711.572/63
The Secretary of State to the Norwegian Minister (Bachke)
Sir: In my note to you of March 23, 1928, I stated that I would address a further communication to you regarding the articles of the treaty of friendship, commerce and consular rights, a draft of which accompanied the Department’s note to your Legation dated August 13, 1925, which were the subject of observations in the Legation’s note to the Department of December 9, 1927. In my note I commented on the observations made by your Legation on the articles of the draft treaty up to and including Article XXI.
Article XXIII
It is observed from the note of December 9, 1927, that your Government regards Article XXIII of the original draft of the treaty as not entirely satisfactory. It seems that your Government does not find the expression “provided the local laws so permit”, at the end of the first paragraph of Article XXIII, acceptable because of the restrictions which are thereby placed on the jurisdiction of consular officers over issues concerning the adjustment of the wages of seamen and the execution of contracts relating to wages.
As has been explained to you the courts of the United States are open to seamen for the enforcement of the laws of the United States regarding wages. It seems that your Government regards the laws of the United States insofar as they relate to the wages of seamen and to remedies in the courts of the United States for the enforcement of those laws as—
- (a)
- contrary to Norwegian legislation on the subject;
- (b)
- not compatible with the right of Norway to exercise jurisdiction on board her own vessels, and
- (c)
- detrimental to the interests of seamen on board Norwegian ships.
In answering the points regarding the first paragraph of Article XXIII, made in the Legation’s note of December 9, 1927, in the order in which those points are stated, I observe that it is not perceived in what respect the laws of the United States applicable, so far as Norwegian seamen are concerned, solely in the territory of the United States, could be contrary to Norwegian legislation. It is not believed that any serious question could be raised as to the supremacy of the laws of a territorial sovereign over the laws of a foreign country which might be intended to have extraterritorial effect. It is the view of the Government of the United States that the mere [Page 624] existence of a difference between the laws of the United States and the laws of Norway regarding the jurisdiction of consular officers over issues concerning the wages and contracts of seamen does not place the laws of the two countries in conflict, having due regard for the limitations which must be placed upon the extraterritorial effect of legislation. In any event the limitation placed on the jurisdiction of consular officers by the expression “provided the local laws so permit” to which your Government takes exception would apply to the jurisdiction of American consular officers in Norway in the same way that it would apply to Norwegian consular officers in the United States. The expression, therefore, does not establish a condition of inequality as between the Government or the laws of the United States and the Government or laws of Norway.
With respect to the second point in relation to the proviso of the first paragraph of Article XXIII, made in your Legation’s note, namely that the application of local laws to matters of wages and contracts of seamen would be incompatible with the right of Norway as a sovereign nation to exercise jurisdiction on board her own vessels, I reply that the Government of the United States does not admit that Norway can claim the right to apply its legislation in the territory of the United States, to the exclusion of the laws of the United States. The proviso to which your Government takes exception would not operate to prevent the submission of issues concerning the adjustment of wages and the execution of wage contracts, to the consular officers of your Government in the United States by masters and seamen of vessels. It would merely concede the operation of the laws of the United States if either the master or seamen should seek to invoke them.
With respect to the third point in respect of the same paragraph, namely that the proviso relating to local laws would be detrimental to the interests of Norwegian seamen, it may be observed that there would be no obligation on the seamen to avail of remedies open to them under the laws of the United States. If Norwegian legislation and action by the consular officers of Norway pursuant thereto would be more advantageous to Norwegian seamen than the legislation of the United States would be in any given case it is improbable that Norwegian seamen would invoke the laws of the United States.
I regret that for the foregoing reasons I do not find myself in a position to accept the suggestion of the Norwegian Government that the words “provided the laws of the vessel’s flag be observed” be substituted for the words “provided the local laws so permit.” I trust that your Government will see its way to accept the first paragraph of Article XXIII as contained in the original draft.
[Page 625]It is suggested in the Legation’s note that there be inserted following the second paragraph of the original draft of Article XXIII an additional paragraph 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.”
The purpose of the proposed addition seems to be to impose on local authorities the obligation to notify a consul in the event that the local authorities exercise jurisdiction with respect to a criminal act committed on board a vessel of the consul’s nationality. The master of a vessel would of course be informed of any incident occurring on board his ship which constituted a criminal act. Inasmuch as the master of a ship has frequent occasion to come in contact with the consuls of his Government it would seem that there would be ample opportunity for the consul to become informed of the proceedings against a person committing an offense on board. In the circumstances I do not deem it necessary or advisable to impose on the prosecuting or judicial authorities of the United States the burden of communicating to Norwegian consuls the notice contemplated by the addition to Article XXIII proposed by your Government.
