Rejoinder submitted by the Government of the United States of America

6. REJOIXIIER SUBNITTEII BY THE GOVERNllENT

OF THE UNITE11 STATES OF AkIEKICA

This Rejoinder is in ansurer to the Reply filed by the French
Govemment in this case on February 15, 1952.

The procecding was instituted hy the French Govemmcnt as
a result of difficultiesbetween the Parties \\.hich followed the
enactment by Morocco on Ilecernber 30, 1948, of a decree
re-establishing in full force and effect prcvioiis Moroccan legis-

lation absoliitclyprohibitiiig the import into &Iorocco of al1
foreign goods and merchandisc, excepting French imports.
The legal issues placed beforc the Court by the Government
of France in the Application, and by the Government of the

United States by way of counterclaim, are, in the order followed
in hoth the Counter-Mernorial and the Reply :

The econoriiic issue, involving:
The validity of a treaty right to freedoin of importation,
The proper method of customs \.aluation of imports uiidcr

the Act of Algeciras,
The application of taxes to Amcrican imports in Morocco;

The issue of extraterritorial jurisdictiori, and the corollary
irnmunity of American citizens, in the absence of assent by this
Governrnent, [rom the application of the local law.

The argiiments presented in the Reply on thesc various points

will no\\, be examinecl and answered in the ortler indicated. CHAPTER 1

. 171~~~ ï0 I~i1~0l<rFKEEI.YIWO &~OHOCCO

(liel>ly, pp. 17-31)
Iiicstablishing in the Couritcr-Alemorial its cl;iiiii to a rcgiinc
of frce trade barring prohibitions on imports, tlie Governmeiit

of the United States relied, through the most-favored-nation
clause, upon the provisions of the British Treaty of 1856; the
Spanish Treaty of 1861 and the Act of Algeciras (1111 3.27-343,
Vol. 1). III the Reply, the French Government conteiids that these
l)rovisions do not support the claim.
The argument of the French Government is twofold. It denies
on the one hand the existence in the British Treaty of 1856 and
tlie Spanish Treaty of 1861 of provisioiis barriiig generally prohi-
bitions on imports. These treaties. according to the argument,
while recognizing the priiiciple of liberty and equality in niatters
of commerce, reservcd the right for hlorocco to decrcc any prohi-
bitions on imports as long as the prohibitions were not discn-

miiiatory nor vexations (Reply, pp. 18-19). Even if these treaties
barred prohibitions on imports, moreovcr, the Act of Algeciras
inodifieil and transformed their meaning and effect by iiitrodiicing
a regime of liberty aiid equality which clearly did not bar i\Iorocco
from enacting such prohibitions (lieply, p. 20). It asserts on the
other hand that thc right to impose any prohibitions for the
purpose of l'ordre public, was already included in the Treaties
of 1Sj6 and 1861 and was indeed recognized in the .Act of Alge-
ciras ; Morocco, the argument states, \vas required by the Act
to become a modern State ; thus it \vas authorized to enact al1
prohibitions the purpose of which is to maintain l'ordre public,
al1 previous treaty provisions to the contrary notwithstanding.
k1:leasuresof coritrol' of imports arc rncasures based on considera-

tions of l'ordre p~iblic,and are, therefore, measures permitted by
the Treaties (Reply, pp. 20-26).
(1) Consideratiori must first be given to the side of the French
argument which denies the existence in the treaties and the Act
of Algeciras of a regime of free trade \vithout prohibitions on
irnports. The British Commercial Treaty of Deceinber 9, 1856,
estahlishes Ireedoiii of commerce as its controlling principle in
Article 1:

"Theri: sliall be reciprocal freedom of commerce between the
I3ritislidoininions anclthe dominions of the Sultan of Morocc...."
(Counter-Jlemorial. Annes 21.) KEJO~NDEX OF THE U.S.A. (18 IV 52)
94
The scope of the principle is defined with respect to the two-
fold aspect of trade-exportation and importation-and in terms
which are striking precisely because of their general character.
With respect to exportation, Article 5 of the Treaty reserves to
the Sultan the righb ta prohibit exports from Morocco :

"Should the Sultan of Morocco at any time think proper to
prohibit the exportation of any kind of grain or other article of
commerce from his dominions ....(Counter-Memorial,Annex 21.)
With respect to importation, on the contrary, the Sultan expressly
undertakes in Article 6 not to prohibit imports, exception made
for enumerated products :

"Merchandise or goods, except the articles enumerated in
ArticleII, imported by British subjects in any vessel, or from any
country, shall not be prohibited in the territories of the Sultan
of Morocco ....(Counter-hfemorial.Annex 21.)

The general character of the undertaking is emphasized in Article z,
which lists the products referred to in Article 6 :
"The Sultan of Morocco engages ta abolish al1 moiiopolies or
prohibitions on imported goods, except tobacco, pipes of al1kinds
used for smoking, opium, sulphur, powder, saltpetre, lead, arms of
al1kinds,and ammunition ofwar ....(Counter-Alemorial,Annex 21.)

According ta the Reply, however, the general character of this
bar against prohibitions on imports would be negated by other
articles of thetreaty where the Sultan is recognized by implication,
it isasserted, ta possess a discretionary right ta prohibit al1imports
(Reply,p. 18). Such is, according ta the Reply, the case of Article 5,
in fine :
"....No prohibition, eitheras to the exportation or importation
of any article, shall applya British subjects, unless such prohibi-
tion shall apply to suhjects of every other nation." (Counter-
Memorial, Annex 21.)

The argument is that since Article 5 in fine does not specify what
prohibitions on imports are involved, the prohibitions refer to
any imports and any exports. This argument ignores the mles
of construction ordinarily applicable in the matter. If there is
doubt as ta the meaning or the scope of the prohibitions referred
ta in Article 5 in fine, it is enough ta look ta Article 5 as a whole,
and to Articles z and 6, to perceive readily that the Sultan had
retained a right to prohibit some imports and al1 exports. The
Sultan, as a result, could at any time grant in respect ta bath
some specific imports and all exports more advantageous rights

ta other foreigners. British citizens, therefore, were guaranteed
by Article 5 in fine that the prohibitions applicable under the
treaty in respect to some specific imports and al1 exports would
not be applied ta them unless they applied equally ta al1 others. REJOINLlEK OF THE U.S.A. (18 IV 52) 95

At no tiinc do the texts give risc to the implication that ail imports
were subject to prohibition. It should be noted, moreover, that
the French argument is predicated to a very large extent upon
a misleading translation of the English text of Article 5 in fine
which changes the meaning and effect of the words "any article"
by changing their relationship in the sentence to the words
"exportation and importation". In the English text, "any article"
clearly refers to bath "exportation and importation". In the

French text, the clause is divided and the words "any article"
are thus made to appear to refer only to the word "importation" :
"No prohibition, either as to the exportation or importation of
any article, shall..."

"Aucune prohibition, soit quant à l'exportation, soit quant à
l'importation d'aucun article ne s'appliquer...."
The Spanish Treaty of Novcmber 20, 1861, like the British
Treaty of 1856, reserves to the Sultan the right to prohibit exports

in Articles 48 and 50, and bars generally prohibitions on imports
in Article 49 :
"The merchandise and produce imported into ports of Morocco
by Spanish subjects, from any place or country, shall not be
prohibited in the territory of the Sultan of Morocco...."(Counter-
Memorial, Annex 22.)

It also contains, like the British Treaty, refcrences to "articles
not prohibited" or "articles the importation and exportation of
which are not prohibited" (Articles 44 and 45). The Reply,
accordingly, also draws in the case of this treaty the inference
that the Sultan therehy reserved a discretionary right to prohibit
any import, and emphasizes that there is no mention in this
treaty of a specific list of imports over which the Sultan reserved
a right to prohibition (Reply, p. 19). This reasoning, however,
is open to objections. Whether there be or not a specific list of

prohibited imports, the French Government reaches the same
conclusion ;if the existence of the list were a controiling factor,
the French Government should reach opposite conclusions with
respect to the two treaties. The French Government reaches in
the Reply ccinclusions which contradict its analysis of the British
and Spanish treaties in the Memonal ; there it emphasizcd the
general character of the commercial freedom afforded by these
treaties and the strictly limited character of the exceptions to
this freedom :

"(a) Commercial freedom.
The principle of reciprocal freedom of commerce is asserted
between Great Britain and Spain, on the one hand, and Morocco,
on the other hand. Thc entire freedom of commercial transactions
carried out by foreigners onMoroccm territory is also guaranteed
(Great Britain, Art.I,2, 4, 6; Spain, Art. qq, 45, 47.49).96 l<l<JOlSi)Ei<OF THE U.S.A. (18 IV j2)

Tlic ofily [sciilcs] cxceptiuiilo lhis $rzrcci$le colicerioii tlic
niie haiid, certaiii ~~rodulimit;ltively enumcrated (Grcat Britaiii,
Art. 2),and, or1tlie other liaiid. ari everitual right wliiclrtlie Sultan
reservesunto Iiimselfto prohibit the exportation ofcertaiii products,
especially that ofcereals(Great Hritaiii. Artjaiid 7; Spain, Art. 4S
;uid jo)." (Italics added;translatioii;Mernorial,p. 40, Vol. 1.)

The argument, finally, is not based on reasonable rules of con-
struction. Article 49 dcals specifically with imports. Articles 44
and 45 dcal with local commercial transactions in Morocco, not
isith imports or esports. Such refcrences as they contain to
"prohibited" articles are incidental and subsidiary to thcir piirpose.
They do not justify, therefore, giising to Article 49 a meaning
prccisely oppositc to the one it has by its plain terms. Article 49
accordingly should not be coiistrued as reserving to the Sultan
a discretionar? right to prohibit aiiy import but should retain
its plain meaning of a general obligation not to prohibit imports.

l'hc explanation for the referenccs to prohibited imports in
Articles 44 and 45 is that the import of certain prodiicts had always
and traditiorially bcen prohibited in Morocco. Whether expressly
stated, as in the British Treaty, or tacitly espressed as in the
Spanish Treaty. those prohibitions always remaiiied in force. The
point has been noted by a French authority on bloroccan treaties
who commented \\rith respect to the regime of free importation
provided by both the Spanish and thc British Trcat'ics :

"Tlie iinport:rtion has always beeii prohibited of tlie following
products :arms of al1types, ammunition of war, powder,saltpetre,
sulphur, Icad, tobacco and other herbs for smoking...." liouard de
Card, Les Traitd éesComn~ercc eoriclisrrrleMuroc(1907)9, ilote 4,
61, note I (traiislatioii).

With respect to the Act of Algeciras, thc French Go\rernment
contends that the regime of commercial freedom established by
the British and Spanish Treaties was not in any everit incorporated
iii the Act. Al1thc Act coiitains, according to the French Govern-
ment, is the affirmation of a vague priiiciple of eco~iomic libcrty
which does not bar prohibitions on imports. Thc mcre fact of
having recourse to prior treaties to cstablish the nieaiiiiig of this
principle is, according to the Reply, an admission that the Act
per s6 does not bar prohibitions on imports (Reply, pp. 20-21).
Beyond thesc assertions, the French Keply presents no argu-
ments and proceeds to determiiic the incaning of thc principle
of economic liberty by referencc to international agreements

concluded after World War 11. At no time does it answer the
fully documentcd argument of the Counter-bfemorial which, it
is beliered, clearly established that the iriclusion of the principle
of economic liberty in the Act was intended precisely to guarantee
to the parties their traditional right to a regime of comrncrcial
freedom mithout prohibitions on imports. There is no need to REJOINDER OF THE U.S.A. (18 IV52) 97

repeat this argument (see Coiinter-Memorial, pp. 330.335, Vol. 1).
except to the extent ofnoting that, for the purpose ofestablishing the
intent of the parties at the time, the recourse made in the Counter-
Memorial to the history of the diplomatic negotiations leading
to the conclusion of the Act of Algeciras \vas proper and in con-
forinity with accepted principles of interpretation.
It is submitted that the French Reply fails in its contention
that the British and Spanish Treaties and the Act of Algeciras
did iiot establish a regime of free trade without prohibitions on
irnports.
(2)Consideration must now be giveu to the other aspect of
the French argument according to which the Act of Algeciras,
as well as previous treaties, must be interpreted as authorizing
al1 prohibitions motivated by a desire to maintain l'ordre Pz~blic,

including prohibitions on imports (Reply, p. 23).
Prior to dealing with the substance of this argument, the Gov-
ernment of the United States notes that the problem, as presented
and developed hy the French Government, is strictly a problem
of interpretation of treaties. In the circumstances. the argument
presented in the Reply caüs for two preliminary observations.
According to generally accepted principles of interpretation,
treaty provisions must be construed in the manner most likely
to reflect the intent of the parties at thetime thetreaty was concluded.
The principle is practically axiomatic in international law. While
not expressly admitting as much, the French Reply obviously
proceeds on the theory that the Act of Algeciras should be inter-
preted as though it arere being concluded today. This reasoning,
it is submitted, does not meet the issue, since the issue is the
intent of the parties to the Act in 1906, and not their intent if

they were to conclude the same agreement today.
In order to justify the absolute prohibition on imports re-
established in effect by the Decree of December 30, 1946. the
French Reply puts a great deal of ernphasis on the motivation
of so-called ordre jbzbblicwhich inspired such prohihition (see
Reply, p. 24). The motives which induced an act may not he
entirely irrelevant to.the determination of its legality. Yet treaty
provisions may be violated, and are indeed frequently violated.
for good motives as well as had. To predicate a treaty violation
on good motives instead of bad ones does not make it the less
a violation. The issue here is not whether the absolute prohibition
on imports of December 30, 1946, was induced by a good motive,
but, rather, whetlier it violated the principle of economic liberty,
as interpreted in the light of the intent of the parties to the Act
of Algeciras at the time of its drafting.
Tuming now to the examination of the concept of ordre Public

