The Chargé in Egypt (Hare) to the Secretary of State
[Received May 16.]
Sir: I have the honor to refer to the Department’s instruction no. 416 of September 13, 193944 enclosing a draft Consular Convention to [Page 511]be presented to the Egyptian authorities, and to the Legation’s despatch no. 1903 of November 6, 193945 reporting that the draft had been submitted to the Foreign Office and duly acknowledged.
In this connection the Legation has recently been giving consideration to that part of Article 11 of the Montreux Convention46 which provided that consuls should continue to enjoy the immunities possessed at the time of the signature of the Convention pending the conclusion of Consular Conventions “and in any case during a period of three years as from the date of the signature of the present Convention”. The Convention having been signed on May 8, 1937, the three year period prescribed in Article 11 therefore terminates on May 7, 1940. The question thus arose whether in the absence of the signature of a Consular Convention within the specified three year period consular officers in Egypt would continue to enjoy the immunities to which they were previously entitled. Since the American Government had some months ago submitted a draft Consular Convention for the consideration of the Egyptian Government and since responsibility for delay in such negotiations therefore lay with the Egyptian Government for having failed to pursue the matter further, it seemed to the Legation that a strong case could be made for arguing that American consular officers would be entitled to the continuance of their immunities regardless of such action as the Egyptian Government might contemplate taking in other cases. However, it was thought advisable to look into the matter with a view to avoiding possibly unforeseen complications.
The matter was first discussed informally with Mr. E. F. W. Besly, Legal Counselor of the British Embassy, who said that the British Government had in fact prepared a draft Consular Convention for submission to the Egyptian Government but that it had been decided not to submit it until after the war. He said that it was his opinion that under the terms of Article 11 of the Convention the specification of a three year period was not intended to indicate the period within which a Consular Convention should be concluded but rather the period during which consuls would be entitled to previous immunities regardless of whether or not a Consular Convention was concluded. However, when it was observed to Mr. Besly that such an interpretation would, if correct, make it possible, by merely adopting obstructionist tactics, indefinitely to delay the conclusion of a Consular Convention and thus ensure by such tactics the maintenance of consular immunities, he admitted that he might perhaps have been somewhat precipitate in reaching the decision that the conclusion of [Page 512]Consular Conventions could be postponed beyond the three year period without running the danger of loss by consuls of their immunities. In this connection he thereupon consulted a published work on the Montreux Convention by Messrs. Aghion and Feldman and found that it was categorically stated in the commentary on Article 11 that in the absence of the signature of a Consular Convention within the three year period specified in the Article consuls would cease to enjoy their customary immunities. Mr. Besly said he was glad this matter had been brought to his attention because he thought the Embassy might wish to reconsider the matter and possibly to submit its draft Convention in the early future.
This question was also raised informally on April 6 with Mohamed Said Bey, Acting Director of the Administrative Section of the Foreign Office, who appeared to be thoroughly conversant with the subject and said that although the Foreign Office was aware that the three year period specified in Article 11 of the Montreux Convention was approaching its termination no immediate action in respect of the abolition of the immunities of consuls was anticipated. The matter was, however, under study by the appropriate authorities and it was his understanding that the final decision reached would probably be to propose that the privileges of consuls should be placed on a reciprocal basis. In any event, he reiterated, he could give assurance that no precipitate action was in prospect.
Under the circumstances the Legation is of the opinion that there is adequate assurance that the immunities of American consular officers in Egypt are adequately safeguarded for the time being. It is also reassuring to learn that the Egyptian Government contemplates adopting the principle of reciprocity as a basis for according such immunities in the future in view of the liberal treatment specified in Article IV of the draft Consular Convention referred to above which the American Government is prepared to accord Egyptian consular officers.