Page images
PDF
EPUB

The system of the legislative assembly of the Court of Appeals, in operation already under the law of November 11, 1911, and as it can be better adapted to its new rôle by the addition of certain other elements selected from outside, will respond perfectly to this need." Whether, however, this is to be the direction in which reform will lie, it would indeed be rash to predict.

In conclusion, the question may be asked: What is the standing of the Mixed Courts in the Egyptian world and what is the outlook for their continuance? The question is one for the political prophet, but as a contribution to its answer, it may be of interest to refer to a few recent expressions of Egyptian political feeling.

It is highly significant that throughout the bitter struggle for independence conducted by the Egyptian leaders since the closing of the war, the Mixed Courts, so far from figuring among those restraints upon her sovereignty which it was Egypt's avowed object to throw off, have on the contrary been the subject of marked and friendly exception. Thus in the appeal issued by Egyptian leader Zaghloul at the end of the war to the foreign residents and diplomatic representatives in Egypt, and in which the political aspirations of Egypt were vigorously proclaimed, we find this language:

We seek complete independence, but not an independence which shall affect the capitulatory rights of foreigners, either as concerns the laws or the jurisdiction of the Mixed Courts, or as concerns the inviolability of domicile or individual liberty. Whatever has been said or written to the contrary can only have emanated from the enemies of our national cause.

Many other similar utterances by prominent representatives of Egyptian nationalism could be quoted. One will suffice. Speaking at a banquet of the Mixed Court bar in 1924, at a moment when a Nationalist ministry was in power, one of Zaghloul's chief lieutenants, a lawyer in the forefront of the fight for Egyptian independence, did not hesitate to proclaim that the Mixed Courts responded to the necessities of the geographical, ethnical and economic situation of Egypt; that they constituted in Egypt "the best judicial organization it would be possible to devise"; and that the party in power was aware of this fact and was determined that no attempt to destroy or materially modify the institution should be permitted. As a fitting epilogue to these expressions may be cited the messages of congratulation received on the occasion of the Semi-Centennial Celebration from representatives of the Nationalist movement in Egypt. Most significant of these was a telegram from 7aghloul excusing his absence on account of ill-health but presenting his cordial sympathies on the occasion and his best wishes to the judicial family.

The chapter closes then in happy augury for the future of the Mixed Courts. At a time when all manifestations of foreign influence in the political institutions of Egypt are being submitted to the closest scrutiny,

no serious voice is raised in their attack and every well informed Egyptian will concede not only their present but their probable long continued future usefulness to his country. The secret of this position of confidence resides in two facts, first, the solid service that the Mixed Courts render the country, and second, in a form of organization which is peculiarly well adapted not to conflict with the Egyptian sense of national dignity.

In what large measure and in what varied directions these services have touched Egyptian life has nowhere been more finely expressed than in the following words of one of her most eminent native jurists, today the writer's colleague on the Court of Appeals: 27

In guaranteeing to all the inhabitants of Egyptian territory a law of universal application and in treating all parties as equal before that law, the Mixed Courts recalled Egypt to the true ideal of justice, prepared her for the assimilation of western ideas, and paved the way for the reform of her native courts and many other reforms which followed in natural consequence. As this instinct of justice developed among the people, a sense of personal dignity freed the laborer from his meek submission to the rule of force. Little by little the Egyptian people, being governed in their relation with foreigners by the new code of laws, became familiar with its provisions. In learning thus to understand their obligations they came to understand their rights. By the same token, the people became a less easy prey to the unscrupulous foreign adventurer, unhappily too numerous in the Levant, and notably so in a country whose commercial activities attract all races. Finding herself thenceforth the better protected against those who had hitherto mercilessly exploited her, Egypt commenced to lose suspicion of the foreigner, to deal with him without mental reservations. Thus was she brought to give her material support to those great enterprises which were soon formed for the commercial development of the entire land. The door was open to western civilization and the dream of Nubar Pasha began to find itself realized. (Translation.)

To these considerations must be added the altogether exceptional character of the litigation presented to the Mixed Courts, due to the peculiar admixture of national and religious elements present in Egypt. It is a labor which indeed invites the coöperation and untiring efforts of the most competent European jurists. It is a labor of a peculiarly complicated and arduous character which must be efficiently performed if the commercial life of the country is not to suffer. Egypt realizes that to attempt to dispense with the coöperation of those who are thus faithfully serving her in the performance of the highest of public functions would be but a blow struck at her own prosperity.

Apart, however, from the mere question of services rendered, of quid pro quo, the essential relation of the Mixed Courts to the governmental system of the country and to its sovereignty is a vital element in deter

27 Soubhi Ghali Bey. Article in Revue de Droit International et de Législation Comparée, Paris, 1908, Vol. X. Republished in the Livre d'Or of the Semi-Centennial of the Mixed Courts, Alexandria, 1926, p. 431 et seq.

mining their popularity. International in certain of their aspects, the Courts are none the less an integral part of the judicial system of Egypt and an expression of its national sovereignty.28 They render justice in the name of the Egyptian sovereign and are paid by the Egyptian treasury. They were not imposed on Egypt, but were the result of her own initiative and energy. They do not belong to the capitulations. Rather are they a suppression of the capitulations, which, in their proper sense, could be abolished tomorrow without affecting the functioning of the Courts. Inviolability of domicile, immunity from new taxation, the consular courts, these remaining expressions of capitulatory privilege in Egypt, have no essential relation to the Mixed Courts. They merely express existing rights to which the Mixed Courts give protection as they give to all other rights based on law or treaty, and in the modification of which the Courts are in no manner directly concerned.

