Allen had prepared this as an enclosure to a despatch in answer to
the instruction above cited. As the instruction did not contemplate
a discussion of this nature I considered it more discreet to send it
to you informally. It certainly is an interesting discussion and I
am sure you will find it helpful. The last paragraph is of course
the most important. I have examined the text of the convention
carefully and I think Bedaoui Pasha is right in his contention that
Article 11 does not bind Egypt to conclude consular conventions.
After the receipt of my despatch, if you should conclude that the
Legation ought to propose the negotiation of a convention, your
instruction
[Page 667]
will no doubt
furnish guidance as to whether the formal proposal should hinge upon
Article 11 or whether it should be without any reference to the
convention. From what I understand Bedaoui Pasha is the one person
who can make or mar the negotiations. Therefore if we can approach
him in the manner that he likes we would apparently get off to a
better start. Even though the Department may hold an opinion
contrary to Bedaoui’s respecting Egypt’s obligation under Article
11, might we not still propose the negotiation of a convention
without referring formally to Article 11, and then if later on
obstacles arose which might require the citation of Article 11,
could it not be invoked then?
[Enclosure]
Memorandum by the Third Secretary of
Legation in Egypt (Allen)
At my interview today with Bedaoui Pasha regarding the
Extradition Treaty (file no. 200), I mentioned the subject of a
consular convention, and said that although the Legation had not
been instructed to institute negotiations looking to the
conclusion of such a convention, I would like informally to
inquire whether any other power had broached the subject with
Egypt. He said that no country had yet approached the Government
in the matter, although he supposed such negotiations might be
requested soon.
I said that M. Garreau, one of the French delegates at Montreux,
was of the opinion that an understanding had been reached at
Montreux by which Egypt would institute the negotiations with
the various powers regarding consular treaties, in order to
prevent Egypt’s being overwhelmed by too many negotiations at
once. Bedaoui said that he was not aware of any such
understanding, and that furthermore Egypt might find that it was
not interested in negotiating any new consular treaties. He said
that since Egypt is a country where large numbers of foreigners
reside and since there are relatively few Egyptian colonies
abroad, foreign consular establishments in Egypt are in general
much larger than Egyptian consular establishments abroad. On a
basis of reciprocal treatment for consular officers therefore,
Egypt would generally lose. For this reason Egypt might not be
willing to agree even to strict reciprocity in fiscal matters
regarding consuls. He said that the second paragraph of Article
11 of the Montreux Convention constituted itself the essentials
of a consular treaty, and that nothing further was absolutely
needed.
I asked whether he interpreted the third paragraph of Article 11
as obligating Egypt, at least morally, to enter into
negotiations within three years with any of the former
Capitulatory Powers that might
[Page 668]
request consideration of a consular
treaty. Bedaoui Pasha replied vehemently, “Not in the least.
Article 11 does not obligate us to consider any request for the
negotiation of a consular treaty if we do not find it in our
interest to do so. The three-years provision of Article 11
applies only to fiscal matters, and at the end of three years
all consular fiscal privileges will cease definitely unless a
bilateral consular convention shall have been concluded in the
meantime. We will have to examine each case carefully to
determine whether it would be in our interest to conclude
bilateral consular conventions, and if we do not find such to be
the case, we shall not be interested in negotiating consular
conventions”.
To this I replied, in all good humor, “Do you mean to say, Sir,
that if one of the signatory powers to the Montreux Convention
should approach you tomorrow with a request to negotiate a
consular convention, you might reply that you were not
interested in such negotiations?”
“Exactly”, said Bedaoui Pasha. “I do not mean to say that our
refusal would be as abrupt as that, but we did not bind
ourselves at Montreux either technically or morally to entertain
consular convention negotiations with anybody.”
I said that while Article 11 did not expressly provide that Egypt
undertook to entertain such negotiations, I believed that it was
generally interpreted among the Diplomatic Corps in Cairo to
imply that Egypt was willing to negotiate consular conventions
and expected in general to do so within three years unless, of
course, a basis of agreement could not be reached.
Bedaoui Pasha replied that the Montreux Convention did not imply
any obligations on Egypt that were not expressly stated in the
wording of that Convention.
I asked, then, whether, placing all considerations of the
Montreux Convention aside, he did not think Egypt might be
assuming considerable responsibility under international
practice if it should flatly refuse to negotiate a consular
convention with a friendly power. I suggested that in the case
of any two members of the family of nations, taking England and
Norway for example, if one of the powers should approach the
other with a request for the negotiation of a consular
convention and the power approached should flatly refuse, even
to discuss the subject, the latter country would doubtlessly
feel called upon to justify its refusal.
Bedaoui Pasha said, “Ah, but that is an entirely different
matter. If any Power should approach Egypt on a basis of entire
equality and express a desire to conclude a consular convention,
without claiming that Egypt was bound to do so under the
Montreux Convention, Egypt would be very pleased to undertake
the negotiations.”
