Foreign Relations of the United States Diplomatic Papers, 1936, Europe, Volume II

711.652/65a:

The Secretary of State to the Ambassador in Italy (Phillips)¹¹

Washington, September 8, 1936.

Sir: There is enclosed herewith the draft text of a proposed treaty of friendship, commerce and navigation between the United States and Italy.¹² It is requested that, after you have presented your credentials to the Italian Government and assumed your post, you take advantage of an early opportunity to communicate this text to the appropriate official of the Foreign Office with a statement setting forth the desire of this Government that it be accepted and that it replace the existing treaty of commerce and navigation between the two countries, concluded February 26, 1871, as amended in respect of Article III thereof by the treaty signed February 25, 1913.¹³

Before taking up the new treaty, however, it is desired, unless you find some serious reason for avoiding such procedure, that the required time for notice of termination of the treaty of 1871 should begin to run without further delay. Indeed, as you are well aware, the termination of the old treaty is the central theme in the Department’s policy in this matter, rather than the conclusion of the new treaty, though of course a new and adequate treaty is genuinely important from the point of view of protecting American interests and building up international trade.

The Department is impressed with the desirability of at once approaching the Italian Government with a proposal that the two Governments subscribe to a joint declaration that the treaty of 1871 shall terminate on a date to be agreed upon, not more than a year from the present month. The Department feels that you may appropriately give the Italian Government to realize that a refusal on its part to join in such a statement will promptly result in unilateral notice of termination on the part of the United States. The Department hopes you will perceive no obstacles to the course just outlined.

The treaty of 1871 is clearly obsolete. The economic life and conditions of the respective countries and of the world at large have changed fundamentally. Not only is the existing treaty obviously inadequate to govern the economic relations between the United States and Italy today, but actual instances of its inadequacy have arisen and tend to multiply. There would seem to be no necessity, after a lapse of sixty-five years, to argue the question whether a new treaty is needed by two advanced commercial and industrial states.

As you are well aware from your study and discussion of this subject in the Department, there are two particular reasons why this Government desires the termination of the treaty of 1871.

In the first place, notwithstanding the provisions of that treaty for most-favored-nation treatment, the commerce of the United States is now being discriminated against in ways that are definitely harmful to Americans who desire to trade with Italians. Since the most-favored-nation clause remains legally in effect, this Government feels restrained from denying to Italy, as would otherwise be appropriate under the Trade Agreements Act (Act of June 12, 1934 to amend the Tariff Act of 1930¹⁴), the reductions in its import duties which are being effected by successive trade agreements with various countries. Needless to say, this Government would greatly prefer not to withhold from Italy equality in its customs houses, but it wishes to be free to use all reasonable weapons to combat what it regards as flagrant treatment of its people’s commerce in Italy. It desires a treaty containing a most-favored-nation section, such as the articles bearing on the subject in the draft text transmitted herewith, which it can count upon to bind Italy to accord treatment to American commerce that is reciprocally equal and comparable to the treatment it wishes to continue to accord to the commerce of Italy.

In the second place, this Government, in the pursuit of its program of maintaining peace in the world and of protecting its people, as far as possible, from being drawn into war, desires entire freedom to prohibit trade in the implements of war and, in war time, to prohibit any trade that might prolong the continuance of war. In view of the fact that, under the treaty of 1871, it may not be in a position fully to carry out such a policy in respect of Italy, though Italy be a warring power, without likewise invoking prohibitions in respect of all other powers, though all but one of them be at peace and all of them be peaceably inclined, this Government desires to replace the treaty of 1871 by a treaty drafted with this vital matter kept constantly in mind.

Naturally this Government would prefer to have a new treaty come into force at the instant the old treaty terminates. But more than a year may elapse before a new treaty is negotiated and ratified. The Italian Government may prolong negotiations unnecessarily or, having signed a treaty, delay ratification. Controversies may occur respecting the approval of the treaty here. Accordingly, there seem to be vital reasons for arranging that the time necessary for notice of termination begin to run in the very near future. Earnest endeavor should be made to complete the new treaty within the year. Knowledge of the impending termination may afford a touch of realism useful in obtaining expeditious consideration of this subject by the Italian Government.

The accompanying draft follows lines with which you are familiar. Beginning with the treaty of December 8, 1923, with Germany, this Government has entered into a series of treaties of friendship, commerce and consular rights with Austria, Estonia, Finland, Honduras, Hungary, Latvia, Norway, Poland and El Salvador, copies of which are enclosed for your possible convenience.

It has been the preoccupation of American negotiators to preserve a maximum of uniformity in the texts of these treaties. Necessarily, however, a large number of minor differences have appeared, both to meet the needs of other governments and to take advantage of improvements suggested by departmental draftsmen.

In preparing the enclosed draft text of a treaty with Italy, the treaty with Norway (signed June 5, 1928, effective September 13, 1932)¹⁵ was used as a model. It is one of the latest of the series of treaties referred to. Numerous variations from it are, however, found in the draft prepared for negotiation with Italy.

In view of the fact that the present proposed treaty is to deal with commerce and navigation and not with consular rights, the articles on consular rights in the treaty with Norway are, of course, ignored. The Department is at work upon a separate consular convention, which it may later request you to propose to the Italian Government to supersede the present consular convention signed May 8, 1878,¹⁶ as amended by the supplemental convention signed February 24, 1881,¹⁷ and by abrogation of Article XIII, effective July 1, 1916,¹⁸ in accordance with the Act of Congress of May [March] 4, 1915.¹⁹ The conclusion of separate treaties of commerce and of consular rights is in accordance with the present policy of the Department.

There would appear to be no purpose to be served by undertaking an explanation of the various divergencies in the texts of recent treaties of friendship, commerce and consular rights. Neither does it seem necessary to comment upon every article and paragraph of the draft now being sent you. Expository material relating to the details may, however, be useful to you and, accordingly, the accompanying memorandum relating to the proposed treaty with Italy has been prepared and is transmitted herewith.

Should you feel the need for more detailed explanations relating to any of the various points, please request the same, by telegraph if necessary.

With respect to certain alternative suggestions, to be used in case the Italian Government finds portions of the text now submitted to be unacceptable, a further instruction will be addressed to you shortly.

Very truly yours,

For the Secretary of State:

Francis B. Sayre

11. Delivered on board S. S. Manhattan, New York City, to William Phillips, en route to Italy to assume his new post as Ambassador.
12. No enclosures attached to file copy of this document.
13. Foreign Relations, 1913, p. 611.
14. For Tariff Act of 1930, see 46 Stat. 590.
15. Foreign Relations, 1928, vol. iii, p. 646.
16. Malloy, Treaties, vol. i, p. 977.
17. Ibid., p. 983.
18. See Foreign Relations, 1915, pp. 6 ff.
19. Act to promote the welfare of American seamen in the merchant marine of the United States, 38 Stat. 1164.