Foreign Relations of the United States Diplomatic Papers, 1937, The British Commonwealth, Europe, Near East and Africa, Volume II

783.003/252

The Chairman of the American Delegation (Fish) to the Secretary of State

Montreux, May 12, 1937.
[Received May 21, 1937.]

Sir: I have the honor to refer to the Department’s instruction of March 30, 1937, setting forth the attitude to be adopted by the American Delegation at the Conference for the Revision of the Capitulatory régime in Egypt and to submit herewith a report of the deliberations of the Conference and of the results attained.

I. Personnel of the American Delegation:

Mr. Bert Fish, Envoy Extraordinary and Minister Plenipotentiary of the United States of America at Cairo, Chairman of the Delegation.

Mr. Paul H. Alling, Assistant Chief of the Division of Near Eastern Affairs, Department of State, Adviser.

Mr. Francis Colt de Wolf, Treaty Division, Department of State, Legal Adviser.

Mrs. Lucille Snyder, Division of Near Eastern Affairs, Department of State, Clerk.

The American Delegation arrived at Montreux on Sunday, April 11, 1937, and attended the opening meeting of the Conference on April 12, 1937.

II. Representation at the Conference:

The following countries participated in the Conference: United States of America, Belgium, British Commonwealth of Nations (including the United Kingdom, the Union of South Africa and the Irish Free State, each of which was represented by one or more delegates, while the Chairman of the United Kingdom Delegation also represented Australia, India and New Zealand), Denmark, Egypt, Spain, France, Greece, Italy, Norway, Netherlands, Portugal and Sweden.

III. Organization of the Conference:

The Conference was organized as follows:

President of the Conference, Moustapha El-Nahas Pasha, President of the Council of Ministers of Egypt.

Honorary President of the Conference, Mr. G. Motta, President of the Swiss Federal Council.

Secretary General, Mr. Th. Aghnides, Chief of the Disarmament Section of the League of Nations.

The work of the Conference was divided among the following committees:

1. General Committee, President, Mr. N. Politis, Greece, and all delegates of other countries.

2. Committee on the Mixed Court Charter, President, Mr. Michael Hansson, Norway, and all delegates of other countries.

3. Drafting and Coordination Committee, President, Mr. N. Politis (and in his absence Mr. Hansson) and representatives of the United Kingdom, Egypt, France, Greece and Italy. From time to time representatives of other countries, including the United States, formed a part of the Drafting Committee when questions were being considered in which such countries had expressed a particular interest.

IV. Sessions of the Conference:

A. Opening:

The Conference was opened by Mr. G. Motta, President of the Swiss Federal Council. At the first meeting Moustapha El-Nahas Pasha was elected President of the Conference. The actual work of the Conference, however, was divided among two committees, the General Committee, under the presidency of Mr. N. Politis, Chairman of the Greek Delegation, and the Committee on the Mixed Court Charter under the Presidency of Mr. Michael Hansson, Chairman of the Norwegian Delegation. At the request of the Chairman of the British Delegation I proposed Mr. Hansson for the post of Chairman of the Mixed Court Charter Committee. Mr. Hansson was particularly well qualified for this position in view of his experience of twenty-five years on the Egyptian Mixed Courts, including a period when he was President of the Court of Appeals. I should add that the appointment of Messrs. Politis and Hansson to these important positions appeared to me to be quite in line with the Department’s instructions (Memo.—paragraph 40).³² I did not oppose the election of Moustapha El-Nahas Pasha as President of the Conference, despite the fact that the Department had suggested that it would be preferable to have as a presiding officer a representative of some country other than Great Britain or Egypt, because I learned that the position of President was to be more or less of an honorary nature and that the actual work of the Conference was to be done by the two committees under the chairmanship of Messrs. Politis and Hansson. I should add that these two gentlemen made admirable presiding officers in the committees. To complete the picture of the organization of the Conference, it may be permissible to explain here, that after the preliminary work of the Conference was accomplished a further committee, known as the Drafting and Coordination Committee, was appointed under the Chairmanship of Mr. Politis, with Mr. Hansson acting in the former’s absence. This important committee, which acted in the nature of a steering committee, was composed, in addition to the Chairman, of the technical representatives of Great Britain, Egypt, France, Greece and Italy. Members of other delegations, including the American delegation, attended meetings of this committee when matters were being discussed in which they were particularly interested.

