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ARTICLE II

The International Commission shall be composed of five members, to be appointed as follows: One member shall be chosen from each country, by the Government thereof; one member shall be chosen by each Government from some third country; the fifth member shall be chosen by common agreement between the two Governments, it being understood that he shall not be a citizen of either country. The expenses of the Commission shall be paid by the two Govern. ments in equal proportions,

The International Commission shall be appointed within six months after the exchange of ratifications of this treaty; and vacancies shall be filled according to the manner of the original appointment.

ARTICLE III

In case the High Contracting Parties shall have failed to adjust a dispute by diplomatic methods, and they do not have recourse to adjudication by a competent tribunal, they shall at once refer it to the International Commission for investigation and report. The International Commission may, however, spontaneously by unanimous agreement offer its services to that effect, and in such case it shall notify both Governments and request their cooperation in the investigation.

The High Contracting Parties agree to furnish the Permanent International Commission with all the means and facilities required for its investigation and report.

The report of the Commission shall be completed within one year after the date on which it shall declare its investigation to have begun, unless the High Contracting Parties shall limit or extend the time by mutual agreement. The report shall be prepared in triplicate; one copy shall be presented to each Government, and the third retained by the Commission for its files.

The High Contracting Parties reserve the right to act independently on the subject matter of the dispute after the report of the Commission shall have been submitted.

ARTICLE IV

The present treaty shall be ratified by the President of the United States of America by and with the advice and consent of the Senate thereof, and by Austria in accordance with its constitutional laws.

The ratifications shall be exchanged at Washington as soon as possible, and the treaty shall take effect on the date of the exchange of the ratifications. It shall thereafter remain in force continuously

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unless and until terminated by one year's written notice given by either High Contracting Party to the other.

In faith whereof the respective Plenipotentiaries have signed this treaty in duplicate in the English and German languages, both texts having equal force, and hereunto affixed their seals.

Done at Washington the sixteenth day of August in the year of our Lord one thousand nine hundred and twenty-eight.

FRANK B. KELLOGG [SEAL]
EDGAR PROCHNIK [SEAL]

DISINCLINATION OF THE UNITED STATES TO ENTER INTO A TREATY WITH AUSTRIA GRANTING TO IMMIGRANTS EQUAL RIGHTS WITH CITIZENS IN MATTERS OF LEGAL PROTECTION

711.639 Legal Protection/2 The Austrian Minister (Prochnik) to the Under Secretary of State

(Olds)

WASHINGTON, July 21, 1927. MY DEAR MR. UNDER SECRETARY OF STATE: Reverting to our conversation of today, I take the liberty of outlining in the enclosed memorandum the subject which the Austrian Government is anxious to regulate by convention to be negotiated and concluded with the Government of the United States.

You would do me a great favor by having me advised in due course of the attitude of your Government in regard to this question. Kindly accept [etc.]

EDGAR PROCHNIK

[Enclosure]

MEMORANDUM

At the International Immigration and Emigration Conference in Rome in 1925 (1924] "4 a resolution was adopted advising all those countries which heretofore did not enter into agreements relating to mutual aid in the administration of justice, that they should grant by special conventions to immigrants and their families equal rights with their own citizens in matters of legal protection.

Although the American delegation to said Conference did not join the abovereferred to resolution the Austrian Government hope that the Government of the United States may be inclined to enter into negotiations with a view of concluding a treaty assuring legal protection and mutual assistance in the interest of administration of justice in general and granting in particular certain exemptions from

" For correspondence concerning participation of United States in conference, see Foreign Relations, 1923, vol. I, pp. 115 ff.

237576—42

-72

fees and other dues in cases where the parties in litigation are found to be destitute of means and freeing the citizens of each of the contracting parties from a necessity of furnishing bond when they wish to enter suit in one of the courts of the other.

As to the two latter points (paupers exemption and freedom from bond) the Austrian Government have in mind the relating stipulations in the Convention relating to civil procedure (Convention relative à la procédure civile) which was concluded in the Hague on July 17th, 1905.15

711.639 Legal Protection/7 The Assistant Secretary of State (Castle) to the Austrian Minister

(Prochnik)

WASHINGTON, February 10, 1928. My Dear MR. MINISTER: I beg to refer to your note of July 21, 1927, transmitting a Memorandum concerning the Austrian Gorernment's desire to enter into negotiations with this Government looking toward the conclusion of a treaty assuring legal protection and mutual assistance in certain cases to the citizens of both countries and to enclose a Memorandum setting forth this Government's views in regard to the proposition of your Government in the matter. I am [etc.]

W. R. CASTLE, Jr.

[Enclosure)

MEMORANDUM

The Austrian Government refers to a resolution adopted at the International Immigration and Emigration Conference in Rome in 1925 advising all countries which heretofore did not enter into agreements relating to mutual aid in the administration of justice, that they should grant by special conventions to immigrants and their families equal rights with their own citizens in matters of legal protection.

