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no reason to make the charge of lack of probable cause, they would not have felt constrained to attack the institution of the Egyptian preliminary hearing.
THE QUESTION OF NON-OBSERVANCE OF TREATY
The complaint made by the United States with respect to non-observance of treaty rights I consider to be well grounded. I am of the opinion that Egyptian administrative authorities, as well as judicial authorities, failed to take steps that could properly be expected of them to give effect to such rights as were secured in favor of the United States by the Treaty concluded May 7, 1830, between the Ottoman Empire and the United States; rights which inured to the benefit of the claimant, Salem. In view of the importance of this question, and in view of the difference of opinion between myself and my associates, I shall discuss at some length the official records and the legal principles on which I ground my views. This complaint involves both judicial and administrative authorities.
Recourse to judicial tribunals is of course useful and indeed, as a practical matter, at times necessary, in connection with the enforcement of treaties. A Government confronted by a complaint of contravention of provisions of a treaty may be constrained to take the position that, as a matter of practical procedure, resort for the establishment of substantive rights secured by treaties should properly be made to courts, which are open to aliens for the determination of such rights and which are qualified for that important function of dealing with questions requiring judicial analysis. But it is proper to bear in mind, particularly I think with respect to the present case, that the interpretation of treaties pertains to administrative authorities as well as to judicial authorities, and that there may be cases in which something more may be expected from administrative authorities than the passive attitude of giving advice as to recourse to judicial remedies. Occasionally such remedies are not available or are inadequate. The general character of treaties, the rights invoked in a given case, and the methods of enforcement available are things determinative of the character of the action that will be appropriate to give effect to stipulated rights.
In connection with the subject of judicial action for the enforcement of rights under treaties, it is pertinent to take account of the fact that there are instances when courts are not empowered to give application to a treaty in the absence of local law giving effect, so to speak, to the treaty. Robertson v. General Electric Company, 32 Fed. 2nd, 495; Colombian Mining & Exploration Co., Ltd. case, Supreme Court of Colombia, 16 December 1926, Annual Digest of Public International Law Cases, Years 1927–1928, McNair and Lauterpacht, p. 411; 33 Gaceta Judicial 66.
Furthermore at times courts may consider themselves bound by local legislation, when it is in conflict with treaties and, therefore, feel constrained to give effect to the domestic law. Thus, instead of upholding rights under treaties they enforce measures contravening them. Court of Cassation of Jugoslavia, Ibid., Years 1925–1926, p. 346; Mjesecnik No. 3, Vol. XIV (March 1928); Whitney v. Robertson, 124 U.S. 190; Head Money Cases, 112 U.S. 580.
The judiciary of one nation cannot give to a treaty a final interpretation which must be accepted as conclusive by another contracting party. Only an international tribunal created by both parties to render a final decision can furnish a construction by which both are bound. Of course, it may happen that frequently both are satisfied with an interpretation which a domestic court of either may pronounce.
When a treaty stipulates no specific methods with respect to enforcement, as is the situation with respect to stipulations involved in the present case, neither party can prescribe a procedure by which the other must be bound. But Egyptian rules which properly safeguard the rights of both Nations and of nationals to whom the benefits of treaty provisions inure will, of course, be acceptable to the United States.
The legal situation with respect to jurisdiction of American consular courts and local Egyptian courts in criminal matters involving Americans can be briefly indicated. By Article IV of the Treaty of May 7, 1830, jurisdiction of the local courts is excluded and is vested in what may be called extraterritorial courts. It is provided that even when American citizens “may have committed some offense they shall not be arrested and put in ison, by the local authorities, but they shall be tried by their minister or consul, and punished according to their offense, following, in this respect, the usage observed towards other Franks ”. Malloy, Vol. II, p. 1318.