Then again, the Egyptian himself plays a large and honorable part in the judicial labors and administration of the Mixed Courts. The Egyptian judges, while in a minority, occupy positions of equal dignity with their European colleagues, and the large army of employees is principally composed of Egyptian subjects. There is indeed nothing here to arouse native jealousy or to encourage any tendency to seek to suppress the Mixed Courts for the sake of securing possession of a handful of overworked judicial posts. Well, indeed, might one of the most respected of Egyptian judges remark on the occasion of the recent Semi-Centennial Celebration:

By reason of their essentially Egyptian character, the Mixed Courts in no manner infringe our national sovereignty. On the contrary, they constitute an essential element in our judicial system, and one which is essential to the development of our country. Their fifty years of service is the best proof of this. Such an institution surely belongs to the nation itself to whose prosperity it has so largely contributed.29

It cannot be doubted that this is the view of the intelligent and educated Egyptian of today. The Mixed Courts fill a rôle too large, and play a part too difficult, in the movement of Egyptian life, for any Egyptian in his senses to dream of abolishing them at the present time. Some day they will go, presumably by the gradual elimination of the foreign judges and 28 "The Court will always be an Egyptian Court. If our governments accept the project, it is that they are consenting to submit their subjects to the jurisdiction of an Egyptian tribunal, in view of the sufficiency of the guarantees that have been offered." (Statement of the American representative, Mr. Charles Hale, before the Commission of 1869 [28 Dec.].) "The Tribunals, though established with the concurrence of the Powers, were intended to be Egyptian Tribunals; and it is probable that they would never have come to be regarded as International Tribunals in the sense now current, if their establishment had not almost exactly synchronized with the utter collapse of autonomous Egyptian government." (Mr. [later Sir] Wm. Brunyate, note to Lord Cromer's Report for 1904, p. 93.)

29 Ragheb Bey Ghali, Judge of the Alexandria Mixed Trial Courts. Article "Du Caractère National des Tribunaux Mixtes," Livre d'Or, p. 253.

a fusion with the native courts. But this day is far in the future. There is little likelihood that it will arrive until long after the little band of foreign judges who are now serving Egypt will have passed away. In the meantime the Mixed Courts will continue to present to a world which is struggling towards the organization of nations in the cause of justice, an encouraging example of the power of the Science of the Law, when once invoked and pursued in honest accord by a group of nations, to resolve international jealousies and to triumph over national partisanship.

REPRESENTATION IN LEAGUE OF NATIONS COUNCIL

BY DENYS P. MYERS

Corresponding Secretary, World Peace Foundation

The "Council crisis" in the League of Nations in 1926 has presented a problem in actual international coöperation of some moment. Whether it is permanently solved or only temporarily settled, it can not fail to have a profound effect upon the fundamental bases of international law. The difficulties and decisions at Geneva give practical interpretations to the "juridic equality" of states, which is the most elusive characteristic of the unit of international relationship. Subjective considerations-"particular national, historic, cultural and other qualifications"-did not prevail over objective considerations-the effort "to give the widest and most equitable representation" on the Council.1 Progress may be said to lie on the objective side in international affairs, since there sound and practical general principles may best be evolved.2

The Geneva problem which developed in March was a growing pain of the Council, which is neither a legislative nor the executive organ3 of the members of the League of Nations which have associated themselves under the Covenant. It is perhaps a committee of management for the entire membership, with constitutional authority to act under specified conditions. It consists of three categories of members: (1) states permanently represented; (2) states selected by the Assembly to be represented; (3) states represented when they are concerned in specific questions, for those questions only. The permanent members are assumed to have interests so wide that all international business concerns them; but, whatever their own policy may be, their representatives in the Council act in a fiduciary capacity as part of an organ administering the Covenant, to which all members of the League are contractants. There has never been any doubt of Germany's being qualified for permanent membership in the Council. When the Berlin Government was finally persuaded to apply for membership in the League, it was with the

1 The British representative, Minutes of the 40th Session of the Council, Minute 1758. "The tendency among writers to base the conception of the state on objective attributes rather than on subjective theory, derived from metaphysical sovereignty, is general and salutary. It accords with the modern scientific practice of dealing with realities more than with philosophic concepts. See particularly Feodor Martens, Traité de droit international; James Lorimer, Institutes of the Law of Nations; George Grafton Wilson, International Law; Charles G. Fenwick, International Law; Roscoe Pound's essay, "Philosophical Theory and International Law," in Bibliotheca Visseriana, I, at pp. 75-78, and Jesse S. Reeves, La Communauté internationale (Paris, Hachette, 1925), Chs. I and IV.

Report on the Relations between . the Council and Assembly, I, pars. a and b, Records of the First Assembly, Plenary Meetings, p. 318.

« PreviousContinue »