Obrázky stránek
PDF
ePub

July 30, 1902, Lord Lansdowne, besides referring to the fact that Lord Salisbury's note of July 15, 1899, had not been answered and that the Indian countervailing duties had meanwhile continued in operation, cited the records of the Brussels conference as proving that Russia paid an indirect bounty and also called attention to the fact that by Article VII. of the convention of 1902 provision was made for an international commission to determine the question of bounty in each case, so that if Russia should become a party to the convention she would have the benefit of the examination authorized by that article. He also reiterated the views expressed by Lord Salisbury as to the operation of the most-favored-nation clause.

The Russian government, in reply, contended, by a memorandum of September 24, 1902, that under the British government's interpretation of that clause the merchandise of countries which granted to exported produce favorable railway rates or maritime freights might be subjected to higher customs duties; that countervailing duties might even be imposed because goods were subject to lower taxes in one country than in another, or because the natural conditions of industry in a particular country were specially favorable; that, on the same principle, it would be necessary to lower the duties on goods which had to pay an export duty, or if, as in the case of England, there were no import duties to lower, then to pay a bounty. This principle, so the memorandum affirmed, Russia altogether rejected. She maintained that the most-favored-nation clause did not fetter the right of either party to adopt such domestic legislation as it might deem useful for the development and encouragement of national industry. In conclusion, the Russian government offered to submit the question to arbitration.

November 20, 1902, Lord Lansdowne, replying to the Russian memorandum, stated that, with regard to such forms of encouragement as the reduction of railway rates, etc., it would be the duty of the international commission, to be established under the Brussels convention, to decide whether such internal measures were or were not "in effect equivalent to bounties." He denied, however, that a rebate or a bonus might be claimed on sugar subject to an export duty in the country of origin, since "the remedy in this instance also would obviously lie in the hands of the exporting state." He further stated that His Majesty's government did not consider the question at issue one proper to be submitted to arbitration. The course they had taken was, he declared, dictated solely by a desire to secure "equality of conditions" for those engaged in the production and refining of sugar; and as other states did not hesitate to impose high and prohibitive tariffs for the protection of their trade in their own markets, His Majesty's government failed to see with what reason the Russian government could "complain of a measure

not of favor, but of simple and elementary justice to British trade.” In conclusion, he renewed the offer to denounce the treaty of 1859.

In a memorandum of January 14, 1903, the Russian government, adhering to its previous position, remarked that it might, if it thought fit to do so, alter its legislation, but that it could not be required to do so in order to avoid the application of penal measures which violated the most-favored-nation clause. The memorandum also maintained that the opinion prevailed in the sugar bounties conference of 1888 that the enforcement of the penal clause in respect of bountyfed sugars would necessitate the denunciation of commercial treaties based on the most-favored-nation principle. In conclusion, the memorandum, referring to the statement that the Brussels convention would be applied to Russian sugar only in case the international commission should find that bounties resulted from the Russian system, observed that the question must still be considered an open one, concerning which a further exchange of views should be suspended till the decision of the commission.

Correspondence with the Russian Government Respecting the Interpretation of the Most-Favored-Nation Clause in Connection with Countervailing Duties on Bounty-Fed Sugar; Parliamentary Papers, Commercial, No. 1 (1903).

See, also, Correspondence relating to the sugar conference at Brussels,
1901-1902, presented to Parliament April, 1902; Correspondence re-
lating to the Brussels Sugar Bounty Conference, Miscellaneous, No. 5
(1902).

It appears that Denmark declined to sign the convention of 1888, owing
to a belief that Article VII. conflicted with the most-favored-nation
clause in several of her treaties. (Mr. White, sec. of legation, to
Mr. Bayard, Sec. of State, Sept. 10, 1888, For. Rel. 1888, I. 746.)
See, also, For. Rel. 1888, I. 749-750; Olney, At. Gen., Nov. 13, 1894, 21
Op. 80, 82.

For a return of most-favored-nation clauses in existing treaties of com-
merce and navigation between Great Britain and foreign powers, in
force July 1, 1903, see Parl. Papers, Commercial, No. 9 (1903).

Where a tax is imposed on all sugar produced, but is remitted on all sugar exported, and the exporter obtains from his government, solely by reason of such exportation, a certificate which has an actual value and is salable in the open market, the remission of the tax is in effect a bounty which subjects the sugar, on its importation into the United States, to an additional duty to the entire amount of the bounty, according to the act of Congress of July 24, 1897, 30 Stat. 205.

Downs v. United States (1903), 187 U. S. 496.

(5) MISCELLANEOUS CASES.

$769.

"It may fairly be considered then as the rational and received interpretation of the diplomatic term 'gentis amicissima' [mostfavored-nation] that it has not in view a nation unknown in many cases [as was the United States at the time when the older treaties containing the phrase were used] at the time of using the term, and so dissimilar in all cases as to furnish no ground of just reclamation to any nation."

Mr. Jefferson, Sec. of State, Report to the President, Mar. 18, 1792, 7 Jefferson's Works, 584; 1 Am. State Papers, For. Rel. 255.

See Lawrence's Wheaton (1863), 493; Visser, La Clause de "La Nation la plus favorisée" dans Traités de commerce (Revue de Droit Int. tom. IV., deuxième série, pp. 66, 159).

