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to stand trial, although such things, of course, occur. And only occasionally does public authority undertake to afford some redress to the victim.
I doubt that the dictum just mentioned accurately states obligations on the part of capitulatory Powers. Into stipulations guaranteeing the right to have nationals tried by courts of their own, my associates read a requirement that the courts shall be maintained "on the same standard of efficiency as the native jurisdiction". The two jurisdictions are different. And I assume that some Powers insist on the maintenance of the extraterritorial courts because they consider, rightly or wrongly, that those courts have a higher standard than that of some local courts.
I am of the opinion that both administrative and judicial authorities failed to take, with a view to giving effect to treaty rights, such steps as might properly be expected of them at this first stage of the proceedings which are shown in records before the Tribunal. I think that something more than was done might properly be expected from the authorities of any country in a similar case. With a very thorough appreciation of the difficulties inherent in local laws, and of occasional delays incident to judicial proceedings all over the world, I do not conceive that any Government's legal system should be so inelastic as to stand in the way of action more effective than that revealed by the records of these proceedings.
However, if the view be taken that a violation of the Treaty cannot justly be predicated on these preliminary proceedings, or that a question of non-observance of the Treaty could properly be raised only after a decision of an appellate court, I think that the complaint of the United States can be sustained on the record of the proceedings before the appellate native court at Tantah and on other records revealing the attitude of administrative authorities. Copies of the court records were submitted to the Tribunal. Annex E to the Memorial of the Egyptian Government, p. 55 et seq.
It appears that on December 7, 1919, Salem's lawyer again pleaded before the appellate court the lack of jurisdiction of the native courts and again produced a certificate of nationality—on this occasion, an authenticated one.
The Judge instructed the Parquet to investigate allegations made by the lawyer for Salem with respect to the latter's nationality, and directed an adjournment until February 8, 1920. The issue with respect to nationality and treaty rights was therefore at this stage postponed two months. On February 8, 1920, the Parquet asked for further adjournment to ascertain from the Ministry for Foreign Affairs if the accused possessed American nationality "at the time of the forgery".
Then follows a series of hearings which, irrespective of their precise nature, seem somewhat odd, in that the accused parties repeatedly failed to make their appearance, and the Court repeatedly adjourned.
On February 22, 1920, there was an adjournment. Only Salem appeared, a number of co-defendants having absented themselves. On February 29, 1920, there was a hearing, and again only Salem appeared, and there was an adjournment to March 21, 1920. On March 21, 1920, an adjournment was taken to allow the Parquet to carry on further investigations with respect to the question of nationality. On May 15, 1920, the accused parties did not appear, and an adjournment was taken to enable the Parquet to obtain information which it was said he was still awaiting with respect to the subject of nationality. On July 1, 1920, the accused parties were called but did not appear, and an adjournment was taken. At a hearing on August 5, 1920, the same situation existed, an adjournment being taken because the accused parties did not appear. On October 16, 1920, the accused parties failed to appear, and the lawyer for Salem declared himself ready in the absence of the latter to deal with the question of the incompetency of the Court. There was further adjournment. On November 18, 1920, the accused parties did not appear, and an adjournment was taken. On January 15,
1921, the parties failed to appear; Salem's attorney asked for a decision on the question of incompetency; the Court ordered an adjournment for fifteen days at the end of which a judgment was to be given as to the right of the lawyer to represent Salem in the latter's absence. On January 29, 1921, the accused parties failed to put in an appearance, and the Court not having terminated its deliberations ordered an adjournment for eight days. On February 5, 1921, the accused parties were absent, and the Court ordered that the power of attorney of Salem's lawyer be recognized. During all this time the question of treaty rights was left undetermined. On March 12, 1921, the Parquet requested to be allowed to declare the incompetency of the native courts with respect to George Salem, whose status as an American citizen was said to have been established by a letter from the Minister of Justice addressed to the Procureur Général. Lack of jurisdiction over Salem was then declared by the Court.
