Papers Relating to the Foreign relations of the United States, 1927, Volume II

711.512/7

The Secretary of State to the Chargé in France (Whitehouse)

Washington, June 28, 1927.

No. 2339

Sir: In instruction No. 2320 of June 10, 1927, transmitting two copies of a draft to be used as a basis for the negotiation of a treaty of friendship, commerce and consular rights between the United States and France, it was stated that a more detailed instruction commenting upon the several articles of the draft would be sent the Embassy in a later pouch.

The following statement is designed to make clear the position of this Government concerning the general features of the treaty, and respecting the various provisions thereof.

The Treaty is designed to promote friendly intercourse between the peoples of the United States and France, through provisions advantageous to both. It may be said with entire candor that this treaty embodies no attempt whatever to attain by sharp bargaining undue advantages over a friendly State. The draft contains in certain articles provisions which in their practical operation ought to be deemed of special advantage to a foreign contracting party such as France. These advantages are incorporated in the treaty because they are deemed to promote justice as between the peoples of friendly States. In a word, through the present draft, it is sought to lay the foundation for a comprehensive arrangement responsible to the modern and exacting requirements of maritime States. To that end, the several articles are expressed in terms which definitely and clearly set forth what is desired. It is sought by this means to avoid the danger of conflicting interpretations. The terms and phrases used are not always those which have been employed in treaties of the United States. Those utilized will, it is hoped, add to the clearness of the document.

The first six articles deal generally with the rights of the nationals of the one party residing in the territories of the other. The attempt is made to give the citizen of France in the United States or the American in France all of those privileges which can reasonably be accorded the resident alien.

Article I provides for the rights of travel and residence and of commercial, professional and religious activity and for the protection of persons and property.

In phraseology and scope, the first paragraph of Article I differs somewhat from the corresponding provisions as contained in treaties of the United States concluded before the Treaty of 1923 with Germany. The effort has been made to set forth comprehensively, yet tersely, the privileges for which provision is made. It will be noted that the most favored nation treatment provided in this paragraph refers to acts “hereafter” according privileges to other States.

In the next to the last paragraph of Article I provision is made for the protection and security of the person and property of the resident alien, in accordance with the requirements of international law. It is believed that it may prove highly useful to acknowledge that the test of the propriety of the treatment due the resident alien is that accorded by international law, rather than by the standards fixed by the State of residence in dealing with its own nationals. The provision for the international law test has been inserted in the standard treaty to operate as a safeguard in those countries whose treatment of their own nationals is arbitrary and unjust. This paragraph also provides that the property of the resident alien is not to be taken without due process of law and without payment of just compensation. It is hoped that these provisions will be warmly appreciated by the Government of France.

In the last paragraph of Article I is embodied a reservation made by the Senate of the United States³⁶ as a condition of giving its advice and consent to the ratification of the Treaty of Friendship, Commerce and Consular Eights signed by the United States and Germany on December 8, 1923. From the point of view of this Government such a provision is necessary.

Article II extends to non-resident aliens the same rights of recovery under Workmen’s Compensation Acts and other like statutes that are enjoyed by nationals. This Article, suggested by the treaty of February 25, 1913, between the United States and Italy,³⁷ somewhat elaborates the provisions of Article I of that treaty. The purpose of the elaboration has been twofold—first, to cover so-called Workmen’s Compensation Acts, where benefits accrue by reason of the fact of injury, rather than by reason of negligence attributable to an employer; secondly, to give the alien the same benefit of privileges under such Acts as are enjoyed by nationals.

Article III precludes the visit and search of the dwellings, factories, etc. of aliens except as prescribed by the law for nationals. This is not an uncommon provision. It is contained in substance in Article II of the treaty of February 21, 1911, between the United States and Japan.³⁸ It is included in the same language as in the enclosed draft in the treaties recently concluded by the United States with Germany, Hungary and Estonia.