which is the substance of the French argument, the Government
of the United States subrnits that it is not an accepted principle
of interpretation. Indeed. it does not appear to be a principle
798 REJOINDEH OP THE U.S.A. (18IV 52)

of international law at all, so far as an examination of decisions
by international bodies and the works of recognized authorities
can estahlish. The principle is a principle of domestic law, and
more specifically of civil lawl where it is understood by this
Government to fulfil in some respects purposes which are covered
in the common law by the concept of public policy. Leaving
aside the question whether the transposition of a principle of
interpretation from domestic law to international is a proper
procedure, the manuer in which the principle is utilized by the
French Govemment in the present case gives rise to the most
serious objections.
The French Govemment starts from the preinise that measures
for the protection of public health, protection of public morals,
and control over trading with the enemy are measures designed
to insure Z'ordre$ublic and involve some degree of prohibition

on imports. They have been put into effect pursuant to inter-
national agreements in point or as a part ofa program of reforms
and modernization of the lloroccan State. If the Act of Algeciras
establishes a regime of free trade without prohibitions on imports,
the French Government States, I\lorocco must be deemed illegally
to have concluded such international agreements or to have
attempted to become a modem State. Or, in the alternative,
the Act of Algeciras must be construed as permitting any prohi-
bitions on imports based on the ground of ordre$ublic, as contended
by the French Government. Since au prohibitions based on
financial and monetary considerations are based on the ground
of ordre public, they are permitted under the Act of Algeciras
(R~P~Y. P. 23).
This argument, in the view of the United States Government, is
specious because the problein of interpretation need not and does
not arise in the terms imagined by the French Government. The
first alternative set up by the argument is entirely artificial. It is
not necessary to conclude that because the Act of Algeciras estah-

lishes a regime of free trade barring prohibitions oii imports,
international agreements coiicluded by Morocco for the protection
of public health, public morals and the control of trade in time of
war have been illegally concluded. No problem arises when the
parties to the international agreements in point are aiso parties
to the Act, since the later agreements prevail over the Act to the
extent necessary for adaptation of its relevant provisions. No prob-
lem arises when, the measures being based entirely upon clomestic
legislation, the parties to the Act overtly or tacitly assent in the
resulting modification. And if the problem of interpretation does
arise, it is perfectly reasonable to interpret the principle of economic
liberty as meaning that imports shaü not be prohibitcd except
those genuinely needed for the protection of public health and

Aleaning the çystemç of domestic law which derive from Roman law KEJOIXDEK OF THE U.S.A. (18IV j2)
99
niorals aiid control of trading with the enemy in tinie of war. Thc
second alteniative is equally artificial and is no more than an argu-
ment of dialectics directed to the establishment of an incorrect
syllogism. Assuming as a premise that measures for the protection
of public health and morals and control over trading with the

enemy are designed to insure l'ordre public,it reaches the conclusion
that al1 prohibitions based on l'ordre public are permitted under
the Act. The strict conclusion of the syllogism, however, irnposed
by the very terms of the premise on which it is predicated, is that
prohibitions in furtherance of measures which are assumed to
insure I'ordrepublic-i.e. those for the protection of public health
and morals and trading with the enemy-are permitted under the
Act. In both cases, the French argument results iii unwarranted
generalizations.
The Government of the United States submits, moreover, that
the theory of ordrepublic advûnced in the argument is of a character

so arbitrary as to clearlyommand its repudiation both as a general
principle of international law and as a principle of specific applica-
tion in this particular case.
The theory of ordre public advanced in the Reply is not a cohe-
rent and organized theory. The Reply does not even attempt to
indicate its meaning in some general sense; much less does it
attempt to suggest the limits of its application. The specific cases
which are listed as being normal applications of the theory of
ordre public are disparate cases among which there is little if aiiy
rational relationship, unless it be that any purpose in which the

State has an interest is covered by the theory. Any doubt on this
point cannot subsist in the face of the flat assertion of the Reply
that al1 restrictions placed on imports on financial and monetary
grounds are restrictions based on considerations d'ordre public
because their purpose is to protect the financial or economic
interests of the State. There are no import restrictions or prohibi-
tions for which some financial or economic justification cannot be
giveu. The theory of ordre public advanced by the Reply simply
uur~orts to vest such arbitrarv <us>ifications with the character
bf îegitimacy.
It is hardly necessary to point to the threat to the stahility of
international relations which is imulicit in this conceut of l'ordre
$~61ic.Besides being an innovation: the theory is a negation of the

whole interriational treaty structure. since it permits States to
avoid treaty obligations through the simple expedient of selecting,
if not creating, a given interna1 condition and claiming that corn-
pliance with the obligation would create a danger, actual or threa-
tened, to the amorphous whole known as l'ordre pz~blic.It is a
rejection of the established procedures of negotiation and agreement
between parties for modification or adjustment of treaty obliga-
tions iii favor of a rule of interpretation based entirely on the uni-
lateral and arbitrary action of one of them. The sweeping scopc100 REJOIIIDER OF THE U.S.A. (18 IV52)

of the theory can be best illustrated by pointing out that if Morocco
may reject the obligations of the Act of Algeciras on the groiind of
ordre pzdblic,MO~OCC mOay just as ive11reject its obligations under
the Treaty of Protectorate of 1912 on the ground that further
compliance is prejudicial to its ordre9ublic. Indeed, if the theory
applied in this case, it would apply a fortiori to the Treaty of Fez.
since the threat to tordre fiz~blicresulting from lack ofindependence
and self-government might conclusively be shown by Morocco to
be direct and actual, while the threat to l'ordre9ublic resulting from
financial and economic difficulties under the Act is hypothetical,
as will now be estahlished.

The theory of ordrefiziblic,iii the present iiistancc, is predicated
upon a misleading confusion between the interests of France and
those of Morocco. According to the French Reply, import prohi-
bitions are based on considerations d'wdre fiublic when their
purpose is to protect either the financial or the ecoiiomic interests
of the State cnacting them. The import prohibitions in this case
do not appear to be so motivated.
The French Zone of 3Iorocco has heen absorbed iii the French
franc area by making the currencies of the two areas freely con-
vertible one into the other. The Moroccan franc, moreover, has
been rigidly pegged to the value of the French franc. Thus, the
Moroccan currency is not an independent currency seeking its
own level, but a currency tied, as a result of an enforced parity,
to the fortunes of the French monetary system. including its
devaluations, shortages, and other difficulties. The financial cori-
siderations upon which France relies in this case, accordingly,
are not really those concerning Morocco, but primarily those

conceming France. It is significant in this connection that in
adducing evidence to justify the imposition of the prohibitions
of December 30, 1948, in Morocco, the French Memorial should
present a chart of the rates of exchange of dollars on the French
black market. and figures relating to the inflationary effect of
free transactions on the French franc. Since the prohibitions at
issue are primarily intended to protect the financial interests
of France, the theory of ordre fiz~blicadvanced in the French
Reply is utilized in a misleading and inaccurate manner. Correctly
stated, the French argument is that import prohibitions enacted
in Morocco are primarily intended to protect l'ordre fiziblic of
France.
The subordination of the Moroccan hancial system to the
French system permits the channeiiing of trade between the
two areas and the preferential development of French economic
interests in Aloroccowhiie proportionaliy reducing the opportunity
of the local State freely to select its sources of supply of goods
and services. It permits France to circumvent the guaranty of

equality of treatment of the Act of Algeciras by sweepingly
denying eiitry to al1foreign goods on grounds of balance ofpayment HEJ0ISI)EH OF THE U.S.A. (18 IV 52) 101

difficulties, and excepting on the contrary ali goods coming from
France for which no paymerit difficulties can anse since the
currencies are freely and artificially interconvertible. The economic
considerations upon which France relies in this case, accordingly,

are not so much those concerning Morocco as those concerning
French interests in Morocco. It is significant in this connection
that the French Government, while agreeable to liberalizing
import prohibitions in France proper and the overseas territories
of France pursuant to an agreement between the States parties
to the Organization for European Economic Co-operation, failed
similarly to liberalizc the import prohibitions applicable in
Aforocco, a position which is indicative of a desire to maintain
protection for French goods (Rejoinder, Annex 1).The economic
considerations in point, like the financial considerations which
predetermined them, do not support the contention that the
prohibitions in this case are intended to protect l'ordre 9zcblic
of Morocco.

.4ny possible doubts about the tme motivations of the import
prohibitions established on December 30, 1948, and which ordre
$z~blicthey were intended to protect, are removed by the explan-
atory statenient offered in this connection by the French Resident-
General of Morocco in date of January II, 1949. The prohibitions,
he stated, were imposed on formal order from the French Govern-
ment, and despite his own objections:

"You know Iiow this question arises. We supported last year
[free] imports without exchange in order to ease the economy of
this country, and we attached ourselvesto the policyofopening the
gates as wide as possibl...Then after a whilewesuddenly received
a formal injunction sigiied by the hand of the I'resident of the
regime of controllicenses in order to maintain the franc because of
the disturbances which we have noted on the parallel market. It
was not only a question of observations made at Tangier but of
disturbances much more noticeable which were felt on the activity
of the legal franc market and which had a capital importance as
regards the Marshall l'lan assistance for France. \Ve raised strong
objections in view of the liberty of action wliich had been granted
to us and of the reactions which this change would provoke. Paris
replied that this measurewas necessary nevertheless and we there-
fore took it1 must add tliat we do not possess al1the elements of
analysis and we cannot measure here the effect noted oii the franc
market. We did not take these new measures without reflecting ;
in particrilar, placed before a list of products which was estremely
limited, 1, on my own authority, estended it widely to meet the
needsof this country and so reported to the [French] Government."
Conseil du Gou\,ernemeiit, Section française, Séances du IO au
15 janvier 1949(1949) 27. (Translation.)

To retort that the distinction between l'ordrefiz~blicof Morocco
and l'ordre p~blic of France is irrelevarit because the financial102 m ~ o ~ ~ ~ ~F~THE U.S.A. (18IV 52)
and economic interests of France and Morocco cannot be separated
is not to providc a valid answer to the issue in this case. The
assimilation of such financial interests, resulting in an assimilation

of economic interests, has taken place indeed from the early days
of the Protectorate. At the same time, however, no attempt,
or no senous attempt, has ever been made by France to provide
Morocco with an independent financial system of its omn. The
French Govemment has made a choice of policies. The Govem-
ment of the United States does not need to consider the intrinsic
validity of these policies. Indeed, it has conducted its program
of Economic Co-operation on this very assum11tion and has left
it to the French Govemment to utilize the financial aid extended
under this program, within the framework of whatever financial
policies France maintained with blorocco. But the French Govern-

ment cannot rely on the fact that a financial assimilation exists
to argue that it has become entitled to a right to disregard existing
treaty obligations. It would be tantamount to arguing that the
French Govemment may properly choose to impose upon the
Moroccan financial system the vicissitudes which afflict its own
in order to become entitled thereby to disregard restraining treaty
obligations, instead of organizing or re-establishing the independent
and separate financiai system which will be needed by the Moroccan
State when France has concluded the mission of trust which it
assumed by the Treaty of Protectorate. The French Govemment
cannot create an artificial situation, for which there are obvious

alternatives, and rely on the situation so created to nullify the
treaty rights of other Powers. Finally, to the argument that the
protection of the financial interests of one is necessarily beneficial
to the protection of the other, it is sufficient to aiiswcr that this
opinion does not appear to be shared in Morocco. Thus, the
Council of Government, a body elect, is on record as objecting
to the harmful effect of artificial panties between the French
franc aiid the hloroccan franc, and advocating separation of the
two currencies :

"In the present circumstances the monetary problem cannot
pass unnoticed and the question of our franc presents itself in al1
its acuteness.
Let us examine the factors which militate in fnvor of a legal
dissociation of our currency.

(1)Economic factors :
If the importance of a currency is judged only hy the purchasing
power which it represents, on the interna1plane as on the external
plane, the hIoroccan franc, in this regard, occupies a position
favorable for the eventuality of its independence.

sustain itself without foreignsupport, but this thesis is wrongsincc

it is and can be established on unquestionably st;lhlç h;ises,such as I REJOIXDER OF THE U.S.A. (18 IV 52)
103
the riches of the subsoil, the agricultural productiori, and the intense
vitality of its labor force.
Certairily a deficit trade balance and balance of payments does
in no way induce the man on the street to advocate or encouragc
a dissociation from tlic French franc, but in examining the question
tliorougtily, one arrives at the conclusion that if our trade balance
and the balance of accounts is unfavorable, it is precisely because
our franc is tied to the French franc.
\nint then rvonld happen in the event of dissociation ? Our
currency and above al1 our economic activity recovering their
freedom of action,Ourpayments and the value of our imports would
diminish and Our franc would thus he better stabilized. This is
based on the tact that the major part of the deficit of Our trade
balance originates in the franc zone, precisely for the reason of
the tying of our franc with the French franc since, out of 74 billions
of imports during the first eight months of 1950, the franc zone
shows jo billions of imports against zo billions of exports, that
is a deficit of 30 billions.
(2) Infiationary factor:

The condition of our budget, if one excepts the several obser-
vations of a local nature on the direction to be given to it, is not in
the least disturbing from the point of view of purely political
economy. It threatens to be so if the sanctioning of our franc as
an independent currency is not realized.
Now. we are today witnessing an inflationary trend which charac-
terizes the Frencli budgetary situation, which presents a deficit
of liundredsof billions.
One of the means of solving this is to resort to the printing of
bills and, in this event, increased monetary circulationbviously
rcsult in rising prices and salaries, and, our franc following in the
same walcc,these same results will automatically have repercussions
on Our economy, as it has already produced in preceding years.
It is thus undeniable that the dissociation of the Moroccan franc
is imperative." Conseil du Gouvernement, Section marocaine,
Session de dbcembre 1950(19j0), 14-16.

