absence of other agreement, be the Permanent Court of Arbitration established at The Hague by the Convention for the Pacific Settlement of International Disputes concluded October 18, 1907. Decision as to the tribunal shall be made in each case by a special agreement, which special agreement shall provide for the organization of the tribunal if necessary, shall define its powers, shall state the question or questions at issue and shall settle the terms of reference. Such special agreement shall, in each case, be made on the part of the United States of America by the President thereof, by and with the advice and consent of the Senate, and on the part of Switzerland in accordance with its constitutional law. ARTICLE VIII The present treaty shall be ratified by the President of the United States of America by and with the advice and consent of the Senate thereof and by Switzerland in accordance with its constitutional law. The ratifications shall be exchanged at Washington as soon as possible, and the treaty shall come into force on the day of the exchange of the ratifications. It shall thereafter remain in force continuously unless and until terminated on notice of one year by either Contracting Party to the other. In faith whereof the respective Plenipotentiaries have signed this treaty in duplicate in the English and French languages, both texts having equal force, and have hereunto affixed their seals. Done at Washington the sixteenth day of February in the year one thousand nine hundred and thirty-one. 711.5412A/35 [SEAL] HENRY L. STIMSON The Secretary of State to the Swiss Minister (Peter) WASHINGTON, February 24, 1931. MY DEAR MR. MINISTER: Referring further to your note of February 2, 1931, in regard to the Treaty of Arbitration and Conciliation between the United States and Switzerland, which was signed on February 16, 1931, I have given attention to your statement that your Government informs you that it shares the opinion expressed in this Government's letter of June 21, 1930, concerning the advantage of leaving to the contracting parties the liberty of deciding, for each conflict of a juridical character, whether they wish to submit it first to the Commission of Conciliation, or prefer resorting immediately to the Tribunal of Arbitration. You add: "But aside from this optional and preliminary use of the Commission of Conciliation for conflicts of a juridical character, contemplated in Article V, it is well understood, that for all conflicts not of a juridical character, or that would be excluded from arbitration by virtue of Article VI of the treaty, recourse to the Commission of Conciliation would be obligatory in all cases, in conformity with Article II." I am happy to inform you that I concur in your interpretation of the treaty as thus set forth. I am [etc.] HENRY L. STIMSON RIGHT OF CONSULS TO RECEIVE FUNDS FROM ESTATES FOR TRANSMISSION TO NON-RESIDENT NATIONALS 711.5421/17 The Secretary of State to the Minister in Switzerland (Wilson) No. 1239 WASHINGTON, January 15, 1931. SIR: The Department refers to the Legation's despatch No. 1337 of March 5, 1930,13 in regard to the interpretation of the most-favorednation clause in Article VII of the Convention of Friendship, Commerce and Extradition between the United States and Switzerland, signed November 25, 1850.14 The Swiss Government appears to consider that this most-favorednation clause entitles Swiss consular officers to privileges accorded to foreign consular officers by the United States in a treaty with some country other than Switzerland, irrespective of a showing by the Swiss Government that the privileges claimed for Swiss consular officers under the most-favored-nation clause are accorded to American consular officers in Switzerland. You may state that this Department has consistently held that the most-favored-nation clause with respect to rights and privileges of consular officers does not embrace unconditionally specific rights and privileges which are granted on the basis of reciprocity to consular officers of third countries, but that the right to enjoy such specific rights and privileges is embraced in the most-favored-nation clause in the event that the country whose consular officers assert such rights or privileges thereunder accords in fact the same rights and privileges to American consular officers in their territories. The Legation's despatch was in reply to an inquiry from the Depart ment as to whether American consular officers would be permitted to receive shares from estates probated in Switzerland for remission under the conditions stipulated in Article 25 of the Treaty of Friendship, Commerce and Consular Rights between the United States and Germany, signed on December 8, 1923.15 The note of March 4, 1930,16 addressed to you by the Swiss Federal Political Department contained the following paragraph: "The Department takes pleasure in adding, however, that Swiss law, by leaving to the state appointing them the task of regulating their duties in this field, in no way forbids foreign consuls from acting in behalf of their citizens and proceeding to the distribution of funds referred to in Article 25 of the German-American treaty of Friendship, Commerce, and Consular Rights of December 8, 1923." This paragraph without the subsequent portion of the Swiss note would, it is believed, have been acceptable as showing that Swiss law met the condition of reciprocity required in order that Swiss consular officers may, by virtue of the most-favored-nation clause in Article VII of the convention of 1850 with Switzerland, receive, in the manner provided for in Article 25 of the Treaty of 1923 with Germany, referred to herein, proceeds of estates probated in the United States, for transmission to non-resident Swiss beneficiaries. A statement is made, however, following the paragraph quoted, that consular officers in Switzerland are called upon to prove in each individual case that the persons in whose name they are acting are legally entitled to receive the funds which they undertake to distribute, and that these consular officers have the right to give receipts. The latter statements cause some doubt as to whether the Swiss Government considers that American Consular officers in Switzerland would have an unqualified right to receive the funds from estates probated in that country for transmission to non-resident American beneficiaries in the manner provided for in Article 25 of the treaty between the United States and Germany of 1923. While the Department cannot undertake to say how the courts of this country would construe the provisions of Article 25 of the treaty between the United States and Germany of 1923 it would seem that the court probating the estate in the country in which the consular officer is stationed, would upon all the evidence before it determine who are legally entitled to the proceeds of the estate. While it is assumed that the court would receive and consider evidence from the consular officer on this point, the Department does not consider that the burden. of showing who are entitled to receive the proceeds of the estate rests upon him, as might be inferred from the Swiss note. 15 Foreign Relations, 1923, vol. п, pp. 29, 43. 19 Not printed. The Department interprets Article 25 of the treaty with Germany of 1923 to mean that a consular officer is made eligible so far as concerns the country of his residence to receive funds for transmission as provided for therein, but that whether he may act in this capacity depends upon whether he is authorized to do so by his own Government. The Department does not contemplate authorizing American consular officers in Switzerland to receive for transmission funds from estates probated in that country, but merely desires to determine whether the Swiss authorities would, if called upon to do so, grant to American consular officers in Switzerland the right, as provided in Article 25 of the treaty with Germany, that might be claimed for them to receive funds for transmission if they be authorized by their Government to receive such funds. This Government does not consider that it is necessary to enter into a special agreement with the Swiss Government bearing on the matter dealt with herein as suggested by the Swiss Government. It is requested that you endeavor to obtain a categorical reply to the Department's inquiry. If the exercise of the right is not dependent upon a number of conditions you may inform the Department of the nature of the reply briefly by telegraph. Very truly yours, For the Secretary of State: 711.5421/21 The Minister in Switzerland (Wilson) to the Secretary of State No. 1880 BERNE, February 5, 1931. [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 cate gorical 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 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 in "Article 11 was also involved. For pertinent correspondence, see Foreign Relations, 1899, pp. 740 ff. |
