¹ Department of State, Treaties and Other International Acts Series, No. 1871; this JOURNAL, Supp., Vol. 43 (1949), p. 27.

² 57 Stat. 767; this JOURNAL, Supp., Vol. 37 (1943), p. 65.

³ Text in S. Ex. E, 80th Cong., 2nd Sess. ; also Cong. Eeeord, June 2, 1948, 80th Cong., 2nd Sess., Vol. 94, Part 5, p. 6929.

⁴ Department of State, Treaties and Other International Acts Series, No. 1648; this JOURNAL, Supp., Vol. 42 (1948), p. 47.

⁵ The then Chief of the Division of Commercial Policy of the Department of State told a Senate subcommittee on April 30, 1948, that there were between 12 and 15 such treaties under consideration (Hearings, cited in note 35, infra, p. 270). In the summer of 1948 there was a press announcement in Manila of negotiations between the United States and the Philippines (Manila Times, June 30, 1948), and later in the summer a press announcement concerning negotiations between the United States and Australia (New York Journal of Commerce, Aug. 30, 1948). On Oct. 15, 1948, it was announced that, following exploratory conversations in the preceding May, negotiations between the United States and Ireland had been resumed in Dublin (Department of State Bulletin, Vol. XIX, No. 486 (Oct. 24, 1948), p. 526).

⁶ 44 Stat. 2132. The latest treaty in this series was the Treaty of Friendship, Commerce and Navigation between the United States and Liberia, signed Aug. 8, 1938 (54 Stat. 1739).

⁷ Cf. Arthur Nussbaum, A Concise History of the Law of Nations (1947), p. 201. On the relative importance of the most-favored-nation principle in relation to modern commercial policy, see Eichard C. Snyder, The Most-Favored-Nation Clause (1948), p. 238.

⁸ Clark v. Allen (1947), 331 U. 8. 503; this JOURNAL, Vol. 42 (1948), p. 201. As is well known, Congress has sometimes taken cognizance, through reference in legislation, of commercial treaties. For example, sec. 3 of the Act of Feb. 5, 1816 (14th Cong., 1st Sese.) provided that “... nothing in this act contained shall be so construed as to contravene any provision of any commercial treaty . . . concluded between the United States and any foreign power . . .” (3 Stat. 253). See also the wording of the “treaty-merchant” clause in Sec. 3 (6) of the Immigration Act of 1924, as amended (cited in note 52, infra, p. 274).

⁹ Wilson, Robert E., “International Law in Treaties of the United States,” this JOURNAL, Vol. 31 (1937), pp. 271-288 Google Scholar.

¹⁰ On the general subject of national treatment as a standard, see William S. Culbert-son, International Economie Policies (1925), Ch. II, and William M. Gibson, Aliens and the Law (1940), passim.

¹¹ In the treaties ‘ ‘ corporations and associations ’ ’ are defined to include corporations, companies, partnerships and other associations, whether or not with limited liability and whether or not for pecuniary profit, created or organized under the applicable laws and regulations of the country in which they are chartered. Such creation or organization, and not the having of a permanent establishment, branch or agency in the state of origin, is made the condition of their having their juridical status recognized within the territory of the other party to the treaty.

¹² Art. III, par. 3. On the national treatment point the paragraph would appear to take into account Chinese company law. See Chap. VIII, Art. 297, The Company Law of China (English translation by Chao-yuen C. Chang, Shanghai, 1946).

¹³ The types of activities enumerated in the treaty with Italy (Art. III, par. 2) include commercial, manufacturing, processing, mining, educational, philanthropic, religious and scientific. The corresponding part of the treaty with China (Art. IV, par. 2) mentions all of these except mining. A proviso in the same paragraph of the treaty with China makes clear that neither party is obligated to accord such right to organize, control and manage, on terms as favorable as those accorded to its own nationals, corporations and associations. Once organized, however, these domestic, alien-controlled corporations are, with respect to their functioning for the purposes listed in this paragraph, to receive national treatment.

¹⁴ See, for example, Art. XII of the treaty of commerce between the United States and Norway, signed June 5, 1928 (47 Stat. 2135).

