711.572/71
The Norwegian Minister (Bachke) to the Secretary of State
Mr. Secretary of State: Referring to my note of May 7th, 1928, I now have the honor to communicate the further remarks of my Government to the comments in Your Excellency’s notes of March 23 and April 6, 1928, on certain observations made in the note of this Legation of December 9, 1927, regarding the draft treaty of Friendship, Commerce and Consular Rights between Norway and the United States, now under negotiation. These remarks, which I take leave to submit hereafter, will be found to deal also with articles XIX and XXIV of the draft treaty referred to in Your Excellency’s note of May 22nd, 1928, the receipt of which is hereby acknowledged.
[Page 635]Article I
First paragraph. The amendment proposed in your note dated March 23, 1928, is acceptable to the Norwegian Government.
With regard to the second paragraph Your Excellency has in the said note formulated the following addition, viz.:
“This paragraph does not apply to charges and taxes on the acquisition and exploitation of waterfalls, mines or forests.”
This addition is acceptable to my Government, who, however, would prefer the words “energy produced by waterfalls” to be inserted after the word “waterfalls”.
Article VI
The amendment to Article VI, proposed by the Legation and formulated in Your Excellency’s note, dated April 27th, is acceptable to my Government.
Article VII
With regard to the final (additional) paragraph of Article VII, the proviso regarding short boundary traffic was formulated in my note dated December 9, 1927, as follows:
“Neither of the High Contracting Parties shall by virtue of the provisions of the present Treaty be entitled to claim the benefits which have been granted or may be granted to neighbouring states in order to facilitate short boundary traffic.”
In the revised text of Article VII accompanying your note dated March 23, 1928, this paragraph has been worded as follows:
“Neither of the High Contracting Parties shall by virtue of the provisions of the present Treaty be entitled to claim the benefits which have been granted in order to facilitate short boundary traffic.”
If the American Government has no particular objections thereto, my Government would prefer the wording to stand as originally suggested.
The revised text of this Article is otherwise acceptable to my Government.
Article VIII
It is agreed that the words “goods, products, wares” be inserted after the word “nationals” appearing twice in Article VIII.
Article IX
I am authorized by my Government to state that it agrees with the opinion expressed by me when discussing with your Department [Page 636] the proposed new text of Article IX, namely that my Government would not under Article IX as now modified consider that it would be in a position to demand preferential treatment equivalent to that accorded vessels coming from a particular geographic region for Norwegian vessels coming to the United States from other regions.
Article XIV
The Norwegian Government observes that the American Government is willing to have Article XIV and XV of the draft substituted by a single Article which places commercial travellers on a most favored nation basis. The text suggested by the State Department for the new Article, to become Article XIV of the Treaty, is entirely satisfactory to my Government.
Article XV
(Originally Article XVI)
The amended wording of this Article, as proposed by the State Department, is acceptable to my Government.
Article XVII
(Originally Article XVIII)
The proposal of the State Department that the second and third paragraph[s] of this Article be unchanged and that there be added to the same a new paragraph reading
“No consular officer shall be required to testify in either criminal or civil cases regarding acts performed by him in his official capacity”
does not cover the requirements of the Norwegian legislation. My Government feels that the second paragraph should be amended, as outlined in my note of December 9, 1927, so that its first period would read as follows:
“In criminal cases the attendance at the trial by a consular officer as witness may be demanded by the prosecution or the defense, or by the court, except in regard to acts performed by such consular officer in his official capacity.”
In the same way my Government finds that paragraph three should be amended, so that the first period of the same would read as follows:
“Consular officers shall, except in regard to acts performed by them in their official capacity, be subject to the jurisdiction … etc.”
If the American Government should be unable to accept these amendments, my Government suggests that paragraph two be amended by inserting only the words “or by the court” as quoted above, [Page 637] and that paragraph three be omitted. Under Norwegian law, the judge, as well as the prosecution and the defense, is entitled to call witnesses.
Article XVIII
(Originally Article XIX)
The omission of the second paragraph is accepted.
Article XX
(Originally Article XXI)
The wording of this article, as given in the State Department’s note, dated March 23, 1928, is acceptable to my Government.
Article XXII
(Originally Article XXIII)
First paragraph. Re the words “provided the local laws so permit” and the substitution of a new wording for same.
