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an early occasion to express to Judge Crabitès the appreciation of the Department for his continued helpfulness and advice.
The Department cannot, of course, acquiesce in the reply of the Egyptian Minister for Foreign Affairs to your note of March 3, 1931. On the contrary, since the Department is convinced that the right of the United States with respect to representation on the Mixed Courts of Egypt is equal to that of any of the principal capitulatory Powers, it desires that every proper effort be made with a view to insuring the due recognition of that right, subject to the qualification hereinafter indicated growing out of the special interest of Great Britain in Egypt. The Department, however, concurs in your suggestion that before any further communication on the subject is addressed to the Egyptian Government an effort should be made to enlist the support of the Residency in favor of the position of this Government.
It is realized that such support probably could not be obtained if the British authorities felt any apprehension that the position of the United States might indicate an intention on the part of this Government to question the preponderance of British representation on the Mixed Courts. You are, therefore, authorized to request an audience with the High Commissioner and to advise him, informally and orally, that the American position involves no such intention but contemplates American representation on the Courts equal to that of the principal capitulatory Powers other than Great Britain. At the same time you should express the hope that the High Commissioner will use his good offices with a view to insuring the due recognition of the position of the United States and preventing a further departure from the principle of equality of representation on the Mixed Courts. In this connection you will point out the importance which this Government attaches to the appointment of another American judge prior to the appointment of any additional non-British judges.
In view of the possible transfer to the Mixed Courts of crimina] jurisdiction over capitulatory nationals, you will doubtless also find it advisable, during the course of your conversations, to allude to the evident desirability, from the point of view of British as well as American interests, of increasing the representation on the Mixed Courts of countries whose systems of law are based upon or developed from the English Common Law.
If you consider it desirable you may furnish the High Commissioner with copies of such of the correspondence exchanged with the Egyptian authorities on this subject as have not previously been made available to the Residency. In order that the British Foreign Office may be informed of the views of this Government on this question a copy of this instruction, as well as copies of your despatch under acknowledgment and of other pertinent documents, is being transmitted to the Embassy at London. At the same time the Embassy is being instructed to acquaint the Foreign Office with the essential circumstances which have made it appear desirable to bring this matter again to the attention of the Residency. You may, if you consider it advisable, inform the High Commissioner of these facts.
Upon receipt from the High Commissioner of a reply to your request for his support in this matter it is desired that you inform the Department by telegraph of the substance thereof together with your suggestions as to the character which further representations to the Egyptian Government should assume. Very truly yours,
For the Secretary of State:
W. R. CASTLE, JR.
The Chargé in Great Britain (Atherton) to the Secretary of State No. 2395
LONDON, November 16, 1931.
[Received November 28.] SIR:I have the honor to refer to the Department's instruction No. 980 of November 5, 1931,15 with respect to United States representation on the Mixed Courts of Egypt, and to state that, in compliance with the Department's instruction, an appointment was sought to discuss this question with the Foreign Office, when it was suggested that the question should be taken up directly between the Embassy and Mr. Peterson, head of the Division of Egyptian Affairs.
With the end in view to assuring recognition of the position of the United States and preventing a further departure from the principle of equality of representation, I took occasion to set forth the American attitude at some length. Mr. Peterson said he had at one time been in Egypt with Lord Lloyd and was not wholly unfamiliar with the matter, and added that certain considerations had been urged on the Residency at one time that those nations having a larger population resident in Egypt were entitled to special consideration as to the number of their nationals appointed to the Mixed Courts. I replied I felt certain that such a view would not be acceptable to my Government, and pointed out that strict adherence to the principle of equal representation among the principal capitulatory Powers participating in the Mixed Courts of Egypt had been laid down when the adherence of the United States Government was given to the judicial reform in Egypt in 1876.16 Mr. Peterson agreed to this and stated it was merely an observation from memory he was making, and that he was entirely ready to write to the High Commissioner at Cairo
asking how the matter stood and whether it were possible to “earmark” an American representative for the next place to be filled on the Mixed Courts. Mr. Peterson said it was not until the Foreign Office and the Residency at Cairo had had an exchange of views that he could be of much assistance in making any statement in the matter, but that he fully understood the United States position from our conversation and that he would communicate with me again at as early a date as he was able. Respectfully yours,
The Minister in Egypt (Jardine) to the Secretary of State
CAIRO, December 9, 1931–5 p. m.
[Received December 11—2:11 p. m.] 109. In conformity with the Department's No. 108, October 28, 1931, I obtained an audience with the British High Commissioner, Sir Percy Loraine, on November 21, at which time I outlined to him our position and furnished him with our correspondence with the Egyptian Government. On December 8 the High Commissioner gave me an oral statement of his personal opinion on the subject.
