Foreign Relations of the United States, 1946, The Near East and Africa, Volume VII

890D.05/3–2546

The British Embassy to the Department of State

Aide-Mémoire

In communicating its views upon the subject of the Syrian Mixed Courts in an Aide-Mémoire dated the 10th November, 1945,⁵⁷ the State Department invited the Foreign Office’s further observations. It has been impracticable to furnish these observations at an earlier date, owing to the recent preoccupation of His Majesty’s Government with negotiations for the withdrawal of French and British troops from the Levant States.⁵⁸ A recent British case of some importance has, however, now made it necessary to take up the matter on a limited basis with the Syrian Government.

2. The gist of the Foreign Office’s instructions to His Majesty’s Minister at Beirut was communicated before despatch to the United States and French Embassies in London. The French Embassy asked that Mr. Shone’s instructions should be held up, until they had had time to refer to Paris. The French Embassy have now stated that the French Government do not object to the appointment of “neutral” judges to take the place of French, to work off all cases pending before the Mixed Courts without prejudice to the final settlement of the general question, in which of course France and the United States together with the United Kingdom and other nations are interested, but add that they are about to communicate to the Foreign Office a general memorandum concerning the protection of foreign interests in the Levant States, which will include consideration of how the work hitherto performed by the Mixed Courts should be carried on.

3. To refer specifically to the State Department’s memorandum of the 10th November last, Mr. Bevin⁵⁹ agrees that the Mixed Courts Régime must be held to have expired with the Mandate, on the basis of articles 5 and 6 of the latter. He takes the view, however, that His Majesty’s Government and other Governments which possessed capitulatory rights under the Turkish régime hold in theory a means of pressure on the Syrian Government in the fact that those rights revive in full on the termination of the Mandate; and further that it would hardly be reasonable to forego these rights, unless the Mixed Courts Régime were replaced by some system satisfactory to British interests. Mr. Bevin is therefore inclined to consider that paragraphs 4–6 of the State Department’s memorandum of the 10th November represent an unduly conservative view of the degree of pressure which the Powers can justifiably exercise. He is, however, not prepared to claim a revival of capitulatory rights, but would rather propose to invoke these rights to secure reasonable legal treatment for foreigners.

4. As the State Department are aware, the draft Bill for the abolition of the Mixed Courts at present under consideration by the Syrian authorities is believed to provide for a special tribunal presided over by “a magistrate of international repute from amongst those registered with the International Court at the Hague” to deal with Commercial Cases involving the nationals of those countries which enjoyed capitulatory rights under the Turkish régime. Mr. Bevin considers this a step in the right direction (provided the proposal is one which is likely to be accepted by the Chamber), but thinks that there are strong reasons for pressing for an extension of this arrangement to cover civil cases also.

5. In this connection the provisions of the Montreux Convention of 1937 abolishing capitulations in Egypt⁶⁰ may be recalled. The Egyptian Government undertook to maintain the Mixed Courts for a transitional period of twelve years. They were to deal with all civil and commercial cases between foreigners or between foreigners and natives, subject to the proviso that any of the High Contracting Parties who possessed Consular Courts in Egypt might, on so notifying the Egyptian Government when ratifying the Convention, retain such courts for the purpose of jurisdiction in matters of personal status in all cases in which the applicable law was the national law of the High Contracting Party concerned. The term foreigners was defined so as to include nationals of such non-capitulatory powers as might be specified by decree.

6. In the present case, Mr. Bevin considers that the protection of British interests requires a guarantee that, under Syrian law as applied by Syrian courts, foreigners who [are?] also non-Mohammedans shall, in matters of personal status (i.e. marriage, divorce, inheritance, etc.), be dealt with on the basis of their own national law or at least on Western principles. In the Egyptian case referred to above the Mixed Courts were to deal with all matters of personal status affecting foreigners, subject to the proviso mentioned in the preceding paragraph; and by a Declaration annexed to the Montreux Convention the Egyptian Government undertook that, even when the Mixed Courts came to an end on the termination of the transitional period of twelve years (i.e. in 1949), the ordinary Egyptian Courts on taking over would continue to decide such matters in accordance with the foreigner’s own national law.

7. His Majesty’s Embassy will be glad to transmit to the Foreign Office any further observations which, after consideration of this memorandum, the State Department may wish to offer.⁶¹

Washington, March 25, 1946.

57. Ibid., p. 1197.
58. For documentation on this subject, see pp. 751 ff.
59. Ernest Bevin, British Secretary of State for Foreign Affairs.
60. For documentation on this subject, see Foreign Relations, 1937, vol. ii, pp. 615 ff.
61. The Department replied in a memorandum of April 23 which took note of the views of the British Government and summarized the Department’s discussions with the French Government. The memorandum concluded with the suggestion that “when the French Government has made known its views, the three Governments may wish to join in discussion for the purpose of arriving at a common approach to the Syrian Government.” (890D.05/3–2546)