The Secretary of State to the Chargé in Salvador (Engert)

No. 189

Sir: With reference to your despatch No. 808 of July 7, 1925, and earlier correspondence concerning the negotiation of a treaty of friendship, commerce and consular rights between the United States and Salvador, there are enclosed herewith three copies of a draft of such a treaty.19 The copy which contains confidential comments explanatory of the provisions of the draft is solely for the use of the Legation and is not to be shown to any officials of the Salvadorean Government or to others. Of the copies which do not contain the explanatory comment, you will submit one to the Salvadorean Foreign Office; the other is for your convenience when discussing the provisions of the draft with officials of the Salvadorean Government.

The following statement is designed to make clear the position of this Government concerning the general features of the treaty, and respecting the various provisions thereof.

You will observe from the Preamble and the Articles of the Treaty that this is a treaty of friendship as well as of commerce and consular rights. It touches many matters unrelated to commerce. It is designed to promote the friendly intercourse between the peoples of the United States and Salvador, through provisions advantageous to both. It may be said with entire candor that this treaty embodies no attempt whatever to obtain any peculiar favor which the United States is not itself ready to offer in return. In a word, through the present draft it is sought to lay the foundation [Page 925] for a comprehensive arrangement responsive to the modern requirements of maritime States. To that end the several articles are expressed in terms which definitely set forth what is desired. It is sought by this means to avoid the danger of conflicting interpretations. The terms and phrases used are not always those which have been employed in treaties of the United States. Those here utilized will, it is hoped add to the clearness of the document.

The first six articles deal generally with the rights of the nationals of the one party residing in the territories of the other, and incidentally with the rights of their non-resident relatives. (See Article II). The attempt is made to give the Salvadorean in the United States or the American in Salvador, on an equal basis, all of those privileges which can reasonably be accorded the resident alien. In the next to the last paragraph of Article I unusual steps are taken to provide for the protection and security of his person and property, in accordance with the requirements of international law. Moreover, his property is not to be taken without due process of law, and without payment of just compensation. It is hoped that these provisions will be warmly appreciated by the Salvadorean Government. In the last paragraph of Article I is embodied a reservation made by the Senate of the United States in giving its advice and consent to the ratification of the Treaty of Friendship, Commerce and Consular Rights, signed by the United States and Germany on December 8, 1923.20 From the point of view of this Government such a provision is necessary.

The provisions of Article III are not uncommon.

The arrangement in the first paragraph of Article IV dealing with the passing of title to lands by descent or will is also not uncommon in treaties of the United States. It enables, for example, a Salvadorean heir or devisee in Salvador to take title to American lands owned by a relative who died in the United States, and to have the privilege of disposing of those lands within a reasonable period of time when the local law (as of some State of the United States) does not permit such alien to retain title. The second paragraph of Article IV is self-explanatory.

The rights of worship contained in Article V are reasonable in their scope and are desired by the United States. Obviously, no practices contrary to public morals are to be permitted under the guise of religious activity.

Article VI is believed to be important. Should the United States become a belligerent it should enjoy the right to exact military service of neutral aliens permanently resident in its territory who have declared an intention to become American citizens and who [Page 926] decline to leave the country. It is only under these conditions that service is to be exacted; and the privilege obviously would be equally beneficial to Salvador should it become a belligerent.

Article VII makes full provision for the enjoyment of the most-favored-nation clause in its unconditional form, applying it to persons, vessels and cargoes, and to articles the growth, produce or manufacture of the contracting parties. It will be seen that the most-favored-nation clause is applied to duties on imports and exports and to other charges or restrictions or prohibitions on goods imported and exported. In the last paragraph there is an important reservation with respect to the commerce between the United States and Cuba, and to the commerce of the United States with its dependencies and the Panama Canal Zone, under existing or future laws. These reservations are essential. You will recall that our arrangements with Cuba under treaty of December 11, 1902,21 are of a peculiar nature. The special relationship, political and geographical between the United States and Cuba necessitates the reservation concerning the commerce with that country.

Article VIII requires no explanation.

Article IX concerning duties of tonnage, harbor, pilotage, lighthouse, quarantine, et cetera, provides for national treatment applied reciprocally, that is, the same conditions are to be applied to a Salvadorean vessel in American ports as are applied to American vessels, provided Salvador applies to American vessels in Salvadorean ports the same conditions that are applied to Salvadorean vessels therein.

