be difficult indeed to get treaties having such an effect through Congress. The maximum-and-minimum plan would, in his opinion, be clumsy if the minimum duties represent a horizontal reduction from the maximum. To obviate these difficulties he suggests a modification of the latter system; that Congress expand the list of articles contained in section 3 of the Dingley Act and leave to the President the making of reciprocity bargains. Such a system would, he believes, operate with less difficulties than others, and would admit of the adoption by the United States of the European favored-nation practice, thereby leading us to the elimination of many difficulties.170 Since it is a fact that commercial policies differ, and since it is known to every diplomat that treaties have been made and are being made under different circumstances and with differing wording, old misunderstandings ought to be cleared up, and mutual recriminations should cease. The attitudes of the leading representatives of the opposing interpretations have been repeatedly stated and regularly maintained. The tariff policies and the motives of each are well known to the others. The treaty-making authorities of each of the great nations have little excuse for entering into future most-favorednation treaties with others and subsequently claiming that the interpretation put upon the favoring clause by those others is unfair as each may see in advance what the interpretation is to be. A general agreement should be reached as to the interpretation of each form of the clause, and, if possible a common form should be devised whose meaning will be unequivocal, which can be accepted or rejected upon an absolute basis of interpretation. Von Steck and Von Melle recognized, long since, the necessity for definite and unequivocal 170 Willis: Reciprocity with Germany. Journal of Pol. Econ., 15:385–398, 1907. Back of this [the problem of tariff policy] is the question to be determined by the State Department with regard to the future interpretation of the most-favored-nation clause. The adoption of the European interpretation of that clause will bring our commercial diplomacy into line with that of other nations, and will do away with serious danger of friction in the future. Could the adoption of the European interpretation be coupled with such a policy of tariff revision as has been suggested, the commercial difficulties which now threaten, not only from the side of Germany, but in other quarters as well, would be definitely removed." (Ib., 394-395.) stipulations.171 De Martens and Lehr have advocated a more exact definition, for instance a provision that "the contracting parties shall concede to one another all the advantages relative to commerce and navigation accorded by them gratuitously to any other power whatsoever," advantages accorded by exchange or for compensation to be entirely excluded from this class.172 This suggested form accords almost exactly with the interpretation of the United States. The possible objection to it lies in the comprehensiveness of "any other power whatsoever." Count Posadowsky has said that in future treaty-making it will be necessary to individualize the question of most-favored-nation treatment more specifically, and to examine cases individually.173 Dr. Chester Lloyd Jones strongly urges the advantages which attach to the American usage. As applied both to treaty-making and legislation in general the interpretation of the most-favored-nation clause adopted by the United States has the decided advantages of flexibility and certainty. It allows the adjustment of relations to varying conditions and thus avoids the adoption of uniform rules which in many cases would in fact amount to discrimination. It also avoids the uncertainty on the part of the legislatures and the courts which must of necessity be present when, due to the interlocking of the provisions of various treaties it is not clear to which body of facts any law or treaty may apply.174 Sig. Cavaretta believes that whatever reform is made should be on a basis of reciprocity and that treaties should be concluded for a definite period of time.175 Reciprocity is certainly, although it may not be admitted in individual instances, the principle aimed at in the commercial policies of modern nations. 171 Cf. Von Melle, op. cit., p. 207. 172 # * * nous pensons d'accord avec notre éminent collègue qu'il est essentiel de remplacer cette clause dans les traités à conclure par une définition plus exacte, par exemple, par une disposition portant que les parties contractantes se concèdent mutuellement tous les avantages relatifs au commerce et à la navigation, accordés par elles gratuitement à n'importe quelle autre puissance.' Quant aux avantages accordés moyennant échange ou compensation, il nous paraît qu'ils devraient toujours être exclus de la clause." (Lehr, op. cit., 315-316.) 173 In the Reichstag, January 15, 1903. Quoted in Glier, p. 323. 174 Lloyd Jones: The American Interpretation of the most-favored-nation clause. Annals American Academy, 32:393, 1908. 