711.572/63

The Norwegian Chargé (Lundh) to the Secretary of State

Sir: Referring to Your Excellency’s note of August 13, 1925, I have the honor to inform Your Excellency that the Norwegian Ministry for Foreign Affairs has very carefully studied the draft of Treaty of Friendship, Commerce and Consular Rights which was enclosed with the note in reference,17 and that the Ministry makes the following observations to the draft submitted:

Article I

1. The first paragraph provides that “nationals of each of the High Contracting Parties shall be permitted … to lease lands for … manufacturing, commercial and mortuary purposes … upon the same terms as nationals of the state of residence or as nationals of the nation hereafter to be most favoured by it … It does not appear to be quite clear what the term land comprises, but it seems as if the wording of this paragraph goes further than contemplated by the Norwegian legislation in question. A government license (concession) is required i. a. for any one owning or operating waterfalls, [Page 604] and applications for such licenses are usually dealt with according to the merits of each individual case. The authorities distinguish as a rule between concerns which are wholly Norwegian, and concerns in which foreign capital is interested. In view hereof, it is suggested that the words “…nationals of the state of residence or” be deleted. The paragraph, as amended, would therefore be limited to most-favoured nation treatment in this respect.

As stated above, the Norwegian legislation in this connection provides that foreigners who desire to acquire waterfalls, mines, timber lands or other real property (including buildings), in certain cases also in regard to leasing such, must obtain a license from the Government. In order to cover this contingency, it is suggested that an additional paragraph should be added to art. I, in fine, to the effect that the provisions of paragraph I shall not affect any statutory enactments in either country whereby the right of foreigners to own, erect or lease and occupy lands or real property is made dependent upon license being granted, even if such license is not required in the case of nationals of the country, and that most-favoured nation treatment be accorded in this respect.

2. With regard to the expression … “all local laws” in Article I, paragraph one, in fine, the Norwegian Government takes it for granted that this is meant to include federal as well as state and municipal laws.

3. Paragraph two, Article I of the draft reads as follows:

“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.”

In accordance with the Norwegian legislation relative to the acquisition of waterfalls, mines and other real property, the granting of licenses to Norwegian subjects or Norwegian companies to operate waterfalls in Norway may be made subject to the payment of certain charges to the Crown and to the municipality, such charges to be computed on the basis of the natural horse-power available. Such licenses may also in certain cases be granted to foreigners or to companies not wholly Norwegian, the terms and conditions in such cases to be fixed by the King in each individual instance.

The Norwegian Government takes it for granted that the wording of paragraph two as here quoted is not understood to restrict the right of Norway, if or when granting licenses to American citizens to operate waterfalls in Norway in accordance with the above mentioned legislation, to make such licenses subject to the payment of charges other or higher than those which in similar cases would have been imposed on Norwegian subjects.

[Page 605]

Article IV

With regard to paragraph two, the Norwegian Government would suggest the inclusion of an additional clause, following the last word of paragraph two as it now stands, and of the following wording, which is self-explanatory, viz.:

“In the same way, property left to nationals of one of the High Contracting Parties by nationals of the other High Contracting Party, and being within the territories of such other Party, shall be subject to the payment of such duties or charges only as the nationals of the High Contracting Party within whose territories such property may be or belong shall be liable to pay in like cases.”

Article VI

Under the Norwegian laws in question, there is no authority for granting native-born Norwegians permission to leave the country within sixty days after a declaration of war, in order to escape military service. It is therefore suggested that this article should be supplemented by a provision to the effect that the right to leave the said belligerent Party within sixty days after a declaration of war shall not apply to persons who are natives of the Party drafting compulsory military service, unless such right is accorded to native-born persons who are subjects or citizens of the most-favored nation. A similar clause was inserted in the treaty of commerce and navigation signed between Norway and Japan on June 16, 1911 (article I, 4).18

Article VII

Paragraph 1. This contains a clause to the effect that nothing in the treaty shall be construed to restrict the right of either Party to impose prohibitions or restrictions of a sanitary character, designed to protect human, animal or plant life, or regulations for the enforcement of police or revenue laws.

