Page images
PDF
EPUB

Polish territory constitutes a violation of international law, but it is a direct violation of the principle of self-determination upon which Germany and the Ukraine themselves professed to act. In any case it grossly violates the principles of nationalities and "consent of the governed,” laid down by President Wilson as bases for the international relations of the future.

Taken as a whole, it is clear that the Brest-Litovsk and Bucharest Treaties constitute one of the most colossal frauds of modern times. They are tainted with all sorts of treacheries and illegalities, and must be pronounced null and void from every possible legal as well as moral and political point of view.

Amos S. HERSHEY.

THE EGYPTIAN CAPITULATIONS

When Great Britain declared on December 19, 1914, that Egypt henceforth was to be considered no longer as a Turkish Suzerainty but as a British Protectorate, it also informed the new Sultan that: “His Majesty's Government have repeatedly placed on record that the system of treaties, known as the Capitulations, by which Your Highness's Government is bound, are no longer in harmony with the development of the country, but, in the opinion of His Majesty's Government, the revision of those treaties may most conveniently be postponed until the end of the present war. The Egyptian Council of Ministers on March 24, 1917, authorized the appointment of a special commission on the Capitulations for the study of the reforms which the eventual suppression of the Capitulations would necessitate. This commission was composed originally of three Egyptian members—the Ministers of Finance, of Instruction, and of Justice — of three British representatives, and of two other foreigners. Nine subcommissions were also appointed for the study of special matters requiring legislation. Judge Tuck, the American representative on the Mixed Court of Appeals, who has rendered long and valuable service, was made a member of the subcommission on commercial frauds.

The Commission on the Capitulations, after holding fifty-seven sessions, issued a statement in March, 1918, for the information of the general public, indicating the nature and the scope of the proposed reforms which will be required by the suppression of the Capitulations. The main point of interest for foreigners, naturally, is the question of judicial guarantees. The intended reforms contemplate the establishment of a system of unified tribunals which shall take over the jurisdiction hitherto exercised by native tribunals, mixed tribunals, consular tribunals, and also by administrative commissions, in civil and commercial matters (other than questions of personal status); and in criminal matters. The contemplated reforms leave to the consular tribunals the right of jurisdiction in questions of personal status affecting foreigners, “as long as these tribunals shall be maintained."

This concession is of special interest because of the fact that socalled questions of personal status, such as marriage, divorce, inheritance, and guardianship, are regarded with peculiar consideration in the East, and are usually governed by religious laws, notably in the case of Moslems. The divergence in practice in these questions is so great that it would be most difficult, if not quite impossible, to secure a uniformity of legislation that would be acceptable to all and avoid serious complications. It should be observed, in passing, that while substantial agreement in this respect has been reached between the nations of Europe, considerable divergence still exists between Anglo-Saxon procedure and that of the Continent concerning nearly every phase of private international law, as well as in matters of personal status. Furthermore, the situation in this respect between the various States in the United States, particularly in the matter of divorce, is very far from satisfactory and demands uniformity of legislation.

As uniformity of legislation in most matters affecting personal status in Egypt would be excessively difficult, if not impossible, the decision of the Commission on the Capitulations to permit consular tribunals to continue to exercise jurisdiction over their own nationals “as long as these tribunals shall be maintained” is most prudent as well as just. In fact, it might be observed that all nations should show a broad tolerance to each other in all such matters not affecting public morals and safety where great divergence of legal practice exists. They might well permit foreigners sojourning in their midst to be judged, not merely according to their own law concerning personal status (which often is only ascertained with difficulty by means of letters rogatory, etc.), but even to leave such questions—under proper safeguards to their own consular officials. Such a liberal attitude among nations would facilitate justice and at the same time relieve territorial tribunals of work and of responsibilities which are irksome, and it would seem, unnecessary.

This may appear quixotic, but if uniformity of legislation in matters not directly affecting public morals and safety should be impossible, or even undesirable, such a tolerant spirit among nations would be in harmony with that comitas gentium to which the courts 80 often allude.

With further reference to the judicial guarantees for foreigners in Egypt, the proposals of the Commission on the Capitulations contemplate measures to safeguard the right of litigants to be judged according to their own laws governing personal status by the new tribunals to be established. This doubtless applies to cases where such jurisdiction might be preferred by the litigants, or where the proper consular courts may not exist.

