¹ On the differences of interpretation, see Hackworth, G. H., Digest of International Law (Washington, 1943), Vol. 5, 280, 286, 294Google Scholar; Moore, J. B., A Digest of International Law (Washington, 1906), Vol. 5, 257.Google Scholar See also the statement of the British delegate in the debate in April 1962 on the Soviet sponsored Declaration on International Economic Co-operation, U.N. ECSOC Council, Off. Rec, 33rd Sess., 1199 Meeting, U.N. Doc. E/S.R., 199, para. 44. There is disagreement about the usefulness of the clause in treaties between states with planned economies and those with free economies. See Domke, Martin and Hazard, John, “State Trading and the Most-Favoured-Nation Clause1”, (1958) 52 American Journal of International Law 55 and Schwarzenberger, G. S., “The Most-Favoured-Nation Standard in British State Practice”, (1945) 22 British Yearbook of International Law 96 at 112–116.CrossRefGoogle Scholar

² See Treaty between Great Britain and Denmark of February 13, 1660-1, Article XIII. Hertslet, , Treaties of Commerce and Navigation (London, 1840), Vol. 1, 179.Google Scholar

³ Hackworth, supra note 1, at 269–270. Hyde, Charles Cheney, International Law Chiefly as Interpreted and Applied by the United States (Boston, 1947), Vol. 2, 1503.Google Scholar

⁴ See the note from Mr. Gayard, Sec. of State, to Mr. Hubbard, July 17, 1886, in Moore, Supra note 1, at 27a. Also Shaw v. U.S. (1911), 1 Ct. Cust. App. 426.

⁵ League of Nations Treaty Series, Vol. 52, 133. Article VII provided, “Each of the High Contracting Parties binds itself unconditionally to impose no higher or other duties or conditions and no prohibition on the importation of any article, the growth, produce or manufacture of the territories of the other than are or shall be imposed on the importation of any like article the growth, produce or manufacture of any other foreign country.”

⁶ The term “Common Market” seems necessarily to include the customs union but goes further in economic integration. Article 2 of the Treaty of Rome contemplates the establishment of a Common Market and Article 9 provides that this establishment will be based on a customs union. Treaty Establishing The European Economic Community, Her Majesty’s Stationery Office, 1957, cmd. 693.

⁷ The following are references to relevant treaties: Federal Republic of Germany and U.S.S.R., United Nations Treaty Series, Vol. 346, 71 (hereafter, U.N.T.S. 346:71); Federal Republic of Germany and U.S.A., U.N.T.S. 273:3; Italy and Canada, U.N.T.S. 231:69; Italy and Haiti, U.N.T.S. 267:97; Italy and Lebanon, U.N.T.S. 267:113; Italy and Syria, U.N.T.S. 267:157; Italy and U.S.S.R., U.N.T.S. 217: 181; Italy and Ceylon, U.N.T.S. 337:115; France and U.S.S.R., U.N.T.S. 338:384; Netherlands and Canada, U.N.T.S. 230:197; Netherlands and U.S.A., U.N.T.S. 285:231.

⁸ See Statement to the press by the Soviet Foreign Ministry concerning the European Common Market and Euratom, March 16, 1957, Soviet News. Also Royal Institute of International Affairs, Documents on International Affairs (London, 1957), 443. Joint Statement by Mr. Bulganin and Mr. Siroky, Moscow, January 29, 1957, Soviet News, 30–31. For evidence of continued hostility, see headline, “Khruschev Assails European Common Market as Destructive,” New York Times, 1962, June 30, at 4, Column 3.

⁹ Report on the proposed South African Customs Union. Report by the Law Officers to the Colonial Office, date March 14, 1889, McNair, Lord, The Law of Treaties (Oxford, 1961), 284–286 Google Scholar; Hackworth, supra note 1, at 295.

