711.542/19

The Minister in Switzerland ( Wilson ) to the Secretary of State

No. 415

Sir: With reference to my despatch No. 387 of April 4, 1928, and previous correspondence relative to a treaty of Friendship, Commerce and Consular Rights between the United States and Switzerland, and to the draft of a treaty proposed by the Swiss Government, I have the honor to report that with a view to elucidating the Swiss viewpoint on a number of articles, I arranged with M. Dinichert, Chief of the Division of Foreign Affairs of the Federal Political Department, to hold a conference yesterday between himself and his legal advisers on the one hand, and myself, Mr. Moffat and Mr. Heath, Consul in Berne, on the other, in which he would explain any points on which I felt his draft was not clear. I took care to explain, and M. Dinichert understood, that this conference should be regarded by neither as in the nature of a negotiation or as prejudicing in any way any stand which the American Government might take in relation to the Swiss draft. The points I raised and M. Dinichert’s explanations follow seriatim.

(1) I inquired the reason for the change made in article 1 of the Swiss draft, to read “nothing contained in the treaty shall be construed to affect existing statutes or regulations in relation to the immigration, sojourn and residence of aliens”22 whereas the American draft only specified existing statutes in relation to the immigration of aliens.

M. Dinichert explained that from the Swiss point of view the inclusion of these extra words was necessary. He maintained that both America and Switzerland desired to accord such facilities of entrance and residence to citizens of the other state as did not prejudice a legitimate desire to control the presence of foreigners. In America this was done by means of the immigration law which severely restricts the number of Swiss who may enter the United States. In Switzerland the situation was taken care of by cantonal legislation [Page 920] and regulations affecting the residence of foreigners. Americans may enter Switzerland freely but may only obtain residence permits at the discretion of the cantonal authorities. He concluded that this provision was not an affair of reciprocity but an affair of necessity; and that the control of residence was entirely a cantonal matter and that the Federal Government was not in a position to modify it.

(For the Department’s information I would point out that the Swiss reservation has the effect of vitiating the freedom of residence in Switzerland. I am informed by the Consul-General at Zurich, for instance, that in his jurisdiction only one case is known of an American who was granted a permanent “niederlassung”. Thus the Swiss are in the position of denying reciprocal rights of residence, particularly permanent residence. An American visa granted to a Swiss enables him to make definite plans and to count definitely on certain privileges: the Swiss right of entry, on the other hand, accords only temporary rights of problematical duration.)

(2) I inquired of M. Dinichert whether the general provision in the Swiss draft (article 2) covering freedom of worship embraced our conception of its details as found in our article 5. M. Dinichert replied that the Swiss draft aimed at covering essentially the same points. Individual freedom of conscience was clearly guaranteed by the Swiss draft and Americans enjoyed the same rights as their own citizens. For both Swiss and foreigners religious meetings and activities must conform to laws or regulations governing public gatherings, preservation of public morals, etc. He said that of course proselyting was less clearly covered. This again is subject to the rulings of the cantonal authorities but, basically, an American would be allowed to carry on the same missionary work as would be allowed to a Swiss in any given canton. In any event an American, if his missionary activities were objected to under the interpretation of cantonal regulations by the local authorities, was assured of the right to benefit by Swiss law and in this particular province the rights of the individual are strongly protected.

(3) I inquired of M. Dinichert whether the provisions against peddling and hawking contained in the Swiss draft, article 2, could be construed to curtail the rights of commercial travelers. He replied emphatically not. The reservation against peddling and hawking is found in virtually all Swiss treaties concluded during the past 50 years and aims at forbidding any attempt of a foreigner to sell his wares at a residence. Commercial travelers, on the other hand, attempt to sell their wares to business men at their places of business, and their activities will be dealt with in the draft commercial treaty which will be handed to us later.

(4) I inquired whether the prohibition found in the Swiss draft; article 2, against foreigners exercising the professions of notary or [Page 921] lawyer would prevent the association of American with Swiss lawyers provided that the latter did all court work and apposed the necessary seals. (This system, for instance, is followed in Japan.) M. Dinichert answered that the regulations regarding lawyers were cantonal and varied in severity from the Canton of Schwyz, which had practically no regulations on the subject, to the Canton of Geneva, in which they were the most severe. In nearly all cases foreign lawyers are forbidden to enter the courts except when accorded permission in an exceptional instance to argue a case with which they are thoroughly familiar. He believed that American lawyers could be partners of Swiss lawyers under the circumstances I mentioned and agreed to examine this point further.

(5) I pointed out to M. Dinichert that the Swiss phrase found in article 2 and elsewhere throughout his draft reads “shall be treated upon the same terms as nationals of the most favored nation” and omits the American phrase ‘or which may be granted.’ M. Dinichert insisted that this was merely a difference in phraseology, that we had the same thought in view and indicated that there would be no objection to including the words in question.

