Papers relating to the foreign relations of the United States, 1928, Volume I

711.632/15

The Secretary of State to the Minister in Austria (Washburn)

Washington, May 12, 1926.

No. 459

Sir: The Department has given attentive consideration to the suggestions made by the Austrian Government in relation to the proposed Treaty of Friendship, Commerce and Consular Rights between the United States and Austria, which were communicated and discussed in your despatches No. 374 of December 18, 1923,⁶⁸ and No. 419 of March 4, 1924.⁶⁹ It desires that you renew the Treaty negotiations with the Austrian Government and bring to the attention of that Government the views of this Government in regard to its proposals as they are hereinafter stated.

In the progress of the negotiation of the Treaty of Friendship, Commerce and Consular Eights with Germany which was signed December 8, 1923,⁷⁰ some seven or eight suggestions were made by the German negotiators which resulted in minor changes in the text of articles which also are in the draft which you submitted to the Austrian Government. As this Government considers that uniformity in every particular in which it is possible is essential in all the treaties of the series which it is negotiating, it is hopeful that these changes will be acceptable to the Austrian Government. They are hereinafter referred to in the regular order of the Articles of the draft along with this Government’s comments on the Austrian counter proposals.

Preamble. It is desired that the title of the Treaty as stated in the Preamble, shall be “Treaty of Friendship, Commerce and Consular Eights”. This title is used in the Treaty with Germany (Treaty Series No. 725) and in treaties of the same type which have been signed by the United States with Hungary, Esthonia and Salvador.⁷¹

Article I. With reference to Article I, the Austrian Government proposed:

1. That the word “agricultural” be included in the first paragraph of Article I, so as to provide for the leasing of lands for agricultural purposes as well as for residential, scientific, religious, philanthropic, manufacturing, commercial and mortuary purposes.

2. That provision be made in Article I, for the acquisition of land by the nationals of the High Contracting Parties on the same terms as nationals of the most favored nation.

3. That the following provisions be incorporated in Article I of the treaty:

(A) “The nationals of each High Contracting Party, who have their residence in the territories of the other and who should come to be expelled by judgment at law, by police measures legally applied and executed, or by virtue of the police regulations concerning public morals and paupers, shall be received with their families in any case by their native country.

(B) “The High Contracting Parties engage themselves reciprocally to give to indigent nationals of the other who fall ill, become mentally deranged or meet with an accident within their territories the same care and the same treatment accorded to their own nationals until the deportation can be effected without prejudice for the person concerned or for others.

(C) “For the costs incurred in such cases and for the burial of dead paupers, no reciprocal compensation shall take place at the charge of State, Province, Municipality or other public funds; merely a private redress being reserved against the person concerned or others who may be under such obligation.”

With respect to the first amendment proposed by Austria it may be said that there is a very practical reason why it would not be advisable for the Government of the United States to confer upon aliens by treaty the right to lease lands for agricultural purposes. The owning and leasing of agricultural lands by Japanese have been regarded as a menace in California and possibly one other Pacific Coast State, and the Treaty of Commerce and Navigation of 1911 between the United States and Japan⁷² (3 Treaties, Conventions, etc., page 2712, Article I), was carefully worded so as to avoid conferring upon Japanese the right to own land in the United States or to lease it for agricultural purposes. If the United States were to conclude a treaty with Austria conferring upon Austrian nationals the right to lease land in the United States for agricultural purposes, the Government of the United States would be in the position of discriminating in this respect, in behalf of Austrian nationals and thus against Japanese, and of creating by treaty with Austria such a discrimination against Japanese as Japan complained had been made by the Alien Land Law of California.⁷³) The leasing of lands for agricultural purposes in the United States is regarded as a matter peculiarly of local concern to be regulated by the legislatures of the several states in which it is deemed inadvisable for the Federal Government to intervene. The first paragraph of Article I, as submitted in the draft, is identical with the corresponding provisions of the Treaty of Friendship, Commerce and Consular Rights between the United States and Germany, signed December 8, 1923, and no controlling reason is perceived for modifying that paragraph.

What has been said above with respect to discrimination is applicable also to the second amendment proposed by Austria. It appears, however, that the right of nationals of foreign countries to own land in Austria is conditional upon the reciprocal right of Austrian nationals to own land in the country of the foreign national concerned.

