711.572/63
The Secretary of State to the Norwegian Minister ( Bachke )
Sir: I have the honor to acknowledge the receipt of your Legation’s note of December 9, 1927, in which observations were submitted regarding the draft treaty of Friendship, Commerce and Consular Rights, a draft of which accompanied the Department’s note to your Legation dated August 13, 1925.
I have pleasure in commenting herein, article by article, on the observations made in the note under acknowledgment, up to and including Article XXI.
[Page 616]Article I
The comments made in the note of December 9, relating to Article I of the draft treaty are directed to the first and second paragraphs of that article. It is observed from the Legation’s note that the expression in the first paragraph of Article I—“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 state of residence or as nationals of the nation hereafter to be most favored by it … “is not regarded by the Norwegian Government as clear in all respects and that the expression goes farther than is contemplated by Norwegian legislation. It is suggested in the note that the obstacle to the acceptance of the first paragraph of Article I by the Norwegian Government be removed by omitting “nationals of the state of residence or” in the latter part of the article so that the paragraph would provide for most favored nation treatment instead of national or most favored nation treatment as is done in the draft submitted to your Legation. As you are aware, the Government of the United States has concluded a number of treaties with foreign Governments in which the expression set out above is included. The nationals of the countries concerned therefore enjoy in the United States the rights defined in the portion of the treaty under discussion. The omission of the expression “nationals of the state of residence or” would not, therefore, in any way reduce the rights enjoyed by Norwegian nationals in the United States under the first paragraph of Article I below those that would be accorded by the provision as proposed by the United States Government. The omission of that expression would, however, reduce the rights enjoyed by American nationals in Norway below those accorded by that provision. Consequently amendment of the first paragraph of Article I as suggested in the Legation’s note would operate unequally with respect to American citizens in Norway and Norwegian nationals in the United States. The Government of the United States does not desire to have the treaty so worded as to establish a condition of inequality with respect to the subject matter of the first paragraph of Article I of the treaty. It is suggested, therefore, that the expression “to own, erect or lease and occupy appropriate buildings and to lease lands for residential, scientific, religious, philanthropic, manufacturing, commercial and mortuary purposes;” be omitted from the first paragraph of Article I and that except for this omission the paragraph be allowed to stand as it was in the original draft. The Government of the United States would much prefer this amendment to the one suggested in the note of the Legation.
It is stated in the Legation’s note that the Norwegian Government takes it for granted that the expression “all local laws” used [Page 617] in the latter part of the first paragraph of Article I of the draft, includes Federal as well as state and municipal laws. I am glad to be able to concur with the Norwegian Government in its views as to the meaning of the expression “all local laws”.
It is stated in the Legation’s note that the Norwegian Government takes it for granted that the wording of paragraph two of Article I does not restrict the right of Norway, if, or when, granting licenses to American citizens to operate waterfalls in Norway in accordance with Norwegian legislation, to make such licenses subject to the payment of charges other or higher than those which in similar cases would be imposed on Norwegian subjects. I regret that I do not find it possible to concur with the views of the Norwegian Government in regard to the meaning of the second paragraph of Article I. It is my feeling that the language of the paragraph would not lend itself to the meaning which the Norwegian Government indicates an intention to attribute to it. If the article were given the meaning which the Norwegian Government attributes to it, the extent to which American citizens in Norway would be entitled to receive in the matter of internal charges or taxes treatment similar to that accorded Norwegian nationals, would be rendered uncertain. In the course of the discussions which recently took place in the Department regarding the second paragraph you suggested that there be added to the paragraph, the following:
“This paragraph does not apply to charges and taxes on the acquisition and exploitation of waterfalls, mines or forests.”
This addition is acceptable to the Government of the United States.
Article IV
The Legation suggested that the following be added to the second paragraph of Article IV of the original draft:
“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.”
This suggestion is acceptable to the Government of the United States on the understanding that the added part relates only to personal property. To make this clear the word “personal” should, therefore, be inserted before the word “property” in the first line. This additional change is deemed necessary in order to make it clear that the added provision does not relate to real property which is dealt with in the first paragraph of Article IV.
[Page 618]Article VI
The amendment to Article VI proposed in the Legation’s note is acceptable to the United States.
Article VII
The proposal made in the Legation’s note that the words “of a sanitary character” be deleted from the last sentence of the first paragraph of Article VII and that the words “health or” be inserted between “plant” and “life” is acceptable to the Government of the United States.
