General List No. 71

Judgment No. 28

 14 June 1938

 

PERMANENT COURT OF INTERNATIONAL JUSTICE

Judicial Year 1938

 

Phosphates in Morocco

 

Italy v. France

Judgment

 
BEFORE: President: Guerrero
Vice-President: Sir Cecil Hurst
Judges: Count Rostworowski, Fromageot, De Bustamante, Altamira, Anzilotti, Urrutia, Negulesco, Jhr. Van Eysinga, Cheng, De Visscher
 
Represented By: Italy: M. R. Montagna, as Agent
France: M. J. Basdevant, as Agent, and Me. Lémonon, as Assistant Agent
    
Perm. Link: http://www.worldcourts.com/pcij/eng/decisions/1938.06.14_phosphates.htm
  
Citation: Phosphates in Morocco (Italy v. Fr.), 1938 P.C.I.J. (ser. A/B) No. 74 (June 14)
Publication: Publications of the Permanent Court of International Justice Series A./B. No. 74; Collection of Judgments, Orders and Advisory Opinions A.W. Sijthoff’s Publishing Company, Leyden, 1938.
  
 

  

[p11] The Court,
composed as above,
delivers the following judgment :

[1] By an Application filed with the Registry of the Court on March 30th, 1936, under Article 40 of the Statute and Article 32 of the Rules of Court, the Italian Government has instituted proceedings before the Court against the French Government concerning phosphates in Morocco.

The Application of the Italian Government was as follows:

[Translation]
"Having regard to Articles 105, 112, 73 and 74 of the General Act signed at Algeciras on April 7th, 1906, and to Articles 1, 4 and 7 of the Franco-German Treaty of November 4th, 1911;
Having regard to the declaration, dated November 7th, 1911, whereby the Italian Government acceded to the said Treaty ;
Having regard to the declarations of accession made by Italy and France to the Optional Clause of Article 36, paragraph 2, of the Statute of the Permanent Court of International Justice;
Having regard to Article 40 of the Court's Statute and to Article 35, paragraph 2, of the Rules of Court which relates thereto;
Has the honour to submit the following application :
Whereas between October 17th, 1918, and April 29th, 1919, thirty-three licences to prospect for phosphates in reserved areas in the Oued Zem — Bir Fenzer district were issued by the Department of Mines of Morocco, in the order of priority, to the French nationals MM. Francis Busset and Frier Deruis.
Whereas twenty-eight of the said licences, which had been handed over by the original holders to the Italian national M. Costantino Tassara, are now the property of the Italian Company Miniere e Fosfati of which Commander Gaspare de Gennaro Musti is the representative and agent.
Whereas these licences were governed by the Mining Regulations, promulgated by the dahir of January 19th, 1914. [p12]
Whereas, in accordance with the provisions of the General Act of Algeciras of April 7th, 1906, and the Franco-German Agreement of November 4th, 1911, to which Italy has since acceded, the said Regulations were bound not only to respect the general principle of economic liberty, without inequality ('open door'), but must also be based upon the system of concessions and 'be guided by the laws governing this matter in foreign countries' (Art. 112 of the Algeciras Act) and, finally, by French law (Art. 7 of the Franco-German Agreement).
Whereas, under Article 51 of the Regulations, concessions for the working of phosphates might only be disposed of by public award on tenders offering a royalty, payable on every ton extracted.
Whereas, in particular, it was laid down that: 'Prospectors holding prospecting licences for a reserved area, who have discovered new phosphate deposits .... within their area, and have shown that they can be worked, shall be entitled, during a period of fifteen years, reckoned from the date of the decision recognizing them as discoverers, to one-fifth of the royalties payable on every ton by the successful tenderers.'
Whereas on August 4th, 1919, the General Board of Public Works published the following note in the Morocco Official Gazette : 'Phosphate deposits of considerable extent and of exceptional content have been located in the El Boroudj and Oued Zem districts. In accordance with Article 51 of the dahir of January 19th, 1914, prescribing mining regulations, the right to work these deposits will be disposed of by public tender at a date which the Administration hopes to fix in the near future.'
Whereas, notwithstanding the above notice, a new dahir, dated January 27th, 1920, reserved exclusively to the Maghzen the right to prospect for and work phosphates.
Whereas this reservation was, however, limited by the clause safeguarding the rights which prospectors had acquired under the above-mentioned Article 51.
Whereas a subsequent dahir, dated August 21st, 1920, specified the procedure for the recognition of these vested rights and left the question of the indemnities provided for in paragraph 3 of the said Article 51 to be settled by subsequent provisions.
Whereas M. Costantino Tassara applied to the Department of Mines, by registered letter dated October 14th, 1921, in his capacity as transferee of the Busset and Deruis licences, to be recognized as discoverer of the deposits covered by the said licences.Whereas the Department of Mines, after unsuccessfully endeavouring to decline the application, unreasonably delayed the announcement of its decision, and informed M. Tassara only on January 9th, 1925, that it had rejected his above-mentioned request, upon the following grounds: 'Whereas the technical enquiries which have been carried out show that the applicant [p13] does not fulfil, in respect of any of his licences, the conditions of having both discovered a new deposit and having shown that it can be worked.'Whereas M. Tassara was unable subsequently to ascertain the alleged technical reasons for the rejection of his claim and was accordingly not in a position to address to the French Resident General the petition provided for in Article 8 of the dahir of August 12th, 1913.
Whereas the authorities of the Protectorate and the Resident-General himself maintained an evasive attitude, first refusing to permit reference to the files, and finally stating that the question had been definitively settled by the Mines Department.
Whereas all subsequent steps taken by the interested parties to obtain redress for the wrong suffered or a friendly settlement of the question or at all events the appointment of competent judges to annul or revise the unlawful decision of the Mines Department led to no result.
Whereas the good offices of the Royal Embassy at Paris likewise met with no success. The interested parties and the Royal Embassy repeatedly urged that the French courts in Morocco have no power to annul the acts of the Public Administration, that the authorities of the Protectorate cannot claim to be both judge and suitor, and that consequently some adequate judicial remedy must be provided. The Ministry for Foreign Affairs of the Republic (Directorate of Political and Commercial Affairs) replied by its note of January 28th, 1933, that there was no appeal from the decision of the Mines Department; but that 'if the Miniere e Fosfati Company considered that the Administration of the Protectorate had been at fault in this decision and had violated alleged vested rights, it was open to them to bring an action against the Shereefian State before the courts of the Protectorate with a view to obtaining damages in respect thereof.
Whereas the company concerned and the Royal Embassy thereupon represented without success that they were not seeking damages but respect for vested rights, and that this in any case entailed as a condition precedent the annulment of the decision of the Mines Department, i.e., a measure not within the jurisdiction of the civil courts of Morocco. The Ministry for Foreign Affairs of the Republic, in its last note of March 10th, 1934, maintained its standpoint refusing any satisfaction.
Whereas the proceedings above mentioned, being inspired by the same purpose and designed to achieve the same object, constitute a continuing and permanent unlawful act involving the international responsibility of France in different ways.
Whereas the establishment of the phosphate monopoly is in effect inconsistent with the international obligations of Morocco and of France : that economic freedom in Morocco should be respected without inequality, that the mining regulations should [p14] be based on the system of concessions in accordance with French law, and that the Shereefian monopolies should be confined to opium, kif and tobacco.
Whereas, secondly, the decision of the Mines Department of January 8th, 1925, is ultra vires and constitutes a misuse of power. It conflicts with the official announcement of August 4th, 1919, and, under the cloak of meeting departmental exigencies, aims at getting rid of the dreaded foreign holding and even avoiding the payment of compensation for expropriation in disregard of vested rights which were safeguarded by international conventions.
Whereas, thirdly, the obstacles placed in the way of a petition to the Resident-General and the allegation that the decision of the Mines Department had finally settled the question despite the terms of Article 8 of the dahir of August 12th, 1913, for the judicial organization of the Protectorate, constitute a veritable denial of justice.
Whereas this denial of justice has been confirmed and aggravated by the refusal to submit the dispute to a competent tribunal able to redress the wrong suffered by the Italian company and to restore the position in accordance with municipal law and international law.
Whereas the proposal that recourse should be had to the civil courts of Morocco with a view to obtaining damages for the wrong suffered is not calculated to give the satisfaction which is due, and is designed rather to ensure that the Italian subjects who have been expropriated without compensation shall remain despoiled of their property as at present.
Whereas the legal dispute which has arisen could not form the subject of a special arbitration agreement, owing to the persistently evasive attitude of the Government of the Republic, and is therefore submitted to the Court by a unilateral application.
Whereas the Royal Government holds that, owing to the above-mentioned unlawful act, France has incurred international responsibility of two kinds, namely: indirect responsibility as the State protecting Morocco, and personal and direct responsibility resulting from action taken by the French authorities, or with their co-operation, purely for the sake of French interests.
Whereas it rests with the Court to appraise the extent of that responsibility and the nature of the reparation which is due.
Whereas in the present case, restitution in kind being possible, the Court can, in accordance with its jurisprudence, order that the necessary steps be taken to efface all the consequences of the unlawful act and to restore the situation as it would have been if the aforesaid act had not been commited.
Whereas the Royal Government, being concerned to uphold its full rights, after all attempts at an amicable settlement have proved fruitless, feels justified in demanding that, as regards the Moroccan phosphates, the economic freedom, which was sacrificed in the interests of the unlawful monopoly, should be restored, or that, at the least, the rights acquired in virtue of [p15] Article 51 of the Mining Regulations shall be acknowledged and respected, the rights in question being those relating to the acquisition by the Italian company holding the prospecting licences of the status of discoverer, and to the disposal by public tender of the deposits covered by the licences.
Whereas the working of phosphates being now less profitable than during the past ten years, it would further be fitting to award damages for the losses not covered by the restitutio in integrum.
Whereas, in case the Court should hold that the vested rights only extend to compensation for expropriation, the amount of that compensation must be assessed with due regard to two essential circumstances: namely, that the revenues of the Shereefian Phosphates Office, up to date, have exceeded one milliard, as shown by the official publications, and that, if the rights had been disposed of by public tender, the Miniere e Fosfati Company, being able to get the benefit of the one-fifth share of the royalties accruing to it as the recognized discoverer, could have outbid any other competitor, and would therefore have infallibly been the successful tenderer.
Whereas, in any case, compensation will be necessary for damage of another kind, represented by the considerable expense to which the interested parties have been put, during this long period, owing to the protracted negotiations in which they have had to engage with the authorities of the Protectorate and with the French authorities.
In view of the foregoing, and subject to the subsequent presentation to the Court of any memorials, counter-memorials, and in general of any documents or evidence;
May it please the Court:
To notify the present application, in conformity with Article 40, paragraph 2, of the Court's Statute, to the Government of the French Republic, as such, and as protector of Morocco;
To judge and declare, whether the said Government enters an appearance or not, and after such time-limits as the Court may fix, in the absence of an agreement between the Parties:
(a) that the monopolization of the Moroccan phosphates, which was accomplished by stages between 1920 and 1934 for the benefit of French interests, is inconsistent with the international obligations of Morocco and of France, and that it must for that reason be annulled with all the consequences that ensue ;
(b) alternatively, that the decision of the Mines Department dated January 8th, 1925, and the denial of justice which followed it, are inconsistent with the international obligation incumbent upon Morocco and upon France to respect the rights acquired by the Italian Company Miniere e Fosfati, and therefore that the Protectorate authorities are bound to recognize the said company as discoverer, and to invite tenders without delay for the working of the deposits covered by the company's licences ;
(c) alternatively again, that fair compensation must be paid for expropriation, such compensation to be assessed by the [p16] Court with due regard to the immense revenues of the Shereefian Phosphates Office ;
(d) that additional pecuniary compensation is due for loss and damage not covered by the main indemnity referred to under (a) above, and in any case for the expenses in which the company was involved by the defence of its rights prior to the submission of the present application."

