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matic action to facilitate prompt observance of treaty rights, and that in Salem's case Egyptian administrative authorities could appropriately contribute to that end. It is shown, indeed, that they did so effectively, approximately a year and a half after the issue with respect to lack of jurisdiction of local courts over the claimant, Salem, was raised. Annex E to the Memorial of the Egyptian Government, p. 67.

I have mentioned the practice with respect to diplomatic adjustment of questions pertaining to nationality, when two foreign Governments claim the same person in Egypt. It would seem that similar diplomatic action might with equal or more appropriateness be taken, when the Government of Egypt claims as a national of that country, a person in whose behalf the plea of alienage is made.

Records useful in reaching a determination of the issue respecting observance of treaty rights have been submitted to the Tribunal by both Governments.

It appears that on November 2, 1919, the lawyer representing Salem presented to the Egyptian Court at Mehalla a certificate signed by the American Diplomatic Agent and Consul General and reading as follows:


"This is to certify that Mr. George J. Salem, bearer of Passport No. 118252, issued on September 18, 1919, by the Department of State, Washington, D.C., is an American Citizen." American Case, p. 76.

It is shown that information concerning Salem's American nationality had been communicated through diplomatic channels to the Egyptian Foreign Office. In the American Case there is printed a copy of a telegram of November 1, 1919, reading as follows:

"CAIRO, November 1st 1919, 12.20 p.m. "To the substitute of the Parquet at Mehalla el Kobra, "The Ministry of Foreign Affairs informs us that the American Agency has informed them that George J. Salem who is accused in a criminal case for which there

is a hearing to-morrow is an American citizen. You are directed to take this into consideration.


It seems that the certificate of the American Diplomatic Agent and Consul General was rejected by the Court on account of lack of authentication. A rule of evidence requiring authentication would seem to be entirely proper in an ordinary litigation or in criminal proceedings of which the Egyptian courts have jurisdiction. And it may be a plausible view that the technical ruling of the Judge in the Salem case could also be justified. Yet when account is taken in particular of the international aspects of the case, it would seem to be a reasonable conclusion that it would have been appropriate for the Judge to give consideration to the principles with respect to jurisdiction. which I have briefly indicated and to have taken some steps to ascertain, on his own initiative, whether or not he had jurisdiction.

The telegram which was sent by the Under Secretary of Justice to the Substitute of the Parquet under date of November 1, 1919, was explicit. I have referred in general terms to the appropriateness of administrative action at times in giving effect to provisions of treaties. Somewhat different translations of the Under Secretary's telegram to the Substitute of the Parquet appear in the record. However, it would seem to be a reasonable conclusion that the telegram was sent with the purpose of having him take action looking to the dismissal of the case similar to the steps effectively taken on March 12, 1921, before the appellate court at Tantah. Salem being an American citizen, the Court was without jurisdiction. There is no indication in the telegram that the Egyptian administrative official who sent it had any doubt on that point. If he had, it would seem that Egyptian authorities should properly have sought an explanation from the appropriate American authorities, and that such explanation could easily have been given.

The lawyer for Salem petitioned the court for a continuance in order to obtain an authentication of the American diplomatic and consular representative's certificate, and the petition was refused. Again, it may be observed that, from a technical standpoint, in an ordinary litigation or criminal proceeding before a local court, such a strict ruling might not be objectionable. But in a case involving treaty rights, it would seem that the Judge should have had no hesitation in granting the application submitted to him, and that, considering the international features of the case, he might indeed have desired to clarify the question with which he was confronted.

It seems to me that the argument employed by counsel for Egypt tends to support rather than to refute the complaint of the United States with respect to the non-observance of treaty stipulations. I think this may be said, even though due allowance may be made for a degree of latitude counsel may at times allow themselves in the matter of a strict adherence to the record. In reaching a decision on this important point of treaty rights, the Tribunal must ground its conclusions on records before it. It cannot read into those records things of which there is no trace. It must not resort to fantasy. It is not justified in attributing to the Judge action for which there is no basis in the record. If such action were improperly taken by him, that might be cogent evidence of a failure properly to give effect to the Treaty.

