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Case of the British Government CASE PRESENTED ON BEHALF OF THE GOVEKNMENT OF HIS BRITANNIC MAJESTI' TO THE PEKMANEN'T COURT OF INTERNATIONAL JUSTICE. THE REFERENCE. On October 4th, 1922 (') the following resolution was 1 adopted by the Council of the League of Nations : "The Council has examined the proposals made by Lord Balfour and M. Léon Bourgeois on the subject of tlie fol- lowing question, ylaced on its agenda of August r~th,at the kquest of the Governrnent of His Britannic Majeçty : "Disfiute between Fravrce and Great Britain as to the Nationality Decrees issiced in Tanis and iMoroccn (French zone) on ATovember 811i, r921, and lheir rr$pli- cation to Brilish suhjects, the ~rinchGaiernment having refused to subniit the legal qiiestions in volvedto arbitrntiorz. "The CounciI, noting that friendly conversations have taken place between the representütives of the two Governments and that they have agreed on the yroposals to be made to the Council, "Expresses its entire ndhesion to the principles con- tained in these proposais, and has adopted the following resolution : "(a.) The Council decides to refer to the Permanent Court of International Justice for its opinion the question whether the dispute referred to above is or is not by inter- national law solely a matter of domestic jurisdiction (article 15, paragraph 8 of the Covenant) ; "(b) And it requests the two Governments to bring (1) Appendix No. r, p. .G5. 3 this matter before the Permanent Court of International Justice and to arrange with the Court with regard to the date on which the '¶riestion can be heard, and with regard to the procedure to be followed II .................,.,.,,......,,,.,,...,..,.,,......-..*.,....II On November 6th, 1922, the Secretary-General of the League of Nations, in accordance with the above resolution, adressed the following formal request to the Court (') : "In execution of the resoiution of the Council of the League of Nations, adopted on October 4th, 1922, of which a certified copy is annexed hereto, and by virtue of the authorisation given by this resolution. "The Secretary-General of the League of Nations has the' honour to present to' the Permanent Court of Inter- , national Justice the request of the Council that the Court will, in accordance with article 14 of the Covenant of the League, give an advisory opinion on the question referred to it by paragraph (a)of the resolution above-mentioned, and will give effect, as far as is possible and convenient, to the request of paragraph (b) of the resolution relating to the date and procedure of the hearing of the question. "The secretary-~eneralhas alço the honour to enclose herewith, but merely for the information of the Court pending the submission of statements by the two Govern- ments concerned, a copy of the memorandum by which the present matter was originaily submitted to the Cou~.cil." The question stated for the opinion of the Court is, there- fore, as follows : "Whether the dispute between France 'and Great Britain as to the Nationality Decrees issued in Tunis and Morocco (French zone) on November 8th, 1921, and their application to British subjects is, or is not. by international law, solely a matter of domestic juris- ' diction (article 15, paragraph 8 of the Covenant of the League of Nations) ." -- 11) Appendix No. a:~. 66. Article 15 of the Covenant of the League of Nations provi- des as follows : "If there should arise between Members of the League any dispute likely to Iead to a rupture, which is not submitted to arbitration in accordance with article 13, the Members of the League agree that they will submit the matter to the Council. Any party to the dispute may effect such submission by giving notice of the exist- ence of the dispute to the Secretary-GeneraI, who ifriil make al1 necessary arrangements for a full investigation and consideration thereof. "For thiç purpose the parties to the dispute will com- municate to the Secretary-General, as promptly as .possi- ble, statements of their case, with al1 the relevant facts and papers, and the CounciI may forthwith direct the publication t hereof. "The Council shall endeavour to effect a set tlement of the dispute, and if such efforts are successful, a state- ment shall be made public giving such facts and explana- tions regarding the dispute and the terms of settlement thereof as the Council may deem appropriate. "If the dispute is not thus settled, the Council either unanimously or by a majority vote shall make and publisli a report containing a statement of the facts of the dis- pute and the recommendationç which are deemed just and proper in regard thereto. "Any Member of the League represented'on the Coun- cil rnay