R
29913
PUBLIC RECORD OFFICE
Reference :-
T།། ། C.O.
יניי חוד
.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
No. 167.
(DOMINIONS.)
FOREIGN OFFICE to LAW OFFICERS.
[Right of Austria-Hungary to take part in the coasting trade of the Commonwealth of Australia and of other self-governing Dominions.]
GENTLEMEN,
Foreign Office, May 31, 1913.
I HAVE the honour, by direction of-Secretary Sir Edward Grey, to inform you that, in connexion with the Navigation Bill recently passed by the Parliament of the Australian Commonwealth, and now reserved for His Majesty's pleasure, the question has been raised as to the extent to which Austria-Hungary is entitled, in virtue of the Anglo-Austrian Treaty of the 30th April, 1868, to take part in the coasting trade of the Commonwealth, and incidentally in the coasting trade of certain others of the self-governing Dominions. Copies of the treaty and of the Navigation Bill above referred to are enclosed herewith.
2. Article 1 of the treaty, in its first paragraph, provides for the grant to Austrian and Hungarian merchant ships the same treatment as national ships. In the second paragraph provision is made for most-favoured-nation treatment also. Article 2 applies the provisions of Article 1 to the British Colonies and foreign possessions, but limits it, in the case of the coasting trade, to "those Colonies and foreign possessions the coasting trade of which shall have been, or shall hereafter be, opened to foreign ships, in conformity with the Acts of Parliament which govern the matter.' In the second paragraph of the article it is stated that the foreign possessions and Colonies the coasting trade of which had been already so opened to foreign ships, and in which therefore the ships belonging to Austro- Hungarian subjects were placed on the national footing, were British India, Ceylon, Cape of Good Hope, Victoria, and St. Lucia.
3. The main purpose of Article 1 appears to be, on the British side, to give national treatment to Austrian and Hungarian ships throughout the Empire, with- out reservation, for the period of the currency of the treaty, but the addition of most-favoured-nation treatment, certainly in the case of the United Kingdom, is wholly unmeaning, and the second paragraph appears to have been added without any due consideration of the context. From the general grant a special derogation is then made in the case of fisheries.
4. The main purpose of Article 2 appears to be to make a further exception from the general grant of national treatment in the case of the coasting trade 'in the Colonies. The article begins by applying both paragraph 1 (national treatment) and paragraph 2 (most-favoured-nation treatment) to the Colonies, thus importing into Article 2 the confusion existing in Article 1. National treatment has, however, already been granted in all His Majesty's dominions by Article 1 to Austrian and Hungarian ships generally, and unless the article is mere repetition, it must be intended to qualify the application of Article 1. The most reasonable interpreta- tion would seem to be that it confers most-favoured-nation treatment in the Colonial coasting trade, a view which is supported by the references, not to Austrian or Hungarian, but to foreign ships. The last paragraph of Article 2, therefore, records that Austrian and Hungarian ships are entitled, in British India, &c., to the treatment which other foreign nations have, under the Acts referred to, received, viz., national treatment.
5. If it had been intended that the opening of the coasting trade of a Colony to foreign ships should operate so as to place such coasting trade, for the purposes of the treaty, on the same footing as the coasting trade of the United Kingdom, it is not clear (a) why Article 2 was not drawn so as to run as follows: "But as regards the coasting trade only in British India, Ceylon, &c., and in any other Colonies and foreign possessions the coasting trade of which shall be hereafter opened to foreign ships, &c.," nor (b) why, if it is possible to hold that the purpose of the application of the provisions of Article 1 to the colonial coasting trade was to involve the grant of national plus most-favoured-nation treatment, there is no reference to most-favoured-nation treatment in the description of the position as regards the coasting trade of British India, &c. It may be pointed out that the opening of the coasting trade of a Colony to foreign ships (vide section 328 of the Imperial Act of 1853, quoted in paragraph 13, infra), did not necessarily involve
(31829-2.) Wt 183-122, 25. 9/13. D 8.