Article X requires no comment.

The provisions of Article XI will explain themselves. You will of course observe that there is definite statement to the effect that the coasting trade of both parties is exempt from the provisions of the treaty. The addition of the last sentence is due to the possibility that one contracting party might yield coasting trade privileges of some character to foreign vessels. Hence that contingency is covered. It will be observed that the coasting trade was specifically excepted from the provisions of Article III of the treaty of December 6, 1870, between the United States and Salvador, which is no longer in force.22

Your attention is particularly called to the provision contained in the third paragraph of Article XXVIII under which the fifth and sixth paragraphs of Article VII and Articles IX and XI are made terminable at the end of twelve months from the date of exchange of ratifications of the Treaty and thereafter by operation of legislation [Page 927] inconsistent with them which may be enacted by the United States or Salvador. That provision, as is indicated by the explanatory comment in the margin to Article XXVIII is the consequence of a reservation made by the Senate of the United States in giving its advice and consent to the ratification of the Treaty of Friendship, Commerce and Consular Eights, signed by the United States and Germany on December 8, 1923.

Article XII concerns the right of corporations incorporated in the one country to be recognized in the other, and to enjoy access to the Courts. It should be observed, however, that the right to do business in the foreign country (for example, of an American corporation in Salvador) is conditioned upon the laws of that country. These limitations are deemed absolutely essential particularly because of the powers of the several States of the United States to regulate the matter.

In Article XIII arrangement is made for the participation by nationals of the one State in corporations incorporated in the other. The laws of the United States render it imperative that these rights be based on a reciprocal footing, and that the most-favored-nation treatment in this connection be conditioned upon reciprocity. The last paragraph of Article XIII offers a reciprocal basis for agreement within necessarily narrow limits respecting privileges of mining and minerals described. The Act of Congress of February 25, 1920, relative thereto,23 is had in mind.

Article XIV deals with transit through the territories of the United States and of Salvador and also territorial waters with certain reservations as to the latter embracing international boundary waters and the Panama Canal. The reservation of boundary waterways of various kinds is important to the United States. It is not recalled that rights of navigation or transit therein have ever been accorded to foreign States not sovereign over contiguous territory. Rights of transit through the Panama Canal are definitely established by the Convention between the United States and Great Britain of November 18, 1901, known as the Hay-Pauncefote Treaty.24 It is there provided that:

“The canal shall be free and open to the vessels of commerce and of war of all nations observing these Rules, on terms of entire equality, so that there shall be no discrimination against any such nation, or its citizens or subjects, in respect of the conditions or charges of traffic, or otherwise. Such conditions and charges of traffic shall be just and equitable.”

Thus it will be understood that Article XIV is not designed to impose any special restriction with respect to the Panama Canal which [Page 928] is directed against Salvador. The Article rather reserves from its operation the matter of transit through that canal. The Article contains limitations with respect to prohibited persons and articles. The conditions applied to transit are reasonable and necessary. There may be some room for the practical operation of this Article as between the United States and Salvador; and its incorporation in the treaty is deemed useful, also on account of prospective treaty negotiations between the United States and other Powers.

Articles XV–XXVI concern consular rights. These cover fully consular provisions of the most modern type which ought to be of great benefit to Salvadorean consular officers in the United States as well as to American consular officers in Salvador.

Attention is called to the last sentence of the second paragraph of Article XV providing that consular officers be entitled to the high consideration of officials with whom they come in contact. This is designed to safeguard them from discourtesy which they might otherwise encounter on the part of minor officials. The last paragraph of Article XV provides that a regular commission be signed by “the Chief Executive of the appointing State and under its great seal”.

The matter of the arrest of consular officers and their criminal prosecution, as well as their service as witnesses in criminal cases, is covered fully in Article XVI; likewise, the matter of their exemption from arrest. The same Article deals with the jurisdiction of Courts over Consuls in civil matters. The several provisions are believed to be responsive to the modern situation, and wholly desirable.

The taxation of consular officers is fully dealt with in Article XVII. It will be noted that there is an exemption from taxation on consular salaries under the conditions specified. An important exemption is established in the same Article with respect to lands and buildings used for governmental purposes, and under necessary reservations.

