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sense; (3) words are to be interpreted as understood at the time of the negotiation of the treaty and favorably · to the party assuming an obligation.

(b) When there is doubt as to the interpretation of the provisions of a treaty: (1) That which is specifically stated prevails against the more general; (2) provisions operating unequally may be strictly construed by the party suffering the greater burden; (3) single provisions should be interpreted with reference to the whole treaty. (c) In case of conflict between different treaties: (1) If between treaties to which the same states are parties, the later treaty is binding; (2) if between earlier and later treaties to which the same states are not parties, the earlier treaty is binding.

The rules of interpretation have been set forth at various times by the Supreme Court of the United States. In the case of De Geofroy v. Riggs, in 1890, the court said:

"It is a general principle of construction with respect to treaties that they shall be liberally construed, so as to carry out the apparent intention of the parties to secure equality between them. As they are contracts between independent nations, in their construction words are to be taken in their ordinary meaning, as understood in the public law of nations, and not in any artificial or special sense impressed upon them by local law, unless such restricted sense is clearly intended. And it has been held by this court that, where a treaty admits of two constructions, one restrictive of rights that may be claimed under it, and the other favorable to them, the latter is preferred." 17

In 1902, in the case of Tucker v. Alexandroff, the broad basis of interpretation was stated: "As treaties are solemn engagements entered into between independent nations for the common advancement of their interests and the interests of civilization, and as their main object is, not only to avoid war and secure a lasting and perpetual peace, but to promote a friendly feeling between the people of the two countries, they should be interpreted in that broad and liberal spirit which is calculated to make for the existence of a perpetual amity so far as it can be done without the sacrifice of individual rights or those prin

17 De Geofroy v. Riggs, 133 U. S. 258, 10 Sup. Ct. 295, 33 L. Ed. 642. See, also, Hauenstein v. Lynham, 100 U. S. 487, 25 L. Ed. 628.

ciples of personal liberty which lie at the foundation of our jurisprudence." 18

While many rules for the interpretation of treaties have been given by various writers, 19 controversies in regard to interpretation have in fact often resulted in the making of new treaties which would secure the objects sought by the states. Sometimes a protocol or declaration is added to a treaty interpreting the treaty; e. g., in the protocol of April 29, 1872, between the United States and the German Empire, it is stated that "the expression 'property,' used in the English text of articles III and IX, is to be construed as meaning and intending 'real estate.'"

In recent years it has become common to refer disputes as to the construction of treaties to arbitration, and many general and special agreements have been made to this effect. The United States has entered upon a policy of reference of differences of interpretation to arbitration, as follows:

"Differences which may arise of a legal nature, or relating to the interpretation of treaties existing between the two contracting parties, and which it may not have been possible to settle by diplomacy, shall be referred to the Permanent Court of Arbitration established at The Hague by the Convention of the 29th July, 1899: Provided, nevertheless, that they do not affect the vital interests, the independence, or the honor of either of the two contracting states, and do not concern the interests of third parties.

"In each individual case the high contracting parties, before appealing to the Permanent Court of Arbitration, shall conclude a special agreement defining clearly the matter in dispute, the scope of the powers of the arbitrators, and the periods to be fixed for the formation of the arbitral tribunal and the several stages of the procedure. It is understood that, on the part of the United States, such special agreements will be made by the President of the United States, by and with the advice and consent of the Senate thereof." 20

18 Tucker v. Alexandroff, 183 U. S. 424, 22 Sup. Ct. 195, 46 L. Ed. 264.

19 2 Phillimore, Int. Law, LXIV-XCIX.

20 Treaty between United States and France, Feb. 10, 1908.

Similar provisions occur in many treaties negotiated since the First Hague Conference in 1899 and under the provisions of the Second Hague Conference of 1907.

MOST FAVORED NATION CLAUSE.

76. This is a clause inserted in many treaties, especiallly of a commercial nature, by which is granted to the parties advantages similarly conferred or which may be similarly conferred upon third powers.

Measures of reciprocity were taken in early international dealing. It was but. natural that states which entered upon negotiations with a state should desire to obtain from that state, not only all the privileges which other states already possessed as a result of negotiations, but also the advantages which other states might subsequently acquire. To provide for this, clauses were introduced, varying in form, but to the effect that the parties to the treaty should receive all the privileges and immunities accorded to any nation whatsoever in the matters specified. Toward the end of the seventeenth century the expression "most favored nation" came into use. These treaties did not relate to commercial affairs only, but often to political matters.21 During the eighteenth century the "most favored nation" clause appeared in many commercial treaties.