Further judicial guarantees are contemplated to the effect that foreigners entitled to privileged treatment by treaty shall have the right to require that every suit, civil or criminal, that may concern them shall be brought before a tribunal composed of a majority of foreign magistrates, or, in the case of the Court of Assize, of at least a half. (The report does not indicate the exact number of foreigners who will be designated as magistrates, or the manner in which they will be appointed.) Foreigners entitled to privileged treatment may also require that criminal proceedings against them shall be instituted through a foreign magistrate. Other guarantees concern orders for arrest, perquisitions, etc.

The remaining portions of the report of the commission deal with the organization of the Bar, Civil and Criminal Legislation, the Civil and Commercial Codes, and Administrative Legislation. It is of interest to note in this connection the following statement:

In general, but especially in matters relating to commerce which have been the subject of the most recent English legislation, the commission has recognized that, in view of the special political situation in Egypt, it was necessary, in order to supply the deficiencies and remedy the defects of the actual law, to take into consideration the precedents of English law.

By way of general comment it should be observed that the suppression of the regime of the Capitulations in Egypt, with all its attendant evils of special immunities for foreigners, of a consequent failure to insure an even justice for all, and also of special political pretensions by the Powers enjoying these privileges, is a logical necessity once the domination of Great Britain is recognized. Furthermore, it is obvious that Great Britain is bound to be as solicitous to safeguard the interests of her own nationals as any other Power. It follows, therefore, that, with certain reservations, other Powers should not be reluctant to submit their nationals to the same juridical regime to which Great Britain is prepared to submit her own nationals. The consent of other nations to the suppression of the regime of the Capitulations should not be made the subject of barter, as might be the case with Turkey. This consent should be given readily, once it can be shown that the administration of justice for foreigners is adequately safeguarded. But other Powers are bound to satisfy themselves first in regard to two aspects of the question. They will naturally desire guarantees concerning future legislation with respect to foreigners. They will also have to guard against the not impossible contingency of complete autonomy or independence for Egypt at some later time.

The consent of other Powers to the suppression of the regime of the Capitulations in final analysis, would seem therefore to depend on the willingness of Great Britain to assume, and to continue to maintain, full responsibility for the future administration of justice in Egypt.

The interest of the United States in this question is naturally not as great as that of certain other Powers. We certainly have no political interest. We have, however, considerable commercial, educational, and missionary interests. The exterritorial rights of the United States in Egypt are based on the following: the treaty of 1832, the Treaty of Commerce of 1862, the Real Estate Protocol of 1874 with Turkey, the Reforme Judiciaire of 1876, and the Commercial Agreement and Customs Regulations of 1885.

PHILIP MARSHALL BROWN.

THE MILITARY SERVICE CONVENTIONS BETWEEN THE UNITED STATES

AND ASSOCIATED COUNTRIES

Shortly after the entrance of the United States into the war, the Government of the United States was approached by certain of the allied countries with proposals to enter into military service conventions, for the reciprocal conscription of the citizens or subjects of one country residing in the other. It appeared that similar agreements had been signed as between Great Britain, France, and Italy. After consideration of these agreements, with a view to their application to conditions in the United States, definite proposals were made by the United States in the summer of 1917, to the cobelligerents to enter into reciprocal military service conventions along somewhat different lines. Negotiations proceeded with several countries pari passu, until the winter, when it was deemed advisable to select one convention for immediate conclusion and approval by the Senate, in order that it might serve as a model for similar conventions with other countries. The large number of Local Boards in the United States which would be called upon to draft aliens under such conventions, and the great amount of work which the drafting of aliens would entail upon them, made it imperative that the proposed conventions with the various cobelligerent countries should be as nearly as possible alike. Obviously, there would be more or less confusion if the same 5,500 Local Boards in the United States were to undertake to induct aliens into the American Army in accordance with a different procedure for each of the several countries associated with the United States. As the negotiations with the British Government had progressed furthest, on account of the similarity of laws and methods in the two countries, the proposed convention with Great Britain was selected for immediate conclusion. On June 3, 1918, two conventions were signed with Great Britain, one with respect to the United Kingdom, and the other with respect to Canada. They were approved by the Senate on June 24, and the ratifications were exchanged on July 30th.

Meanwhile, a question had arisen as to the return to the United States, under the Immigration Laws, of certain classes of aliens who had voluntarily enlisted, or who had been drafted in the American forces under the Selective Service Laws, and Congress passed, on June 29, 1918, Joint Resolution No. 255, regarding the readmission

« PreviousContinue »