Article IV makes provision for the disposition of property by inheritance or devise. The arrangement in the first paragraph enables, for example, an heir or devisee in France to take title to American lands owned by a relative who died in the United States, and to have the privilege of disposing of those lands within a reasonable period of time when the local law, as of some State of the United States, does not permit such alien to retain title. This paragraph reproduces Article I of the Convention of March 2, 1899 of the United States with Great Britain.³⁹ The second paragraph of Article IV grants full rights in respect of the ownership and transmission of personal property. The provisions of the Article conform to the traditional policy of the United States, as shown by Article V of the Treaty of 1850 between the United States and the Swiss Confederation,⁴⁰ and Article III of the Treaty of Friendship and General Relations, concluded by the United States and Spain on July 3, 1902.⁴¹ A somewhat different provision is contained in Article VII of the Consular Convention of 1853 between the United States and France.⁴²

Article V guarantees the right of freedom of worship. It enlarges slightly the not uncommon provisions relative to religious practices. It is reasonable in its scope and desired by the United States. Obviously, no practices contrary to public morals are to be permitted under the guise of religious activity. It has seemed wise to recognize the importance of local mortuary and sanitary regulations.

Article VI imposes compulsory military service, in certain contingencies, upon a resident alien in the event of war. This is an important belligerent right which you should endeavor to incorporate in the treaty. The result of the late war revealed the fact that should the United States be a belligerent in a conflict where it had but a single enemy, the neutral alien residents within its territory would probably embrace a large adult male population capable of military service and reasonably subject thereto under the conditions here proposed. As the right to exact military service in this Article is conditioned upon three things (1) the permanent residence of the individual within the territory of the State drafting him; (2) his having formally declared an intention to acquire its nationality; and (3) his not having departed from the territory of the belligerent party within a specified time after declaration of war, it is believed that the necessary safeguards are established. Even though the Government of France should desire complete exemption, as was provided in certain earlier treaties of the United States, and should object to the Article here proposed, earnest effort should be made to procure acceptance of this Article.

Article VII makes full provision for the enjoyment of the most-favored-nation clause in its unconditional form, applying it to persons, vessels and cargoes, and to articles, the growth, produce or manufacture of the contracting parties. It will be seen that the most-favored-nation clause is applied to duties on imports and exports and to other charges or restrictions or prohibitions on goods imported and exported. The last sentence of the first paragraph is of great importance because of the reservations set forth therein.

The following provisions in Article VII of the draft are not contained in the treaties of Friendship, Commerce and Consular Eights recently concluded by the United States with Germany, Estonia and Hungary: (1) the provisions made for the protection of indirect trade by the words “from whatever place arriving” in the second paragraph and by the sentence “In the application of the provisions of this paragraph no distinction shall be made between direct and indirect shipments” in the fourth paragraph, (2) the provisions in the fourth paragraph in regard to licenses for importations and exportations and for equitable treatment in respect of rations or quotas of restricted goods, and (3) the words “by treaty, law, decree, regulation, practice or otherwise” in the fifth paragraph. In the view of this Government the provisions of Article VII of the treaties of the United States with Germany, Hungary, and Estonia, when correctly construed embrace the subjects to which these additional provisions relate. The changes introduced into the Article are designed, therefore, to clarify not alter the provisions as contained in the treaties already concluded by the United States. The following observations in regard to the new provisions may be helpful to you:

(1) This Government has experienced difficulty in obtaining complete most favored nation treatment for American products in certain countries in which importations of such products are drawn largely from warehouses in third States. The present draft is designed to clarify the situation by expressly excluding any distinction between the treatment accorded such shipments and that accorded direct shipments.

(2) Experience has shown that American commerce has been discriminated against in certain countries under systems of licenses, or of rations or quotas regulating the importation and exportation of merchandise. The fourth paragraph of Article VII is designed to make clear that equitable treatment is to be accorded under such systems. Provisions similar to those in the first part of the paragraph are contained in the International Convention for the Simplification of Customs Formalities, signed at Geneva November 3, 1923,⁴³ and provisions similar to those in the second part of the paragraph are contained in the second paragraph of exchanges of notes between the United States and several countries (Poland, February 10, 1925, Treaty Series No. 727; Finland, May 2, 1925, Treaty Series No. 715; Estonia, March 2, 1925, Treaty Series No. 722; Rumania, February 26, 1926, Treaty Series No. 733; Latvia, February 1, 1926, Treaty Series No. 740; Lithuania, December 23, 1925, Treaty Series No. 742; Haiti, July 8, 1926, Treaty Series No. 746).⁴⁴

(3) The additional phrase “by treaty, law, decree, regulation, practice or otherwise” inserted in the fifth paragraph is not intended to vary the meaning of the paragraph which is contained as the fourth paragraph of Article VII in the treaties between the United States and Germany, Estonia and Hungary. It has been deemed wise, however, to clarify the meaning of the paragraph by the addition of this phrase.

