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being subjected to discriminatory taxes are outstanding examples of provisions requiring that aliens be given as favorable treatment on matters of taxation as nationals.

The prohibition against discriminatory taxation also extends to other matters. In the treaty of commerce and navigation signed with Japan on February 21, 1911, for example, it is provided in article I in connection with the citizens and subjects of one party in the territory of the other that:

"They shall not be compelled, under any pretext whatever to pay any charges or taxes higher than those that are or may be paid by native citizens or subjects."

Similar provisions have ben embodied in all the modern comprehensive treaties of commerce and navigation concluded by the United States. Provisions in later treaties, such as those in article IX of the treaty of friendship, commerce. and navigation signed with Italy February 2, 1948, contain specific exceptions under which each country reserves the right to (1) extend specific advantages on a basis of reciprocity, (2) accord special advantages to third countries by virtue of an agreement for the avoidance of double taxation, and (3) accord nationals and residents of contiguous countries more favorable exemptions of a personal nature than are accorded to other nonresident persons.

EXEMPTION OF CONSULAR OFFICERS FROM STATE AND LOCAL TAXATION

The consular convention between the United States and Belgium, signed at Washington March 9, 1880 (art. III), provides for exemption of consular officers from all direct taxes, National, State, or municipal, levied upon their persons or their property. The exemption does not, however, extend to consular officers who are not citizens of the Nation by which they are ap pointed or who are engaged in any profession, business, or trade.

Similar provisions are found in treaties with many other countries, including Austria (1928), Bolivia (1858), Colombia (1845), Denmark (1826), France (1853), Greece (1902), Italy (1878), Mexico (1942), the Philippines (1947). Rumania (1881), Sweden (1910), and Yugoslavia (1881).

RIGHTS OF CONSULAR OFFICERS IN THE SETTLEMENT OF ESTATES

The consular convention between the United States and Costa Rica, sighed at San Jose January 12, 1948 (art. IX, sec. 2), provides that a consular officer has the right, subject to certain conditions, to act as the legal representative of a national of the country which the consular officer represents who inherits prop erty in, and is a nonresident of, the country to which the consular officer is accredited.

The treaty of friendship and commerce between the United States and Persia. signed at Constantinople December 13, 1856 (art. VI), provides that the effects of a national of one country dying in the territory of the other shall be delivered to the family or partners in business of the deceased; and in case the decra¤«! has no relations or partners, his effects shall be delivered to the consul or agert of the nation of which the deceased was a subject or citizen, so that he may dispose of them according to the laws of his country.

RIGHTS OF INDIVIDUALS AND CORPORATIONS, IN GENERAL

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It is customary for comprehensive commercial treaties (called by various names, such as treaty of friendship, commerce and navigation, treaty of commerce and navigation, or by some other designation) to contain provisors dealing with a wide variety of rights accorded individuals or corporations older treaties have little to say, if anything, with respect to corporations ber with the development of commercial and industrial intercourse through ev. porations the provisions relating specifically to them have been amplified example of a recent “modernized" version of such a treaty is the treaty of felerd ship, commerce, and navigation of February 2, 1948, with Italy (TIAS 1985) Attention is called to provisions in that treaty relating to-

(a) The right to engage in commercial, manufacturing, financial, eten. tific, educational, religions, philanthropic, and professional activities (practice of law usually being expressly or by application excepted);

(b) The right to acquire, own, erect or lease, and occupy appropriate buildings, and to lease appropriate lands, for residential, commercial, mana

facturing, processing, financial, professional, scientific, educational, religious, philanthropic, and mortuary purposes;

(c) The right of corporations and associations to have their juridicial status recognized whether or not they have a permanent establishment, branch, or agency in the territory;

(d) The right to promote, organize, and participate in corporations and associations, subject to certain conditions;

(e) The right to national treatment in regard to internal taxes, fees, and charges (i. e., the right of the resident alien to be treated in the same way as the resident citizen); and

(f) The right of the resident aliens to be treated on a par with resident citizens in regard to workmen's compensation laws or laws establishing civil liability for injury or death.