It is presumed that reference is had to the following resolution adopted at the International Immigration and Emigration Conference at Rome in 1924 (and not 1925, as stated in the Memorandum):

“LEGAL AND JUDICIAL ASSISTANCE “The Conference,

“considering that it is advisable to facilitate legal assistance for emigrants and their families,

"expresses the Wish:

"(a) that the States which have not yet concluded conventions on this subject, and particularly emigration and immigration States

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should establish, by means of agreements based on reciprocity, equal. ity of treatment with nationals as regards access to judicial assistance;

(ó) that when consular conventions are being negotiated, the States concerned should consider the possibility of authorising consuls, in the interests of their nationals who may be absent, to approach the administrative and judicial authorities, in order that their nationals may avoid prescription or the forfeiture of the rights which they possess under the laws for social insurance. The steps taken by the consuls must be confirmed by the parties concerned in the forms prescribed by the laws of the country of residence;

"(c) that each Government should encourage the formation and facilitate the work of private associations for legal assistance to emigrants."

Reference is also made to Article XVII of the Convention for Civil Procedure of July 17, 1905,16 which provides as follows:

“Aucune caution ni dépôt, sous quelque dénomination que ce soit, ne peut être imposé, à raison soit de leur qualité d'étrangers, soit du défaut de domicile ou de résidence dans le pays, aux nationaux d'un des Etats Contractants, ayant leur domicile dans l'un de ces États, qui seront demandeurs ou intervenants devant les tribunaux d'un autre de ces Etas.

“La même règle s'applique au versement qui serait exigé des demandeurs ou intervenants pour garantir les frais judiciaires.

“Les Conventions par lesquelles des États Contractants auraient stipulé pour leurs ressortissants la dispense de la caution judicatum solvi ou du versement des frais judiciaires sans condition de domicile continueront à s'appliquer.” 17 In this relation it may be observed that in practically all jurisdictions in the United States it is customary to require a plaintiff who is a non-resident of the State in which he brings suit to give security for costs, but that no discrimination is made between citizens and aliens since the question whether a cautionary bond should be required from a plaintiff is determined solely by the residence of such plaintiff in the State regardless of his nationality. Except in respect of actions in the Federal Courts the benefit of the privilege of suing in forma pauperis likewise depends in the most jurisdictions on residence and is accorded to alien residents as well as to nationals.

** British and Foreign State Papers, vol. XCIX, pp. 990, 995.

Translation : "No cautionary bond nor deposit, under any denomination whatever, may be imposed, by reason either of their status as aliens or of a defect of domicile or of residence in the country, on nationals of one of the Contracting States, having their domicile in one of these States, who shall be plaintiffs or second parties before the courts of another of these States.

“The same rule applies to payment which would be required of plaintiffs or second parties in order to guarantee the judicial costs.

"The Conventions by which the Contracting States have contracted for their nationals exemption from the cautionary bond judicatum solvi or the payment of judicial costs without a proviso of domicile shall continue to apply."

Should the United States bind itself by a treaty provision similar to that of Article XVII of July 17, 1905, aliens in this country would be placed on a more favorable basis with regard to the deposit of cautionary bonds than nationals since the test of residence in the State would not be applied to the case of aliens as it is in the case of nationals.

This Government has not heretofore concluded treaties relating specifically to the granting of legal assistance to aliens. Paragraph 1 of the Protocol of the Treaty of Friendship, Commerce and Consular Rights concluded with Esthonia on December 23, 1925, is the only specific provision in regard to this matter which has been included in a treaty of the United States. Articles I, II and XXV of a similar treaty concluded with Germany in 1923, which also are included in other treaties may be of interest. Copies of the above mentioned treaties are enclosed.18

The conditions under which aliens might sue in the courts of the several States of this country have generally been regarded as matters to be determined in accordance with the laws of the several States. This Government has, however, included in treaties negotiated with other Governments provisions guaranteeing to nationals of the respective countries freedom of access to the courts on conforming to the local laws and the most constant protection and security for their persons and their property and stipulating that property of nationals of the respective countries shall not be taken without due process of law.

Generally speaking, it may be stated that even in the absence of treaty provisions aliens in this country are placed upon an equality with American citizens in the matter of legal remedies. In view of this fact and since questions of procedure in the courts of the different States of this country are determined by the laws of such States, this Government does not consider that there are sufficient grounds which would warrant it in negotiating a treaty of the nature suggested in the Memorandum of the Austrian Government, infringing as it does upon matters normally falling within the jurisdiction of the several States.

As showing the extent to which this Government has concluded treaty provisions pertaining to the right of aliens to pursue legal remedies, attention is invited to Paragraph 3 and 4 of Article I of the Treaty between the United States and Germany of Friendship, Commerce and Consular Rights, concluded on December 8, 1923. Attention is also invited to Article II of this Treaty regarding the rights of relatives or heirs of nationals of the respective countries under laws

18 Foreign Relations, 1925, vol. II, p. 70; ibid., 1923, vol. II, pp. 29, 30, 43.

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