The purposes of the French Government in advancing a tlieory
of ordre Publi acssimilating the interests of Morocco to those of
France become abundantly clear when attention is given to the
practical consequences which the French Government would
derive from the theory. The right to maintain L'ordre Public the
French Government states, is an absolute right, inherent to the
very sovereignty of the State. Since it is absolute and unqualified,
the French Govertiment contends it invests the State with the
unilateral and nrbitrary right to impose any prohibitions based
on consideratioiis d'ordre fwbli r,espective of treaty obligations

to the contrary. The other parties to the treatiescreating the obliga-
tion have no right to rccluest prior consultation or the conclusion
of an agrcenient to suspend or modify the obligation. While they REJOINDER OF THE U.S.A.(18 IV52)
*O4
cannot be prohibited from challenging the validity of the prohihi-
tions, they must have resort to other legal remedies in international
lam. if they wish to obtain the removal of such prohibitions
(Reply, P.25).
In the view of the United States Govemment, this is nothing

but a thinly veiled claim on the part of the French Government
toan absolute right to discard at willailfettering restrairits attached
by the treaties to its actions in hlorocco, while preserviiig a color
of legality through the expedient of the theory of ordpubli c.e
French Government twice expressly disclaims that the principle
of economic liberty without inequality of the Act of Algeciras has
been in any sense abrogated (seeReply, pp.24 and 27).At the same
time it proposes to make of the principle an empty shell and
render it devoid of any practical significance by subjecting its
application in any given case toan arbitrary ruling by the French

Govemment that L'ordre publi requires its suspension. By itself,
the claim is inconsistent with the obligations of the French Govern-
ment as a party to the Act of Algeciras, and a repudiation of the
specific promises to maintain and respect such treaty obligations
which the French Government expressly assiimed as a condition
precedent to its assumption of political power in Morocco. It is
inconsistent, moreover, with the mission wh'ichis incuinbent upon
it by virtue of its position of protecting Power, sincc it proceeds
on a theory of ordre pzcbl nhich, mhile purporting to protect the
interests of the protected State, in effect seems to l>e designed
pnmarily to protect itsown. The Government of the United States
could not be a party to a course of action which purports to nullify
treaty limitations which, properly assented to by the sovereign of
Morocco, have become in effect its constitution and its charter and

represent, in the peculiar relationship of a protectorate, the
guaranties of' its survival and progressive rehabilitation to a
position of independence and self-government.
The Government of the United States has always been ready,
on the other hand, to negotiate with both France and Morocco
any iemporary or permanent arrangement consistent with the
existence of these guarantees. Contrary to the assertiori of the
Reply (p.25), the Counter~Memorialof the United States has not
introduced the slightest confusion in maintaining that the tcm-
porary waiver or suspension of its treaty right had to result from
bilateral negotiations. The principle that mutual consent is legally
necessary to suspend the operation of the treaty is valid at al1
times. independently and irrespective of any other consideration
such as the practice of assent under extratemtorial jurisdiction,
and the more so in a situation of this type where the treatics are the
constitutional guaranties of the State of which the fundamental
interests are at issue. Indeed, the modem treaties upon whicli the
French Government relies, far from supporting its claim to a uni- REJOINDER OF THE U.S.A. (18 IV 52)
IO.5
lateral power of abrogation or suspension of treatp obligations.
uphold the principlc of bilateral negotiations.
The International Rlonetary Fund Agreement in no way
supports the contention that a State may unilaterally and arbitra-
rily impose import prohibitions on the basis of financial considera-

tions. For one thing, the Keply specifically admits that the agree-
ment does not abrogate anterior treaties. For anothcr, Article VIII,
Section 6, of the Agreement dcals with the possibility that parties
may have anterior engagements conflicting with the exchange
restrictions contemplated in the special or temporary circumstances
specified in the Agreement, and expressly provides :

"Where under this Agreement a member is authorized in the
special or temporary circumstances specified in the Agreement to
maintain or establish restrictions on exchange transactions, and
there are other engagements between members entered into prior
to this Agreement which conflict with the application of such
restrictions, the parties to such engagements will consult with one
another with a view to making such mutually acceptable adjust-
ments as may be necessary. The provisions of this Article shall be
without prejudice to the operation of Article VII, Section 5."
The French Government. while ready to claim al1the alleged bene-

fits deriving from the agreement, declines to abide by the one obli-
gation-the obligation of prior consultation-to which the benefits
of the agreement are subject l.In the circumstances, al1 the argu-
ments presented in the Reply concerning the construction of various
other articles of the Agreement are irrelevant and supcrfluous.
This constatation, of course, is not to be construed as an admission
of their intrinsic validity by this Govemment ;the position taken in
this respect in the Counter-Memorial is entirelv maintained (see

PP.The reliance on the Economic~~~-~~eration Aereement iseauallv

invalid to support the claim of the $*ench ~o%nment. It would
be a most peculiar result if the desire of the parties to establish
policies appropriate to their mutual needs, including palliatives to
French financial difficulties, should be carried out by bilateral
agreement, but construed as permitting one of them unilaterally
and arbitrarily to impose upon the other its understanding of the
means by which such mutually-agreed policies should be imple-
mented. The Government of the United States has always proceeded
on the contrary assumption. The very statements from various
officiaisof the Economic Co-operation Agreement cited in the
Reply were al1 directed to the establishment in the Congress or in

the courts of the United States of the fact that it was proper for
this Govemment and the French Government mutually to agree
to a temporary suspensio of pre-existing treaty rights actually in

(seeCounter-Mernoriapp.c333-339. Vol.1).VII, Section 5. the scarce currency article106 REIOINDEI tF THE U.S.A.(18 IV 52)

conflict with their policies. To rely on these statements for the
purpose of establishing oii the contrary the unilateral and arbi-
trary right of the French Government to suspend the same
treaty right is without justification of any sort, not to mention the
provisions of Article VII, pnragraph I:

"The two Governmentswill.upon the request of either of them,
consult regarding any matter relating to the application of this
Agreementor to operntions or arrangements carried out pursuant
to the Agreement."

\Vith regard to the French conteiition that the rights to a regime
of commercial freedom without prohibitions onimports isdependent
upon privileges of extraterritorial jurisdiction, it is sufficient to
refer to the history of the negotiations conducted by France with
foreign Powers before aiid after the establishment of the Protec-

torate for the purpose of guaranteeing to them the maintenance of
their right to commercial frecdom in exchange for the surrender of
their rights of extraterritorialjurisdiction, to prove conclusively
that the commercial rights had, and still have, an existence and
validity in al1 respects independent and distinct from those of
rights of extraterritorial jurisdiction.
It is submitted that the Reply fails in its contention that the Act
of Algeciras, orlater agreements, provided the French Government,
acting for Morocco, with the unilateral and arbitrary right, based
on the theory of L'ordrefizbblic:
(a) to depart from the regime of free trade without prohibi-

tions on imports provided by the Act and previous treaties ;
(6) to impose the absolute prohibition on imports resulting from
the Decree of December 30, 1948, without prior consultation and
agreement with the Government of the United States.

B. ASSESSMEN TF CUSTOM S~UTIES

(Reply. pp. 31-38)
In its Counter-Memorial, the Government of the United States
maintained that, under Article 95 of the Act of Algeciras, customs
duties on imported merchandise should be assessed on the basis
of its value on the market of origin plus expenses incidental to its

delivery to the custom-house, but not includiiig customs duties
and storage fees. (See Counter-Memorinl, pp. 343-354. Vol. 1.)
The French Government does not question as such this inter-
pretation, and admits both the validity of the method and its use
by the customs aiithorities in I\lorocco (see Reply, pp. 32, 33 and
37). The French Government contends, however, that Article 95
defines customs value as the value of the merchandise at the time
and place it is presented for customs assessments and that, under
this interpretation,Article 95 admits concurrently of two methods
of valuation :the mcthod supportcd by the United States, and an l<EJOINDER OF THE U.S.A. (18 I\'52)
Io?
additional method according to which customs diities on imported
merchandise are calculated according to the prevailing price of
similar merchandise on the Moroccan market on the day it is
presented for customs assessment, deduction made of customs
duties and storage fees.

The text of Article 95, in the view of this Government, does not
admit of the concurrent existence of the two methods of valuation
which the French Government advocates. The text provides the
followiug clues to the calculation of ad valorentduties : the customs
value is "the cash wholesale value" of the merchandise "delivered,
"rendue", at the customs house and "free", "franche", fromcustoms
duties and storage dues. Tosupport the CO-existenceof two methods
of valuation. the French Government supplies a general principle
of calculation which is not in the text of Article 95. The customs

value, the Reply asserts, is always the value "at the place and on
theday" the merchandise is presented for assessmcnt (italics added ;
Reply, p. 37).This element of time ,ccording to the Reply, would
be implicit in the word "delivered", "rendue", since "...it would
appear to be a condition inherent in both men and things that they
should never be in a particular place without being there at a parti-
cular time as well ...."(Reply, p. 33). This pronouncement is true,
but entirely irrelevant to the issue. The question is not whetherthe
merchandise being "delivered","rendz~e", is there on a particular
day. The question is why the customs value should be determined in
relation to the localmarket price on the particular day of assessment.
The Reply fails to supply any justification forthe introduction of an

element of calculation which cannot be found in the text of Arti-
cle 95.The Reply does not explain, moreover, how the principle that
the customs value is always calculated "at the time" of presenta-
tion of the irnport for assessment can lead to two entirely opposite
constructions of the relevant elements of calculations provided by
Article 95. Under the method of valuationadvanced by this Govern-
ment as exclusive, and admitted by the French Government to be
a valid alternative method, "cash wholesale value" means the
value of the import on the foreign market where it is bought.
"Delivered", "rendue", accounts for transportation and other
costs incidental to completed delivery. "Free", "franche", means
that the customs duties are at no time included in the calculation of
the customs value of the merchandise. Under theadditional method
which the French Government reads in Article 95, "cash whole-
sale value" becomes the sale value on the local market, "delivered",
"rendue", determines theday upon which the value of the merchan-
dise is evaluated, and "free", "franche",means that the customs
duties are subtracted from the customs value.

The texts of Articles 82, 85 and 86, further, do not admit of the
ccmcurrent existence of the two methods of valuation which the
French Governmclit rcads into Article 95. The method of valuation108 REJOISDEK OF THE U S.A. (18 IV52)

upon mhich the French Government and the United States Govem-
ment are in agreement leads to a reasonable and rational construc-
tion of Articles82, 85 and 96. Since the primary consideration is
the value of the merchandise on the market where itwas bought,
Article 82 properly requires the importer to file a declaration of

value which is a personal estimate, based on variable factors
within his own knowledge. The customs authonties must then
independently estimate the value of the merchandise to check it
against the declared value, but must be prevented from arbitrary
assessments. To this end the Committee on Customs Valuations of
Article 96,with the help of established traders selected in relation
to the relative importance of the commerce of each nation, are
supposed to determine from year to year, or at six months inter-
vals when necessary, the minimum and maximum customs values
of the principal merchandise. The estimate of the customs author-
ities is thus balanced against the value declared by the importer

within the minimum and maximum limits fixed by the schedule.
Since fraud in the declaration of value is still theoretically possible
for the merchandise on the schedule, and obviously possible for
those not on the schedule, Article 85 provides the penalties
applicable in such a case. The additional method of valuation which
the French Government supports leads on the contrary to incon-
sistencies and difficulties of interpretation. Article 82 loses its
meaning. The importer must file a declaration of value, but the
value of similar merchandise on the local market on the day of

presentation to customs is readily obtainable as a matter of public
knowledge, and the customs duties paid on these merchandises must
be ascertained from the customs officials themselves. There is no
need for the filing of a declaration of value. Nor is there room for
fraud. Article 85 equally loses al1 meaning. The French Reply
disposes of these inconsistencies by dismissing Articles 82 and 85
as articles of pure form without any real or practical purpose and
by construing Article 96 as a provision which deprives the
importer of the opportunity to calculate the customs value of his
import, substitutes fixed and predetermined values, and obviates
accordingly the possibility of either argument or fraud. This,
homever, is a clear misconstruction of Article 96 since it does not
require a determination of a fixed and predetermined value for
each item of merchandise, but rather permits of the establishment
of a schedule of minimum and maximum values. Moreover, the
argument in respect to Article 96, as well as the argument presented
in respect to Articles82 and 85, cannot remove the contradiction
in which the duality of methodç of valuation siipported by the