¹⁵ An exception is the right referred to in note 13, supra (which right, however, is, in the case of the treaty with China, to be considered in relation to the proviso referred to in the same note).

¹⁶ Art. XXIV, par. 5, treaty with Italy; Art. XXVI, par. 5, treaty with China.

¹⁷ Art. II, par. 3, treaty with Italy; Art. III, par. 3, treaty with China.

¹⁸ Art. V, par. 1, treaty with Italy; Art. VI, par. 1, treaty with China.

¹⁹ Art. I, par. 2.

²⁰ An exception was the treaty with Austria, signed June 19, 1928 (47 Stat. 1876) (Art. I, par. 3). Another was the treaty with Siam, cited in note 24, infra.

²¹ Art. VII, par. 1 (b).

²² Par. 3 of the Annex to the Exchange of Notes accompanying the Sino-British Treaty for the Eelinquishment of Extraterritorial Eights in China, signed Jan. 11, 1943, provides that “... nationals of each High Contracting Party will enjoy the right to acquire and hold real property throughout the territories of the other High Contracting Party in accordance with the conditions and requirements prescribed in the laws and regulations of that High Contracting Party.” Parliamentary Papers, Cmd. 6456, China No. 1 (1943) ; this JOURNAL, Supp., Vol. 37 (1943), p. 62.

²³ Art. VIII, par. 1.

²⁴ 53 Stat. 1731 (Art. I, para. 7 and 8).

²⁵ Final sentence of Art. IV, par. 1: “With respect to the ownership of stock by nationals, corporations and associations of either High Contracting Party in corporations and associations of the other High Contracting Party engaged in mining on public lands of such other High Contracting Party, neither High Contracting Party shall be obligated by the provisions of this paragraph to accord rights and privileges greater than those which its nationals, corporations and associations receive from the other High Contracting Party.”

²⁶ See note 13, supra.

²⁷ 30 U. S. C (1948), sec. 181. For an instance of the invocation of the rule of reciprocity in this legislation, see U. S. Foreign Relations, 1928, Vol. III, pp. 375-407

²⁸ Art. VIII, treaty with Italy; Art. IX, treaty with China.

²⁹ The protocol paragraph reada as follows : “So long as the laws and regulations of either High Contracting Party đo not accord to its own nationals, corporations and associations protection against translations, the provisions of the third sentence of Article IX shall not be construed to obligate that High Contracting Party to accord to nationals, corporations or associations of the other High Contracting Party protection against translations. ‘ ‘

³⁰ Hearings before a Subcommittee of the Committee on Foreign Eelations, United States Senate, 80th Cong., 2nd Sess., on a Treaty of Friendship, Commerce and Navigation between the United States of Ameriea and the Republic of China, together with a Protocol Thereto, signed at Nanking on November 4, 1946 (May 26, 1948), especially at pp. 66-69.

³¹ 33 Stat. 2208. The pertinent provisions are in Article XI of the treaty.

³² S. Ex. Eepts. Nos. 6, 8, 80th Cong., 2nd Sess. The text of the Senate reservation is in S. Ex. Eept. No. 8, at p. 8; also in this JOURNAL, Supp., Vol. 43 (1949), p. 52.

³³ Art. VI, par. 4. The provision refers to any controversy ‘ ‘ susceptible of settlement by arbitration, which involves nationals, corporations or associations of both High Contracting Parties and is covered by a written agreement for arbitration.’ ’

For discussions in 1931 concerning commercial arbitration, in connection with negotiations for relinquishment of extraterritorial rights in China, see U. S. Foreign Belations, 1931, Vol. III, pp. 766, 773, 783, 800, 820, 887, 898-899.

³⁴ S. Con. Ees. 53, Sept. 21, 1944 (58 Stat. 1119).

³⁵ Hearings before a Subcommittee of the Committee on Foreign Relations, United States Senate, 80th Cong., 2nd Sess., on A Proposed Treaty of Friendship, Commerce and Navigation between the United States and the Italian Republic (April 30, 1948), p. 9. In these hearings there is, at pp. 16-18, a summary comparison of provisions in the treaty with Italy with those in the treaty between the United States and Norway, signed June 5, 1928 (47 Stat. 2135).