A Norwegian Act of June 27, 1924, authorizes the King to prohibit i. a. the importation of foreign seeds that are not considered suitable for use in Norway by reason of their place of growth, or that fall short of the desired standard in respect of germinating power, etc. By virtue of this Act, regulations have been issued prohibiting i. a. the importation of certain seeds for use in agriculture, except from certain countries where the climatic conditions approximate those of Norway. The purpose of these regulations is to prevent seeds and plants which are not sufficiently hardy, from being used in Norwegian agriculture.

In view hereof, it is suggested that the words “of a sanitary character” be deleted, while the words “health or” be inserted between [Page 606] “plant” and “life”, so that the last period of paragraph one will read as follows:

“Nothing in this treaty shall be construed to restrict the right of either High Contracting Party to impose, on such terms as it may see fit, prohibitions or restrictions designed to protect human, animal, or plant health or life, or regulations for the enforcement of police or revenue laws.”

Various stipulations contained in the draft Treaty appear to have too wide a scope in relation to the legislation and practice existing in Norway regarding the importation, sale and transit of alcoholic beverages (see remarks relative to articles XIV and XVI). Thus, all trade in wine and spirits is in Norway placed under a Wine Monopoly controlled by the Government. In view hereof, the Norwegian Government would suggest the inclusion of an additional clause, for instance after the first paragraph of Article VII, of the following tenor:

“Nothing in this Treaty shall be construed to restrict the right of either High Contracting Party to impose prohibitions or restrictions upon the importation and sale of alcoholic beverages or narcotics.”

Paragraph 7. It is suggested that the words “and goods” be added to the last line, after “its nationals and vessels”; the word “and” in the last line of the paragraph before “vessel” would then have to be omitted.

Paragraph 8. This paragraph provides that the stipulations of article VIII shall not be extended to the special treatment accorded by the United States to the commerce of Cuba, any of the dependencies of the United States, or the Panama Canal Zone.

In the same way, the Norwegian Government would suggest the addition of a supplementary paragraph, of the following wording:

“No claim may be made by virtue of the stipulations of the present Treaty to any privilege that Norway has accorded, or may accord, to Denmark, Iceland or Sweden, as long as the same privilege has not been extended to any other country.

“Neither of the High Contracting Parties shall by virtue, of the provisions of the present Treaty be entitled to claim the benefits which have been granted or may be granted to neighbouring states in order to facilitate short boundary traffic.”

Article IX

The Norwegian Government would prefer another wording of this article, and suggest the following, viz.:

“The vessels and cargoes of one of the High Contracting Parties shall, within the territorial waters and harbors of the other Party in all respects and unconditionally be accorded the same treatment as the vessels and cargoes of that Party, irrespective of the port of [Page 607] departure of the vessel or the port of destination, and irrespective of the origin or the destination of the cargo. It is especially agreed that no duties of tonnage, harbor, pilotage, lighthouse, quarantine, or other similar duties or charges of whatever denomination, levied in the name or for the profit of the Government, public functionaries, private individuals, corporations or establishments of any kind shall be imposed in the ports of the territories or territorial waters of either country which shall not equally, under the same conditions, be imposed on national vessels.”

Article XIV

Clause (c) of this article is not in accordance with the Norwegian Trade Act. Foreign commercial travellers may not in Norway sell samples (other than certain jewellery, watches, etc.), and it is therefore suggested that clause (c) be struck out.

Clause (g) is likewise contrary to the provisions of the Norwegian legislation, as foreign peddlers and other salesmen may not, except in certain limited cases, sell direct to the consumer. The Norwegian Government would prefer that also this clause be struck out. If this should not be found feasible the Norwegian Government would suggest that this clause be worded so as to include only selling by Norwegians in the United States and not vice versa.

With regard to clause (h), the Norwegian Government would prefer paragraph (1) to be given a somewhat wider scope, so that the wording of the same would be as follows, viz.:

“Persons travelling only to study trade and its needs, even though they initiate commercial relations, provided they do not make sales of merchandise, or are instrumental in making such sales.”

Article XV

The provisions contained in this Article are very detailed, and the Norwegian Government would prefer the entire article to be struck out. Paragraph (c) is contrary to the provisions of the Norwegian Trade Act.