At the first meeting of the Conference it was possible to accomplish only the general organization outlined above. At the second meeting of the full Conference, held on April 13th, an opportunity was afforded the presidents of the various delegations to present the general viewpoint of their respective governments. At this meeting I read the statement transmitted as Enclosure A of the Department’s instruction.³³ A report of this meeting, with copies of the statements made by the presidents of the various delegations, appears in Document C.C.M./C.R. 2.

Following the two opening plenary meetings of the Conference, the work was taken up in the two Committees referred to above. These Committees held one or more meetings daily, attended by practically all members of all delegations, beginning on April 14th and continuing through April 24th, at which point the Drafting and Coordination Committee began its work.

B. General Course of the Meetings:

At the opening meeting of the General Committee the Egyptian Government furnished copies of a proposed draft Convention (Document C.C.M./4). This draft furnished the basis of discussion and each article was considered at great length. Following these discussions each article was adopted at first reading either in its original form or in a form amended as the result of the discussions, or was sent to a special ad hoc sub-committee, or to the Drafting and Coordination Committee for further consideration with a view to meeting conflicting viewpoints that developed during the discussions.

A similar procedure was followed in the Committee on the Mixed Court Charter with respect to a draft (Document C.C.M./3) which had likewise been presented by the Egyptian Government.

C. Attitude of the Various Powers:

In the early meetings it became apparent that the French Delegation was prepared to make extensive demands of the Egyptian Government with a view to protecting the important interests which France had built up in Egypt during the past century. In the early meetings France received the support of the Italian Delegation as well as that of the Greek Delegation. The French demands, particularly with respect to the length of the transitional period, for which they originally pressed for eighteen years, gradually began to appear excessive to the other Delegations. Consequently Italian support for this proposal was withdrawn and thereafter the Italian Delegation was noticeable particularly for the favorable consideration which it gave to Egyptian proposals. The smaller Powers, with the exception of Greece and Belgium, both of which countries have important interests in Egypt, took a comparatively inactive part in the deliberations, knowing that their relatively minor interests would undoubtedly be protected by the guarantees obtained by the larger Powers.

The two points in which France was particularly interested were (a) the length of the transitional period referred to above, and (b) the definition of the term “foreigner”, for the purposes of the jurisdiction of the Mixed Courts. In the early meetings of the Committees when it became apparent that these two matters could not be settled to the mutual satisfaction of the French and Egyptian Delegations, the questions were withdrawn from general discussion while the two Delegations made an effort to come to an agreement. Eventually, after practically all other questions were settled, M. de Tessan, President of the French Delegation, departed for Paris to seek new instructions with regard to the length of the transitional period. After an absence of several days, which caused the Egyptian Delegation considerable annoyance, M. de Tessan returned, and in a meeting of the General Committee announced that he had been authorized to agree to a transitional period of twelve years. It was naturally assumed that prior to making this announcement he had come to an understanding with the Egyptian Delegation with regard to the definition of the term “foreigner”. It developed during the course of the meeting of the General Committee, however, that some misunderstanding had arisen with respect to the supposed agreement on this term. It was not until after M. de Tessan had made another trip to Paris that announcement was made, just forty-eight hours prior to the time fixed for the signature of the Convention, that a satisfactory solution had been found regarding the definition of the term “foreigner”. The difficulty was that the Egyptians continued to press for their original definition which would have excluded from the jurisdiction of the Mixed Courts all capitulatory nationals who were either “subjects” or “protégés”. This definition would, of course, have excluded certain French colonial subjects and protected persons in Africa—a concession which the French insisted vigorously they were unable to make. This question was also of interest to the United Kingdom, Netherlands and South African Delegations, all of whom had certain nationals in the category of “subjects” or “protégés” whom they did not wish to turn over to the jurisdiction of the National Tribunals. Eventually the matter was adjusted by a formula which, though retaining some of the original Egyptian proposals, gave adequate satisfaction to the views of the French and other interested delegations. It was quite apparent, however, that the general attitude of France was most displeasing to the Egyptian Delegation and reports appearing in the Egyptian press confirm the impression received at the Conference that the French lost much of the good will which they had built up in Egypt.