[2] On March 30th, 1936, notice of the Application of the Italian Government was given to the French Government, and on April 8th, 1936, the communications provided for in Article 40 of the Statute and Article 34 of the Rules were duly despatched. Furthermore, on May 23rd, 1936, the Registrar, in accordance with Article 63 of the Statute and Article 66 of the Rules, notified the United States of America, Belgium, Great Britain, the Netherlands, Portugal, Spain and Sweden, as Parties to the General Act of Algeciras of April 7th, 1906, certain of these Powers having moreover adhered to the Franco-German Convention concerning Morocco of November 4th, 1911.

[3] By an Order made on June 18th, 1936, the Court fixed July 15th as the date for the expiry of the time-limit allowed to the Italian Government for the filing of its Memorial; it also fixed the time-limit for the filing of the French Government's Counter-Memorial. The latter time-limit was extended until December 17th, 1936, by an Order made by the President of the Court on September 30th, 1936.

[4] In its Memorial, which was duly filed within the time-limit fixed for that purpose, the Italian Government maintained the submissions made in the Application.

[5] Within the time-limit for the filing of the Counter-Memorial, the French Government filed a document entitled: "Phosphates in Morocco. Preliminary Objections filed on behalf of the French Government." In this document it presented objections and made the following submission :

"May it please the Court,
Whereas the Royal Italian Government has not stated the nature of its claim within the degree of precision and clearness requisite for the administration of justice and prescribed by Article 32, paragraph 2, and Article 42 of the Rules of Court,
Whereas, in particular, it has not explained what it seeks to obtain by asking for the abolition of the monopolization of phosphates with all the consequences that ensue;
Whereas the Royal Italian Government has not clearly explained the grounds of jurisdiction on which it relies in bringing the case before the Court by Application and as, accordingly, it has not adequately complied with the terms of Article 32 of the Rules of Court,
Whereas, in particular, it has made no attempt to show whether or how the various parts of its claim are covered by the terms of Article 36, paragraph 2, of the Court's Statute and of the declarations made by the two Governments accepting the compulsory jurisdiction of the Court; [p17]
Whereas it was incumbent on the Royal Italian Government, acting as protector of its nationals, to demonstrate, to the satis¬faction of the Court and in accordance with the requirements of international law, that the claim concerning the Miniere e Fosfati Company is of a national character,
Whereas, far from so doing, the Royal Italian Government has only furnished inadequate information on this point, and has not attempted to make good the omissions or to explain the inconsistencies apparent from a perusal of the documents which it has produced,
Whereas, for its part, the Government of the French Republic has drawn the attention of the Court to facts which, to say the least, give rise to doubts as to whether the said claim is Italian,
Whereas, in particular, the Royal Italian Government has not furnished adequate explanations and evidence as to the date of the transfers by MM. Busset and Frier Deruis, or as to the transferees, the part played by M. Tassara, the alleged assignment to the Miniere e Fosfati Company and the character of that company, or the transfer to an American company and its cancellation ;
With regard to the part of the Application relating to the alleged unlawful monopolization of phosphates:
Whereas this question has not been investigated through \ diplomatic channels and as, accordingly, it cannot be submitted to the Court by application on the basis of the declarations whereby France and Italy have accepted the compulsory jurisdiction of the Court;
With regard to the part of the Application relating to the claim of the Miniere e Fosfati Company:
Whereas it is open to this company to have recourse to the civil courts of the Protectorate adjudicating upon administrative questions and as this means of redress has not been exhausted or even tried;
Whereas, accordingly, in this case the rule subordinating diplomatic action and, consequently, application to the Court under Article 36, paragraph 2, of the Statute, to the exhaustion of local means of redress applies, there being no circumstances in the case justifying a departure from this rule;
With regard to the Application as a whole :
Whereas the dispute which the Royal Italian Government has submitted to the Court has arisen in regard to situations or facts prior to September 7th, 1931, and as, accordingly, it falls outside the scope of the Court's compulsory jurisdiction as determined between France and Italy by the declarations on the subject made by the two Governments;

For these reasons and for any others which may be submitted or which the Court may see fit to add or substitute,
To adjudge and declare that the Application filed on March 30th, 1936, by the Royal Italian Government cannot be entertained." [p18]

[6] On receipt of this document, the President of the Court, having regard to the terms of Article 62, paragraph 3, of the Rules of Court suspending the proceedings on the merits, made an Order on December 18th, 1936, giving the Italian Government a time-limit for the filing of a written statement of its observations and submissions in regard to the objections lodged by the French Government. This time-limit was extended until July 15th, 1937, by an Order made by the President of the Court on April 13th, 1937.

[7] The Italian Government, in its written statement, which was duly filed within the prescribed time-limit, presented the following submissions in regard to the preliminary objections :

"Whereas the Royal Government's Application, supplemented by the Memorial, is sufficiently clear for all who have no motive for failing to understand it; and whereas, in fact, the respondent Party has understood it so well that not a single question nor any allegation put forward by the Royal Government has been left unanswered in the document filed by that Party; whereas the alleged obscurities in regard to the nature of the claim have been artificially contrived for the needs of the case; whereas the Royal Government considers that it has submitted to the Court, with all necessary particulars and clarity, the dispute that has arisen over the monopolization of the Moroccan phosphates for the benefit of France through the medium of the protected State; whereas the word 'monopolization' has been expressly used to indicate the series of acts-performed with that end in view between 1920 and 1934; whereas it is the whole of this series of acts which has to be annulled, with all the consequences that ensue, in accordance with the main submission of the Application, not by the Court, but pursuant to a declaratory judgment by the Court, this phrase as to all the consequences being added to indicate the all-inclusive character of the main submission, which, in the applicant Government's mind, covers all the measures necessary to give effect to, or designed to complete, the monopoly or the dispossession of the Italian private citizens, and covers, in particular, the North-African cartel, in regard to which the Royal Government was not sufficiently informed when the Application was drawn up; and whereas the alternative submissions b and c, put forward in accordance with the Court's jurisprudence, are framed in view of hypotheses, among which the Court is only asked to consider the unlawful seizure of the rights appertaining to the Italians, or the gradual expropriation of the said rights; whereas submission A relates to additional compensation ; whereas such submissions, elucidated by the Memorial, suffice to enable the proceedings to be opened, without prejudice to the possibility of further elucidating the submissions during the discussion on the merits.
Whereas the ground of the Court's jurisdiction is clearly indicated in the Application ; and whereas this ground consists of the declarations of Italy and France acceding to the Optional Clause of Article 36, paragraph 2, of the Statute of the Permanent Court; and whereas there was no occasion to go into detailed explanations as to whether, and in what manner, the [p19] different parts of the claim fall within the terms of the said Article and of the two Governments' declarations, seeing that the different parts of the claim manifestly fall within one or other of the categories of disputes referred to, and relate to all these categories.
Whereas the Italian character of the claim is clear beyond all cavil, as is indeed shown by the fact that the respondent Party raised no objection on that score during the preliminary diplomatic discussions ; whereas the respondent Party has, thus, no justification for submitting that the claim should without examination be declared inadmissible ; whereas the fact and the date of the transfer of the licences from Busset and Deruis to Tassara are sufficiently proved by the letters which these three persons wrote at different times, to the Department of Mines, and by the fact that the Mines Department acknowledged and recorded this transfer; whereas M. Tassara, an Italian national, was the manager of a partnership association consisting almost entirely of Italians, the existence of which was not unknown to the Department of Mines; indeed the only non-Italians were MM. Colle-Deudon and Levy; whereas, since the partnership association did not possess a legal personality, the nationality of the manager — Tassara — is the decisive factor; whereas an association constituted at Genoa, in accordance with Italian law, under Italian control, and having a large majority of Italian members, could not be other than Italian ; whereas the successive transfers from M. Tassara to M. de Gennaro Musti and from M. de Gennaro Musti to the Miniere e Fosfati Company left the licences still in Italian hands; whereas the only circumstance capable of raising any doubt was the sale of some of the licences to the 'American and Moroccan Phosphate Corporation' ; whereas, however, nothing can be deduced from that fact in favour of the submissions of the respondent Party; whereas, indeed, a certain number of the licences remained in the hands of the Italian company, a fact which suffices to enable the Royal Government's claim to be entertained with all its submissions ; whereas the sale was soon afterwards cancelled; whereas, moreover, the unyielding attitude of the Government of the Republic made it impossible for the American company to pay even a sum on account of the purchase price, so that the Italian company still retained a substantial legal interest in a successful issue, an interest which is sufficient warrant for the extension of the Royal Government's claim to all the licences.
Whereas the preliminary diplomatic negotiations covered the whole of the controversy submitted to the Court; whereas the Respondent, in affirming the contrary in so far as concerns the general measures establishing and organizing the phosphates monopoly and the North-African cartel, overlooks the positive statements made to it by the interested parties, by the Italian Embassy and by the Royal Government's Agent ; whereas it also overlooks the demarches sought to be made in Rome and the two notes, one of which was handed to M. Laval on the occasion of his visit to Rome and the other to the Quai d'Orsay by the Italian Ambassador. [p20]
Whereas the rule concerning the previous exhaustion of local remedies does not apply in this case, because the Respondent has definitely refused the means of redress by way of petition and seeks to take advantage of the lacunae in the judicial organization of Morocco which affords no adequate remedy in respect of administrative decisions taken in the exercise of discretionary powers and amounting to a misuse of powers; whereas the Respondent has sought unsuccessfully to establish that the decision of the Mines Department on the question whether the deposits were new and workable was only given in the exercise of the Administration's non-discretionary powers; and again has sought unsuccessfully to make out that in this case the only possible issue is a simple mistake of fact; and as all the assertions made in the document presented by the other side with regard to these two aspects of the controversy overlook the actual facts and disregard the most positive teachings of French legal doctrine.
Whereas the facts and situations in regard to which the dispute arose are not anterior to the date on which the acceptance of the Court's jurisdiction became effective as between the two States ; whereas the controversy relates either to facts which actually occurred after the date referred to or to permanent situations which still persist at the present time ; whereas furthermore these facts and situations taken together constitute an unlawful, continuing and progressive course of action (the monopolization of the phosphates) which falls within the Court's compulsory jurisdiction on two grounds : first, because it was completed at a date subsequent to the crucial date, and secondly because it gives rise to a situation of wider aspect which still constitutes a continuing violation of international law.
For these reasons and for any others which may be submitted or which the Court may see fit to add or to substitute,
May it please the Court to adjudge and declare that the Application filed on March 30th, 1936, by the Royal Italian Government can be entertained in its entirety."

