by them from San Domingo upon Article IX. of the treaty with the Dominican Republic, which is as follows: "No higher or other duty shall be imposed in the importation into the United States of any article of growth, produce, or manufacture of the Dominican Republic, or of her fisheries; and no higher or other duty shall be imposed on the importation into the Dominican Republic of any article the growth, produce, or manufacture of the United States or their fisheries, than are or shall be payable on the like articles, the growth, produce, or manufacture of any other foreign country, or its fisheries." In Bartram v. Robertson, the Supreme Court had held that brown and unrefined sugars, the produce and manufacture of the island of St. Croix, a Danish possession, were not exempt from duty by force of the treaty with Denmark, though similar goods from the Hawaiian Islands were thus exempt. The first article of the treaty with Denmark provided that the contracting parties should not grant "any particular favour" to other nations, in respect to commerce and navigation, which should not immediately become common to the other party, who should enjoy the same freely if the concession were freely made, and upon allowing the same compensation if the concession were conditional. Article IV. provided that no higher or other duties should be imposed by either party on the importation of any article of its produce or manufacture, into the country of the other party, than were payable on like articles, being the produce or manufacture of any other foreign country. The Supreme Court had held that "Those stipulations, even if conceded to be self-executing by the way of a proviso or exception to the general law imposing the duties, do not cover concessions like those made to the Hawaiian Islands for valuable consideration. They were pledges of the two contracting parties, the United States and the King of Denmark, to each other, that in the imposition of duties on goods imported into one of the countries which were the produce or manufacture of the other, there should be no discrimination against them in favour of goods of like character imported from any other country. They imposed an obligation upon both countries to avoid hostile legislation in that respect. But they were not intended to interfere with special arrangements with other countries founded upon a concession of special privileges." In Whitney v. Robertson, counsel for the plaintiffs contended that the omission from the treaty with the Republic of San Domingo of the Danish-American provision as to free concessions, and concessions upon compensation, precluded any concession in respect of commerce and navigation by the U.S. Government to another country without that concession being at once extended to San Domingo. The Supreme Court, however, held that the absence of this provision did not change the obligations of the United States; that Article IX. of the treaty with San Domingo was "substantially like Article IV. in the treaty with the King of Denmark." It was a pledge of the contracting parties that there should be no discriminating legislation against the importation of articles which were the growth, produce, or manufacture of their respective countries, in favour of articles of like character imported from any other country, but "it had no greater extent." "It was never designed to prevent special concessions, upon sufficient considerations, touching the importation of specific articles into the country of the other." "It would require the clearest language to justify a conclusion that the U.S. Government intended to preclude itself from such engagements with other countries, which might in the future be of the highest importance to its interests." With all respect to the great authority of the decisions of the United States Supreme Court, the language of the Treaty in question seems of the clearest, and diametrically opposed to its ruling. The treaty regulating the trade relations between Great Britain and the United States (July 3, 1815), continued in force 1 and reported in an official return to the British Parliament, Commercial No. 4, 1907, to be in operation between the two countries down to January 1, 1907, is practically in the same terms, providing that "No higher or other duties shall be imposed on the importation into the territories of His Britannic Majesty in Europe of any articles of growth, produce, or manufacture of the United States, and no higher or other duties shall be imposed in the importation into the United States of any articles the growth, produce, or manufacture of His Britannic Majesty's territories in Europe, than are or shall be payable on the like articles, being the growth, produce, or manufacture of any foreign country" (Art. II.). 1 Continued in force by Treaties of October 20, 1818, and August 6, 1827, the latter terminable after twelve months' notice. The form adopted in the treaty between Great Britain and Uruguay of July 15, 1899, leaves nothing to construction; it specifically restricts the application of the clause : "It was also agreed that the stipulations contained in the Treaty which is to be renewed do not include cases in which the Government of the Oriental Republic of Uruguay may accord special favours, exemptions, and privileges to the citizens or products of the United States of Brazil, of the Argentine Republic, or of Paraguay in matters of commerce. Such favours cannot be claimed on behalf of Great Britain on the ground of most-favoured-nation rights as long as they are not conceded to other States. It is, nevertheless, understood that the said special