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Natural–Resources Provisions in United States Commercial Treaties
Published online by Cambridge University Press: 30 March 2017
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1 The author acknowledges with appreciation the assistance of Professor David R. Deener of Tulane University, and that of Dr. Allan P. Sindler, Research Associate in Political Science at Duke University.
2 Resolution No. 626, Official Records, 7th Sess., Supp. No. 20 (A/2361). On the passage of the resolution, see note 18 below.
3 A recent classification of natural resources has distinguished (1) those not exhaustible through use, such as water power, (2) those necessarily exhausted by use, such as minerals, and (3) those exhaustible by use but replaceable by growth, such as forests and wild life. V. Webster Johnson and Raleigh Barlowe, Land Policies and Problems (1954), p. 152.
4 This leaves out of consideration, insofar as it is possible to do so, questions of disposal and of inheritance of property, a subject which has received deserved attention elsewhere. For a recent study, see Boyd, W. L. Jr., “Treaties Governing the Succession to Real Property by Aliens,” Michigan Law Review, Vol. 51 (1953), pp. 1001–1020CrossRefGoogle Scholar.
5 Municipal law as a factor has been noted in earlier studies of commercial treaties by the present author. See this Journal, Vol. 43 (1949), pp. 262–287; Vol. 44 (1950), pp. 145–149; Vol. 45 (1951), pp. 83–107; Vol. 47 (1953), pp. 20–48.
6 Rawles, William P., “Provisions for Minerals in International Agreements,” Political Science Quarterly, Vol. 48 (1933), pp. 513–533CrossRefGoogle Scholar, at pp. 513–514.
7 Leith, C. K., “The Political Control of Mineral Resources,” Foreign Affairs, Vol. 3 (1924–25), pp. 541–555CrossRefGoogle Scholar, at pp. 548–549.
8 Introduction (p. xix) to George O. Smith (ed.), The Strategy of Minerals (1919).
9 Report of the Committee for the Study of the Problem of Raw Materials, League of Nations Document A.27.1937.II.B.
10 For a brief comment on the report, see Wilson, Robert R., “International Law and Problems of Raw Materials,” this Journal, Vol. 32 (1938), pp. 120–126Google Scholar. A volume published in the same year in which the League report appeared drew attention to the rapid increase of “closed door” provisions, tariffs, discriminations against foreigners in mining and leasing, and concerted attempts to prevent foreign holdings of resources within the national territory (W. Y. Elliott and Others, International Control in the Non-Ferrous Metals, p. 15). This volume listed specific countries which were “closed by law.”
11 Leith, C. K., “Mineral Resourees and Peace,” Foreign Affairs, Vol. 16 (1937–38), pp. 515–524CrossRefGoogle Scholar, at pp. 515, 522. See the same author’s statement concerning the relationship between the “necessity of world-wide movement of minerals” and the freedom of the seas in time of peace and control of them in time of war, in World Minerals and World Politics (1931), p. 13. Cf. C. K. Leith, J. W. Furness and Cleona Lewis, World Minerals and World Peace (1943), Chs. IX, X.
12 The Second World War, Vol. VI: Triumph and Tragedy (1953), p. 393.
13 Arnold Forster, W., “The Atlantic Charter,” Political Quarterly, Vol. 13 (1942), pp. 144, 152CrossRefGoogle Scholar. Compare an observation in the volume entitled “The Atlantic Charter and Africa,” published in 1942 by the Committee on Africa, The War, and Peace Aims: “Although there is still need for foreign capital for developments under proper State controls, such developments must be subject to the major consideration that the land and its resources belong primarily to the people of Africa and must be administered in the interests of the whole people. This should apply especially to minerals. …” (Page 42).
14 Nitze, Paul, “Minerals as a Factor in U. S. Foreign Economic Policy,” Department of State Bulletin, Vol. 16 (Feb. 16, 1947), pp. 300–302Google Scholar. Cf. reported testimony by Bureau of Mines experts in 1953 that the United States was dependent on sources outside the Western Hemisphere for at least part of its needs in twenty-one key minerals (New York Times, Oct. 22, 1953, p. 45), and Secretary of the Interior McKay’s more recent statement concerning strategic minerals (ibid., March 23, 1954, p. 39).