Article XVI

It appears that the provisions of this article may be at variance with the Barcelona Convention of April 20, 1921,19 wherefore the Norwegian Government would suggest that an additional paragraph be included to the effect that “Nothing in this Article shall be construed to be in conflict with the Convention of Barcelona of April 20, 1921.”

[Page 608]

Article XVIII

This article refers in paragraph 1 to “Consular officers, nationals of the state by which they are appointed”, a term which is no doubt intended to cover that of consules missi. However, it frequently occurs that consuls are nationals of the state by which they are appointed, without being consuls de carrière, and for this reason it would be desirable to amplify the said wording by inserting the words “and not engaged in any profession, business or trade” after “appointed” or to substitute the words “Consular officers de carrière” for the designation contained in the draft.

With regard to paragraph 2, it is suggested that this be amended to read “In criminal cases the attendance at the trial by a consular officer as witness may be demanded by the prosecution or defence, or by the court, except in regard to acts performed by such consular officer in his official capacity. In the same way it is suggested that paragraph 3 be altered to read “Consular officers shall, except in regard to acts performed by them in their official capacity, be subject to the jurisdiction of the courts in the state which receives them in civil cases …” The reason for these alterations is obvious, and in accordance with international practice, namely that a consul is not answerable to the courts of the state to which he is appointed in regard to acts performed by him qua consul. This principle also appears to be borne out by the third paragraph of article XXIV of the draft.

Article XIX

First paragraph, last period, states that “All consular officers and employees, nationals of the state appointing them, shall be exempt from the payment of taxes on the salary, fees or wages received by them in compensation for their consular services.” This would mean that an honorary Norwegian consul in the U. S. A. if a Norwegian subject, would be exempted from taxation of the kind referred to, while other honorary Norwegian Consuls in the States not being Norwegian subjects, would not enjoy such exemption. Moreover, certain honorary consuls in Norway from states entitled to most-favored nation treatment in this respect would be able to claim an exemption from taxation apparently not provided for by Norwegian legislation. It is therefore suggested that the wording be made clear by inserting after the words “nationals of the state appointing them”, the same words as above referred to in connection with art. XVIII, paragraph one.

With regard to the second paragraph of article XIX, it appears that the provisions here contained respecting exemption of taxation [Page 609] in regard to government-owned buildings etc., are more extensive than provided for by the Norwegian legislation in question. The exemption granted in Norway in this respect refers to capital and income tax to State and municipality in regard to legation houses owned by a foreign government, or property belonging to foreign diplomatic or consular officials. No exemption is accorded in respect of municipal rates on real estate. In order that the treaty should conform to the Norwegian legislation in this regard, it is suggested that a stipulation be included to the effect that the exemption from taxation does not apply to municipal rates levied on real estate.

Article XX

2nd paragraph. The Norwegian Government is entirely in accordance with the principle of stipulating in the treaty that the consular offices and archives shall be inviolable. In regard to honorary consulates it would, however, appear to be desirable to include for instance as a new paragraph three, a clause to the effect that such inviolability is subject to the archives and offices of the consulate being kept entirely apart from the archives and offices of the private business pursued by the incumbent, thus corresponding to article VII, paragraph three, of the Consular Convention between the United States of America and Cuba,20 reading as follows:

“When a consular officer is engaged in business of any kind within the country which receives him, the archives of the consulate and the documents relative to the same shall be kept in a place entirely apart from his private or business papers.”

Article XXI

The wording of this article as it stands would constitute a hindrance to such honorary Norwegian consuls in the United States as are not Norwegian subjects, from communicating with any public authorities in the States. It would further seem to give a consul general, if his district comprises the whole country, the right to address himself direct to the government. It is therefore suggested that the words “nationals of the state by which they are appointed” be deleted from the second line, and that “concerned” be inserted after “authorities”, so that the commencement of this article would read as follows:

“Consular officers may, within their respective consular districts, address the authorities concerned, national, State, Provincial or Municipal. …”

[Page 610]