¹⁰ See British and Foreign State Papers, Vol. XIX (183101832), 299–308. Vol. XXIII (1834–1835), 341–343. Viner, Jacob, The Customs Union Issue (New York, 1950), 6–10.Google Scholar

¹¹ Memorandum of the solicitor for the Department of State (Hackworth) June 22, 1931, M.S. Department of State, File 662.6331/261. Hackworth, supra note 1, at 295–296.

¹² Permanent Court of International Justice Report, Series A/B, No. 41, 38 (hereafter P.C.I.J. Report). League of Nations, Official Journal, 1931, No. 7, Minutes, 1069 and 1075.

¹³ P.C.I.J. Report, Series A/B, No. 41, 51. In fact, the Austrian and German governments announced that they had abandoned the plan for union before the court gave its opinion.

¹⁴ P.C.I.J. Report, Series A/B, No. 41, 52.

¹⁵ F.O. 83.2275. McNair, supra note 10, at 284.

¹⁶ See for example, Article 7 of the Trade Agreement between Italy and Lebanon, U.N.T.S. 267:113. See also citations in supra note 7.

¹⁷ Treaty of Trade and Navigation between the Federal Republic of Germany and the U.S.S.R., Article 1, U.N.T.S. 346:71.

¹⁸ Bulletin of the European Economic Community, April, 1962, No. 4, 8.

¹⁹ U.N.T.S. 221:79.

²⁰ U.N.T.S. 338:380.

²¹ See the New York Times, 1962, June 14, at 12, column 3. Since the treaty did not come into force until May 15, 1959 its effectiveness extended through 1954.

²² See the New York Times, 1962, June 14, at 1, column 6. The talks were subsequently renewed and on January 31, 1963, agreement was reached in which the Soviet Union waived its claim to Community treatment. See, The Times (London), 1963, Feb. 2, at 7. The Soviet Union has indicated that she will press the same point in negotiations for the renewal of the treaty with the Federal Republic of Germany, see supra note 17.

²³ Contracting parties to the General Agreement on Tariffs and Trade, Basic Instruments and Selected Documents, (Geneva 1958) Vol. 1 (hereafter B.I.S.D.).

²⁴ General Agreement on Tariffs and Trade, (hereafter GATT) Article XXIV, para. 1. If the obligations were not transferred, Article 1 would require each member of the union to extend union treatment to all other contracting parties.

²⁵ GATT, Article XXIV, para. 8(a) (i) and (ii).

²⁶ GATT, Article XXIV, para. 5(c). The only objection taken to the plan by the GATT sub-group A was to the provision for delay in the transition from the first to the second stage of development toward a customs union and, since this transition has already taken place, the objection is now irrelevant. B.I.S.D. (1958) Sixth Supplement, 75.

²⁷ This is required by Article XXIV, para. 8(a) (ii). For the current stage of development, see Survey of the Twentieth Session of the Contracting Parties to the General Agreement on Tariffs and Trade, Press Release, GATT/726, 8.

²⁸ Bulletin of the European Economic Community Dec. ( 1961 ) No. 12, 25.

²⁹ The provisions of Article 19 of the Rome Treaty are not strictly relevant to this question because they relate to the obligations of the Community members inter se and not to their obligation to the contracting parties to GATT.

³⁰ There are eight lists annexed to the Treaty. With respect to lists F and G, the tariffs are agreed upon and subject to negotiation between the members respectively.

³¹ Report of the Working Party on Association of Overseas Territories with the European Economic Community. GATT L/805/Rev. 1, at 17, para. 51.

³² Bulletin of the European Economic Community, May, 1960, No. 4; April (1962), No. 4. and August/September, 1960, Nos. 6 and 7.

³³ This interpretation was put forward by the members of the Community on the ground that both paragraphs 5 and 8 had the same object and the terms in each must be given the same meaning. See Report of Sub-group A to the Contracting Parties, B.I.S.D., Sixth Supplement, 77.

³⁴ GATT allows the use of quotas for such limited purposes as the relief of food shortages and the safeguarding of balance of payments positions and maintenance of currency reserves.

