of a Memorandum containing the explanations, which you were kind enough to give us, as regards to the Treaty of friendship and commerce, for your kind examination and consent.

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”.

I am [etc.]

Karl von Lewinski

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.

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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.

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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.