French Government results. Starting from the priuciple that, under
Article 95, the determination of customs value is made at "the
time" of assessment, the French Government obtains two coustruc-
tions of Articles82. 85and 96 : one in which al1the articles have a REJOIKDER OF THE U.S.A. (18IV 52)
'09
reasonable meaning and show a logical correlation ; the other in
which they have no meaning nor purpose.
The French Govemment attempts to explain the presence of
a dual method of valuation thus : in normal circumstances of

free competition the prices on the market of origin are close
enough to those on the local market to be a matter of indifference
and permit assessments based on the cost value of the import
on the market of origin ; but in extraordinary circumstances,
the competitive advantage enjoyed by the forejgn importer over
the local interests, i.e. French interests, must be nullified by
adoption of the second method since, other\vise, the customs
duties would not reflect the actual sale value of the import. This
reasoning, iii the view of the United States Govemment, can

find no support iii Article 95. The point becomes evident as soon
as the normal rules of interpretation are applied which require
a determination of the intent of the parties ut the time the instru-
ment was negotiated. At the time of the conclusion of the Act
of Algeciras, there was no contemplation in the mind of the
parties of the extraordinary circumstances to which the Keply
refers. Only normal circumstances of full and open competition
were envisaged, as was made clear by the inclusion iii the Prearnble
of the Act of the controlling principle of economic liberty without
inequality. Article 95, therefore, did not contemplate the use of

a second method of assessment specially designed for extraordinary
circumstances and based on the sale ~~alueof the import on the
local market.
The argument that the ad valoremduties of Article 95 coiicemed
export duties as well as import duties does not prove, as contended
in the Reply, that imports were to be valued accordiiig to their
sale price on the Moroccan market. Export duties in Morocco,
except for very feu, exceptions, were specific duties, not ad valorem
duties. To speak of ad valorem duties was equivalent to speaking

of import diities. No difficulties i~rouldanse, in aiiy event, urider
the single rnethod of valiiation supported by both this Govem-
ment and acknowledged as a valid alternative method by the
French Government, siiice the value on the market of origin
in the case of exports would be the cost in Morocco.
In the circumstances, the method of valuation-supported by
the United States and admitted as valid by the French Goverii-
ment-which determines customs value on the basis of value
on the market of origin plus expenses incidental to delivery to
the custom-house but not including customs duties, is the only

proper method of valuation under Article 95 of the Act of Algeciras.
This interpretation is corroborated by the letter of M. Luret
to the American Minister at Tangier dated July 16, 19x2, of
which ashort excerpt was already quoted in the Counter-Memonal'.
* The date of July i8, igi2,oiipage 335of the Counter-Alemori~i. \loi. 1,
sliould read Julr6.110 HEJOlNDEK OP TH13 U.S.:\.(18 IV j~)

As a statement of the proper construction of Articlc gj of thc
Act of Algeciras givcn a few years after its drafting and originating
from the representativc of French financial interests in controi
of hloroccan customs for the purpose of securing rcpaymcnt of
large loans to the Sultan, it has a persuasivencss which warrants
its full reproduction at this point :

"Copy.

Contrôle de la Uettc.
;l'o.566.
Tangier, 16 July ryrz.
Mr. Minister,

Ive have the honor to acknowledge receipt of your coiiimunica-
tion No. 300 of 6 July relative to custom assessment of petroleum
products of the \'acuum Oil Co.
As we have already had the honor to make knowri to you, tlie
Oumana of the ports apply for the appraisal of inerchandise the
mles established by the Act of Algeciras aiid by tlie customs
regulation. They use markct prices, bills of sale, their professional
knowledge.
The bill of saleis an eleinent of valuation, but it is iiot conclusivc
evideuce.
Nevertheless, tlie Customs Service would have becii iiitercstcd
in seeing the bills of sale relative to the petroleum of tlic Vacuum
Oil Co. ;these bills would have been useful documentation, but the
representatives of that Company have always declarcd tkit thcy
do uot Iiave any bills of sale, that they take possessioriof petroleum
products without troubling about the cost price, and that they seIl
them at the price fixed by the Company after deduction of their
commission.
An agent has been willing to indicate to the Oumana tliat tlie
Company debits hirn invariably in the statement of account for
the shipments whicli are made to him, at the rate of 5 francs 50
the dmm, irrespective of the market prices ;but tliese prices being
essentially variable, this price o5.50 cannot serve as the basis for
the duty which must rest not oii an average value fixed once for all,
but on the current aiid exact [value] of the products dclivcred at
the customs office.

You point out to us in your letter of 6 July that tlic Vacuurn
Oil, contrary to what we thought, neither produces nor rcfiiies its
petroleum, thatit biiys it in the United States and is, in coiisequcricc,
in a position to preserit to the customs some authentic bills of sale
of its imports into 3lorocco.
Since this is tlie case, there would be every advantage in tliis
Company's presentirig tliese bills of sale since they would be a useful
element of appreciation for the appraisal of the customs.
The customs lias always proceeded as described above in regard
to petroleum products imported from Fiume and froin Trieste :
for these importers furnish means of appraisal by attachiiig to tlie HEJOINDEK OF THE U.S.A. (18IV 52) III

declarations the original bills ofsale of which the priccs are compared
with the market prices of origin.
It [the customs] will proceed in tlie same fnshion in regard to
the petroleum products of Vacuum Oil whenever the Company
furnishes the means of appraisal which permit comparison with
the current price on the Xew York market for the purpose of
establishing the precisetaxable value of these petroleum products
in drums or in casks delivered at the customs office.
This value includes the purchase price of the petroleum f.0.b.
New York increased hy al1 expenses subsequent to the purchase,
such as export duties paid to foreigii customs, transportation,
packing, freight, insurance, handling, unloading, etc., in short al1
that contributes to make up, nt the moment of presentatiou at the
Customs office, the cash wholesale value of the product according
to which, under Article 95 of the Act of Algecirris, the duties must
be paid.
As regards tlie custorns duties collected in error at Safi on a valuc
higher than that assigned by the table of values, we have author-
ized on 25June last the reimbursement of it to tlie agent of Vacuum
Oil in this port, and we are ready to repay any other sum whicli
this Company gives proof of having paid on a value higher than the
masimum on the table of values.
l'leaseaccept, Mr.Rlinistcr,the assurancesof ourhighconsideration.

For thc delcgates to the Contrôle de la Dette,
G. LURET."

(Translation; for 1:reiich text, see Rejoinder, Aiine2.)

It is subinitted that the French contention fails which inter-
prets Article 95 as admitting not only of the method of valuation
supported by the United States, but also of an additional method
in which customs valuc is determined according to the price of
similar merchandise on the local market on the particular day
it 'is presented forasscssmcnt, deduction made of customs duties
and storage fees.

C. COLI.ECTION OF TAXES
(lteply, PP. 38-44)

In the Counter-Memorial, the Goveriiment of the Eiiited States
advanced the claim that consumption taxes created by the Dahir of
February 28, 1948, were in contravention of the fiscal immunity
provided by the treaties, were illegally collected from America~i
nationals, and shoiild be refunded to them upon presentation of
adequately documentcd claims. This Govcrnment cxpressly dis-
claimed reliance on any capitulatory right of assent for the purpose
of its argument. (Counter-hIemorial. pp. 354-358. Vol. 1.)
In answer, the French Reply contends that no treaty ha ever

conferred upoii the United States any right to a tax immunity in 112 REJOINDER OF THE U.S.A. (18 IV j2)

respect 'of its nationals in Morocco. In support of this contention,
the French Government asserts first that the very claims made in
the past by the United States in respect to fiscal immunity were
always based. not on a specific treaty right to tax exemption, but
on a refusal to recognize as applicable to its citizens legislation to
which it had not assented. The Reply refers (p. 39) to a note from
the American Diplornatic Agent at Tangier to the French Resident
General of Morocco in date of December 3, 1928, which isquoted in
the annexes to the Counter-Memorial on page 720, Vol. 1. The
reference, in the view of the Governrnent of the United States,

establishes beyond question the contrary. The note clearly and
carefully proceeds on two separate grounds : first on the ground
of an autonomoiis right to tax exemption ;second on the general
ground that local legislation, no matter what its nature, fiscal or
othenvise, does not apply to Arnerican citizens without the prior
assent of the United States :
"As Your Excellency is aware, the existing treaties, to which the
ShereefianEmpire and the United States are parties. categorically
debar the former from imposing upon the nationals of the United
States any taxation wliatsoever, except the customs duties and
certain other taxes which are specified in the said treaties. The
previous consent of the United States Government is therefore
essential before any fiscal innovationcan be legally cnforced upon
its citizens and proteges. Its furthermore beyond dispute that the
American Government enjoys the fullest liberty to grant or to
withhold, as it may think fit, its assent to the application to Ame-
rican ressortissants in the Shereefian Empire of any legislation or
fiscal enactments introduced by the Jloroccan Government."
(Counter-3fernorial.Annex 49.)

The French Governinent next advances an analysis of treaties
the purpose of which is to show that no az~tonomous right to fiscal
exemption ever existed in Morocco. Such imrnunity asthere existed,
according to the Reply, always derived. not from a specific treaty
right to tax exemption, but from a capitulatory right-the right
to refuse to recognize as applicable to foreigners any local law, fiscal
or otherwise, by virtue of the exercise of extraterritorial jurisdiction.
The text of the treaties does not support the contention. -4rticle 4
of the General British Treaty of 1856, on which the Reply first
relies, provides :

"They [British citizens] shall be entitled to hire, on lease or
otherwise, dwellings and warehouses ....They shall not be obliged
to pay, uiider any pretence whatever, any taxes or impositions.
They shall be exempt from al1military service, whether by land or
çea; from forced loans, and from every extraordinary contribu-
tion....(Counter-Mernorial,Annex 20.)
There is nothing there to suggest that tax exemption is a capitula-
tory privilege unless it be assurned that the right to hire, on lease
or otherwise, dwellings and warehouses is equally of a capitulatory IIEJOISDER or; THE U.S.A. (18IV 52) 113

character. The same reasoning applies to the exemption from mili-
tary servicc which, if it were a capitulatory privilege, should hardly
have been granted again to British subjects by the French Govern-
nient in Articlc 8 of the 1937 Franco-British Convention for thc
abrogation of capitrilations in hlorocco. The contention loses everi
more merit in the light of the fact that tax exemptions in commer-
cial matters were granted in the British Commercial Treaty con-
cluded on the same date as the Gencral Treaty ;it could hardly bc
maintained that commercial tax exemptions should bc deemed of a
capitulatory character. The Memorial of the French Govcrnment,

' moreovcr, nevcr intimated in its review of treaties, or in the argu-
ments, that tax exemption in the Moroccan treaties wcre of a capi-
tulatory nature ; nor did it ever indicate that it included under the
definition of capitulatory privileges tax exemptions (sce pp. 33, 39,
43, 52 and 53, Vol. 1).
The repeated assertion that al1 tax exemptions in the Moroccan
treaties, evcn the commercial ones, were of a capitulatory character
are directed to cstablishing one point : the abrogation of the tax
exemption provided in the British Commercial Treaty of 1856.
Having assertcd that al1tax exemptions, including those in matters
of commerce, arc of capitulatory character, the Reply proceeds
to demonstrate that al1the tax cxcmptions of British citizens were
terminated as a result of the tcrmination of their rights of extra-

territorial jurisdiction. The reasoning, hourever, has no validity.
The renunciation to rights of extraterritorial jurisdiction, including
the right to refuse to recognize as applicable to British citizens
any local legislation, fiscal or othcrwise, without the previous
consent of thc British Government rcsulted from the express terms
of Article 1 of the 1937 Convention for the abrogation of capitula-
tions and related articles. The abrogation of the specific right to
tax exemption granted in Article 4 of the General British Treaty
was specifically accomplished in Article 4 of the Protocol of Signa-
ture (Counter-Dlemorial, Annex 93).
The Franco-British Convention of 1937 abrogated only those
articles of the Gcneral British Treaty of 1856, which are specified
in Article 4 of the Protocol, but had no effect on the Commercial
Treaty concludcd oii the same date. (See Protocol of Signature,

Article 4, hlinutc, Article 4, and Exchanges of Xotcs, No. 9 ;
Counter-Memorial, Annex 93.) Thc Commercial Treaty contains,
in the terms of the Reply, a fiscal immunity for "commercial
operations", meaning that iio tax, in addition to import and
export duties, may be imposcd on the goods of British subjects
(see Articles 3, 7, 8 and 9). Through the most-favorcd-nation
clause, the Governmcnt of the United States is crititlcd to the
saine fiscal immuiiity. The Dahir of Fcbroary 28, 1948. imposing
consumption taxes on merchandisc belonging to United States
nationals, violated this right, indcpcndeiitly of any qriestion of
assent under the regime of extraterritorial jurisdiction claimed in

8114 REJOIXDER OF THE U.S.A. (18 IV 52)

this proc'eeding by this Government. The Counter-Menional has
develo~ed alreadv the ar-uments on this latter oint (see
pp. 355-358, vol.. 1).
In the circumstances, this Government need not prescnt at
this timc extensive comments on thc other arguments advancecl
in the Rcply, although it does not conccde their validity. The
Reply draws the inference from the terms of the Convention of
Madrid that oiily certain protected persoiis eiijoyed fiscal exemption
properly speaking under the previous treaties, but not foreigners
and protected persons as a whole (Reply, p. 41). This assertion
flagrantly contradicts the statement of the Memonal conceriiing
the same Convention :

"1:oreignersand protectedpersons who had hitherto enjoyed the
fiscalexemption are henceforth subject ta two taxes : the agricul-
tural tax and the gate tax (Art12and 13)." (Translation ;hlemorial.
P. 43, Vol. 1.1
Articlcs 12 and 13 of the Convention, as the Memorial properly
points out, substitute partial fiscal immunity for the geueral
fiscal immunity previously in effcct ; those articles thereby con-
sccrated a fiscal regime with respect to taxes which is still in force,

subject to the modifications introcluced under, or pursuant to,
the Act of Algeciras, and \\,hich cannot be abrogated \vithout
the consent of the parties to the Convention. This was the position
of French diplomatic and consular officers prior to the establish-
ment of the Protectorate. Thus the French Consul at Fez reported
on May 28, 1909, to the French Chargé in Tangier:
"'l'lie Sultan has ordered l'Amin Elmostafac to collect from
European nationals and proteges the duties and taxes from which
they were so far exempt.

conimerce, foreignnationals and proteges cannot be subject but to
established taxes: agricultural taxes, taxes on cattle, and customs
duties. It is only with the consentof the Posers signatories 10 the
Co~zue~ttioonf Madrid that theMakhzen may subject foreig?zersor
their proteges0 itw faxes...."Docrrmentsdiplontatiques, Affaires du
Maroc. 1908-1912,158. (Translation ; italics added.)