Article XXIII

With regard to the last words of paragraph one, to the effect that a consul shall have jurisdiction over issues concerning the adjustment of wages and the execution of contracts relating thereto provided the local laws so permit, the Norwegian Government would draw attention to the existing Norwegian legislation in regard to matters of this character, notably section 43 of the Seaman’s Act of February 16, 1923, which provides that disputes between the master and the crew as to the settlement of wages, or the service otherwise, shall, while the ship is abroad, be submitted to the decision of the consul. Moreover, according to section 33 of the said Act, a master is entitled to dismiss any seaman who causes a dispute respecting the service on board a Norwegian ship to be brought up before any foreign authorities. It would appear that the wording of article XXIII, paragraph one, as it now stands, is contrary to the letter and the spirit of the Norwegian legislation relative to the jurisdiction exercised by Norwegian consuls. The Norwegian Government would therefore suggest that the words: “provided the law of the vessel’s flag be observed” be substituted for the words “provided the local laws so permit.”

It appears from the memorandum handed M. Lundh by Mr. Barnes21 in May, 1927,22 that the proviso “provided the local laws so permit” has been included because the courts of the United States are open to seamen on foreign vessels while in harbors of the United States for the enforcement of the provisions of section 4530 of the Revised Statutes of the United States, as amended, according to which amended section such seamen i. a. are entitled, subject to certain provisos, to receive on demand from the master of the vessel one-half part of the balance of their wages earned and unpaid at every port. The rights accorded in this respect to seamen on board Norwegian vessels by Norwegian law are, however, more extensive, as under sections 19 and 21 of the Norwegian Seamen’s Act of February 16, 1923, any seaman on board a Norwegian vessel may demand payment of wages once a week when the ship is in port, while the master is not at any time entitled to retain more than one-third of the wages to which the seaman is entitled. It will be seen from the above that the proviso “provided the local laws so permit” in article XXIII, paragraph one, is

(a)
contrary to the Norwegian legislation on the subject,
(b)
incompatible with the right of Norway as a sovereign nation to exercise jurisdiction on board her own vessels, and
(c)
detrimental to the interests of seamen on board Norwegian ships, as such seamen are protected more fully by the Norwegian than by the American legislation on this subject.

2.
With regard to the proviso “except in so far as he is permitted to do so by the local law” contained in the latter part of the second [Page 611] paragraph of section XXIII, the Norwegian Government would, in view of the explanation furnished in Mr. Barnes’ memorandum to M. Lundh, refrain from suggesting that this proviso be suppressed.
3.
When the authorities of one of the High Contracting Parties in accordance with the principle of paragraph two of section XXIII exercise jurisdiction in connection with criminal acts committed on board of a vessel under the flag of the other Party, it would seem reasonable that the consul of the vessel’s country were given due notice thereof. The Norwegian Government would therefore suggest that an additional paragraph be inserted after paragraph two, and reading as follows:

“Where, in accordance with the above, the local authorities of one of the High Contracting Parties exercise jurisdiction in connection with a criminal act committed on board of a vessel flying the flag of the other High Contracting Party, the consul concerned of such other Party shall be notified without delay.”

4.
The Norwegian Government does not propose that the third paragraph of article XXIII should contain a clause respecting the right of consular officers to invoke the assistance of the local police in connection with the apprehension of deserted seamen.
5.
The provision contained in paragraph four that a consul may appear in court as an interpreter or agent is not wholly in accordance with Norwegian legislation. A consul may not ipso facto appear in court as an agent, but he will in most cases be so qualified that the court may recognize him as an agent. Likewise, interpreters must be appointed by or recognized by the court, and a consul may usually count on obtaining such recognition. In view hereof, it is suggested that paragraph four be amended, by adding after the words “interpreter or agent”, the words “… provided the local laws so permit”.

Article XXIV

With regard to paragraph one, the Norwegian Government would suggest that the words “… without having in the territory of his decease any known heirs or testamentary executors by him appointed …” be deleted, whereafter this paragraph will read as follows:

“In case of the death of a national of either High Contracting Party in the territory of the other the competent local authorities shall at once inform the nearest consular officer of the State of which the deceased was a national of the fact of his death, in order that necessary information may be forwarded to the parties interested.”