It was said by counsel for Egypt during the course of oral argument that it seemed to the Judge before whom Salem's trial was instituted that Salem had suddenly acquired an American nationality which he did not have at the opening of the trial and that the Judge found himself extremely embarrassed. Detailed conclusions were stated with respect to the Judge's mental attitude and line of reasoning. To be sure these conclusions may have been based on the assumption that the preliminary investigation, conducted by Ibrashy Bey, to determine whether Salem should be brought to trial on the charge of forgery

may, in a sense, be regarded as a stage of the trial, and that the Judge was familiar with these preliminary proceedings; or that he assumed that Salem, having been brought to trial after a preliminary hearing, there could be no question in his case as to nationality. This last assumption probably is not without some justification. In any event, it seems to me to be doubtful-and certainly it is not clearly shown-that the Judge had examined the very voluminous record of the preliminary investigation conducted by Ibrashy Bey. And lack of jurisdiction was pleaded at the opening of Salem's formal trial before Judge Fayek. An important point, determinative of his right to proceed, was then raised.

It seems to me that my associates likewise depart too freely from the record. It is said in the majority opinion that with regard to the "attitude of the native courts it must be taken into consideration that twice, in 1915 and 1917, the Diplomatic Agent of the United States in Cairo informed the Egyptian authorities that Salem was no longer entitled to American protection because a presumption of expatriation had arisen against him". It is further said that the certificate which was presented in behalf of Salem in 1919 to the court "does not show when, nor under which conditions, Salem regained the American citizenship". He had not lost it.

In dealing with proceedings before an Egyptian court in 1919, I do not perceive the relevancy of certain incorrect statements made by an American representative in 1915 and 1917, respectively. It has been pointed out that the provisions of Section 2 of the law of March 2, 1907, are not concerned with the loss of American citizenship but with a possible temporary withholding of protection of naturalized American citizens residing abroad. It was shown to the Tribunal that the instructions under which the American representative acted in stating Salem was not entitled to protection were erroneous and were subsequently corrected. However, if this official's declarations in some way confused the Egyptian judicial authori

ties concerned with the trial of Salem, this fact might be regarded as an excuse for delays before the court. But I do not perceive any relationship between these communications of 1915 and 1917 and the proceedings instituted in an Egyptian court in 1919 before which a plea to the jurisdiction on the ground of alienage was made.

The complaints before the Tribunal relate to proceedings before the Native Courts between the years 1919 and 1921, and not with other proceedings. When an American consular officer erroneously refused to take jurisdiction in a case affecting Salem, in the year 1915, his action had no relation to the proceedings with which this Tribunal is concerned.

I agree with the views expressed by Judge Purdy of the United States Court for China in the case of Worthington v. Murray, Hudson, Cases on International Law, p. 352. The presumption referred to in Section 2 of the Act of March 2, 1907, had arisen against the defendant. Although the presumption had not been rebutted and registration of the defendant in the American Consulate General had been refused, the Court held him to be an American citizen and subject to the jurisdiction of the Court.

Because an American extraterritorial court tried Salem no sooner than it did, the Government of the United States did not "abandon" him, as said by counsel for Egypt. Nor do I think that there is any justification for the statement of counsel that "American justice failed to fulfill its duty". It did not shirk its duties under the capitulatory régime or, more specifically speaking, duties under the Treaty of May 7, 1830, which are referred to in a dictum in the majority opinion. There is no virtue in the trial of an innocent man. Egyptian authorities did not institute a prosecution until a Persian consular officer acted to that end. It is readily perceivable, I think, why the American extraterritorial court did not act sooner than it did in the prosecution of Salem. But it did conduct a trial. That was unfortunate for Salem. Indeed, it is a most grievous misfortune for any innocent man to have

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