favours, exemptions, and privileges shall not be capable of application to products similar to those of Great Britain, nor be extended to navigation. The same may be said of the Franco-German Treaty of Frankfort (May 10, 1871). Article II. of that treaty provides as follows: "The treaties of commerce with the different States of Germany having been annulled by war, the French and German Governments will base their commercial relations upon the system of reciprocal treatment on the footing of the most favoured nation. "This rule shall not apply, however, to the favours which either of the Contracting Parties, by commercial Treaties, has granted or shall grant to States other than the following:-England, Belgium, Holland, Switzerland, Austria, and Russia. . . . "Nevertheless, the French Government reserves to itself the faculty to establish on German vessels and their cargoes, tonnage and flag duties, under reserve that these duties shall not be higher than those which are imposed upon vessels and cargoes of the above mentioned nations." of The German-Austro-Hungarian Treaty of commerce December 6, 1891, amended and completed by that of January 25, 1905, provides that no more favourable conditions in respect of "import, export, or transit" duties shall be granted by either Contracting Party to a third Power than are accorded to the other Party, and that any concessions of this kind made to a third Power shall at once be applied to the other (Art. II.), any dispute relating to this provision to be referred to arbitration (Art. XXIII.). This seems equally clear in the contrary sense.1 In Europe the American view has found a supporter (semble) in Prof. F. de Martens, who considers that a distinction must be made between a case where a commercial advantage is granted purely and simply, and a case where there is simply an exchange of bons procédés or a dédommagement. "In the former case alone have other States a right to claim the same advantage. To grant it in the second would be contrary to the principle of the reciprocity of commercial obligations." 2 The same opinion was also arrived at much earlier by a distinguished French writer, M. Hautefeuille, who, in answer to the question of whether the condition of being treated as the most favoured nation only carried the advantages existing at the time of the signature of the treaty, or comprised those which should be subsequently conceded to another State, answered that the 1 The forms of most-favoured-nation clauses vary considerably. That of the Treaty of Commerce and Navigation between Great Britain and France of February 28, 1882, runs: "Each of the High Contracting Parties engages to give the other immediately and unconditionally the benefit of every favour, immunity, or privilege in matters of commerce or industry which may have been or may be conceded by one of the High Contracting Powers to any third nation whatsoever, whether within or beyond Europe." The British Treaty of Commerce with Honduras of January 21, 1887, provides : "The High Contracting Parties agree, that in all matters relating to commerce and navigation, any privilege, favour, or immunity whatever which either contracting party has actually granted or may hereafter grant to the subjects or citizens of any other State shall be extended immediately and unconditionally to the subjects or citizens of the other contracting party; it being their intention that the trade and navigation of each country shall be placed in all respects by the other on the footing of the most favoured nation' (Article I.). The Anglo-Roumanian Treaty of August 13, 1892: "The subjects, vessels, and goods, produce of the soil and industry of each of the two High Contracting Parties shall enjoy in the dominions of the other all privileges, immunities, or advantages granted to the most favoured nation" (Article I.). 2 Droit International (1886), ii. p. 322. "At the present day, when national interests are so entangled and complex," says M. Lehr, "it is always a serious matter to bind oneself in advance by a clause which is vague and general, and the eventual bearing of which cannot be estimated. There have been several instances in the course of the last few years in which a Power in the negotiation of a treaty has been in the necessity of refraining from granting concessions, because being extended by virtue of the clause, without any compensation whatever to a whole series of other countries, they would have been disastrous to the national industry." See Ernest Lehr, Revue de Droit International, 1893, p. 315. clause must be considered as implying everything that existed at the moment when signed, but that it could not be considered to extend to anything later in date.1 1 Histoire des Origines, etc. (1858), ii. pp. 300, 301. It is evident that it will be necessary in future treaties of commerce to be careful to provide against the possibility of a construction which might frustrate the very objects for which most-favoured-nation clauses are resorted to, namely, to prevent any third Power from enjoying special advantages. Meanwhile the interest of stable international relations requires that the sense of the existing terminology of the clause should be defined.2 2 See draft clause on the subject, p. 159. SUGGESTED AND DRAFT TREATIES CLAUSES (N.B.—As already stated in the Preface, these drafts are mere endeavours to indicate with precision and in detail the contractual form the international regulation of different matters of international practice might take. Several necessarily overlap, and in no sense are the drafts to be regarded as forming a complete whole.) |