15 Resources for Freedom (1952, 5 vols.), Vol. I, pp. 1–3.
16 See, for example, O’Connell, D. P., “Legal Issues in the Persian Oil Dispute,” New Zealand Law Journal, Vol. 26 (1952), pp. 57–59Google Scholar, at page 57: “Hitherto, international law has permitted too many concessions to the principle of national sovereignty.” On legal aspects of the dispute in general see Lissitzyn, Oliver J., “Iranian Oil, Foreign Investments and the Law,” Foreign Affairs Reports, Vol. II, Nos. 2 and 3 (1953), pp. 17–39Google Scholar.
17 Note 2 above. In other parts of the preamble the Assembly noted “the need for encouraging the underdeveloped countries in the proper use and exploitation of their natural wealth and resources.” It also noted that the economic development of underdeveloped countries was a fundamental requisite for the strengthening of universal peace, and that the right of peoples freely to use and exploit their natural wealth and resources was “in accordance with the Purposes and Principles of the Charter of the United Nations.”
18 The resolution grew out of a proposal by Uruguay in the Second Committee of the Assembly, its purpose apparently being to set forth that Member States should respect the right of underdeveloped countries, as essential to their economic independence, to nationalize and freely exploit their natural wealth. A Bolivian amendment proposed that Member States “should not use their governmental and administrative agencies as instruments of coercion or political or economic intervention.”
In opposition, there were arguments, inter alia, that the resolution would discourage foreign investment, particularly in the absence of a provision concerning compensation, and that nationalization was but one of the alternatives for state action (the question being naturally raised of why this one should be stressed).
In the course of the discussions, the United States Delegation offered several amendments, one of which contained the statement that “Member states should refrain from consequential action contrary to the principles of international law and practice and to the provisions of international agreements.” The proposed amendment was not adopted.
The final vote on the resolution was 36 for, and 4 against, with 20 abstentions. Voting against were the United States, Great Britain, New Zealand, and the Union of South Africa. Abstaining were Australia, Belgium, Canada, China, Cuba, Denmark, France, Greece, Haiti, Iceland, Israel, Luxembourg, Netherlands, Norway, Nicaragua, Philippines, Peru, Sweden, Turkey and Venezuela (United Nations Bulletin, Vol. XIV (1953), pp. 41–46).
19 See, for example, the statement in a note on “Mineral Resources and the Atlantic Charter: Introduction,” in The Advancement of Science, Vol. II, No. 7 (1942), at p. 187: “Systematic international planning of mineral production, distribution, and consumption should become an international objective after the war. Each country should strive to intensify its own achievements in the domain of mineral development and production while yielding to none in its endeavour to foster world-wide cooperation in the exchange of raw materials and finished products.”
20 See, for example, notes 67 and 68 below.
21 For a summary statement, see James F. Callbreath, “Government Control of Minerals on Public Lands,” Proceedings of the Second Pan American Scientific Congress, Dec., 1915-Jan., 1916 (1917), pp. 526–529.
22 Certain lands of the public domain are excluded by statute. Submerged lands off the coast of the United States and outside the inland waters within the States have been held by the Attorney General not to be subject to the statute. 40 Ops. Atty. Gen. 540 (1947). The Outer Continental Shelf Lands Act, approved Aug. 7, 1953 (67 Stat. 462), specifies in Sec. 4 (a) (1) that mineral leases on the outer continental shelf should be maintained or issued only under the provisions of that Act. On this legislation, see Christopher, W. M., “The Outer Continental Shelf Lands Act: Key to a New Frontier,” Stanford Law Review, Vol. 6 (1953), pp. 23–68CrossRefGoogle Scholar.
23 Rights to helium gas are reserved to the United States.
24 30 U. S. C. 181.