It appears that, when aliens in Egypt are occasionally taken into custody by local police authorities, being apprehended flagrante delicto, they are turned over for prosecution to consular officers of the Government to which they belong. It is interesting to take an account of what appears to be the general practice in the Mixed Courts, when questions of nationality are occasionally raised before them. The nationality of a foreigner is established by a certificate issued by a consular officer of the Government to which the foreigner belongs, if the representative of another Government does not claim the allegiance of the same person. In the latter situation the question of nationality is solved through diplomatic action, and the Mixed Courts postpone action until the question has been definitely adjusted. Numerous judicial precedents were cited by the Agent of the United States respecting this general practice. Citation was also made before the Tribunal of an interesting Egyptian judicial decision rendered on January 10, 1914, to the effect that the question of nationality can be raised in the native courts, even before the court of last resort.
Evidently the native courts take the view, the logic of which appears to be unquestioned, that the rights of aliens to be tried in extraterritorial courts are not solely personal rights that can be waived as matters of personal jurisdiction are sometimes waived before domestic courts. They are rights which are secured by Nations and which inure to the benefit of their nationals. It would therefore appear to be accurate to say that the action of any local court in taking jurisdiction over an alien in contravention of the stipulations of a treaty may properly be regarded to be a void act.
By way of analogy, reference may usefully be made, I think, to immunities of diplomats under international law and immunities of consular officers occasionally stipulated by treaties. Governments insist rigidly on the observance of such immunities, and the view has been taken that a diplomat has not, himself, the power, without the consent of his Government, to waive them. Moore, International Law Digest, Vol. IV, p. 642.
It would seem to be clear that an alien in Egypt cannot by some personal waiver of jurisdiction nullify rights of his Government, such as those stipulated in Article IV of the Treaty of May 7, 1830. Notwithstanding the differences in the character of immunities growing out of the so-called capitulatory rights and of those accorded to diplomats under the law of nations, or those occasionally secured to consular officers by treaties, it seems to me that it is pertinent and useful in dealing with issues involved in the instant case to take account of points of similarity.
Still another analogy may be useful. Domestic courts have, from time to time, dealt with cases involving the status of ships owned or operated by a Government, or of property owned by a Government, or of the status of a Government itself, before a domestic tribunal. It has been said that such cases involve questions of jurisdiction. Perhaps the view might equally well be taken that they are concerned with rules of substantive domestic law, and of
international law, pertaining to the immunities of a Government or of government-owned property. But, in any event, there has been a general recognition of the appropriateness in such cases of diplomatic action to avoid ininternational difficulties; to facilitate a prompt recognition of rights secured to nations. The Exchange, 7 Cranch 116; Parlement Belge, L.R. 4 P.D. 129; Ex parte in the matter of Muir, master of the Gleneden, 254 U.S. 522; The Oliver American Trading Company, Inc., v. The Government of the United States of Mexico, et al., 5 Fed. (2nd) 659.
In the case of the Gleneden, supra, the Supreme Court of the United States discussed in its opinion methods of procedure in dealing with the questions of jurisdiction which had been raised in behalf of the British Government. In relation to that point, the Court observed that“ if there was objection to appearing as a suitor in a foreign court, it was open to that Government to make the asserted public status and immunity of the vessel the subject of diplomatic representations to the end that, if that claim was recognized by the Executive Department of this Government, it might be set forth and supported in an appropriate suggestion to the court by the Attorney General, or some law officer acting under his direction". The final disposition of this case and of, other similar cases in the American courts was considerably delayed. See The Gul Djemal, 264 U.S. 90; The Pesaro, 255 U.S. 216.
Unfortunate delays occur throughout the world in connection with the proceedings of judicial tribunals and the action of administrative authorities. They may be unavoidable at times. Occasionally litigants may themselves be responsible. Action similar to that suggested by the Supreme Court in the Gleneden case was finally taken in Salem's case on March 12, 1921. But, in my opinion, the delays up to that time were unnecessary and unjustifiable.
It would seem that in cases involving capitulatory rights, resort may at times properly and usefully be had to diplo