« ÎnapoiContinuați »
VI. Inasmuch as the pecuniary claim of the American Government is based on an alleged violation of the treaty of 1830 between the United States and Turkey, such a claim is not well founded in international law.
1. This treaty confers a unilateral right on the United States. Now, according to established principles of international law, no pecuniary claim for damages can be based on such a one-sided agreement.
2. At last the Egyptian Government remarks that in this case the American Government makes no claim for damages of its own rights. The whole pecuniary claim refers to the damage sustained by the claimant Salem.
C. The American Government replies as follows:
I. With regard to the question of the right of citizenship of George Salem:
1. The American nationality of Salem can no longer be contended in the arbitral proceedings, because according to paragraphs 1 and 3 of the protocol of the 20th January 1931 this nationality was acknowledged as existing and could not therefore be submitted to a decision of the Arbitral Tribunal.
2. The question whether Salem has obtained the right of citizenship by fraud can only be decided by the competent American law court in accordance with the law of the 29th June of 1906 and cannot be decided by an international arbitral tribunal.
3. Besides, the facts prove beyond doubt that the intention of Salem to become an American citizen was serious and durable. In this connexion the American Government refers to a great number of affidavits, certificates of good conduct and other documents, and to the fact that Salem was living in America for many years and that he has educated his son, an issue of his divorced marriage, in an American school.
4. If double nationality should be admitted, the principle of effective nationality cannot be acknowledged.
5. If George Salem could possess another nationality besides the American nationality, it can only be the Persian nationality. In this case the Egyptian Government is not entitled to object to the American
Government that he is a Persian. II. The reasons stated by the Egyptian Government for the inadmissibility of the claim are erroneous.
1. It cannot be supposed that the capitulatory powers by agreeing to the Egyptian Judicial Reform had renounced their sovereign right to assist their nationals diplomatically in case the rights of such nationals should be ignored by the Egyptian authorities.
2. By the fact that the Egyptian Government have in express terms submitted to the Arbitral Tribunal the question if such injury existed, they have thereby acknowledged the competence of this Tribunal without regard to an alleged exclusive jurisdiction of the Mixed Courts.
3. The national legal remedies are exhausted by the appeal Salem did lodge with the Mixed Court of Alexandria. There can therefore be no question of any further recourse, viz, recours en requête civile in this particular case. At any rate the Mixed Court of Appeal themselves declared that their decision was final. By submitting the question to the decision of the Arbitral Tribunal the Egyptian Government has waived the right to refer Salem to the legal remedy of the recours.
MOTIVES A. Salem's American citizenship I. The Egyptian Government contends that George J. Salem acquired American citizenship by fraud and that in consequence the American Government is not entitled at all to act for him or raise claims for violation of his rights of citizenship by the Egyptian authorities. But this question of title can only be investigated by the Arbitral Tribunal if the power to do so is assigned to us by the high disputing parties under the arbitration agreement of the 20th of January 1931. In view of the wording of the protocol this does not seem to be the fact.
Paragraph 1 says that the claim of the United States against the Royal Government of Egypt arising out of
treatment accorded George J. Salem an American citizen by Egyptian authorities shall be referred to an arbitral tribunal, and paragraph 3 precises the first question to be decided by the Court of Arbitration as follows:.
Is the Royal Government of Egypt under the principles of law and equity liable in damages to the Government of the United States of America on account of treatment accorded to the American citizen George
J. Salem ? According to the obvious grammatical construction of these sentences, Salem is indicated to be an American citizen and ought to be acknowledged as such by both high parties; the Court of Arbitration could no longer doubt this fact.
The grammatical construction is however not the only possible one. The sentences of both paragraphs can also be read to mean that by the words “American citizen the juridical basis for the claim for damages is indicated, and as the claim is disputed between the high parties in its entirety the investigation of the validity of this basis would also fall under the jurisdiction given by them to the Arbitral Tribunal.
That an arbitral tribunal is authorized to interpret the arbitration agreement (compromise) whereunder it is constituted has been contested in certain cases, but the prevailing opinion in international practice acknowledges their right to do so. Such interpretation is however only admissible if the wording of the compromise allows of several meanings of which none can be recognized as the clear will and purpose of the parties. In this case the Arbitral Tribunal has to investigate which meaning agrees with what has been the joint will of the parties when they concluded the compromise. Now, in order to ascertain the joint will of the parties, an arbitral tribunal is likewise entitled, according to the predominating international practice, to refer to the discussions and negotiations which led to the compromise. Such negotiations are embodied in the correspondence between the American
General Agency in Cairo and the Egyptian Government which was presented by the high disputing parties to the Arbitral Tribunal (see annexes to the American Case, nos. 2 and 3, and the American Counter Case, no. 155, and annex C of the Case of the Egyptian Government). From this correspondence the following can be noted:
1. On the 8th September 1928 the Egyptian Minister of Foreign Affairs presented to the American Diplomatic Agent a memorial which had indeed only a semi-official character but which was referred to officially, later on, by both disputing parties. In this memorial is written under no. 19 (annex C, p. 26) the following:
According to a well-established rule of international law, in cases where a subject has acquired a foreign nationality by fraud and such foreign nationality has been recognized by his government, that government is entitled, on discovery of the fraud, to withdraw its recognition. It will, therefore, be evident that the facts now disclosed as to the fraudulent means used by George Salem to obtain recognition first of Persian and then of American nationality, entitle the Egyptian Government to withdraw their recognition of Salem's American citizenship. The Ministry for Foreign Affairs accordingly reserves this question for discussion with the United States
Legation. 2. In the note of the 11th March 1929 (annex C, pp. 34ff.) the Egyptian Minister of Foreign Affairs refers to this point as follows:
The Royal Government wishes specially to draw the attention of the Government of the United States to the following consideration: in view of the facts which have lately come to the knowledge of the Royal Government and which are set forth in the semi-official memorial to the Legation of the United States in November 1928 it seems possible that Salem succeeded in being treated as a Persian subject only by fraud. If this is the case (i.e., if his Persian origin has not been established) it would follow that he
also could not legally acquire the American
nationality. 3. On the 25th June 1929 the Egyptian Minister of Foreign Affairs handed to the American Minister an aide-mémoire wherein the Egyptian Government declared themselves ready to attest to the Government of the United States that this Government declare now that Salem had possessed the American nationality without interruption, but that they have to point out that Salem has in reality not been treated by the American authorities in Egypt as if he had possessed this nationality uninterruptedly and that he himself had declared sometimes to be an American and sometimes to be of another nationality. (See annex C, p. 47, no. 2.)
4. The American Minister replied in a letter of the 26th June 1929 (annex C, p. 46):
I note that the Royal Egyptian Government is prepared to give the Government of the United States official assurance in writing that it now declares that Salem has enjoyed Ameri
can citizenship uninterruptedly. 5. The Egyptian Minister of Foreign Affairs par interim replied by letter dated the 30th June 1929 (annex C, p. 48):
On reading your letter of the 26th June it seems to me that the statement which was sent you with regard to the nationality of Salem has possibly not been understood exactly. I have said that the Egyptian Government is ready to attest to the Government of the United States that this latter Government now declares that Salem had possessed the American nationality without interruption but that the Egyptian Government points out at the same time that in reality Salem has not been treated by the American Authorities in such way as if he was in possession of the American nationality without interruption and that Salem himself sometimes stated he was an American citizen and sometimes a subject of another State.
I wish to make this point quite clear in order that no misunderstanding exists between us with