25 Idem.
26 41 Stat. 437, ch. 85, par. 1.
27 Remarks of Senator Smoot, Cong. Rec., 66th Cong., 1st Sess., p. 4111.
28 Idem; also remarks at pp. 4113 and 4161.
29 By Senator Smoot. See also the amendment offered by Senator Kirby, Cong. Rec., 66th Cong., 1st Sess., at p. 4283.
30 Remarks of Senator Smoot, loc. cit., p. 4162.
31 Ibid., p. 4113.
32 Texts in Cong. Rec, 66th Cong., 1st Sess., p. 4160. On passage of the amendment in the Senate, see ibid., p. 4171.
33 See remarks of Senator King, ibid., pp. 4160, 4161.
34 See remarks of Senator Fall and of Senator Smoot, ibid., p. 4161.
35 Ibid., pp. 4167–4168 (remarks of Senator King). Senator Walsh observed that under the proposed amendment the purchase of one share of stock by an alien in an American corporation would subject that corporation to (a) operation of the property by the Government, and (b) forced sale of the product in America. Ibid., p. 4166.
36 Cong. Rec, as cited, p. 4162 (remarks of Senator Phelan of California). The speaker referred to the activities in California of the Dutch Shell Company, which he claimed was owned by a “foreign government” rather than by “nationals of foreign governments.” Senator Fall read (ibid., p. 4283) a telegram from the Dutch Shell to the effect that “Neither British Government nor Holland Government control this business.”
For exchange of notes between the Secretary of State (Lansing) and the British Ambassador (Grey) in connection with the latter’s protest against a statement made by Senator Phelan on the Senate floor (to the effect that Great Britain was endeavoring to secure a worldwide control of oil while refusing equal rights to foreigners in British territory), see U. S. Foreign Relations, 1919, Vol. I, pp. 168–171. In this connection, Mr. Lansing wrote, concerning the agitation in the United States for government action, that “The source of this movement lies in the conviction that, with respect to certain essential raw materials, the enjoyment of the same rights in foreign countries that aliens enjoy in the United States is essential to the future welfare of our people.” (Page 171.) See also ibid., 1920, Vol. I, pp. 351–369.
37 House Report 398, 66th Cong., 1st Sess., p. 11. The general effectiveness of the 1920 Act, which made leasing the exclusive method of disposition for oil and gas, coal, phosphate, sodium, potassium and oil shale in the public domain, is noted in the Paley Commission Report (Resources for Freedom (1952), Vol. V, Rept. 2, pp. 4, 8–9).
On use made of the reciprocity provisions of the Act, see U. S. For. Rel., 1928, Vol. III, pp. 375–407, and 1932, Vol. II, pp. 4–5. See also Benjamin H. Williams, Economic Foreign Policy of the United States (1929), pp. 69–70. For an instance of a U. S. Attorney General’s interpreting British law in order to determine whether Great Britain was to be regarded as a country giving reciprocity within the meaning of the Mineral Leasing Act, see 38 Ops. Atty. Gen. (Cummings), p. 476.
38 2 American Jurisprudence, Sec. 29; 2 Kent’s Commentaries 54; Martin v. Hunter’s Lessee, 1 Wheaton 304; Hauenstein v. Lynham, 100 U. S. 483; Haley v. Sheridan, 190 N. T. 331; Techt v. Hughes, 229 N. Y. 222, 128 N. E. 185.
39 McGovney, Dudley O., “The Anti-Japanese Land Laws of California and Ten Other States,” California Law Review, Vol. XXXV (1947), pp. 7–60CrossRefGoogle Scholar, with lists at pp. 21–24.
40 Ibid. It was noted that “non-resident” usually meant not resident within the particular State, unless otherwise provided—as was the case in one of these States. Cf. Glynn v. Glynn, 62 Neb. 872, 87 N. W. 1052.