Provisions dealing with these matters, as well as the right of nationals of the reign country, upon admission, to travel and reside on a basis of equality th citizens of this country, are included in many treaties. The treaty of mmerce and navigation of July 3, 1815, with Great Britain was one of the rly treaties which contained general provisions regarding entry, residence, d travel. Among the treaties entered into since that date which include prosions similar or corresponding to those outlined above are the comprehensive mmercial treaties with the following countries:

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Indicative of the judicial view regarding the supremacy of such treaty provi-ns over conflicting State law, mention may be made of the decision of the ited States Supreme Court in Asakura v. City of Seattle et al. (265 U. S. 332, 1 (1924)), in which it was held that the commercial treaty of 1911 with Japan titled a Japanese national to carry on business as a pawnbroker in Seattle, spite a municipal ordinance limiting that occupation to American citizens. e court stated:

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* the treaty is binding within the State of Washington ***. The rule equality established by it cannot be rendered nugatory in any part of the ited States by municipal ordinances or State laws. It stands on the same ting of supremacy as do the provisions of the Constitution and laws of the ited States. It operates of itself without the aid of any legislation, State or ional; and it will be applied and given authoritative effect by the court," That case and another pertinent case are cited in Hackworth's Digest (vol. V, 195-196). In the case of Vietti et al. v. The George K. Mackie Fuel Co. 9 Kans. 179, 181-182, 197 Pac. 881, 882-883 (1921)), holding that an Italian pendent was entitled to benefits of a workmen's compensation act of Kansas a basis of equality with citizens of the United States, because of a treaty of 3 with Italy, the court stated:

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The treaty is not only binding on the contracting parties but must be regarded a part of our ow law effective and binding upon legislatures and courts If there is a conflict between the treaty and the statutory provision in question, treaty must control and the statute give way during he existence of the aty ***. The limitations of the statute being against both the letter and the rit of the treaty, it must be held to be nugatory as against the plaintiffs.”

CONTROL OF PRODUCTION AND DISTRIBUTION OF OPIUM

The convention for the suppression of the abuse of opium and other drugs, ned at The Hague January 23, 1912 (art. 1) provides that the contracting vers shall enact efficacious laws or regulations for the control of the production à distribution of raw opium, unless existing laws or regulations have already ulated the matter.

Treaty Affairs, Office of the Legal Adviser, Department of State, Washington, rch 11, 1953.)

ANNEX C

SURVEY OF FOREIGN TREATY PROCEDURES

The Department of State, on January 19, 1953, requested its diplomatic officers abroad to obtain from the governments to which they are respectively accredited summary statements of the treaty procedures of those governments. Portions of some of the replies to date in response to that request are quoted below:

Brazil (note from Mrazilian Ministry of Foreign Affairs, dated March 4, 1953, translation):

Two clauses of the Federal Constitution of the United States of Brazil refer to international agreements:

(a) ART. 66. The National Congress shall have exclusive power:

“I—to decide definitively upon treaties and conventions concluded by the President of the Republic;"

(b) ART. 87. The President of the Republic shall have exclusive power:

"VII-to conclude international treaties and conventions ad referendum to the National Congress;"

(1) Treaties or other international agreements enter into force, in Brazil

(a) In the case of an agreement submitted to the approval of the National Congress, on the date of its promulgation by the Head of the Executive Power, even though an international obligation may rise at the moment of exchange or of deposit of the instrument of ratification; (b) In the case of an administrative or executive agreement, on the date as agreed, usually the date of the signature of the instrument. Publication in the Diario Oficial is, however, required. It should be noted in this connection that the publication of the agreement in the Diario Oficial, although merely an external fact, has practical importance for the application of the agreement, since "the treaty' isbinding by virtue of its ratification, enforceable by virtue of its promulgation, applicable by virtue of its publication." (Charles Rousseau. cited by H. Accioly, Bulletin of the Brazilian Society of International Law, No. 7, p. 10.)

