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diction. That correspondence seems to me to relate solely to a suggestion made by the Egyptian Government to the effect that the claimant, Salem, should do something more in the matter of resorting to local Egyptian remedies than to obtain a decision of the court of last resort dismissing his claim; that he should further avail himself of the recourse en requête civile, which may be roughly defined as a measure by which the claimant would undertake to have the Court set aside its own decision.
But even if it be conceded that this correspondence may properly be used for purposes of interpretation, it seems to me that it does not support the contentions of the Egyptian Government, nor the views of my learned associates, that the question of want of jurisdiction, resulting from lack of American nationality of the claimant, may be raised under the Protocol.
From the note, quoted in part in the majority opinion, which was sent by the American Minister at Cairo to the Egyptian Foreign Office under date of July 8, 1929, it appears that the Government of the United States was of the opinion that it should be understood that if the claimant, Salem, had recourse to the requête civile, no question would be raised by the Egyptian Government as to his right to come before that Court as an American citizen. In a note of March 20, 1930, the Egyptian Government informed the American Minister that by a communication of November 29, 1929, it was intended to convey the assurances of the Egyptian Government asked for by the United States in the note of July 8 to the effect that, if Salem instituted the "requête civile", no question would be raised by the Egyptian Government as to his right to come before the Court as an American citizen in good standing. It was added that the Egyptian Government, however, did not agree to the terms of an American aide memoire of July 23. The last-mentioned communication had asked for assurances with respect to the recognition of Salem's continuous citizenship.
It seems to me to be clear, therefore, that, even this correspondence extensively quoted in the majority opinion, shows that the Egyptian Government recognized the American citizenship, although a reservation may have been made with respect to the continuous character of the citizenship. The definite recognition of Salem's American citizenship by Egyptian authorities prior to the signing of the Protocol is shown also by other records, including those of an Egyptian court.
If there was no question as to Salem's American nationality before and at the time of the conclusion of the Protocol of January 20, 1931, then in my opinion there can be no issue as to jurisdiction under the Protocol, even though the instrument might permit contentions with respect to the right of the United States to call the Egyptian Government to account for acts committed against Salem at some period when he was not a citizen. I do not mean to imply that any acts complained of by the United States fall within any such period.
In view of the specific definitions in the Protocol of the issues to be decided, definitions which do not embrace but rather specifically exclude jurisdictional questions pertaining to nationality, I think that, if interpretation is undertaken, application may properly be given to the principle of expressio unius est exclusio alterius.
I strongly differ from the view of my learned associates that there are before the Tribunal any such questions as those indicated by the following passage in their opinion:
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."
I likewise differ from their conclusions with respect to the effect of the American law of March 2, 1907, 34 Stat. 1228, and the law of June 29, 1906, 34 Stat., Part 1, p. 596.
The construction of the vague language of Section 2 of the Act of March 2, 1907, is discussed at considerable length in the opinion written for the Commission in the Costello case in the arbitration between the United States and Mexico under the Convention of September 8, 1923, Opinions of Commissioners, Washington, 1929. A considerable number of citations is made in that opinion to show that the law has been construed by American judicial, legislative and administrative authorities simply to deprive naturalized American citizens, while residing abroad under specified conditions, of protection, and not entirely to nullify their citizenship.
This interpretation is in harmony with an opinion rendered by Attorney General Wickersham on December 1, 1910, 28 Ops. Atty. Gen. 504. Mr. Wickersham expressed the view that the law was limited to naturalized citizens while residing in foreign countries beyond certain periods stated in the Act, the object thereof being to relieve the Government from the obligation to protect such citizens during residence abroad, and that it did not apply to citizens who returned to the United States. I do not believe that the law has ever been construed by any American authorities-administrative, legislative or judicial to be one under which there could be raised any question of "fraudulent acquisition" of American citizenship in the manner indicated in the opinion of my associates.
Section 15 of the Act of June 29, 1906, contains the following paragraph:
"If any alien who shall have secured a certificate of citizenship under the provisions of this Act shall, within five years after the issuance of such certificate, return to the country of his nativity, or go to any other foreign country, and take permanent residence therein, it shall be considered prima facie evidence of lack of intention on the part of such alien to become a permanent citizen of the United States at the time of filing his application for cit
izenship, and, in the absence of countervailing evidence, it shall be sufficient in the proper proceeding to authorize the cancellation of his certificate of citizenship as fraudulent, and the diplomatic and consular officers of the United States in foreign countries shall from time to time, through the Department of State, furnish the Department of Justice with the names of those within their respective jurisdictions who have such certificates of citizenship and who have taken permanent residence in the country of their nativity, or in any other foreign country, and such statements, duly certified, shall be admissible in evidence in all courts in proceedings to cancel certificates of citizenship."
I know of no counterpart of this Act in the laws of any other country. It differs materially from the Act of March 2, 1907, in that the former relates to a cancellation of citizenship. And it raises-somewhat oddly and harshly perhaps it may be said—a presumption of fraudulent intent on the part of a person who, within the specified period, leaves the United States and takes up a permanent residence in some other country.
If the law may be considered to be harsh in attributing, in retrospect so to speak, an initial intent of fraud to a person who, after becoming naturalized in the United States, becomes permanently resident elsewhere, it is important to note that such a person's rights of American citizenship are safeguarded by requirements of the law for his protection. There must be investigation by American diplomatic and consular officers, examination of the reports of such officials by the Department of State and further examination and conclusions by the Department of Justice, and finally a trial before an American court of equity, a Federal tribunal in which the interested person has an opportunity to make a defense.
I cannot agree with the views of my associates "that there is much ground for suspicion" with respect to the conditions under which Salem obtained naturalization. And I am of the opinion that this Tribunal has no power to pass upon a question whether Salem obtained a fraud
ulent certificate of citizenship within the meaning of the law of June 29, 1906.
As I have observed, so far as I know, no other Government attributes a fraudulent intent to a naturalized citizen who, after obtaining naturalization in one country, may take up a permanent residence in another. If the Tribunal had before it a case identical to that of Salem, except with respect to the subject of nationality, no question of fraudulent naturalization such as that contemplated by the law of 1906 could arise. If such a charge of fraud is to be fastened upon an American citizen, it can be done only by taking account of the kind of fraud which the law creates and of the methods by which alone that fraud can be established. The Tribunal cannot properly undertake to make itself investigator, prosecutor, examiner and a domestic court of equity.
It is particularly pertinent to note that the law is concerned with "permanent residence" outside of the United States. The record before the Tribunal establishes clearly, in my opinion, that, when the Protocol of January 20, 1931, was signed, and when the Tribunal deliberated on this case, Salem was a permanent resident of the United States. It seems to me to be clear, therefore, that at the time no administrative or prosecuting authorities of the United States could properly have given serious consideration to a proceeding to cancel Salem's naturalization; no American Federal tribunal could justly have pronounced a cancellation.
In these circumstances I am of the opinion that the Tribunal, taking account of the law of June 29, 1906, which has been invoked, could not dispense with consular or diplomatic investigation and with examination by the Department of State and by the Department of Justice, and in effect make itself a court of equity and pronounce a decree for which there would be no basis in law, even if the proceedings were carried on by the competent American authorities.