Mackay Company v Lal-La Fatma Bent Si Mohamed El Khadar

• Jurisdiction: Marruecos
• Date: 13 August 1954
• Court: Court of Appeal (Morocco)

Tangier, Court of Appeal of the International Tribunal.

(Diaz Merry, President; Apostoli and Wauters JJ.)

Mackay Radio and Telegraph Company (appellants)

and

Lal-La Fatma Bent si Mohamed El Khadar and Others (respondents).

INTERNATIONAL LAW IN GENERAL

International Law — Sources of — Custom — Termination of — Requirement of Express Renunciation of Rights Acquired by Custom.

Treaties — Interpretation of — Agencies of Interpretation.

International Court of Justice — Judgments of — Binding Force in Relation to International Court at Tangier.

Jurisdiction — Régime of Capitulations — Capitulatory System in Morocco — Acquisition of Capitulatory Rights by Custom — Termination of — Requirement of Express Renunciation — Power of the International Tribunal of Tangier to Interpret Treaties — Binding Force of Judgments of the International Court of Justice.

The Facts.—This was an appeal by the Director of the Mackay Radio and Telegraph Company against a judgment of the Court of First Instance of the “International Jurisdiction” (hereinafter referred to as the “International Tribunal”) of Tangier. In that judgment, the Tribunal assumed jurisdiction in an action concerning the registration of real property. The appellants, relying on the capitulatory rights of the United States of America, denied that the Tribunal had jurisdiction. In particular, they denied that the Judgment of the International Court of Justice in the Case concerningRights of Nationals of the United States of America in Morocco1—a judgment on which the International Tribunal relied—was binding upon the latter. They also maintained that the Tribunal was not competent to interpret international treaties.

Held: that the decision of the Court below must be reversed.

The Court said: “Even if the International Tribunal of Tangier did not claim to be an organ for the interpretation of treaties, it is evident that it not only can, but, contrary to the thesis propounded by counsel for the defence, must base its decisions precisely on such treaties. In effect, when Article 11 of the Paris Convention of 1923 declares that in case of any divergence between treaties and the laws of the Legislative Assembly, the treaties2 shall prevail, it establishes at the same time a true hierarchy of laws (see Ministère Public v. Aerts and Azerraf[3] decided on March 9, 1939, by the Court of Appeal). The appropriate body to appreciate such a divergence between the texts is in fact the International Tribunal. Obviously, such appreciation can only be based on the interpretation and application of the treaties. The Court has always understood it in this manner and has proceeded to the interpretation of treaties in

highly important decisions, such as the one cited above and, more recently, in its judgment of March 18, 1949, in In re Toledano

“If the judgment in the present case is to be founded on a declaration of competence or incompetence of the International Tribunal in the presence of a capitulatory jurisdiction which finds its origin in the treaties, then it is unquestionable that only the examination of these treaties and the accompanying interpretation thereof will reveal sufficient and adequate elements to enable the solution of the matter in hand.

“The declaration of competence as set forth in its...