negotiators from a number of cramping restrictions. There is, however, no likelihood of such a change being soon consummated. It would be impossible for a decade, since European tariff-relations are settled for that period by the new treaties, most of which run till 1915 or 1917. For the United States to change would require a radical departure from present commercial policy. Such a change has been made the subject of much discussion. The necessity for a commission to give our tariff policy a scientific and searching consideration as has been done in Germany and France, and as is being done in England, has been urged-and with reason. The possibilities of the conventional and of the maximum-andminimum systems have been repeatedly canvassed. It is agreed that the machinery of our government makes the conventional system impracticable, in fact impossible. It has been pointed out by some writers that, under it every reciprocity treaty would have to be approved not only by the Senate but by the House, since each would contain new tariff rates which, under the constitution, only the lower house can initiate. The negotiation of a series of treaties would take a long time, and the making of a conventional tariff at the hands of successive congresses would be very difficult.24 The alternative would be the maximum-andminimum system. In this the minimum rate could be made uniform by act of Congress and the department of state would be free to make treaties on a reciprocity basis for rates between the minimum and the maximum. To this, Senator Beveridge argues that we must come. Mr. William R. Corwine urges that we should "join the procession of modern nations which have, one after another, discarded the single tariff and adopted one form or another of the maximum and minimum," but he also advocates the elimination of treaties altogether, and that the President be authorized to make commercial agreements within the limits imposed between the maximum and minimum.25 Professor Willis suggests that the adoption of the unconditional mostfavored-nation usage along with tariff treaties would lead to 21 See Stone, Ann. Am. Acad., 1908, 32: 379-80. See Sen. Beveridge, ib 409 ff. 25 See Ann. Am. Acad., 1908, 32: 312, 313. progressive tariff reductions, and that it would 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 Sec. 3 of the Dingley Act and leave to the President the making of reciprocity bargains. Such a system would, he believes, obviate many difficulties as it would admit of the adoption by the United States of the European favorednation practice.26 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 wordings, 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 mostfavored-nation 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 that 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 20 Willis, H. P.: Reciprocity with Germany. Jour. Pol. Econ. 1907, 15: 385398. "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.) for definite and unequivocal stipulations.27 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.28 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-favorednation treatment more specifically and to examine cases individually.29 Mr. 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.30 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.31 Reciprocity is certainly, 27 Cf. Von Melle, op. cit., p. 207. 284 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 paraft qu'ils devraient toujours être exclus de la clause." (Lehr, 03. cit., 315-316.) 20 In the Reichstag, Jan. 15, 1903. Quoted in Glier, p. 323. 30 C. Lloyd Jones: The American Interpretation of the Most-Favored-Nation Clause. Ann. Am. Acad., 1908, 32: 393. 31 Cavaretta, op. cit., 167-168, and note 2. although it may not be admitted in individual instances, the principle aimed at in the commercial policies of modern nations. Whether accepting, as many do, or rejecting the idea of framing a clause which will embody the principles involved in the "compensation" 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 agreement 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.32 As a result of discussion at the Pan-American Scientific Congress, at Santiago, Chile, December 25, 1908-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.38 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-favorednation 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 Argentina: Doc. Dip. y Consulares. Bol. No. 17, 1903, 17-18. 33 Señor 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. Señor Julio Philippi, of Chile, argued that the most-favored-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. Jones, Chester Lloyd: The American Interpretation of the 383-393. Osborne, J. B.: Commercial Relations of the United States with Canada. 330-342. Parry, D. M.: Tariff Revision a Public Necessity. 265270. Stone, N. I: The Conventional Tariff System. 367-382. Argentina: Nuestros Tratados de Comercio y La Cláusula de la Nación Más Favorecida. Documentos Diplomáticos y Consulares, Boletin 17, 1903. Arndt, P.: Meistbegünstigung und nordamerikanische Konkurrenz. Die Nation, May 24, 1902, 19: 534-536. Ashley, P. W. L.: Modern Tariff History. Germany-United States-France. 1904. Aubry, D.: Le traitement de la nation la plus favorisée. La Reforme Economique, IIe année, Feb. 9, 1902, 204206. Barclay, Sir T.: Bearing and Importance of Commercial Treaties in the Twentieth Century. (Lecture.) Pub'd, 1906. 1905. The Effect of the Most-Favored-Nation Clause in Treaties. Problems of International Diplomacy. 1907. Barth, T. Zur Entwickelungsgeschichte der heutigen reactio nären Wirtschaftspolitik. 1879. Beer, A.: Allgemeine Geschichte des Welthandels. 1860. Geschichte des Welthandels im neunzehnten Jahrhundert. 1864. Die Oesterreichische Handelspolitik im neunzehnten Jahrhundert. 1891. Berliner Jahrbuch für Handel und Industrie: Zoll- und Handelspolitik. 1903, v. I, 14, pp. 266–273; 1904, v. I, 15, pp. 381-392; 1905, v. I, 16, pp. 509-531. Bunsen, G. V.: Free Trade and the European Treaties of Commerce. Cobden Club Publications. 1875. Calwer, R. Die Meistbegünstigung der Vereinigten Staaten von Nordamerika. 1902. |