The Secretary of State to the Ambassador in Great Britain (Harvey)

No. 60

Sir: Referring to the Embassy’s despatch No. 3304, of August 18, 1920,1a and to previous correspondence regarding the British Government’s plans respecting certain changes in the Government of Egypt, the Department desires the Embassy to address a communication to the Secretary of State for Foreign Affairs in the sense of the following:

My Government has given careful consideration to the proposals communicated by the Government of Great Britain to the Embassy respecting certain changes in the Government of Egypt and the incidental modification of rights of American citizens in that country. By direction of my Government, I have the honor to present certain considerations which are deemed pertinent to the discussion of these proposals.

The Government of the United States is earnestly desirous of cooperating with Great Britain and other Powers having capitulatory rights in Egypt, with a view to an appropriate curtailment of such special privileges of foreigners in that country as may be detrimental to its Government and people. The rights of American citizens which it appears would be affected by the plan which the British Government have in contemplation are such as determine their status before judicial tribunals in Egypt under the capitulatory regime and such as are defined by ordinary, conventional stipulations relating to the status of aliens, and by treaty provisions peculiar to the situation of foreigners in Egypt.

It is difficult to give a definite reply to the British Government’s proposals in the absence of comprehensive information as to the character of the government that would be established in Egypt by the carrying out of the reforms under consideration. The laws which would supplant the present legal system in Egypt and the manner of their administration would, of course, determine the rights of American citizens in that country in the future, except in so far as they might be governed by treaty stipulations. With regard to [Page 908] treaty rights, it may be observed that any modification of existing rights would naturally be acceptable to the Government of the United States only if American citizens should continue to be on terms of equality with nationals of the most favored nation in Egypt.

Under an Act of Congress approved March 23, 1874,2 the President was authorized to suspend the exercise of judicial functions by American diplomatic or consular officers in Egypt, whenever he should receive satisfactory information that the Ottoman Government or the Government of Egypt had organized tribunals securing to American citizens impartial justice such as that secured under the administration of justice by American officials pursuant to capitulatory rights. While, therefore, if the Government of Egypt should remodel the mixed tribunals on the lines indicated in the so-called Judicature Laws, drafts of which have been sent to the Embassy,3 the President would doubtless be in a position to exercise the authority conferred on him by the law of 1874. However, the complete relinquishment of American extraterritorial rights in respect of the exercise of judicial functions by American officials in Egypt could only be effected through the negotiation of appropriate treaty provisions.

Likewise a modification of rights of American citizens in Egypt with respect to commerce and trade secured under treaties concluded with the Ottoman Empire in 1830 and 1862,4 and under a treaty concluded with Egypt in 18845 could be effected only by the negotiation of treaty provisions suitable for that purpose.

Having made the foregoing general observations with respect to American rights in Egypt and the appropriate methods of modifying them, I have the honor briefly to comment specifically on the several proposals which have been communicated to the Embassy by the British Government.

1. The suggestion with respect to the renunciation of American rights and privileges in Egypt under the regime of the capitulations in favor of the British Government is not entirely clear. If it is understood between Great Britain and Egypt that the former, by virtue of the protectorate established in December, 1914, shall act in behalf of Egypt looking to a modification of the capitulations there would appear to be no objection to negotiations in which the British Government would occupy the position of a representative of Egypt. Any renunciation of rights and privileges which might be made by the Government of the United States in connection with such negotiations would in effect be made in favor of Egypt. The suggestion with respect to the exercise of American capitulatory rights in Egypt through a third Power does not appear to my Government one that could well have practical application.

2. The suspension or possible relinquishment of American consular jurisdiction would probably not be objectionable, provided American citizens should be afforded adequate legal remedies before tribunals of justice similar to if not precisely like those which the British Government have in contemplation. It would seem to be unnecessary, however, that such suspension or relinquishment of the [Page 909] exercise of judicial functions by consular or diplomatic representatives should involve a complete denial of the right of American citizens to have access to some kind of extraterritorial tribunals in the future.

3. It would seem to be proper that rights guaranteed to American citizens in Egypt in the future should be, as they are now, such as are accorded to nationals of the most favored nation rather than such as are secured to any particular nation. My Government is, therefore, not entirely clear as to the purpose of the proposal that American citizens shall enjoy in Egypt the same treatment as British nationals in all matters concerning public liberties, the administration of justice, and individual rights.

It may be observed with respect to the suggestion concerning the recognition of American nationality of children born of American parents in Egypt that a rule such as is proposed might serve to avoid international complications growing out of questions relating to dual allegiance. It would be in harmony with American law.

4. With reference to the proposal that the status of American consular officers in Egypt shall be the same as that of such officials in Great Britain, it is suggested that, a more desirable definition of their status would appear to be that they shall enjoy in Egypt the rights and privileges accorded to consular officers of the most favored nation.

5. The purpose of extending to Egypt treaties, other than Commercial treaties, which are in force between the United States and Great Britain is not evident. It would seem proper that relations of the United States with Egypt should be governed, by treaty provisions adapted to the particular subjects which it might be desirable to regulate between the two countries and not by treaties concluded between two nations whose relations are very dissimilar to those existing between Egypt and the United States, some of which treaties could evidently have no application to relations between these two countries.

The temporary maintenance of existing rates of duties and of regulations concerning exports and imports appears satisfactory. Presumably these matters might become the subject of future treaty negotiations.

6. The proposal with respect to the status of American schools in Egypt is likewise satisfactory.

7. There would appear to be no objection to the proposal with respect to the International Quarantine Board in Egypt.

As has been indicated above, it seems desirable for any government possessing capitulatory rights in Egypt, before committing itself to proposals with respect to modification of its rights, to have full information with regard to the reorganized government which may possibly be established in Egypt. And it likewise appears desirable for any such government to be informed concerning the attitude of other capitulatory powers with respect to the proposed reorganization, since all such powers would presumably want equality of treatment for their nationals in Egypt. It would seem that information concerning the attitude of each of the interested countries might serve not only to expedite the adjustment of these questions but to prevent any possible misunderstanding respecting them.

I am [etc.]

Charles E. Hughes
  1. Foreign Relations, 1920, vol. ii, p. 222.
  2. 18 Stat. 23.
  3. Not printed.
  4. Malloy, Treaties, vol. ii, pp. 1318 and 1321, respectively.
  5. Ibid., vol. i, p. 442.