The Secretary of State to the Minister in Switzerland (Wilson)
Sir: The Department has received your despatch No. 1880 of February 5, 1931, requesting that further consideration be given to the question whether 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, should be interpreted as conditional.
Prior to the negotiation of the Treaty of Friendship, Commerce and Consular Rights between the United States and Germany, signed on December 8, 1923, it was the general practice of this Government to regard the most-favored-nation clause in treaties to which it was a party as conditional, regardless of whether the clause related to rights of consular officers or commercial matters. Beginning with the negotiation of the treaty of 1923 with Germany this Government adopted the unconditional form of the most-favored-nation clause as regards commercial matters but there was no change of policy with respect to the interpretation of the most-favored-nation clause as applied to the rights of consular officers.
The Legation raises the question whether, in view of the circumstances which led to the denunciation of Articles VIII to XII inclusive of the treaty with Switzerland of 1850, it may not be possible that the negotiators of the treaty understood that the most-favored-nation clause in Article VII relating to consular officers would be unconditional in its application. The Swiss Government was able to show that the negotiators of the treaty of 1850 understood that the most-favored-nation clause relating to Commerce in certain articles of the treaty was to be regarded as unconditional in its application, and the insistence by the Swiss Government on this interpretation finally led to the termination of Articles VIII to XII inclusive upon notice given by the Government of the United States on March 23, 1899.18 The Department’s records in regard to the negotiation of the treaty with Switzerland of 1850 have been examined, but it has not been found that there was an understanding on the part of the negotiators that the most-favored-nation clause relating to consular officers in Article VII should be regarded as unconditional in its application.
You refer to a letter dated January 5, 1852, from the Swiss Federal Council to Mr. A. Dudley Mann, Special Agent of the United States, in which the Federal Council referred to a statement, said to have been made by Mr. Mann, that the most-favored-nation clause in Article VII would necessarily have the effect of giving to consuls and vice consuls [Page 1032] 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 right by the law and customs or by the practice of such States or Cantons.
As stated by you, this is obviously not a direct declaration of unconditional most-favored-nation treatment. While, according to the Swiss Federal Council, the American Agent referred to a general right that could be asserted by the consular officers of either country, under certain conditions, there is nothing in the statement quoted to show whether the American Agent had in mind that a consular officer of either country could, under the most-favored-nation clause in Article VII, claim the right to act as administrator in the other country without the necessity of showing that the authorities of his own Government would accord a similar right to consular officers of such other country.
In the absence of information as to the exact nature of the declaration which is said to have been made by the American Agent and as to what may have been the understanding between the negotiators of the two Governments regarding the right of consular officers to claim administration of the property falling to their absent nationals, the Department could not, in view of its long established policy of regarding the most-favored-nation clause concerning rights of consular officers as conditional, assume that in the negotiation of the Treaty with Switzerland of 1850 it was the intention of this Government that the most-favored-nation clause in Article VII should be regarded as unconditional in its application.
You state that the language of Article VII of our Treaty with Switzerland of 1850 does not seem to make most-favored-nation treatment subject to the condition of reciprocity and that consequently, in the absence of evidence to the contrary, the Swiss Government’s contention, as expressed in its note of March 4, 1930, would not seem to be without foundation.
While it is true that Article VII does not contain language indicating definitely whether it was the intention of the contracting parties to regard the most-favored-nation clause as conditional in its operation, neither does the Article contain language which could be construed as definitely showing that it was intended that the most-favored-nation clause in this Article should be given an unconditional application. The most-favored-nation clause regarding consular officers in Article X of the Treaty of Commerce and Navigation between the United States and Austria-Hungary of August 27, 1829,19 is the same as the clause in Article VII of the Treaty between the United States and Switzerland of November 25, 1850. In a case arising in [Page 1033] the Department of State in 1846, only a few years before the Treaty with Switzerland was signed, the Department regarded the most-favored-nation clause regarding rights of consular officers in Article X of the Treaty with Austria-Hungary of 1829 as being conditional in its operation.
A claim was made by the Austrian Chargé d’Affaires for the benefit of the stipulation in the treaties between the United States and Russia and certain other countries conferring upon consuls the power to hear disputes between the masters and crews of vessels. In a note dated May 18, 1846, the Department made the following statement:
“Seeing that the right now under consideration, where it can be claimed under a treaty wherein it is expressly conferred is, in every such instance, given in exchange for the very same right conferred in terms equally express upon the consuls of the United States, it cannot be expected that it will be considered as established by the operation of a general provision which, if it were allowed so to operate, would destroy all reciprocity in this regard, leaving the United States without that equivalent in favor of their consuls, which is the consideration received by them for the grant of this right wherever expressly granted.” (Mr. Buchanan, Secretary of State, to the Chev. Hülsemann, May 18, 1846, MS. Notes to German States VI, 130.)20
Article X of the Treaty between the United States and the Hawaiian Islands signed December 20, 1849,21 less than a year before the signing of the Treaty between the United States and Switzerland November 25, 1850, contains the same kind of most-favored-nation clause with respect to the rights of consular officers as is found in Article VII of the Treaty of 1850 with Switzerland. In an opinion rendered on June 26, 1866,22 the Attorney General of the United States held that the American Consul at Honolulu had, by virtue of the most-favored-nation clause of Article X of the Treaty between the United States and the Hawaiian Islands of December 20, 1849, the same jurisdiction over differences between American citizens occurring on American merchant vessels as was conferred upon French consuls with respect to French nationals on board of French vessels by a treaty between the Hawaiian Islands and France.23 It appears that in this case a judge of a court in the Hawaiian Islands had ordered the discharge of a seaman after the American Consul had held that [Page 1034] the seaman had been lawfully shipped and that there was no ground for his discharge.
