383.1124/5

The Chargé in Egypt ( Hare ) to the Secretary of State

No. 1993

Sir: I have the honor to refer to the Department’s despatch No. 425 of November 1, 1939 in reply to the Legation’s despatch No. 1837 of September 27, 1939, enclosing a copy of a circular Note addressed to the Legation by the Egyptian Minister of Foreign Affairs, setting forth the latter’s interpretation of the provisions relating to deportation contained in the Declaration of the Egyptian Government of May 8, 1937 annexed to the Montreux Convention of that date. The Department stated that it was unable to admit the validity of the interpretation of the Egyptian Government’s Declaration regarding the expulsion of foreigners contained in the circular Note in question, particularly Paragraphs 1 and 2 thereof, and the Legation was requested to obtain further information for the consideration of the Department in formulating instructions to the Legation on the subject. The Legation was further requested to ascertain and report the views of interested colleagues in respect of the Note and whether they had taken or had instructions to take any action in regard to it.

This matter has been discussed at length with Mr. E. F. W. Besly, Legal Counselor of the British Embassy, who handled the subject on behalf of the Embassy. Mr. Besly stated that after careful study of this matter he had reached the conclusion that the validity of the Egyptian Government’s interpretation of the Declaration regarding the expulsion of foreigners from Egypt was inadmissible; that his views had been incorporated in a despatch dated October 13, 1939, to his Government, which had concurred in his findings; and that, acting upon instructions from London, the British Embassy had on December 5, 1939 addressed a Note to the Egyptian Ministry of Foreign Affairs stating that it was unable to accept as correct the interpretation placed by the Egyptian Government on the Declaration in question.

In support of this point of view the Embassy had maintained that the restrictions which the Egyptian Government undertook to accept during the transition period on the exercise of the right of deportation were expressed in clear and unequivocal language and that the [Page 507] Declaration had further provided that any disputes on the subject of the length of residence in Egypt of a person whose deportation was under consideration should be examined by an administrative advisory committee especially created for the purpose. A copy of the Embassy’s Note of December 5, 1939 is enclosed herewith.41

As regards the arguments adduced by the Embassy in this connection the following is a summary of that portion of the Embassy’s despatch of October 13, 1939 to the British Foreign Office which the writer was permitted to read.

(1)
With regard to the first class of persons to which the Egyptian Note of September 20, 1939 had maintained that the Montreux Convention did not apply—to foreigners who had entered Egypt after the effective date of the Convention, or who entered Egypt less than five years before its effective date—the Embassy had maintained that the date by which the five years residence must be completed should be the date on which the question of the exercise by the Egyptian Government of its right of deportation of a particular foreigner might come up for decision; that the use of the future tense “shall have” in the Declaration made at Montreux makes it virtually impossible to interpret the undertaking as referring only to foreigners who had resided in Egypt for five years before October 15, 1937; and that under the circumstances there seemed no ground upon which to distinguish between persons arriving in Egypt after October 1937 and those in the country before that date.
(2)
With regard to the second class of persons covered in the circular Note of September 20, 1939,—foreigners who had resided in Egypt for broken periods even though those periods exceeded a total of five years—the Embassy had maintained that if it had been the purpose of the framers of the Convention to specify that the five year period in question should be unbroken it would have been perfectly easy so to state and that in the absence of such specification there seemed no ground upon which to justify such an interpretation. Furthermore, in practice it would be difficult to apply such a stipulation in Egypt where so many foreigners spend a considerable part of the year abroad, and, even if annual leave might be held not to involve a break in residence, there would still always remain the question of deciding at what point leave from Egypt should end and absence from the country begin.
(3)
With regard to the third class of foreigners mentioned in the circular Note of September 20, 1939,—foreigners who entered Egypt on a visa for a limited sojourn but neglected to obtain an extension of stay although they might have remained without such authorization for more than five years—the Embassy took the point of view that the exclusion of this category of persons would seem to have a certain superficial justification on the principle that an abuse cannot create a right. But the answer to this contention would seem to be that, since the Egyptian Government has the right to expel foreigners who outstay the length of their temporary visas, their failure to expel such foreigners must be taken as acquiescence in their continued residence. The fact that there are many instances where such persons [Page 508] have paid taxes and otherwise been treated by the Egyptian Government as lawful inhabitants of the country would bear out this argument.

In further discussion of the matter, Mr. Besly said that he had found it difficult to understand how the Egyptian Ministry of Foreign Affairs had felt justified in reaching the conclusions expressed in its Note of September 20, 1939, since this subject had been discussed fully in conversations between the British and Egyptian authorities before the Montreux Conference and it should have been well known to whoever drafted the Note that the contentions contained therein were not only contrary to the Montreux Declaration itself but were also opposed to the informal understandings which had been reached prior to the Conference. Mr. Besly stated that the Embassy had as a matter of fact said as much in a separate and informal communication to the Ministry of Foreign Affairs which was sent to accompany the Embassy’s formal Note of December 5, 1939.

As regards the attitude of other interested colleagues in this matter, it is understood that the French and Greek Legations either have or have the intention of replying to the Ministry of Foreign Affairs in a similar sense to the British Embassy.

As regards the views of the Legation in this matter, it is respectfully submitted that a basic consideration would appear to be the provision made in the last paragraph of Article 4 of the Declaration on this subject by the Egyptian Government at Montreux for the setting up of an administrative advisory committee for the specific purpose of acting upon questions of this kind. Given this fact it is difficult to understand upon what valid ground the Egyptian Government could decide to treat the subject by a unilateral declaration. Under the circumstances it is the opinion of the Legation that a reply to the Ministry of Foreign Affairs refusing to admit the validity of the position taken in the circular Note of September 20, 1939 would be in order.

Respectfully yours

Raymond A. Hare
  1. Not printed.