711.6521/227
The Chargé in Italy (Kirk) to the Secretary of State
[Received May 12.]
Sir: With reference to the Embassy’s despatch No. 176 of January 25, 193759 concerning the submission to the Italian Minister for Foreign Affairs of the draft of the Consular Convention to be negotiated between the United States and Italy, I have the honor to inform the [Page 501] Department that the Italian Foreign Office has now prepared a memorandum of observations with respect to the draft convention. This memorandum was accompanied by a model treaty which is the form usually followed by the Italian Government in similar negotiations. A translation of the memorandum of observations is enclosed together with the pertinent articles of the model treaty,60 which in certain cases have been suggested in substitution for articles of the American draft.
In the discussion which took place between a member of the Embassy staff and officials of the Italian Foreign Office concerning the draft convention and the Italian observations, the latter explained that the American draft with respect to Articles III and IV relating to Tax Exemptions and Customs Exemptions would probably give rise to the greatest difficulty inasmuch as existing legislation in Italy would not permit any deviation from the recognized policy of according certain limited exemptions only to foreign consular officials, and, moreover, that the Ministry of Finance had been very insistent that this policy should not be altered. It was, however, pointed out to them that the American draft, in conformity with all recent American consular conventions, was intended to broaden mutual consular amenities, and that there would be little improvement over the existing treaty should the tax exemptions be restricted to exemptions from direct taxes and limited to career consular officers and should the customs privileges be granted only to principal officers at the Consulates. In this case subordinate consular officers and members of the consular staffs would be subject to approximately the same treatment as all foreigners entering Italy. The Italian officials replied that they recognized this difficulty and promised to resubmit the articles to the Ministry of Finance in order to ascertain whether it might not be possible to find some compromise but admitted that they were not hopeful of securing consent to any important modification in the terms of their alternate proposal.
It will be noted that the Italian memorandum requests clarification of certain phrases in the American draft. Among these is the phrase “officials who are duly appointed to exercise governmental functions in the territory of the other High Contracting Tarty,” which appears both in Articles III and IV. The Italian officials point out that it will be necessary to ascertain more specifically to what officials it is intended the exemptions will apply and, as an example, cite the case of the functionary appointed by the Italian Ministry of Finance who is at present in New York for the purpose of purchasing tobacco in behalf of the Government tobacco monopoly.[Page 502]They ask whether such a person is to be considered an official exercising governmental functions and raise the same question in connection with the appointment by the Ministry of Press and Propaganda of persons serving in the Italian state tourist offices in the United States.
They also state, in connection with the appointment of these officials, that Paragraph 2 of Article III of the American draft provides that the State appointing them shall indicate to the other State satisfactory evidence of their appointment and shall specify the character of the services performed, but is silent with respect to consent to be obtained by the other State before the said officials shall be permitted to exercise their duties. The Italians consider that this point should be clarified in any future convention.
With respect to paragraph 3 of Article III, the Italian officials inquire whether this provision guarantees the right of a foreign government to acquire lands in each of the States of the United States, as it was their understanding that certain States prohibit foreign governments from owning property within their limits. It is said, in this connection, that the Italian Government experienced difficulty in acquiring its consulate general in New York since the State of New York maintained such a prohibition in its legislation.
There is also enclosed for the information of the Department a copy of the memorandum61 prepared by the Consul General at Naples with respect to the Italian observations, in which suggestions the Embassy concurs.
It will be noted that, with the exception of Articles III and IV above referred to, the only other major difficulty relates to the Italian suggestion respecting Article XI. It is proposed to add to this article a phrase “within the limits of the laws and regulations in force within the country in which he exercises his functions.” Such addition would appear so to modify the sense of this article as to render it of doubtful value inasmuch as it would be possible for either country to pass such laws as to prohibit consular officers of the other state from communicating at all with their Nationals. When this point was brought to the attention of the Italian authorities, they stated in reply that the Italian penal code provides that a judge within his discretion is authorized under certain conditions to prevent an accused person from communicating with any one pending trial, and that it would be difficult to modify this provision of law solely for the purpose of the treaty under discussion. It was agreed, however, that the question would again be referred to the Ministry of Justice for further study.
The Italian authorities express the hope that it will be possible to obtain an early reply to their observations in order that the negotiations [Page 503] relating to this treaty may be concluded in time to permit the American Senate to give its consent to the ratification of the new accord during the present session of Congress. Accordingly, the Embassy would be glad to have a telegraphic reply to the points raised, as outlined above.
Respectfully yours,