Re Benilsi

• Jurisdiction: Marruecos
• Docket Number: 4
• Date: 07 January 1949
• Court: Civil Tribunal (Morocco)

Morocco, Civil Tribunal of D'Oudjda.

Case No. 4

In re Benilsi et Al.

International Law — Relation to Municipal Law — Interpretation of Legislation to Conform with Treaty — French Protectorate over Morocco.

The Facts.—The petitioners, a Moroccan national and his French wife, asked for a declaration that their children were French nationals by virtue of Article 19 of the French Nationality Code, which provides that the children of a French mother and a foreign father are themselves French. Article 1 of a Decree of October 2, 1948, made in application of Article 10 of that Code, provided that French nationality could be claimed under Article 19 of the Code in the French zone of the Shereefian Empire only with the consent of the Sultan. It was contended on behalf of the petitioners that a Decree could not modify a Law, and that their children had, moreover, already acquired French nationality at the time of its enactment.

Held: that the claim must be rejected. The Court said:

“While it may be true to say that Article 10 is no obstacle to the automatic application to Morocco of certain provisions of the Nationality Code, Article 19 cannot be included in that category. The provisions of that Article, in so far as they relate to children of a Moroccan father, are clearly contrary both to the principles of Moroccan public law and to the treaties governing the relations of France with the Shereefian Empire. The principle of permanent allegiance which governs Moroccan nationality is a rule both of municipal law, based on custom, and of international treaty law. It has been confirmed by the Treaty of March 30, 1912, concerning the organisation of the French...