³⁵ B.I.S.D., Sixth Supplement, 80.

³⁶ The Interim Committee established by the Community for liaison with the contracting parties to GATT stated that even if certain powers were transferred by the members to the institutions of the Community, the institutions would nevertheless be required to comply with the provisions of GATT, B.I.S.D. (1958) Sixth Supplement, at 82.

³⁷ At the Eighteenth Session of the Contracting Parties, it was noted that in both Italy and the Federal Republic of Germany the liberalization of quotas had been in favour of other members of the Community and thus discriminatory. B.I.S.D., 1962, Tenth Supplement, at 120 and 246–247.

³⁸ Report of Subgroup Β to the Twelfth Session of the Contracting Parties, B.I.S.D. (1958) Sixth Supplement, 83–84.

³⁹ The discussion here is of the system operating for the grain market but, since the other important agricultural products are grain derivatives, the regulations in relation to them are based on the same principles as the regulations for grain.

⁴⁰ See Articles 4, 6, and 7 of Regulation No. 19, April 4, 1962, Official Journal of the European Communities, No. 30/62. Commerce Clearing House (hereafter CCH) Common Market Reporter, 814 et seq.

⁴¹ Regulation 19, Article 10, Official Journal, No. 30/62. CCH, Common Market Reporter, 815–4.

⁴² GATT, Protocol to the General Agreement on Tariffs and Trade embodying the results of the 1960-61 Tariff Conference, (1962), List XL, items, 10.05, 16.01, 16.02 A II, 16.02 Β II. Article 20 of Regulation 19 provides that the collection of duties is discontinued under the levy system.

⁴³ B.I.S.D. (1958) Sixth Supplement 84.

⁴⁴ In November, 1962, the Association of Wholesalers and Traders in Hamburg reported that poultry imports dropped by 66% and imports of pork dropped by 50% after the institution of the levy system in August, 1962. See, Financial Post, November 24, 1962, at 15.

⁴⁵ Articles 131 to 136 of the Rome Treaty.

⁴⁶ Rome Treaty, Article 133. See also Article 9, Implementing Convention Concerning the Association with the Community of the Overseas Countries and Territories (hereafter Implementing Convention CCH, Common Market Reporter, 4137.

⁴⁷ Rome Treaty, Article 136, Implementing Convention, supra note 47, Article 17. See also Survey of the Twentieth Session of the Contracting Parties to the General Agreement on Tariffs and Trade, Press Release, GATT/726, at 8.

⁴⁸ Paragraphs 5 and 8.

⁴⁹ Report of Subgroup D to the Twelfth Session of the Contracting Parties, B.I.S.D. (1958) Sixth Supplement, 105.

⁵⁰ Article 136 of the Rome Treaty requires that the provision for a further period of association shall be by a unanimous decision of the Council. In the light of the recent division between France and the other members over the entry into the Community of the United Kingdom, the extension of the association agreement is not a foregone conclusion.

⁵¹ No figures are available on the percentage of trade between the territories involved. The members of the Community indicated to the GATT Working Party that about 2% of the trade between all the members of the Community and all the associated territories would be covered by customs duties. The volume of trade between the members of the Community is irrelevant in calculating whether substantially all the trade between the constituent territories of the free trade area is free of customs duties because the Community is one unit in the formation of the free trade area. See, Report of the Working Party on Association of Overseas Territories with the European Economic Community. GATT, L/805/Add. I, at 14. The amount of trade affected and the preference which will be established may be illustrated by a table showing the amount of trade in 1956 from countries other than associated territories with members of the Community. The tariff has been set on the following items at the percentage indicated: cocoa, 9%; coffee, 16%; bananas, 20%; tea, 35%; tobacco, 30%; and sugar, 80%.

Volume and value of trade in 1956 between members of the Community and non-associated countries:

Source: Report of the Working Party on Association of Overseas Territories with the European Economic Community. GATT L/805/Rev. 1, at 31.

⁵² Jacob Viner, supra note 9, at 51.