On July 3, 1866, the Department of State transmitted a copy of the Attorney General’s opinion to the American Minister Resident at Honolulu for his guidance in any representations he might make in the case to the Hawaiian Government.24 (2 MS. Instructions, Hawaii, 144.) When the case was taken up with Hawaiian Government on the basis of the Attorney General’s opinion the Hawaiian Government took the position that the most-favored-nation clause in Article X of the Treaty of 1849 between the United States and Hawaii conferred upon American consular officers the right to claim jurisdiction by virtue of the Treaty between Hawaii and France only in so far as the right claimed for American consular officers would be accorded to consular officers of Hawaii in ports of the United States.
The note of the Hawaiian Government was referred for consideration to the Examiner of Claims for the Department of State, a position corresponding to the present title of Solicitor, who made the following statement in an opinion in which he concurred in the view of the Hawaiian Government:
“They [the Hawaiian Government]24a hold that the powers granted to French consuls are entirely depended upon the allowance by France of similar powers to the Hawaiian consuls in French ports; that the clause is a reciprocal one, and that the ‘parity’ clause in our treaty only authorizes us to claim the jurisdiction for our consul which is granted to those of France, upon the same terms and conditions, viz., that of conceding to Hawaiian consuls the same rights in our Ports.”
“I think the Hawaiian Government is right in this construction of our treaty and that our own practice is conformable to that construction. …”25
“The favor granted by Hawaii to France is granted in consideration of a reciprocal favour. We are put, I think, on the same footing, when we are told that* can entitle our consuls to the privileges of French consuls by granting to Hawaiian consuls in the United States what France has granted to them.” (Memorandum of the Bureau of Claims of April 19, 1867—1 So. Op. 418)
Your attention is also invited to an instruction dated May 9, 1867, to the American Consul at Strasbourg in which the Department said:
“The ‘most-favored-nation’ clause has not been construed by this Government as entitling it or those nations with whom it has treaties to the benefit of exceptional provisions made in behalf of a particular nation upon special consideration, as of reciprocity. Our consuls in Austria will be entitled to all the new privileges granted to French [Page 1035] consuls only when we shall extend similar privileges to Austrian consuls in this country. In other words we are to be favored as France has been and on the same conditions, that of giving reciprocal privileges.” (44 Despatches to Consuls, Volume 13, page 253.)
The Legation’s attention is further invited to an instruction sent to the American Minister at Riga, Latvia, as late as July 10, 1928,26 in which the Department interpreted the most-favored-nation clause in regard to customs privileges and exemptions in Article XXVII of the Treaty of Friendship, Commerce and Consular Rights between the United States and Latvia, signed on April 20, 1928.27 In this instruction the Department made the following statement:
“I desire to point out that it is and has long been the policy of this Government to construe the most favored nation clause in respect to consular privileges and immunities and in particular in respect of fiscal concessions to consular officers as conditioned on reciprocity.
“The condition of reciprocity has been insisted upon by this Government in instances in which foreign Governments have relied upon a most-favored-nation provision to obtain in behalf of their consular officers in the United States the benefit of the particular privilege of free entry in the treaty between the United States and Germany.
If you will inform the Swiss authorities of the views of the Department as contained in its instruction No. 1239 of January 15, 1931, and can obtain from the Swiss Government assurances that it will accord to American consular officers the right to receive funds from estates in Switzerland, for transmission in the same manner that the right is accorded to American consular officers in Germany by Article XXV of the Treaty of Friendship, Commerce and Consular Rights between the United States and Germany of 1923, if American consular officers should at any time be authorized by their Government to exercise such right, the Department will consider that consular officers of Switzerland in the United States are entitled to the same right. If the Swiss Government will give such assurances it will be considered that reciprocity has in fact been established under Article VII of the treaty with Switzerland of 1850, and the Department will not in that event insist upon reaching a definite agreement with the Swiss Government at this time in regard to a general interpretation of the most-favored-nation clause in Article VII.
On April 4 last Mr. Etienne Lardy, Counselor of the Swiss Legation, called at the Department to discuss the note in regard to the interpretation of Article VII which was addressed to your Legation by the Swiss Federal Political Department on March 4, 1930. A copy of a [Page 1036] memorandum of the conference with Mr. Lardy is enclosed for your information.28
Very truly yours,
- Foreign Relations, 1899, p. 756.↩
- Miller, Treaties, vol. 3, p. 507.↩
- Also printed in John Bassett Moore, A Digest of International Law, vol. ii, p. 301.↩
- Miller, Treaties, vol. 5, p. 591.↩
- 11 Opinions of the Attorney General 508.↩
- Treaty of Friendship, Commerce, and Navigation, signed October 29, 1857, at Honolulu. For English text, see Treaties and Conventions concluded between the Hawaiian Kingdom and Other Powers since 1825 (Honolulu, “Elele” Book, Card and Job Print., 1887), p. 57; for French text, see British and Foreign mate Papers, vol. l, p. 378.↩
- For Department’s communication of July 3, 1866, see Foreign Relations, 1866, pt. 2, p. 488.↩
- Brackets appear in the original.↩
- Omission indicated in the original.↩
- Apparent omission. [Footnote in the original.]↩
- Foreign Relations, 1928, vol. iii, p. 224.↩
- Ibid., p. 208.↩
- Not printed.↩