(2) International agreements are incorporated into domestic legislation through the decree of promulgation. Normally this presupposes approval by the Legislative Power and ratification by the Head of the Executive Power.

(3) In general, agreements which are not subject to ratification do not require the approval of the Legislative Power. For this reason, the matter agreed upon in executive agreements is incorporated into our domestic law in a manner similar to that which occurs in the exclusively domestic field with regulations issued by competent authority.

(4) Once an international agreement is incorporated into domestic legislation it is substituted for or repeals legislation until then in force on the subject. From a strictly constitutional viewpoint, however, it does not prevail as against provisions of the Federal Constitution. If any stiplation agreed upon in an international instrument is contrary to constitutional principles, it is invalid, since the Constitution can only be amended by special procedure and not by ordinary legislation, such as promulgated international agreements. In the hypothetical case of conflict between a provision of domestic law and a promulgated international agreement, the lat ter repeals the former automatically, without the requirement of any spe cial or explicit act of repeal.

(5) Brazilian legislation makes no reference to executive agreements. However, within the system of competence of the Powers, we conclude that the Executive Power may conclude international agreements falling exe'nsively within its competence. As the Legislative Power has compete ne over the discussion and approval of laws, the aforesaid agreements may not deal with legislative matter. Thus, as we have said, executive agreettec's enter into force when agreed upon by the Contracting Parties. Agreem-IIS

1 TRANSLATOR'S Note —Apparently the word "treaty" in this quotation is used brey in the sense of "International agreement.”

and other international acts submitted to the approval of the National Congress are ratified after the publication of the Legislative Decree approving them. After the exchange or deposit of instruments of ratification, the moment at which the international obligation arises, the decree of promulgation, whereby the provisions of the agreement become incorporated in domestic legislation, is issued. The agreement is then published in the Diario Oficial.

Canada (note from Department of External Affairs, Canada, dated February 7, 1953):

No distinction is made between treaties and other international agreements respecting the procedure for bringing them into force. The negotiation and entry into a treaty or other international agreement is an exceutive act, exercised in virtue of the prerogative power of the Crown, by or on the recommendation of the Secretary of State for External Affairs. Consequently, a treaty or international agreement may come into force as a binding international obligation on Canada, upon signature, or upon signature and ratification depending upon its terms. The signature is executed by a plenipotentiary, under a full power authorized by the Governor General in Council. Agreements which require ratification to give them force internationally are ratified by an instrument of ratification issued by the Governor General in Council. The signature of agreements entered into by Exchanges of Notes by the Secretary of State for External Affairs or a Canadian Ambassador acting on the instructions of the Secretary of State for External Affairs is an exercise of the prerogative power of the Crown.

The legislative, or other authority to implement a treaty or other international agreement is quite distinct from the authority to conclude or ratify. A treaty or agreement does not automatically become part of the law of Canada at the time when it becomes a binding international obligation. If a treaty does not accord with existing Canadian law, it will be necessary to alter that law, or enact new law. This is done by the Parliament of Canada or the legislatures of the Provinces, or by both, depending upon whether the subject matter of the international agreement is within federal or provincial jurisdiction.

There is no legal obligation upon the Government of Canada under the Canadian constitution to refer treaties to Parliament for approval, prior to ratification. In recent years however it has been the policy of the Government to submit, prior to ratification, agreements which require for their implementation new statute law, or amendments to existing law, especially if they involve large public expenditures, important national obligations, or far-reaching political considerations.

Parliamentary approval, when new legislation is not required is obtained by means of a joint resolution of both the House of Commons and the Senate. Such a resolution has not the force of law but is merely an expression of approval by Parliament of the action taken, or to be taken by the Government of the day.