It is clear from further correspondence on the matter and from
the transmittal of further reports by the Chargé ta the French
Minister for Foreign Affairs that the position taken by the French
authorities was preciseiy the same as the 'one taken by this
Government :

".... The exemptions from special taxes perceived at Fez on
certairi merchandises derive from tlie principle admitted in the
British Treaty and consecrated by the Conventionof Madrid that
one coirld~zotcollect atFez a tax on merchandisewhich hiis ulready
paid ci~stomsduties, or whiclz,[if] destifiedfor export, uiill pay thenz REJOINDER OF THE U.S.A.(18 IV 52) II5

oti goirzg out of Morocco." Documents diplomatiyires, Aflairesdzr
Maroc, 1908-1912,182. (Translation ;italics added.)
So far as concerns the argument that the Act of Algeciras was

ahrogated, in respect of fiscal matters, by the establishment and
recognition of the Frcnch Protectorate, the Governmcnt of the
United States refers to the statements and arguments in point
in the Countcr-Memorial, pages 293-300, 391-396, Vol 1. With
respect to the propriety of an argument which alleges the
necessity of disregarding restraining treaty limitations for the
overt motive of modernization, reference is made to the argu-
ments presented in Chapter 1, A, of this Rejoinder.
It is suhmitted that the French Reply fails in its contention
that the right of exemption from taxes is not an autonornous
right based upon distinct treaty provisions.
So far as coucerns the statemerit in the Reply that the French

Govemment "has never recognized" the "existence" of the right
of assent in fiscal matters, or otherwise, tbis Govcrnment notes
that the French Resident-General has requested the assent of
this Government to "tax legislation" no less than some 36 tiines
in the period 1920-1937, and some 23 times from 1938-1948 In
addition there is reproduced here the self-explanatory note
addressed by RI. Marchat, Diplomatic Counsellor of the Residency
of the French Republic in Morocco, to the American Consul-
General at Casablanca on August 14, 1948, following the latter's
protest against the application of the consumption taxes of the
Dahir of February 28, 1948, to the importation of an American
national :

"Residency-General of the French Republic in Morocco.

Diplomatic Cabinet.
No. 458D.

NOTE
By a note No. 35of 21July last, the Consul-Generalofthe United
States at Casablanca called the attention of the Diplornatic
Counsellor of the Protectorate to the dispute whicli lias arisen
between the Customs Service and the American citizen Clarence
C. Nelson, regarding the interna1 consumption taxes applicable
to a shipment of IO tons of tires.
M.llarchat has the honor to inform Xlr. Fletcher that the Dahir
of February 28, 1948,modifying the rate for said taxes, has been
submitted for the approval of the Department of State by a letter
addressed on 20 April following to the Diplomatic Agent of the
United States at Tangier.

No response having yet been received from Rlr. I'litt, this Resi-
dency-General directs the Customs Service to calculate according
to the former rates the taxes applicable to importation under
reference.116 , RE]OIKDER OF THE U.S.A.(18 IV j2)

M.Marchat nonetheless takes this occasion to cal1tlic attention
of Mr. Fletcher to the inconveniencesof a procedurc urhichpermits
American ressortissants to escape, often for coiisider;rble delays,
tlie fiscal regulatioii of the Protectorate, and pl;iccs tliem thus,
in fact, in a privileged situation in relation to their competitors,
which is contrary to the principlef economicetluality proclaimed
by the Act of Algeciras." (Translation; for I'rencli test see
Rejoinder, Annes 3.)

Either M. Rlarchat recogiiized, an1gq8 ,he capitulatory immunity
of American citizens from the application of any local legislation,
or else he recognized the specific right of American' citizens to
tax exemption under tlie treaties. This Government does not
deem it necessary to determine which of the two the letter
recognized, since either supports its contention that the taxes
at issue were improperly collected from American citizens.

CHAPTER II

EXTRATERRITORIAL JURISIIICTIOX

111its Counter->fernorial. the Governmeiit of the United States
directed its arguments to cstablishing t\vo points : the scope of
the rights of extraterritorial jurisdiction mhich it rcceived from
hlorocco ;the continuing validity of these rights after the establish-
ment of the Protectorate and up to the present date.
In order to establish the scope of the rights of jurisdiction
received from Morocco. the Counter:Memorial relied on the prin-
ciple of personality of law whenever a problem of interpretation
so required; thus the scope of the specific rights of jurisdiction
granted in the United States Treaty of 1836 was analyzed by
reference to this principle. The meaning and effect of the most-
favored-nation clause in the hloroccan treaties was also deterinincd,
to the extent possible, by reference to the special circumstances

which prevailed at the time of its inclusion in treaties of capitu-
lation.
In order to establish the continuing validity of thc rights after
the establishment of the Protectorate, the Countcr-Memorial
relicd, among other things, on custom and usage and on the
fact that the United States could still claim throiigh the most-
favored~nation clause the jurisdictional rights granted to Spain
in 1861. The practice of the French autbonties silice the surrender
of British jurisdiction in1937 and the history of tlie negotiations
for the United States recognition of the French Protectorate
were also taken into consideration.
With respect to the argiiinents concerning the scopc of the
rights received by the United States, the Reply ignores the fact
that the Counter-Rfemorial relies on the principlc of pcrsonality I<EJOISI>EK 01:THE U.S.A.(16 IV j2)
117
of la\\, solely as a principle of interpretation. The United States
Government, the Reply alleges, argues for thc adoption of this
principle in modcrn international law as a principle of gcneral
and absolute application always prevailing i~i Mohammedan
countries, in place ofthc principle of territorial sovereigiity normally

applicable. Similarly; according to the Reply, the historical inter-
pretation of the most-favored-nation clause advanced in thc
Counter-Memorial purports to establish with respect to Morocco
and other RIohammedan States a special rule resulting in an
inequality of treatment not permissiblc uiider modern inter-
national la\\,.
With respect to argiiinents concerning the contiiiuiiig validity
of United States rights after the establishment of the Protectorate,
the Reply alleges that the territorial sovercignty of the State
of Morocco is iiicoml~atihle with the maintenance of such rights.

Al1other foreign States, according to the Reply, have surrendered
to Morocco the spccial rights of jurisdiction which thcy commonly
cxcrcised in previous times ;the United States, thcrefore, cannot
maintain against Morocco these special rights. To hold otherwise
\vould be to advocatc the coiitinuance of a priiiciple of inequality
between hforocco and other nations, and to csclude hforocco from
the henefit of the principles of equality and justice which are
the foundation of modem international law.
The Govcrnment of the United States proposes to answer the
French argiimcnts within the general fraiiic~rork of the plan
previously followed in the Counter-Memorial ; this wiil include

consideratioii of arguments relating to the riglit of assent, siiicc
this right has been treated in the Counter-Memorial as a necessary
corollary of extraterritorial jurisdiction. This cxamination of
specific arguments will be followed by gencral conclusions and
observations oii the issue of extraterritorial jurisdictioti.

A. SCOI'EOF THE RIGHTS OF JURISDICTIOS CRrlSTED IS THE USITED
~T.~TES TKEATY OF 1836 ASD 1s THE BRITISHTREATY OF 16j6
(Reply, l'P. 4-47)
The principlc of personality of law, according to the Reply,

is invoked by the United States Governmcnt as govcrning "today
in the Islamic world" the relations between the Statcand foreigners
(p. qj). Xo agreement, nor any general principle of international
law, the Reply objects, sustains today siich a doctrine. The
objection is entirely predicated upon a part of a sentence of the
Counter4femorial whicli the French Reply translates and quotes
as follows':

"....aujourd'liui [now] dans le moiide (le l'Islam, l'étranger
devrait [shoiild]Etre tenu en dehors de la vie clcla société locete
de la protection juridictionnelle offerte par celle-ci et mener son
existence selon sa propre loi". (Italicsddecl ;Reply, p. 45.) KEJOISDER OF THE U.S.A. (18 IV j2)
118
This quotation has been taken out of context. The teuse of the
controlling verb, moreover, has been changedl. The original
passage of the Counter-Memorial is reproduced below :

"Szich was the historical developmentof the practice of extraterri-
toriality at thebeginning of the 16th century when theiropean States
begantoenterintoregtclartreatyrelationswith theMohammedanStates.
The practice was embodied in those treaties. Treaties concluded
with the Ottoman Empire, first by France (1528-1535)and there-
after by practically al1 European Powers-Great Britain, the
Netherlands, Austria-Hungary, Sweden, Italy, Denmark, Russia,
Spain, Belgium, Portugal, etc.-and with Algiers, Alorocco,Tripoli.
Tunis, Persia, hfuscat and Zanzibar, Egypt, Ethiopia, etc., provided
for extraterritorial jurisdiction ranging from exclusive jurisdiction
of the foreign consuls in cases, civil and criminal, iiivolving their
nationals only, to jurisdiction in mixed cases, civil and criminal, in
whichtheirnationalsweredefendants. TheMohammedancommrrnities
merely continued the precedentsand practices which once in Europe
and now in the Islamic world commanded thatthe Joreignerbe kept
outside the life aitd jurisdictioi~alprotection of the local society and
live instead accordingto his own law. Differencesbetween the Chris-
tian and hfohammedan civilizations, religious and othenvise,
undoubtedly fostered the maintenance of relations according to
the principle of extraterritoriality.$'hile legal ivriters have given
various explanations forthe continuance of the system in hfohamme-
dan countries at a time when in Europe the principle of personality
of law had given way to the principle of territorial sovereignty,
they agreeon the conclusionthat theorigin of the system of extraterri-
torialitytt Mohammedan countriesis to befound in the immentorial
practice and respect of the principle of personality of law." (Italics
added.)

The Government of the United States is aware of the difficulties
attaching to problems of translation. These difficulties, it must he
presumcd, have led the French Government to interpret the state-

ment at issue in a sense quite different from that obviously assigned
to it by the Counter-Alemorial. All possible error is removed,
however, when the complete sentence is replaced in the context
from which it is takeu, the verbs are left in their original tense,
and the conclusion to which the paragraph leads is taken into
consideration. The Counter-Memorial clearly did not review the
development of the principle of personality of law for the purpose
of explaining the growth of capitulatory rights today, in 1952, but
ohviously invoked it as a principle of iriterpretation explaining the

growth of capitulations in Mohammedan States "at the heginning
of the 16th century when the European States began to enter into
regular treaty relations with the Mohammedan States". The French
objection is without. validity.

' The Government of the United States noted that the French translofthe
Counteralernorial prepared by the Court rnaintainedverbin its proper tense. I<EJOiSDER OF THE U.S.A. (18IV 52)
II9
The Reply, moreover, decliiies to interprct the meaning of the
United States Treatics of 1787 and 1836 by reference to the intent
of the parties nt the Limeoftheir drnfting. The sole issue in this part
of the argument, it shoiild be noted, is whether or not the text of
Article zo of the Unitcd States Treaty of 1787, renewed in 1836,
was intended to graiit to thc American Consul jurisdiction in civil
and criminal cases arising between his nationals, or only in civil

cases. The Counter-Memorial accordingly presented arguments
directed to cstablishiiig the meaning of this provision by reference
to appropriate treaties and the pnnciple of personality of law which
then controlled the developnient of extraterritorial jurisdiction in
Rlorocco.The Reply has advanced no answer to these arguments,
except the assertion that the Counter~hlemonal did not rcproduce
accurately the distinction advanced in the Memorial between
Const6lnr Jz~risdiction and Cafiitz6latoryJzarisrliction and did not,
therefore, properly dispose of the issue. The Government of tlie
United States denics this assertion and rests on the record of thc
arguments prescntcd in the Memorial on pages 53, 54, and 55,
Vol. 1, in thb Countcr-hlemorial on pagcs 363-369, Vol. 1, and in

the Reply on pages 46 and 47, Vol. 1.