The reasons why my Government found the said first paragraph unsatisfactory are stated in my note of December 9th, 1927. Your Excellency’s note of April 6th, 1928, explains why the expression to which the Norwegian Government takes exception “does not establish a condition of inequality as between the Government or the laws of the United States and the Government or laws of Norway”. 1 am to say in this connection that my Government is unable to share this opinion of the matter. The facts of the case are that under Norwegian law all disputes between the master and the crew on board Norwegian ships shall, when the ship is abroad, be submitted to the consul for decision, and that a master is entitled to dismiss any seaman who causes such a dispute to be referred to any foreign authorities. The expression to which my Government takes exception would make it possible that laws were passed in the United States prohibiting a foreign consul there from exercising any jurisdiction at all in civil cases over members of vessels belonging to the consul’s nation. This provision of the Treaty would thus lend itself to limiting the exclusive right of jurisdiction in these cases granted by Norwegian legislation to Norwegian consuls. It will be readily understood that the Norwegian Government would be extremely loath to accept such a provision. An amendment to the effect that the words cited above be deleted and the words “provided, however, that the local laws also may decide that the local authorities shall have jurisdiction over cases of this character”, to be substituted therefore would, as I have had the honor to inform [Page 638] Your Excellency’s Department, be somewhat less unsatisfactory, in so far as the latter wording would not prohibit the consul from exercising jurisdiction but would constitute a recognition of such local laws as place jurisdiction over such issues in the local courts. Such a wording would appear to be consistent with the views of the American Government, as in your note of April 6th, 1928, (page 4) it is stated that the expression to which my Government takes exception would not operate to prevent the submission of issues concerning the adjustment of wages etc. to the consuls, but would merely concede the operation of the laws of the United States if a master or a seaman should seek to invoke them. It seems therefore that the expression contained in the draft treaty goes further than considered necessary by your Department. Under the verbal negotiations I was informed, on May 15th, that the American Government, while willing not to insist upon retaining the original wording, would prefer in lieu of the change suggested as an improvement by my Government the following wording “provided, however, that such jurisdiction shall not exclude the jurisdiction conferred on local authorities under existing or future laws”. My Government has instructed me to accept this modification, but I am desired to say that it is with the greatest reluctance my Government gives its consent to any clause rendering possible the jurisdiction of foreign local courts over controversies concerning adjustment of wages etc. on board Norwegian vessels, and that it does so only in order not to jeopardize the signing of the treaty. The Norwegian Government does not admit that the American Government has the right to prevent the laws of Norway from being applied on board Norwegian ships in American territorial waters in regard to issues concerning the adjustment of wages and the execution of wage contracts, neither is my Government aware of any country except the United States ever having claimed to possess any such right. When in Your Excellency’s note it is said that the expression to which my Government takes exception would apply to the jurisdiction of American Consuls in Norway in the same way that it would apply to Norwegian consuls in the United States, my Government desires me to say that the courts in Norway have no jurisdiction over civil cases touching the internal order on board foreign ships in Norwegian ports. The number of American vessels calling at Norwegian ports is, moreover, very small while a very great number of Norwegian vessels call at American ports. When in the note of Your Excellency it is observed, that the said expression “does not establish a condition of inequality as between the Government or the laws of the United States and the Government or laws of Norway”, this is, therefore, a statement which my Government is unable to accept.
[Page 639]Article XXIII
(Originally Article XXIV)
In view of the comments made in Your Excellency’s note of April 6, 1928, relating to the suggestions of my Government of certain alterations in this article, my Government accepts said article in its original form, with the additions consented to by the American Government, viz.: 1) The paragraph submitted by me at the conference on May 15th, as amended in Your Excellency’s note of May 22nd; 2) The insertion of the words “whereby he has appointed testamentary executors” after the words “without will or testament” in the original second paragraph.
My Government appreciates the acceptance by Your Excellency of these modifications.
Article XXIV
(Originally Article XXV)
My Government agrees to the wording of paragraphs one and two, as amended by the State Department.
The words “subjects or citizens” in paragraph one apparently ought to be changed to “nationals” which latter term is that usually employed in this connection throughout the draft.
Article XXV
(Originally Article XXVI)
The addition proposed by the State Department is acceptable to my Government.
Article XXVI
(Originally Article XXVII)
My Government would as previously stated prefer Article XXVII to be changed by omitting “consular officers … as are its nationals” and substituting therefor the expression “consular officers de carrière”. The article as it now reads would, through most-favored-nation clauses in treaties between Norway and other countries, accord to an honorary consul in Norway being a national of the country by which he was appointed and not engaged in any private occupation for gain, customs privileges, to which he would not be entitled under Norwegian practice. It is recognized, however, that the case of honorary consuls of such a category will not arise often, wherefore my Government does not feel inclined to stress this point.
[Page 640]The Norwegian Government agrees otherwise with the provisions of the first paragraph of this article; it is also agreed that the second paragraph of the same be retained.
Article XXIX
(Originally Article XXX)
It is with great satisfaction that the Norwegian Government has learnt that Your Excellency is willing to accede to its wishes in having omitted from the Treaty the third paragraph of the original article XXX of the draft.
The first lines of the first paragraph, containing a reference to paragraph three, would then have to be modified accordingly.
With regard to the last paragraph of this article, is is desired that the words “… and the King of Sweden and Norway” be changed to “… and the King of Norway and Sweden.”
The insertion in same paragraph of the words “as between Norway and the United States”, desired by the Department of State, is accepted.
Please accept [etc.]