711.562/13
The Netherland Minister (De Graeff) to the Secretary of State
Sir: Referring to your note of July 11, 1924 I have the honor to inform you that the Royal Government although disappointed that the American Government cannot agree with the proposal made in my note of May 8, 1924 to enter for the time being in an agreement substantially limited to a reciprocal warrant of unconditional most-favored-nation treatment has instructed me to proceed with negotiations on the basis of the draft for a Treaty of Amity, Commerce [Page 483] and Consular Eights as submitted to my Government on January 9, 1924
Pursuant to these instructions I allow myself to broach in the first place two questions that in the opinion of my Government are of primary importance as the solution thereof may greatly influence her attitude toward the drafted treaty in general.
With a few words I mentioned already the first of these questions in fine of paragraph 4 of my aforesaid note of May 8, 1924, where I made the remark that Article VII of the draft would put The Netherlands in a considerably less favorable position than has been acquired under the Convention concluded between The Netherlands and the United States on August 6 [26], 1852.
The Royal Government is pleased by learning from your note of July 11, 1924 that it is not apparent to you in what particulars this would be the case, as this statement gives hope that there is some misunderstanding on our side on [of?] the real tenor of Article VII. In order to clear up such possible misunderstanding I take the liberty to explain further on what grounds my Government is under the impression that our position as it is under the treaty of 1852 would be injured by Article VII of the draft.
The letter and the whole spirit of the Convention of 1852 guarantee unconditionally and in all respects reciprocal equality in relation to the flags of the two countries.
This principle is maintained in paragraph 5 of Article VII of the draft but only as far as imports and import duties are concerned, in contrast to Article I of the Convention of 1852 where also exports and export duties are mentioned and to the paragraphs 3 and 6 of Article VII of the draft which extend most-favored-nation treatment also to goods exported.
Furthermore paragraph 5 of Article VII applies the principle of reciprocal equality in relation to the flags only to duties or charges and not to “bounties, drawbacks and other privileges of this nature” whereas the last paragraph of Article I of the Convention of 1852 explicitly stipulates that if such privileges are granted in the States of either of the contracting parties on goods exported or imported in national vessels, they shall also and in like manner be granted on goods exported or imported in vessels of the other country.
So, as paragraph 5 of Article VII passes over in silence export duties and the above mentioned privileges, the United States would be at liberty to levy higher duties on articles exported from the United States in vessels of The Netherlands than on the same articles exported in vessels of the United States and further to allow for instance special railroad fares in favor of goods having been imported or to be exported in vessels of the United States.
[Page 484]In both respects—if our conception of Article VII is correct—this article would place The Netherlands at a serious disadvantage in comparison with our position under the Convention of 1852.
This, however, being apparently not the intention of the American Government the Royal Government would appreciate a different wording of paragraph 5 of Article VII so as to exclude also in the future any possible misunderstanding. For this purpose my Government suggests to substitute for this paragraph the following two paragraphs:
“All articles which are or may be legally imported from foreign countries into ports of the United States or are or may be legally exported therefrom in vessels of the United States may likewise be imported into those ports or exported from those ports in vessels of The Netherlands without being liable to any other or higher duties or charges whatsoever than if such articles were imported or exported in vessels of the United States, and reciprocally, all articles which are or may be legally imported from foreign countries into ports of The Netherlands or are or may be legally exported therefrom in vessels of The Netherlands, may likewise be imported into these ports or exported from these ports in vessels of the United States without being liable to any other or higher duties or charges whatsoever than if such articles were imported or exported in vessels of The Netherlands.
“In the same manner there shall be perfect reciprocal equality in relation to the flags of the two countries with regard to bounties, drawbacks, and other privileges of this nature of whatever denomination which may be allowed in the territories of each of the Contracting Parties, on goods imported or exported in national vessels so that these bounties et cetera shall also and in like manner be allowed on goods imported or exported in vessels of the other country.”
The second question whereto I am instructed to draw your attention bears upon the last sentence of paragraph 1 of Article VII of the draft, where is stipulated that nothing in the treaty shall be construed to restrict the right of either High Contracting Party to impose, on such terms as it may seem fit, prohibitions or restrictions of a sanitary character designed to protect human, animal or plant life, or regulations for the enforcement of police or revenue laws.
The Royal Government naturally does not discuss the right of every Government to see that by importations no damage may be done to the sanitary conditions of human beings, animals or plants. My Government is convinced that precautions against such damage are fully justified but in her opinion it is a universally accepted principle that measures to this effect must be based on reasonable grounds and must be confined to such precautions as are strictly necessary for the purpose they intend to serve so that international trade is not affected in a higher degree than is demanded by the sanitary requirements of a country.
[Page 485]The Royal Government is under the impression that the policy followed by the Department of Agriculture with regard to the importation in the United States of plants, bulbs, et cetera from The Netherlands does not fully reckon with the principle promised. On several produces of our horticultural industry embargo has been laid and will be laid in the near future although in the opinion of my Government on account of the highly efficient phytopathological service in The Netherlands and the proper methods taken to deal with plant disease within our own borders less drastic measures would be sufficient for safeguarding plant life in the United States against eventual infection by importations from The Netherlands.
Moreover, the unaccountably extreme character of the measures taken by the American Government under the Plant Quarantine Act 1912,11 as well as other circumstances give rise to serious doubt on the side of my Government whether these measures are solely based on the wish to protect sanitary conditions of plant life in the United States and have not at the same time the object to lend economical protection to horticulture in the United States by excluding all such foreign horticultural produces as might enter into active competition with home products. It seems obvious to my Government that measures if based on this motive and if taken to serve this purpose, cannot be considered as “prohibitions or restrictions of a sanitary character designed to protect plant life” and as such admissible under the above mentioned clause of paragraph 1 of Article VII of the drafted treaty.
For these reasons the Royal Government does not feel sure that as far as the United States is concerned the interests of her highly important foreign trade in horticultural produces will be sufficiently safe under the said clause, and feels obliged to emphasise the necessity of adding to the last sentence of paragraph 1 of Article VII another sentence of about the following sense:
“The High Contracting Parties, however, agree that the care for the sanitary conditions of plant life in either country shall not take such shape that for the purpose of barring the introduction of diseases, importation of plants, whether they are infected or not, is prohibited. On the contrary the importation in either country of plants and parts of plants in principle shall be allowed if reasonable guarantee is given that they are free from disease or noxious insects.”
The exact wording of this addition may be susceptible of modification, on an addition of this tenor the Royal Government has to insist.
Before entering into a discussion of other articles of the drafted treaty my Government would appreciate to learn the opinion of the [Page 486] American Government with regard to the two questions herefore dealt with and I have the honor to ask you to oblige me with your response at your earliest convenience.12
Accept [etc.]