It is further suggested that a new and additional paragraph two be inserted of the following tenor, viz.:

“Likewise, in case of the death of a resident of either of the High Contracting Parties who leaves or is presumed to leave heirs residing in the country of the other Party, the proper local probate authorities [Page 612] having knowledge of such death and such heirs from petition for letters of administration presented to them or otherwise shall at once inform the nearest consular officer of the nation to which the heirs are presumed to belong, of the death, in order that necessary information may be fowarded to any parties interested.”

It is further considered desirable that still another additional paragraph be added, reading as follows, viz.:

“In case of escheatment of an estate of a resident of either of the High Contracting Parties who was or had been the subject or citizen of the other Party, leaving no known heirs in the country where the estate belongs, the escheatment as provided by the local law shall only be computed from the time of the serving of notice of death on the consul of the other Party.”

With regard to paragraph two as it now stands, it is suggested that the initial lines be somewhat amended, to the following effect: “In case of the death of a national of either of the High Contracting Parties without will or testament whereby he has appointed testamentary executors, in the territory of the other High Contracting Party. …”

The amendments of article XXIV suggested above are largely self explanatory. The article, as it now stands would mean that in case a Norwegian subject dies in the United States leaving distant relatives (heirs-at-law) there, in which case the consul would receive no notification of the death, such relatives could conceivably conceal from the court the fact that there are or may be other heirs in Norway. Further, if the deceased was an American citizen, the consul could only by chance learn of the death, and would therefore presumably in many cases be unable to inform any existing heirs in Norway of the case. It is considered that the suggested alterations of the article’s text in this respect would be conducive to furthering the interests of justice and equity.

In regard to the new clause respecting escheatment, reference is made to the attached copy of “Findings by the Consular Corps of the State of Washington”,23 which also deals with the other matters referred to above under this article.

Article XXV

The Norwegian Government would suggest that this article commences with the following paragraph:

“A consular officer of either High Contracting Party shall within his district have the right to appear personally or by delegate in all matters concerning the administration and distribution of the estate of a deceased person under the jurisdiction of the local authorities for all such heirs or legatees in said estates, either minors or adults, as may be non-residents and subjects or citizens of the country represented by the said consular officer, with the same effect as if he held [Page 613] their mandate to represent them, unless said heirs or legatees themselves have appeared, either in person or by duly authorized representative. And the consul shall have the authority to receive the distributive shares or interests due to such heirs or legatees and to give sufficient receipt or release therefrom.”

The sole paragraph of article XXV as it stands in the draft treaty would then come in as paragraph two of article XXV.

Article XXVI

The provision that a foreign consular officer in Norway shall have the right to inspect vessels in Norwegian ports appears not to be wholly consistent with Norwegian legislation, and the Norwegian Government would prefer this Article to be deleted from the draft.

Article XXVII

The Norwegian regulations in force grant to foreign consuls de carrière in Norway exemption from the payment of customs duties on their baggage and all other personal effects brought by the consuls and their families upon their first arrival in Norway. The wording of article XXVII appears to go somewhat further, and the Norwegian Government would prefer the modified text contained in the treaty between the United States of America and Esthonia, article XXVI, paragraph one, as follows:

“Each of the High Contracting Parties agrees to permit the entry free of all duty of all furniture, equipment and supplies intended for official use in the consular offices of the other, and to extend to such consular officers of the other and their families and suites as are its nationals, the privilege of entry free of duty of their baggage and all other personal property, accompanying the officer to his post, provided, nevertheless, that no article the importation of which is prohibited by the law of either of the High Contracting Parties, may be brought into its territories. Personal property imported by consular officers, their families or suites during the incumbency of the officers in office shall be accorded the customs privileges and exemptions accorded to consular officers of the most favored nation.”

The use of the expression “consular officers … as are its nationals” in paragraph one of this article is for the reasons set forth above in regard to article XVIII considered undesirable, wherefore a change of the expression to “consular officers de carrière …” would be preferred.