The revised draft of Article VII as contained in the draft sent to you is included in drafts just submitted to two other countries⁴⁵ and will be regarded as the standard form for use in treaties of friendship, commerce and consular rights which the United States may undertake henceforth to negotiate. Consequently, the Government of France need not feel that it will be discriminated against in accepting the provisions to which attention is herein called although they are not contained in the treaties of Friendship, Commerce and Consular Eights of the United States now in effect.

In the last paragraph there is an important reservation with respect to the commerce between the United States and Cuba, and to the commerce of the United States with its dependencies, embracing the Panama Canal Zone, under existing or future laws. These reservations are essential. You will recall that the arrangements between the United States and Cuba under the treaty of December 11, 1902, are of a peculiar nature. The special relationship political and geographical between the United States and Cuba necessitates the reservation concerning the commerce with that country. It is assumed that France will desire to make exceptions here of its own commerce with its colonies, of the trade of the colonies with France and of trade among the colonies. You should, however, be cautious not to intimate that any particular exception suggested by France will be acceptable to this Government.

Article VIII relates to internal taxes, transit dues, charges in respect of warehousing and other facilities, drawbacks, and bounties.

Article IX concerning duties of tonnage, harbor, pilotage, lighthouse, quarantine, etc., provides for national treatment applied reciprocally, that is, the same conditions are to be applied to a vessel of France in American ports as are applied to American vessels, provided France applies to American vessels in its ports the same conditions that are applied to vessels of France therein.

Article X requires no comment, except to note that the recognition of the national character of vessels here provided for is to be effective on the high seas as well as within territorial waters.

The provisions of Article XI will explain themselves. You will, of course, observe that there is definite statement to the effect that the coasting trade of both parties is exempt from the provisions of the Treaty. The addition of the last sentence is due to the possibility that one contracting party might yield coasting trade privileges of some character to foreign vessels. Hence that contingency is covered.

Your attention is particularly called to the provision contained in the third paragraph of Article XXIX, under which the sixth and seventh paragraphs of Article VII and Articles IX and XI are made terminable on ninety days notice at the end of twelve months from the date of exchange of ratifications of the Treaty and thereafter by operation of legislation inconsistent with them which may be enacted by the United States or France. The provision in regard to the termination of these paragraphs and articles is the consequence of a reservation in regard to like paragraphs and articles, made by the Senate of the United States in giving its advice and consent to the ratification of the Treaty of Friendship, Commerce and Consular Eights, signed by the United States and Germany on December 8, 1923. From the point of view of this Government the provision is essential.

Article XII concerns the right of corporations incorporated in the one country to be recognized in the other, and to enjoy access to the courts. It should be observed, however, that the right to do business in the foreign country, for example, of an American corporation in France, is conditioned upon the laws of that country. These limitations are deemed absolutely essential particularly because of the powers of the several States of the United States to regulate the matter. Like provisions are contained in Article VII of the Treaty between the United States and Japan of February 21, 1911, as well as in the Treaty of 1923 between the United States and Germany, and the treaties recently concluded by the United States with Hungary, Estonia and Salvador.⁴⁶

In Article XIII arrangement is made for the participation by nationals of the one State in corporations incorporated in the other. The laws of the United States render it imperative that these rights be based on a reciprocal footing, and that the most-favored-nation treatment in this connection be conditioned upon reciprocity. In the Treaty of Friendship, Commerce and Consular Eights between the United States and Hungary, signed June 24, 1925, a further provision is added to the first paragraph of Article X as follows:

“The foregoing stipulations do not apply to the organization of and participation in political associations.”

The same provision is included in the corresponding articles of the treaties of the United States with Germany and Estonia. While this Government does not propose the insertion of this provision in the Treaty with France, it has no objection to incorporating it therein as the last sentence of the first paragraph of Article XIII if the French Government so desires.

The last paragraph of Article XIII offers a reciprocal basis in harmony with the statutory law of the United States for agreement within necessarily narrow limits respecting privileges of mining and minerals described. The Act of February 25, 1920, to promote the mining of coal, phosphate, oil, oil shale, gas and sodium on the public domain,⁴⁷ contains in Section 1 the following proviso:

“That citizens of another country, the laws, customs or regulations of which deny similar or like privileges to citizens or corporations of this country, shall not by stock ownership, stock holding, or stock control, own any interest in any lease acquired under the provisions of this Act.”

