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OF DR. FRED K. NIELSEN
This claim is based, broadly speaking, on allegations of improper action on the part of administrative and judicial authorities of Egypt. Among the complaints made by the United States, that which to my mind is the most important one relates to the failure of Egyptian officials to observe stipulations of a treaty, guaranteeing to the United States certain rights, inuring to the benefit of the claimant as an American citizen. I regret that there is a difference of opinion between myself and my learned associates in relation to some charges made by the Government of the United States.
The issues raised in the case involve to a considerable degree uncertainties as to applicable rules of law. This is particularly true with regard to practices that have been followed with a view to the execution of provisions of treaties. Nearly every aspect of the case discloses a great number of tangled facts. It is merely common sense for the Arbitrators to recognize their personal limitations, as well as the limitations imposed by the law, in connection with attempts to reach positive conclusions with respect to situations which it was sought to reproduce before the Tribunal. This is true in spite of the great diligence of the Agent for each Government in exhaustive researches for documentary evidence and in able and fair presentations to enable the Tribunal to arrive at the truth.
I shall not attempt to discuss in detail all of the many issues of law and of fact that were raised in the pleadings, the briefs and the oral arguments. Any purposes that may be served by a discussion of certain questions does not require me to deal with all of those touched upon in
the opinion of my associates. With some of their conclusions, I find myself in little or no disagreement. I shall limit myself to important subjects with respect to which considerable differences exist.
QUESTIONS PERTAINING TO NATIONALITY
The conclusions respecting questions of nationality which have been stated by my associates were evidently not the basis of the rejection of the claim. But they involve important questions in relation to which my views differ largely from theirs.
An arbitral agreement is, of course, as binding on the Tribunal as it is on the Contracting Parties who made it. There is a general rule of law that non-observance of terms of submission is ground for regarding an award as invalid. Because of the rejection by my associates to a considerable extent of arguments advanced by counsel for Egypt with respect to matters pertaining to nationality in relation to the jurisdiction of the Tribunal, that rule has no direct application to the decision in the instant case. But in view of issues that have been raised and the disposition that has been made of them, and in view further of the great power of an international tribunal as a court of first and last resort, so to speak,-a court vested with final, unappealable determination of issues of law and fact, I think it is pertinent to take account of principles pertaining to the solemn duty of a tribunal with respect to the observance of provisions of an arbitral agreement.
Nationality is the justification in international law for the intervention of a Government of one country to protect persons and property in another country. Most arbitration agreements framed for the purpose of having adjudicated numerous cases do not incorporate the names of the claimants and, therefore, of course stipulate nothing with respect to their status. When it is provided, as it is in practically all agreements of this character, that claims of nationals of each contracting party shall be tried, the first preliminary point for the decision of a tribunal
is, of course, a jurisdictional one with respect to the nationality of each claimant. When a question of nationality is not thus dealt with in a jurisdictional article, it pertains to the right of a nation under international law to protect its national. I think that this distnction is at times useful, and that it is pertinent to take account of it in the instant case.
Article 1 of the Protocol concluded January 20, 1931, between Egypt and the United States, stipulates 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 in conformity with conditions hereinafter stated".
Article 3 reads as follows:
"The questions to be decided by the Tribunal are the following: first, 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? Second, in case the Arbitral Tribunal finds that such liability exists what sum should the Royal Government of Egypt in justice pay to the Government of the United States in full settlement of such damages?"
In my opinion no question can arise under this Protocol as to what counsel for Egypt termed the "competency" of the Tribunal to hear the case on its merits. Jurisdiction is the power of a tribunal to determine a case conformably to the law creating the tribunal or some other law defining its jurisdiction. The applicable law in the instant case is, of course, the Protocol of January 20, 1931. Under the general principle of law which I have stated with respect to the limitations on a Government as regards the protection of its own nationals solely, a tribunal acting under a different protocol, leaving open the question of citizenship, might hold that there could be no responsibility on the part of Egypt towards the United States for treatment accorded to Salem by Egyptian authorities. I am now stating a hypothetical case that postulates lack of
proof of citizenship of the claimant. But the Tribunal is concerned with a different situation.
It is not permissible to interpret when there is no need of interpretation, that is, when the terms of a treaty are clear and precise. Vattel, Law of Nations, Chitty's edition, Sec. 263, p. 244; Pradier-Fodéré, Traité de Droit International Public, Vol. II, Sec. 1179, p. 884; Hall, International Law, 6th ed., Chap. 10, pp. 327-329. It is also a well-established rule that every interpretation that leads to an absurdity or to a nullification of the language of an instrument should be rejected. Geofroy v. Riggs, 133 U.S. 258; Lau Ow Bew v. United States, 144 U.S. 47; Vattel, Op. cit., p. 251; Grotius, De Jure Belli Et Pacis, Whewell's edition, Vol. II, p. 161; Pradier-Fodéré, Op. cit., Vol. II, Sec. 1180, p. 885.
In my opinion, the Tribunal would have no right in effect to eliminate or to nullify the stipulations of the two Governments with respect to Salem's citizenship. It should not give to the Protocol a seemingly absurd meaning, to the effect that, when it is stipulated that the Tribunal shall judicially determine whether the treatment accorded to George Salem, an American citizen, entails responsibility, it could refuse to take jurisdiction and throw the case out of court on the ground of the lack of citizenship, the existence of which has been stipulated.
I agree with the view expressed in the majority opinion in general terms that a tribunal may properly examine negotiations leading up to the conclusion of the compromis—that is, when there is need of interpretation. That principle has repeatedly been applied by domestic and international tribunals and by nations in the course of diplomatic exchanges. Pradier-Fodéré, Op. cit., Vol. II, Sec. 1188, p. 895; Crandall, Treaties Their Making and Enforcement, 2nd ed., pp. 384-386; Nielsen v. Johnsan, 279 U.S. 47, 52. However, I have doubts as to the relevancy and as to the usefulness of the correspondence which is cited and quoted in the majority opinion as interpretative of the Protocol with respect to the question of juris