[8] At the request of the Agent for the French Government, the Court, on September 20th, 1937, made an Order authorizing that Agent, under Article 62, paragraph 4, of the Rules, to file a written answer to the observations and submissions contained in the statement of the Italian Government within a time-limit expiring on November 17th, 1937 ; the Court at the same time stated that if need be it would make a subsequent order fixing a time-limit for the filing by the Agent for the Italian Government of written observations in regard to this answer.

[9] The French Government's Answer was duly filed within the prescribed time-limit.

[10] At the request of the Agent for the Italian Government, the President of the Court made an Order on December 8th, 1937, fixing February 21st, 1938, as the date for the expiry of the time-limit for the filing by that Agent of written Observations in regard to the Answer of the French Government. [p21]

[11] The Further Written Observations of the Italian Government were duly filed on February 21st, 1938 ; accordingly, on that date the case became ready for hearing in regard to the objections lodged by the French Government.

[12] In the course of public sittings held on May 2nd, 3rd, 4th, 5th, 6th, 10th, 10th, 12th, 13th, 14th and 16th, 1938, the Court heard:
M. Basdevant, Agent, and Me. Lémonon, Assistant Agent, on behalf of France, and
M. Montagna, Agent, and M. Ago, Counsel, on behalf of Italy.

[13] The submissions formulated in the documents of the written proceedings were not in substance amended on either side in the course of the oral proceedings.

[14] Documents in support of their contentions were filed on behalf of each Party [FN1].

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[FN1] See list in Annex
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[15] The above being the state of the proceedings, the Court must now adjudicate upon the preliminary objections lodged by the French Government.

***

[16] The facts and circumstances out of which the dispute between Italy and France originated are set out in the Application of the Italian Government. Without expressing any opinion upon the divergencies of view to which these facts and circumstances gave rise between the Parties, the Court, in referring to this statement, may, for the purposes of the present judgment which is limited to the question of its jurisdiction, confine itself to considering those the existence and date of which are not disputed.

***

[17] The French Government has in the first place drawn the attention of the Court to certain obscurities relating to the nature of the claim. The Court considers that the explanations furnished in the course of the written and oral proceedings enable it to form a sufficiently clear idea of the nature of the claim submitted in the Italian Government's Application.

[18] Among the preliminary objections which the French Government has lodged against the admissibility of the Application is one which contests, in regard to the Application as a whole, the compulsory jurisdiction of the Court, as established between France and Italy by the declarations of the two Governments.

[19] The Court must therefore first adjudicate upon this objection in order to satisfy itself as to the grounds of its jurisdiction.

[20] The declaration by which France accepted the Court's compulsory jurisdiction, and of which the ratification was deposited on April 25th, 1931, was worded as follows: [p22]

[Translation.]

"On behalf of the Government of the French Republic and subject to ratification I accept as compulsory ipso facto and without special agreement, in relation to other Members or States accepting the same obligation, the jurisdiction of the Court, in conformity with Article 36, paragraph 2, of the Statute of the Court for a period of five years, in any disputes which may arise after the ratification of the present declaration with regard to situations or facts subsequent to such ratification and which it has not been possible to settle by conciliation proceedings or through the Council under Article 15, paragraph 6, of the Covenant, without prejudice to a case where the Parties have agreed or shall agree to have recourse to another method of settlement by arbitration. This declaration replaces the declaration of October 2nd, 1924, which has lapsed."

[21] The French Government bases its objection on the following passage in its declaration :

".... in any disputes which may arise after the ratification of the present declaration with regard to situations or facts subsequent to this ratification".

[22] It maintains that the dispute which the Royal Government of Italy has submitted to the Court arose with regard to situations and facts which are not covered by those terms.

[23] The declaration by which Italy accepted the Court's compulsory jurisdiction, and of which the ratification was deposited on September 7th, 1931, is as follows:

[Translation]

The Italian Government declares that it recognizes as compulsory ipso facto in relation to any other Member or State accepting the same obligation, for a period of five years and without prejudice to any other method of settlement provided for in a special convention and if a solution through the diplomatic channel or by proceedings before the Council of the League of Nations should not be reached, the jurisdiction of the Court in the following classes of legal disputes arising after the ratification of the present declaration and relating to

(a) the interpretation of a treaty;
(b) any question of international law ;
(c) the existence of any fact which, if established, would constitute a breach of an international obligation ;
(d) the nature or extent of the reparation to be made for the breach of an international obligation."

[24] This declaration does not contain the limitation that appears in the French declaration concerning the situations or facts with regard to which the dispute arose ; nevertheless, as a consequence of the condition of reciprocity stipulated in paragraph 2 of Article 36 of the Statute of the Court, it is recognized that this limitation holds good as between the Parties.

[25] The terms of the French declaration limit the scope of France's acceptance of the Court's compulsory jurisdiction ratione temporis. This limitation is twofold. It relates in the first place to the [p23] date on which the actual dispute arose. That point is not, however, the subject of the objection raised by the French Government; the latter does not, indeed, deny that the dispute arose after the ratification of the declaration. There is no need, therefore, for the Court to concern itself with that point.

[26] The second limitation in the declaration relates to the date of the situations or facts with regard to which the dispute arises. It is on this limitation that the French Government relies when it contends that the situations and facts giving rise to the present dispute were prior to the date of its acceptance of the compulsory jurisdiction — the date hereinafter referred to as the "crucial date" — and that, in consequence, the Application of the Italian Government cannot be entertained.

[27] This view is contested by the Italian Government, which maintains that the dispute arises from factors subsequent to France's acceptance of the compulsory jurisdiction, first because certain acts, which considered separately are in themselves unlawful international acts, were actually accomplished after the crucial date ; secondly, because these acts, taken in conjunction with earlier acts to which they are closely linked, constitute as a whole a single, continuing and progressive illegal act which was not fully accomplished until after the crucial date ; and lastly, because certain acts which were carried out prior to the crucial date, nevertheless gave rise to a permanent situation inconsistent with international law which has continued to exist after the said date.

[28] In presence of these contentions, the Court has to interpret the terms -of the French Government's declaration on which the preliminary objection is founded, and to consider whether, having regard to their dates, the situations or facts relied upon by the Italian Government as constituting the subject of the dispute and engaging the international responsibility of France are excluded by the limitation which the French Government inserted in its acceptance of the compulsory jurisdiction.

[29] The declaration, of which the ratification was deposited by the French Government on April 25th, 1931, is a unilateral act by which that Government accepted the Court's compulsory jurisdiction. This jurisdiction only exists within the limits within which it has been accepted. In this case, the terms on which the objection ratione temporis submitted by the French Government is founded, are perfectly clear: the only situations or facts falling under the compulsory jurisdiction are those which are subsequent to the ratification and with regard to which the dispute arose, that is to say, those which must be considered as being the source of the dispute. In these circumstances, there is no occasion to resort to a restrictive interpretation that, in case of doubt, might be advisable in regard [p24] to a clause which must on no account be interpreted in such a way as to exceed the intention of the States that subscribed to it.

[30] Not only are the terms expressing the limitation ratione temporis clear, but the intention which inspired it seems equally clear : lit was inserted with the object of depriving the acceptance of the compulsory jurisdiction of any retroactive effects, in order both to avoid, in general, a revival of old disputes, and to preclude the possibility of the submission to the Court by means of an application of situations or facts dating from a period when the State whose action was impugned was not in a position to foresee the legal proceedings to which these facts and situations might give rise.

[31] The French declaration mentions situations or facts. The Court is of opinion that the use of these two terms shows the intention of the signatory State to embrace, in the most comprehensive expression possible, all the different factors capable of giving rise to a dispute. The Court also observes that the two terms "situations" and "facts" are placed in conjunction with one another, so that the limitation ratione temporis is common to them both, and that the employment of one term or of the other could not have the effect of extending the compulsory jurisdiction. The situations and the facts which form the subject of the limitation ratione temporis have to be considered from the point of view both of their date in relation to the date of ratification and of their connection with the birth of the dispute. Situations or facts subsequent to the ratification could serve to found the Court's compulsory jurisdiction only if it was with regard to them that the dispute arose.

[32] The principal duty of the Court is to examine the conditions which determine whether the objection submitted by the French Government is well-founded. The question whether a given situation or fact is prior or subsequent to a particular date is one to be decided in regard to each specific case, just as the question of the situations or facts with regard to which the dispute arose must be decided in regard to each specific case. However, in answering these questions it is necessary always to bear in mind the will of the State which only accepted the compulsory jurisdiction within specified limits, and consequently only intended to submit to that jurisdiction disputes having actually arisen from situations or facts subsequent to its acceptance. But it would be impossible to admit the existence of such a relationship between a dispute and subsequent factors which either presume the existence or are merely the confirmation or development of earlier situations or facts constituting the real causes of the dispute.

[33] It is with these considerations in mind that the Court has now to consider whether the dispute that forms the subject of [p25] the Italian Government's Application arose with regard to situations or facts subsequent to the crucial date.