Article XIV provides for most favored nation treatment of commercial travelers representing manufacturers, merchants and traders domiciled in one State upon their entry into, sojourn within, and departure from the territories of the other. The second paragraph of this Article covers the case where a certificate of identity of the traveler may be required. The Article is an adap[ta]tion of Article XIV of the Treaty of Friendship, Commerce and Consular Eights between the United States and Estonia and of the second paragraph of the Protocol accompanying that Treaty. It is being agreed to in treaties with States with which this Government is engaged in negotiating treaties whenever the most-favored-nation treatment which would be accorded American commercial travelers there under is satisfactory. Under this Article, French commercial travelers in the United States would be entitled to the benefit of the provisions of Articles XIV and XV of the Treaty of Friendship, Commerce and Consular Eights of 1923 between the United States and Germany. Before finally agreeing on this Article you will report on the treatment to which American commercial travelers in France would be entitled there under in order that further instructions may be given you in regard to it.

Article XV deals with transit through the territories of the United States and France and also territorial waters with certain reservations, as to the latter embracing international boundary waters of the United States and the Panama Canal. This Article contains limitations with respect to prohibited persons and articles. The conditions applied to transit are reasonable and necessary. The reservation of boundary waters of the United States is important. It is not recalled that rights of navigation or transit therein have ever been accorded to foreign States not sovereign over contiguous territory.

Articles 321–326 of the Treaty of Versailles, embraced in the treaty of the United States with Germany of August 25, 1921,⁴⁸ make elaborate provision for transit across German territory. The Barcelona Conference, assembled under the auspices of the League of Nations, was productive of a draft convention and statute on the freedom of transit in April, 1921.⁴⁹

It will be recalled that by Article 29 of the Treaty between the United States and Great Britain of May 8, 1871,⁵⁰ provision was made for the transit in bond of merchandise across certain portions of the United States and Canada under conditions specifying ports of entry, and otherwise defining limitations. This article is no longer in force.

The rights of transit through the Panama Canal are definitely established by the Convention between the United States and Great Britain of November 18, 1901, known as the Hay-Pauncefote Treaty.⁵¹ In Article III thereof it is provided that:

“The canal shall be free and open to the vessels of commerce and of war of all nations observing these Rules, on terms of entire equality, so that there shall be no discrimination against any such nation, or its citizens or subjects, in respect of the conditions or charges of traffic, or otherwise. Such conditions and charges of traffic shall be just and equitable.”

Thus it will be understood that Article XV of the draft is not designed to impose any special restriction with respect to the Panama Canal which would operate against France. The Article rather reserves from its operation the matter of transit through that Canal.

There may be some room for the practical operation of this Article as between the United States and France and its incorporation in the treaty is deemed useful, also on account of prospective treaty negotiations between the United States and other Powers.

Articles XVI–XXVII concern consular rights. These cover fully consular provisions of the most modern type which ought to be of great benefit to consular officers of both countries.

Attention is called to the last sentence of the second paragraph of Article XVI providing that consular officers shall be entitled to the high consideration of officials with whom they come in contact. This is designed to give prestige to consular officers and particularly to safeguard them from discourtesy which they might otherwise encounter on the part of minor officials. The last paragraph of Article XVI provides that a regular commission be signed by “the chief Executive of the appointing State and under its great seal”.

The matter of the arrest of consular officers and their criminal prosecution, as well as their service as witnesses in criminal cases, is covered fully in Article XVII; likewise, the matter of their exemption from arrest. Exemption from arrest in criminal cases should be limited by the broad exception here stated. The provision in regard to attendance of a consular officer as a witness in criminal cases differs from the corresponding provision in Article II of the Consular Convention of 1853 between the United States and France. The provision in the draft is designed to avoid misunderstandings such as arose out of the language of the Treaty of 1853. (See Dillon’s Case, Moore’s Digest, Vol. v, pp. 78–80.) It is believed that it is in harmony with instructions issued by the French Government to French consuls in the United States relating to attendance of consular officers as witnesses in criminal cases. (See Dana’s Wheaton, p. 325.) Article XVII also deals with the jurisdiction of courts over consuls in civil matters. While consular officers are normally subject to the local jurisdiction in civil cases, it is important to provide that the exercise of such jurisdiction shall not interfere with their official duties. The several provisions of the Article, including those in regard to the taking of testimony and the exemption from billeting, and from military and other services, are believed to be responsive to the modern situation and wholly desirable.