B. THEA~OST-F~\\~OKEII-XAT COASUSEAIIGU~IEST
(Reply, pp. 47-57)

(1)The Reply declines to interpret the most-favored-nation
clause in the light of the circumstances which shaped its develop-
ment in treaties of capitulation. To propose an historical inter-
pretation of the clause in the Moroccan treaties is not, as contended
in the Reply, to advocate the existence of a rule of inequality
hetween Mohammedan States and other nations. The use of the
historical approach is merely an application of thc normal rules
of interpretation of international instruments.The attitude of the
French Government in the matter is the more difficult to under-

stand since the proposed method of interpretation would appear
to be especially appropriate when dealing with a snbject as
specialized as extraterritorialjurisdiction. It is perfectly proper
in the view of the Govemment of the Unitcd States to take notice
of some historical considerations for the purpose of determining
whether the clause alwayshad in the Moroccan treaties the meaning
which thc Reply would ascrihe to it today.
It was noted already in the Counter-Memorial, and the Reply
does not deny it, that the most-favoured-nation clausc theory upon
which the French Government relies is a modcrn theory, repre-
senting a crystallization of the practice of the end of the 19th
century and the heginniiig of the 20th. Thc hloroccan treaties in
which the inost-favored-nation clause is included are from an

older period. The practice which developed the modern theory
was essentially a European-Amencan practice, not a practice120 iIEJolsnlrl~01:THE U.S.:\. (18 IV j2)

iiivolving &Iohammedan States. The rights upon rvhich the clause
tvas to take effect were of an cntirely different character. Iii oiie
practice the meaiiiiig of the clause \vas developed priiicipally in

connectioii with commercial rights. In the other the clause often
had as a major purj~oscthe securing of capitulatory rights. In the
circumstaiices, it is a reasonablc contention that the most-favored-
nation clausc of thc hforoccan treatics cannot be assumetl a 9riuri
to have had at thc time of its incliision in such treaties the mcaiiing
and effect upori which the modern practice is now in agrecmcnt. It
is characteristic, morcover, of the problem of interpretatioii of the

meaning and effect of the clause in this particular case that the
contentions of the parties iiullify one another. The Goveriiment of
the United States objects that the general modern riile, in the
absence of contrary proof, caiinot be presumed to apply. The Freiich
Government coiiversely objects that, in the absence of coritrary
proof, the regionalizatioii of the effect of the clausc caiiiiot bc
presumed to apply (p. 48).

It becomes imperativc, therefore, to give coiisideration to factors
which may properly be determinative of the interpretation of the
clause in the hloroccaii treaties. It is difficult to believe that the
clause was utilized from the beginriing of aloroccan treaty proctice
with the inteiit of obtaining the same clear-cut and tlcfiiiitc effects
which mark its opcratioii today in modern practice. And the more
so since the precise effect of the clause was still a matter of debate
and controvcrsy iiiEiiropean-American practice before the eiid
of the 19th century. The precise intent or effect of the clausc in the
?vIoroccantreaties is thus largely a matter of conjecture, iiridcr any

theory, and more particiilarly under a modern theory responding to
different needs and preoccupations. The clause must havc had,
however, at least the effect which evcn authorities supportirig the
modern theory recogiiize as Iiaving been characteristic of its early
development. Farra, Hornbeck and Ito (see Counter-&lemorial,
pp. 373-374, Vol. 1) have pointed out that originally it \iras110 more
than a device to avoid the specific enumeration of advalitages graii-
ted in other treaties. tlt what point, if any,theclause wasiisedin the
bforoccan treaties with the understanding that the original purpose
of permanent incorporation by reference was to be terminated is
obviously agaiii a matter of coiijecture. But if France fclt it could
maintain against Brazil froni 1857 to 1878, through the inost-

favored-nation clause, n clairn to the permanent benefit of rights
not any longer enjoyed by third States, it is not by aiiy nleaiis
unreasonable to suppose tliat France and other foreign Powers inay
have conducted their treaty negotiatioiis in Morocco during the
same period or before with the coiitemplation of ascribing to the
clause a similar effect. If anythin~, it mould have bceii e:isier to
obtain in AIoroccosuch an efféctof Checlause, and the interest \!,hich
France aiid other Eiiropean Powers had or were iiicreasirigly iiitciit 1IEJOISI)ICK OF THE G.S.A. (16 1\' j2) 121

iipon securiiig in that State makes it even more likely that they
should have wanted to obtain permanent rights in that couiitry.
In the light of these observations, the Government of the United
States helieves that therc is no reason for holding that the most-
favored-nation clause in the Moroccan treaties inteiidcd tocreate
only temporary aiid dependent rights of extraterritorial juris-
diction. The view applies as well to the most-favored-nation clause
of the Madrid Convention aiid perhaps with even more logic, since
it is difficult to see why this convention should establish on a per-
manent basis rights of protection originating from custom and

usage, and at the same time recognize on a non-permanent basis
the jurisdiction needed by the parties for the exercise of their right
over proteges.
The Government of the United States considers that the Conven-
tion of 3Iadrid accomplished a collectivizatioii of jurisdictional
rirhts in favor of al1 the i~arties and that it \vas not intended to
slbject these rights to the'rnechanical effect of acquisition and loss
which characterizes the effect of the modern most-favorecl-nation
clause. Instead, the prerogatives so acquired became an indivisible
whole, confirmed moreover by the Act of Algeciras, on which later
renunciations by some of the parties rcmain wholly withoiit cffect.
To the arguments made in bath the Memorial and the lieply that

the hladrid Convention could not be deemed to have been concerned
\rith extraterritorial jurisdiction, it may be pointed out that the
French Government at one time took quite a different oiew of the
matter. The President of the French Cabinet, Rlinistcr of Foreign
Affairs, addressed on t\iigiist 21, 1905. a despatch to Freiich
Diplomatic Representatives in Loiidon, Petrograd, Berlin, liome,
\lienna, Washington, Brussels, The Hague, Copeiihagen, Stock-
holm and Lisbon instructiiig them as follows :

"Our Jlinister at Tangier informsme that the ShereefianGoverii-
ment has imprisoned one of our Algerian subjects ..:. ancl made
known ils intention to remove him from our jurisdiction.
This fact is a violatiori of treaties....
Al1 the Powers signatories with Moroccoto the Madrid Conven-
tion of July 3, 1680,or Iiavingadhered toit, have an interest in tlie
recognized by this international instrument, Rloroccaii proteges rule
are removed from Moroccanjurisdiction ; a fortiori the loreigners,
subjects of the Powers, niust benefit of thesame advantage.
1 would appreciate your indicating to the Government to whicli
you are accredited tlie point of view of the Governmeiit of tlie
[French] Kepublic...." Docirmeiztsdiplomatiques, .4faires du Maroc,
1901-~goj. 275. (Translation.)

(2) The positioii of the United States finds addcd support,
moreover, iii the fact tliat the hroroccan treaties, aiid espccially
international acts sucli as the Coiivention of hladrid aiid tlic Act of

Algeciras, werc iii cffect a formalization of existiiig custoins andIZZ REJOISDEK OF THE U.S.A. (18 IV j2)

usages in matters of extraterritorial jurisdiction. As pointed out in
the Counter-Rlemorial (see pp. 385-391. Vol. 1),thelaw-creatiiigpro-
cess which culminated in the acquisitioii by thenationals of foreign
Powers of a special regime in al1countries of extraterritorial juris-
diction $'as not an automatic and rigid procedure, but rather an

heterogeiieous process combining sucli varied elements as custom,
specific trcaty ,provisions. and most-favored-nation treatment. The
resulting regime, therefore, cannot bc deemed to owe its existence
to the slxcific and mechanical effect of the clause which the French
Government, proceeding from a modern and European-rlmerican
concept of the clause, assigns to it for the purpose of its argument;
The arguments advanced in the Counter-hlemorial on this point,
far from contradicting the arguments presented in relatioii to the
specific provisions of the treaties, arc their logical continuation.The
trcaties are a means of ascertaining the regime of extraterritorial
jurisdictioii to which, at the end of the development of the institu-

tion of extraterritorial jurisdictioiiiiMorocco, the nationals of al1
foreign Powers had become entitled. The negotiation by France of
a series of agreements for the surrcnder of rights of extraterritorial
jurisdiction with States whicli never had had treaty relations of
any kind with Morocco confirms precisely the validity of the coii-
tentioii of this Government (see Counter-Memorial, p. 385. Vol. 1.)
The Reply, hourever, suggests that these renunciations did iiot
have for their primary purpose the surrender of special privileges,
but were intended primarily to be forma1 declarations of acceptailce
of the jurisdictional system recently established by France iii
Morocco. The effect of these declarations, and the legal consequen-

ces which the French Government draws from them will now be
considered in connection with the related question of the effect of
the renunciation by Spain of its rights of extraterritorial jurisdic-
tioii in the French Zone of Morocco, under its Treaty of 1861.

(3) According to the Reply, the position of the United States
Government in asserting that the Spanish-hloroccan Treaty of
1861 has never been abrogated is groundless. Thus the Reply
concludes that the Government of the United States caniiot
rely upon its provisions to justify the continuing existence of
its rights of extraterritorial jurisdiction in Rlorocco.

By way of preliminary remark, note should be taken of the
ruling of the Court of Appeals of Rabat in date of July 12, 1921,
previously quoted on page 381, Vol. 1, of the Counter-Rlemorial :
!'\Vhereasthis principle is more spccificallystated by Article 5
of the Treaty concluded Uecember zo, 1861, between Morocco
and Spain, treaty the benefit of which most foreign Powers can
claim by application of the most-favored-nation clause, clause
granted notably for France by the 1)iplomaticAct of May28, 1825,
theïreaty ofSept. 10, 1844,and the Conventionof Madridof July 3,
1880(Art. 17) ....Rec. arr. Rabat. 11,1923.1924.No. 264, pp. 411
etS. (Translation.) KEJOISUEK OF THE U.S.A(18 1%j2) 123

Either the Court considcred that the most-favorcd-nation clause
of the Convention of Madrid did incorporate permanently the
provisions of the Spanish Treaty of 1861, or else the Court in
1924-10 years after the conclusion of the FrancolSpanish agree-
ments alleged to have abrogated the Spanish Treaty of 1861-
was taking the position that the Spanish Treaty of 1861 was
still in effect. The alternative arguments presented hy this Govern-
ment are consequently far from being as unfounded as the lieply
would assunie.
The Reply asserts that al1 questions concerning the validity

of the Spanish Treaty of 1861 have been settlcd by the obser-
vations presented by the French Government in the course of
the Preliminary Objection which took place earlier in this pro-
ceeding. The Government of the United States caiinot agree with
this sweeping generalization and confusion of issues. In its Preli-
niinary Objection, the United States Government merely sought
to secure clarification as to whether or not the States of France
and Moroccowere Parties to the case. Theprecaution waswarranted,
since in the observation of this Government, the French Govcrn-
ment had been careful in the past to, specify in its international
acts whether or not it was acting in a particular case for and
on behalf of Morocco. Examples were cited by this Government
for the single purpose of cstahlishing proof of this practice as
wcll as the manner in which the distinction had been made clear
iii the past. The .comnients of the French Government on the
substance of these examples were superfluous and unnecessary.
An unambiguous statement, consistent with the past practice in

point, would have met the objection and immediately clarified
the capacity in which France was acting, since thc Preliminary
Objection did not at any timc question the general competence
of the French Govcrnment to act for Rlorocco iii its capacity
of protecting State, but sought to ascertain whet~Ithe spccific
instance, the French Government was erercising its competence
to act -for Morocco. This simple statement was supplicd hy the
French Agent, by lcttcr dated October 6, 1951.
The Reply argues that in both the French-Spanish Treaty of
November 27,1912, and the Franco-Spanish Declaration of
Rfarch 7, 1914,the negotiations between France and Spain were
the implementation of the competence which Rlorocco recognized
France to possess under the Treaty of March 31912 .he United
States Government does not, and has never denied, tkit the
Treaty of March 30, 1912, so far as concerned States which
recognized the Protectorate, was effective totahlish France as
the protecting State of Rlorocco, nor does it deny that as an

outgrowth of this position, France became competent to deal
with other States regarding its newly-acquired powcrs within
the whole of Rforocco. This acquisition of competencc, however,
does not determine in advauce whether or not the competence KEJOISDEH 01: THI:u.s.:\(1s IV jz)
124
is in fact exercised in a particular case. This must bc dctermined
in cach particular instance and it is plain that France, in negotiating
\\rith Spain regardiug Spanish iiiterests in hlorocco, negotiated
for itselfalone and that the agreements with Spain did iiot have
the effect of briiiging about ail agreemeiit with the State of

Rlorocco as \\.ell. It would not be in accord with the facts to
maintain that by virtue of the terms of Article 1 of the Treaty
of March 30, 1912, France acted for llorocco in negotiating with
Spain in 191~. Article 1 mcrcly scts forth that France would
coiisult with Spain regarding Spanisli intcrests. And the note
atldressed by the French Ambassador to the United States
Secrrtary of State on January 19, 1917, makcs it clear beyond
rr doubt that this Article rcferrcd to negotiations hetween the
Governments, "not of Morocco, but of Francc and Spain". (Coiinter-
Rlemorial, Annex 45.) Sincc the Government of Morocco \\,as to
bc specifically excepted, ho\v can it be argued now that the State

of Norocco was included in the ncgotiations ? The French Govcrn-
ment fails to distinguish between possession of competence and
cxercisc of competence. In the negotiations with Spain its com-
petence to act for >Iorocco \voi~ldhave been clear. But the French
Government chose not to excrcise its competence and acted in
the negotiations for the French Government alone.
The French Reply notes an "error in judgment" (p.53) on the
part of the United States Governmcnt which it attributes to "a
misunderstanding as to the effects of the Protectorate Treaty".
If so, the ahundant litcrature on protectorates for which French
writers are in large measure respoiisible is in surprising contrast
with the views which the French Government holds today with

respect to the status of the State of Morocco in international law.
It cannot be denied that the establishment of a protectorate rela-
tionship does not entail the disappearance of the protected State
as an international entity. There is no annexation and the terri-
tories of the two States remain distinct. The Treaty of March 30,
1912, did nothing more than to set forth restrictions on the exercise
by Norocco of some of its powers because the State of Morocco
so agreed. The State of hlorocco retained al1 that it did not relin-
quish. It cannot be understood, therefore, how the French Govern-
ment could claim that, when the States of France and Spain reached
agreement, Norocco was aii uniiamed but participating party.
Morocco is not a part of France ; the Moroccan Government is

distinct from that of France; thus, whcn France negotiated, it
negotiated for it~elf alone. To bind hlorocco there should he at
least some express indication that Morocco was intended to bc
bound. This proposition, persuasive because of its consisteiicy iii
terms of logic andfact, finds addcd support in numerous statemcnts
made by writers fully familiar with thc status of protectprates.
Scelle notes the following : KEJOISDER OF THE U.S.r\. (18 IV j2) 12 j

"'l'lieprorrcted gov<:rniiit,iit<I«t:siiot losc jiiridic;illy ttic ;iptirii(l~
for iiirernatioiial coiii1,ctenc;iii<ii.oiild\i.lioll\,recoiIli? e\crciir:
of it the dav on whicfi the nrotectorate would-end in law or in fact.
Its particication in international juridical acts is therefore neces-
sary for the validity of the latter ...." Scelle, Droit iilternatioizal
fiahlic (1944), 194. (Translation.)
"tlll its [the protected governrnerit] international activity is
conditioned by la tutelle, but in tliis iiiternational activity it inter-
venes in name." Scelle, ibid. p.,150. ('ïrnnslatioii.)

