The Minister in Switzerland (Wilson) to the Secretary of State
[Received February 26.]
Sir: I have the honor to acknowledge the receipt of the Department’s instruction No. 1239 of January 15, 1931, in regard to the interpretation of the most favored nation clause in Article 7 of the Convention of Friendship, Commerce and Extradition between the United States and Switzerland, signed November 25, 1850. I am directed to endeavor to obtain from the Swiss Government a categorical reply in connection with the Department’s contention that Swiss consular officers in the United States might be permitted to exercise the functions specified in Article XXV of the Treaty with Germany, of December 8, 1923, only on condition that American consular officers in Switzerland are permitted to exercise like functions. While the Swiss Government, in its note of March 4, 1930, expressed its willingness to allow American consular officers to perform such functions upon the completion of certain requirements, it let the inference be drawn that the most favored nation provision in Article 7 was not subject to reciprocity. There is thus created a clear issue [Page 1029] regarding the scope and extent of the treatment to be accorded by one country to the other by virtue of the most favored nation provision in Article 7.
A recollection of past events in the treaty relations between the United States and Switzerland has prompted me to withhold compliance with the Department’s present instruction until it has given further consideration to certain points which I submit. I refer in particular to the circumstances which led to the denunciation by the United States of Articles 8, 9, 10 and 12 of our Treaty of 1850 with Switzerland.17 This denunciation was made as a result of Switzerland’s claim to the benefits of certain privileges accorded to France by virtue of a reciprocity treaty. In the course of the controversy, Switzerland proved to the satisfaction of the United States that it was the intent of [that?] the most favored nation clause should be subject to no condition. (Please see Moore’s Digest, Volume V, page 283, paragraph 765).
Being in doubt as to whether this intent of the negotiators was applicable to all the articles of the Treaty, I obtained permission from the Political Department to consult the minutes of the negotiations leading to the conclusion of the Treaty. The pertinent archives in the Political Department, however, are in manuscript and, for the most part, in old German script, which made perusal difficult. I was unable to obtain any such definite assertion as Moore’s Digest postulates. The nearest approach I could find was in a letter dated January 5, 1852, from the Federal Council to Mr. A. Dudley Mann, Special Agent of the United States. One paragraph reads as follows:
“And if we do not insist on the insertion of a clause authorizing expressly the respective consuls to claim the administration of property falling to absent nationals, it is because on the one hand you, Mr. Special Agent, declared to our delegates that such a provision did not exist in any treaty between the United States and other Powers, not even with Great Britain, and, on the other hand, because the clause of Article 7 which we are discussing, in stating that ‘Consuls and Vice-Consuls of their own appointment, who shall enjoy the same privileges and powers, in the discharge of their duties, as those of the most favored nation’ will necessarily have the effect of giving to the Consuls and Vice-Consuls the right to claim the administration of property falling to their absent nationals in the States and Cantons where Consuls of other nations may be admitted to this previously by the law and customs or by the practice of such States or Cantons.”
This is obviously not a direct declaration of unconditional most favored nation treatment, but would tend to show that such an interpretation [Page 1030] was already in the minds of the Swiss Government, and apparently unchallenged by our representative, at such an early date.
I trust that the Department will approve of my withholding immediate compliance with its instruction No. 1239 for the two following reasons:
- The language of Article 7 of our Treaty with Switzerland of 1850 does not seem to make most favored nation treatment subject to the condition of reciprocity. Consequently, in the absence of proof to the contrary, the Swiss Government’s contention, as expressed in its note of March 4, 1930, would not seem to be without foundation.
- Absence of more definite information as to the extent of the intent of the negotiators of the Treaty of 1850. It is possible that in the Department’s records there can be found a clearer statement of the understanding of the negotiators regarding the most favored nation clause as appearing in Article 7. In any case, it appears to me that the incidents of 1898, in so far as I am aware of events at that time, throw a certain doubt on the soundness of our contention.