41 Blumrosen, Alfred W., “Validity of State Eestraints on Alien Ownership of Land,” Michigan Law Review, Vol. 51 (1953), pp. 1053–1067CrossRefGoogle Scholar. This writer pointed out that the common law seemed to be in full force in only one State, and partially in force in other States. In connection with inheritance of property, he noted that in four States rights for aliens were conditional upon the giving of reciprocity for Americans in the countries of which the aliens were, respectively, citizens.
42 Public Law 414, 82nd Cong., 2nd Sess., Ch. 477, 66 Stat. 163. For criticism of a policy under which ineligibility to citizenship is made the basis for discrimination, see note, “Conflict between Local and National Interests in Alien Landholding Restrictions,” U. of Chicago Law Review, Vol. 16 (1948–49), pp. 315, 322.
43 See, for example, Namba v. McCourt, 185 Ore. 579, 204 Pac. (2nd) 569 (1949) ; Sei Fujii v. State, 38 Calif. (2nd) 718, 242 Pac. (2nd) 617 (1952).
44 George W. Thompson, Commentary on the Modern Law of Real Property (12 vols., 2nd ed., 1939), Sec. 88.
45 Three codes refer to “public lands,” five to “state lands,” and one to “public or reserved lands.”
46 Illustrated in Arizona (11–1601), Maine (1951 Act, Ch. 36, Sec. 2), Nebraska (76–404), New York (Public Lands Law, Secs. 81, 82 (1)), Utah (Title 40, Ch. 1, Sec. 13), Vermont (Title 37, Ch. 320, Sec. 7545), Washington (78.20.010), and New Hampshire (Ch. 234, Sec. 19). In the last-mentioned State the restriction applies to mine-prospecting on unimproved State forest lands and reservations, and in beds of great ponds and navigable rivers. Oklahoma (Title 64, Sec. 317) restricts mining claims on State lands to its resident citizens.
47 Illustrated in Idaho (24–101, by which eligible aliens have equal property rights with U. S. citizens, and 55–101, by which real property includes mining claims). By another code provision (24–102), rights of all other aliens are dependent upon treaties.
48 Illustrated in Nevada (Sec. 4120), Wyoming (24–109), Oregon (106–322—in addition to a specific prohibition in the State’s Constitution, Art. XV, 8), and California (Civil Code, Sec. 1426, Public Resources Code, Sec. 2301). By California’s Public Resources Code, Sec. 6801, oil and gas prospecting leases are restricted to citizens or to declarant aliens or to eligible aliens whose country accords similar privileges to U. S. citizens, to aliens whose rights are secured by a treaty with the United States, or corporations ninety per cent of whose shares are owned by eligible leaseholders.
49 Virginia (13–219); foreign corporations (i.e., those of another State of the Union or of a foreign country) cannot hold more than 10,000 acres in any one county for the purpose of mining ores or minerals.
50 Montana (Constitution, Art. III (25)) and Connecticut (Sec. 7167). Even nonresident aliens, i.e., those not resident in Connecticut or some other part of the United States, may take real estate for mining and quarrying; but if the land is not used for that purpose for ten years (except in cases of wartime prohibitions), title reverts to the person from whom the land was last acquired.
51 Idaho (58–313), Montana (81–908), and Colorado (Ch. 134, Sec. 69).
52 Mississippi (Sec. 4109).
53 See Art. 9 of the Jay Treaty, by which British subjects holding land in the United States and American citizens in Great Britain holding land in that country were to continue to hold “according to the nature and Tenure of their respective Estates and Titles therein” on a national-treatment basis (8 Stat. 116). Cf. Art. 4 of a boundary arrangement with Mexico, concluded in 1905 (33 Stat. 1863), and Art. 3 of the treaty with Cuba (signed March 2, 1904), concerning American property-holders in the Isle of Pines (44 Stat. 1997).
54 Illustrated in a number of arrangements which the United States made with mandatories after the first World War. See, for example, Art. 3 of the Convention of Dec. 3, 1924, concerning rights in Palestine (44 Stat. 2184).