The somewhat brief analysis made in the majority opinion of these proceedings which I have just sketched gives to them an aspect of regularity. But it seems to me that the conclusion which I have previously expressed as to the failure of administrative action, as well as judicial procedure, to give effect to the treaty rights becomes convincing in the light of these records. It is shown how easily the combined action of the Egyptian administrative and judicial authorities could be taken to give effect to rights secured by the United States and inuring to the benefit of Salem. Account being taken of difficulties inherent in international practices in matters of this kind, more effective action than that generally taken among nations should not be exacted from Egypt. But that which may reasonably be expected from any Nation should, at least, be done.
When consideration is given to the character of the questions before the Egyptian Foreign Office and before the Egyptian courts-questions pertaining to treaty obligations and affecting, therefore, the relations of the two
Governments; questions which, as shown by the record, seriously concerned the property rights of Salem and his standing in the community; one cannot fail to take account of the fact that approximately for more than a year and a half no final disposition was made of them. It has been suggested that the assertion of treaty rights was not for a time pressed very strongly by the Government of the United States. But the observance of stipulations of treaties or of rules of international law should not be dependent on the use of coercive methods; nor should it be proportionate to the degree of vehemence with which rights are asserted.
It may be interesting and useful for purposes of illustration to consider the legal situation with respect to the enforcement of treaties in the United States, where there are many aliens and where it may perhaps be considered there is a somewhat inelastic, or in any event a fairly rigid, legal system in view of the independence of the executive, judicial, and administrative departments of the Government, and in view, further, of the system of dual sovereignty of the Federal Government and of the States of the Union.
In the United States, hundreds of decisions relating to the interpretation of treaties have been rendered by the Federal courts and by State courts. Among the numerous subjects dealt with by such decisions are: the functions of consular officers, including important duties in relation to the settlement of estates; matters of extradition; questions relating to industrial property; rights under treaties and statutes relating to immigration; commercial matters, including the treatment of vessels and matters pertaining to customs; the conduct of business by aliens; titles to land; matters of taxation; rights in relation to inheritances; and boundary waters. Crandall, Treaties Their Making and Enforcement, 2nd ed., pp. 466–634.
No special procedure is prescribed by legislation of the United States with respect to the trial, solely in the Federal courts, of aliens accused of crimes, or of citizens ac
cused of offenses against aliens. Nor is any specific procedure provided with respect to the use of the proceeding of injunction to prevent the operation of State statutes. which may be considered to contravene stipulations of treaties. However, it is interesting to note that in the United States, in which the courts deal so extensively with the interpretation of treaties, Executive authorities sometimes intervene in judicial proceedings with a view to taking all possible steps looking to the observance of treaties and the avoidance of any possible international difficulties growing out of differences of interpretation. For illustrations see: Sullivan et al. v. Kidd, 254 U.S. 433; Cheung Sum Shee et al. v. Nagle, 268 U.S. 336.
More interesting than the cases just cited is perhaps the case In re Anderson's Estate, 166 Iowa 617, in which, originally, authorities of the Federal Government intervened in the proceedings in a State court. The case involved the interpretation of treaty stipulations between the United States and Denmark in relation to matters of taxation. At the instance of the authorities of the Government of the United States, the case was carried to the Supreme Court of the United States. Petersen et al. v. State of Iowa, 245 U.S. 170.
It has been said that the construction of treaties is a matter of law to be governed by the same rules mutatis mutandis as prevail in the construction of contracts and domestic laws. Francis Wharton, International Law Digest, Vol. II, p. 36. In other words, as a matter of necessary practice, international courts in construing treaties will apply common sense principles of interpretation underlying rules of construction such as are applied throughout the world. It seems to me that we may examine the complaint under consideration with respect to a treaty infringement from an angle very favorable to the respondent Government and still find its defense inadequate.
The violation of a treaty is a violation of a recognized rule of international law. I have expressed the opinion