Memorandum by the Assistant Chief of the Division of Near Eastern Affairs (Alling)

Mr. Mallet, Counselor of the British Embassy, called today to furnish certain observations of the British Government respecting the proposed termination of the capitulations in Egypt. Reading from a Foreign Office instruction Mr. Mallet stated that, as we knew, the British and Egyptian Governments had come to an agreement with respect to certain aspects of the termination of the capitulatory régime. The points upon which agreement had been reached had been communicated to Mr. Childs, Secretary of the American Legation at Cairo. The instruction went on to say that His Majesty’s Government would not be so frank in communicating its attitude to other governments. Continuing to read Mr. Mallet stated that the Egyptian circular note of February 3, 1937,13 had set forth the Egyptian demands respecting the termination of the capitulations. It would of course be left to the capitulatory Powers to state at the Conference the guarantees and assurances which they in turn would ask. The Egyptian note of February 3 set forth certain points, but not all, upon which the British and Egyptians had come to an agreement during conferences at Cairo. It was to be observed, however, that the Egyptian note stated these points in more general and more vague terms than had been agreed upon in the Cairo conferences.

The Foreign Office had learned of a conversation between the American Minister at Cairo and Mr. Kelley, Counselor of the British Embassy at that capital, regarding possible difficulties which the United States Government might encounter in agreeing to the institution of a new régime in Egypt prior to the ratification of the proposed convention respecting that régime. It was the understanding of the Foreign Office that the present session of Congress might end in June and that it would be difficult, if not impossible, for the United States Government to submit the proposed treaty to the Senate and obtain the advice and consent of that body during the present congressional session. The British Government sincerely hoped that such ratification by the United States Government could be obtained during the coming summer but it was fully realized that that might be impossible.

The British Government felt that the proposed convention should contain a provision for its entrance into force upon its ratification by a certain number of Powers, it being understood that the convention [Page 627] would enter into force only as between those Powers which had ratified. In this connection the British Government felt that the Egyptian Government would have a good case politically and possibly even legally (although no final decision had been reached by the Foreign Office on this latter point) for the unilateral termination of the capitulatory régime if one or more Powers proved obstructive during the coming Conference. In this connection the Foreign Office called attention to paragraph 4 of the Annex to Article 13 of the Anglo-Egyptian Treaty. As a matter of convenient reference the paragraph in question is quoted as follows:

“It is understood that in the event of its being found impossible to bring into effect the arrangements referred to in paragraph 2, the Egyptian Government retains its full rights unimpaired with regard to the capitulatory régime, including the Mixed Tribunals.”

Mr. Mallet went on to say that it had been contemplated that in the event of the failure of a certain number of Powers to ratify the convention and thus bring it into force as respects such Powers, a protocol would be signed, not subject to ratification, and that such protocol would bring the proposed new judicial régime into force provisionally and pending ratification of the convention. The Foreign Office inquired whether the United States Government would be in a position to sign such a protocol and if not whether it would raise objection to signature by other Powers.

The instruction went on to state that in the event the United States Government showed its good will by signing the convention but proved to be unable to ratify because Congress was not in session arrangements could probably be made without great difficulty for a continuation for a short period of American consular jurisdiction. It was desired, however, if at all possible, to bring the proposed new judicial régime into operation on October 15, 1937 so that it could be applied at the beginning of the new Egyptian judicial year.

It was pointed out to Mr. Mallet that consideration was now being given to certain of the questions which he raised and that as soon as any decision had been reached we should be glad to communicate with him. At the same time it was pointed out that it would be most helpful to this Government if the Foreign Office could find it possible to furnish the Department with any drafts, even tentative or provisional, of proposed new articles for the Reglements d’Organisation Judiciaire. Mr. Mallet made note of this request and said that he would take up the question with the Foreign Office.

P[aul] H. A[lling]
  1. See telegram No. 14, February 3, 1 p.m., from the Minister in Egypt, p. 619.