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

271.11/5–753: Circular airgram

The Secretary of State to Certain Diplomatic Offices¹

confidential

Washington, May 7, 1953—7:35 p.m.

United States Reservations to the Tangier Protocol of November 10, 1952

Reference is made to the Legation Tangier’s Despatch No. 419 of April 17, 1953² regarding United States reservations to the Tangier Protocol of November 10, 1952, and adherence by this Government to the Four Power Convention of the same date reorganizing the Courts of the International Zone. The following represents the Department’s position on the legal questions raised in the reference despatch. It also outlines, for the Legation’s comments, a suggested course of action regarding US adherence to the Convention on judicial reforms which takes into account existing problems relating to telecommunications and consular jurisdiction.

1. Problem Concerning the Protocol

On March 24, 1953, the US representative read at the meeting of the Committee of Control the text of reservations concerning his signature of the Protocol on November 10, 1952.³ These reservations stated that the signature of the Protocol, like the acceptance by the United States of the invitation to participate in the Provisional Regime of 1945, did not imply adherence to the 1923 Statute nor abridgment of the United States position in Tangier, the status of its representative, its rights of extraterritorial jurisdiction, and other rights acquired by treaty, custom and usage.

The French representative in the Committee of Control took issue with this position, on the basis of arguments prepared by Professor Andre Gros.⁴ The gist of the French position is that the United States is either in or out of the Committee of Control, and since it signed a decision of the Committee of Control is bound by it without any claim to a special right to reserve its position, specially as concerns rights of extraterritorial jurisdiction which it is stated the US does not have anyway under the ICJ decision of August 27, 1952.

The legal position, however, presents no real difficulty. The United States in signing a Protocol pursuant to the terms of Article 8 of the 1945 Agreement, could exercise no more powers than are given to it by the specific terms of the Agreement, and the Agreement specifically indicates that the United States exercises a share of administrative power in Tangier, not as a party to the 1923 Statute, but at the invitation of the United Kingdom and France. In signing the Protocol, the United States could act only within the scope of its special position in Tangier, whether it so indicated expressly or not.

Thus the position of the United States in Tangier was not in any way prejudiced by the signature of the US representative to the Protocol of November 10, 1952. As stated by the US representative at the meeting of the Committee of Control on March 24, 1953, the purpose of his statement to the Committee on March 3, 1953 regarding the reservation of the United States rights in the Tangier Zone was to clarify the US position and to preclude the possibility of any future misunderstanding in the Committee regarding the position of this Government. Since in signing the Protocol, the United States representative was acting only within the scope of the special position of the United States in Tangier as defined by the reservations made at the time this Government accepted the invitation to participate in the Committee of Control, no other factor motivated the statement of reservations.

2. US Consular Jurisdiction in Tangier Under the ICJ Decision of August 27, 1952

The contention by the French representative that the scope of the jurisdiction of US Consular Courts in Tangier is defined by the decision of the International Court of Justice of August 27, 1952 is refuted by the Court itself in its statement beginning on page 186 of the Decision:

“It is common ground between the parties that the present dispute is limited to the French Zone of Morocco. It is on this ground that it has been argued. The Court cannot, therefore, pronounce upon the legal situation in other parts of Morocco.”

This Government is prepared to argue that the above-quoted portion of the ICJ decision applies to the total findings of the courts regarding US treaty rights in the French Zone and not to only that part of the opinion relating to US consular jurisdiction. Accordingly, the US position is that the ICJ Decision of August 27, 1952 does not apply to the International Zone of Tangier or the Spanish Zone and, can only be extended to those zones by voluntary action on the part of this Government.

3. Problem Concerning Initialing of the Draft Dahir on Judicial Reforms

At the meeting of the Committee of Controls on November 10, 1952, the US representative initialed a draft dahir, to be signed by the Sultan, putting into effect the reorganization of the courts and incorporating provisions of the proposed Convention on Reorganization of the Courts.

This, however, does not raise any legal problem. In initialing the dahir, our representative simply participated, on the basis of our special position in the administration of Tangier, in one of the normal functions of the Committee—i.e., drafting of legislation implementing a convention. Article 1 of this legislation maintained in effect the previous provisions of Tangier law implementing the 1923 Statute and establishing the jurisdiction of the International Courts over the nationals of foreign powers parties to the Statute. Articles 55 and 56 of the legislation made no reference to adherence by the United States. Our representative properly initialed, by virtue of our special participation in the administration of Tangier under the 1945 Agreement, the text of a dahir which could not affect the treaty position of the United States.

Conclusion re Problems 1 and 3.

It may be concluded from the foregoing that the United States position in Tangier under the Anglo-French Agreement of 1945 has not been affected by either signing the Protocol of November 10, 1952 or initialing the draft dahir which will implement the judicial reforms contained in the Convention of the same date. There remains therefore only the matter of the adherence of this Government to the Convention.

4. Problem Concerning Adherence to the Convention

The Sultan has not yet promulgated the dahir relating to the reorganization of the courts of Tangier. The minutes of the meeting of the Committee of Control of November 10, 1952, provide that the dahirs implementing the Protocol and the Convention on Reorganization of the Courts shall go into effect on the same date. The United States is now asked to adhere to the Convention.

The request stems from the presence in the Convention of Articles 55 and 56 providing that the Convention cannot come into force until adhered to by the powers which have adhered to the 1923 Statute and by the United States. The difficulty is that Article 1 of the Convention states that the courts are charged with the administration of justice to the nationals of foreign powers. To adhere to the Convention is to recognize the jurisdiction of the courts and, so far as the United States is concerned, is to surrender all of its rights of extraterritorial jurisdiction. Yet the Convention, and hence the dahirs implementing both the Convention and the Protocol, cannot come into effect until the United States has adhered to it.

