711.632/21
The Minister in Austria ( Washburn ) to the Secretary of State
[Received August 9.]
Sir: I have the honor to acknowledge the receipt of Department Instruction No. 459 of May 12 last, incorporating instructions with respect to the first six articles (excepting Article II) of the proposed Treaty of Friendship, Commerce and Consular Rights between the United States and Austria. I was authorized in my discretion and at the option of the Austrian Foreign Office, to renew negotiations with respect to the articles discussed without awaiting the receipt of instructions in regard to the remaining articles.
Since the end of May when the instruction under reference was received, most of the Austrian officials who were consulted in connection with and who constitute a sort of committee upon this treaty, have been absent on leaves of six weeks or two months. This is especially true of Minister Plenipotentiary Dr. Wildner and Ministerialrat Sammaruga [Sommaruga]. The former has only just returned and the latter is still absent. Sektionschef Dr. Richard Schüller, mentioned in my despatch No. 374 of December 8 [18], 1923, dealing with this same subject-matter, the most influential and prominent of all Austrian treaty negotiators, is much absent on official missions. During recent between visits in Vienna as opportunity offered, I have had several highly satisfactory interviews with him, the last one being on the 14th instant, the day of his departure on two months’ vacation leave. We have reached an understanding on practically all the matters in controversy, one provision only remaining unsettled. This understanding was, however, not reduced to writing and confirmed. It would have been an obvious breach of official etiquette to have taken such action in the absence of Dr. Schüller’s colleagues. He is, however, to all intents and purposes, paramount in such matters, and I have not had occasion to complain of any breach of oral understandings with him. It is true that upon one or two occasions after a long lapse I have found that his recollection of a conversation did not in every detail agree with the memoranda made by me at the time, when the matter was still fresh in my mind. It is always possible that some of Dr. Schüller’s colleagues may subsequently raise objections to which he will feel bound to give heed. Subject to this reservation, which I do not regard as likely for he did not seriously raise it himself, the following understanding was reached:
Preamble. The suggestion that the title of the treaty shall be “Treaty of Friendship, Commerce and Consular Rights” was accepted.
- Article I. I will pass this article for the moment because it presents some difficulties not yet wholly resolved which will require some detailed explanation.
- Article III. The suggestions of the United States that the words “and other places of business” be inserted in the second line of this article after the word “shops”; that the word “and” before “shops” be in consequence omitted; 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, were accepted. Article III will then read as stated on page 10 of the instruction under reference.
- Article IV. The suggestion of the United States that there be inserted in the tenth line of the first paragraph of this article, after the word “Party”, the words “whether resident or non-resident”, was accepted.
- Article V. In conformity with the changes desired by the Austrian Government, approved by the Department on page 11 of the instruction under reference, this article will read as follows:
- [Here follows text of article V, same as in the signed treaty, printed on page 997.]
- Article VI. As intimated on page 11 of my despatch No. 374 of December 18, 1923, I have always regarded the fate of this article as more or less turning on the final wording of Article V. Dr. Schüller feels none too happy about Article VI, but he was visibly affected by my assurance that Germany and Hungary had accepted it. I was able to show him this provision, chapter and verse, as printed in Treaty Series No. 725 containing the treaty between the United States and Germany. He agrees that the article as proposed by the United States may be incorporated in the instant treaty. This I regarded as most gratifying because it obviates any exchange of notes which the Government of the United States regards as distinctly prejudicial to its interests.
Recurring now to Article I. Dr. Schüller finally agreed to waive the request that paragraphs (A), (B) and (C) as set forth on page 2 of Department instruction under reference, be incorporated in Article I. I do not think that he attaches as much importance to provisions of this character as do some of his associates. (See, for example, my despatch No. 1030 of May 4, 1926, and Department’s instruction No. 477 of June 18, in reply thereto,77 in relation to the repatriation of one Oscar Rosenfeld. This is one of several cases which have been the subject of correspondence between the Foreign Office and this Legation in recent months, and is typical.) Dr. Schüller seemed to be more anxious to cut off possibility of the Austrian Government being confronted with a demand of costs incurred on behalf of indigent and mentally deranged Austrian nationals, and also for costs incurred for the burial of dead paupers. I gather that this has been a rather fruitful source of controversy between Austria and some of the Succession [Page 934] States. In some cases I am informed, understandings exist under which the states affected assume charge of their indigent and deranged nationals at the frontier. I felt at liberty to assure Dr. Schüller that the Austrian Government was not likely to be confronted with demands of this precise character from the Government of the United States; that it was contrary to its practice to insist upon the deportation of indigent and deranged nationals of other Powers found within its borders, unless such nationals came within the purview of the deportation provisions of the immigration law. It is possible that Dr. Schüller’s agreement to drop the provisions (A), (B) and (C) may be challenged by some of his associates, but I apprehend no serious difficulty on this score.
The suggestion 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”, was accepted. The second paragraph of Article I will therefore 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.”
The suggestion that a final paragraph be added to Article I reading:
“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.”
was accepted.
I come now to deal with the first two amendments proposed by the Austrian Government to Article I as recited by the Department on page 2 of instruction No. 459 under reference, to wit.:
- 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.