A strong reason why it is undesirable for the United States to conclude a treaty with a provision granting a most favored nation right to own real estate is that the Treaty of Friendship, Commerce and Navigation of 1853 between the United States and the Argentine Republic (1 Treaties, Conventions, etc. page 20), contains a provision in Article IX that may be regarded as conferring upon Argentine nationals the right to acquire real property in the United States. This right would, by virtue of that Treaty, become available to the nationals of any country with which the United States concludes a treaty containing a provision securing most favored nation treatment with respect to acquiring real property. It is the policy of this Government to avoid including a most favored nation clause in the treaties which it concludes until the Treaty of 1853 with the Argentine Republic shall have been amended so as to eliminate the provision hereinabove referred to, abrogated, or replaced by a new treaty which does not contain that provision.)

It appears from your despatch No. 324 of December 29, 1923,⁷⁴ that the exclusion of Austrian citizens from the privilege of owning land in some of the states of the United States would have the effect, in the absence of a treaty provision on the subject, of depriving all American citizens of the privilege of acquiring land in Austria. In view of the existing state of Austrian law on the subject of the acquisition of landed property by aliens, a provision could be inserted in the treaty between the United States and Austria similar to the provision on the subject included in the Treaty of Amity and General Relations between the United States and Turkey, signed at Lausanne, August 6, 1923,⁷⁵ which was as follows:

“As regards the acquisition, possession, and disposition of immovable property the nationals of each of the High Contracting Parties shall enjoy in the territory of the other, subject to reciprocity, the treatment generally accorded to foreigners by the laws of the place where the property is situated; accordingly, they may own, lease, and construct buildings and appurtenances for residential purposes or for any other purpose permitted by the present Treaty.”

The provision in the Treaty with Turkey on the subject of immovable property was accepted by the Department reluctantly after a diligent effort had been made to have the Turks agree to omit it. It is believed that it would be preferable to endeavor to induce the Austrian Government to accept the first Article of the Treaty as it stands in the original draft rather than to amend it as contemplated by this suggestion regarding the ownership of land.

If, however, the Austrian Government will not agree to accept the first paragraph of Article I, in the original form you are authorized to propose the three following paragraphs in lieu thereof. The first of them contains the provisions of paragraph 1 of Article I, except those relating to property; the second contains the provisions so withdrawn from the first paragraph; and the third contains the provisions of the paragraph quoted above from the Treaty with Turkey, the last clause thereof having been stricken out to avoid repetition of provisions in the preceding paragraph.

“The nationals of each of the High Contracting Parties shall be permitted to enter, travel and reside in the territories of the other; to exercise liberty of conscience and freedom of worship; to engage in professional, scientific, religious, philanthropic, manufacturing and commercial work of every kind without interference; to carry on every form of commercial activity which is not forbidden by the local law; to employ agents of their choice, and generally to do anything incidental to or necessary for the enjoyment of any of the foregoing privileges upon the same terms as nationals of the state of residence or as nationals of the nation hereafter to be most favored by it, submitting themselves to all local laws and regulations duly established.”

“The nationals of each of the High Contracting Parties within the territories of the other shall be permitted to own, erect or lease and occupy appropriate buildings and to lease lands for residential, scientific, religious, philanthropic, manufacturing, commercial and mortuary purposes upon the same terms as nationals of the country.”

“As regards the acquisition, possession, and disposition of immovable property, except as regards the leasing of lands for specified purposes provided for in the foregoing paragraph, the nationals of each of the High Contracting Parties shall enjoy in the territory of the other, subject to reciprocity, the treatment generally accorded to foreigners by the laws of the place where the property is situated.”

The Department has noted the discussion reported on pages two and three of your despatch No. 374 of December 18, 1923, which you had with the Austrian experts, in regard to the application of the closing words of the first of the foregoing three paragraphs, namely:

“… and generally to do anything incidental to or necessary for the enjoyment of any of the foregoing privileges upon the same terms as nationals of the state of residence or as nationals of the nation hereafter to be most favored by it, submitting themselves to all local laws and regulations duly established”.

and confirms your explanation made to them that the condition relates to all matters dealt with in the paragraph. A similar condition in more condensed form, namely;

“… upon the same terms as nationals of the country”.

is included in the second of the foregoing paragraphs.