The taxation of consular officers is fully dealt with in Article XVIII. It will be noted that there is an exemption from taxation on salaries of consular officers, and from taxation of the person or property of the consuls but that immovable property owned by them and income derived from sources within the country of official residence are excepted from this last exemption. An important exemption is established in the same Article with respect to lands and buildings used for governmental purposes and under necessary reservations.

Article XIX in its first paragraph permits the hoisting of the flag of the country on consular offices including those “situated in the capitals of the two countries”. This new provision, although in sharp contrast with the one contained in Article XVII of the Treaty of Friendship and General Relations concluded by the United States and Spain on July 3, 1902, is consistent with the provision on the point in the Consular Convention of 1853 between the United States and France. The second and third paragraphs of this Article require no comment.

The provisions of Article XX enabling consular officers to address the authorities with a view to protecting their countrymen in the enjoyment of the rights accruing by treaty or otherwise, and in order to complain of infraction of those rights, are believed to serve a useful purpose.

It is important that a consular officer be permitted to invoke the aid of the authorities of the State to which he is accredited for the purposes set forth in this Article. Those purposes are described with greater fullness than is common in treaties of the United States. They ought to be inserted in the Treaty.

Article XXI makes provision for the exercise of notarial functions by consular officers. The first paragraph slightly elaborates Article X of the Consular Convention of the United States with Sweden of June 1, 1910.⁵² There are also differences in phraseology. The second paragraph needs no explanation.

Article XXII makes a definite and important provision in its first paragraph with respect to the jurisdiction of a consular officer over offenses committed on merchant vessels of his country and over certain civil cases under specified conditions. This paragraph differs sharply from the provisions on the same subject in treaties concluded by the United States before the Treaty of 1923 with Germany, as for example, the second paragraph of Article XIII of the Treaty of Commerce and Navigation concluded by the United States with Sweden and Norway on July 4, 1827, and Article XI of the Consular Convention between the United States and Belgium of March 9, 1880.⁵³ In the latter it was provided, “… The local authorities shall not interfere except when the disorder that has arisen is of such a nature as to disturb tranquility and public order on shore, or in the port, or when a person of the country or not belonging to the crew shall be concerned therein.” (See Wildenhus Case, 120 U. S. 1.) Objection has been made to the foregoing language on the ground that it affords no sufficient tests and demands in each case a decision by a local court of a complicated preliminary question as to the propriety of local justice over offenses. In the provision proposed it is sought to indicate definitely certain conditions under which local courts may appropriately exercise jurisdiction in criminal cases. The jurisdiction thus conferred on them may go somewhat further than is contemplated by treaties concluded by the United States before the Treaty of 1923 with Germany. The second paragraph of Article XXII is supplementary to the first. It is believed that a safe line is drawn for practical purposes, and no injustice is likely to result. The third paragraph provides for the consular invocation of local aid for the maintenance of internal order on board of a vessel. The fourth paragraph requires no comment.

Article XXIII pertains to the several problems where a countryman of the consul dies intestate within the consular district. The first paragraph provides for the notification of the consul of the fact of death where the decedent leaves no known heirs in the country where death occurred. This is a frequent provision in treaties of the United States. The Department of State has frequently advised the Governors of the several States of the United States of its existence in order that there might be local compliance. It may be noted that certain States such as Michigan and Minnesota have undertaken through their statutory law to provide for consular notification.

Provisions of American treaties conferring upon consular officers rights relating to the administration of estates of deceased intestate aliens have lacked uniformity, and have been expressed in terms that have been productive of much litigation in the United States. In the second paragraph of Article XXIII an attempt is made to define such rights clearly. The consul is given first, a right under certain circumstances to take charge of assets pending the appointment of an administrator; and secondly, a right to administer when the local law permits. He is thus rendered subject to the local statutory laws. The right to administer is rarely desired by an American consular officer. On the other hand, foreign consular officers in the United States often seek to exercise it. It is not believed that it should be conferred more broadly than is here provided. The last clause of this paragraph will be helpful to the foreign consular applicant for letters of administration in the United States.