Similarly, Anzilotti states that :
"Generally, the protector State assumes the exclusive represen-
tation of the protected State in international relations [rapports] :
it is to the protector State that the international rapports of the
protected State lead [aboutissent] : it is the [protector] which
concludes international acts, [and] whicli, in particular, concludes
treaties iii the name and on behalf of the protected State." Anzilotti,
Coirrs de Droit itrfer~iatio?ia(l1929).227. (Translation.)

Aiid Despagnet :
"13ut the protected country keeps its owii individuality in inter-
iiational relations : it is still a distinct State wliicli remains re-u-
lated, from the diplomatic point of view, only by the conventions
which it has personally concluded or which, after the protectorate,
its protector has concluded for him arid iriits iiame." Despagnet,
Essai szrrles Protectorats(18gG),360.381. (l'r;inslatiori.)

It must bc readily apparent, therefore, that what is at issue bere
is not a matter which involves merely questions of form, as the
I<cply contérids. If action taken hy France, without specific desig-
iiatioii that Morocco is alsoreprescnted, were deemed nevertheless
to apply to and bind Morocco, the way would be open forfurther
claims that the status of Morocco has gradually altered and that
its identity remains no longer separate and distinct from the
identity of the protecting State. The Covernment of the United
States, therefore, believes it necessary to maintain due regard for

tlic lcgal position of Morocco, especially as concerns what the
Itcply describes as a pure matter of forrn. The importance of the
iisc of the precise form has been indicated by Gairal :
" ....Rut even in the case in which the treaty is negotiated and
concludedon behalf of the protected by the protector,the personality
of the former remains distinct both in form and in substance. iVith
regard to form, the very terms of the convention indicate that the
protector ncts only in capacity of representative. \Vith regard to
substance. the benefit or obligatiori under the trerity extends to
the person of the subordinated State, as the regular acts of a tutor
benefit the minor or bind him directly." Gairal, Le Protectorat
international, 178. (Translation.)

The United States Government does not find surprising the results
wliich follow frorn the proper analysis of the international status126 REJOINDEH OF THE U.S.A.(18 IV 52)

of the State of Morocco in rcgard to the renunciations of capitula-
tions by foreign Powers. Contrary to the statement of the Reply,
this Government has not failed to realize the true scope and effect
of these renunciations. The Declarations renouncing rights under
capitulations (see Counter-Memorial. p. 293, Vol. 1, and Annex 39)
are, by their express terms, declarations betiveen France and the
declaring party. The Dcclarations are limited to the French Zone of
the Shereefian Empire. The declaring governments do not expressly
give up capitulatory rights coiiferred by the State of Morocco but
agree not to claim these rights vis-à-vis France. These declarations,
from their inception, have of necessity been valid only between
the parties specified in the instrument, and a conclusion that they

do not bind Rforocco would simply define the situation as it has
always existed.
According to the Reply, the negotiations with Spain which
were carried on in 1912 and 1914 may be likened to what is regarded
as a more recent example of the exercise of the international compe-
tence of Morocco, as illustrated by the Economic Co-operation
Agreement betwecn thc United States and France of June 28, 194%
But, in the opinion of the United States Government, a cornparison
of the French-Spanish agreements with the French-United States
Agrcemcnt of 1948 provides apt illustration to the contrary. Both
the Convention of Novembcr 27, 1912 (Counter-Memorial, An-
nex 38).and the Declaration of Marc11 7, 1914(Counter-Memorial,
Annex 94). were, by their terms, concluded solely hetureen France
and Spain, with no mention that Rforoccowas intended to be a
contracting party. However, in the Economic Co-operation Agree-
ment concluded between the United States of America ànd France,

it is made absolutely clear in Article SI that France was expressly
meant to include the French Zone of hforocco.Thus, in this case the
French Government must be regarded as having negotiated and
concluded the agreement on behalf of the French Zone of klorocco,
and it results therefore that contrary tothestatement of the French
Government (Reply, p. 53),RIoroccomust he regarded as a party
to the treaty.
In the circumstances, this Government is clear that the proper
conclusion in this matter is as follo\vs: In view of the protected
status of itforocco-under which Rloroccohas retained its identity
as a State-it cannot be presumed that any and every agreement
by France implies agreement by Morocco as well. The French
Government has, in the past, employed a formula according to
which the French Government acts on behalf of Dlorocco. Use
of this formula evidcnces the realization by France that, in order
to bind Rlorocco, express indication must be made that France
acts to represent hforocco. If this formula is to have any significance

or meaning of and by itself, either of two results must obtain :
when France expressly acts "on behalf of ?vIorocco",Morocco is
bound ; when France acts alone, with no indication of.intent to126 HEJOISDER OF THE U.S.A. (18 IV j2)

the assent of thc United States before inaking the local la\\. involved
applicable to American iiationals, coiistitiited an overt and con-
tinued recognition of the immunity of Amcricaii nationals froni
the application of such local law.

II. GEKERALOBSISRVATION ASD CONCI.USIOK SN THE ISSUE OF

EXTHATERRITOKI AUR.ISDICTION

The Government of the United States has at no tirne in this
proceeding maintaincd the view that the principle of personality
of law should be recognized as a general rule of modern law taking
precedence in Mohammedan countries, such as Alorocco, over the
priiiciple of territorial sovereignty. The Counter-Rlemorial properly
took the position that the institution of extraterritorial juris-

diction shoiild be analyzed by reference to the principle which
fostered its development, the principlc of personality of law, and
properly objected that the principlc of territorial jurisdiction,
which is today the general rule, could not be accepted as a valid
priiiciple of interpretation of the meaiiing and effect of the treaty
l~rovisions wliich rcflcctcd over the years the varions stages of
development of the institution. The Counter-blcmorial further

maintaincd, and with equal validity, that thc most-favored-
nation clausc of the Moroccan trcatics, like any other treaty
provisions, should be iiiterpreted in the light of the circurnstaiices
which i~illiicncecland shaped its meaning aiid cffect. The allegation
that the reliancc of this Goi~ernment upon normal riiles of inter-
pretation is devised to impose upon llorocco a status of inequality
among modern States is not only basecl on a miscoiistruction of

the United States position in justification of which the grounds
are surprisingly inadequate, but is in addition a paradoxical
attempt to reverse the respective positions of the Parties and
ignore thc realities of the situation.

~- ~ ~~~
~ ~" ,
which result from the ~reity of Fez are sweeping and far reaching.
It is a safe assumption that the French Govcrnment would not be
willing to recognize the Treaty of Fez as invalid on the ground that
it is predicated on a principle entirely inconsistent with the modern
principles of supremacy of territorial sovereignty and equality
of States in international law. This being so, the regime of extra-
territorial jurisdiction \%.hich\vas in full force and effect in Morocco

in 1912 may just as much be analyzed as ail admissible exception
to the principle of territorial sovereignty as the Treaty of Protec-
torate concluded at that time.
The alleged concern of the French Governmcnt, with recognition
of the priiiciple of territorial sovereignty,s, moreover, a convenient
guise for the furthering of its own interests in Morocco. The French KEJOISUEH OF THE U.S.A. (18IV 52) 129

Governinent could he expected, in vie\\, of its arguments, to advo-
cake scrupuloiis respect of the sovereignty of the State of Morocco.
Nevertheless it contends that it may negotiate agreements binding
upon Morocco without ever specifying that it acts for and represents
the State of Illorocco, a contention which denies the retention by
Norocco of its idcntity as a State and \vould lead, if admitted,
to the gradua1 alteration of its sovereign status and couceivahle
reduction to a inere territor!; undistinguishahle for al1 intents
and purposes from the territory of metropolitan France and its
colonies. The French Government purports to protect and increase
the territorialovereignty of Morocco by obtaining the termination
of United States rights of jurisdiction in Morocco. Yet the French
Government in fact seeks to obtain the siihjection of United
States natiorials to its\\11system of jurisdiction in Morocco and
thus seeks to obtain an extension and enlargement of the exercise
of its own sovereigri powers in that country. Any douht on the
point has been removed by the very terms of tlie requests made hy
the French Governmcnt to the United States Government on Octo-
ber 7, 1913;and July 16, 1914. for the placing of American citizens
under the "riew jurisdiction" which "is intended to supersede the

French consiilar courts", and for agreeing "to place persons subject
to .4mericaii jurisdiction under that of Our courts". (Counter-
Memonal, Annexes 42 and 43, pp. 668 and 683, Vol. 1.) Appeals from
the French coiirts in Morocco, it should be noted, are made tothe
Supreme Court of France. It should be eqiially observed that, sur-
prisingly enough, the system of jurisdiction which France thus
maintains in Morocco for foreigners but not, generally speaking,
for Xoroccans, is predicated in effect ou the very principle of per-
sonality of la\\~,the rejection of which is so forcefully argued in the
Reply, even as a principle of interprctation of the historical develop-
ment of extraterritorial jiirisdiction in Morocco~eforethe establish-
ment of the Protectorate.
In the vie\\. of the United States Governmeiit, it is not proper
for the French Government to attempt to subject American
nationals to its own jurisdiction through the device of advancing its
arguments under the cover of Aforoccan sovereignty. By itself
the claim is inconsistent with the position whiChis incumbent upon
the French Government as protecting Power, since the purpose of
the argument is to further its o\rn jirrisdiction in Morocco. The
claim, further, is inadmissible because the French Government
relies solely upon an artificial situation of its own making. The
French Government elccted from the inception of the Protectorate
to develop a system of justice of its own in Morocco to exercise
jurisdiction over foreigners, and not to let Morocco re-assume the

jurisdictioiipreviously granted to foreign Powers under the system
of extraterritorial jurisdiction in force hefore 1912. There were
ohvious alternatives, and itis no answer to argue that the Moroccan
courts, 40 years after the establishment of the Protectorate, are not
9 XEJOIKDEH OF THE U.S.A. (16 IV j2)
130
ready to assume the complete administration of justice in their
o\vn State. The claim, finally, is inconsistent with the status of
Moroccoas a sovereign State in international law, since it proceeds
on the theory that France, acting alone and without specific
mention of Morocco, has nevertheles'i made Morocco a party to
agreements concluded with foreign Powers for the renunciation
of their rights of extraterritorial jurisdiction. The Government of

the United States cannot recognize a position purporting to nullify
the requirement of specific designation of the protected State since
this requirement is, in the peculiar relationship of a protectorate,
the sole guaranty of the maintenance by Norocco of its identity
in international law.
It is submitted that the Reply fails in its contentions that the
United States :
(a) obtained only civil junsdiction in the Treaties of 1767 and

1836 ;
(b) does not possess al1 the rights of jurisdictioii which it
possessed prior to the establishment of the Protectorate by virtue
of specific treaty provisions, the effect of the most-favored-nation
clause, and custom and usagc :
(c) cannot claim, as a corollary, immunity for its citizens from
the application of the local law except when such local law has
received its prior assent.

CONCLUSION AND SUBMISSIONS

The Government of the United States believes that the treaties
and international agreements to which it is a party with Morocco
have created binding obligations, the termination, adjustment or
renewal of which should be a matter of bilateral negotiatioiis, in
conformity with established procedures under international law.
The Govemment of the United States has always heen ready and
still stands ready to negotiate with both France and Morocco any

necessary. or advisable arrangement or agreement, temporary or
pcrmanent, to replace and recast in a form more properly adapted
to present circumstances the treaty bounds originally contracted
with the State of Morocco.
There does not exist, in the view of this Government, any com-
pelling necessity of any kind requiring or permitting the French
Govemment to seek or obtain sanction of a right unilaterally and
arbitranly to depart. ignore, or violate the treaty obligations which
bind the protected State of Morocco and the United States. \lihile
it is tme that under any treaties or agreements there rnight be.
special or new circurnstances svhich may require new adjustments,
it is equally tme that in the special situation of a protectorate the
claim of the protecting State to liberation from restraining treaty KEJOIKDER OF THE U.S.A. (18 IV 52) I3'

provisions must be examined with the greatest circumspection.
For this purpose, treaty provisions which bind Morocco, and which
France must respect and has indeed specifically undertaken to
respect, must be lookedupon asconstitutionalguaranties which, by
their limitative effectupon the powers of France in Morocco, are
a legal warrant of Morocco'ssurvival as a separate entityand sover-
eign State in international law.