The attitude of the British Delegation was, as might be expected from a country in alliance with Egypt, most friendly and helpful to the Egyptian cause. As the Department is aware, the British and Egyptian Governments had agreed, some time prior to the convening of the Conference, on the general outline of the concessions which each was prepared to make the other. Of course, the concessions which the Egyptians had agreed to make did not appear in the first drafts of the Convention and of the Mixed Court Charter, but from day to day the British Delegation submitted amendments which after only minor discussion were accepted by the Egyptian Delegation. Thus gradually the Convention and the Mixed Court Charter began to take a form which became acceptable to the Capitulatory Powers. Whenever differences arose between the Egyptian Delegation and other delegations the British made a noticeable effort to effect a satisfactory solution and in this they were generally most successful.

So far as the position of the American Delegation is concerned, the Department is aware that we had been furnished by the British Embassies in Cairo and Washington, in strict confidence, prior to the convening of the Conference, detailed information as to the extent which the British Government was prepared to go in surrendering its Capitulatory rights. Since these matters had been worked out in conferences between the British and Egyptian authorities in Cairo, we were fully aware in advance of the concessions which the Egyptians were prepared to make. It was therefore without difficulty that the American Delegation was able to follow the Department’s instructions to avoid taking a lead in the discussions, for with respect to most questions of importance we knew in advance just how much or how little in the way of concessions the Egyptians were prepared to make. This knowledge permitted the American Delegation to refrain from pressing for certain concessions which it knew in advance were sure to be sought and obtained by the British as a result of previous agreement with the Egyptians. There were, however, certain matters, notably with respect to Article 12, concerning consular archives, Article 13, with reference to arbitration of disputes, and Article 15, regulating the date of the entrance into force of the Convention, with respect to which the American Delegation was obliged to press for amendments in the original texts. The Delegation also submitted, at the request of the British Delegation, proposals which were later incorporated into Articles 22, 47 and 49 of the General Judicial Regulations. The general nature of these proposals had already been approved by the Department and it was considered quite within the spirit of the Department’s instructions to take the lead in submitting the proposals since we knew in advance that they would be accepted by the Egyptian Delegation. The British Delegation also requested certain of the other delegations to submit certain proposals which were known in advance to be agreeable to the Egyptian Government. The reason for taking this course of action was to avoid giving the impression in Egypt that it was only the British Government which was requesting concessions from the Egyptian authorities.

The most important statement which I made during the Conference was during the meeting of the General Committee held on April 15th³⁴ (Document C.C.M./C.G./P.V. 2, pages 14–15). At that time I urged that the Committee accept the Egyptian proposal for a transition period of twelve years. I took this action because I was reliably informed that this was one point on which the Egyptian Delegation would not make any concession since it had promised a Parliamentary Committee that it would not agree to a longer transitional period. It seemed to me altogether desirable to support this Egyptian proposal not only because I knew that a longer period could not be obtained, but also because a period of twelve years was within the ten to fifteen year limit which the Department had authorized me to accept. I fully believe that my statement, delivered at such an early stage of the Conference, helped to clarify the atmosphere and to pave the way for the successful solution of the numerous other problems with which the Conference was concerned. Information from the Legation at Cairo indicates that my support of the Egyptian proposal (which I should add was likewise supported by the British and Portuguese Delegations) was gratefully received in Egypt and that a considerable amount of good will was built up there to the advantage of the United States. Furthermore, the President of the Egyptian Council of Ministers and other Egyptian cabinet ministers who formed the Egyptian Delegation, assured me of their own accord on several occasions of their lively appreciation of my support in this matter.

