unt Stare or sectional interests could be affected by treaty. It had further swn how the advantages one seerion desped to gun by treaty might have Ti je poranei at the expense of another serion. The Jay-Ga¬doqui negociations dersi “de jelentes 1 striking example of the potentialices of the trea y tower. Daud T geen concinnied, would have given substantial commercial DATENS TO e Northern States and those States ned up in favor of L The kiturages, however, were jocainagie only in return for a commitment to JILT tesire of the Mississippi River 5) American commerce and navigation fir 25 r * Tears. The Southern States were una terapiy opposed to this *minimear, and Jay's request for authorit to negotiate on this basis falled in CRA States to 5. Je leegies at the Philadelphia Convention, after considering many alter as inally derved upon the two-dinis rie, which was equivLent in verns of the new Constitition to the 9-State rule of the Articles of Confederation at nad Diesel the Spanish negotiation. This represented, as was the case va man her provisions of die Constitution, the drawing of a ine balance berveen generi and particular interest. In this case the freedom of action Tempel for dealing with a threatening international situation was balanced A Memate protection for important domestic interests, and the greatest Amount of friteerion compatible with the ability to act effectively in the national sety was urovided for. The delegates were faced with the drastle couseCiences the cry power could have to their most vital interests, vet, after full deliberation, the only limitation they deemed necessary was the two-thirds zu ́e. It was with the tray clauses in this form that the Constitution was submatted to the States for ratification and adopted by them. The treaty clauses were approved by the States without change and with little opposition. In the ranty conventions interest in the treaty power seems to have waned as d'stance from the Mississippi River increased. The most intensive discussions occurred in States having an immediate stake in the control of that river. For the most part, these discussions refect more the practical concerns aroused by the Jay-Gardoqui negotiations than theoretical considerations as to the exercise of that newer in hypothetical future situations III Elort's Debates 315, 315. 341, 353. However, the treaty clanses found strong defenders in these States. as well as in the Northern and Eastern States, and their conviction that the treaty power as framed at the Philadelphia Convention wou'd serve the country well prevailed. 蕾 Economic Treaties Branch. Department of State. March 31, 1953.) ANNEX B TREATY PROVISIONS PREVAILING OVER INCONSISTENT STATE LAWS ON SUBJECTS ON WHICH TREATIES WERE NECESSARY FOR THAT PURPOSE There are a large number of treaty provisions, many of which were concluded in the early days of this Government, which prevail over inconsistent State laws on subjects where, in the absence of treaty provisions, the authority of the Congress to legislate was considered nonexistent, or at least questionable. The number of subjects to which those provisions relate is relatively small but each of them is important. The necessity for treaties on most of the subjects mentioned has long been recognized as an important factor in the develop ment and maintenance of friendly relations with foreign nations. While not to be considered as all-inclusive, the following is a representative list of such subjects covered in treaties concluded by the United States: Real and personal property rights of aliens, especially in connection with the right to inherit and dispose of property and the proceeds thereof. Regulation of fisheries of international concern. Regulation of migratory birds and other wildlife of international concern. Exemption of consular officers of other nations from taxation. Rights of consular officers in the settlement of estates. Rights of aliens to engage in trade and related activities, manufacturing, and professional activities. Control of production and distribution of opium. The following comments and tabulations are indicative of the consistent praetice of the United States of including such provisions in treaties. 30572-53-54 REAL AND PERSONAL PROPERTY RIGHTS OF ALIENS The treaty of amity, commerce, and navigation concluded with Great Britain November 19, 1794 (the Jay Treaty), which was the first treaty concluded by the United States after the adoption of the Constitution, provides in articles IX and X as follows: "ARTICLE IX "It is agreed that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of His Majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein; and may grant, sell or devise the same to whom they please, in like manner as if they were natives; and that neither they nor their heirs or assigns shall, so far as may respect the said lands and the legal remedies incident thereto, be regarded as aliens. "ARTICLE X "Neither the debts due from individuals of the one nation to individuals of the other, nor shares, nor monies, which they may have in