³⁶ See, for example, Art. X of the Treaty of Friendship, Commerce and Navigation with Argentina, signed July 27, 1853 (10 Stat. 1005), and Art. I of the Treaty of Commerce and Navigation with Japan (37 Stat. 1504).

³⁷ See, for example, Art. VI of the treaty of 1923 with Germany, cited supra, note 6.

³⁸ Art. XIII, par. 2, treaty with Italy; Art. XIV, par. 2, treaty with China.

³⁹ Protocol, par. 2: “Bights and privileges with respect to commercial, manufacturing and processing activities accorded, by the provisions of the Treaty, to privately owned and controlled enterprises of either High Contracting Party within the territories of the other High Contracting Party shall extend to rights and privileges of an economic nature granted to publicly owned or controlled enterprises of such other High Contracting Party, in situations in which such publicly owned or controlled enterprises operate in fact in competition with privately owned and controlled enterprises. The preceding sentence shall not, however, apply to subsidies granted to publicly owned or controlled enterprises in connection with: (a) manufacturing or processing goods for government use, or supplying goods and services to the government for government use; or (b) supplying, at prices substantially below competitive prices, the needs of particular population groups for essential goods and services not otherwise practicably obtainable by such groups.”

⁴⁰ In Art. V, par. 2 of the treaty with Italy, and in Article VI, par. 2 of the treaty with China, there are provisions in regard to exchange withdrawal in the event of the taking by one party of property in its territory belonging to nationals and companies of the other party. Such provisions did not appear in earlier commercial treaties of the United States.

In Art. VIII, par. 2 of the treaty with China there is a provision for exchange withdrawal, in the event that a national of one party is allowed to dispose of immovable property which he is disqualified, by reason of his alienage, to inherit in the other party state. A rule allowing reasonable time to dispose of property under such conditions is familiar in American treaties (see, for example, Art. IV of the 1923 treaty with Germany, cited supra), but the specific provision concerning exchange withdrawal is new.

⁴¹ Art. XVIII, par. 1, treaty with Italy ; Art. XX, par. 1, treaty with China.

⁴² There is, in the protocol accompanying each treaty, an exception for postal services (par. 3 of protocol with Italy and par. 8 of protocol with China).

⁴³ Art. XVIII, par. 2, treaty with Italy ; Art. XX, par. 2, treaty with China. The treaty with Italy contains a provision (Art. XXIV, par. 6) not found in commercial treaties of the type which the United States made between 1923 and 1938, to the effect that no enterprise of either party which is publicly owned or controlled shall, if it engages in listed kinds of activities within the territories of the other party, claim or enjoy, either for itself or its property, immunity therein from taxation, from suit, from execution of judgment, or from any other liability to which a privately owned and controlled enterprise is subject in such territories. On the current tendency with respect to jurisdictional immunities of government corporations, see Philip С Jessup, A Modern Law of Nations (1948), p. 20.

⁴⁴ Art. XV.

⁴⁵ Art. XVIII, par. 3.

⁴⁶ Note 40, supra.

⁴⁷ Art. XIX, par. 1, treaty with Italy; Art. XXI, par. 2, treaty with China.

⁴⁸ Art. XXI, par. 1, treaty with Italy; Art. XXIII, par. 1, treaty with China.

⁴⁹ Art. XXII, par. 2.

⁵⁰ Art. XXIII, treaty with Italy; Art. XXV, treaty with China.

⁵¹ Art. XXIV, par. 1 (c).

⁵² 8 U. S. C. (1948), see. 203.

⁵³ Art. II, par. 4, treaty with China; Art. XXIV, par. 7, treaty with Italy.

⁵⁴ Ewing, Hampton D., “Untested Air Bights in Our Treaties of Friendship, Commerce and Consular Rights,” Air Law Review, Vol. 4 (1933), pp. 48-57 Google Scholar. The view was apparently not accepted by the Department of State.

⁵⁵ Art. XXV.

⁵⁶ Art. XXVI, treaty with Italy; Art. XXVIII, treaty with China. There is a slight difference in wording, the former treaty using the words “shall not satisfactorily adjust by diplomacy,” while the latter uses the words ‘‘can not satisfactorily adjust by diplomacy,’ ’ in referring to disputes which shall be submitted to the International Court.