55 There was assurance to foreigners settling in the territory of the right to purchase, sell or lease land (as well as buildings) upon the sole condition of obedience to the laws; citizens of one nation were not to be given advantages over citizens of others (23 Stat. 781).
56 Art. 11 (22 Stat. 817).
57 26 Stat. 1497. Art. IV, Sec. 1, provided for exceptions.
58 Art. 60. The right was provided for “in accordance with the right granted by art. 11 of the Madrid Convention.” The Sultan was to issue orders to give effect to the right. Subsequent transfers were not to be hindered. There were special provisions applicable to acquisitions around certain ports, also mention in this connection of “compliance with regulations and usage,” as well as of the Cadi’s satisfying himself that titles conformed to Mohammedan law.
By Arts. 113–116, in the case of occupation and expropriation of property, there was to be a jury to flx an indemnity, in case there should be disagreement on the latter (34 Stat. 2905).
59 At the opening session of the Conference, its President emphasized as principles the sovereignty of the Sultan, the integrity of Morocco, and the “open door.” The American representatives reported that they accepted the principle of equality in economic questions without reserve. A few weeks later they reported that the “principle of international interest” advocated by Germany had been sustained by the Conference; the position acquired by France in a financial sense had been recognized, without its being allowed “to militate against the open door in matters of commerce … or the future development of the great mineral wealth of Morocco.” Department of State (National Archives), Special Agents, Vol. 50 (dispatches of Jan. 25, Jan. 26, and April 3 (No. 10), 1906). An instruction to Henry White and Samuel R. Gummere pointed out that “while it is to the advantage of the Powers to secure the ‘open door,’ it is equally vital to their interests and no less so to the advantage of Morocco that the door, being open, shall lead to something, that the outside world shall benefit by assured opportunities. …” Ibid., 4 Special Missions, Oct. 15, 1886–June 20, 1906.
60 Art. 7 (43 Stat. 1892).
61 See, for example, Art. 10 of the 1785 treaty with Prussia, and the corresponding article of the 1799 treaty with the same country (8 Stat. 84–99, 162–177). Cf. provision in the earlier commercial treaty with France (signed Feb. 6, 1778), which referred to disposal of goods both movable and inmovable, without referring to disqualification because of alienage (8 Stat. 12–31). However, the Franco-American Convention of Sept. 30, 1800, did note (in Art. VII) that the laws of either party might “restrain strangers from the exercise of the rights of property with respect to real estate” and made provision for disposal (8 Stat. 178–196).
62 See Art. IX, par. 3, of the commercial treaty with Japan, signed April 2, 1953, Treaties and Other International Acts Series, No. 2863.
63 There was considerable variation in language. Many treaties provided against any “detraction” or “molestation” in connection with disposal of realty and withdrawal of proceeds. Some of the treaties specified a term of three years (or of at least that length of time); others provided for a “reasonable” time; still others referred, in this connection, to the laws of the place where the property was situated. Current U. S. practice seems to be to specify not less than five years (as illustrated in the new treaties with Israel and Japan).
64 The third article of this treaty contained the following:
65 The two high contracting parties … mutually agree that the citizens of each … shall have the power to purchase and hold lands, and all kinds of real estate, and to engage in … mining, upon the same terms with the native citizen, and shall enjoy all the privileges and concessions in these matters which are or may be made to the citizens of any country, … submitting themselves to the laws, decrees, or usages there established, to which native citizens are subjected.” 10 Stat. 891. The third article of the treaty signed Dec. 6, 1870, with the same country is similar (18(3) Stat. 725.
On the inclusion of the words “and real” along with the reference to personal property in the Convention of May 14, 1845, with Bavaria (for the mutual abolition of the droit d’aubaine and taxes on emigration), and the action of the U. S. Senate in amending the convention so as to strike out the quoted words, see Miller, Treaties, Vol. VI, pp. 681–682.
The commercial treaty with Argentina, signed July 27, 1853 (10 Stat. 1005–12), contained in Art. IX broad language (national treatment being the standard) with respect to acquiring and disposing of “property of every sort and denomination …” but did not mention real property in terms.
