Coll 15/3(1) 'Egypt. Abolition of Capitulations in Montreux Conference and Convention 1937' [‎300r] (604/1220)

o Ption 1 of the declaration by the Egyptian Government in the Final Act states
tht it has already decided to extend by decree the competence of the tribunals
t the nationals * of Austria, Czechoslovakia, Germany, Hungary, Poland,
ttoumania, Switzerland and Yugoslavia.
49 No Egyptian national may avail himself of the protection of a foreign
Power for the purposes of claiming Mixed Court jurisdiction (article 25 of the
Redement d’Organisation judiciaire, paragraph 2). (This provision is not in
Document A, but is obviously equitable.)
50 Nationals of Syria, the Lebanon, Palestine and Transjordan Used in three contexts: the geographical region to the east of the River Jordan (literally ‘across the River Jordan’); a British protectorate (1921-46); an independent political entity (1946-49) now known as Jordan , will be
subiect to the national courts (article 25 of the Reglement d’Organisation
udiciaire, paragraph 3). This is a continuation of the status quo under decisions
of the Mixed Courts based upon the fact that these territories were formerly part
of the Ottoman Empire. It was necessary to provide this expressly in the new
redement because they are now “ ressortissants ” of capitulatory Powers.
° 51 Foreign nationals (whether citizens, subjects or protected persons)
belonging to religions or confessions or practising rites for which there exist
Egyptian tribunals dealing with matters of personal status shall continue under
the same conditions as in the past to have their cases heard by the said tribunals
in matters relating thereto (article 25 of the Reglement d'Organisation judiciaire,
paragraph 4). (This is the first section of the face-saving device( 2 ) which was
necessary to bring together the points of view of the Egyptian, French,
Netherlands, and United Kingdom delegations.)
52. The Drafting Committee's report observes on this provision
(article 25 (4))—
“ When the stipulation was made in paragraph 4 that the Egyptian
tribunals dealing with matters of personal status shall continue to function
under the same conditions as in the past, it was understood that these expres
sions do not imply any immobilisation of these judicial organisations in
matters relating to personal status, and that the said tribunals will deal
with cases not by consular delegation, but in virtue of their own powers.
53 Moslem British subjects and British-protected persons have in the past
had recourse to the Sharia courts in Egypt for statut personnel cases, and the
Egypt Order in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. (article 91, paragraph 2) enables the British consulai
court to recognise the Sharia judgments. The position will be the same m e
future, except that the British consular court (retained for statut peisonne ) wi
no longer come into the matter at all, as regards Sharia decisions gi\en wi
regard to these persons. This paragraph of the R.O.J. really creates an excep ion
to article 9 of the convention, providing for the reservation of statu P er ?°?^ n
Orthodox British subjects and British-protected persons have not had the ngnt to
have recourse to religious courts in Egypt for statut personnel m 11 e pas un
the Egypt Order in Council A regulation issued by the sovereign of the United Kingdom on the advice of the Privy Council. , and will not be covered by this paragiap > are
Jews, from whom this right was taken away by the Order m Counci o •
54 . The nationals specified above (i.e., only those covered by paragraph 4 ot
article 25) will have the right to opt between the mixed 3 urlsdlctlon L
national jurisdiction in civil and commercial matters (paragiap o o
(This is the second half of the face-saving device.) Whereas f, na A j : ^ j b p olir f S
capitulatory Powers in general are automatically justiciable y e ^ ^
unless they opt for the native courts under the conditions laid own i . , '
in the case of the nationals specified in paragraph 4 they mus within a
decline the jurisdiction of the native courts by an express ac 1011 „
certain limited time instead of being able to do so by takmg no a ,
penal matters these persons, like all the other nationals 0 e ^
parties, will be subject without question to the Mixed Courts. com _
55. The compromise is harmless, though it introduces a eg un( J er the
plication. Difficulties may arise as to whether a given m m ^
provisions of paragraphs 4 and 5 of article 25 or not. ^ jqoy n m a ke a formal
Majesty’s Government might, before the 15 th October, , c i ass es of
communication to the Egyptian Government indicating w ‘ raOT aphs apply.
British subjects and British-protected persons to whom R , p ara g r aphs 4
It is further suggested that this communication shou s ^ persons) to
5 apply only (in the case of British subjects and British-protected peuo
persons of the Moslem faith.
0 Further reference is made in Part V below to the discussions on this ques mn
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