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regard to this matter and that you may inform your Government exactly of the point of view of the Egyptian Government.
6. The American Minister replied in his letter dated 8th July 1929 (annex C, p. 50):
I cannot refrain from expressing some surprise that in the statement accompanying Your Excellency's last letter there appears to be a certain hesitancy to furnish me with a clear and unequivocal recognition of Mr. Salem's American citizenship. By the foregoing I do not mean in any sense to question the bona fides of the presently considered proposal for the settlement of this case but rather to express the opinion that it would be entirely consistent with the bases of that proposal were such recognition to be stated in advance and a clear assurance furnished me that, should Mr. Salem institute the suggested requête civile proceedings before the Mixed Court of Appeal, no question would be raised by the Egyptian Government as to his right to come before that Court as an American citizen in good standing.
7. On the 23rd July 1929 the American Minister left an aide-mémoire with the Egyptian Minister of Foreign Affairs, page 1, in which was written [annex C, p. 51]:
The presently received telegram from the American Government states in part that the Department of State understands that "the Egyptian Government will admit for the purpose of the re-submission of the case to the Court of Appeals Salem's continuous citizenship as an existing fact."
In an annex to the aide-mémoire the American Minister suggests to the Egyptian Government the following wording:
For the purpose of obtaining a new judgment in the case of Salem the Egyptian Government is willing to admit as an existing fact the uninterrupted nationality of Salem.
8. The Egyptian Government handed the American Minister draft of a note to settle the case [of] Salem on the 29th November 1929.
The American Minister sent an explicit reply on the 13th February 1930 in which is said (annex C, pp. 56, 57):
No. 10c. (It is suggested) that Salem's American citizenship [shall] be recognized without question.
No. 12. My Government understands that the Egyptian Government, by [its] draft Note also accepts stipulation 10 (c) in that the Egyptian Government is willing to recognize Salem as an American citizen in good standing continuously since the original notification given by the American Diplomatic Agency to the Egyptian Ministry of Foreign Affairs in October, 1919.
No. 16. If an agreement cannot be reached on one of the above alternatives, my Government feels it necessary to demand an immediate settlement of the case through diplomatic channels or by arbitration.
9. On the 20th March 1930 the Egyptian Foreign Minister replied (annex C, pp. 60, 61):
The purpose of the draft of the 29th November 1929 was to convey the assurance of the Egyptian Government asked for by Your Excellency on the 8th July, but it did not signify that the Egyptian Government agreed with the terms of the aide-mémoire of 23rd July.
The Egyptian Government has no difficulty in accepting the proposal of the Government of the United States that the questions which are in dispute between both Governments in the case of Salem should be submitted to an arbitration.
10. During the following negotiations concerning the wording of the arbitration agreement the American legation proposed in their letter of the 14th May 1930 (annex C, pp. 62ff.) a protocol of which no. 3, is in accordance with paragraph 3 of the final protocol.
11. To this proposal the Egyptian Government replied in their letter of the 3rd of June 1930 that the paragraph would suitably be worded otherwise. They attached to the letter the draft of a protocol wherein paragraph 3 reads as follows (annex C, p. 67):
Paragraph 3. The questions the Tribunal have to decide are as follows:
(a) Can the Egyptian Government according to International Law be held liable to the Government of the United States for a judgment of the Mixed Courts instituted in Egypt by international conventions?
(b) If this question is answered in the affirmative, can the judgment of the Mixed Court of Appeal of the 22nd April 1926 be regarded as a denial of justice?
(c) If this question is answered in the affirmative, must the measures taken by the Egyptian domestic and legal authorities against George J. Salem during the time from 1st November 1919 until 30th April 1930 be regarded as failure on the part of the Egyptian Government to fulfil their duties towards an American citizen?
12. The American Minister objected to this proposal by letter on the 17th July 1930 as follows (annex C, p. 68):
The Government of the United States purposely drafted Article 3 of the Protocol in broad terms in order that the Royal Egyptian Government might raise at the arbitration any points having to do with the general question of its responsibility as a Government towards the Government of the United States and the American Claimant.
13. The Egyptian Government replied accordingly on the 22nd September 1930 (annex C, p. 72):
The Egyptian Government notes with satisfaction the explanation of the Government of the United States that they have drafted paragraph 3 of the protocol purposely in broad terms to enable the Egyptian Government to raise all
points at the arbitration with reference to the general question of their responsibility to the United States.
14. This interpretation of the Egyptian Government was acknowledged by letter of the American Ambassador of the 17th November 1930 (annex C, p. 74):
Third. The Government of the United States claims the right to present its case to the Arbitral Tribunal in such form as it deems proper in order to develop in an appropriate manner all phases of the case.
Fourth. The Government of the United States concedes the right of the Egyptian Government to have the same unrestricted privilege.
From the very development of these negotiations it is obvious that article 3 ought to be interpreted not in accordance with the limited grammatical construction but in a broad sense (sensu lato).
II. The Arbitral Tribunal is therefore entitled to examine whether the American citizenship of Salem really exists. Such examination is not impeded by the principle of international law that every sovereign state is, generally speaking, sovereign in deciding the question as to which persons he will regard as his subjects, because the bestowal of citizenship is a manifestation of his international independence. In fact, as soon as the question of nationality is in dispute between two sovereign powers, it cannot be exclusively decided in accordance with the national law of one of these powers. In the present case it should be ascertained whether one of the powers, by bestowing the citizenship against general principles of international law, has interfered with the right of the other power, or if the bestowal of the citizenship is vitiated because it has been obtained by fraud. In order to decide the question of fraud it will be necessary to examine if the false representations with which the nationality of a certain power has been acquired refer to those
points on which, according to the law of that power, the acquisition of nationality is essentially dependent. So far the notion of fraud cannot be constructed without taking into consideration the national law of the power which bestowed the citizenship. In this respect, according to the affirmations of the Egyptian Government, the bestowal of American citizenship to Salem was due to a fraud concerning the essential conditions of the act.
As will be seen from the genesis of the law of March 1907 it was issued for the express purpose of discharging the American agencies abroad of the obligation to defend against the governments to which they are accredited the claims of such persons who, according to the regulations in force, have acquired American citizenship but have done this only for the purpose of returning to the old country or moving to other parts abroad and to enjoy there the protection of the United States. (Cf. Leland T. Gordon, The Turkish-American Controversy over Nationality, American Journal of International Law, vol. XXV, p. 666.) If this fact could be proved in the case of Salem the fraudulent acquisition of his American citizenship would be established.
The objection of the American Government that such proof can only be furnished to the American courts who, under the law of June 29, 1906, section 23, are competent to deprive any naturalized person of citizenship if fraud is proved, is not admissible before an international arbitral tribunal. The judgment of a national court may be indispensable to engender the legal effects of such a fraud under national law, but nevertheless in a litigation between states regarding the nationality of a person the right of one state to contest, as acquired by fraud, the nationality claimed by the other state cannot depend on the decision of the national courts of this state. (Cf. Edwin M. Borchard, The Diplomatic Protection of Citizens Abroad, p. 522.)
In Salem's case the Arbitral Tribunal does not consider the fraud as being clearly proved. It is true that