⁵⁷ The subsequent declaration of the President of the United States accepting the Optional Clause jurisdiction, subject to the exceptions which the Senate had thought necessary, is in Department of State, Treaties and Other International Acts Series, No. 1598.

⁵⁸ Hearings (cited in note 30, supra), at pp. 29-30.

⁵⁹ Department of State, Treaties and Other International Acts Series, No. 1591.

⁶⁰ S. Ex. Repts. (cited in note 32, supra), at p. 6 in each report.

⁶¹ For background statement, especially on the position which the Senate has taken in the past on the matter of actual modes of referring, see Wilson, Robert R., “Clauses Relating to Reference of Disputes in Obligatory Arbitration Treaties,” this JOUBNAL, Vol. 25 (1931), pp. 469-489 Google Scholar.

⁶² 8 Stat. 12. On the extent to which this first treaty recorded what the French rather than what the Americans desired, see Setser, Vernon G., The Commercial Reciprocity Policy of the united States, 1774-1829 (1937), pp. 15-22 Google Scholar.

⁶³ 8 Stat. 228.

⁶⁴ See Wright, Quincy, “A Model Consular Convention,” this JOURNAL, Vol. 42 (1948), pp. 866-868 Google Scholar.

⁶⁵ Art. IX, par. 3, treaty with Italy; Art. X, par. 2, treaty with China.

⁶⁶ See note 54, supra.

⁶⁷ See, for example, the Convention for the Protection of Industrial Property, signed June 2, 1934 (63 Stat. 1748). The development with respect to participation by the United States is summarized in Hyde, C. C., International Law Chiefly as Interpreted and Applied by the United States (1945 ed.), Vol. I, pp. 680-685 Google Scholar.

⁶⁸ Art. VIII, treaty with Italy; Art. IX, treaty with China.

⁶⁹ See also the provision in par. 5 (b) of the protocol accompanying the treaty with China, this JOURNAL, Supp., Vol. 43 (1949), p. 51.

⁷⁰ Notes 29, 30 and 32, supra.

⁷¹ Department of State Bulletin, Vol. XIX, No. 487 (Oct. 31, 1948), p. 562.

⁷² See treaties which the United States concluded with Uruguay in 1918 (41 Stat. 1663), Guatemala in 1918 (ibid. 1669), Panama in 1919 (ibid. 1696), Venezuela in 1919 (ibid. 1719), El Salvador in 1919 (ibid. 1725), and Paraguay in 1919 (42 Stat. 2128).

⁷³ See for example, Arts. XIV and XV of the 1923 treaty with Germany, cited in note 6, supra.

⁷⁴ Art. X, treaty with Italy; Art. XI, treaty with China.

⁷⁵ The latter type of agreement is illustrated in the bilateral conventions with Great Britain (Jan. 13, 1902, 32 Stat. 1914) and with Guatemala (Aug. 27, 1901, ibid. 1944). See also the Supplementary Convention with the United Kingdom, Australia and New Zealand, signed May 27, 1936 (55 Stat. 1101).

⁷⁶ Note 43, supra.

⁷⁷ Wilson, Robert E., ‘ ‘Toward a World Conference on Trade and Employment,’’ this JOUKNAL, Vol. 41 (1947), pp. 127-131 Google Scholar; and “Proposed ITO Charter,” ibid., pp. 879-885. References to the Charter in the following pages are to the Havana Charter for an International Trade Organization, Department of State Publication No. 3206 (Commercial Policy Series 114).

⁷⁸ Department of State, Treaties and Other International Acts Series, No. 1700.

⁷⁹ Art. XXIV, par. 3 (c), treaty with Italy; Art. XXVI, par. 3 (c), treaty with China.

⁸⁰ so See Art. 38, par. 1 of the Charter in relation to Art. XV, par. 1 of the treaty with Italy and Art. XVI, par. 1 of the treaty with China.

⁸¹ See Art. 29 of the Charter in relation to Art. XVIII, par. 1 of the treaty with Italy and Art. XX, par. 1 of the treaty with China.

⁸² See Art. 38, par. 2 of the Charter in relation to Art. XV, par. 2 of the treaty with Italy and Art. XVII, par. 2 of the treaty with China.

