711.652/131a: Telegram
The Secretary of State to the Ambassador in Italy (Phillips)
186. Your 425, September 23, and despatch No. 579, September 24.41 Following is this Government’s comment with respect to the Italian counter proposals enclosed with your despatch in reference.
Preamble. As a possible solution of the problems involved, you [Page 475] may propose the following language in lieu of that contained in this Government’s original proposal:
“The United States of America and Italy, desirous of strengthening the bond of peace which happily prevails between them, and of promoting friendly intercourse between their governments and peoples, have resolved to conclude a Treaty of Friendship, Commerce and Navigation and for that purpose their duly authorized plenipotentiaries have agreed upon and signed the following Articles:”
Article 1. With reference to the Italian objection to the clause “the nation hereafter to be most favored by it” appearing near the end of paragraph 1, you may propose the phrase “the most favored nation” in lieu thereof.
As regards the term “local law”, it is the view of this Government that it relates to law applicable in any territory of either High Contracting Party to which the treaty applies by its own terms.
It is understood that Italy accepts the text of Article 1 as last proposed by this Government in all other respects.
Article 2. Italy has accepted the American draft as last proposed by this Government.
Article 3. The United States has accepted the changes in punctuation proposed by Italy and the two Governments are in agreement in respect of this Article.
Article 4. Italy has accepted the English language text of the American draft as last proposed by this Government.
In view of the statement by the Italian Government that the word “procuratori” in paragraph one of the Italian language text is translated by the phrase “others acting for them” the United States does not insist upon another equivalent. You might suggest, however, that in the treaty of 1871 the same phrase appearing in Article 22 is translated into the Italian by the words “per mezzo d’altri che agiscano in loro nome.”
Please report whether the Italian language draft of the last paragraph of this Article has been adjusted so to include the word “therein” as a modifier of the word “interests” wherever the phrase “interests therein” occurs throughout the paragraph.
Article 5. Italy has accepted the American draft as last proposed by this Government.
Article 6. Separate instructions with respect to this Article will be cabled within a day or two.
Article 7. The Italian Government states “freedom cannot refer to territories, but to the High Contracting Parties.”
This Government, on the contrary, considers that the Article deals with rights in respect of commerce and navigation between all territories of the High Contracting Parties not specifically excepted by its own language or by exceptions provided for elsewhere in the treaty.
[Page 476]Article 8. Separate agreement has been reached on the text of this Article. It is understood that the text included in the draft treaty provisions enclosed with the Department’s instruction No. 163 of August 9, 1937, is the text agreed upon. Confirmation is awaited that the Italian Government is in accord with the Department’s exposition of certain points in the Article, as presented in Department’s 184 of Nov.30.
Article 9. Italy has accepted the American draft as last proposed by this Government.
Article 10. Agreement has already been reached on the text of this Article.
Articles 11, 12 and 13. Italy has accepted the American drafts as last proposed by this Government.
Article 13 (b). Italy has accepted the American redraft.
Articles 13 (c) and 13 (d). Italy has agreed to omit these two articles.
Article 13 (e). Italy has accepted the American redraft.
Article 13 (f). Italy has agreed to omit this Article.
Article 13 (g). Italy has accepted the American redraft.
Articles 14 and 15. Italy has accepted the American drafts as last proposed by this Government.
Article 16. Italy has accepted the American draft.
Articles 17 and 18. Italy has accepted the American drafts as last proposed by this Government.
Articles 19. The Department has now formulated treaty provisions to conform with new legislation respecting neutrality. Accordingly, you are requested to propose that the following sentence be added to paragraph 1: “And it is agreed, further, that nothing in this Treaty shall be construed to prevent the adoption or enforcement of measures relating to neutrality”.
For your information and use, if necessary, we are proposing this additional sentence as a precaution against a possible feeling on the part of the Senate that the provisions of the Neutrality Act of May 1, 193742 would not be adequately safeguarded without it.
With respect to the Italian proposal concerning preferences to countries of the Danubian Basin and Albania, you are being instructed in a separate telegram.
Article 20. As regards the Italian comment concerning this Article, it is pointed out that the language of the Article automatically raises the question of the territorial application of the treaty. Up to now the Italian Government has not offered a counter proposal to the original American draft. Therefore, as a possible solution of the problems involved, you may propose the following change in the [Page 477] language of the Article as originally proposed by this Government: Strike out the words “dominion as sovereign thereof” and insert in lieu thereof the word “jurisdiction.” The last clauses of the Article will then read “claim and exercise jurisdiction, except the Panama Canal Zone.”
For your personal information, it is our intention on the one hand that the language of the Article as thus amended shall not recognize Italian sovereignty over Ethiopia, but on the other hand requires that the treaty provisions shall be applied there.
Article 21. Italy has accepted the American draft as last proposed by this Government.
It is, however, necessary to raise the question of the omission of the last paragraph of this Article in view of the fact that the provision is not applicable to the situation existing since the joint notice of termination of the treaty of 1871 was given.
Article 22. Italy has accepted the American draft.
The Department suggests that the words “For the United States of America” and “For Italy” be used at the end above the signatures of the plenipotentiaries.