65 Miller, Treaties, Vol. V, pp. 866…867, quoting from message accompanying the treaty text which was sent to the Swiss Federal Assembly.
66 Ibid., p. 879.
67 By the terms of Art. I, “The citizens of the United States of America and the citizens of Switzerland shall be admitted and treated upon a footing of reciprocal equality in the two countries, where such admission and treatment shall not conflict with the constitutional or legal provisions, as well federal as State and cantonal, of the contracting parties. The citizens of the United States and the citizens of Switzerland … subject to the constitutional and legal provisions aforesaid, and yielding obedience to the laws, regulations, and usages of the country wherein they reside, shall be at liberty … to acquire, possess, and alienate therein property. …” Par. 2 of Art. V made provisions concerning disposal and succession applicable to real estate in American States and Swiss Cantons “in which foreigners shall be entitled to hold or inherit real estate.” (11 Stat. 587.)
68 Art. 7 (10 Stat. 992). On the application of the treaty, see Prevost v. Greneaux, 19 Howard 1 (1856); Geofroy v. Riggs, 133 U. S. 258 (1890). See also the executive agreement with France, signed Feb. 23/March 4, 1933 (U. S. Executive Agreement Series, No. 44), interpreting Art. 7 of the 1853 treaty.
For a list of the American States at the time of the negotiation of the Swiss and the French treaties, classified according to their policies with respect to permitting aliens to hold land, see Miller, Treaties, Vol. V, p. 893.
69 11 Stat. 639. As the American Minister reported, “In the Kingdom of Naples aliens inherit, and may continue to hold, real estate, as freely as natives. As, in some of our States, this is not the case, I introduced the words, ‘shall succeed to his personal property, and either to his real estate or to the proceeds thereof.’ This gives us the full advantage of their law, yet provides for the exceptions in our own.” Miller, Treaties, Vol. VII, p. 275.
70 12 Stat. 1143. On the point that the Venezuelan law imposed no restrictions upon the ownership of real estate by aliens, see material on the negotiation of the treaty in Miller, op. cit, Vol. VIII, p. 564.
71 By the third article, U. S. citizens were permitted “to purchase, rent, or occupy, or in any other legal way to acquire all kinds of property” within the Sultan’s dominion (10 Stat. 909). Instructions to the American negotiator noted that natural resources of Borneo were beginning to be opened. Miller, op. cit., Vol. V, p. 833.
72 Illustrated in the treaty of Feb. 26, 1871, with Italy (17 Stat. 845), Art. 22, and that of Oct. 14, 1881, with Serbia (22 Stat. 963), Art. 2. For later examples, see Treaty of Friendship and General Relations with Spain, July 3, 1902 (33 Stat. 2105), Art. 3, and Consular Convention with Sweden, June 1, 1910 (37 Stat. 1479), Art. XIV, par. 5.
73 22 Stat. 952 (Art. III). The right to lease or rent land had been provided for in the earlier (1867) treaty between the two countries. In his comments on the protocol of the revised treaty, the American negotiator (W. W. Robinson) noted the change of attitude on the part of the rulers of the other country since the making of the earlier treaty. He also remarked the fear in Madagascar of the effect of immigration from other lands. This fear, he observed, had “caused adoption, since the commencement of the present reign, of an excessive restrictive policy, which had proved to be a complete prevention of development of the material resources of the country. …” Department of State, 3 Consular Letters, Tamatave (July 1, 1880–June 30, 1883) No. 82 (National Archives).
74 23 Stat. 720. Art. VI provided that no coercion or intimidation in the acquisition of land should be permitted.
75 The treaty of May 29, 1856, with Siam provided that American citizens coming to reside at Bangkok might rent land and buy or lease houses, but not purchase land within a specified distance from the city walls until they had lived in Siam for ten years or should obtain special authority from the Siamese Government. Except for these limitations, Americans resident in Siam could at any time buy or rent land within a distance of twenty-four hours’ journey (computed at the rate at which boats of the country could travel) from Bangkok (11 Stat. 683, Art. IV, par. 2). An American Minister later pointed out that the twenty-four-hour-distance rule meant, at the time the treaty was made, distance by a rowboat. Department of State file (National Archives) 711.923/100.