(6) I inquired of M. Dinichert whether the permission granted in the Swiss draft, article 2, to Americans to engage in any kind of … “professional, manufacturing, or commercial activity”23 was not in fact vitiated by the cantonal control of sojourn and residence. He replied that their draft does not accord aliens the juridical right to engage in any legitimate occupation, except in such cases as permanent residence has been granted by a canton. For instance, widespread unemployment, a lack of adequate housing facilities, or similar serious reasons would amply justify the cantonal authorities in refusing residence permits to an American. Many cantons now refuse residence permits to those desiring to work as domestic servants. However, he wished to assure me that as a practical matter this prerogative of the cantonal authorities would not be abused.

(For the Department’s information, I am informed that, according to usage in certain cantons, particularly Zurich, the police possess and exercise unlimited discretionary powers regarding the establishment by a foreigner of business, and regarding the employment of help, the governing principle being that no foreigner can operate if a Swiss is capable of doing similar work. In practice therefore the Swiss draft deprives an American in one line of what is granted in another).

(7) I inquired of M. Dinichert just what was meant by the word “taxe” found in article 3, Swiss draft. He replied that the word “taxe” conveyed the thought of a remuneration to the state for a specified service. It can unquestionably be translated by the English word “fee”.

[Page 922]

(8) I inquired of M. Dinichert the purpose of including the reservation “provided they are being subject to legitimate usage”24 in regard to the prohibition of domiciliary visits found in Swiss draft, article 4 (American draft article 3). He explained that the police in Switzerland were empowered, on serious suspicion of the illicit use of a building, to enter the premises; if the suspicion were found to be justified nothing could be said, but if the police were mistaken some recourse was in order. However, he volunteered the statement that the inclusion of this reservation in its present form was of dubious wisdom and might be erased. He explained that what the Swiss were after was to give to foreigners in this respect the same rights and privileges as were granted to their own nationals.

(9) I inquired of M. Dinichert why the Swiss had included the words “in advance”24 in their draft in regard to compensation for the seizure or use of property. He explained that there were special provisions of Swiss legal procedure to enable the swift determination of the value of property seized or used. He added, however, that as he recognized that this condition might not hold in all countries he would withdraw this phrase providing that no other nation could, under the most favored nation clause, obtain privileges the Swiss did not wish to accord. This point would be given careful study.

(10) Relative to article 5 of the Swiss draft (American draft article 6) I did not ask M. Dinichert for any illumination since our drafts were so widely divergent that it would not appear that the Swiss text offered a satisfactory basis on which to begin negotiation. M. Dinichert took occasion to state that on the question of dual nationality they had found little difficulty with other countries since a clear principle had been followed; namely—in cases of dual nationality each country recognized that when such of its citizens as possessed dual nationality were within the territory of the other country they were subject to that other country’s jurisdiction, and were, for the duration of their sojourn, regarded as its nationals. Here I offered the suggestion that apart from the legal principle involved such an arrangement would work serious hardship to certain American citizens who were born in the United States of Swiss naturalized parents or were grandsons of such parents, who returned to Switzerland in complete ignoranee of the fact that they were there regarded as Swiss citizens. This idea appeared to be entirely new to M. Dinichert and his advisers and he stated that it was one to which they would have to give careful consideration as it was certainly not their intention to work undue hardship by their application of law.

[Page 923]

(These two articles, the Swiss and ours, appear to raise five important questions as follows:

1
–dual nationality
2
–military service in time of peace
3
–military service in time of war
4
–military taxation in time of peace
5
–military taxation in time of war.

It would appear advisable if we take up this question at all that all phases of it should be covered.

(In this connection I invite the Department’s attention to my despatch No. 387 of April 4, page 3, relative to the conversation which I had with Mr. Motta. In the light of this conversation the Department may feel it advisable to draft another text. I shall refer again to this matter in a summary which I shall append to this despatch.)

(11) I inquired of M. Dinichert why the Swiss draft, article 7, (American draft article 9) did not accord juridical status to corporations not for pecuniary profit. He replied that he wished to give this question further study, that he did not wish to refuse such corporations certain rights but that such rights should be carefully limited.

(12) I inquired of M. Dinichert why the American phraseology regarding corporations which have been or may hereafter be organized was omitted and the text “which have been duly organized” substituted. He explained that this was a question of phraseology that in this respect the intentions of the two drafts were identical.

(13) I inquired of M. Dinichert the general reasons why the Swiss draft was so much less liberal than the American draft in the treatment of consular officers. He replied that several conditions of fact must be recognized: (1) the jealousy of the cantons in maintaining their prerogatives and the inadvisability of the Federal Government opposing their wishes; (2) the desire of the Swiss government to see a general treaty negotiated regarding diplomatic and consular privileges and immunities. (The Swiss Government, for instance has submitted its views to the League of Nations which is studying the advisability of submitting such a project to the Powers). They therefore felt disinclined to commit themselves in any save a very restricted way on this point for as long a period as would be covered by the present treaty; (3) a desire to conform to the Swiss view of what is the recognized “modern practice in limiting privileges and immunities of consular officers”; (4) a fear that a more liberal treatment granted consular officers would promptly be followed by demands for more liberal treatment by the 600 or more exterritorial officials of the League of Nations in Geneva.