175 Cavaretta, op. cit., 167-168, and note 2. Whether accepting, as many do, or not, the idea of framing a clause which will embody the principles involved in the "compensa tion" form, all who discuss the clause agree that care should be taken in making future treaties, and that the interests of commerce and international good-fellowship demand that nations come to an agree ment as to means and methods for avoiding misinterpretation. In 1902, the Dairy Congress in Belgium adopted a resolution favoring either the abolition of the clause, or the insertion of a provision restricting it and specifying that its operation should not extend to reductions of duties or the liberty of trade which had been conceded to other nations on a basis of reciprocity.176 As a result of discussion at the Pan-American Scientific Congress, at Santiago, Chile, December 25, 1908, to January 5, 1909, the Congress voted: The Pan-American Scientific Congress, in view of the difficulties which have been caused by the interpretation of the most-favored-nation clause, recommends that the bearing of the clause should be defined in each treaty in which it is stipulated. When the most-favored-nation clause is granted, the respective governments should remain free to make special concessions to neighboring countries. 177 Sir Thomas Barclay suggested in a paper read at the Conference of the International Law Association at Portland, Maine, August 3, 1907, this resolution: * Whereas any varying interpretation of the most-favored-nation clause gives rise to instability * * it is suggested that any state holding itself to be aggrieved by any such varying interpretation should be entitled to cite the co-contracting party before the Hague Court, and that the jurisdiction of the said Hague Court in all such matters should be accepted without reservation.178 176 Argentina: Doc. Dip. y Consulares. Bol. No. 17, pp. 17-18, 1903. 177 Senor Ernesto Frias. of Uruguay, read a paper in which he favored the abandonment of the most-favored-nation clause for a system of maximum, minimum, and special tariffs. Senor Julio Philippi, of Chile, argued that the mostfavored-nation clause need not be considered incompatible with other systems of tariff policy, and urged that much of the inconvenience which attaches to the use of the clause on account of the uncertainty as to its interpretation could be avoided if nations would stipulate in the treaties in which they insert the clause just what interpretation is to be given it. 178 See Yale Law Journal, 1907, p. 32. A hopeful sign appears in the arbitration provisions which are being incorporated in increasing number in the texts of commercial treaties. For instance, the protocol following the treaty between Great Britain and Italy of June 15, 1883, declared that: Any controversies which may arise respecting the interpretation or execution of the present treaty, or the consequences of any violation thereof shall be submitted, when the means of settling them by amicable agreement are exhausted, to the decision of the commissioners of arbitration, and the result of such arbitration shall be binding upon both governments.179 The new German treaties, with the exception of that with Russia, provide for arbitration of difficulties over the interpretation or application of the tariff or of most-favored-nation treatment. Most of the others of the recent group of central European treaties contain similar provisions.180 STANLEY K. HORNBECK. 179 The next paragraph prescribed for the selection of the commission. 180 See Treaty between Austria-Hungary and Germany, January 25, 1905. The treaty between Great Britain and Bulgaria, November 26, 1907, provides, article 18, that " any controversies application of the tariffs annexed * * * regarding the interpretation or including the additional stipulations * as well as the rates of the Convention tariffs agreed upon between the contracting parties and third states, shall, on the demand of one or other be adjusted by means of arbitration." The treaty between Great Britain and Servia, March 31, 1908, article 14, contains similar provisions. THE INTERNATIONAL OPIUM COMMISSION Part 2 GOVERNMENT ACTION SINCE THE PUBLICATION OF THE PHILIPPINES REPORT Following the issue of the Philippines Report, and as the diplomatic correspondence proceeded, which led to the International Commission, action after action was taken by the interested governments to control or stamp out the misuse of opium. The Chinese government was prompt, and her leaders and people enthusiastic. January, 1906, saw four of her great viceroys publish a manifesto on the subject. Part of it ran: "As Great Britain is the friend of China, she will shortly be called to assist the Chinese government to stamp out the evil." The Chinese government prohibited, without qualification, the use of opium in the Imperial colleges and schools, and in the recently created army. The Peking Gazette, of September 20, 1906, published the following decree: Imperial Decree Since the restrictions against the use of opium were removed, the poison of this drug has practically permeated the whole of China. The opium smoker wastes time and neglects work, ruins his health, and impoverishes his family, and the poverty and weakness which for the past few decades have been daily increasing amongst us are undoubtedly attributable to this cause. To speak of this arouses our indignation, and, at a moment when we are striving to strengthen the Empire, it behooves us to admonish the people, that all may realize the necessity of freeing themselves from these coils, and thus pass from sickness into health. It is hereby commanded that within a period of ten years the evils arising from foreign and native opium be equally and completely eradicated. Let the Government Council (Cheng Wu Ch'u) frame such measures as may be suitable and necessary for strictly forbidding the consumption of the drug and the cultivation of the poppy, and let them submit their proposals for our approval. Late in November eleven articles were made public for the enforce ment of the above Edict. They are as follows: |