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INTERNATIONAL COURT OF JUSTICE1952August 27thGeneral List:No. Il YEAR 1952

August 27th, 1952CASE CONCERNING

RIGHTS OF NATIONALS OF11HE UNITED STATES OF AMERICA

IN MOROCCO(FRANCE 'v. UNITED STATES OF A:\IERICA)Economic liberty without allY inequality ill 1.1loro[coin the General

A ct of Algeciras.-Etfect of establishment of Protectorate thereon.-Eijectof discrimination all validity of Residential Decree of December 30th,I948, regulating imports.

Consular jurisdiction in French ZOllCof .110roceoas based Oilbilateraltreaties, most-favoured-nation clauses and multilateral treatics.-ilI eaningof "dispute" in Treaty of I836 between .1loroeco and the UnitedStates,' whether aPPlicable to criminal al/d civil llzattcrs.-Etfect ofrenunciation by other States of wnsular jurisdictiol:.-EfJect of Con-vention of Jl adrid and Act oj .dlgeciras on consular jurisdiction.-Custom al/d usage."Right of assent" to "11Oi'occan legislation as corollary of consular

jurisdietiolz 1sscl/t necessary for application 0/ .1loroccan laws inconsular courts.-Local laws contrary to treaty riglds.

Fiscal im/lHtnity as based on Convention 01 .11adrid al/d Act ofAlgeciras and most-favoured-nation clauses.

Interpretation of Article 95 of .-lct of Algeciras.

Present:]CDGl\IENT

President Sir Arnold l\IcN.-\IR; Judges BASDEVA~T,HACK\VORTH, ZORICIC, KLAESTAD, B.-\DA\VI, READ,Hsu Mo, LEVI CAR)

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200 JL'l)Gl\IE~T OF 27 VIII 52 (C.S. ~.nIO~,\LS I~ l\lOIWCCO)the consent or acquiescence of :\Iorocco. It i:::; lso true that France,after the institution of the Protectorate, obtained declarations ofrenunciation from a large number of other States \",hich "'ere in asimilar position. This is not enough to establish that the Statesexercising consular jurisdiction in pursuance of treaty rightsenjoyed in addition an independent title thereto based on custom. or usage.The second con:::;ideration relates to the question of proof. ThisCourt, in the Asylum Case (I. C. J. Repurts I95, pp. 276-277), when

dcaJing with the question of the establishment of a local custompeculiar to Latin-American States, said:

"The Part)' which relies on a custom of this kind must provethat this custom is established in such a manner that it has becomehinding on the other Party. The Colombian Government must provethat the rule invoked bv it is in accordance with a constant anduniform usage practised by the States in question, and that thislIsage is the expression of Clright appertaining to the State grantingasylum and a duty incumbent on the territorial State. This followsfrom Article 30 of the Statute of the Court, which rders to inter-national custom 'as evidence of a general practice accepted as law'."

In the present case there has not been sufficient evidence toenable the Court to reach a conclusion that a right to exerciseconsular jurisdiction founded upon custom or usage ha:::;been estab-lished in such a manner that it has become binding on :\Iorocco.This contention has also been based upon the practice since thedate when the treaty right of the United States to exercise extendedconsular jurisdiction and derivative rights came to an end with thecoming into operation of the COI1\'ention between France and GreatBritain of I937.During this period France and the Cnited States were in negoti-ation with regard to a number of questions, including t he renuncia-tion of capitulatory rights. There are isolated expressions to befound in the diplomatic correspondence \\Thich, if considered with-out regard to their context, might be regarded as acknowledgments

of United States claims to exercise consular jurisdiction and othercapitulatory rights. On the other hand, the Court can not ignorethe general tenor of the correspondence, which indicates that atall timcs France and the united States were looking for a solutionbased upon mutual agreement and that neither Party intended toconcede its legal position. In these circumstance, the situation inwhich the Cnited States continued after I937 to exercise consularjurisdiction over all criminal and ciyil cases in ,,"hich Cnited Statesnationals were defendants, is one that must be regarded as in the28

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201 JUDG:\IE~T OF 27 VIII 52 (U.s. ~.-\TIO~ALS IN l\IOROCCO)nature of a provisional situation acquiesced in by the Moroccanauthorities. .

*Accordingly, it is necessary to conclude that, apart from thespecial rights under Articles 20 and 21 of the Treaty of 1836 andthose \vhich arise from the provisions of the Act of Algeciras, towhich reference has been made above, the United States claim toexercise and enjoy, as of right, consular jurisdiction and other capitu-latory rights in the French Zone came to an end with the term-ination of "all rights and privileges of a capitulatory character inthe French Zone of the Shereefian Empire" by Great Britain, inpursuance of the provisions of the Convention of 1937.

** *The Court will now consider the claim that United States nationalsare not subject, in principle, to the application of Moroccan laws,unless they have first received the assent of the United StatesGovernment.The French Submission is this regard reads as follows:

"That the Government of the United States of America is notentitled to claim that the application of all laws and regulations toits nationals in Morocco requires its express consent;That the nationals of the United States of America in Morocco

are subject to the laws and regulations in force in the ShereefianEmpire and in particular the regulation of December 30th, 1948,on imports not involving an allocation of currency, without theprior consent of the United States Government."The United States Submission in this regard reads as follows:

"4. Under the regime of extraterritorial jurisdiction now exer-cised by the United States in :\lorocco, United States citizens arenot subject, in principle, to the application of Moroccan laws.Such laws become applicable to the United States citizens onlyif they are submitted to the prior assent of the United States Govern-ment and if this Government agrees to make them applicable toits citizens. The Dahir of December 30, 1948, not having been sub-mitted to the prior assent of the United States Government, cannotbe made applicable to United States citizens."

The claim that Moroccan laws are not binding on United Statesnationals, unless assented to by the Government of the United29