In the treaty of amity and commerce negotiated between the United States and France, February 6, 1778, the general form of the "most favored nation" clause appears:

"Article IV. The subjects, people, and inhabitants of the said United States, and each of them, shall not pay in the ports, havens, roads, isles, cities, and places under the domination of His Most Christian Majesty, in Europe, any other or greater duties or imposts, of what nature soever they may be, or by what name soever called, than those which the most favored nations are or shall be obliged to pay; and they shall enjoy all the rights, liberties, privileges, immunities, and exemptions in trade, navigation, and commerce, whether in passing from one port in the said dominions, in Europe, to another, or in going

21 Cavaretta, La Clausola della Nazione piu Favorita, p. 59.

to and from the same, from and to any part of the world, which the said nations do or shall enjoy."

In the same treaty there appears a restriction to the effect that favors may be in return for equal concessions:

"Article II. The Most Christian King and the United States engage mutually not to grant any particular favor to other nations, in respect of commerce and navigation, which shall not immediately become common to the other party, who shall enjoy the same favor, freely, if the concession was freely made, or on allowing the same compensation, if the concession was conditional."

The form used in article II of this treaty has been used in many other treaties to which the United States has been a party. The United States has interpreted the "most favored nation" clause as aiming at equality of treatment. In commercial matters the following rule of interpretation was given in 1898:

"It is clearly evident that the object sought in all the varying forms of expression is equality of international treatment, protection against the willful preference of the commercial interests of one nation over another. But the allowance of the same privileges, and the same sacrifice of revenue duties, to a nation which makes no compensation, that had been conceded to another nation for an adequate compensation, instead of maintaining, destroys that equality of market privileges which the 'most favored nation' clause was intended to secure. It concedes for nothing to one friendly nation what the other gets only for a price. It would thus become the source of international inequality and provoke international hostility.

"The neighborhood of nations, their border interests, their differences of climate, soil, and production, their respective capacity for manufacture, their widely different demands for consumption, the magnitude of the reciprocal markets, are so many conditions which require special treatment. No general tariff can satisfy such demands. It would require a certainty of language which excludes the possibility of doubt to justify the opinion that the government of any commercial nation had annulled its natural right to meet these special conditions by compensatory concessions, or held the right only on condition of extending the same to a nation which had no compensation

to offer. The fact that such concessions, if made, would inevitably inure to the equal benefit of a third competitor, would often destroy the motive for, as well as the value of, such reciprocal concessions.

"But, instead of such certainty of expression, one of the articles in each of the treaties referred to contains a distinct recognition that special and compensatory commercial arrangements may be made, notwithstanding the 'most favored nation' clause, and provides that in such cases the favors granted shall be enjoyed by the party claiming favored nation treatmentgratuitously, if so granted; for equivalent compensation, if granted for a price.

"What will be an equivalent compensation is to be honorably determined by the governments concerned. So many considerations have necessarily entered into such special concessionary agreements that no universal rule can be applied. The price has often been special privileges in the market of the other for certain manufactures or products of the contracting country; but it may also be a port, a bay, or an island, or a protectorate, as well as an expanded market, or a privileged export trade. It may be anything within the range of the treaty-making power." 22

Certain other states, including Great Britain, have contended that the "most favored nation" clause should be absolute and unconditional in all cases, and that a favor granted to one state should extend immediately to all other nations having "most favored nation" treaties with that state.23

The "most favored nation" agreement in different treaties varies in form and in content. In treaties to which the United States is a party the agreement is not always uniform.

It may be a gratuitous conferring of privileges, it may be conditional, or it may depend upon like concessions on the part of the other nation. Reciprocity is frequently at the basis of this agreement, though it does not follow that the concessions stipulated for are equivalent. When privileges granted

22 5 Moore, § 765, p. 278.

23 5 Moore, § 765. For discussion, see J. R. Herod, "Favored Nation Treatment"; Stanley K. Hornbeck "The Most-Favored Nation Clause in Commercial Relations"; Imperial Japanese Government v. P. & O. Co., [1895] A. C. 644.

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