Foreign Relations of the United States, 1952–1954, Africa and South Asia, Volume XI, Part 1

771.00/4–3053

Memorandum Prepared by the Legation in Tangier¹

confidential

Tangier, [April 30, 1953.]

Informal Comments on Points Raised by French Minister’s Note of April 25, 1953

1. The reservations which it was desired to make at the time of the signature of the Protocol of November 10, 1952, were not new reservations and did not apply to the terms of the Protocol itself. They were a simple reiteration of the formal reservations made at the time of the acceptance by the United States Government of the joint Franco-British invitation to participate in the provisional international regime created by the Agreement of August 31, 1945, to the effect that the United States Government’s decision to participate in that regime did not imply adherence to the 1923 Statute (as revised in 1928). It should be clear that if it had been the United States Government’s intention to adhere to those Acts or to modify or abridge in any manner (1) the position of the United States, (2) the status of its representatives, (3) the establishment, authority and powers of its extraterritorial jurisdiction, and (4) any rights accruing to the United States and to its nationals and ressortissants from treaty, custom, and usage, the United States Government would clearly have so indicated. In this connection the United States representative also pointed out in his statement to the Committee of Control on March 24² that none of the specific amendments to the 1945 Agreement contained in the present Protocol diminishes in any way the rights of the United States under that Agreement. The position of the United States in Tangier, therefore, remains the same as that which resulted from the acceptance by the United States in September 1945 of the invitation to participate in the provisional regime on the basis of the Agreement of August 31, 1945. Accordingly, it does not appear correct to suggest that there would not have been unanimity, since the signature took place under already-existing and recognized reservations. The same would of course apply to ratification or adherence. Similarly, it cannot be held that reiteration of these reservations, which were unaffected by the terms of the Protocol itself, were made a posteriori, or that they would have been inadmissible even at the time of the vote on the Protocol.

2. The United States reservations as stated on March 3³ were not retroactively requested, since they constituted a reiteration of the existing and recognized reservations of the United States Government to the 1945 Agreement, as indicated above.

3. The United States Government is not claiming a right of veto after a recorded vote. On the contrary, it was careful to point out in its Note of March 3 that despite its known objections to the reestablishment of the Mixed Bureau of Information, it had desired to abstain in the vote on that proposal instead of voting against it, which would have had the effect at that time of vetoing the entire Protocol.

4. The statement that the United States accepted de facto to participate in the provisional regime of Tangier by taking part in the Committee of Control, and that such acceptance entails consequences which it is not within the power of the United States to modify, overlooks the fact that the United States is not trying to modify its position but merely to maintain the situation as it has existed since 1945. In effect, the United States participates in the provisional regime not on the same basis as other member states, but under the conditions set forth in its acceptance of the invitation extended to it in 1945 by the French and British Governments. This was made clear in the note of the Department of State to the French Embassy at Washington, dated September 22, 1945,⁴ and by the letter from the American Diplomatic Agent to the President of the Committee of Control on November 6, 1945.⁵ If other Governments participating in the provisional regime had objections to the reservations of the United States, those objections should have been made in 1945, and the United States should have had the opportunity to decide at that time whether it wished to participate on that basis.

5. While the position of the United States in Tangier is acknowledged to be one resulting from international law, it does not follow that United States rights are those of any state in general, and of any state signatory of the Act of Algeciras in particular. The United States has long made formal reservations of all of its rights, whereas other signatories of the Act of Algeciras may have agreed to modify some of their rights when they became parties to the Tangier Statute of 1923. The United States has never adhered to that Statute, or to subsequent revisions thereof.

6. The representative of the United States takes part in the provisional Tangier regime as his Government’s representative under the arrangement growing out of the Tangier Conference held in Paris during August 1945.

7. The decision of the International Court of Justice of August 27, 1952 established that American Consular jurisdiction in the French Zone of Morocco was reduced to jurisdiction over civil and criminal disputes between American citizens and/or protégés and to those cases enumerated in the Act of Algeciras. The United States is scrupulously respecting this decision. The decision of the International Court of Justice was limited to the French Zone of Morocco, however, and had no obligatory effect on the exercise of extraterritorial jurisdiction by the United States in the Zone of Tangier.

8. Concerning the statement that, according to the decision of the International Court of Justice, the United States has no rights in Morocco resulting either from treaties other than that of 1836,⁶ or from custom or usage, it is reiterated that the ruling of the International Court of Justice can have no obligatory effect in the Zone of Tangier.

1. This memorandum was an enclosure to despatch 459 of Apr. 30, 1953 from Tanker. (771.00/4–3053)
2. The text substantially appears in telegram 403 to Tangier, Mar. 18, p. 208.
3. Ante, p. 206.
4. Foreign Relations, 1945, vol. viii, p. 663.
5. Ibid., p. 672.
6. The treaty of peace and friendship with Morocco of Sept. 16, 1836 entitled the United States to most-favored-nation commercial privileges and certain rights of extraterritorial jurisdiction. (8 Stat. 484)