Dr. Schüller showed a disposition to link these proposals up. I therefore consider them together. He quite understands that the owning and leasing of agricultural lands by Asiatics is regarded as a menace in some parts of the United States and that land laws have been framed by some states designed to cope with this situation. He anticipated this point. I did not have even to hint at it. I think he regards the number of Austrian nationals likely to seek to lease [Page 935] land in the United States for agricultural purposes as negligible. This does not worry him. On the other hand, he does not understand why the United States cannot safely incorporate in the treaty a provision granting a most favored nation right to own real property and perhaps lease it for agricultural purposes. He seemed to proceed on the theory that as the United States had not conferred upon the nationals of any country by treaty the right to own real property and lease it for agricultural purposes, we could not be embarrassed. The recognition of favored nation treatment in this respect would therefore be an empty one but it would satisfy the Austrian Government. I did not feel at liberty at this stage, in view of the confidential nature of my instructions in this particular, to explain to him the embarrassment arising out of Article IX of the Treaty of 1853 with the Argentine Republic. Dr. Schüller seemed quite concerned about the privileges of Austrian nationals to acquire land in the United States and seemed anxious lest they should be put in some relatively unfavorable position. He also seemed to think that it was in the interest of the United States as well to have some concrete understanding in view of the state of the Austrian law which makes the right of nationals of foreign countries to own land in Austria conditional upon the reciprocal right of Austrian nationals to own land in the country of the foreign national concerned. I finally read to him the third clause of the three paragraphs I was authorized to propose, as set forth on page 6 of Department instruction 459, to wit.:
“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 first impression was that this clause might prove troublesome. He was inclined to question the construction that might be placed upon the phrase “treatment generally accorded to foreigners”, and he thought the phrase “subject to reciprocity” might lead the Austrian courts to require reciprocity to be proved in each instance and that such a tedious legal formality might defeat the object sought to be attained. This, as just stated, was a matter of first impressions, and he wanted to think it over. He was inclined to think that the best way out would be to allow the first paragraph of Article I to stand as originally drafted, and for the Government of the United States to submit a memorandum to the Austrian Government embodying a general statement or resume explaining that such matters come within the competence of the several states and reciting the general trend of the state laws so far as the Department is familiar with them. If such [Page 936] a memorandum could be prepared in the State Department and embodied by me in a note, the Austrian Government would say in substance, by way of a reply (Dr. Schüller was giving me the idea and not the phraseology), that having gone in the situation it was satisfied that reciprocity to all intents and purposes existed, but that if such reciprocity should be hereafter wiped out, a new declaration in this respect could be made by either party. This solution contemplates, it will be perceived, an exchange of notes, but Schüller seemed to be of the opinion that it would obviate all difficulties and restrain the Austrian courts from taking the stand that reciprocity should be judicially proved in each instance when an American should seek to acquire land in Austria.
To sum up this branch of the discussion, (first), I feel reasonably certain that Dr. Schüller will not insist upon the insertion of the word “agricultural” in the first paragraph of Article I. He distinctly said so in the first instance, and only at a later stage did it occur to him that from his point of view there was no reason why most favored nation treatment should not be accorded Austrian nationals in the matter of leasing lands for agricultural purposes as well as for acquiring and owning land.
(Second), the matter of the acquisition of land can probably be regulated by an exchange of notes in the way above suggested. This is the only matter dealt with in the instruction under reference which I regard as really unsettled. Dr. Schüller said that there was a juridical question involved and he would want to consult some of his associates before speaking definitely upon this point. If this solution should prove acceptable, it would have the advantage of leaving the first paragraph of Article I as originally drafted, and would enable either party subsequently to make a new declaration with respect to reciprocal rights if it should become satisfied that discrimination was being practised. It is my impression that in the last analysis it will be for the Department to consider whether it prefers to meet the existing difficulty by an exchange of notes in the manner suggested, or by the incorporation of a provision corresponding to that found in the Treaty with Turkey, more particularly the provision hereinbefore quoted as set forth on page 6 of the instruction under reference.
Upon the occasion of my last interview with Dr. Schüller, I mentioned to him that I was assuming that the reciprocal application of the most favored nation treatment would continue until the treaty now being concluded had been negotiated and became effective. (See in this connection my telegram No. 45 of July 4, 1925, 2 p.m.)78 He smilingly answered that I could rest easily on this score, that he very well remembered that he had taken this matter into his own hands a year ago without consulting anybody but that he assumed full responsibility [Page 937] for it and that he was certain that there would be no disposition on the part of the Government to question the existing informal understanding. He did intimate, however, that he hoped we would be able to close the whole matter up by the end of the year. He will be away probably until the end of September and he knows that I am presently to go to the United States on leave. In this connection I note with satisfaction that, “The Department’s views and instructions in regard to the succeeding Articles of the Treaty will be transmitted promptly in subsequent instructions.” I have a feeling that I can make rapid progress in dealing directly with Schüller when the final instructions have been received, and that thereafter he will know how to secure the speedy acquiescence of his associates who must be consulted.
I have [etc.]
- Neither printed.↩
- Foreign Relations, 1925, vol. i, p. 517.↩