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The record reveals things which may perhaps be considered to have been a somewhat severe treatment of Salem by American authorities in connection with questions pertaining to his citizenship. It shows that the Department of State at one time admitted an error in its conclusion that, under the law of March 2, 1907, Salem was not entitled to protection. It further shows that on another occasion the Department determined that it had been in error with respect to previous decisions, and that at no time had Salem, since his naturalization, been deprived under the law of his right to American protection. Having in mind this scrutiny, which it is shown by the record was repeatedly made of questions relating to his nationality and his right of protection, and believing that without doubt an exhaustive examination was made and a sound conclusion reached with respect to all such questions prior to the decision of the Government of the United States to propose arbitration, I find myself entirely at variance with the reasoning of my associates on this aspect of the case.

Apart from any consideration pertaining to the law of June 29, 1906, I have serious doubts with respect to the propriety of attempts of any international tribunal in effect to nullify the decrees of a domestic tribunal conferring naturalization. Citation was made by counsel for Egypt of the Flutie case, Venezuelan Arbitrations of 1903, Ralston's Report, pp. 38-45. The Commission in that case considered the naturalization of an American claimant to be fraudulent in the light of evidence from which the conclusion was reached that he had not, prior to his naturalization, resided in the United States the period required by law. I am not free from doubt with respect to the decision of the Commission that it could in effect set aside the claimant's naturalization conferred upon him by an American court. The meaning of the term "residence" as used in the Naturalization Act must certainly be construed in accordance with principles of American law. It is a term which has occasioned considerable diffi

culty for both American administrative and judicial authorities. Finally, it may be pertinently noted that the Flutie case differs, of course, very materially from the present case, in that in the latter there is no question as to Salem's residence in the United States continuously for the required period of five years prior to his naturalization. The Medina case, Moore, International Arbitrations, Vol. III, p. 2583, also cited by counsel was similar to the Flutie case.

Generally speaking the law of nationality is a domestic affair, but questions of nationality interestingly enter into international relations. And although international law may directly be concerned with this subject in one or two respects, it is necessary to look to domestic law for the definition of status.

International law is a law for the conduct of nations grounded on the general consent of the nations of the world. The existence or non-existence of a rule of the law is established by a process of inductive reasoning; by marshalling the various forms of the evidence of the law to determine whether or not the evidence reveals the general assent that is the foundation of the law. Such assent cannot of course be adequately proven by fragmentary excerpts from a text book or by a proposal submitted to an international conference with a view to incorporation into a multilateral treaty, which, even though it might come into legal effect according to its terms, might lack the basic requirement of conventional law-that is, the general assent.

The status of Salem as an American citizen is defined in the light of American constitutional and statutory provisions. It is not, in my opinion, determined, as argued by counsel for Egypt, by any principle with respect to "effective nationality", nor in any respect "according to international law". I have referred to the methods by which the law of nations, customary or conventional, is established. In the light of the general principles with respect to the ascertainment of the general assent of Na

tions, I think it can scarcely be said that there has been even an approach to the establishment of a rule of international law with respect to a principle of effective nationality.

In relation to the connotation of the term "general assent" which is the foundation of international law, it is interesting to note that the eminent authority, Dr. Oppenheim, in spite of the very general assent given to the Declaration of Paris, does not affirm that this Treaty has become international law. Many Nations signed, others adhered subsequently to the signing of the Treaty. The United States has observed the Treaty in practice and affirmed that it should be regarded to be international law. Nevertheless, Dr. Oppenheim conservatively says:

"The few States, such as the United States of America, Spain, Mexico, and others, which did not then sign, have in practice, since 1856, not acted in opposition to the declaration, and Japan acceded to it in 1886, Spain in 1908, and Mexico in 1909. One may therefore, perhaps, maintain that the Declaration of Paris has already become, or will soon become, universal International Law through custom." International Law, Vol. I, 3rd ed., pp. 74–75.


The Government of the United States did not bestow citizenship on Salem in a manner that "interfered with the rights of Egypt or of any other Power. Dr. Hall suggests that easy requirements for naturalization may be inconsistent with comity between Nations. International Law, 5th ed., 241. When the United States bestowed citizenship on Salem after subjecting him to the rigid requirements of the law of 1906, including five years' continuous residence in the United States, it did not act at variance of any principle of comity. Nor did it contravene any rule or principle of international law. Dr. Hall has expressed the view that it is contrary to international law to impose nationality upon sojourning aliens against their will. International Law, 7th ed., p. 226. No such action was taken in the case of Salem. Domestic measures in connection with the naturalization

of aliens can probably contravene the law of nations only in some such way as is indicated by the distinguished English author-by a compulsory naturalization; by the imposition of nationality in a way that might be regarded as unworthy of a Government; inconsistent with the rights, duties and dignity derived from the allegiance of a person to his State.

No question of dual allegiance arises in the present case, in the sense that the United States is pressing a claim against Egypt in behalf of one of Egypt's own nationals. From the evidence before the Tribunal, particularly from that coming from Egyptian sources, the Tribunal is not warranted in reaching the conclusion that Salem ever possessed Ottoman nationality. If such a thing as a "local nationality", as distinguished from Ottoman nationality, existed in Egypt before that country became independent of Ottoman rule, such a status cannot be invoked as a bar to the instant claim. With respect to the exercise of the right of interposition, international law takes cognizance only, I think, of that nationality which is created by Nations which treat with each other as members of the family of nations.

Since it has not been proved that Salem was an Ottoman national, it is unnecessary to consider whether, if he did possess Ottoman nationality, Egypt might be precluded from denying to him capitulatory rights as an American citizen, in view of the stipulations of the Treaty of May 7, 1830, securing to American citizens, without qualification, the right to be tried before American extraterritorial courts.

It appears to be a reasonable and well-supported view that, whatever control a Nation may exercise within its territory over one of its nationals having a dual allegiance, it cannot maintain a claim in behalf of such a person against another Nation of which that person is also a national. Ralston, Arbitral Law and Procedure, p. 112. The principle governing a case of that kind is not applicable to a person who may have a dual nationality but who

is not a national of a respondent Government against which a claim is pressed. It is, therefore, immaterial whether or not Salem now owes allegiance to Persia which the Government of Egypt and the Government of the United States have considered he in any event once did.


The majority opinion discusses the investigation instituted before an Egyptian magistrate, when a charge of forgery was initiated against the claimant, Salem, and others by a Persian consular officer. It was attempted in behalf of the United States to fasten responsibility on the Egyptian Government for the proceedings carried on before the magistrate. The general principles of international law applicable to the contentions advanced involve no difficulty. The questions of domestic law are not so clear. There is considerable uncertainty with respect to pertinent facts.

It may be said with a reasonable degree of precision that the propriety of acts or of laws against which complaint may be made in connection with an international reclamation should be determined according to ordinary standards obtaining among members of the family of nations. Practical application may be given to this general rule if an international tribunal adheres to the principle that it can properly award damages only on the basis of convincing evidence of a pronounced degree of improper governmental action. Such a rule takes account of the status of members of the family of nations which, although their standards may differ, are equal under the law of nations. The thought I have in mind with respect to the conditions under which one Nation may properly call another to account is interestingly expressed by a writer as early as the celebrated Vattel, who says:

"The sovereignty united to the domain establishes the jurisdiction of the nation in her territories, or the country that belongs to her. It is her province, or that of her

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