711.632/21
The Acting Secretary of State to the Minister in Austria (Washburn)
Sir: The Department has given consideration to your report, made in your despatch No. 1106 of July 20, 1926, concerning your negotiations with Sektionschef Doctor Richard Schüller in relation to the Preamble and Articles I, III, IV, V, and VI of the Treaty of Friendship, Commerce and Consular Rights under negotiation between the United States and Austria. The Department has noted the tentative character of the results of your discussions with Doctor Schüller but observes that in your opinion the agreements reached with him will probably not be overturned by his colleagues.
Preamble. The Department notes that this Government’s proposal that the title of the Treaty as stated in the Preamble be “Treaty of Friendship, Commerce and Consular Rights” was accepted.
[Page 957]Article I. Right to enter, engage in business, lease land, etc. The Department notes that Doctor Schüller agreed to waive his request that there be incorporated in Article I, paragraphs (A), (B), and (C), which were brought to the Department’s attention on page 3 of your despatch No. 374 of December 18, 1923, and were restated on page two of the Department’s instruction No. 459 of May 12, 1926. Your statement to Dr. Schüller that it is not likely that the Austrian Government will be confronted with demands on the part of the United States for repayment of costs incurred on behalf of indigent and mentally deranged Austrian nationals in the United States and for costs incurred for the burial of dead paupers is approved. Your further statement to him that it is contrary to the practice of the United States to insist upon the deportation of indigent and deranged nationals of other Powers found within its borders unless such nationals come within the purview of the deportation provisions of the immigration law is likewise approved.
The Department notes that this Government’s proposal that there be inserted 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. It is also noted that this Government’s proposal that a final paragraph be added to Article I providing that nothing in the Treaty shall be construed to affect existing immigration statutes or the right of either Party to enact such statutes, was accepted by the Austrian negotiator. The second paragraph and the final paragraph of Article I as quoted on page 5 of despatch No. 1106 of July 20, 1926, are approved by the Department.
As appears from despatch No. 1106 the points in Article I still unsettled in the negotiations are the suggestions of the Austrian Government:
- (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 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.
You state that Doctor Schüller at first waived the first suggestion, and that though later in the discussions he considered the two suggestions together with a view to the possibility of agreeing on most-favored nation treatment in regard to the leasing of land for agricultural purposes as well as in regard to the acquisition and ownership of land, you feel reasonably certain that he will not insist upon the insertion of the word “agricultural” in the first paragraph of the Article. Doctor Schüller suggested that if this Government would submit a memorandum to the Austrian Government embodying [Page 958] a general statement explaining that in the United States the regulation of the ownership of land comes 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, the Austrian Government might say in substance that reciprocity existed; and that this would obtain for nationals of the United States the right to acquire and hold land in Austria. It was suggested that this arrangement might be made by an exchange of notes signed simultaneously with the Treaty. The Department understands that this suggestion by Doctor Schüller was tentative, requiring the approval of his colleagues, and that if it is accepted by both Governments the first paragraph of Article I as in this Government’s original draft will be accepted.
The Department recognizes as intimated by Doctor Schüller that it might be of advantage to the nationals of the United States to have the right to own land in Austria. It does not believe, however, that the matter is of sufficient importance to nationals of the United States in Austria or other foreign countries, to warrant this Government to conclude treaty provisions which would interfere with the independence of the several States in the regulation of the matter.
The Department desires that you present the following considerations to the Austrian Foreign Office as a basis for a possible finding that reciprocity exists. Under the Federal System of the United States the control of real property is a function of the States; and barring the granting of rights in respect of the leasing of land such as are included in the first paragraph of Article I of the draft under negotiation and of rights in respect of inheritances and devises such as are provided in the first paragraph of Article IV, it is the policy of the National Government to refrain from interfering with that control. This Government’s policy in that respect extends to the omission from treaties of the most-favored-nation clause as it relates to the right to acquire or hold real property. It is believed that it would be unwise for the United States to deviate from its established course.
The States, generally speaking, have adopted a very liberal policy with respect to the right of aliens to hold land. According to the information at the disposal of the Department, the laws of twenty-two States permit aliens of all nationalities, resident and non-resident, to own unlimited amounts of land, the laws of five States permit aliens eligible to citizenship, resident or non-resident, to own unlimited amounts of land, and the laws of one State permit all aliens, resident or non-resident, with the exception of non-resident Chinese, to own unlimited amounts of land. Five States permit resident aliens but not non-resident aliens, to own unlimited amounts of land, and [Page 959] four States permit resident and non-resident aliens to own limited amounts of land ranging from 90,000 square feet to 5,000 acres. One State permits aliens to own land on the basis of reciprocity. In no State do the laws have the effect of placing Austrian nationals in a position relatively less favorable than the nationals of any other country. The latest census of the United States (1920) reveals the fact that approximately 88 per cent of the aliens of Austrian birth resident in the United States at that time were in States under whose laws aliens including Austrians may own land. In view of these facts it would seem that the Austrian Government would be warranted in saying that reciprocity in respect of the ownership of lands to all intents and purposes exists in the United States so as to enable nationals of the United States to enjoy the right to acquire and hold lands in Austria.
A tabulation giving a list of the States in each of the classifications mentioned above is enclosed.81 You are authorized to give a copy of it to the Austrian Foreign Office and to agree to an exchange of notes as supplementary to the treaty under negotiation establishing the right of nationals of the United States to own land in Austria. Drafts of notes are enclosed.82 If material changes are made therein the notes should be submitted to the Department for approval before they are agreed upon. It is believed that they should not contain the names of the several States as given in the enclosed tabulation, the summary of the classifications as set forth in this instruction, or the percentage figure given above of Austrians residing in States in which aliens may own land.
Should an agreement not be reached on the exchange of notes and the Austrian Government should not accept the first paragraph of Article I of the original draft without an accompanying exchange of notes, you are instructed again to submit the proposal of this Government set out on pages five and six of Instruction No. 459 of May 12, 1926, and quoted in part by you on page seven of despatch No. 1106. The proposal was for the substitution of the following three paragraphs for the present first paragraph of Article I:
[Here follow the three paragraphs quoted on page 927.]
Article II. Right of recovery in case of injury or death. As no comments in regard to Article II have been made in any of the despatches received from the Legation, the Department infers that the Article contained in this Government’s original draft is acceptable to the Austrian negotiators.
Article III. Respect for dwellings and other premises. The Department notes that its proposals that the words “and other places [Page 960] of business” be inserted in the second line of Article III after the word “shops”; that the word “and” before “shops” be in consequence omitted; and that the words “and all premises thereto appertaining” in the fifth line be placed immediately after the newly inserted words, were accepted. Article III will then read as stated on page 10 of instruction No. 459 of May 12, 1926.
Article IV. Rights of succession to real and personal property. The Department notes that this Government’s proposal that there be inserted in the tenth line of the first paragraph of Article IV, after the word “Party”, the words “whether resident or non-resident”, was accepted.
Article V. Freedom of worship. The Department notes and approves the text of Article V as quoted on pages 3 and 4 of despatch No. 1106 of July 20, 1926.
Article VI. Compulsory military service. The Department notes that Doctor Schüller agreed to accept Article VI as contained in the draft. You will call to his attention the fact that a similar Article is contained in the Treaty of Friendship, Commerce and Consular Eights between the United States and Hungary, signed June 24, 1925, (Treaty Series No. 748), as well as in the Treaty of December 8, 1923 between the United States and Germany which you already have brought to his attention.
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