711.5421/17
The Secretary of State to the Minister in Switzerland (Wilson)
Sir: The Department refers to the Legation’s despatch No. 1337 of March 5, 1930,13 in regard to the interpretation of the most-favored-nation clause in Article VII of the Convention of Friendship, Commerce and Extradition between the United States and Switzerland, signed November 25, 1850.14
The Swiss Government appears to consider that this most-favored-nation clause entitles Swiss consular officers to privileges accorded to foreign consular officers by the United States in a treaty with some country other than Switzerland, irrespective of a showing by the Swiss Government that the privileges claimed for Swiss consular officers under the most-favored-nation clause are accorded to American consular officers in Switzerland. You may state that this Department has consistently held that the most-favored-nation clause with respect to rights and privileges of consular officers does not embrace unconditionally specific rights and privileges which are granted on the basis of reciprocity to consular officers of third countries, but that the right to enjoy such specific rights and privileges is embraced in the most-favored-nation clause in the event that the country whose consular officers assert such rights or privileges thereunder accords in fact the same rights and privileges to American consular officers in their territories.
The Legation’s despatch was in reply to an inquiry from the Department as to whether American consular officers would be permitted to [Page 1027] receive shares from estates probated in Switzerland for remission under the conditions stipulated in Article 25 of the Treaty of Friendship, Commerce and Consular Rights between the United States and Germany, signed on December 8, 1923.15 The note of March 4, 1930,16 addressed to you by the Swiss Federal Political Department contained the following paragraph:
“The Department takes pleasure in adding, however, that Swiss law, by leaving to the state appointing them the task of regulating their duties in this field, in no way forbids foreign consuls from acting in behalf of their citizens and proceeding to the distribution of funds referred to in Article 25 of the German-American treaty of Friendship, Commerce, and Consular Rights of December 8, 1923.”
This paragraph without the subsequent portion of the Swiss note would, it is believed, have been acceptable as showing that Swiss law met the condition of reciprocity required in order that Swiss consular officers may, by virtue of the most-favored-nation clause in Article VII of the convention of 1850 with Switzerland, receive, in the manner provided for in Article 25 of the Treaty of 1923 with Germany, referred to herein, proceeds of estates probated in the United States, for transmission to non-resident Swiss beneficiaries. A statement is made, however, following the paragraph quoted, that consular officers in Switzerland are called upon to prove in each individual case that the persons in whose name they are acting are legally entitled to receive the funds which they undertake to distribute, and that these consular officers have the right to give receipts.
The latter statements cause some doubt as to whether the Swiss Government considers that American Consular officers in Switzerland would have an unqualified right to receive the funds from estates probated in that country for transmission to non-resident American beneficiaries in the manner provided for in Article 25 of the treaty between the United States and Germany of 1923.
While the Department cannot undertake to say how the courts of this country would construe the provisions of Article 25 of the treaty between the United States and Germany of 1923 it would seem that the court probating the estate in the country in which the consular officer is stationed, would upon all the evidence before it determine who are legally entitled to the proceeds of the estate. While it is assumed that the court would receive and consider evidence from the consular officer on this point, the Department does not consider that the burden of showing who are entitled to receive the proceeds of the estate rests upon him, as might be inferred from the Swiss note.
[Page 1028]The Department interprets Article 25 of the treaty with Germany of 1923 to mean that a consular officer is made eligible so far as concerns the country of his residence to receive funds for transmission as provided for therein, but that whether he may act in this capacity depends upon whether he is authorized to do so by his own Government. The Department does not contemplate authorizing American consular officers in Switzerland to receive for transmission funds from estates probated in that country, but merely desires to determine whether the Swiss authorities would, if called upon to do so, grant to American consular officers in Switzerland the right, as provided in Article 25 of the treaty with Germany, that might be claimed for them to receive funds for transmission if they be authorized by their Government to receive such funds. This Government does not consider that it is necessary to enter into a special agreement with the Swiss Government bearing on the matter dealt with herein as suggested by the Swiss Government.
It is requested that you endeavor to obtain a categorical reply to the Department’s inquiry. If the exercise of the right is not dependent upon a number of conditions you may inform the Department of the nature of the reply briefly by telegraph.
Very truly yours,