Coll 15/3(1) 'Egypt. Abolition of Capitulations in Montreux Conference and Convention 1937' [‎298r] (600/1220)

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bolishes the Capitulations in Egypt,(') and article 2, paragraph 1, renders
Fcrvptian legislation applicable to foreigners in Egypt “ subject to the applica-
b n of the principles of international law.” These two provisions constitute the
alisation of paragraph 1 (i) of the annex to article 13 of our Treaty of Alliance.
The remainder of the provisions drawn up at the conference are (with small
mentions) the ‘ ‘ transitional regime ’ ’ provided for in paragraph 1 (ii) of the
^nex t0 ar ti c le 13 of the Treaty of Alliance, and explained in the remaining
& rovisions of that annex and developed in greater detail in Document A.
P 1 34 it was stated in paragraph 5 of the annex to article 13 of the Treaty of
Alliance that in future not only—
“ the assent of the capitulatory Powers will be no longer necessary for
the application of any Egyptian legislation to their nationals, but also that
the present legislative functions of the Mixed Tribunals as regards the
application of°Egyptian legislation to foreigners will terminate. It would
follow* from this that the Mixed Tribunals in their judicial capacity would
no longer have to pronounce upon the validity of the application to foreigners
of an Egyptian law or decree which has been applied to foreigners by the
Egyptian Parliament or Government, as the case may be
and paragraph (xviii) of the agreed minute to the treaty adds—
“ With regard to paragraph 6 of the annex to article 13 (non-discrimina
tion), it is understood that questions relating to this declaration are not
subjects for the appreciation of any courts in Egypt.”
The intention, therefore, was to take away from the Mixed Courts their existing
legislative powers as regards the making of Egyptian laws applicable to
foreigners and their powers to hold Egyptian laws not applicable to
foreigners on the ground that they were outside the legislative capacity of the
Egyptian Government, or conflicted with the treaty rights of foreigners ( droits
acouis ”). In order to give effect to this intention it was necessary
not merely to remove from the existing R.O.J. the articles con
ferring legislative powers on the Mixed Courts, but also to amend the old
articE 11 which enabled the Mixed Courts to award damages for foreigners if it
was held that they suffered damage owing to application to them of a law which
infringed rights based on a treaty. . . , , i • i f
35. On the other hand, it was necessary to maintain the most valuable right
to sue the Egyptian Government in the Mixed Courts, including t e ri §
claim damages for all administrative acts not justified by the law a rigi ^
covers claims for refund of sums levied by way of taxation when i 1 ®. s ,,
the assessment was excessive or unjustified. A text of a new ar 1C ^
R.O.J. in this sense appears as article 10 of the annex to Documen _ . ^
of the new P.O.J. annexed to the convention, which deals with this matter, do^
not differ in substance from the text proposed in Document A an is sa is p
The following comment in the Drafting Committee s report may e n
onnexion :—
“ Article 43 {formerly Article 32).
“ This article was retained in the form adopted hy the committee mte
light of the observations made at the plenary meeting ( • ■ > PP-
from which it appears— , , , . i
“ (1) That the expression ‘ laws and regulations ’ l 'w£
as covering also provisions of treaties which are of sue a tbe form of
been necessary for the Egyptian Government to enact them m the form
municipal laws.
0 ) The Drafting Committee report on article 1 says. , abrogation
“This provision, which is of a general nature involves ^ necessity^
of all treaties, instruments, arrangements or usages, vhic '
of the convention. , , „ rM^nrvsnl was laid before it to
“ In this connexion, the committee wishes to state C p , an( j 0 ther international
annex to the convention a text (Doc. C.C.M./C.G./13) o L committee, because
instruments thus abrogated. This suggestion was no ^ , i contained in article 1 ,
certain delegations preferred merely to adapt the g ene examination of the list in
while certain others were not in a position to undertake the exammat
question.” t . , , (Annex 1 ),
The Egyptian list of the treaties, &c., to be abrogated, which is ^ to any difficulty
^ as (m spite of our efforts) produced too late. The only i . , • a n a single articles
*ere references to certain multilateral conventions which contained, inte
or sentences relevant to the Capitulations.