Foreign Relations of the United States: Diplomatic Papers, 1945, The Near East and Africa, Volume VIII

890D.05/8–2245

Memorandum by Mr. William W. Bishop, Jr., of the Office of the Legal Adviser, to Mr. Adrian B. Colquitt of the Division of Near Eastern Affairs

[Washington,] September 18, 1945.

Reference is made to your underlying memorandum⁹⁸ and to the note of August 22, 1945 from the British Embassy with respect to the Syrian Mixed Courts. It appears that the British Government has urged that there be no modification of the mixed court system without the consent of all the interested powers, and that the support of the American Minister to Syria is desired in pressing the Syrian Government for assurances on this point.

The mixed court system was established pursuant to Article VI of the mandate for Syria and the Lebanon⁹⁹ which required it [the?] mandatory to establish “a judicial system which assures [shall assure] to natives as well as to foreigners a complete guarantee of their rights”. The preceding article of the mandate agreement provided that the Capitulatory rights of foreigners should not be applicable in Syria and the Lebanon, but that unless the powers enjoying such rights should have renounced them, such privileges and immunities upon the expiration of the mandate be immediately re-established. Although the United States was not a member of the League of Nations and therefore did not take a formal part in the granting of the mandate, the convention between the United States and France signed April 4, 1924 gave the United States rights in Syria and the Lebanon similar to those secured under the terms of the mandate to members of the League (Four Treaties, etc.¹ 4169).

It appears that the so-called “Mixed Court” system in Syria was established under a decree of the French High Commissioner in Syria and the Lebanon, dated November 16, 1921 (Recueil des Actes Ad-ministratifs du Haut-C ommissariat de la République Française en Syrie et au Liban), Vol. II p. 416. Modifications were introduced from time to time, particularly by the decrees of July 7, 1923, March 28, 1924 and February 17, 1928 (IV ibid. 110, V ibid. 126, IX ibid. 28).

It would appear that the Mixed Court System was itself solely a matter of local law, which would be subject to change without the need for obtaining approval of other governments. On the other hand, the Mixed Court System was instituted pursuant to obligations under the mandate and in lieu of the regime of extraterritoriality which had been previously in force in Syria and the Lebanon while they formed a part of the domains of the Ottoman Empire. It should be noted that under the terms of the mandate, powers having such extraterritorial rights were to resume them unless other arrangements were made. So far as I am aware, the United States has never renounced its extraterritorial rights in Syria and the Lebanon (see II Hackworth’s Digest, 517, 523–524, see also ibid. 529). In view of the retention by the United States of its extraterritorial rights in Syria, it would seem that there would be some legal justification for insistence by the United States that adequate measures for the protection of foreign interests be retained in the Syrian judicial system. We would probably not have as strong a case for pressing such a demand as would Great Britain and the other powers which participated in the mandate arrangement, but we could instruct our Legation in Damascus to join in appropriate representations on the subject, if as a matter of policy, we so desire. The question whether it would be desirable for this Government to take such action, or to associate itself with a British position, is a question of policy on which no opinion is expressed.

98. Of August 31, not printed; it requested the views of the Office of the Legal Adviser regarding the reply to be made to the note of August 22, supra.
99. The terms of the Mandate are set forth in the Convention between the United States and France defining American rights in Syria and Lebanon, signed at Paris, April 4, 1924, Foreign Relations, 1924, vol. i, p. 741.
1. Treaties, Conventions, etc., Between the United States of America and Other Powers, 1923–1937 (Washington, Government Printing Office, 1938), vol. iv.