It is deemed absolutely essential in the United States that any consular right of administration be subordinated to local State laws conferring rights of administration on public officials or private individuals, and that whenever a consul accepts the office of administrator he should be subjected to the jurisdiction of the tribunal appointing him. The last paragraph of the Article so provides.

Article XXIV confers upon the consul the right to receipt for the distributive share accruing to a nonresident countryman, derived from estates in process of probate or from the operation of Workmen’s Compensation Acts. The consul is obliged, however, to remit funds through the agencies of his Government to the proper distributees, and to furnish the authority making distribution through him reasonable evidence of such remission. This also is a fresh provision not contained in treaties concluded by the United States before the Treaty of 1923 with Germany. It is believed that it will promote justice for all concerned.

It may be noted that the Employers Liability Act of Maryland as amended in 1924 and contained in the Code of that year provided in part that:

“Nonresident alien dependents may be officially represented by the consular officers of the nation of which such alien or aliens may be citizens or subjects, and in such cases the consular officers shall have the right to receive, for distribution to such nonresident alien dependents, all compensation awarded hereunder, and the receipt of such consular officers shall be a full discharge of all sums paid to and received by them.” [Annotated Code, 1924, section 36 (4).]⁵⁴

Article XXV contains a provision greatly desired by the Consular Service and the Public Health Service of the United States. It contemplates consular inspection of private vessels of any flag about to clear from ports of the United States for France or from the ports of France for the United States. It is believed that the territorial sovereign is within its right in permitting a foreign consular officer to make reasonable inspection of any private vessel within its ports and about to clear for a port of the consul’s country. It is earnestly hoped that the Government of France will accept this provision which will serve to facilitate the entry of vessels clearing from the ports of France for American ports.

Article XXVI concerns the free entry of personal and official belongings of consular officers, their families and suites when nationals of the appointing State, with limitations that are specified.

American consular officers in foreign countries frequently experience difficulty in obtaining free entry for their personal property upon arrival at their posts and are often subjected to great annoyance and expense in connection therewith. Certain countries now permit free entry of the baggage and certain household property of consular officers and their families. Some, however, refuse free entry to automobiles, musical instruments, chinaware, etc. In some countries official supplies and equipment for consular officers are required to pay duty.

Under the United States Customs Regulations foreign consuls, their families, suites and servants are granted, on the basis of reciprocity, free entry of all baggage and household goods which accompany them to the United States, or which arrive shortly thereafter. They are required to pay, in the absence of treaty provision, regular duty on subsequent importations of personal property. Official supplies for consular offices are admitted free of duty.

Article XXVII which is based upon Article XIII of the Consular Convention with Sweden of June 1, 1910, deals with the matter of shipwreck and salvage. The provisions are common in commercial treaties and consular conventions. They require no comment.

Article XXVIII states definitely the scope of the territories, land, water and air, within the operation of the treaty. It has seemed wise to define comprehensively the territorial areas within the scope of the Treaty. It is deemed important to include colonies and protectorates therein and to embrace air, as well as land and water.

Inasmuch as the rights of the United States and France in the French mandates of the Cameroons, Togoland, and Syria and the Lebanon are the subject of treaties dealing specifically with those regions,⁵⁵ it has seemed well to indicate clearly that the present treaty shall not affect those rights.

From the examination which the Department has made of the rights of the United States in French protectorates it appears that such rights are secured by treaties in Morocco (which includes Tangier, the zone of Spanish influence, and the French Zone) and in Tunis.

It is believed that the rights in Morocco under the Treaty of Peace and Friendship of 1836 between the United States and Morocco,⁵⁶ the International Convention as to Protection of 1880⁵⁷ and the General Act of Algeciras of 1906⁵⁸ should not be disturbed. Morocco is therefore excepted from the territories to which the proposed treaty will apply.

The obligation of France to the United States in respect of Tunis exists under the Treaty of 1904 to determine relations between the United States and France in Tunis.⁵⁹ Therein France agreed to assure to the consuls and citizens of the United States in Tunis the rights and privileges “which belong to them in virtue of international law or which belong to them in France by reason of treaties in existence between the United States and France.” The extension of the proposed treaty to Tunis would be a means satisfactory to the United States for the continuation of this assurance by France. In the form in which Article XXVIII is drafted the new treaty will apply to Tunis.