The treaty of Dec. 16, 1920, with Siam (for reviewing former treaties), by which extraterritoriality was relinquished, provided that citizens and subjects of each party should have the right to lease land for residential, religious and charitable purposes and for use in commerce (42 Stat. 1928, Art. I).
The first article of the Treaty with China concerning Trade, Consuls and Emigration, signed July 28, 1868, set forth that the Emperor, in making concessions to the citizens or subjects of foreign Powers for the privilege of residing on certain tracts of land for purposes of trade, had not relinquished his right of eminent domain or dominion over the said land.
The commercial treaty of Oct. 8, 1903, with China contained provision that U. S. citizens might, within suitable localities at those places set apart for the use and occupation of foreigners, rent land or lease it in perpetuity. Most-favored-nation treatment was to be accorded, and there was a separate provision whereby missionary societies of the United States might rent land or lease it in perpetuity (33 Stat. 2208, Arts. 3, 14).
On the development in Japan, with which country the United States signed a treaty on July 29, 1858, see Hudson, Manley O., “The Liquidation of Perpetual Leases in Japan,” this Journal, Vol. 32 (1938), pp. 113–116Google Scholar.
For detailed statement of the rights of U. S. citizens in respect to real estate in the Turkish dominions, see protocol on this subject proclaimed by the President of the United States Oct. 29, 1874, Malloy, Treaties, Vol. II, p. 1344.
76 See note 64 above.
77 18 (3) Stat. 725 (Art. 3).
78 Art. XIV, 10 Stat. 926; Miller, Treaties, Vol. V, p. 1051.
79 Citation in note 73 above. See Art. III (3).
80 Art. VII (citation in note 75 above). When this article was under discussion, the ninth article of the Sino-British treaty of Sept. 5, 1902, was referred to as a possible model, but certain changes were desired by the Americans in the interest of definiteness and greater effectiveness. The Chinese negotiators said that they were at first forbidden to discuss the article on mining; this restriction having been removed, they said the article must be in the most general terms; otherwise they could not accept it. There was a statement that the mining board of China did not believe that the question of mining should enter into a commercial treaty. When Mr. Goodman of the American Commission said that he would be willing to substitute for the whole article the words, “Whereas Chinese merchants are allowed certain mining privileges in the United States, therefore citizens of the United States shall have the same rights and privileges in China,” thus making the article perfectly reciprocal, Mr. Wu said the Chinese Commissioners could never consent to that. At another point the Americans made it clear that they did not favor “miscellaneous” residence for Americans in China, and that they would leave it to the Chinese Government to say what was mineral land. They also said they were agreeable to provisions whereby Americans must comply with the regulations of the Chinese Government, provided these would be applied to Chinese and foreigners alike. The Americans were concerned that no wording should be included which would cause the United States to lose its jurisdiction over Americans in China; they finally agreed upon wording whereby Americans would be subject to such regulations as might be agreed upon between the two countries. The Chinese were concerned about the words, “and other business relating thereto,” and there was reference to a Belgian syndicate’s claiming, in connection with its holding of a concession in Szeehuan Province, the right to construct a railroad 800 miles long as necessary to afford an outlet to its mines. There apparently was fear on the part of the Chinese that what was to be granted to the United States would be given to other nationalities, and that others might push concessions to an extent never contemplated or desired by the Americans. Department of State files, T(reaty) C(ommissioners) No. 61, Legation Archives, Peking, Inventory 524 (National Archives).
81 Citations in this Journal, Vol. 47 (1953), p. 43, note 124.
82 53 Stat. (3) 1731. The most-favored-nation commitment became more meaningful because of a related note from the Siamese Foreign Minister to the American Minister, bearing the same date as the treaty. The note stated the intention of the Siamese Government to grant foreigners the right to acquire immovable property necessary for residential, commercial, industrial, religious and charitable purposes, as well as for use as cemeteries, while reserving for Siamese subjects rights with respect to lands of the public domain.