Article XVIII in its first paragraph permits the hoisting of the flag of the country on consular offices including those “situated in the capitals of the two countries”. It is hoped that this provision may commend itself to the Salvadorean authorities. The second and third paragraphs of this Article require no comment.

The provisions of Article XIX enabling consular officers to address the authorities with a view to protecting their countrymen in the enjoyment of the rights accruing by treaty or otherwise, and in order to complain of infraction of those rights are believed to serve a useful purpose. They ought to be inserted in the treaty.

Article XX makes provision for the exercise of notarial functions by consular officers. The first paragraph slightly elaborates Article X of the Consular Convention of the United States with Sweden of [Page 929] June 1, 1910.25 There are also differences in phraseology. The second paragraph needs no explanation.

Article XXI makes a definite and important provision in its first paragraph with respect to the jurisdiction of a consular officer over offences committed on merchant vessels of his country and over certain civil cases under specified conditions. This paragraph differs sharply from the familiar provisions on the same subject to be found, for example, in Article XI of the Consular Convention of the United States with Belgium of March 9, 1880, which along with Article XII of that Convention was terminated by agreement between the United States and Belgium to bring the Convention into harmony with the Act of Congress of March 4, 1915 (Seamen’s Act).26 The second paragraph is supplementary to the first. The third paragraph provides for the consular invocation of local aid for the maintenance of internal order on board of a vessel. The fourth paragraph requires no comment.

Article XXII pertains to the several problems where a countryman of the Consul dies intestate within the consular district. The first paragraph provides for the notification of the Consul of the fact of death where the decedent leaves no known heirs in the country where death occurred. In the second paragraph arrangement is made, under certain conditions, for the Consul pending the appointment of an administrator, to take charge of the property of the decedent in order to protect it. Finally, in the same paragraph, the consular officer is given the right of administration within the discretion of the agency controlling the administration provided the local laws permit. It is deemed absolutely essential in the United States that any consular right of administration be subordinated to local State laws conferring rights of administration on public officials or private individuals. The right of administration here contingently granted a Consul may, however, prove useful to such an officer. Whenever he accepts the office of administrator he should be subjected to the jurisdiction of the tribunal appointing him. The last paragraph of the Article so provides.

Article XXIII confers upon the Consul the valuable right to receipt for the distributive share accruing to a non-resident countryman, derived from estates in process of probate or from the operation of Workmen’s Compensation Acts. The Consul is obliged, however, to remit funds through the agencies of his Government to the proper distributees, and to furnish the authority making distribution through him with reasonable evidence of such remission. This is a new provision calculated to promote justice for all concerned.

[Page 930]

In Article XXIV a new provision greatly desired by the Consular Service and the Public Health Service contemplates consular inspection of private vessels of any flag destined or about to clear from the ports of the United States for Salvador or from the ports of Salvador for the United States. It is earnestly hoped that the Salvadorean Government will accept this provision which will serve to facilitate the entry of vessels clearing from Salvadorean ports for American ports.

Article XXV concerns the free entry of personal and official belongings of consular officers, their families and suites when nationals of the appointing State, with limitations that are specified. The exception, however, in the last clause of the second paragraph of the Article should be noted.

Article XXVI which is based upon Article XIII of the Consular Convention with Sweden of June 1, 1910, deals with the matter of shipwreck and salvage. The provisions require no comment.

Article XXVII states definitely the scope of the territories, land, water and air, within the operation of the treaty.

Article XXVIII deals with the duration of the treaty and modes of terminating it. It is deemed wise to fix the initial period of operation at ten years in regard to all matters with respect to which the Contracting Parties have a permanent policy, and to require one year’s notice of termination. As already pointed out in this instruction the provisions of the third paragraph of Article XXVIII permitting the termination of the fifth and sixth paragraphs of Article VII and Articles IX and XI at the end of one year are the counterpart of a reservation made by the Senate of the United States in giving its advice and consent to the ratification of the Treaty of Friendship, Commerce and Consular Rights, signed by the United States and Germany on December 8, 1923. It will be noted that the treaty is to take effect with respect to all of its provisions on the date of the exchange of ratifications.

