511.1D1/42
The Secretary of State to the Chargé in France ( Armour )
Sir: The Department refers to its telegraphic instruction No. 327 of October 11, 1929,8 designating Mr. Gordon as representative of this Government to sit in a consultative capacity at the forthcoming conference which is to convene in Paris on November 5, 1929, to consider a draft convention for the protection of foreigners abroad, and submits the following considerations for Mr. Gordon’s guidance.
It is important that the impression should not be gained that the refusal of this Government at this time to become a party to the convention in question is based on a failure on its part to be interested in the subject matter thereof or because it is not in a position [Page 431] to assure to aliens within the jurisdiction of the United States as favorable treatment as is generally accorded by other States to aliens within their confines.
There are at present residing within the United States millions of non-naturalized aliens who not only are as well protected in their persons and property as American citizens, but who also for all intents and purposes are untrammeled in their activities, whether of commercial, educational or professional character. In this connection it should be emphasized that aliens, as well as citizens of the United States, come within the purview of the fourteenth amendment to the Constitution which provides in part that no State shall “deprive any person of life, liberty or property without due process of law nor deny to any person within its jurisdiction the equal protection of the laws”. It may be pointed out in this relation that, with very few exceptions, aliens have been free to exploit the natural resources of the United States; that they have been permitted to engage in commerce and other commercial pursuits, and that even the professions, with the exception of admission to the bar, have been open to them. It is the Department’s understanding that in so far as the legal profession is concerned admission thereto under the laws of most States is usually reserved to nationals of that State.
As you are aware, it has been the general policy of the Federal Government to abstain as far as possible from concluding treaties with foreign Powers, the provisions of which directly affect the police power of the several States. However, in view of the provisions of the fourteenth amendment to the Constitution of the United States, above referred to, of the existing practice of the several States in regard to the treatment of aliens as well as to the provisions of bilateral treaties concluded between the United States and foreign Powers, it may be asserted that in general the rights and privileges of aliens in the United States are as broad as those accorded by any other State to aliens within its jurisdiction.
The Department encloses for your ready reference a copy of the Treaty of Friendship, Commerce and Consular Rights between the United States and Germany9 which, as you know, is serving as a model for the new treaties of this nature concluded by this Government with foreign countries, and your attention is especially invited to the provisions of Articles I, II, III, IV, V, VI, VII, VIII, IX, X, XI, XII, XIII and XIV, which relate particularly to the treatment of nationals of the respective parties in the territories of the other. You will note that except as to real estate, German nationals in the United States in so far as their persons, property and activities are concerned are placed on as favorable a basis as American [Page 432] citizens. Attention is especially invited to the national treatment provided in Article VIII in regard to the taxation of nationals and merchandise of one party in the territory of the other and to the broad privileges conferred upon nationals of each contracting party in Article I of the Treaty.
The Department submitted the League’s draft convention to the Treasury Department, the Department of Justice, and the Labor Department, and it quotes for your information pertinent portions of the replies received to its above mentioned communications.
From the Treasury Department:
“This Department has been unable to determine in many instances the exact meaning of certain of the articles and the commentary has not always made the meaning clear. For example, the question of customs duties is stated to be beyond the scope of the convention but some of the provisions designed to secure absolute freedom of trade seem to be directed to certain of our tariff provisions. The line of demarkation is not at all clear between measures designed to prevent unfair competition and to develop particular industries, which are allowable, and measures intended to favor national products over foreign products, which are not allowable.
“Foreigners who have been admitted to this country are accorded the same fiscal treatment as nationals. Many treaties entered into between the United States and other countries contain provisions to this effect. Nationals who are not admitted to this country are accorded practically the same treatment in so far as income tax is concerned as nonresident citizens of the United States and certain domestic corporations.”
From the Department of Labor:
“It is noted, first of all, that Part III, Chapter VI, declares that the provisions of the present Convention shall in no way affect the freedom of the High Contracting Parties as regards the admission of foreigners or the police measures which the Parties may take in regard to them. That provision is important, as it is consistent with the American view that the regulation of immigration is a domestic question as asserted in the Committee Report on the bill which became the Immigration Act of 1924. The statement in this provision that the Convention shall not affect the freedom of the High Contracting Parties as to police measures which Parties may take in regard to foreigners is hardly clear enough to show that the freedom of the Parties with respect to the deportation or expulsion of foreigners is not to be affected by the Convention. In view of the elaborate provisions relating to the right of resident aliens to carry on business in the territory of a Party to the Convention on an equality, with certain exceptions, with the citizens of such Party, it might be argued that it was not intended by the Parties to the Convention that the residence of the foreigners was to be terminated where it would result in embarrassment to or destruction of their business. It is believed that the freedom to expel or deport should be clearly and expressly recognized in the draft, because even though a subsequent Act of Congress would prevail over the Convention [Page 433] it is a fact that once a construction of a Convention is given in favor of an alien the courts would be reluctant to give an Act of Congress a construction inconsistent with the Convention unless the Act is clear and unambiguous.”
In further relation to this matter, the Department encloses a copy of the American comment on the subject of “Treatment of Foreigners” at the meeting of the International Chamber in Amsterdam, received from the American section of the International Chamber of Commerce.10 While this comment is, of course, not to be considered in any way as an official expression of this Government’s views on the subject, it is believed that the information contained therein relative to the treatment of aliens in the several States will be of interest to the Embassy.
In conclusion, the Department desires to emphasize again the importance of having the position of the Government of the United States in regard to the treatment of foreigners as set forth above clearly understood. Should further information be desired concerning any of the subject matters coming within the scope of the Convention you will, of course, request further instructions by telegraph. The Department desires a full report of the proceedings of this conference, together with any comments which you deem pertinent. Should any points arise which you consider advisable to bring immediately to the Department’s attention you will, please submit them in the form of a telegraphic report. In making your reports the Department requests that you bear in mind the fact that several Departments including the Treasury, Commerce and Labor Departments, all have an interest in the subject matter of the conference and you should, therefore, submit sufficient copies of your reports and any enclosures thereto, to permit their distribution to the above-mentioned Departments.
I am [etc.]
- Not printed.↩
- Treaty signed December 8, 1923; Foreign Relations, 1923, vol. ii, p. 29.↩
- Not printed.↩