The Legation also suggested that there be added to the first paragraph of Article VII a provision reading as follows:
“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.”
While the Government of the United States has no objection to adopting this suggestion the addition is not deemed necessary by the Government of the United States because it is considered that the exception established by the proposed addition is already included in the portion of the last sentence of the original draft of that paragraph relating to police laws. If the Norwegian Government deems it important to include the proposed addition in the first paragraph of Article VII it is suggested that it be done by changing the last sentence of the first paragraph to 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 revenue or police laws, including laws prohibiting or restricting the importation or sale of alcoholic beverages or narcotics.”
The suggestion made in the Legation’s note regarding the amendment of paragraphs seven and eight of Article VII of the draft treaty are acceptable to the Government of the United States.
Since the original draft of the treaty was submitted to the Legation on August 13, 1925, occasion has occurred in the course of negotiating with other Governments treaties containing an article similar to Article VII of the draft submitted to your Legation, to introduce slight amendments in paragraph two, four and eight of Article VII. There is enclosed herewith a draft of Article VII revised26 to incorporate the suggestions made in the Legation’s note and to include the changes which the Government of the United States desires to have made in paragraphs two, four and eight of Article VII. The portions of the [Page 619] article which constitute departures from the original article are underscored. It is believed that the effect of the changes in paragraphs two, four and eight which my Government desires made, will be apparent and will be acceptable to your Government.
Article IX
The purposes of the changes in Article IX, proposed in the Legation’s note, were not explained in the note. In discussions which took place at the Department, however, you were good enough to explain that the changes were calculated to procure for the vessels and cargoes of either High Contracting Party within the waters and harbors of the other the same treatment as national vessels in respect to some matters not mentioned in the original draft of Article IX or in any other articles of the treaty. The Government of the United States is particularly anxious that Article IX be so worded that there shall be no misunderstanding by the two Governments as to its meaning. As explained orally to you it is the intention of the Government of the United States to accord Norwegian vessels coming to the United States from any particular foreign port or ports the same treatment as is accorded American vessels coming from the same port or ports, but it is desired to avoid a provision which would be susceptible of the construction placed upon Article VIII of the existing treaty between the United States and Norway under which Norwegian vessels coming to the United States from Norway are accorded rates of tonnage dues intended to apply only to navigation to the United States from a different geographic region specified by Statute.
It is understood that it was your view that your Government would not consider that it would be in a position to demand preferential treatment equivalent to that accorded vessels coming from a particular geographic region for Norwegian vessels coming to the United States from other regions. Subject to your confirming the views of your Government to be as described herein, Article IX as modified by your Government can be considered as acceptable to the Government of the United States.
Articles XIV and XV
In view of the comments made in the Legation’s note regarding Article XIV and Article XV of the original draft, it is felt that it would be advisable to omit both Articles and substitute in place of them a single Article placing commercial travelers on a favored nation basis. The following is suggested as the text of an Article to replace Article XIV and Article XV and to become Article XIV of the Treaty:
“Commercial travelers representing manufacturers, merchants and traders domiciled in the territories of either High Contracting Party [Page 620] shall on their entry into and sojourn in the territories of the other Party and on their departure therefrom be accorded the most favored nation treatment in respect of customs and other privileges and of all charges and taxes of whatever denomination applicable to them or to their samples.
“If either High Contracting Party require the presentation of an authentic document establishing the identity and authority of a commercial traveler, a signed statement by the concern or concerns represented, certified by a consular officer of the country of destination shall be accepted as satisfactory.”
Article XVI
The reference in the Legation’s note to the Barcelona Convention of April 20, 1921, and the suggestion that there be added to Article XVI of the original draft a paragraph to the effect that nothing in the Article shall be construed to be in conflict with the Convention of Barcelona of April 20, 1921, is noted. It is not apparent with what provisions of the Barcelona Convention Article XVI might be regarded as in conflict. The effect of the addition proposed in the Legation’s note would, therefore, be uncertain. Examination of the Barcelona Convention does not reveal provisions establishing obligations on the part of the Norwegian Government as party thereto which would be violated by compliance by the Norwegian Government with the provisions of Article XVI of the original draft. The necessity for the addition proposed in the Legation’s note would, therefore, seem to call for further explanation.