Article XXIX provides for the exchange of ratifications which if the treaty be signed at San Salvador would normally also take place at that capital.

Please report to the Department by telegram the date on which you submit the draft to the Salvadorean Foreign Office.

I am [etc.]

Frank B. Kellogg
[Page 931]

Draft of Treaty of Friendship, Commerce and Consular Rights Between the United States and Salvador27

Article I

[Final Paragraph]

Nothing contained in this Article shall be construed to affect existing statutes of either of the High Contracting Parties in relation to the immigration of aliens or the right of either of the High Contracting Parties to enact such statutes.

. . . . . . . . . . . . . .

Article VII

[Final Paragraph]

The stipulations of this Article do not extend to the treatment which is accorded by the United States to the commerce of Cuba under the provisions of the Commercial Convention concluded by the United States and Cuba on December 11, 1902, or any other commercial convention which hereafter may be concluded by the United States with Cuba, or to the commerce of the United States with any of its dependencies and the Panama Canal Zone under existing or future laws.

. . . . . . . . . . . . . .

Article XI

Merchant vessels and other privately owned vessels under the flag of either of the High Contracting Parties shall be permitted to discharge portions of cargoes at any port open to foreign commerce in the territories of the other High Contracting Party, and to proceed with the remaining portions of such cargoes to any other ports of the same territories open to foreign commerce, without paying other or higher tonnage dues or port charges in such cases than would be paid by national vessels in like circumstances, and they shall be permitted to load in like manner at different ports in the same voyage outward, provided, however, that the coasting trade of the High Contracting Parties is exempt from the provisions of this Article and from the other provisions of this Treaty, and is to be regulated according to the laws of each High Contracting Party in relation thereto. It is agreed, however, that the nationals of either High Contracting Party shall within the territories of the other enjoy with respect to the coasting trade the most favored nation treatment.

. . . . . . . . . . . . . .

[Page 932]

Article XIX

Consular officers, nationals of the State by which they are appointed, may, within their respective consular districts, address the authorities, National, State, Provincial or Municipal, for the purpose of protecting their countrymen in the enjoyment of their rights accruing by treaty or otherwise. Complaint may be made for the infraction of those rights. Failure upon the part of the proper authorities to grant redress or to accord protection may justify interposition through the diplomatic channel, and in the absence of a diplomatic representative, a consul general or the consular officer stationed at the capital may apply directly to the government of the country.

. . . . . . . . . . . . . .

Article XXVI

All proceedings relative to the salvage of vessels of either High Contracting Party wrecked upon the coasts of the other shall be directed by the Consular Officer of the country to which the vessel belongs and within whose district the wreck may have occurred. Pending the arrival of such officer, who shall be immediately informed of the occurrence, the local authorities shall take all necessary measures for the protection of persons and the preservation of wrecked property. The local authorities shall not otherwise interfere than for the maintenance of order, the protection of the interests of the salvors, if these do not belong to the crews that have been wrecked and to carry into effect the arrangements made for the entry or exportation of the merchandise saved. It is understood that such merchandise is not to be subjected to any custom house charges, unless it be intended for consumption in the country where the wreck may have taken place.

The intervention of the local authorities in these different cases shall occasion no expense of any kind, except such as may be caused by the operations of salvage and the preservation of the goods saved, together with such as would be incurred under similar circumstances by vessels of the nation.

  1. Attached to the file copy of this instruction is only one copy of the draft treaty, a copy with confidential comments and text of the treaty arranged in parallel columns. This is the text of the draft treaty being printed as an enclosure to this instruction; the comments, however, have been omitted.
  2. Foreign Relations, 1923, vol. ii, pp. 22, 29.
  3. Foreign Relations, 1903, p. 375.
  4. Malloy, Treaties, 1776–1909, vol. ii, pp. 1551, 1552. This treaty was abrogated May 30, 1893.
  5. 41 Stat. 437.
  6. Foreign Relations, 1901, pp. 241, 245.
  7. Foreign Relations, 1911, pp. 723, 726.
  8. Malloy, Treaties, 1776–1909, vol. i, pp. 94, 97, 98; 38 Stat. 1164.
  9. The text of this draft is similar to the text of the treaty as signed Feb. 22, 1926, p. 940, with the exception of the few extracts here printed.