[34] The precise determination of that date gave rise to some debate between the Parties. The French Government placed it on September 7th, 1931, the date on which its declaration, being subject to reciprocity, became operative in regard to Italy, as a result of the deposit of the latter's ratification ; on the other hand, the Italian Government declared for the date of the deposit of the French instrument of ratification, namely, April 25th, 1931, contending that the limitation ratione temporis only appeared in the declaration of France. The date preferred by one or other of the Governments would not in any way modify the conclusions which the Court has reached. It does not therefore feel called upon to express an opinion on that point.

[35] The subject of the dispute has been presented by the Italian Government under two separate aspects: a general aspect, covered by submission (a) of the Application, which is concerned with what that Government describes as the "monopolization of the Moroccan phosphates", in other words a whole group of measures which are represented as being contrary to the international obligations of Morocco and of France: dahirs of January 27th and August 21st, 1920; expropriation of the Italian nationals, regarded in this case as an element in or expression of the policy of monopolization ; participation of the Moroccan Administration in the North-African phosphate cartel. The latter complaint, which does hot appear in the Application, was put forward only in the subsequent documents.

[36] The more limited aspect of the dispute, which is presented alternatively in submission (b) of the Application, relates to the decision of January 8th, 1925, in which the Department of Mines rejected M. Tassara's claim, and to the alleged denial of justice to him and his successors : these measures are also included under the general designation "monopolization of phosphates", but are put forward, in this submission (b), as contrary to the international obligation to respect the vested rights of the Italian nationals.

[37] — What the Italian Government refers to as the "monopolization of the Moroccan phosphates" has been consistently presented by that Government as a regime instituted by the dahirs of 1920, which, by reserving to the Maghzen the right to prospect for and to work phosphates, have established a monopoly contrary to the international obligations of Morocco and of France. It contends that this regime, being still in operation, constitutes a situation subsequent to the crucial date, and that this situation therefore falls within the Court's compulsory jurisdiction.

[38] The Court cannot accept this view. The situation which the Italian Government denounces as unlawful is a legal position [p26] resulting from the legislation of 1920; and, from the point of view of the criticism directed against it, cannot be considered separately from the legislation of which it is the result. The alleged inconsistency of the monopoly regime with the. international obligations of Morocco and of France is a reproach which applies first and foremost to the dahirs of 1920 establishing the monopoly. If, by establishing the monopoly, Morocco and France violated the treaty regime of the General Act of Algeciras of April 7th, 1906, and of the Franco-German Convention of November 4th, 1911, that violation is the outcome of the dahirs of 1920. In those dahirs are to be sought the essential facts constituting the alleged monopolization and, consequently, the facts which really gave rise to the dispute regarding this monopolization. But these dahirs are "facts" which, by reason of their date, fall outside the Court's jurisdiction.

[39] The Italian Government has nevertheless sought to bring the complaint concerning monopolization within the Court's compulsory jurisdiction by presenting it as a continuing and progressive unlawful action which has only been completed by certain acts subsequent to the crucial date : a denial of justice alleged to have been suffered by M. Tassara and his successors in 1931-1933 and the participation of the Moroccan Phosphates Administration in the North-African phosphates cartel in 1933-1934.

[40] The Court will state its opinion regarding the alleged denial of justice later on in this judgment. As regards the participation of the Moroccan Phosphates Administration in the phosphates cartel, the Court has already observed that that is a point which was not mentioned as a subject of dispute in the Application instituting proceedings; which was referred to in the Italian Government's Memorial mainly from a historical point of view — but which was finally described, in the Italian Government's later documents, as the culminating point of the policy of monopolization.

[41] It should be observed that neither the formation of the phosphates cartel nor the participation in this cartel of the Moroccan Phosphates Administration have been presented by the Italian Government as facts which, in themselves, and alone, would constitute ground for any dispute between Italy and France. The participation in the cartel is presented as a part of the monopolization of phosphates : it is described as the final step and crowning point of that policy. In the continuing and progressive violation constituted by the successive actions of the French Government, it is said to mark the final accomplishment of the unlawful design underlying these actions. It is alleged that, on this ground and by reason of its date, it involves all the actions of the Shereefian Administration and [p27] of the French Government since 1920 and that this justifies the submission of all these actions to the Court's compulsory jurisdiction.

[42] The Court cannot admit the existence of the connection which the Italian Government seeks thus to establish between the phosphates cartel and the alleged monopolization of phosphates. The subject of the dispute between the Italian Government and the French Government is the alleged infringement, resulting from the monopoly, of the regime of economic liberty without inequality, which the Italian Government holds to have been imposed by the agreements in force. The participation of the Moroccan Phosphates Administration in the cartel did not result in withdrawing phosphates from the operation of this regime. It in no way altered the situation which had been established in this respect ever since 1920 by the monopoly, which alone could form the subject of complaint in this connection. The monopoly may have made the participation in the cartel possible ; but this participation does not in any way affect the legality or illegality of the monopoly.

[43] II. — Regarded from its more restricted aspect — the aspect envisaged in submission (b) of the Application instituting proceedings — the dispute between the two Governments relates to the alleged dispossession of certain Italian nationals as the result of the decision of the Mines Department of January 8th, 1925, and of the denial of justice alleged to have followed that decision, these facts being alleged to be inconsistent with the international obligation incumbent on Morocco and on France to respect vested rights.

[44] The Italian Government does not deny that the alleged dispossession of M. Tassara results from the Mines Department's decision of 1925, and for that reason it seeks to obtain the annulment of that decision and the reinstatement of M. Tassara's successors in the rights of which M. Tassara is alleged to have been illegally deprived.

[45] This decision of the Mines Department, owing to its date, falls outside the Court's jurisdiction. The Italian Government has sought to avert this consequence by arguing that the dispossession of M. Tassara and his successors only became definitive at a time subsequent to the crucial date. That Government contends that the decision of 1925 constituted only an uncompleted violation of international law ; that this violation only became definitive as a result of certain acts subsequent to the crucial date and of the final refusal to remedy in any way the situation created in 1925, and that these acts gave rise to the dispute between the two Governments.

[46] In arguing thus, the Italian Government has relied mainly on a note of the French Ministry for Foreign Affairs to the [p28] Italian Embassy dated January 28th, 1933, and a letter of the same date sent by the same Ministry to M. de Gennaro Musti; it has tried to make out that this note and this letter constitute both an official interpretation of the alleged vested rights of the Italian nationals — an interpretation inconsistent with the international obligations of France — and a confirmation of the denial of justice to those nationals already effected by the refusal of a petition for redress.

[47] It is impossible in the statements contained in these documents to find any new fact which could have given rise to the present dispute between Italy and France. This exchange of views merely represents a phase in the discussion which had arisen between M. Tassara's successors and the French Government, in which discussion the Italian Government, until June 16th, 1933, merely lent its good offices. Similarly, the refusal to accede to the request to submit the dispute to extraordinary judges is merely a refusal to settle this particular dispute in a certain way, and it is not contended by the Italian Government that this refusal, in itself, constitutes an unlawful international act giving rise to a new dispute.

[48] The Court cannot regard the denial of justice alleged by the Italian Government as a factor giving rise to the present dispute. In its Application, the Italian Government has represented the decision of the Department of Mines as an unlawful international act, because that decision was inspired by the will to get rid of the foreign holding and because it therefore constituted a violation of the vested rights placed under the protection of the international conventions. That being so, it is in this decision that we should look for the violation of international law — a definitive act which would, by itself, directly involve international responsibility. This act being attributable to the State and described as contrary to the treaty right of another State, international responsibility would be established immediately as between the two States. In these circumstances the alleged denial of justice, resulting either from a lacuna in the judicial organization or from the refusal of administrative or extraordinary methods of redress designed to supplement its deficiencies, merely results in allowing the unlawful act to subsist. It exercises no influence either on the accomplishment of the act or on the responsibility ensuing from it.

[49] As regards the argument that the dispossession of M. Tassara and his successors constituted a permanent illegal situation which, although brought about by the decision of the Department of Mines, was maintained in existence at a period subsequent to the crucial date by the denial of justice to the claimants, the Court need only recall the principle which it has set forth above : the complaint of a denial of justice cannot be separated from the criticism which the Italian Government [p29] directs against the decision of the Department of Mines of January 8th, 1925, for the Court could not regard the denial of justice as established unless it had first satisfied itself as to the existence of the rights of the private citizens alleged to have been refused judicial protection. But the Court could not reach such a conclusion without calling in question the decision of the Department of Mines of 1925. It follows that an examination of the justice of this complaint could not be undertaken without extending the Court's jurisdiction to a fact which, by reason of its date, is not subject thereto.

[50] Accordingly, whatever aspect of the question is considered, it is the decision of the Department of Mines of January 8th, 1925, which is always found, in this matter of the dispossession of the Italian nationals, to be the fact with regard to which the dispute arose.

[51] In conclusion, the Court finds that the dispute submitted to it by the Italian Government, whether regarded in its general aspect, represented by the alleged monopolization of the Moroccan phosphates, or in its more limited aspect, represented by the claim of the Italian nationals, did not arise with regard to situations or facts subsequent to the ratification of the acceptance by France of the compulsory jurisdiction, and that in consequence it has no jurisdiction to adjudicate on this dispute.

[52] The Court, having arrived at this conclusion, does not feel called upon to adjudicate on the other objections submitted by the French Government.


[53] FOR THESE REASONS,
The Court,
by eleven votes to one,
decides that the Application filed on March 30th, 1936, by the Italian Government cannot be entertained.

[54] The present judgment has been drawn up in French and English, the French text being authoritative. [p30]

[55] Done at the Peace Palace, The Hague, this fourteenth day of June, one thousand nine hundred and thirty-eight, in three copies, one of which will be deposited in the archives of the Court and the others will be communicated to the Government of the French Republic and to the Royal Italian Government, respectively.

(Signed) J. G. Guerrero,
President.
(Signed) J. López Oliván,
Registrar.

[56] Jonkheer Van Eysinga declares that he is unable to concur in the judgment given by the Court and, availing himself of the right conferred upon him by Article 57 of the Statute, has appended to the judgment the separate opinion which follows.

[57] M. Cheng Tien-Hsi, while in agreement with the operative clause of the judgment, has appended a separate opinion regarding some of the grounds on which the judgment is based.

(Initialled) J. G. G.
(Initialled) J. L. O. [p31]

Dissenting Opinion by Jonkheer Van Eysinga.

[Translation.]