make public a statement of the facts of the dispute and of its conclusions regarding the sarne. "If a report by the Council is unanimously agreed to by the members thereof other than the represeatatives of one or more of the parties to the dispute, the Members of the League agree that they will not go to war with any party to the dispute which complies with the recornmend- ations of the report. "If the Council fails to reach a report which is.unanim- ously agrced to by the members thereof, other than the representatives of one or more of the parties to the dis- pute, the Members of the League reserve to thernselveç the right to take such action as they shall consider necessary for the maintenance of right and justice. "If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a mat- ter urhich by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shail make iio recommendation as to its settlement. *"The Council may in any case under this article refer the dispute to the Assembly. The dispute shall be so referred at the request of either party to the dispute, . provided that such request be made within fourteen days after the submission of the dispute to the Council. "In any case referred to the Assembly, al1 the provis- ions of this article and of article 12 relating to the action and powers of the Council shali apply to the action and powers of the Assembly, provided that a report made by the Assembly, if concurred in .by the representatives of those Members of the League represented on the Coun- cil and of a mtijority of the other Members of the League, excluçivc in eacli case of the represcntatives of the parties to the dispute, shall have the same force as a report by the Council concurred in by al1 the menlbers thereof other than the representatives of one or more of the parties to the dispute." The dispute merttioned in the question referred to the Court, and hereinafter more particularly described, is claimed by the Government of the French Republic to come withi~ithe excep- tion laid down by paragraph 8 of article 15 set out above. The Government of His Britannic Majesty, on the other hand, contend tliat the dispute does not come within the said exception. It appears, therefore, that the question upon which the Court is invited t; give its opinion is purely one of law, and is in the nature of a preliminary objection in point of law taken by the Government of the French Republic. In order to enable the Court to decidc this question of law, it is necessary brieflp to state the facts rclating ro, and relevant to the appreciation of, the dispute referred to in the question.. THE FACTS. The dispute in question relates, as indicated above, to cer- tain Nationality Decrees issued .in Tunis and in Morocco (French zone), respectively, and it is convenient to deal with the facts in relation to 'the two colintries separately. Tunis is a sovereign independent State, under the sover- eignty of a Bey and placed under the protection of France ('). The Bey iç variously described in official documents as "Possessor of the Kingdom of Tunis", as "His Highness the Bey of Tunis", and as "Lord of the Regency of Tunis". (a) Tunis is usually described officially as "the Regency of Tunis". The religion, institutions and civilisation of Tunis are Xahommedan. The relations between Tunis and France depend upon, and are defined by, the Treaty of Casr Said, dated May rnth, 1881(9, which, both in form and substaiice, is a treaty between two sovereign independent States. The yreamble of the treaty (which states its object) is to the following effect : "The Government of the French 12epublic and that of His Highness the Bey of Tunis, wishing to yrevent for ever the renewal of the disorders which recently occurred on the frontiers of the two States and on the Coast of Tunis, and desirous of making closer their longstanding relations of friendship and neighbourliness, have resolved to concliide a convention to this end, in the iiiterests of the High Contracting Powers." The rights given to, and the obligations imposed upon, the .Government of the French Republic by the treaty are, so far :LS matcrial, briefly as follows : (1) Appendix No. 3, p. 69. (2) Appendix Xo. Ir, 13. 120 (3) Appendix No. 4, p. 70 I. The Government of the French Republic is allowed to occupy militarily certain points in Tunis for a specific purpose, such occupation to end when the French and Tunisian military authorities recognise, by mutual con- . sent, that the local Administration is in a state to main- tain order. (Article 2). 2. The Government of the French Republic undertakes to support the Bey in case of danger to his person or dynasty or ta the tranquillity of his States.
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