It may be of minor interest to record that Mr. Raymond Wong, Secretary of the Chinese Legation at Berne, at one of the early meetings of the Conference requested permission to attend the sessions as an unofficial observer. This permission was refused by the Egyptian Delegation but Mr. Wong continued to remain at Montreux throughout the course of the Conference with a view to obtaining information for his Government to be used presumably in connection with the desire of the Chinese Government to rid itself of extraterritorial jurisdiction.

The attitude of the Albanian Government regarding the question of its nationals appearing before the Mixed Courts appears in Document C.C.M. 7. A copy of the Albanian statement³⁵ was sent to the American Delegation which merely acknowledged its receipt.

In connection with the attitude of the Powers toward the problems of the Conference, it is pertinent to mention here the problem raised by the Italian Delegation in styling in the final acts of the Conference the Chief of State of Italy as “King of Italy, Emperor of Ethiopia.” This matter was discussed in the Delegation’s telegram No. 2, May 7, noon, and in the Department’s telegram of May 7, 6 p.m.³⁶ As reported in the Delegation’s telegram, Mr. Politis, as Chairman of the Drafting and Coordination Committee, in the two final sessions of that Committee stressed the fact that the titles given to the various chiefs of state, delegates, et cetera, by each delegation engaged only the responsibility of the delegations concerned and in no way involved the responsibility of the other delegations. A verbatim report of Mr. Politis’ remarks in the meetings of May 5 and May 6, is quoted below³⁷ (C. C. M./C. G./P. V. 8, pp. 2–3 and C. C. M./C. G./P. V. 9, pp. 4–5)

“The Chairman stated that he had a general observation to make regarding the Preamble with which the text of the Convention opened, and he asked each delegation to take note of it. In that preamble, in accordance with custom, a list was given of the Heads of the States which had taken part in the negotiations, and afterwards of the delegates whom the Governments concerned had sent to the Conference. The titles and qualifications of the Heads of State, Plenipotentiaries, deputy-delegates and experts were given therein according to the information which had been supplied by each delegation, in so far as it was concerned, and for which it alone assumed responsibility. In order to avoid any possible mistake on the part of the Secretariat, each delegation was requested carefully to review the entries concerning it, with a view to making certain whether they were in order and, in the event of there being any omission or error, to bringing the latter to the notice of the Secretary-General of the Conference.”

“The Chairman had two observations to make.

“The first was that each delegation was its own judge of the number of persons it wished to name in the document. Some delegations were very numerous. If they wished to mention all their members, they were entitled to do so. If they wished to mention only a few of the members of the delegation other than the Plenipotentiaries, they were equally entitled to do so. The Chairman said that because the Secretariat could not itself undertake to choose between the persons whose names appeared in the list of delegations, each delegation would therefore say what names it wished to appear at the head of the Final Act. Furthermore, the same observation applied in regard to the names of the members of delegations given at the head of the Act which the Committee had approved yesterday, namely, the Convention concerning the Abolition of Capitulations.

“The President’s second observation was that the titles and qualifications which would be given in respect of the authorities mentioned would be those which each delegation indicated solely on its own responsibility. Each delegation was accordingly asked to supply the Secretariat as soon as possible with a list of the persons whose names were to appear in that document with their titles and qualifications. The Chairman added that after the previous meeting, various delegations had asked him what meaning should be attached to the expressions which he had used and which he had just repeated to the effect that each delegation assumed the sole responsibility for the information it supplied to the Secretariat. The reply was very simple. It was self-evident. It was that the other delegations assumed no responsibility in that matter.”

As I reported in the telegram referred to above, the issue of the title of King of Italy was not raised by any delegation and Mr. Politis’ statements were tacitly accepted as a proper exposition of the situation. In this connection it is of interest to record that the Italian Delegation would itself have been greatly embarrassed if any one had raised the issue, for presumably the Italian Delegation then would have had to consider whether, by signing an international instrument with representatives of the Spanish Republic, Italy was according recognition to a Spanish government other than that of General Franco. Happily neither question was brought up in public discussion, and I think I am correct in assuming that the signature of the Convention, wherein the King of Italy is also described as “Emperor of Ethiopia”, has absolutely no relation to the question of the recognition of Italian sovereignty over Ethiopia.