While Sir Percy warmly welcomed the United States Government's friendly attitude in authorizing me to state that, owing to Great Britain's special position in Egypt, the greater number of judgeships which are held by British subjects is conceded as proper, and while the High Commissioner expressed every desire to give such proper assistance as lay within his power, he was personally apprehensive lest supporting the United States Government's wishes regarding the Egyptian Government's recognition of the principle of equality of representation as among the principal capitulatory powers on the Egyptian Mixed Courts would meet with the genuine difficulty of bringing about a change in the British Government's attitude of both principle and practice as claimed to have been consistently followed in regard to the Mixed Courts. In Sir Percy's view, there appear to be strong arguments favoring the Egyptian Government's position not to recognize the principle of parity of representation, and it also appears inexpedient to insist upon such a principle, for should it be admitted the result probably would be that other great powers not represented now on the Mixed Courts would make claims difficult to refuse, and France and Italy would claim five judgeships as of right henceforth. Conceding such claims and that of any fixed
proportion of national representation beyond three Mixed Court judgeships would tend to a conception of international rather than Egyptian courts, but the British Government's consistent practice in matters affecting the filling of judgeships over and above those mentioned through the appointment of foreign nationals has been strictly to act on the principle of leaving to the Egyptian Government's discretion the qualifications and nationality of candidates. Compliance with my request would accordingly involve reversing the conception long held by the British Government respecting the Mixed Courts, and it would not be possible, in Sir Percy's opinion, for his Government to reverse its consistent attitude so far as to lend the requested support to the United States Government. In conclusion the High Commissioner requested me to consider the foregoing to be an expression of his personal views, since he is not able to reply definitely or officially until he has received a statement of the British Government's views from the Foreign Office.
Recognition by the Egyptian Government of the principle of equality of representation is not likely to be attained by further diplomatic correspondence, pending reorganization and extension of the Mixed Courts, short of our giving notice of intention to withdraw from them. Pending this reorganization we might seek to attain actual equality with France and Italy through representations based upon our desire for equality as a great power and as one of four recognized capitulatory powers, without referring further to recognition at the present time of the principle. The situation might well be reviewed initially with London in the event of this latter approach.
883.05/416 : Telegram The Secretary of State to the Ambassador in Great Britain (Dawes)
WASHINGTON, December 22, 1931–4 p. m. 346. Reference the Department's No. 980 of November 5, 1931.17 The Minister in Egypt has telegraphically reported his informal discussion of the question of American representation on the Egyptian Mixed Courts with the British High Commissioner, whose purely personal opinion as expressed was that support by the British Government of the American viewpoint in this connection would involve a marked change in the attitude and practice of the British Government with reference to the courts. Sir Percy Loraine felt also that should the principle of equality of representation be admitted, representation would be demanded by other great powers not represented now on the courts. He added that concerning the appointment of foreign nationals to judgeships beyond the three required posts, his Government has consistently acted upon the principle that the qualifications and nationality of candidates were matters solely for the Egyptian Government's discretion.
17 Not printed.
The point was stressed by the High Commissioner that the above were purely personal views and he would have to seek the British Foreign Office's views before giving a definitive answer. However, it is altogether probable that the Foreign Office will take its cue from Sir Percy when it replies to your recent informal representations. Since his personal views are known now to be unfavorable to the position of this Government, it is deemed desirable that another informal approach in this matter be made by you to the Foreign Office before the preparation of its definitive reply to your recent representations.
For such discreet use as may be deemed desirable and for your information, the Department is not impressed at all by the reasoning that representation would be demanded by other great powers not represented now on the courts following British acquiescence in the American request. The Department in this connection fails to understand the basis upon which powers not represented now would be entitled to make a demand for such representation. Since the Department's records indicate that on more than one occasion the British Government has taken an interest or intervened in the appointing of foreign judges, it is difficult also to comprehend Sir Percy's statement that his Government has acted consistently on the principle that the qualifications and nationality of candidates were matters for the Egyptian Government's discretion.
In again discussing this matter with the appropriate authorities in London, you may point out that it is not considered essential by this Government that the Egyptian Government necessarily should acknowledge formally the principle of equality of representation, and it would be satisfactory for effect to be given to that principle and for the present discrimination to be removed by the early appointment in sufficient number of American judges to ensure representation to the United States equal to that of principal capitulatory powers exclusive of Great Britain.
This Government, as you know, bases its claim to equality of representation with the other principal capitulatory powers upon the letter by Sir Henry Elliot on May 26, 1873 18 (see enclosures with the Depart
* Foreign Relations, 1873, vol. , p. 1118.