[58] The Italian Application of March 30th, 1936 — the admissibility of which is disputed by the French Government's six preliminary objections, in addition to any others which, as indicated in the French submissions of December 14th, 1936, the Court might see fit to add or substitute — is directed against a situation which the Italian Government alleges to be an infraction of certain clauses of the General Act of Algeciras of April 7th, 1906, as modified in consequence of the acceptance of the Franco-German Treaty of November 4th, 1911, by the contracting States of the Act of Algeciras. The Application begins by a reference to the relevant articles of the above-mentioned diplomatic instruments ; it goes on to show how these clauses have been transgressed by acts of three different kinds, these "proceedings" being described in the Application as "a continuing and permanent unlawful act", and as a "monopolization of the Moroccan phosphates"; the latter, according to the main Italian submission, is inconsistent with the international obligations of Morocco and of France and should for that reason be annulled with all the consequences that ensue.

[59] The submission of this claim by Italy is to be ascribed to the fact that the administration of the Shereefian Empire is in a large measure governed by international arrangements and that a considerable part of that Empire is under French protection.

*

[60] Morocco was a sovereign State with an extraterritorial regime, which included among other features a certain number of collective conventions by which the Powers interested in the Shereefian Empire regulated, in conjunction with the latter, such matters as appeared to call for regulation. In this connection we may note the collective Convention of Tangier of 1865 concerning the Cape Spartel Lighthouse, also the Madrid Convention of 1880 relating, among other matters, to "protected persons" in Morocco, Article 17 of which Convention assured the most-favoured-nation treatment to all the Powers represented at the Madrid Conference. It was on the basis of that clause that the Algeciras Conference was convened in 1906. The General Act of Algeciras of April 7th, 1906, which emerged from that Conference, endowed Morocco with a regime internationalizing a large part of the administration of the Shereefian Empire in a twofold sense. Twofold because, in the first [p32] place, the status of Morocco has an international basis, i.e., it is a collective convention ; and secondly, because the clauses of the Algeciras Act which provide for economic freedom, without any inequality — and hence for the open door — were implemented by international arrangements, in the application of which the diplomatic Corps at Tangier and international commissions played an important part. Thus, for example, the dahir of January 19th, 1914, which regulates the prospecting and working of mines in the French Protectorate zone of the Shereefian Empire and which contains special clauses in regard to prospecting for and working phosphates, was drawn up in pursuance of international arrangements.

[61] In 1912, the international status of the Shereefian Empire underwent an important change. The Powers then accepted the preponderance of France, on condition however that there should be no departure from the principle of the open door. The preponderance of France found expression in the Franco-Moroccan Protectorate Convention of March 30th, 1912, to which the Powers were asked to accede.

[62] It will be seen from the foregoing that the regime of the Moroccan Protectorate is more complicated than that found where a single Colonial Power has to deal with a protected State. Many of the clauses of the Algeciras Act have continued to be applicable since 1912, as M. Basdevant has pointed out in his remarkable treatise "Die Entwickelung der Marokko-Frage" (Jahrbuch des Völkerrechts, I, pp. 742 et sqq.). Disregarding the Spanish and Tangier zones, the case we have to consider is that of a State, whose international status is in a large measure determined by collective conventions and which is under the protection of one of the States parties to these conventions.

[63] The Protectorate Convention of 1912 between France and Morocco provides that, for all questions concerning relations between the Shereefian Empire and foreign Powers, France shall be competent. It is, apparently, owing to this situation that the Italian Application, although it makes a distinction between the interests and international obligations of Morocco, on the one hand, and those of France, on the other hand (see also the Italian Memorial, p. 59, No. 44, last para.), is directed solely against France, who, as is indeed said in the Application, has incurred a twofold responsibility : an indirect responsibility as the State protecting Morocco, and a personal and direct responsibility arising from the acts performed by the French authorities or in co-operation with them, for the benefit of purely French interests. France did not demur to this attitude, except perhaps when the French Agent said: "Nor will I dwell on the demand which seeks to make the Government of the French Republic exercise powers of annulment [p33] in regard to these acts" (i.e., all the acts which France and Morocco have performed with a view to effecting the monopolization of phosphates, in particular, the acts instituting the monopoly and the cartel, the decision of 1925 refusing to acknowledge Tassara as discoverer, and the other acts incompatible with the restoration of economic liberty in regard to Moroccan phosphates) "which she does not possess, and which the Protectorate regime recognized by the Italian Government does not allow her to exercise" (Oral Pleadings, I, p. 101).

*

[64] As has already been observed, the main Italian claim is therefore directed against a series of "proceedings", mentioned in the Application and said to constitute "a continuing and permanent unlawful act", the "monopolization of the Moroccan phosphates". This monopolization, according to the Italian Application, involves the international responsibility of France, under three different aspects : the first aspect being the creation of the monopoly, said to be contrary to the principle of the open door laid down in the Act of Algeciras, and to Article 112 of that Act, which prescribes the system of concessions for mines, mining works and quarries; the second aspect being the Department of Mines' decision of January 8th, 1925, against the Italian claimants which is characterized as ultra vires, and constituting a misuse of power; and the third aspect being the obstacles which were placed in the way of the Italian claimants when they sought to obtain a reversal of the Department of Mines' decision, this being alleged to constitute an actual denial of justice.

*

[65] In the last of its six preliminary objections, that upon which the Court has adjudicated, France has objected to the Italian Application on the ground that the dispute which Italy has submitted to the Court has arisen in regard to situations and facts prior to September 7th, 1931 ; that, accordingly, it falls outside the scope of the Court's compulsory jurisdiction ; and hence that the Italian Application cannot be entertained. This preliminary objection in fact denies the jurisdiction of the Court.

[66] The question whether the Court's compulsory jurisdiction exists in the present case is the same as the question whether the Italian-French dispute falls within the scope of the French declaration of September 19th, 1929. It should be observed in that connection that France does not found her argument on the Italian declaration of September 9th, 1929 — the text of which, moreover, would not appear to lend itself to such reasoning. [p34]

[67] According to the French declaration, the Court has jurisdiction for "any disputes which may arise after the ratification of the present declaration with regard to situations or facts subsequent to such ratification". In order to adjudicate upon the sixth of the French preliminary objections, we have therefore to interpret the words quoted above. Disregarding a minor difference in the French declaration which speaks of "des situations" and "des faits" in place of "de"— a detail apparently of no significance —, we find the same words employed in a large number of similar declarations ; they appeared for the first time in the Belgian declaration (Sept. 25th, 1925).

[68] By the term "dispute" the French declaration means disputes between States, and not for instance the dispute between the Italian claimants and the Moroccan authorities, the latter dispute being one of the "causal facts" — a term often employed in this case — of the Italian-French dispute, from which it "arose" — another term which is also frequently used. We must beware of confusing these two kinds of disputes, and in that connection we should remember that the Italian-French dispute now before the Court did not arise before June 16th, 1933, the date on which Italy took up the cause of its nationals.

[69] Again, the French-Italian dispute arose "after the ratification of the present declaration". The latter words, in their context in the French declaration, refer to the ratification by France, the instrument of which was deposited on April 25th, 1931. And even if it were thought necessary, applying the principle of reciprocity, to be guided in this case by the date of deposit of the Italian instrument of ratification, i.e., September 7th, 1931, it would be none the less true that the dispute arose "after the ratification of the present declaration", which was necessarily earlier than the date of deposit of the instrument of ratification.

[70] The question whether the Court has jurisdiction to entertain the present suit depends, in the last analysis, on the following words of the French declaration : "with regard to the situations or the facts subsequent to such ratification". These words show that the declaration draws a distinction between situations, on the one hand, and facts, on the other hand, with regard to which disputes must arise in order to fall within the Court's jurisdiction.

[71] The submission in the Application under (a) declares that the monopolization of the Moroccan phosphates accomplished by stages, between 1920 and 1934, for the benefit of French interests, is inconsistent with the international obligations of Morocco and France and that it must, for that reason, be annulled with all the consequences that ensue. The claim refers, as was said above, to a series of "proceedings" which together constitute and are typical of the new phosphate regime in Morocco and which are described in the Application as a continuing and [p35] permanent unlawful act. This continuity and permanence of an unlawful act certainly constitutes a situation, and it is indeed with regard to that situation that the Italian-French dispute arose. It suffices to note that this situation, which Italy alleges to be inconsistent with the Act of Algeciras, existed subsequently to the ratification, in order to conclude that the Court has jurisdiction in the dispute.

[72] It has been said that the French declaration limits the Court's compulsory jurisdiction to disputes arising from situations or facts subsequent to the ratification (Oral Statements, II, p. 338), and arguing on these lines, it has been held that the French declaration makes it necessary to seek "the causal facts of the dispute", these facts being said to be prior to the ratification The idea that the French declaration only submits to the Court's compulsory jurisdiction disputes arising from situations or facts subsequent to the ratification appears again in the title of paragraph III of the French Preliminary Objections, page 81 — a title which, be it observed, makes no mention of situations, and is worded as follows : "Dispute arising out of facts prior to the acceptance of compulsory jurisdiction".

[73] It should be noted, in regard to that point, that this attempt to restrict the scope of the French declaration reads into its text something that it does not contain. The French declaration accepts the Court's jurisdiction for "any disputes which may arise .... with regard to situations .... subsequent to such ratification". Now, a dispute "which arises with regard to situations subsequent to a given date" is something different from a dispute the causal facts of which are subsequent to that date, or from a dispute which arises from a situation subsequent to that date. The attempt to interpret the French declaration in this way limits its scope in a manner which is scarcely consistent with the more general formula, used in the declaration, "with regard to" situations subsequent to the crucial date.

[74] In view of the foregoing, I consider the sixth of the French preliminary objections to be ill-founded.

[75] In the present statement I have refrained from any expression of opinion regarding the other preliminary objections formulated or envisaged in the French submissions of December 14th, 1936.

[76] I would add that, as regards the form in which the judgment is drawn up, I am unable to agree with the omission of the statement of facts which it has hitherto been the Court's practice to include in its advisory opinions as well as in its judgments, whether these relate to the merits of a case or to a preliminary objection.

(Signed) V. Eysinga. [p36]

Separate Opinion of Mr. Cheng Tien-Hsi.

[77] I agree with the conclusion of the judgment to the effect that the Application of the Italian Government cannot be entertained, but regret that I am unable to agree with some of the reasons given in the judgment, which appear to me to be of sufficient importance and make me feel that I should set out briefly my own opinion.

[78] In my opinion, the objection of the French Government based on the question of compulsory jurisdiction is valid only in so far as it relates to the part of the claim stated in submission (b) of the Application but invalid in so far as it relates to the part of . the claim stated in submission (a); while as regards the latter submission, the objection based on want of diplomatic negotiation should be upheld.