In the event that a treaty or agreement requires implementing legislation in Canada to give it domestic force, this may be effected—

(a) Immediately upon the coming into forces of the implementing legislation, if the statute so provides. Usually statutes take effect on the day when they are given Royal assent by the Governor General; or

(b) On a day fixed by official proclamation; or

(c) At a date prescribed in a subsequent Order-in-Council, if the statute delegates discretion to the executive concerning the time and circumstances in which the international obligation shall become effective in domestic law. This Order-in-Council cannot be issued, however, until the statute has come into force.

Under Canadian procedure or practice no distinction is made between a self-executing treaty and a non-self-executing treaty.

France (unofficial statement prepared by the Ministry of Foreign Affairs, ance, February 1953, translation):

The general principles of French law and procedure concerning the conclusion and implementation of international treaties may be summarized as follows:

I. NEGOTIATION AND CONCLUSION OF TREATIES

The negotiation and conclusion of treaties come within the exclusive jurisdiction of the executive power.

This principle is set forth in article 31, paragraph 1 of the Constitution of October 27, 1946: "The President of the Republic is kept informed of international negotiations. He signs and ratifies treaties."

II. SIGNING AND RATIFICATION

According to the provisions of article 31 of the Constitution, "The President of the Republic * * signs and ratifies treaties."

(a) Signing. The signing is made by an agent having received authority from the President of the Republic.

Some treaties do not provide that ratification must follow signing. In such case where the signing is unconditional (an ad referendum signing is conditional), it is completely binding on the State.

(b) Ratification.-The President of the Republic signs the instruments of ratification, which in the case of a bilateral convention are delivered to the other party and which in the case of a multilateral convention are filed either with the international institution whose organ has drafted the treaty or with the government acting as secretariat of the treaty,

It must be kept in mind that article 38 of the Constitution, which embodies one of the fundamental principles of the parliamentary regime, stipulates: "Each act of the President of the Republic must be countersigned by the President of the Council of Ministers and by a Minister." Consequently, the acts mentioned above are countersigned by the President of the Council and the Minister of Foreign Affairs. The acts thus countersigned are binding not only on the two Ministers in question but also on the Government as a whole insofar as they concern the general policy of the Cabinet. Treaties of importance which tend to establish the international policy of France are submitted in various stages of procedure to the Council of Ministers for discussion.

The requirement of ministerial countersigning sometimes gives rise to delicate problems of constitutional validity when the countersigning is done by ministers who have already resigned. This is a situation which may develop during the various stages of the preparation of a treaty.

III. THE ROLE OF THE LEGISLATIVE POWER CONCERNING TREATIES Article 27 of the Constitution stipulates:

"27. Treaties relative to an international organization, peace treaties, commercial treaties, treaties involving State financial commitments, those concerning the status of persons and property rights of French citizens abroad. those which modify French internal legislation, as well as those which entail transfer, exchange, or adjunction of territory, do not become final until they have been ratified by virtue of a law.

"No transfer, exchange, or adjunction of territory is valid without the consent of the interested populations."

1. Legislative action when required occurs only at one of the last stages of procedure. Parliament by means of a law authorizes the Executive to give ratification as result of which France will be bound by the treaty.

2. The Parliament's intervention for the purpose of authorizing the Execu tive to ratify a treaty is required for certain categories of treaties only, of which article 26 [27] gives the following list:

(a) Treaties relating to international organization;

(b) Peace treaties;

(c) Trade treaties;

(d) Treaties involving financial commitments for the State;

(e) Treaties relating to the rights of individuals:

(f) Treaties relating to property rights of French citizens abroad; (g) Treaties modifying French internal laws;

(k) Treaties covering transfer, exchange, or adjunction of territories As regards the latter treaties, the Constitution requires, in ad·litici, the consent of the interested populations.

In the case of treaties covering subjects which are listed in article 26 [27], the Executive cannot evade the obligation of requesting Parliament's authorization for ratification by concluding treaties requiring signature only and not providing for ratification. In such circumstances the Executive wou.d have to request the Parliament's authorization before giving a final signature.

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