This Government understands the condition of reciprocity required in the last of the foregoing paragraphs to relate to the laws of the political division by which the acquisition, possession and disposition of immovable property are governed. The Department infers from the discussion in your despatch that in Austria the matter is governed by national legislation and that the law is uniform throughout the Republic. In the United States these matters are governed by State law. Therefore, nationals of the United States who are citizens of states which grant to citizens of foreign countries the right to acquire, possess and dispose of real property would have the right under the provision here proposed to the treatment generally accorded by the laws of Austria to nationals of foreign countries on condition of reciprocity. Nationals of the United States, citizens of States which deny to citizens of foreign countries the right to acquire, possess and dispose of immovable property would obtain no rights in Austria under the paragraph. The right of citizens of Austria in the United States to acquire, possess and dispose of immovable property, would be recognized in States in which such rights are accorded to citizens of foreign countries on condition of reciprocity upon a showing in the particular case that such reciprocity is furnished by Austria. There are States of the United States in which such rights are extended to aliens without reference to reciprocity and probably others in which the rights are restricted or wholly denied.

It is not believed that this Government should consent to add to Article I, of the Treaty, the paragraphs proposed by Austria obliging the respective countries to receive their nationals deported from the other country, and agreeing to accord indigent nationals of the other, the same care and treatment as is accorded their own nationals.

The Government of the United States has not experienced any difficulty in having deported aliens received in the countries of which they are nationals. The difficulties experienced by this Government in deporting aliens grow out of disputed nationality. It is believed that all governments receive their nationals who are deported from another country. There have been cases in which governments refused to receive deportees because they were not regarded as nationals. The proposed addition to Article I, on this subject, would not cure this situation, and it is not believed that the proposed addition would serve any useful purpose so far as the United States is concerned.

It is not believed that discrimination is practiced to any considerable extent in the United States in caring for indigent aliens as compared with nationals. In the United States this matter is given attention by the local State or Municipal authorities, or by private charitable organizations, and this Government would find it difficult to agree to include a provision in regard to it in a treaty.

The Department concurs in your view that difficulties might arise with respect to the observance of the provisions of the last of the three additional paragraphs (paragraph C) proposed to Article I, because of the distribution of jurisdiction over the matters dealt with between the Federal and State Governments in the United States. For this reason the paragraph is unacceptable to this Government. The Department agrees also that the revised form suggested by you is merely declaratory of existing practice. For this reason it believes that it is unnecessary and undesirable to include a provision of the kind in the Treaty.

In the negotiation of the Treaty of December 8, 1923, between the United States and Germany, an agreement was reached to insert in the fifth line of the second paragraph of Article I, after the word “taxes”, the words “other or” so that the expression shall read “taxes other or higher” and the entire paragraph will read—

“The nationals of either High Contracting Party within the territories of the other shall not be subjected to the payment of any internal charges or taxes other or higher than those that are exacted of and paid by its nationals.”

This Government desires that this amendment be made in the Treaty under negotiation with Austria.

The Senate of the United States in giving its advice and consent to the ratification of the Treaty signed with Germany on December 8, 1923, made a reservation to the effect that there should be added to Article I, of the Treaty the following:

“Nothing contained in this Treaty 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.

This reservation was accepted by Germany. From the point of view of this Government the views of the Senate in regard to this matter must be recognized in all treaties concluded by the United States containing provisions relating to the rights of aliens to enter the United States. You are, therefore, instructed to propose to the Austrian Government that such a paragraph be added as the last paragraph of Article I, of the Treaty under negotiation.

Article III. This Government asks that the words “and other places of business” be inserted in the second line of Article III after “shops”. The word “and” before “shops” will as a consequence be omitted. It also asks that the words “and all premises thereto appertaining” in the fifth line of the Article in the draft be placed immediately after the newly inserted words. Article III will then read as follows:

“The dwellings, warehouses, manufacturies, shops, and other places of business, and all premises thereto appertaining of the nationals of each of the High Contracting Parties in the territories of the other, used for any purposes set forth in Article I, shall be respected. It shall not be allowable to make a domiciliary visit to, or search of any such buildings and premises, or there to examine and inspect books, papers or accounts, except under the conditions and in conformity with the forms prescribed by the laws, ordinances and regulations for nationals.”