[79] So far as the decision of the Mines Department is concerned, it is right in holding that the dispute has arisen in regard to a fact anterior to the crucial date, because the decision was given in 1925. If it was wrongful, it was a wrong done in 1925. If it subsists, it subsists simply as an injury unredressed ; but it does no new mischief, infringes no new right, and therefore gives rise to no new fact or situation. Considered as a wrong, it is not an existing fact, but entirely a thing of the past. The same applies to the alleged denial of justice, because it merely relates to an old dispute, that is, the decision of 1925. To be otherwise would result in the possibility of reviving any old dispute, merely by demanding a remedy of some sort with the confident expectation that it should be refused. But the same cannot apply to the question of the monopoly. For the monopoly, though instituted by the dahir of 1920, is still existing to-day. It is an existing fact or situation. If it is wrongful, it is wrongful not merely in its creation but in its continuance to the prejudice of those whose treaty rights are alleged to have been infringed, and this prejudice does not merely continue from an old existence but assumes a new existence every day, so long as the dahir that first created it remains in force. The case of the monopoly is not at all the same as the case where an injured party has not obtained satisfaction for an alleged injury, which would be a case like the decision of 1925; nor is it merely the consequences of an illicit act, which would mean that the wrong was completed once for all at a given moment, nor is it quite the same thing as the case of a continued unlawful occupation of another's property, because in [p37] that case the violation of the owner's right took place at a definite date and the continued unlawful occupation is merely the prolonged violation of the same right of the same person, whereas the monopoly is capable of new infringements as long-as it is in force. In other words, the interpretation thus placed on the words "situations or facts subsequent to this ratification" is not based on any conception of criminal law, but arrived at purely from the plain meaning of the said words themselves and from the special nature of the subject involved. It must be remembered that the material words of the French declaration are "situations or facts subsequent to this ratification", which does not mean quite the same thing as "situations or facts created after the ratification". Consequently a situation or fact existing after the crucial date is no less a situation or fact subsequent, although it may have existed also before that date. In order to hold that a certain situation or fact is not covered by the French declaration, it is therefore necessary to show that the situation or fact is anterior to the crucial date and not enough to say that it is a legal position resulting from the legislation of 1920 or that it cannot be considered separately from the legislation of which it is the result; for the essence of the dispute is a complaint against what the Applicant has repeatedly maintained to be the "continuing and permanent" state of things at variance with foreign rights, rather than the mere fact of its creation, and, if this were ignored, one might just as well take the dispute out of the French declaration on the ground that, in the last analysis, the dispute has arisen in regard to something which cannot be considered separately from the Act of Algeciras of 1906, which is even older in date than the dahir of 1920. For these reasons, I am of the opinion that the monopoly is not a situation or fact anterior to the crucial date and, in consequence, whatever may be the merits of the claim, the dispute concerning it is not outside the jurisdiction of the Court.

[80] As to the other objection, my reasons are shortly as follows: [p38]

[81] The Italian Government maintains that, although the word "monopolization" may not have been used in the course of the diplomatic negotiations before the institution of proceedings, what constitutes the elements of monopolization has been the subject of many representations made by interested parties, e.g., by MM. de Gennaro Musti and della Luccia; by the Italian Embassy, e.g., the aide-mémoire of June 14th, 1935; and by M. Montagna, Agent of the Italian Government. But while some of these representations, such as those made by MM. de Gennaro Musti and della Luccia, could hardly be considered as diplomatic negotiations, as they were not between States, all of them really concerned the Tassara claim; and if the question of monopolization was touched, it was touched only in reference to that claim. Even in the conversations which M. Montagna had with M. de Saint-Quentin — conversations the diplomatic character of which is disputed by the French Government — the subject of the monopoly was not really in dispute but was only referred to in connection with the Tassara claim, and was a question which the Italian Government did not then intend to raise. The fact that only the Tassara claim was in dispute seems clear from the following documents:

(1) The note of the Italian Embassy dated June 16th, 1933, announcing the intention of the Italian Government "to substitute itself for the company" and "to take up its cause in order by diplomatic means with the Government of the Republic to arrive at a solution of the dispute".
(2) The letter dated October 5th, 1934, of Baron Aloisi, saying : "as representations concerning the Company Miniere e Fosfati in Morocco have led to no result, the Italian Government is compelled to lay the dispute in question before the Permanent Court of International Justice at The Hague".
(3) The aide-mémoire of the Italian Embassy dated April 8th, 1935, mentioning that M. Montagna's mission was to arrive at an understanding on the Tassara question.
(4) The mémoire of January, 1935, submitted to M. Laval and the aide-mémoire of June 14th, 1935, submitted to the Quai d'Orsay, in both of which only the Tassara claim was really dealt with, while the question of "open door" was not raised but only might be raised as a contingency.
(5) The note dated March 27th, 1936, of the Italian Embassy, referring to the dispute concerning prospecting licences. It is true that it has been argued that the said note is full of inaccuracies; nevertheless it is hard to believe that this [p39] official communication does not show what was really in dispute between the two Governments up to that moment.

[82] It has been argued that, although throughout these conversations and negotiations the Royal Government in the most conciliatory spirit declared its intention not to raise the general question of France's whole phosphates policy in Morocco, if fair treatment were meted to its nationals who had suffered from that policy, the clearest warning was given. But warning is not the same thing as negotiation. It is the essence of negotiation to discuss some question with a view to settling it, "whereas warning is merely the intimation of a will to do certain things (in this case to raise certain questions) on certain contingencies. In fact these conversations and aide-mémoire faring out clearly the point that the Tassara claim and the question of monopolization are really separate questions; for according to the conversations and aide-mémoire, if the Tassara claim were settled, the question of monopoly or monopolization could and would be left alone. It follows from this that the Tassara claim could hardly be said to be merely an element of the monopolization ; for if it were so, it would have been more logical for the conversations and aide-mémoire to deal with the question of monopolization as the main issue, a successful settlement of which would automatically bring the Tassara claim to a satisfactory conclusion. It has also been argued that, even assuming that the general question was not discussed during the diplomatic conversations, "it is none the less true that during these conversations the dispute concerning the dispossession of Tassara and his associates contrary to international engagements was in fact examined, which was merely the central component element of the monopolization of Moroccan phosphates by the protecting Power". But to call the alleged dispossession of Tassara and his associates a component element of monopolization of Moroccan phosphates is to raise the very point that the French Government denies, and is an affirmation that needs to be proved. It has also been contended in effect that if representations have already been made by interested parties on the same point that the State intends to raise before the Court and discussions have taken place, a new discussion having the same purport through the diplomatic channel would be superfluous. But so far as the subject of monopolization is concerned, the question is not whether previous representations by interested parties may have the effect of relieving the State, in taking up the dispute, from the necessity of having a diplomatic negotiation on the same subject; but whether or not there has in fact been any real representation directly on the matter, and, in view of what has [p40] been said above, it seems difficult to answer the question in the affirmative. For that reason the question of non volumus or non possumus does not really arise.

[83] In view of the foregoing observations and of the fact that the necessity of diplomatic negotiations is admitted by the Italian Government, I am of the opinion that this condition has not been fulfilled, particularly as the subject of monopolization forms the principal claim of the Application.

(Signed) Cheng Tien-Hsi. [p41]

Annex.

Documents Submitted To The Court.

