Page images

was stated not to include agriculture. The Court rejected both these arguments. It considered that the word "industrie" or "industriel," like the equivalent English word "industry " or " industrial," could include agriculture where this was required by its context. The objection founded on this word being removed, the language of the treaty taken as a whole is found to be absolutely comprehensive and to leave no doubt that the provisions of Part XIII. are intended to apply to agricultural labour.

The second question of competence gave rise to no dispute, except on the point whether, in fact, past proceedings of the Labour Organisation did or did not show that it was arrogating competence to itself, a point with which the Court's opinion did not deal. There was no submission from any quarter to the effect that the Organisation was competent to deal with questions of production as such. The Court left on one side the reference to " other questions of a like character," stating that it could not undertake to say what such questions might be, and it guarded itself against misinterpretation of its negative answer to the main question by stating:

"It is evident that the Organisation cannot be excluded from dealing with the matters specifically committed to it by the Treaty on the ground that this may involve in some aspects the consideration of the means or methods of production, or the effects which the proposed measures would have upon production."


The recent decision of the Permanent Court of International Justice at The Hague on the preliminary point arising in the dispute between France and Great Britain as to the French Nationality Decrees in Tunis and Morocco (French Zone) contains an interesting passage on the interpretation of Article 15 of the Covenant.

By this article the members agree that if there should arise between them any dispute likely to lead to a rupture which is not submitted to arbitration, they will submit it to the Council of the League. Paragraph 8, however, adds that:

"If the dispute between the parties is claimed by one of them, and is found by the Council to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement." It has never been very clear what were the disputes which the framers of the Covenant regarded as solely within the domestic jurisdiction of a State. The text-books on international law do not address themselves to this particular point, and the following extract from the recent decision of the Permanent Court of Justice at The Hague is, therefore, very valuable.

The dispute arose in the following manner. The Nationality Decrees issued in the two French Protectorates of Tunis and Morocco (French Zone) in November, 1921, imposed French nationality on all persons born in the Protectorates who

by reason of their parentage were justiciable in the French tribunals which had been set up. The French nationality carried with it liability to military service in the French Army.

As the French Government was not willing to refer to arbitration the dispute with Great Britain which resulted from these decrees, Great Britain brought the matter before the Council of the League under Article 15. France then claimed the benefit of paragraph 8, but ultimately agreed that the Council should refer to the Court the question whether she was entitled to treat the dispute as one solely within her domestic jurisdiction.

The decision of the Court on February 7, 1923, contained the following passages as to the meaning of this paragraph:

"The words 'solely within the domestic jurisdiction' seem rather to contemplate certain matters which, though they may very closely concern the interests of more than one State, are not, in principle, regulated by international law. As regards such matters, each State is sole judge. "The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations. Thus, in the present state of international law, questions of nationality are, in the opinion of the Court, in principle within this reserved domain.

"For the purpose of the present opinion, it is enough to observe that it may well happen that, in a matter which, like that of nationality, is not, in principle, regulated by international law, the right of a State to use its discretion is nevertheless restricted by obligations which it may have undertaken towards other States. In such a case, jurisdiction which, in principle, belongs solely to the State, is limited by rules of international law. Article 15, paragraph 8, then ceases to apply as regards those States which are entitled to invoke such rules, and the dispute as to the question whether a State has or has not the right to take certain measures becomes in these circumstances a dispute of an international character and falls outside the scope of the exception contained in this paragraph. To hold that a State has not exclusive jurisdiction does not in any way prejudice the final decision as to whether that State has a right to adopt such measures.

"This interpretation follows from the actual terms of paragraph 8 of Article 15 of the Covenant, and, in the opinion of the Court, it is also in harmony with that Article taken as a whole.


"Article 15, in effect, establishes the fundamental principle that any dispute likely to lead to a rupture which is not submitted to arbitration in accordance with Article 13 shall be laid before the Council. The reservations generally made in arbitration treaties are not to be found in this Article. Having regard to this very wide competence possessed by the League of Nations, the Covenant contains an express reservation protecting the independence of States; this reservation is to be found in paragraph 8 of Article 15. Without this reservation, the internal affairs of a country might, directly they appeared to affect the interests of another country, be brought before the Council and form the subject of recommendations by the League of Nations. Under the terms of paragraph 8, the League's interest in being able to make such recommendations as are deemed

just and proper in the circumstances with a view to the maintenance of peace must, at a given point, give way to the equally essential interest of the individual State to maintain intact its independence in matters which international law recognises to be solely within its jurisdiction.

"It must not, however, be forgotten that the provision contained in paragraph 8, in accordance with which the Council, in certain circumstances, is to confine itself to reporting that a question is, by international law, solely within the domestic jurisdiction of one Party, is an exception to the principles affirmed in the preceding paragraphs and does not therefore lend itself to an extensive interpretation.


This consideration assumes especial importance in the case of a matter which, by international law, is, in principle, solely within the domestic jurisdiction of one Party, but in regard to which the other Party invokes international engagements which, in the opinion of that Party, are of a nature to preclude in the particular case such exclusive jurisdiction. A difference of opinion exists between France and Great Britain as to how far it is necessary to proceed with an examination of these international engagements in order to reply to the question put to the Court. "It is certain-and this has been recognised by the Council in the case of the Aaland Islands-that the mere fact that a State brings a dispute before the League of Nations does not suffice to give this dispute an international character calculated to except it from the application of paragraph 8 of Article 15.