V. Results of the Conference:

As a result of the Conference the Capitulatory Powers agreed by the Convention signed on May 8, 1937,^37a to surrender their Capitulatory Eights in Egypt. Accordingly, upon the entrance into effect of the Convention all foreigners in Egypt, including American citizens (upon the ratification of the Convention by the United States) will be subject to Egyptian laws including criminal, civil, commercial and fiscal matters. It was generally recognized, however, that a régime such as the Capitulations, which had existed for centuries, could not be abruptly terminated without difficulty and hardship to all concerned. Provision was therefore made for a transitional period of twelve years during which foreigners, as defined in the Convention, will be subject, not to the Egyptian national tribunals, but to the Mixed Courts.

The Mixed Courts will therefore continue, as in the past, to try civil suits between foreigners of different nationalities and between foreigners and Egyptian nationals. In addition these courts will take over the jurisdiction now exercised by the foreign consular courts—namely, civil suits between foreigners of the same nationality and all penal matters involving foreigners. Provision is made, however, for the retention during the transitional period, if the Governments concerned so desire, of jurisdiction in personal status matters by the foreign consular courts.

The Convention contains an important provision that Egyptian legislation, during the transitional period, will not discriminate, especially in fiscal matters, against foreigners, including foreign corporations and Egyptian corporations with substantial foreign interests. In a separate declaration the Egyptian Government announced its willingness to conclude treaties of establishment and friendship with all of the ex-Capitulatory Powers.

In an exchange of letters, annexed to the Convention, the Egyptian Government assured the American, British, French, Italian, Greek, Netherlands and Spanish Delegations, that all educational, medical and charitable institutions depending upon the Government of the aforementioned Powers, might continue freely to carry on their activities in Egypt. Furthermore, assurance was given that freedom of worship would continue to be accorded to these institutions. The original of the note addressed to me regarding these matters is enclosed herewith.³⁸

Other guarantees embodied in the Convention or in the revised Charter of the Mixed Courts annexed thereto include the right of foreigners under arrest to communicate with their consul and their lawyer, the provision that domiciliary visits of foreigners should be made only by the judicial police, and that the Procurator General (who is to be a foreigner) shall be consulted with respect to executions and pardons.

I am happy to report that the guarantees obtained afford, in my opinion, ample protection for American interests in Egypt and that the Acts of the Conference include not only all of the important points covered in the Department’s above-mentioned instruction but also guarantees on numerous other matters which had not been considered absolutely essential for the safeguarding of American nationals and interests in Egypt. These guarantees are contained in the following documents, copies of which are attached hereto.³⁹

1. Multilateral Convention

2. Revised Mixed Court Charter (Règlement d’Organisation Judiciaire)

3. Protocol

4. Declaration of the Egyptian Government

5. Exchanges of Letters.

All of these documents except the Mixed Court Charter appear in both English and French in the enclosed pamphlets. An English translation of the Mixed Court Charter, as prepared by the official translators, is also enclosed.⁴⁰ Important interpretative comments on these documents are contained in the report of the Drafting and Coordination Committee, a copy of which is likewise enclosed.⁴¹ One copy each of the Mixed Code of Criminal Procedure and of the Penal Code are also enclosed.⁴² The documents are also discussed in detail from the American viewpoint in the accompanying memorandum.^42a A complete set of the documents of the Conference in mimeographed form, including original proposals, amendments, minutes, et cetera, is being forwarded to the Department under separate cover.

VI. Conclusion

In conclusion, I should like to report that in accordance with the Department’s instructions I handed to the Egyptian Delegation on May 8th a note based on Enclosures B, C, and D of the instruction of March 30, 1937. A copy of the note is enclosed herewith. I did not ask the Egyptian Delegation to acknowledge this note since it was a unilateral declaration on the part of the United States, and I feared furthermore that if the Egyptian Delegation were requested to acknowledge the note it might ask for certain alterations therein.

