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A Decade of New Commercial Treaties

Published online by Cambridge University Press:  28 March 2017

Robert R. Wilson
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Type
Editorial Comment
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American Journal of International Law , Volume 50 , Issue 4 , October 1956 , pp. 927 - 933
Copyright
Copyright © American Society of International Law 1956

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References

1 The treaties with Nationalist China (T.I.A.S. No. 1871), Ireland (ibid. No. 2155, 1 U.S.T. 785), Italy (T.I.A.S. No. 1865—supplemented by Agreement of Sept. 26, 1951, S. Ex. H, 82nd Cong., 2nd Sess.), Ethiopia (T.I.A.S. No. 2864, 4 U.S.T., Pt. 2, 2134), Federal Republie of Germany (S. Ex. E, 84th Cong., 1st Sess.), Japan (T.I.A.S. No. 2863, 4 U.S.T., Pt. 2, 2063), Israel (T.I.A.S. No. 3948, 5 U.S.T., Pt. 1, 550), and Greece (T.I.A.S. No. 3057), respectively.

2 Those with Denmark (S. Ex. I, 82nd Cong., 2nd Sess.), Iran (S. Ex. E, 84th Cong. 2nd Sess.), Nicaragua (S. Ex. G, 84th Cong., 2nd Sess.), The Netherlands (S. Ex. H 84th Cong., 2nd Sess.), and Uruguay (S. Ex. D, 81st Cong., 2nd Sess.), respectively.

3 The treaty with Colombia, signed April 26, 1951 (S. Ex. M, 82nd Cong., 1st Sess.) was withdrawn from the Senate June 30, 1953, while the treaty with Haiti, signed March 3, 1955, is still to be passed upon by that body.

4 The treaty with Uruguay is styled “Friendship, Commerce and Economic Development.” That with Ethiopia is labeled “Amity and Economic Relations,” and the treaty with Iran is one of Amity, Economic Relations, and Consular Rights, these two treaties being in a somewhat shorter form than the other thirteen listed. For discussion of the omission from the Iranian treaty of certain provisions of the “model” treaty, see Commercial Treaties with Iran, Nicaragua and The Netherlands, Hearings Before the Senate Committee on Foreign Relations, July 3, 1956, pp. 2–3, 15, 17, 18, 20.

5 1 Malloy, Treaties 468.

6 44 Stat. 2132.

7 See Walker, Herman, Jr. “Provisions on Companies in United States Commercial Treaties,” 50 A.J.I.L. 373–393 (1956).Google Scholar Certain other aspects of the new treaties have been the subject of comment by the present author in 43 A.J.I.L. 262–287 (1949), 44 ibid. 145–149 (1950); 45 ibid. 83–107 (1951); 47 ibid. 20–48 (1953); 48 ibid. 355–379 (1954); 49 ibid. 366–370 (1955).

8 See, for example, Arts. VII (1) and (2), VIII (2), and Protocol, pars. 9 and 10 of the treaty with The Netherlands.

9 See, in particular, Art. VII (3) of the treaty with Ireland. The 1937 commercial treaty with Siam (53 Stat. 1731), which did not follow the regular model of the interwar period, did make some use of the idea of reciprocity with respect to the acquisition, possession and disposition of immovable property. See the seventh and eighth paragraphs of its Art. I.

10 The following paragraph (IX(2)) of the Netherlands treaty is illustrative:

“Nationals and companies of the United States of America shall be accorded, within the territories of the Kingdom of the Netherlands, national treatment with respect to acquiring by purchase, lease, or otherwise, and with respect to owning, occupying and using land, buildings and other real property. However, in the case of any such national domiciled in, or any such company constituted under the laws of, any State, Territory or possession of the United States of America that accords less than national treatment to nationals and companies of the Kingdom of the Netherlands in this respect, the Kingdom of the Netherlands shall not be obligated to accord to such national or company treatment more favorable in this respect than such State, Territory or possession accords to nationals and companies of the Kingdom of the Netherlands.”

11 See, for illustrations, Arts. VI(5) and XVIII(2) and (3) of the treaty with Israel.

12 Illustrated in Art. 111(2) of the treaty with Greece, by which nationals of either party shall be permitted “to collect and transmit informational material for dissemination to the public abroad and to communicate with other persons located either within or outside the territory of the other Party, by mail, telegraph or any other means open to general public use.” By the following paragraph this is subject to either party’s right to apply measures necessary to maintain public order and to protect the public health, morals and safety.

13 See, for example, Art. XIII of the treaty with Italy.

14 The typical clause on liberty of conscience and freedom of worship is subject to the reservation referred to in the second sentence of note 12 above.

15 Par. 2(b) of the protocol accompanying the treaty with China: “The words ‘not forbidden by the laws and regulations …’ as used in Article II, paragraph 2, shall be construed to mean such prohibitory laws and regulations as are applicable alike to nationals of the country and to nationals of the other High Contracting Party.”

16 See, for example, the first two paragraphs of Art. XXIII of the treaty with The Netherlands. Par. 4 of the same article explains, as does each of the new treaties, the manner in which national treatment accorded to companies is to be construed. In the United States it is to be the treatment, in any State, Territory or possession of the United States, accorded to companies created or organized under other States, Territories or possessions. In The Netherlands, it is to be the treatment, in any Part of the Kingdom, accorded to companies organized or created in any other Part of the Kingdom. See also, in this treaty, the special rule as to national treatment of U. S. nationals in any Part of The Netherlands outside Europe.

17 The possible legal effect of such wording is discussed in Robert R. Wilson, The International Law Standard in Treaties of the United States 92–105 (1953).

18 See, for example, Art. III(1) of the treaty with Nicaragua. The part of this treaty which mentions compensation for property taken for a public purpose refers to “public purposes and reasons of social utility as defined by law” (Art. VI(4)). When this treaty was before the Senate Committee on Foreign Relations, it was brought out that the last nine words of those just quoted were inserted at the request of the Nicaraguan negotiator, but that the Department of State did not believe there was any significant difference between these words, as understood in Nicaragua, and the phrase “for a public purpose,” as understood in the United States. (Hearings (cited in note 4 above), p. 21.)

19 The first two of the fifteen signed treaties referred, in this exceptions provision, to essential security interests “in time of national emergency,” but the more recent ones have omitted this phrase.

20 See note 11 above.

21 Quotations are from the Netherlands treaty (XII(2)). Exceptions also permit a party to take measures necessary to “maintain or restore adequacy in its monetary reserves, particularly in relation to its external commercial and financial requirements.” On the matter of rates, the recent treaties provide that, if more than one applies to withdrawals contemplated by the treaties, a Party shall apply a rate approved for the purpose by the Fund, or, in the absence of this, a “just and reasonable” one.