I. — Documents Produced on Behalf of the French Government.

A. — During the written proceedings.

1. Letter from M. Barber to the Italian Minister for Foreign Affairs (14 XII 1900).
2. Reply from the Italian Minister for Foreign Affairs to M. Barber (16 XII 1900).
3. Letter from the Italian Minister for Foreign Affairs to M. Barber (1 XI 02).
4. Reply from M. Barber to the Italian Minister for Foreign Affairs (1 XI 02).
5. Agreement concerning Lybia and Morocco (28 X 12).
6. Dahir concerning the judicial organization of the Protectorate (12 VIII 13).
7. Mining dahir, dated 19 1 14.
8. Italy's declaration renouncing the regime of the capitulations in Morocco (9 III 16).
9. The Vizier's decree of 22 VII 19.
10. Note by the Directorate of Public Works of the Protectorate (4 VIII 19).
11. Dahir dated 27 1 20.
12. Dahir dated 7 VIII 20.
13. Dahir dated 21 VIII 20.
14. Letter from M. Combelas to Lieutenant de Férady (3 XII 12).
15. Letter from the Intendant-General Lallier du Coudray to the Director-General of Public Works in the Protectorate (20 XI 16).
16. Report by Commandant Bursaux (30 IX 17).
17. Letter from MM. Busset and Frier Deruis to the Director-General of Public Works (27 X 17).
18. Letter from General Lyautey to M. Busset (13 XI 17).
19. Letter from M. Busset to General Lyautey (6 XII 17).
20. Prospecting licence No. 459 issued to M. Busset (3 XII 18).
21. Prospecting licence No. 599 issued to M. Frier Deruis (29 IV 19).
22. Letter from M. Busset to the Head of the Department of Mines (1 XII 19).
23. Aide-memoire by the Royal Government of Italy (18 VIII 21).
24. Note from the Government of the Republic to the Italian Embassy (26 VIII 21).
25. Power of attorney granted by M. Tassara to M. Levy (27 IX 21).
26. Letter from M. Busset to the Head of the Department of Mines (3 X 21).
27. Letter from M. Frier Deruis to the Head of the Department of Mines (3 X 21).
28. Letter from M. Bossu to the Head of the Department of Mines (14 X 21).
29. Letter from MM. Bossu and Levy to the Head of the Department of Mines (14 X 21).
30. Letter from the Head of the Department of Mines to M. Bossu (17 X 21).
31. Idem (17 X 21).
32. Sommation interpellate addressed by M. Tassara to the Head of the Department of Mines (20 X 21).
33. Letter from M. Levy to the Head of the Department of Mines (30 XI 21).
34. Receipt delivered to M. Levy by the Head of the Department of Mines (2 XII 21).
35. Letter from the Head of the Department of Mines to M. Bossu (29 XII 21).
36. Letter from M. Colle to the Ministry for Foreign Affairs (19 I 22).
37. Letter from M. Bossu to the Head of the Department of Mines (15 II 22).
38. Letter from M. Levy to the Head of the Department of Mines (27 II 22).
39. Letter from the Head of the Department of Mines to M. Levy (1 III 22).
40. Idem (18 III 22). [p42]
41. Letter from M. Bossu to the Head of the Department of Mines (22 III 22).
42. Letter from the Head of the Department of Mines to M. Levy (31 V 22).
43. Letter from M. Bossu to the Head of the Department of Mines (2 VI 22).
44. Letter from M. Levy to the Head of the Department of Mines (7 VIII 22).
45. Letter from the Head of the Department of Mines to M. Levy (16 VIII 22).
46. Letter from M. Levy to the Head of the Department of Mines (15 IX 22).
47. Note from the Ministry for Foreign Affairs to the Italian Embassy (7 V 23).
48. Opinion of the Conseil général des Mines de France (22 VI 23).
49. Decision of the Head of the Department of Mines rejecting M. Tassara's request (8 I 25).
50. Letter from the Head of the Department of Mines to M. Tassara (9 I 25).
51. Letter from the Head of the Department of Mines to M. Colle-Deudon (26 III 25).
52. Letter from M. Tassara to the Head of the Department of Mines (28 III 25).
53. Letter from M. Vinck to the Resident-General of the Republic in Morocco (3 IV 25).
54. Letter from the Head of the Department of Mines to M. Tassara (6 IV 25).
55. Letter from M. Vinck to the Resident-General (30 IV 25).
56. Letter from M. Tassara to the Head of the Department of Mines (20 V 25).
57. Letter from M. Colle-Deudon to the Minister of Justice (9 IV 25).
58. Letter from M. Tassara to the Head of the Department of Mines (12 IX 25).
59. Note from the Belgian Consulate at Casablanca (27 VI 27).
60. Note from the General-Resident's Office to the Belgian Consulate at Casablanca (18 VII 27).
61. Note drawn up by M. François Mazelie for the Resident-General (8 I 29).
62. Letter from M. de Gennaro Musti to the Resident-General (16 II 29).
63. Sommation interpellate delivered on behalf of M. Tassara to the Head of the Department of Mines (2 V 29).
64. Letter from M. Chapus to the Resident-General (3 V 29).
65. Letter from M. Colle-Deudon to the Resident-General (20 VI 29).
66. Idem (22 IX 29).
67. Letter from M. de Gennaro Musti to the Ministry for Foreign Affairs (18 X 30).
68. Note from the Italian Embassy to the Ministry for Foreign Affairs, with documents attached (28 XI 30).
69. Letter from M. Colle-Deudon to the Resident-General (5 III 31).
70. Letter from M. de Henseler to M. Urbain Blanc (3 VI 31).
71. Letter from M. Colle-Deudon to the Resident-General (23 VI 31).
72. Letter from the Resident-General to M. de Henseler (26 VI 31).
73. Letter from M. de Gennaro Musti to the Ministry for Foreign Affairs (30 VI 31).
74. Letter from M. de Gennaro Musti to the Director-General of Public Works of the Protectorate (20 VIII 31).
75. Note from the Italian Embassy to the Ministry for Foreign Affairs (25 XI 31).
76. Letter from the Resident-General to M. de Gennaro Musti (25 XI 31).
77. Sommation addressed by M. Olinto della Luccia to the Director of the Shereefian Phosphates Office (12 VII 32).
78. Note from the Italian Embassy to the Ministry for Foreign Affairs (15 VII 32).
79. Minutes of the general meeting of the Miniere e Fosfati Company, and notification, dated 19 VIII 32, by M. de Gennaro Musti to the Ministry for Foreign Affairs (4 VIII 32).
80. Note from the Ministry for Foreign Affairs to the Italian Embassy (22 VIII 32).
81. Letter from M. de Gennaro Musti to the Ministry for Foreign Affairs (7 IX 32).
82. Note from the Italian Embassy to the Ministry for Foreign Affairs (22 XI 32).
83. Letter from M. de Gennaro Musti to the Ministry for Foreign Affairs (25 XI 32).
84. Letter from Mr. Manley to the Ministry for Foreign Affairs (18 I 33).
85. Note from the Ministry for Foreign Affairs to the Italian Embassy (28 I 33).
86. Letter from the Ministry for Foreign Affairs to M. de Gennaro Musti (28 I 33).
87. Letter from M. de Gennaro Musti to the Ministry for Foreign Affairs (6 II 33).
88. Idem (19 II 33). [p43]
89. Aide-mémoire from the Embassy of the United States of America to the Ministry for Foreign Affairs (21 II 33).
90. Note from the Ministry for Foreign Affairs to the Embassy of the United States of America (21 III 33).
91. Letter from Mr. Chambers to the Shereefian Phosphates Office (28 III 33).
92. Note from the Embassy of the United States of America to the Ministry for Foreign Affaiis (29 III 33).
93. Letter from M. de Gennaro Musti to the Grand Vizier of H.M. the Sultan of Morocco (30 III 33).
94. Letter from M. de Gennaro Musti to the Resident-General (4 IV 33).
95. Letter from the Ministry for Foreign Affairs to M. de Gennaro Musti (10 V 33).
96. Note from the Italian Embassy to the Ministry for Foreign Affairs (16 VI 33).
97. Note from the Ministry for Foreign Affairs to the Italian Embassy (12 VIII 33).
98. Notification by Mr. Manley to the Shereefian Phosphates Office (6 X 33).
99. Letter from Mr. Chambers to the Shereefian Phosphates Office (23 XI 33).
100. Idem (7 XII 33).
101. Letter from the Resident-General to Mr. Chambers (22 XII 33).
102. Note from the Italian Embassy to the Ministry for Foreign Affairs (2 I 34).
103. Letter from Mr. Chambers to the Resident-General (16 II 34).
104. Note from the Ministry for Foreign Affairs to the Italian Embassy (10 III 34).
105. Aide-mémoire from the Italian Embassy to the Ministry for Foreign Affairs (14 VI 35).
106. Note from the Italian Embassy to the Ministry for Foreign Affairs (27 III 36).
107. Judgment given by the Marrakech Tribunal and decision given by the Court of Rabat (20 II and 7 VII 36).
108. Voyages au Maroc (1901-1907), by A. Brives (extracts).
109. Proceedings of the Académie des Sciences on 14 IV 19 (extracts).
110. Letter from M. Combelas to the Resident-General (22 XI 12).
111. Letter from the Director-General of Public Works to M. Combelas (30 XI 12).
112. Letter from M. Busset to the Director of Public Works (20 IX 13).
113. Idem (20 IX 13).
114. Idem (21 X 13).
115. Telegram from the "Residence Rabat" to the "Region Chaouia" (7 XII 12).
116. a. Letter from M. Busset to the Resident-General (12 VII 13).
b. Letter from the Resident-General to M. Busset (VII 13).
117. Awards of the Arbitral Commission for Mining disputes on applications 280 F, 47 and 43, 121 to 125, etc., and 229 (extracts).
118. Awards of the Arbitral Commission for Mining disputes on applications 299, 23 and 43 F (extracts).
119. a. Publications du Bureau d'études géologiques et minières coloniales : "The mineral resources of France Overseas : Phosphates" (extracts from an article by A. Beauge).
b. Certificate of Captain Gourcerol (24 11 22).
c. Letter of Colonel Emanuelli to the Head of the Mines Department (10 X 37).
120. Letter of M. Delure to the Secretary-General of the Protectorate (29 IX 17).
121. Register of the Mines Department Nos. 394 and 449.
122. Bordereau 3442 (transmission to the Director-General of Finance of a letter from the Director-General of Public Works) (4 X 17).
123. Works carried out by the Administration (1918-1920).
124. The Ferrier-Busset agreement (25 XI 19).
125. Acknowledgment by M. Frier Deruis of receipt of licence 593 (5 V 19).
126. Letter from M. Frier Deruis to the Mines Department (undated).
127. Letter from M. Lantenois to M. Frier Deruis (26 x 20).
128. The Despujols report on the application for recognition as discoverer made by M. Ferrier (extracts) (24 IV 23).
129. Four reports of the Governing Body of the Shereefian Phosphates Office, 1921 to 1924 inclusive (extracts).
130. Decree of 25 in 1898 (Official Gazette of the Governor-General of Algeria, year 1898, p. 298).
131. Beylical decree of 1 XII 1898 (extracts). [p44]
132. a and b. Letters of the Directors of the Mines Department of Tunisia and Algeria to the Director of the Mines Department of Morocco (extracts) (11 IX and 6 X 37).
133. Letter from M. Delure to M. Savry (16 IV 19).
134. Dahir approving the contract for the concession of the port of Safi to the Shereefian Phosphates Office (3 VIII 32).
135. Agreement concerning the construction of the branch railway serving the Beni Ghirane mine (extracts) (6 III 37).
136. Cours d'exploitation des mines, by H. de la Goupillière ; Traité de Métallogénie, by L. de Launay ; and État actuel des connaissances sur la géologie du Maroc français, by J. Savornin (extracts).
137. "Note préliminaire sur les vertébrés fossiles des phosphates du Maroc", by Arambourg, in the Bulletin de la Société géologise de France, fasc. 67, 1935 (extracts).
138. a and b. Letter and memorandum of the Italian Ambassador in Paris to the Secretary-General of the Ministry for Foreign Affairs (8 IV 35).

B. — At the oral proceedings.

1. General map of Morocco (1/1.000.000) showing the phosphate basin.
2. Map showing the various phosphate basins in Morocco.
3. Map showing the area defined by M. Combelas in his statement on 3 XII 12.
4. Map showing the area originally asked for by M. Combelas on 3 NX 12.
5. Map of the Beni Meskine plateau.
6. Map showing the site of the quarry where phosphates were found by Major Bursaux in January 1917.
7. Three photographs of this quarry and its site.
8. Two maps showing the Busset and Frier Deruis areas.
9. Plan showing the work done in the Busset areas.

10. Map showing the works of the Shereefian Mines Department and those carried out in the Busset areas.
11. Note of M. Arambourg, professor at the Museum of France.
12. Letter from M. Tissier, Vice-President of the Conseil D'ETAT, to the Secretary-General of the French Ministry for Foreign Affairs (1 IX 37).