As stated to you orally, a similar question regarding the Barcelona Statute arose in the course of negotiations with another Government and in response to an inquiry as to precisely what reservation that Government sought to make by reference to the Barcelona Statute it was stated that an exception to the Article permitting the Government concerned to adopt the measures contemplated by Article 7 of the Barcelona Statute would meet the requirements of that Government. A specific amendment to Article XVI of the original draft limited to the substance of Article 7 of the Barcelona Statute was thereupon proposed. A counter-proposal slightly modifying the text of the amendment suggested by the other Government was then offered by the Government of the United States. A copy of that counterproposal was handed to you. Slight modifications of language have since been made therein so that the sentence which will probably be adopted now reads as follows:
“The measures of a general or particular character which either of the High Contracting Parties is obliged to take in case of an emergency affecting the safety of the State or the vital interests of the country may in exceptional cases and for as short a period as possible, involve a deviation from the provisions of this paragraph; it being understood that the principle of freedom of transit must be observed to the utmost possible extent.”
The amendment is underscored in the enclosed revised draft of Article XVI.27 Several other slight changes in the Article are indicated by underscoring and parentheses. The purpose and effect of these changes will, it is believed, be obvious. The draft enclosed would be accepted by the Government of the United States as a substitute for Article XVI of the original draft.
Article XVIII
The suggestion made in the Legation’s note that the expression “and not engaged in any profession, business or trade” be inserted after the word “appointed” in the first paragraph of Article XVIII is acceptable to the Government of the United States.
The changes suggested in the Legation’s note regarding the second and third paragraphs of Article XVIII appear to be more extensive in scope than is necessary to accomplish the purpose of the proposed changes. The changes as worded would have the effect of establishing an exception to the right of a court to summon a consular officer as a witness and to the duty of a consular officer to attend a trial as a witness. The Government of the United States agrees with the Government of Norway that it would be undesirable to require a consul to give testimony regarding acts performed by him in his official capacity but it is felt that it would be preferable to provide in the Treaty that a consular officer shall not be required to testify regarding his official acts rather than to provide an exception to the right of a court to summon a consular officer or to the duty of the consular officer to attend as a witness.
It is proposed, therefore, that the second and third paragraphs of Article XVIII be unchanged and that there be added to the Article a paragraph reading as follows:
“No consular officer shall be required to testify in either criminal or civil cases regarding acts performed by him in his official capacity.”
Article XIX
The suggestion made in the Legation’s note that the expression “and not engaged in any profession, business or trade” be inserted after “nationals of the state appointing them” in the last sentence of the first paragraph of this article is satisfactory to the Government of the United States.
As to the suggestion regarding the second paragraph of this article, that a stipulation be included to the effect that the exemption from taxation does not apply to municipal rates levied on real estate, it may be stated that the scope and effect of the proposed change is [Page 622] not clear. The Government of the United States would prefer to omit the entire second paragraph of Article XIX.
Article XX
The Government of the United States has no objection to the addition to this Article as suggested in the Legation’s note, of a paragraph following paragraph two of the original draft of the Article, 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 change suggested in the note of the Norwegian Legation is acceptable to the Government of the United States. The omission of the expression “nationals of the State by which they are appointed” from the second line as suggested by the Legation would seem to necessitate the substitution of the expression “the nationals of the State by which they are appointed” in place of the words “their countrymen” after the word “protecting” in the seventh line of the original draft. The Article would then read as follows:
“Consular officers of either High Contracting Party may within their respective consular districts address the authorities concerned, national, State, provincial or municipal, for the purpose of protecting the nationals of the State by which they are appointed in the enjoyment of their rights accruing by treaty or otherwise. Complaint may be made for the infraction of those rights. Failure upon the part of the proper authorities to grant redress or to accord protection may justify interposition through the diplomatic channel, and in the absence of a diplomatic representative, a Consul General or the consular officer stationed at the capital may apply directly to the Government of the country.”
I shall address a further communication to you regarding the remaining articles of the draft of the treaty on which the Legation commented in the note of December 9, 1927, when the oral discussions which are in progress between you and officers of the Department shall have been completed.
In view of the desirability of completing the negotiations at the earliest possible date, which has been explained to you, I hope you will deem it expedient to forward to your Government the comments made herein without awaiting the receipt of a further communication of this Government in order that the articles on which complete agreement has not been reached may have the earlier attention of your Government.
Accept [etc.]