It is believed, however, that it would be undesirable to include the Treaty of 1904 to determine relations in Tunis in the list of treaties in Article XXIX which will be supplanted by the new treaty, for the reason that the Treaty of 1904 contains an assurance from France that rights and privileges under international law will be accorded to citizens of the United States in Tunis and also contains the surrender of extraterritorial jurisdiction of American consular officers in Tunis. It is believed that it is desirable that these two provisions of the Treaty of 1904 should continue in force.

Article XXIX deals with the duration of the Treaty and modes of terminating it.

It is important that the date on which the Treaty is to take effect be specified; and it is reasonable that that date should be the same one for all Articles of the Treaty. It is to be noted that the Treaty is to take effect on the date of the exchange of ratifications and that it will supplant the following conventions between the United States and France: The Convention of Navigation and Commerce concluded June 24, 1822; the Agreement modifying Article VII of the said Convention, concluded July 17, 1919; and the Consular Convention, concluded February 23, 1853.

The matter of duration and notice of termination is one on which there may well be divergent opinion. It is deemed wise to fix the initial period of operation at ten years in regard to all matters with respect to which the Contracting Parties have a permanent policy and to require one year’s notice of termination. As already pointed out in this instruction the provisions of the third paragraph of Article XXIX permitting the termination of the sixth and seventh paragraphs of Article VII and the whole of Articles IX and XI at the end of one year are the counterpart of a reservation made by the Senate of the United States in giving its advice and consent to the ratification of the Treaty of Friendship, Commerce and Consular Rights, signed by the United States and Germany on December 8, 1923. A like provision in regard to the duration and termination of the provisions in the treaties with Hungary and Estonia corresponding to the sixth and seventh paragraphs of Article VII and Articles IX and XI of the draft was accepted by those countries. From the point of view of this Government such a provision is necessary.

Article XXX provides for the exchange of ratifications which, if the Treaty is signed at Paris, will normally also take place at that capital.

This Government reserves the right to propose minor changes in the draft throughout the negotiations.

This Government is desirous that the conduct of negotiations be expedited as much as is consistent with devoting a proper consideration to the subject matter. The Department would like to submit the signed treaty to the Senate for its advice and consent to ratification at its session which will convene in December next.

I am [etc.]

Frank B. Kellogg

36. Foreign Relations, 1923, vol. ii, p. 45.
37. Ibid., 1913, p. 611.
38. Ibid., 1911, p. 315.
39. Malloy, Treaties, 1776–1909, vol. i, p. 774.
40. Miller, Treaties, vol. 5, p. 845.
41. Foreign Relations, 1903, p. 721.
42. Malloy, Treaties, 1776–1909, vol. i, p. 528.
43. League of Nations Treaty Series, vol. xxx, p. 371.
44. The exchanges of notes between the United States and Poland, Finland, and Estonia are printed in Foreign Relations, 1925, vol. ii, pp. 692, 86, and 70; between the United States and Rumania and Latvia in ibid., 1926, vol. ii, pp. 898 and 488; between the United States and Lithuania in ibid., 1925, vol. ii, p. 500; between the United States and Haiti in ibid., 1926, vol. ii, p. 401.
45. Austria and Sweden.
46. Foreign Relations, 1925, vol. ii, pp. 341 and 70, respectively, and ibid., 1926, vol. ii, p. 912.
47. 41 Stat. 437.
48. Foreign Relations, 1921, vol. ii, p. 29.
49. League of Nations Treaty Series, vol. vii, p. 11.
50. Foreign Relations, 1871, p. 516; also in Malloy, Treaties, 1776–1909, vol. i, p. 700.
51. Ibid., 1901, p. 243.
52. Foreign Relations, 1911, p. 723.
53. Malloy, Treaties, 1776–1909, vol. i, p. 94.
54. Brackets on the original instruction.
55. Foreign Relations, 1923, vol. ii, p. 8, and ibid., 1924, vol. i, p. 741.
56. Miller, Treaties, vol. 4, p. 33.
57. Malloy, Treaties, 1776–1909, vol. i, p. 1220.
58. Foreign Relations, 1906, pt. 2, p. 1495.
59. Ibid., 1904, p. 304.