It is noted that the provision contained in the fourth paragraph of Article XXIII to the effect that a consul may appear in court as an interpreter or agent is not in accordance with Norwegian legislation. The suggestion of your Government that the paragraph be amended by adding after the words “interpreter or agent” the words “provided the local laws so permit” does not serve the purposes for which the provision to which your Government takes exception was originally inserted. The paragraph if thus amended would confer no affirmative right upon a consul. You will recall that it was tentatively agreed in the course of the discussions which recently took place at the Department, that consideration would be given to eliminating the words which follow the word “appointed” in the original draft and to substituting therefor, the following:
“for the purpose of observing the proceedings and rendering such assistance as may be permitted by the local laws.”
The paragraph so amended would be acceptable to the Government of the United States. It would read as follows:
“A consular officer may appear with the officers and crews of vessels under the flag of his country before the judicial authorities of the State to which he is appointed for the purpose of observing the proceedings and rendering such assistance as may be permitted by the local laws.”
Article XXIV
The suggestions of your Government that the expression “without having in the territory of his decease any known heirs or testamentary executors by him appointed” should be omitted from the first paragraph of Article XXIV and that a new paragraph quoted in the Legation’s note, be inserted after paragraph one, have been given consideration. Under the constitutional system obtaining in the United States the matter of administering estates and of prescribing the duties of the local authorities in connection therewith is within the competence of the individual States and not of the Federal Government. It has been the traditional practice of the Executive in concluding treaties to refrain from imposing on the States or local authorities any obligation except such as a proper regard for the division of authority between the Federal Government on the one hand, and the States on the other permit, or which necessity requires. The omission of the expression “without having in the territory of his decease any known heirs or testamentary executors by him appointed” from the first paragraph as proposed in the Legation’s note and the adoption of the new paragraph proposed would entail a departure from the practice hitherto followed by the Executive and an encroachment upon the prerogatives of the Governments of the States and would impose upon local State authorities duties which it is not believed they can reasonably be required to discharge. No Executive has in the past seen fit to incorporate in a treaty provisions such as would result from the amendments to Article XXIV proposed in the Legation’s note.
Several other Governments with which the Government of the United States has recently concluded treaties, proposed the adoption of provisions similar to those which your Government desires to have adopted but the Government of the United States was for the reasons stated in the preceding paragraph unable to accede to their wishes. While I understand the purposes which actuated your Government in proposing the amendments of Article XXIV, I do not feel that I could recommend to the President the adoption of them in a treaty entailing as they do so radical a departure from the practice hitherto followed in the treaties of the United States and the imposition on the State authorities of a duty to concern themselves to so large an extent with the private affairs of individuals. I venture therefore to express the hope that your Government will be disposed to accept paragraph one of Article XXIV as contained in the original draft, without any substantial modifications and will not insist upon the adoption of the new paragraph which it proposed be inserted immediately after that paragraph.
[Page 627]For the reasons developed in the foregoing discussion relating to the first paragraph of Article XXIV and the proposed new second paragraph, I do not deem it expedient to adopt the paragraph regarding escheatment suggested in your Legation’s note.
The suggestion made in the Legation’s note that the initial lines of the second paragraph of Article XXIV be amended to read “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” is acceptable to the Government of the United States.
Article XXV
The new introductory paragraph to Article XXV proposed in the Legation’s note is acceptable to the Government of the United States with the exception of the last sentence thereof which appears to cover in part the substance of the sole paragraph of Article XXV of this Government’s draft. This Government proposes, therefore, that the last sentence of the new paragraph proposed by your Government be struck out and that the Article XXV of this Government’s draft be placed as the second paragraph of that article amended, however, by the insertion of the words “collect and” before “receipt” in the fourth line and by the substitution of the words “for transmission through channels prescribed by his Government to the proper distributees” in place of all that part of the original article which follows the word “statutes” at the end of the ninth line. The entire article will then read as follows:
“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 their mandate to represent them, unless said heirs or legatees themselves have appeared, either in person or by duly authorized representative.