I invite the Department’s attention to the provisions of Article 9 of the Convention under which the Contracting Parties are given the option of retaining Consular Courts for the purposes of personal status jurisdiction. From the information that was obtained from the various delegations at Montreux it is my opinion that the majority of the Powers will continue to retain this jurisdiction at least for the first few years. The British Delegation stated definitely that it would retain such jurisdiction for the early period of the transitional period. After the Department has had an opportunity to consider the matter I suggest that appropriate instructions be sent to the Legation at Cairo in order that the Egyptian Government may be informed of the intentions of the United States in this respect prior to the opening of the Mixed Courts on October 15, 1937.

I also invite the Department’s attention to the provisions of the final paragraph of the Note addressed to me on May 8, 1937,⁴³ by the Egyptian Delegation, concerning guarantees for American institutions in Egypt. That paragraph provides that a list of such institutions shall be drawn up in consultation between the American and Egyptian Governments as soon as possible. I assume that the Department will wish in due course to take up this matter through the Legation at Cairo.

Very respectfully yours,

Bert Fish

[Enclosure]

The Chairman of the American Delegation (Fish) to the President of the Council of Ministers of Egypt (Nahas)

Montreux, May 8, 1937.

Excellency: I have the honor to inform you that I have been authorized by my Government to give you the following assurances respecting the exercise of the capitulatory rights enjoyed by the United States in Egypt:

1. The Government of the United States declares that pending ratification on its part of the Convention signed this day, it will refrain from exercising its right to object to the taxation by the Egyptian Government of American nationals and corporations in Egypt, provided such taxes shall not be different or higher than those that are exacted of and paid by Egyptian nationals and corporations, and provided further that such taxes shall be applicable to all foreigners and foreign corporations on the basis of absolute equality.

2. The Government of the United States declares that pending ratification on its part of the Convention signed this day, it will refrain from exercising its right to object to domiciliary visits of its nationals in Egypt by agents of the Egyptian Government provided such agents shall be members of the Egyptian judicial police and provided such visits shall take place under the conditions set forth in Article 47 of the amended Statute of the Courts (the text of which is annexed to the Convention signed this day), and provided further that all other foreigners in Egypt without exception shall be subject to such domiciliary visits.

3. The Government of the United States declares that pending the ratification on its part of the Convention signed this day it will suspend the extraterritorial jurisdiction of its consular and diplomatic officers in Egypt over American nationals and corporations to the same extent that, and at the same time and under the same conditions as, the other Capitulatory Powers agree to abridge or suspend the extraterritorial jurisdiction in Egypt of their consular and diplomatic officers over their nationals and corporations.

4. The Government of the United States declares that it will raise no objection to the abrogation of the Khedivial Decree of January 31, 1889, and the Law of November 11, 1911, conferring certain legislative powers on the General Assembly by the Mixed Court of Appeals and the Legislative Assembly of that body, to the extent that, and at the same time as, similar abrogation is agreed upon by the other Capitulatory Powers.

Accept [etc.]

[File copy not signed]
President of the Delegation of the United States of America

32. Not printed.
33. Ante, p. 639.
34. For French text, see Actes de la Conférence des capitulations, Montreux, 12 avril–8 max 1937; Compte Rendu des Séances plénières de la Conférence et Procès-Verbal des Débats de la Commission Générale et de la Commission du Règlement d’Organisation Judiciaire, p. 70.
35. For French text, see Actes de la Conférence, p. 117.
36. Neither printed.
37. For French texts, see Actes de la Conférence, pp. 129, 137.
38. Department of State Treaty Series No. 939, or 53 Stat. 1645.
38. Department of State Treaty Series No. 939, p. 69, or 53 Stat. 1705.
39. For texts of documents listed, see Department of State Treaty Series No. 939.
40. For an English translation, see Department of State Treaty Series No. 939, p. 36.
41. Not reprinted.
42. Neither reprinted.
43. Not printed.
43. For text, see Department of State Treaty Series No. 939, p. 69, or 53 Stat. 1705.