⁸³ See Art. 33 of the Charter in relation to Art. XXIII of the treaty with Italy and Art. XXV of the treaty with China.

⁸⁴ Art. 20, par. 1.

⁸⁵ See comment on them in Department of State Publication No. 3206, pp. 11-13.

⁸⁶ See Chap. V of the Charter in relation to Art. XV of the treaty with China and Art. XVIII, par. 3 of the treaty with Italy.

Space limitations of a brief article preclude discussion of the pertinent provisions of the new commercial treaties in relation to provisions of the Charter with respect to investment (Chap. III, particularly Art. 12). Foreign investment provisions in the Charter are the subject of critical comment by Lester H. Woolsey in this JOURNAL, Vol. 42 (1948), pp. 121-128.

⁸⁷ See exchange of notes effected at the time ratifications of the Sino-American treaty were exchanged. Department of State, Treaties and Other International Acts Series, No. 1871.

⁸⁸ See Art. 18 of the Charter in relation to Art. XVI, par. 1 of the treaty with Italy and Art. XVIII, par. 1 of the treaty with China.

⁸⁹ On the place of the treaties in general economic foreign policy, see Willonghby, Woodbury, “Commercial Foreign Policy of the United States,” Department of State Bulletin, Vol. XIX, No. 480 (Sept. 12, 1948), at pp. 325-328 Google Scholar.

⁹⁰ Art. XXIV, par. 1 (e), treaty with Italy; Art. XXVI, par. 1 (d), treaty with China. The former treaty also includes in the general exceptions article a statement to the effect that provisions according most-favored-nation treatment shall not apply to “advantages which, pursuant to a decision made by the United Nations or an organ thereof or by an appropriate specialized agency in relationship with the United Nations, may hereafter be accorded by either High Contracting Party to areas other than those enumerated in subparagraph (d) of the present paragraph.” (Art. XXIV, par. 3 (e).)

⁹¹ Art. XIII, par. 2, treaty with Italy; Art. XIV, par. 2, treaty with China.

⁹² Wilson, Robert R., “International Law and Proposed Freedom of Information,” this JOURNAL, Vol. 39 (1945), pp. 790-793 Google Scholar; see also Whitton, John B., “The United Nations Conference on Freedom of Information,” this JOURNAL, Vol. 43 (1949), p. 73 Google Scholar.

⁹³ For a statement on freedom of information made by Mr. Thorp of the United States at a plenary session of the Economic and Social Council on Aug. 27, 1948, see Department of State Bulletin, Vol. XIX, No. 481 (Sept. 19, 1948), pp. 378, 385.

⁹⁴ The right as to activities in this connection is limited to those “not contrary to publie morals.” In the treaty with Italy are added the words “or public order.” (Art. XI, treaty with Italy; Art. XII, treaty with China.)

⁹⁵ Art. XVII, treaty with Italy; Art. XIX, treaty with China.

⁹⁶ Art. V, par. 2, treaty with Italy; Art. VI, par. 2, treaty with China. For rules of interpretation of the portion of the former treaty referred to, see the Additional Protocol to that treaty, pars. 5 and 6.

⁹⁷ Art. VIII, par. 2. See note 40, supra.

⁹⁸ Burns, Norman, “United Nations Economie Cooperation,” Department of State Bulletin, Vol. XIX, No. 489 (Nov. 14, 1948), pp. 598, 601.Google Scholar

⁹⁹ See note 51, supra.

¹⁰ John King Fairbank, in his volume, The United States and China (1948), observes (p. 328) that when the new commercial treaty with China was signed, “its egalitarian provisions were viewed by cynics as an open door for American commercial exploitation of China, with no bar to similar Chinese exploitation of the United States—providing China had the wherewithal.”

¹⁰¹ See notes 52 and 63, supra.

¹⁰² Cf. Austin Foster, ‘ ‘ Investment Capital Is No Tourist, ’ ’ United Nations World, October, 1948, pp. 48-50. The article provides a useful commentary on the new Italo-American commercial treaty.

¹⁰³ Hearings (cited in note 30, supra), especially at pp. 70-75.