The claim of France in this instance should be rejected, since
it is clear that its claim to a right to discard the restraints of pre-
existing treaty obligations is inspired, wholly or in part, by purposes
of self-interest rather than interest in the welfare of Morocco. In
support of its view, and in explanation of the failure of treaty
negotiations undertaken so far between the United States and
France acting on behalf of Morocco, the Govemment of the United
States quotes the statement made in 1939 by the chief French dele-
gate to the negotiations conducted at that time, as this statement
was reported in the approved minutes :

"In that connection he [Mr.Marchal] stated that since the war
the North-African coast had assumed a position of the most vital
importance for France. He added the wholly personal opinion that
it was orily by means of the development of this North-African
cHe observed that he foresawintasna possible political development
in Morocco during the next thirty years the transformation of
French Morocconot as a part necessarily of metropolitan France
but in a relationship much closer than it occupies today. Conse-
'quently, the abrogation of the Act of Algeciraswould give France
the advantage of pursuing, as circumstances permitted, the latter
development ; and the new negotiations which he had in mind
pursuing with us would, whileadmitting a new freedomof develop-
ment ta France in this regard. at the same time safeguard Our
essential economic interests in French &loroccofor a period of
thirty years." (Minutes,Meeting of July II,1939.)

In the circumstances, the Governmerit of the United States, with-
out prejndice of observations and submissions further to be pre-
sented, mairitains in their entirety the submissions presented to
the Court on pages 406-408, Vol. 1, of its Counter-Mernorial.

(Signed) ADRIANS. FISHER,
Agent of the Government

of the United States of America. LIST OF ANNEXES

:\nncxNo.
Report from the Office of E.C.A. Special Representative in Europe
on French trade liberalization, dated August j,1950 . . . . I
Letter from M. ~uret, Controller of Moroccan Custorns, to the
American Minister in'rangier, dated July 16.1912 .. . . . . 2

Note from the Diplomatic Cahiiiet of the Freiich Resideiicy to the
American Consulate-General at Casablanca, dated August 14, 1948 3 .4SSI:XESTO U.S. REJOISDER (SO.1)

ANNEXES

REPORT FRObI THIS OFFICE OF E.C.A. SPECIAL
REPRESENTATIVE IN EUROPE ON FRENCH TRADE
LIBERALIZATION, DATED AUGUST j, 1950

Date Seiit : August j, rgjo.
Date Rec'd : August g, 1950.

To :Economic Co-operation Administration,
IVashington, D.C.
Office of E.C.A. Special Representative in Europe,
Paris.

The entensioii of liberalization of trade measures to tlie various
territories of the Freiich Union is under consideration. This action lias
been made dependent on the re-establishment of tariff protection for
goods originating within the Frencli Union. Preferential tariffs were
suspended in most of the territories of the Union during tlie war and
the immediate post-war period. (See TOECA-TOREP DISPATCH 326of
Feb. I, 1950, describiiig trade liberalization policies in Metropolitan
France and O.E.E.C. Document TC(50)57, Paris, 24 July. 1950 ,Trade
Committee Liberalization of Trade iii the Dependent Overseas Terri-
tories of Member Countries".)
Siiice tariffs are enacted separately under varying coiiditions iii tlie
different territories, the following summary of the positioii in respect
to tariffs and trade liberalization has been prepared.
(1)Algeria is an administrative group of three "dcpartcmeiits".
Tariffs are identical to tliose in Metropolitan France. The December
liberalization listserc extended by administrative act of the Metro-
politan Excllange-Control Office dated December zS,rgqg, followiiig
the re-establishmeiit of tariffs.
(2) Guadelotrpe, Martinique, Guia~raand Kezrnion, the four overseas
departments, Iiave the sarne tariff as AIetropolitan France with certain
exceptions. The December lists were made applicable by administrative
act of the Aletropolitan Exchange-Control Office dated July 30, 1950,
after these tariffs had beeri re-established. Twelve products of minor
importance nere excepted from the lists.
(3) The Overseas Territories (those admiiiistered by the Alinistry
of Overseas France) fall into three sub-categories:
(a) French West Afric<r and the French Pacific possessions (New
Caledonia and Oceania) are permitted to establisli their own'tariffs
subject to approval by tlie Metropolitan governmeiit. I34 ASNEXES 10 U.S. KEJOINDER (NO. 1)

Recently the Deliberative Assembly of the Federation of French
West Africa re-enacted and revised the tariffs which had been suspended
during the war. This action becomes effective October 2 if it is not
. disapproved by the Metropolitan government before that date. Simul-
taneously, this assembly rejected the liberalization list until such tirne
as French \Vest-African products should be adequately protected on
act and their desire to offer this protection in order to secure adoption
of the list. (See TOECA-TOREP DISPATCH 553 of .Tuly26). No immediate
action is in prospect. --. - . .
New Caledonia andOceania,the Pacific territories mentioned above,
have re-established preferential tariffs. Liberalization lists are expected
to be applied there-shortly.
(b) Madagascarand the ComoresIslands are subject to the same
tariffs as Metropolitan France. However, action by the Metropolitan
Parliament is required to re-establish tariffs which were suspended
during the war in these territories. In addition, the local assembly
may request that exceptions be made. According to officiaisin the
Ministry, reestablishing these tariffs wiil require a considerable time.
(c) Togo, the Cameroonsand French EquatorialAfrica are subject
to international agreements prohibiting the enactment of preferential
tariffs. Togo and the Cameroons are United Nations trusteesliip terri-
tories, and the Federation of French Equatorial Africa (with the
exception of one of its component territories, the Gaboon, and part
of another, Chad) is subject to the Congo Basin Convention established
by the Act of Berlin in 1885and the declaration of Brussels iti 1890.
to these territories despite the lack of protectioii for French goodsion
and the problem posed by the extension of preferential treatment
under the terms of this international agreement only to the members
of the O.E.E.C. However, no immediate action is in prospect.
(d) The GaboonTerritory and fiart of Chad (see 3 c above) can.
theoretically, vote the re-establishment of tarifls and subsequeiitly
receive the benefits of liberalization since they have the same status
as French West Africa and the Pacific possessions. However, the
technical problein of separating them from the Iiederatioii of which
they are a part appears insoluble until the status of the Federation
as a wliole is determiried.
(4) Moroccois a French protectorate subject to the Act of Algeciras
of 1906. The problem in Morocco is the same as that in the territories
of 3 c above.
(5) Tunisia, anotlier protectorate, is a special case. For certain
products Tunisia is part of a customs union with France, Algeria and
the overseas departments. For others, Fraiice aiid the territories
mentioned above are accorded prefereiitial treatment. Kevision of this
complicated structure is under study. Liberalization is subject to this
revision and is iiot expected to be applied for a coiisiderable time.
(Sigrrad)Trhibioss. ANNEXES TO U.S. KEJOINDEK (No.2)

Annez z

LETTER FROM M. LURET, CONTROLLER OF MOROCCAN
CUSTOMS, TO THE AMERICAN MINISTER IN TANGIER,
DATED JULY 16, 1912

CONTRÔLE DE LA DETTE.
No 566. Tanger, le 16 juillet 1912.

Monsieur le Ministre,

Nous avons l'honneur de vous accuser réception de votre communi-
cation n" 300 du 6 juillet relative à la taxation en douane des pétroles
de la Vacuum Oil Co.
Ainsi que nous avons déjàeu l'honneur de vous le faire connaître, les
Oumana des ports appliquent, pour l'estimation des marchandises, les
r&glesétablies par l'Acte d'Algésiraset par le rhglement des douanes.
Ils utilisent les mercuriales, les factures, leurs connaissances profession-
nelles.
La facture est un élémentd'appréciation, mais elle ne fait pas obliga-
toirement foi.
Néanmoins, le ServicedesDouanes aurait eu intérêt à prendre connais-
sance des factures relatives au pétrole de la Vacuum 011Co. qui aurait
étéune utile documentation, mais les correspondants de cette compagnie
ont toujours déclarén'avoir pas de factures, prendre en charge les
pétrolessans s'occuper du prix de revient et les vendre au prix fixépar
la Compagnie sur lequel ils préléveraient leur remise.
Un agent a bien consenti à indiquer aux Oumana que la Compagnie le
débite invariablement et pour mémoire des envois qui lui sont faits,?
raison de 5 frs. 50 la caisse, quels que soient les cours des marchés,ma!s
ces cours étant essentiellement variables, ce prix de 5.50 ne peut servir
de base à la taxation qui doit porter non pas sur une valeur moyenne et
fixéeune fois pour toutes, mais sur celle actuelle et exacte des produits
r~nd~e au bureau de douane.
\'oii.inot1.iIlitcs rrm;irqucr },:Ir\.otr<.Iilii(3jiiillet quI:V;iciiiim
Oil, cuntrnirt.iiiri:,cr i~iirii!ii~>m~~ioriits, produit. ni tic rnfinc son
nCtrol~,..IU'<~IIIa.liitt' nitx Etnts-lli~ii et ,iA. urtr suite. cii rnesure de
présenter à la douane des factures authentiques de ses importations au
Maroc.
Puisqu'il en est ainsi, ily aurait tout avantage pour cette compagnie
à faire présenter ces factures qui seraient pour les estimations de la
douane un utile élément d'appréciation.
La douane a toujours procédé commeil est dit ci-dessus àl'égarddes
pétroles importésde Fiume et de Trieste, pour lesquels les importateurs
lui donnent des moyens d'appréciation en joignant aux déclarations
les factures originales dont les prix sont comparésavec les cours des
marchés d'origine.
Elle procédera de la même façonrelativement aux pétroles de la
Vacuum Oil le iour où celle-ci lui donnera des movens d'a~~réciation
qii'r.1p.otirr:i rappri>clirr<lit,iir3ctuels du nl<irclide Ne\\.-Yorkpuur
<:tat>liravec pr$sisioii la. valeur impos:iblde ses i~c'trolesen caisses ou
en barils rendue au bureau de douane.136 :\XNEXES TO U.S.REJOISDER (s". j)

Cette valeur comporte le prix d'achat du pétrole f. o. b. Xew-York
augmenté de tous les frais postérieurà l'achat, tels que les droits de
sortie acquittés aux douanes étrangères, le transportl'emballage, le
frêt,l'assurance, les manipulations, le débarquement, etc., eiiunmot tout
ce qui contribue à former, au moment de la présentation au bureau de
douane, la valeurau comptant et en gros du produit suivant laquelle
doivent, d'après l'ar95 de l'Acte d'Alghsiras, êtreliquidéçles droits.
En ce qui concerne les droits de douane perçus par erreur à Safi sur
une valeur supérieure à celle attribuée par le tableau des valeurs,
nous en avons autorisé à la date du 25 juin dernier le remboursement
à l'agent de la Vacuum Oil dans ce port, et nous sommes prêtsà faire
rembourser toute autre somme que cette compagnie justifierait avoir

payée sur une valeur supérieure au maximum du tableau des valeurs.
Veuillez agréer, Monsieur le Ministre, les assurances de notre liaute
considération.

P. lesDéIC.guéasu Contrôle de la Dette,
(Signé) G.LURET.

S. E. Monsieur F. IV. CARPENTER,

Ninistrc des Etats-Unis d'Amérique au Maroc.

A iinexe 3

NOTE FROM THE DIIJLOMATIC CABINET OF THE FRENCH
RESIDENCY TO THE AMERICAN CONSULATE-GENERAL AT
CASABLANCA, DATED AUGUST 14, 1948

RESIDEKCE GÉNÉRALE DE I.A RÉPUBLIQUE FRANÇAISE AU NAROC

Cabinet diplomatique

NOTE
No 458 Il.
Parune note np 35 du 21 juillet dernier, Monsieur le Consul général

des Etats-Unis à Casablanca a bien voulu appeler l'attention du
Conseiller diplomatique du Protectoratsur le différend qui s'est élevé
entre la Direction des Douanes et le citoyen américain Clarence C.
NELSON.au sujet des taxes de consommation intérieures applicables
à un chargement de IO tonnes de pneus.
M. MARCHAT a l'honneur de faire savoir à Monsieur l.7~.~~~~q~~e
le dahir du 28 février 1948, modifiant les tarifs desdites taxes, a été
soumis à l'agrément du Département d'Etat, par. une lettre adressée
le20 avril suivantà DI.l'Agent diplomatique des Etats-Unis à Tanger.

Aucune réponse n'ayant encore étéreçue deM. PLITT,cette Résidence
générale prescrità la Direction des Douanes de calculer suivant les
anciens tarifs les droits applicableà l'importationdont il s'agit. ASSEXES TO U.S. REJOlSDER (XO.3) I37

11.A~ARCHn Aen saisit pas moins cette occasion d'appeler l'attention
de Monsieur FLETCHER sur les inconvénients d'une procédure qui
permet aux ressortissants américains d'échapper, pendant des délais
souvent considérables,h la réglementation fiscale du Protectorat, et
les place, airisi, eii fait, dans une situatioii privilégiéepar ràpport
leurs concurrents, ce qui est contraire au principe d'&alité économique
proclamé p:~r l'Acte <l'Algésiras.

Rabat, II:14 aoiit 194%

Consulat gEiiéraldes Ctats-Unis,
Casablanca.'