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

711.572/53

The Acting Secretary of State to the Minister in Norway ( Swenson )

Washington , March 9, 1927 .

No. 336

Sir: With reference to your despatch No. 909 of December 1, 1926, you are informed that the Norwegian Chargé d’Affaires had a conference at the Department on February 4th last in regard to several of the provisions of the proposed Treaty of Friendship, Commerce and Consular Rights between the United States and Norway. Among the matters taken up by the Chargé d’Affaires was the question of the acceptance by the Norwegian Government of paragraph three of Article XXX which was the subject of the memorandum from the Foreign Office, of which a copy was transmitted with your despatch.

There is enclosed a copy of a memorandum in regard to the third paragraph of Article XXX which the Department will be glad to have you transmit to the Norwegian Foreign Office, unless you should ascertain before such transmission that the Government of Norway has decided to accept the paragraph without further discussion. In the event the Norwegian Government has decided to accept the paragraph, you will in your discretion make an appropriate reply to the Foreign Office using such material from the enclosed memorandum as you may consider pertinent.

You may also informally arid orally present the following considerations to the Foreign Office. The provision to which objection has been made by Norway was not contained in the text of the Treaty of Friendship, Commerce and Consular Rights between the United States and Germany, as signed.⁶ Under the second paragraph of Article XXXI of that Treaty, which is identical with the second paragraph of Article XXX of the draft under consideration, the fifth paragraph of Article VII and Articles IX and XI which correspond to the same paragraph and Articles in the draft under negotiation would have had a duration of ten years in common with all the other Articles of the Treaty. The reservation which the Senate made to the treaty with Germany⁷ making paragraph five of Article VII and Articles IX and XI terminable at the end of one year, the provision to which the Norwegian Government takes exception when applied in the draft submitted to it, was the result of mature consideration by the Senate and represents a deliberate policy on the part of that body. There have been no developments which would support a belief that the Senate would change its views at this time or in the near future that it is undesirable to bind the United States in respect of these provisions for a longer period than one year.

The provision contained in Article VII, paragraph 6 of the draft submitted to Norway was inserted as a result of a suggestion made by one of the other Governments with which this Government was negotiating. As the suggestion was not made until after the Treaty with Germany was signed the provision is not contained in that Treaty. It is contained in the treaty signed by the United States and Salvador,⁸ ratifications of which have not yet been exchanged. A similar provision is contained in a number of the older treaties to which the United States is a party. The paragraph clearly falls within the spirit of the Senate reservation to the treaty with Germany and it is therefore essential that the mode of termination required by that reservation be extended to it.

In view of the position of the Senate, the Department would be unwilling to conclude a treaty in which the provisions contained in paragraphs 5 or 6 of Article VII or in Articles IX or XI of the draft under negotiation are not made terminable at the end of one year as is provided in the third paragraph of Article XXX of the draft. This Government expects to insist for some time to come on the inclusion of the latter provision in all treaties of commerce and navigation which it concludes.

The Department considers that there is no occasion for the Norwegian Government to fear that discrimination will be put into operation against it. Should the United States avail itself of its freedom under Article XXX, paragraph 3, to pass legislation inconsistent with Article VII, paragraphs 5 or 6, or Articles IX or XI, such legislation doubtless would apply in equal degree in respect of the vessels of all foreign countries, and the cargoes carried in them. There is no reason to believe that it would be applied so as to discriminate against Norwegian vessels and their cargoes as compared with the vessels of any other foreign country and their cargoes.

The older treaties of commerce and navigation to which foreign countries are now parties with the United States are terminable on notice of one year with the exception of a small number of treaties which are terminable on shorter notice. The provisions of the fifth paragraph of Article VII and Articles IX and XI in the treaties of the United States in force with Germany, Hungary, and Estonia,⁹ as already mentioned are terminable at the end of one year. Norway would not be placed in an unfavorable position through acceptance of the third paragraph of Article XXX since in the event that Congress should enact any legislation inconsistent with the provisions of the fifth or sixth paragraphs of Article VII or Articles IX or XI, it would become necessary for this Government to give notice of the abrogation of the Treaty of Commerce and Navigation of 1827 now in force between the United States and Norway, or to enter into negotiations with Norway for the elimination of the provisions of that treaty affected by such legislation.

I am [etc.]

Joseph C. Grew

[Enclosure]

Memorandum

The memorandum from the Foreign Office transmitted to the Legation on November 29, 1926, states that the Norwegian authorities are loath to agree to Article XXX, paragraph 3, of the draft of the Treaty of Friendship, Commerce and Consular Rights, submitted by the Government of the United States, under which Article VII, paragraphs 5 and 6, and Articles IX and XI could be denounced at the end of one year, upon three months previous notice. The objection stated is that if these articles should be terminated the Government of the United States would be able to discriminate in respect of duties against Norwegian vessels and goods imported in those vessels, in respect of taxes on Norwegian ships and as to most favored nation treatment with respect to the coasting trade.

The provisions of the fifth paragraph of Article VII and Articles IX and XI of the draft under consideration are the same as the corresponding paragraph and articles of the Treaty of Friendship, Commerce and Consular Rights, signed by the United States with Germany on December 8, 1923. One of the conditions upon which the Senate of the United States gave its advice and consent to the ratification of the Treaty between the United States and Germany, was that the paragraph and articles just mentioned should be terminable at the end of one year on ninety days previous notice and that thereafter they should lapse at the end of sixty days after the enactment of legislation inconsistent therewith. The Senate considered that the Congress of the United States might desire to give consideration to the subjects embraced in the paragraph and Articles with a view to possible legislative action. The reservation was notified to and accepted by Germany.

The provision contained in Article VII, paragraph 6, of the draft submitted to Norway although not included in the Treaty between the United States and Germany clearly falls within the spirit of the Senate reservation.

The policy which makes these provisions terminable at the end of one year has been accepted in treaties concluded by the United States with Hungary, Salvador and Estonia as well as with Germany. It has not been deviated from in any treaty which the Government of the United States has signed subsequent to the Treaty of 1923 with Germany.

The proposed provisions in regard to duration and termination are in all respects reciprocal and as acceptance of them by Norway would not place the treaty relations between the United States and Norway on a basis less favorable than the relations between the United States and other countries, the Government of the United States entertains the hope that the Government of Norway will on further consideration perceive in the provisions of the third paragraph of Article XXX no hindrance to the conclusion of the treaty.

6. Foreign Relations, 1923, vol. ii, p. 29.
7. See bracketed note, ibid., p. 45.
8. Foreign Relations, 1926, vol. ii, pp. 940, 944.
9. For the treaties with Estonia and Hungary, see ibid., 1925, vol. ii, pp. 70 and 341.