Article XXVIII

The Norwegian Government would prefer this article to be amended in the way suggested by Mr. Barnes in his memorandum, so that the article would read as follows:

“All proceedings relative to the salvage of vessels of either High Contracting Party wrecked upon the coasts of the other shall be directed [Page 614] by the consular officer of the country to which the vessel belongs and within whose district the wreck may have occurred or by some other person authorized thereto by the law of that country. Pending the arrival of such officer, who shall be immediately informed of the occurrence, or the arrival of such other person, whose authority shall be made known to the local authorities by the consular officer, the local authorities shall take all necessary measures for the protection of persons and the preservation of wrecked property.” (The rest of the article to be retained as in the original draft submitted by the United States.)

Article XXIX

The Norwegian Government would suggest that there be added to this article, after “… Panama Canal Zone” the words “and Svalbard,24 in respect of which the High Contracting Parties accord each other reciprocal most-favored nation treatment.”

Article XXX

  • Paragraph one. The draft provides that the Treaty should be in force for ten years. The Norwegian Government considers this to be a very long duration, and would prefer a shorter term, for instance two or three years.
  • Paragraph two. During the conversation with Mr. Hackworth25 and Mr. Barnes, Mr. Lundh stated that the Norwegian authorities were extremely loath to accept paragraph three of this article. In view of the information to hand, the Norwegian Government realizes, however, that there are but slight chances for the U. S. Senate ratifying a treaty which does not contain the reservations embodied in paragraph three. The Norwegian Government is therefore while primarily desirous of having paragraph three deleted from the draft prepared alternatively to accept the same; in such case they would suggest that there be added to the last word of paragraph three a provision to the effect that most-favored nation treatment shall apply in case the stipulations in question should lapse. The wording of paragraph three would appear to be satisfactory in this respect if it were altered to read as follows, viz:

    “The fifth and sixth paragraphs of Article VII and Article IX and XI shall remain in force for twelve months from the date of exchange of ratifications, and if not then terminated on ninety days previous notice shall remain in force until either of the High Contracting Parties shall enact legislation inconsistent therewith when the same shall automatically lapse at the end of sixty days from such enactment. If the fifth or sixth paragraph of Article VII or Article IX or XI be terminated or lapse in accordance with the provisions of this paragraph, [Page 615] each of the High Contracting Parties shall enjoy, unconditionally and without compensation, the same treatment in respect of the subject matter of such paragraph or article as is accorded by the other Party to the most favored nation.”

In a number of treaties of commerce lately concluded between the Norwegian Government and other governments, it has been provided, either by exchange of notes or by a separate protocol, that Norwegian sardines shall not pay a higher tariff rate than other sardines. The Norwegian Government would be pleased if the United States Government would agree to a similar provision being accepted in connection with the present Treaty. The wording of the provision suggested could be as follows:

“Norwegian sardines prepared from fish belonging to the species “Clupea sprattus” (Brisling) or “Clupea harengus”(Sild) shall, when imported into the United States of America not pay a higher tariff rate than sardines prepared from fish belonging to the species “Clupea pilchardus” imported from any country.”

Your Excellency will note from the above observations that the Norwegian Ministry for Foreign Affairs in principle has accepted the stipulations of the draft of the Treaty as regards the question of tonnage dues. The Ministry, therefore, ventures to hope that the Department of State will not find it necessary to give notice of abrogation of the existing treaty, which in all probability shortly will be supplanted by a new treaty.

I beg leave to assure Your Excellency that representatives of this Legation will be happy, at any time, to meet representatives of the Department of State and verbally discuss with them such questions as they may wish to raise in connection with the observations made by the Norwegian Ministry for Foreign Affairs, should it be the opinion of the Department of State that such procedure will contribute to an early termination of the treaty negotiations.

Accept [etc.]

A. Lundh
  1. Draft treaty not printed. For text of signed treaty, see p. 646.
  2. British and Foreign State Papers, vol. cv, pp. 702, 703.
  3. League of Nations Treaty Series, vol. vii, p. 11.
  4. Foreign Relations, 1926, vol. ii, pp. 27, 30.
  5. Charles M. Barnes, Chief of the Treaty Division, Department of State.
  6. Not printed.
  7. Not printed.
  8. Norwegian Arctic territory, comprising Spitsbergen, Bear Island, and all other islands between 74 and 81 degrees North and between 10 and 35 degrees East.
  9. Green H. Hackworth, Solicitor for the Department of State.