“A consular officer of either High Contracting Party may in behalf of his non-resident countrymen collect and receipt for their distributive shares derived from estates in process of probate or accruing under the provisions of so-called Workmen’s Compensation Laws or other like statutes, for transmission through channels prescribed by his Government to the proper distributees.”
Article XXVI
This article was incorporated in the draft treaty after full consideration by the agencies of the Government of the United States concerned with its provisions.
[Page 628]It is felt that the granting of the right of inspection of vessels to the consular officers of the United States will in some instances expedite the entry of vessels in ports of the United States and will relieve them from delay and inconvenience. It may be pointed out that under the Quarantine Act of February 15, 1893, of the United States,28 American consular officers are required before granting a bill of health to any vessel at a foreign port clearing for the United States to be satisfied that the matters and things stated therein are true and that a vessel clearing and sailing from a foreign port without such bill of health and entering a port of the United States is liable to a fine up to $5,000.
In the course of discussions which took place at the Department you expressed the view that the article might result in delay in the departure from foreign ports of vessels destined for the United States. You suggested that if the Government of the United States was unwilling to omit Article XXVI there be added a provision requiring consular officers to act promptly in exercising the right conferred upon them by this article. This suggestion is acceptable to the Government of the United States. It is proposed, therefore, that the following paragraph be added to the article:
“In exercising the right conferred upon them by this article, consular officers shall act with all possible despatch and without unnecessary delay.”
It is hoped that your Government will see its way to accept the article amended as proposed.
Article XXVII
The Government of the United States is willing to substitute the first paragraph of Article XXVI of the treaty between the United States and Estonia for the first paragraph of Article XXVII of the original draft of the treaty submitted to your Legation with slight modifications. The paragraph thus modified is set forth below with the insertions desired by this Government underscored29 and a proposed omission enclosed in brackets;29a
“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, his family or suite, 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 [Page 629] imported by consular officers, their families or suites during the incumbency of the officers (in office) shall be accorded on condition of reciprocity the customs privileges and exemptions accorded to consular officers of the most favored nation.”
It is believed that the purposes of the changes proposed are obvious.
It is desired that the second paragraph of the original article be retained.
This article if changed by omitting “consular officers … as are its nationals” and by substituting therefor the expression “consular officers de carrière …”, as proposed in the Legation’s note, would not fully serve the purpose for which it was intended. As explained to you orally there are in the consular service of the United States officers who are not consuls of career but who it is believed are entitled to receive the benefits of Article XXVII. For this reason it is desired that the description of the officers contained in the original article be retained.
Article XXVIII
The form proposed in the Legation’s note for the first paragraph of Article XXVIII is acceptable to this Government.
Article XXIX
It is agreeable to the Government of the United States to add at the end of Article XXIX the words “and Svalvard [Svalbard]”. It is not deemed desirable to accept the portion of the addition proposed in the Legation’s note reading “in respect of which the High Contracting Parties accord each other reciprocal most favored nation treatment.” The purpose of Article XXIX is to define the territory in which the Treaty shall be operative and to except the Panama Canal Zone and as amended Svalvard [Svalbard], from the scope of the Treaty. It would be inconsistent with the purposes of the article to write into it any provision regarding favored nation treatment in the Panama Canal Zone and Svalvard [Svalbard].
Article XXX
A term of three years for the duration of the Treaty would be acceptable to the Government of the United States.
As explained to you orally I am willing to accede to the wishes of your Government that the third paragraph of Article XXX of the original draft be omitted from the treaty, hoping that by so doing the completion of the negotiations and the signing of the treaty may be expedited.
With respect to the request of your Government that there be included in the Treaty a special provision relating to Norwegian sardines, [Page 630] I may state that it would be contrary to the policy of this Government and that it is not deemed desirable to incorporate in a treaty, general in character, provisions relating to particular products. Under the present tariff laws of the United States, Norwegian sardines are accorded the same tariff treatment as sardines imported from any other country. Under the most favored nation provision of the Treaty under negotiation such equality of treatment would be continued. There is, therefore, no present occasion for including in the Treaty an express provision on this subject. It is hoped that your Government will not deem it necessary to insist upon this feature.
In conclusion, I desire to express my appreciation of your cooperation and assistance in these treaty negotiations and to express the hope that you can obtain instructions from your Government which will admit of the signing of the Treaty at an early date.
Accept [etc.]