"Indeed, we are infinitely better without such treaties [i. e., treaties of commerce] with any nation. We can not too distinctly detach ourselves from the European system, which is essentially belligerent, nor too sedulously cultivate an American system, essentially pacific. But if we go into commercial treaties at all, they should be with all, at the same time, with whom we have important commercial relations. France, Spain, Portugal, Holland, Denmark, Sweden, Russia, all should proceed pari passu. Our ministers, marching in phalanx on the same line, and intercommunicating freely, each will be supported by the weight of the whole mass, and the facility with which the other nations will agree to equal terms of intercourse, will discountenance the selfish higglings of England, or justify our rejection of them. Perhaps, with all of them, it would be best to have but the single article gentis amicissima, leaving everything else to the usages and courtesies of civilized nations." (Mr. Jefferson to Presi

dent Madison, Mar. 23, 1815, 6 Jefferson's Works, 453.)

"Though treaties which merely exchange the rights of the mostfavored nations are not without all inconvenience, yet they have their conveniences also. It is an important one, that they leave each party free to make what internal regulations they please, and to give what preferences they find expedient to native merchants, vessels, and productions. And as we already have treaties on this basis, with France, Holland, Sweden, and Prussia, the two former of which are perpetual, it will be but small additional embarrassment to extend it to Spain. On the contrary, we are sensible it is right to place that nation on the most-favored footing, whether we have a treaty with them or not, and it can do us no harm to secure by treaty a reciprocation of the right."

Report of Mr. Jefferson, Mar. 18, 1792, 7 Jefferson's Works, 587; 1 Am.
State Papers, For. Rel. 256.

The provision in Art. III. of the treaty between the United States and Great Britain of 1794 for the equalization in certain cases of the

[ocr errors]

import duties on goods and merchandise" did not extend to tonnage dues.

Breckenridge, At. Gen., 1806, 1 Op. 155.

In 1825 Mr. Clay instructed Mr. Poinsett, in his negotiations with Mexico, to endeavor to substitute for the rule of the most-favored nation, as embodied in the treaty between the United States and Colombia of 1824, the rule of placing the commerce and navigation of the one country on the same footing as that of the other, so far as that rule was exemplified by the act of January 7, 1824. The rule of the most-favored nation, said Mr. Clay, might not be and scarcely ever was equal in its operation between two contracting parties, nor was it so simple as the proposed substitute. In order to ascertain the quantum of favor, which might be claimed in virtue of a stipulation embracing that rule, it was necessary that the claimant " should be accurately informed of the actual state of the commercial relations between the nation on which the claim of equal favor is preferred and all the rest of the commercial world; " and when this information was acquired, it was "not always very easy to distinguish between what was a voluntary grant and that which was a concession by one party for an equivalent yielded by the other." Sometimes the equivalent for the alleged favor might be diffused through all the stipulations of the treaty, and sometimes might not even be clearly deducible from it. From some or all of these causes it so happened that in the practical application of the rule of the mostfavored nation perplexing and embarrassing discussions sometimes

arose.

Mr. Clay, Sec. of State, to Mr. Poinsett, min. to Mexico, March 25, 1825,
Am. State Papers, For. Rel. VI. 578.

Engagements of extradition, whether of fugitives from justice or from service, stand in each case on particular stipulations of treaty, and are not to be inferred from the "favored-nation" clause in treaties.

Cushing, At. Gen., 1853, 6 Op. 148.

Treaty, stipulations declaring what shall and what shall not be regarded as contraband do not come within the operation of the most-favored-nation clause.

The James and William (1902), 37 Ct. Cl. 303.

The most-favored-nation clause is applicable to stipulations giving the right to consular officers to administer on the estates of their deceased countrymen.

In re Fattosini's Estate (1900), 67 N. Y. Supp. 1119, 33 Misc. 18.

By Art. VIII. of the treaty between the United States and Russia of Dec. 18, 1832, consular officers of the contracting parties are to enjoy at their respective ports "the same privileges and powers as those of the most-favored nations." By Art. X. of the treaty between the United States and the Argentine Confederation of July 27, 1853, if a citizen of either party "shall die without will or testament" in the territory of the other, the proper consul-general or consul, or, if he be absent, his representative" shall have the right to intervene in the possession, administration and judicial liquidation of the estate of the deceased, conformably with the laws of the country, for the benefit of the creditors and legal heirs." Similar clauses may be found in other treaties of the United States. Held, that, under these clauses, by virtue of the most-favored-nation stipulation, the Russian vice-consul at Boston was entitled, in preference to the public administrator, to administer on the personal estate of a Russian subject who died intestate within the vice-consul's jurisdiction, leaving a wife and three minor children in Russia.

Wyman . McEvoy (1906), Supreme Judicial Court of Massachusetts.

I am indebted for an advance report of this decision to Frederic R. Coudert, esq., of the New York bar, who was of counsel for the vice-consul. It has since been published in the New York Law Journal of April 16, 1906.

The provision of an American pilotage law, exempting from pilotage American coastwise vessels, is not an infringement of the treaty stipulation that "no higher or other duties or charges shall be imposed in any of the ports of the United States on British vessels than those payable in the same ports by vessels of the United State."

Olsen v. Smith (1904), 195 U. S. 332, 344.

Article VI. of the treaty of amity and commerce between the United States and Mexico of April 5, 1830, provided that the same duties should be paid on the importation into the one country of the products of the other, whether the importation was made in a Mexican vessel or in a vessel of the United States. It was held that this stipulation did not prevent the two governments from imposing discriminating duties on the productions of other countries when imported in Mexican or American vessels. The Department of State referred, however, to Article III. of the treaty, which stipulated that the citizens of the two countries, respectively, should not pay higher or other duties than the citizens of the most-favored nation, and to Article V. of the treaty between Mexico and Denmark of July 19, 1827, which stipulated that the products of any country other than Denmark might be carried to Mexico from any part of the world without paying higher duties than were charged on the same articles

« PředchozíPokračovat »