(14) I inquired of M. Dinichert as to the reasons why the Swiss would not grant exemption from taxation for real property owned by the United States Government and used for government purposes. [Page 924] He answered that this would be absolutely impossible; that the cantons were sovereign in fiscal matters and that as a practical measure it would not be possible for the Federal Government to obligate the cantons by concluding a treaty granting this immunity. For instance, in the canton of Berne special authorization must be obtained from the canton for a foreign power to purchase land. He went on to explain that the federal government would not hesitate to intervene and tell a canton that its sovereignty was limited by international law, but that in the matter of government owned land and buildings international practice was much divided and no rule of international law could be quoted to cover the situation. (I should appreciate information as to the accuracy of this statement). He did explain, however, that such property would be exempt from federal taxation (the war tax for instance), even while remaining subject to cantonal taxation.

(15) I inquired of M. Dinichert why they did not include in the text of their draft even the free entry to consular officers for their first installation, a privilege which they grant in practice. He replied that after a great deal of negotiation and many preliminary difficulties the Federal Council had issued an arrêté dated September 26, 1927, explanatory of the recent customs law, and that this marked the ultimate limit to which the federal government could go. There was an informal understanding that the Political Department would not ask Parliament to grant further concessions in return for parliamentary approval of this arrêté. Experience has proved that the Political Department can get more favorable treatment for consular officers by a certain elasticity in the interpretation of the law, than by too hard and fast a ruling by means of a treaty. He explained that Switzerland could not grant free entry for consular furniture or supplies nor could it obtain exemption from income tax for any non-commissioned personnel excepting the “chief clerk.” In case that title did not exist in a foreign service each consul was authorized to select one employee who would be regarded by the Swiss Government as possessing the privileges of a “chief clerk.”

(16) I inquired why the Swiss draft made no distinction between procedure to be observed by consular officers as between civil and criminal cases. He replied that such a distinction was not logical. If a Consul can be imprisoned, why should he be exempt from testifying? If he is not entitled to the greater exemption, why should he be for the smaller? On the other hand, M. Dinichert went on to explain that while a consul would always have to appear, subject to a postponement of his hearing, he could not be required to testify regarding official or political matters. He claimed that this viewpoint was in accord with more modern consular treaties, more particularly [Page 925] the recent treaties concluded between France and Czechoslovakia25 and France and Poland.26

(For the Department’s information I understand that Switzerland now has treaties with Portugal and Italy, exempting their Consuls from the necessity of testifying by which under our treaty of 1851 [1850] we may benefit by virtue of the most favored nation provisions.)

(17) I asked M. Dinichert whether the denial of the right of Consuls to take depositions was general in practice. He replied that Switzerland refuses such a privilege to the representatives of all nations.

(I gained the impression that his objection to depositions was based on the fear that they might be used in Swiss courts and that he had a less rooted objection to depositions taken for foreign use exclusively.)

(18) I inquired of M. Dinichert just what was meant in the final protocol of the Swiss draft by the expression “privileges to be obtained by virtue of an award in arbitration or international judicial settlement.”27 M. Dinichert explained that the Swiss Government had of late been much preoccupied by a possible repugnance between the principle of obligatory arbitration and the general use of the most favored nation clause, both of which individually meet with the strongest approval of the Swiss Government. For instance, Switzerland has a treaty with country A on a certain point giving privileges to which twenty other countries are entitled by virtue of the most favored nation clause. Supposing that a dispute should arise as to the interpretation of this privilege and an arbiter should decide against the Swiss thesis. If a provision such as that contained in the final protocol of the Swiss draft were not included, Switzerland would then be obligated to give to 20 nations a privilege she did not intend to accord even to one. It is too great a risk, and unless some such clause can be concluded in future treaties it will be necessary for Switzerland to abandon either its policy of concluding treaties of obligatory arbitration, or of concluding treaties containing a wide use of the most favored nation clause.

There are certain important points which are not mentioned in the Swiss draft, namely, the rights of our Consuls in relation to estates of deceased American citizens including rights provided under our articles 20 and 21. Also the questions of dual nationality and the interpretation of domicile raised in my No. 387, above referred to.

Until we are clear as to the Swiss views on these points I do not feel in a position to give a definite recommendation as to this Swiss [Page 926] project. However, I venture to suggest for the Department’s consideration, that at present writing the Swiss are offering us no more, and perhaps somewhat less, than we are obtaining under the Treaty of 1851 [1850] and the most favored nation clause included therein. (I have pointed out above that their practice as to consular privileges is more liberal than their draft proposes to accord us). The conversation with M. Dinichert and his advisers strengthened a doubt which was already latent in my mind as to the advisability of going further in negotiation of this treaty. As I stated above, however, I believe that we must reserve judgment until we find just what is in their minds on the points which we consider important.

I have [etc.]

Hugh R. Wilson
  1. Not exact quotation of Swiss draft (translation); cf. p. 902.
  2. Cf. p. 902.
  3. Cf. p. 903.
  4. Cf. p. 903.
  5. Consular convention, signed June 3, 1927; League of Nations Treaty Series, vol. cxxxi, p. 177.
  6. Consular convention, signed Dec. 30, 1925; ibid., vol. lxxiii, p. 265.
  7. Cf. p. 908.