It must be assumed that Article 1 now represents a major purpose of the Convention which was not contemplated during the negotiations and which we cannot satisfactorily fulfill. To adhere to the Convention by Executive action would require us to reserve our rights with respect to Article 1 and thus to defeat a major purpose of the Convention. An adherence to the Convention without reservations could only be accomplished subject to ratification with the advice and consent of the Senate of the United States, a process that would necessarily entail a long delay and hence, under present circumstances, block the implementation of both the provisions of the Protocol and the Convention. On the other hand the problem of US adherence could be obviated by requesting the signatories to the Four Power Convention to amend Articles 55 and 56 thereof so as not to require US adherence to the Convention before it comes into effect.

Recommended Course of Action re Problem 4.

The Department is of the opinion that of the three alternative courses of action outlined above, i.e., (a)requesting that Articles 55 and 56 of the Convention be amended so as not to require US adherence before the Convention comes into force, (b) adhering to the Convention without reservations but with the advice and consent of the United States Senate, and (c) adhering to the Convention with reservations, the best procedure would be for this Government to adhere to the Convention with reservations taking into account the problems relating to the Tangier radio ordinance and US consular jurisdiction.

Additif No. 1, annexed to the Minutes of the Committee of Control meeting of November 10,⁵ provides that the dahir promulgating the Protocol and the dahir promulgating the Convention shall be issued at the same time. It would, therefore, appear that none of the proposed reforms can be accomplished until US adherence to the Convention has been obtained. In view of this circumstance, this Government would seem to be in a good bargaining position to raise the matter of our desire to regularize our treaty position in the International Zone so that it conforms with our present position in the French Zone of Morocco under the findings of the International Court of Justice in its decision of August 27, 1952. At the same time it would, of course, be necessary to obtain enactment, or agreement to enact, a Tangier Radio Ordinance satisfactory to American telecommunications interests in the Zone and which would adequately protect the present and future operations of these interests. In this connection, the Legation is informed that the Draft Radio Ordinance submitted with the Legation’s Despatch No. 359 of March 19, 1953,⁶ is still under study by RCA and Mackay. Both of these companies have indicated a general reluctance to go along with the Department’s desire to regularize our treaty position in Tangier and to subject them to the provisions of a new Radio Ordinance. VOA has examined the draft Radio Ordinance and has taken the position that, as a Government Agency, its operations should be excluded entirely from the provisions of any radio ordinance in Tangier. Alternatively they propose that their operations in Tangier be governed by a Government-to-Government Agreement, negotiated with France as the Protecting Power in Morocco, and which would be similar to agreements covering their operations which have previously been negotiated with Western Germany and the Philippines. Under these circumstances our agreement to extend the provisions of the ICJ decision of August 27, 1952 regarding US treaty rights in the French Zone of Morocco to the International Zone of Tangier would have to be conditioned upon obtaining (a) a satisfactory Tangier radio ordinance which will protect the interests of RCA and Mackay and (b) a Government-to-Government Agreement covering the operations of the VOA Relay Station at Tangier.

The Department appreciates that it would require some time to achieve the objectives outlined under (a) and (b) above, and that therefore it would not appear expedient to make the achievement of these objectives a condition precedent to our adherence to the Convention. Therefore, the best procedure might be for the Legation to approach the various members of the Committee of Control individually and explain our position on the question of our reservations to the Protocol as set forth in the foregoing and state that the United States Government could not adhere to the Convention without reservations except with the advice and consent of the United States Senate, which at best would be a time consuming process. It would have to be explained that this Government has no desire to delay the implementation of the reforms contained in the Protocol and the Convention; that it desires to voluntarily regularize its position in Tangier in conformance with the ICJ decision of August 27, 1952; and that accordingly it would be willing to adhere now to the Convention with full reservation of its present position, after which it would voluntarily extend the provisions of the ICJ decision regarding United States treaty rights in the French Zone of Morocco to the International Zone but only on the condition that such an extension would take place concurrently with the adoption of a satisfactory Radio Ordinance covering the operations of United States commercial telecommunications interests in Tangier and the conclusion of a satisfactory Government-to-Government Agreement covering the operations of the VOA installation in the International Zone. The Department could at the same time inform the appropriate Embassies in Washington of our strong feelings regarding the US position in Tangier under the 1945 Agreement.

Action Requested.

Neither RCA nor Mackay has as yet been informed of the line of action proposed above. However, the Department will approach these companies in an endeavor to enlist their cooperation in this matter during the period that this communication is enroute to Tangier.⁷ The Legation is requested to comment fully on the suggested procedure herein outlined after which further instructions will be forwarded by the Department. The Legation is instructed not to take any further action on this problem until it receives these further instructions.

Dulles

1. This airgram was addressed for action to Tangier; and for information to Paris, London, The Hague, Brussels, Madrid, Lisbon, Rome, Rabat, and Casablanca.
2. Not printed; it summarized a number of communications relating to United States reservations to the Tangier Protocol of Nov. 10, 1952. (771.00/4–1753)
3. Ante, p. 208.
4. Legal adviser to the French Ministry of Foreign Affairs.
5. Not printed.
6. Not printed.
7. Representatives of these companies were called in for a meeting at the Department on June 11, 1953, and the subject was again taken up over the phone on June 15. A memorandum of the first conversation may be found in AF files, lot 60 D 577, “Tangier Treaties & Agreements, July ’28–April 1955, M–19.”