the public funds, or in the public or private banks, shall ever in any event of war or national differences be sequestered or confiscated, it being unjust and impolitic that debts and engagements contracted and made by individuals, having confidence in each other and in their respective Governments, should ever be destroyed or impaired by national authority on account of national differences and discontents." The rights of aliens to dispose of their personal property within the United States by testament, donation, or otherwise, and the rights of aliens to take real property, at least to the extent of having a reasonable time to sell it and withdraw the proceeds without being subjected to discriminatory taxes, have long been protected by treaty, as indicated by the following list of countries with which such treaties were concluded in the early years indicated: Certain representative types of property provisions contained in other treaties, dating from 1846 on, are set forth below: Treaty of 1853 with Argentina respecting friendship, commerce, and navigation, article IX (T. S. 4; 10 Stat. 1009; 18 Stat. (2) 18): Provides that in the acquisition and disposition of property of every sort and denomination, either by sale, donation, exchange, testament, or otherwise, citizens of the two contracting parties shall enjoy same privileges, liberties, and rights as native citizens. Treaty of 1846 with Colombia respecting peace, amity, navigation, and commerce, article XII (T. S. 54; 9 Stat. 886; 18 Stat. (2) 552): Provides that citizens of each party have power to dispose of real or personal property within jurisdiction of other by sale, donation, testament, or otherwise; and their representatives, being citizens of other party, shall succeed to the property and dispose of it at will. Treaty of 1928 with Austria respecting friendship, commerce, and consular rights, article I (T. S. 838; 47 Stat. 1877): Provides that nationals of contracting parties within territories of other shall be permitted to own, erect, or lease appropriate buildings and to lease lands for residential, scientific, commercial, etc., purposes on same terms as nationals of the country. Similar provisions are contained in the treaty of 1926 with El Salvador (T. S. 827; 46 Stat. 2818), the treaty of 1925 with Estonia (T. S. 736; 44 Stat. 2379), the treaty of 1934 with Finland (T. S. 868; 49 Stat. 2660), the treaty of 1923 with Germany (T. S. 725; 44 Stat. 2133) and others. Treaty of 1928 with Austria (cited above), article IV: Provides that nationals of one party inheriting real property or interests in the territory of the other shall be allowed 3 years, or longer if necessary, to sell the property and withdraw the proceeds, without being subject to discriminatory taxes. Similar provisions are contained in the treaties with El Salvador, Estonia, Finland, and Germany (cited above) and in the property convention of 1901 with Guatemala (T. S. 412; 32 Stat. 1944). Treaty of 1858 with Bolivia respecting friendship, commerce, and navigation, article XII (T. S. 32; 12 Stat. 1004; 18 Stat. (2) 69). Provides that citizens of one party may dispose of personal goods within jurisdiction of other, and that their representatives, being citizens of other country, shall succeed to personal goods on same terms as would inhabitants. Similar provisions are contained in the treaty of 1934 with Finland (T. S. 868; 49 Stat. 2660), the property convention of 1899 with Great Britain, article II (T. S. 146; 31 Stat. 1939), and the property convention of 1901 with Guatemala, article I (T. S. 412; 32 Stat. 1944). REGULATION OF FISHERIES OF INTERNATIONAL CONCERN The necessity for Federal regulation of certain fisheries of international concern was recognized in the negotiation of the treaty with Great Britain regarding fisheries in United States and Canadian waters, signed at Washington April 11, 1908. While that treaty was never actually applied, it was ratified by the President, with the advice and consent of the Senate, and proclaimed on July 1, 1908. The halibut fisheries conventions signed with Canada on May 9, 1930, and January 29, 1937, and the sockeye salmon fisheries convention signed with Canada on May 26, 1930, each of which established international commissions for the investigation and regulation of the fisheries, are examples of treaties under which the Federal Government undertook the exclusive regulation of certain fisheries in collaboration with the government of another nation. The convention between the United States and other governments for the northwest Atlantic fisheries, dated at Washington February 8, 1949, is another outstanding example of establishing international regulation of fisheries that could not be accomplished without a treaty. REGULATION OF MIGRATORY BIRDS AND OTHER WILDLIFE The convention between the United States and Great Britain for the protection of migratory birds signed August 16, 1916, was negotiated after a Federal law for the protection of migratory birds was held invalid as not being within the power of the Federal