A la liste des conventions européennes conclues sous les auspices du Conseil de l'Europe, celui-ci vient d'ajouter une nouvelle convention, dont le sujet éveille la curiosité de tous ceux qui ont suivi de près, au cadre de la Société des Nations, les tentatives pour arriver à une codification du statut juridique des étrangers.

In this essay attention is drawn to the appearance in many commercial treaties as well as in several recent multilateral agreements of the term “non-discriminatory treatment” next to or in place of the well established formula of the most-favoured nation treatment. Although apparently similar in wording and purpose—a guarantee of non-discrimination—the principle of non-discrimination covers much more ground than the obligation of most-favoured nation treatment. The beginnings of this mutation in commercial treaty law go back as far as the early thirties when quota systems and foreign currency regulations made their appearance, and the treaty terms had to be adapted to these new situations in order to assure “fair proportionate shares”, “fair and equitable treatment”, etc. This transformation and partial elimination of the m.f.n. clause occurred at a time when negotiations on tariff-reductions became more and more difficult, due to the refusal by countries maintaining a highly developed negotiable tariff system to grant duty reductions gratuitously, as well as to the attitude of other protectionist countries claiming unconditional m.f.n. treatment without being disposed to lower their own high import duties. As one author rightly observed: the m.f.n. clause was being made the scapegoat of what really was the failure of economic policies.

The apparent inconsistency of the judgments of November 20, 1950 (the “Asylum case”) and of June 13, 1951 (the “Haya de la Torre case”) results from the distinction which, for procedural reasons, had to be made between both cases, although they were essentially one and the same case. Thus the Court, being bound by the rule that its decisions are final and without appeal, had in its last judgment to use a forced argumentation concealing the partial reversal of its first rigid arguments. Though maintaining its (the majority's) view on the limits of the right of diplomatic asylum: no prevention of the exercise of the national administration of justice, the Court in its final judgment unanimously recognized the Latin American practice (“for political expediency reasons”), according to which fugitive political criminals—even those to whom asylum has been granted “irregularly”—are not to be surrendered.