II. — Documents Filed on Behalf of the Italian Government.

A. — Documents filed during the written proceedings1.
1. Letter from M. Busset to the Director-General of Public Works (27 X 17).
2. General Lyautey's reply (13 XI 17). [p45]
3. M. Busset's reply (undated).
4. Preamble and relevant articles of the General Act of Algeciras of 7 IV 06.
5. Franco-German Treaty of 4 XI 11.
6. Relevant articles of the French mining law of 21 IV 1810.
7. Relevant articles of the dahir of 19 I 14 containing the Moroccan Mining Regulations.
8. Vizier's decree of 22 VII 19.
9. Note by the General Directorate of Public Works published in the Official Gazette of 4 VIII 19.
10. Dahir of 27 I 20 establishing the phosphate monopoly.
11. Report by M. Calary de Lamaziére, Deputy to the French Chamber (undated).
12. Dahir of 7 VIII 20 setting up a Shereefian Phosphate Office.
12 bis. Vizier's decree concerning the Board of the Shereefian Phosphate Office (undated).
13. Dahir of 21 VIII 20 concerning vested rights.
14. Letter from M. Bossu to the Department of Mines transmitting M. Tassara's request of 14 X 21.
15. Letter from M. Tassara to the Department of Mines (14 X 21).
16. and 16 bis. Replies from the Department of Mines (17 x 21).
17. Consent of the Department of Mines to receive M. Tassara's request (2 XII 21).
18. Decision by the Department of Mines rejecting M. Tassara's request (8 I 25).
19. Letter from M. Tassara to the Department of Mines (28 III 25).
20. Reply from the Department of Mines refusing to communicate the docu¬ments (5 iv 25).
21 and 22. M. Tassara's protests (letters of 20 v and 12 IX 25). ,
23. Reply from the Department of Mines to a summons presented on 2 v 29 (undated).
24. Representations by M. Chapus to the Resident-General (undated).
25. Reply by the Resident-General to M. Chapus (undated).
26. Reply by the Resident-General to M. Sombsthay (26 VI 31).
26 bis. Reply by the Resident-General to M. de Gennaro Musti (25 XI 31).
27. Letter from Senator Viollette to the Director-General of Public Works (VIII 31).
28, 29, 30. Notes from the Italian Embassy to the Quai d'Orsay (28 XI 30, 25 XI 31, 15 VII 32).
31. Reply by the Quai d'Orsay (22 VIII 32).
32. Letter from the Miniere e Fosfati Company to the Quai d'Orsay (10 XI 32).
33. Note by the Royal Embassy (22 XI 32).
34. Reply by the Quai d'Orsay (28 I 33).
35. Letter from M. de Gennaro Musti requesting the Quai d'Orsay to appoint extraordinary judges and renewing the proposal for a compromis (6 II 33).
36. Note from the Royal Embassy to the Quai d'Orsay (16 VI 33). [p46]

37 and 38. Notes exchanged between the Royal Embassy and the Quai d'Orsay (12 VIII 33 and 2 1 34).
39. Note from the Quai d'Orsay to the Royal Embassy (10 III 34).
40. Memorandum handed to M. Laval at Rome (I 35).
41. Letter from the Marquis Visconti Venosta, Italian Minister for Foreign Affairs, to M. Barber, French Ambassador at Rome (16 XII 1900).
42. Exchange of notes between Italy and France, concerning Morocco and Tripolitan Cyrenaica (1 XI 02).
43. Declaration signed at Paris on 28 X 12 by MM. Poincaré and Tittoni.
44. Declaration dated 9 III 16 by the Italian Government, renouncing the capitulations in Morocco.
45. Partnership agreement between MM. Busset and Combelas (23 III 14).
46. Article 8 of the dahir of 12 VIII 13 concerning the judicial organization of the French Protectorate in Morocco.
47. Dahir of I IX 28, providing means of recourse for officials against deci¬sions ultra vires.
48. Article 44 of the dahir of 15 IX 25, containing the Moroccan Mining Regulations.
49. Note from M. A. Brives to the Academe des Sciences (21 IV 08).
50. Letter from the Director-General of Public Works in Morocco to M. Combelas (30 XI 12).
51. Letter from M. Combelas to Lieutenant de Féraudy (3 XII 12), and the notes dated 4-10 XII 12 which followed it.
52. Letter from Lieutenant de Fraud to M. Combelas, and the latter's reply (3 XII 12).
53. Telegram from M. de Saint-Aulaire (13 XII 12).
54. Dahir of 19 I 14 containing regulations for the settlement of mining disputes.
55. Report by M. Busset to the Arbitration Commission concerning prospecting for phosphates in the Beni Meskine district (IV 14).
56. Dahir dated 3 XI 14 suspending the issue of prospecting licences for mining products.
57. Letter from the Head of the Department of Mines to M. Combelas (5 XI 17).
58. Dahir dated 9 VI 18, abrogating the dahir of 3 XI 14 and providing for the re-introduction of the system of prospecting licences for mining products.
59. Opinion by the Directorate-General of Public Works concerning the application of the Mining Regulations (8 VII 18).
60. Prospecting licence issued to M. Busset; reverse of the same; and receipt for the application relating thereto (17 X 18).
61. Note by M, A. Brives (14 IV 19).
62. Letter from M. Deruis to the Secretary-General of the Protectorate (9 V 19).
63. Authenticated copy of the Official Gazette containing list of the phos¬phate prospecting licences issued to MM. Busset and Deruis (13-20 X 19).
64. Letter from M. Deruis to the Head of the Department of Mines (19 v 20).
65. Letter from the Engineer of the Department of Mines to M. Deruis (21 V 20).
66. Letter from M. Deruis to the Engineer of the Department of Mines (31 v 20).
67. Letter from the Engineer of the Department of Mines to M. Deruis (5 VI 20).
68. Letter from M. Deruis to the Chief Engineer of the Department of Mines (9 VI 20).
69. Reply by the Chief Engineer of the Department of Mines to M. Deruis (10 VI 20).
70. Decision of the Arbitration Commission at Paris rejecting the demands of M. Busset and his partners (16 VI 20).
71. Extract from the minutes of the meeting of the Chambre des Députés on 17 VI 20.
72. Letter from M. Deruis to the Inspector-General, M. Lantenois (28 IX 20). [p47]
73. Letter from M. Deruis to the Head of the Department of Mines (8 VIII 21).
74. Letter from M. Colle-Deudon to M. Tassara (24 VIII 21).
75. Note from the Italian Embassy at Paris to the Royal Ministry for Foreign Affairs (16 IX 21).
76. Constitution of the Italo-Marocchina Partnership Association (24 IX 21).
77. Report by M. Busset concerning prospecting works carried out at Oued Zem (X 21).
78. Report by M. Deruis concerning prospecting works carried out at Bir Fenzer (X 21).
79. Extract from the report of the Board of the Shereefian Phosphate Office concerning the financial year 1921 (1922).
80. Power of attorney given by M. Tassara to M. de Gennaro Musti (10 VIII 28).
81. Transfer of twenty-eight licences by M. Tassara to M. de Gennaro Musti (10 IV 29).
82. Constitution of the Italian commercial company Miniere e Fosfati (6 II 30).
83. Power of attorney given by the Miniere e Fosfati Company to M. de Gennaro Musti (25 III 30).
84. Letter from M. Combelas to M. de Henseler (26 VI 31).
85. Idem (6 VII 31).
86. Letter from M. de Gennaro Musti to M. Lucien Saint, Resident-General in Morocco (29 X 31).
87. Transfer of nineteen licences to the "American and Moroccan Phosphate Corporation" (24 II 33).
88. Certificate by the Registry of the Court at Rome to the effect that M. de Gennaro Musti was appointed Chairman of the Board of the Miniere e Fosfati Company on 2 VI 33 (22 VI 33).
89. Letter from the Italian Miniere e Fosfati Company to the "American and Moroccan Phosphate Corporation" concerning the cancellation of the transfer (5 IV 35).
90. Letter from the "American and Moroccan Phosphate Corporation" to the Italian Miniere e Fosfati Company concerning the cancellation of the transfer (25 v 35).
91. Note from the Italian Embassy at Paris to the Ministry for Foreign Affairs of the Republic (27 II 37).
92. Idem (5 IV 37).
93. Certificate by the Registry of the Count at Rome to the effect that the Miniere e Fosfati Company is entered in the Court's Register of Companies under No. 87, 1930 (3 VI 37).
94. Certificate by the Mayor's Office at Genoa to the effect that M. Becaro Pietro is of Italian nationality (17 VI 37).
95. Certificate by the Mayor's Office at Genoa to the effect that M. Rolla Ferdinando is of Italian nationality (17 VI 37).
96. Certificate by the Mayor's Office at Genoa to the effect that the late Taccone Enrico was of Italian nationality (17 VI 37).
97. Certificate by the Mayor's Office at Genoa to the effect that the late Tassara Costantino was of Italian nationality (17 VI 37).
98. Certificate by the Mayor's Office at Genoa to the effect that M. Traverso Ernesto is of Italian nationality (17 VI 37).
99. Certificate by the Mayor's Office at Genoa to the effect that M. Martignoni Vittorio is of Italian nationality (17 VI 37).
100. Certificate by the Mayor's Office at Genoa to the effect that M. Martignoni Luigi is of Italian nationality (17 VI 37).
101. Certificate by the Mayor's Office at Genoa to the effect that M. Carenzi Angelo is of Italian nationality (17 VI 37).
102. Certificate by the Mayor's Office at Florence to the effect that M. Bosi Ferdinando is of Italian nationality (17 VI 37).
103. Certificate by the Mayor's Office at Trani to the effect that the late Palieri Gioacchino was of Italian nationality (18 VI 37).
104. Certificate by the Mayor's Office at Trani to the effect that the late Palieri Alfredo was of Italian nationality (18 VI 37). [p48]
105. Certificate by the Italian Consulate-General at Paris to the effect that M. Gaspare de Gennaro Musti is of Italian nationality (18 VI 37).
106. Note from M. Tissier, Vice-President of the Conseil d’État of France, to the Directorate of Political and Commercial Affairs of the Quai d'Orsay (undated).
107. Receipt from the Banque d’État for the payment of Francs 300 made by M. Tassara in respect of the transfer of prospecting licence No. 146.
108. Extracts from the Official Gazette of Morocco, No. 472 of 8 XI 21, No. 481 of 10 I 22, No. 498 of 9 v 22, concerning licences that had lapsed.
109. Certificate by the Governatorato at Rome to the effect that M. Giulio Pestalozza was of Italian nationality (undated).
110. Declaration by the liquidator of the Associazione Italo-Marocchina con¬cerning the situation of MM. Colle-Deudon and Jacob Levy (undated).
111. Note from M. Scialoja to M. Briand (undated).

B. — Documents filed during the oral proceedings.

1. Fifteen prospecting licences issued in respect of calcium phosphates by the Department of Mines to M. Busset, together with the respective receipts for the applications.
2. Letter from M. Deruis to the Department of Mines (8 VIII 21).
3. Twenty-seven receipts from the Banque d'État du Maroc, dated 14 X 21.
4. Official Gazette of the Shereefian Empire, French Protectorate of Morocco, 10th year, No. 472, 8 XI 21 ; 11th year, No. 481, 10 I 22 ; 11th year, No. 498, 9 v 22.
5. Letter from M. Lémery (10 II 38).
6. Letter from the Shereefian Phosphate Office to M. de Gennaro Musti (25 IV 32).





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