83 T. I. A. S., No. 1871 (Art. VIII (1)). The first sentence specified most-favored-nation treatment, but contained the words, “subject to the conditions and requirements as prescribed by the laws and regulations” of the party in whose territory the property was located. In the case of any State, Territory or Possession of the United States not according national treatment in the subject-matter, the sentence containing the most-favored-nation clause was not to apply; but, in that case, China was not to be obligated to accord to Americans domiciled in such State, Territory or Possession (or to companies created or organized under the laws thereof) treatment more favorable than Chinese nationals received in such State, Territory or Possession.
84 Hearings before Subcommittee of the Committee on Foreign Relations … Eightieth Congress, 2nd Sess., on a Treaty of Friendship, Commeree and Navigation between the United States of America and the Republic of China, April 26, 1948, p. 24 (remarks of Senator Thomas).
85 T. I. A. S., No. 1965 (signed Feb. 2, 1948), Art. VII (1).
86 T. I. A. S., No. 2155 (signed Jan. 21, 1950), Art. VII (2).
87 Sen. Ex. F, 82nd Cong., 2d Sess. (signed Sept. 7, 1951), Art. IX, par. 1.
88 Sen. Ex. R, 82nd Cong., 1st Sess. (signed Aug. 23, 1951), Art. IX, pars. 1 and 2.
88 T. I. A. S., No. 2863 (signed April 2, 1953), Art. IX (1).
90 44 Stat. 2132 (Art. XIII). An instruction to Ambassador Houghton at Berlin, dated Aug. 3, 1923, said, with respect to this article of the draft treaty, that “The laws of the United States render it imperative that these rights be based on. a reciprocal footing, and that the most-favored-nation treatment … be conditioned upon reciprocity. The last paragraph of Article XIII offers a reciprocal basis for agreement within necessarily narrow limits respecting privileges of mining the minerals described. The Act of Congress of March 25, 1920, relative thereto, is had in mind.” Department of State file (National Archives) 711.622/22A.
91 See note 37 above.
92 As suggested above, the commercial treaty signed with Siam in 1937 did not follow the standard form used during the interwar period. It did, however, clearly stipulate reciprocity following the most-favored-nation clause as to “exploration for and exploitation of mineral resources.” Furthermore, a party was not to be required to grant any application for any right or privilege if, at the time an application was presented, the granting of all similar applications had been suspended or discontinued. Art. I (9) of the treaty, which is cited in note 82 above.
93 Ex. H, 79th Cong., 1st Sess. Art. II provided that, in furtherance of the purposes of their agreement, the signatory governments would so direct their efforts “… (b) that with regard to the acquisition of exploration and development rights the principle of equal opportunity shall be respected; (c) that the exploration for and development of petroleum resources, the construction and operation of refineries and other facilities, and the distribution of petroleum, shall not be hampered by restrictions inconsistent with the purposes of this Agreement.”
94 Many questions were raised before the Committee concerning the proposed agreement, including that of its effect upon the principle of free enterprise, its effect upon American State and Federal laws, and its consistency with, the U.N. Charter plan. Hearings before the Committee on Foreign Eelations on Ex. H, Eightieth Cong., 1st Sess., June 2, 3, 4, 5, 6, 9, 23, 24 and 25, 1947, at pp. 60–61, 100, 111, 170, 368, 372, 383–384.
95 Art. IV (1).
96 Arts. III (2), IV.
97 Art. VI (2), Protocol, par. 4.
98 Art. VIII (4) and (5).
99 Art. VII, Protocol, par. 4.
100 Art. VII, Protocol, par. 4.
101 Art. I.
102 See, is this connection, the report of recent legislation in Turkey denationalizing that country’s petroleum resources. New York Times, March 8, 1954, p. 1.