767.68119 F&M 1/–: Telegram
The Secretary of State to the Special Mission at Lausanne
48. Your 72, December 7th, 9 p.m.37
For your guidance. The application of the laws of one country is at best extremely difficult for the courts of another country, and it does not seem likely that the Turkish civil courts as at present constituted would be competent to apply the national laws of foreigners in Turkey.
This whole question of jurisdiction and of the modification of the judicial capitulations is so important and so complex as to lead the Department to believe that unless it is satisfactorily settled at Lausanne within a reasonable time it might well be referred to a special commission which could devote to it mature consideration, pending result of which treaty rights would of course be respected. In this connection it should be remembered that as we were not at war with Turkey, whatever claim Turkey may advance as to nonvalidity of her treaties with Allies this would not apply to United States. In the event a Commission were decided upon it might be desirable to work out at Lausanne certain general limits or guiding principles on which possibly both the Powers and Turkey might be able to reach an agreement. In this connection your attention is called to the Egyptian precedent (see Foreign Relations 187338 and 187439). As you are probably aware, under this arrangement questions concerning the personal status of foreigners and, with a few exceptions, all criminal cases against foreigners are under consular jurisdiction, while most other matters involving foreigners are under Mixed Court jurisdiction. It is important to bear in mind that Turkey will not be the only country affected by the settlement of the capitulations question, but indirectly and none the less acutely China, Egypt, Persia and other countries. While Department hopes that in time these countries may be able to reform their judicial system so that special guarantees for foreigners may no longer be necessary, it feels that the proper test of the right to [Page 924] greater judicial independence is the actual achievement of real judicial reform.
Department will send you a further telegram in regard to points noted in your 77 December 9, 9 p.m., and 88 December 11, 3 p.m. and later telegrams.40 It is presumed that capitulatory powers will insist upon the retention of rights substantially as outlined. This Government while not opposed in principle to considering certain modifications of the pre-war regime of judicial capitulations, could hardly be expected to give up rights under the Treaty of 183041 and the Real Estate Protocol of 187442 together with privileges enjoyed under these agreements by custom and usage in the absence of satisfactory assurances for the future under a modified regime. These rights being enjoyed under treaties, it is only through proper treaty provisions that they could be modified.
The Department desires your comments on this telegram and further indications as to the form of the proposed arrangement between the Allies and the Turks in regard to capitulatory rights. Will such an arrangement form a part of Treaty of Peace or be drawn up as a separate instrument which all capitulatory powers may be invited to sign?
- Not printed.↩
- Pt. ii, pp. 1100 ff.↩
- pp. 1126 ff.↩
- None printed; the telegrams referred to outlined discussions in the first subcommission of the commission on the regime of foreigners. See Conférence de Lausanne, etc., première série, tome ii, pp. 58 ff.↩
- Malloy, Treaties, 1776–1909, vol. ii, p. 1318.↩
- ibid., p. 1344.↩