This is one of the changes introduced in the negotiation of the Treaty with Germany.

Article IV. This Government desires that there be inserted in the tenth line of the first paragraph of Article IV after the word “Party”, the words “whether resident or nonresident”, the rest of the paragraph and article to remain unchanged. This also is a change resulting from the negotiations with Germany. The words “whether resident or nonresident” appear in the second paragraph of this Article, and expressing them in the first paragraph has the advantage of giving uniformity of phraseology where difference might give rise to a question whether a difference of meaning is intended.

Article V. Austria proposes to modify the provisions in this Article regarding the right to conduct religious services by the proviso that the teachings and practices are not inconsistent with public order or public morals, and that they conform to all laws or regulations duly established, and to replace the word “reasonable”, as used with reference to mortuary and sanitary laws and regulations, with the word “established”.

The proposed amendments of Article V appear to the Department to entail no substantial modification in the meaning of the Article and very little change in form. In view of your report that Austria attaches considerable importance to the suggestions with respect to the modification of Article V because it is desired to bring that Article into close harmony with provisions in the Treaty of St. Germain,⁷⁶ and Austrian legislation, and the further fact that the adoption of these changes would not effect any material change in the meaning of the Article, the Department authorizes you to accept the proposed changes.

Article VI. Article VI of the treaty provides that in the event of war between either High Contracting Party and a third state, such Party may draft for compulsory military service the nationals of the other having a permanent residence within its territories who have declared an intention to adopt its nationality by naturalization, unless such individuals depart from the territory of the belligerent within sixty days after the declaration of war. Austria expressed a desire to have Article VI omitted. It expressed a willingness, however, to waive, by a protocol or by notes to be exchanged at the time of signing the treaty, the right to object to the drafting of Austrian nationals within the limitations of Article VI.

It appears from your report that the Austrian Government fears that if it concludes a treaty containing such a provision, Austria may be regarded as unneutral in its attitude toward friendly nations with which the United States might be at war. It is not believed by this Government that such a provision in a treaty could be regarded as placing either Party to the treaty in the position of disregarding its obligations of neutrality in the event of one of the parties to the treaty becoming a belligerent.

In view of the large alien population in the United States and the effect which the abandonment of the Article in the negotiations with Austria would have on other treaty negotiations in which this Government is engaged, the Department would regard the omission of the Article from the Treaty with Austria or the relegation of the provision to a supplemental protocol or exchange of notes as distinctly prejudicial to the interests of the United States. This Article is included in the Treaty of the United States with Germany signed December 8, 1923, and in the Treaty signed with Hungary June 24, 1925. The German and Hungarian negotiators both expressed the doubts of their Governments in regard to the acceptance of the provision but after discussion it was accepted by both Governments. It is probable that Austria may not be inclined to insist upon the omission of Article VI inasmuch as it is contained in the treaties of the United States with these two countries.

The Department’s views and instructions in regard to the succeeding Articles of the Treaty will be transmitted promptly in subsequent instructions. You are authorized in your discretion and at the option of the Austrian Foreign Office to renew the negotiations with respect to the Articles discussed in this instruction without awaiting the receipt of instructions in regard to the remaining articles.

I am [etc.]

Frank B. Kellogg

68. Ibid., 1923, vol. i, p. 413.
69. Not printed.
70. Foreign Relations, 1923, vol. ii, p. 29.
71. Treaty between the United States and Hungary, signed June 24, 1925, Foreign Relations, 1925, vol. ii, p. 341; between the United States and Estonia, signed Dec. 23, 1925, ibid., p. 70; between the United States and Salvador, signed Feb. 22, 1926, ibid., 1926, vol. ii, p. 940.
72. Foreign Relations, 1911, p. 315.
73. See ibid., 1920, vol. iii, pp. 1 ff.
74. Not printed.
75. Foreign Relations, 1923, vol. ii, p. 1153.
76. Malloy, Treaties, 1910–1923, vol. iii, p. 3149.