It is equally true that the mere fact that one of the parties appeals to engagements of an international character in order to contest the exclusive jurisdiction of the other is not enough to render paragraph 8 inapplicable. But when once it appears that the legal grounds (titres) relied on are such as to justify the provisional conclusion that they are of juridical importance for the dispute submitted to the Council, and that the question whether it is competent for one State to take certain measures is subordinated to the formation of an opinion with regard to the validity and construction of these legal grounds (titres), the provisions contained in paragraph 8 of Article 15 cease to apply and the matter, ceasing to be one solely within the domestic jurisdiction of the State, enters the domain governed by international law.

"If, in order to reply to a question regarding exclusive jurisdiction, raised under paragraph 8, it were necessary to give an opinion upon the merits of the legal grounds (titres) invoked by the Parties in this respect, this would hardly be in conformity with the system established by the Covenant for the pacific settlement of international disputes. "For the foregoing reasons, the Court holds, contrary to the final conclusions of the French Government, that it is only called upon to consider the arguments and legal grounds (titres) advanced by the interested Governments in so far as is necessary in order to form an opinion upon the nature of the dispute. While it is obvious that these legal grounds (titres) and arguments cannot extend either the terms of the request submitted to the Court by the Council or the competence conferred upon the Court by the Council's resolution, it is equally clear that the Court

must consider them in order to form an opinion as to the nature of the dispute referred to in the said resolution-with regard to which the Court's opinion has been requested."

The Court decided against the French contention.

An agreement based on the decision of the Permanent Court was reached by the British and French Governments by an exchange of Notes on May 24, 1923, which are printed below as an appendix.

His Excellency,


etc., etc., etc.



24th May, 1923.


His Majesty's Government will be prepared to proceed no further with the case submitted to the Permanent Court of International Justice arising out of the nationality decrees promulgated in Tunis on November 8th, 1921, on receipt of an undertaking by the French Government that arrangements will be made by them before January 1st, 1924, whereby a British national who is the child born in Tunis of a British national who was himself born there shall be entitled to decline French nationality. This right will not, however, extend to succeeding generations.

2. I understand from Your Excellency that the child born in Tunis of a British national born elsewhere than in Tunis is not claimed by your Government to possess French nationality and that French nationality will not be imposed on any British national born in Tunis before November 8th, 1921, without an opportunity being afforded to him to decline it.

3. I should be glad to receive from you at the same time an assurance that no attempt will be made to impose Tunisian nationality instead of French nationality on British nationals in Tunis.

4. It is, of course, understood that in agreeing to discontinue the proceedings at The Hague, neither His Majesty's Government nor the French Government abandon the point of view which they have maintained in the diplomatic correspondence and in the preliminary proceedings at The Hague, nor will the principle adopted in the present agreement be applicable elsewhere than in Tunis.

5. With regard to the application to British nationals of the corresponding nationality decrees issued in Morocco (French zone), I would propose that for the present no further proceedings should take place at The Hague, as in present circumstances the question is not one of practical importance. On this question, therefore, the two Governments will maintain their present positions and reserve their rights.

I have the honour to be, with the highest consideration,
Your Excellency's obedient Servant,

(Signed) CURZon of Kedleston.

Sa Seigneurie


Principal Secrétaire d'Etat de Sa Majesté Britannique aux Affaires



le 24 Mai, 1923.

Par une lettre en date de ce jour, No. T 5130/180/317, Votre Seigneurie m'a fait savoir que le Gouvernement de Sa Majesté était disposé à cesser toute procédure dans l'affaire soumise à la Cour Permanente de Justice Internationale, relativement aux décrets de nationalité promulgués en Tunisie, le 8 Novembre 1921, si le Gouvernement français s'engageait à prendre, avant le ler Janvier 1924, toutes mesures nécessaires pour qu'un sujet britannique, né en Tunisie d'un sujet britannique, qui y est lui-même né, ait le droit de décliner la nationalité française, ce droit, toutefois, ne devant pas s'étendre aux générations suivantes.

Le Gouvernement français m'a autorisé à porter à la connaissance du Gouvernement britannique que les mesures auxquelles vient de faire allusion Votre Seigneurie seront prises en temps utile.

Il est entendu que l'enfant né en Tunisie d'un sujet britannique, né lui-même ailleurs qu'en Tunisie, n'est pas revendiqué comme son national par le Gouvernement français et que la nationalité française ne sera imposée à aucun sujet britannique né en Tunisie avant le 8 Novembre 1921, sans que la faculté lui soit donnée de décliner cette nationalité.

Aucune tentative ne sera faite pour imposer en Tunisie aux sujets britanniques la nationalité tunisienne à la place de la nationalité française.

En acceptant d'arrêter la procédure de La Haye ni le Gouvernement français ni celui de Sa Majesté n'abandonnent le point de vue soutenu soit dans la correspondance diplomatique échangée, soit dans la première phase de l'instance: le principe adopté dans le présent arrangement ne s'appliquera pas ailleurs qu'en Tunisie.

L'application aux sujets britanniques des décrets analogues sur la nationalité promulgués au Maroc (zone française) ne donnera lieu pour le moment à aucune procédure à La Haye, la question ne présentant pas actuellement d'intérêt pratique. En conséquence, les deux Gouvernements, maintenant leur position sur ce point, réservent leurs droits.

Veuillez agréer les assurances de la très haute considération avec laquelle

j'ai l'honneur d'être
Monsieur le Marquis

de Votre Seigneurie

Le très humble et très
obéissant serviteur,



In the case of Tesdorff and Co. v. The German Government, the Tribunal has recently decided a matter of interest and importance to international lawyers, and especially to such of them as have occasion to devote particular attention

« PreviousContinue »