Government. After the convention was brought into force and enabling legislation enacted, the legislation was upheld by the court on the basis of the treaty (Missouri v. Holland, 252 U. S. 416 (1920)). The convention establishes a closed season for certain migratory game birds, migratory insectivorous birds, and other migratory nongame birds listed in the convention. A similar convention signed with Mexico February 7, 1936, extends to game mammals as well as migratory birds. A convention (to which the United States is a party) which extends more broadly in the protection of wildlife is the inter-American convention on nature protection and wildlife preservation opened for signature at Washington October 12, 1940. NATIONAL TREATMENT OF ALIENS AS TO TAXATION Provisions in treaties prohibit the imposition upon aliens or their property of taxes higher or otherwise more burdensome than those imposed upon nationals. Such prohibitions apply to the various States and political subdivisions thereof as well as to the Federal Government. The treaty provisions hereinbefore mentioned regarding the rights of aliens to dispose of real and personal property and withdraw the proceeds without 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 appointed 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, signed 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 property 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 deceased has no relations or partners, his effects shall be delivered to the consul or agent 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 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 provisions dealing with a wide variety of rights accorded individuals or corporations. The older treaties have little to say, if anything, with respect to corporations, but with the development of commercial and industrial intercourse through corporations the provisions relating specifically to them have been amplified. An example of a recent "modernized" version of such a treaty is the treaty of friendship, commerce, and navigation of February 2, 1948, with Italy (TIAS 1965). Attention is called to provisions in that treaty relating to (a) The right to engage in commercial, manufacturing, financial, scientific, educational, religious, 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, manu 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 foreign country, upon admission, to travel and reside on a basis of equality with citizens of this country, are included in many treaties. The treaty of commerce and navigation of July 3, 1815, with Great Britain was one of the early treaties which contained general provisions regarding entry, residence, and travel. Among the treaties entered into since that date which include provisions similar or corresponding to those outlined above are the comprehensive commercial treaties with the following countries: Argentina, 1853 Brazil, 1828 Chile, 1832 Guatemala, 1849 China, 1844 Colombia, 1824 Dominican Republic, 1867 Ecuador, 1839 Honduras, 1864 Nicaragua, 1867 Peru, 1851 El Salvador, 1850 Indicative of the judicial view regarding the supremacy of such treaty provisions over conflicting State law, mention may be made of the decision of the United States Supreme Court in Asakura v. City of Seattle et al. (265 U. S. 332, 341 (1924)), in which it was held that the commercial treaty of 1911 with Japan entitled a Japanese national to carry on business as a pawnbroker in Seattle, despite a municipal ordinance limiting that occupation to American citizens. The court stated: ** * * the treaty is binding within the State of Washington * * *. The rule of equality established by it cannot be rendered nugatory in any part of the United States by municipal ordinances or State laws. It stands on the same footing of supremacy as do the provisions of the Constitution and laws of the United States. It operates of itself without the aid of any legislation, State or national; 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, pp. 195–196). In the case of Vietti et al. v. The George K. Mackie Fuel Co. (109 Kans. 179, 181-182, 197 Pac. 881, 882-883 (1921)), holding that an Italian dependent was entitled to benefits of a workmen's compensation act of Kansas on a basis of equality with citizens of the United States, because of a treaty of 1913 with Italy, the court stated: "The treaty is not only binding on the contracting parties but must be regarded as 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, the treaty must control and the statute give way during he existence of the treaty ***. The limitations of the statute being against both the letter and the spirit 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, signed at The Hague January 23, 1912 (art. 1) provides that the contracting powers shall enact efficacious laws or regulations for the control of the production and distribution of raw opium, unless existing laws or regulations have already regulated the matter. (Treaty Affairs, Office of the Legal Adviser, Department of State, Washington, March 11, 1953.) |