381.8121 El 6/2

The Secretary of State to the Ambassador in France ( Herrick )

No. 129

Sir: With reference to your Embassy’s despatch No. 2127 of February 8, 1921, enclosing a copy and translation of a note dated February 5, 1921, from the French Ministry of Foreign Affairs in reply to the Embassy’s note to M. Briand under date of January 18, 1921, concerning the case of the American Semsar, Allal Weld El-Hadj Boaza Ben El-Mamoon, you are directed to address the Ministry substantially as follows:

I have the honor to advert to the note of the Ministry of Foreign Affairs dated February 5, 1921, in reply to the Embassy’s note of January 18, 1921, communicating my Government’s protest against the assumption by the French authorities in Morocco of jurisdiction over the American protégé, Allal Ben El-Mamoon, and its request that he be released from prison and surrendered to the American consular authorities in Morocco for appropriate proceedings in a consular court of the United States.

[Page 742]

In declining to comply with my Government’s request, the Ministry, in the note of February 5, referred to general principles of international law with respect to the consequences of military occupation and expressed the view that, even without the assent of the United States, the jurisdiction exercised by American Consuls in Morocco, by virtue of treaties and usages, yielded, so far as required in the interest of the security of the occupying forces, to the military jurisdiction established by the French authorities under the Treaty of March 30, 1912, between France and Morocco and under the proclamation of martial law by the Order issued on August 2, 1914, by the Commander in Chief of the troops of occupation. The Ministry also intimated that acquiescence in advance in all military measures necessary for the maintenance of order is regarded by the French Government as having been given by my Government through the recognition of the French Protectorate in Morocco, and in this connection, with reference to what was thought to be a misapprehension on the part of my Government, the Ministry stated that France and Great Britain, without any express agreement suspending the consular jurisdictions, had mutually acknowledged that, as an effect of the establishment of martial law in the Protectorates of Egypt and Morocco, the consular jurisdictions were displaced in favor of the military jurisdictions.

After the most careful consideration of the note of February 5, my Government has directed me to renew in the most emphatic manner the request that the American protégé now held in a French military prison in Morocco be surrendered to the American Consular authorities. I am instructed to make it clear to the Government of the Republic that the existing treaties and usages are regarded by my Government as conferring upon the United States a right to maintain in Morocco courts of justice separate from the local administration for the exclusive cognizance of alleged offenses by American citizens and protégés. My Government cannot admit that a right given to it before the establishment of the French protectorate can be modified in any way without its consent either by the treaty of the protectorate or by the action of French military forces pursuant to that treaty.

With respect to the Ministry’s statement that the Commander in Chief of the forces occupying Morocco has under general rules of international law the right to exercise jurisdiction over all persons so far as may be necessary for the security of the occupying forces, I am instructed to point out that, apart from the question of any principles of international law applicable to a military occupation effected under the peculiar conditions prevailing in Morocco, there is the authority of the French Government itself to support the view that the military jurisdiction should be extended to foreigners only when the offenses with which they are charged threaten the safety of the army of occupation. This necessary limitation upon the military jurisdiction was recognized in a memorial presented by the agent of the French Government in the Casablanca Arbitration of 1909, which contained the following language:

“Occupation, far from entirely destroying the régime established by the capitulations in the occupied territory, affects territorial sovereignty, and as a consequence the fragments of such sovereignty gathered by the Christian States [Page 743] in the form of capitulations, only in so far as the interests of the occupying powers imperatively require. Hence, whenever a dispute or contract brings as contestants only persons who are foreign to the corps of occupation, whenever the infringement that must be repressed does not in any way threaten the safety of the corps of occupation, foreign consuls and persons subject to their jurisdiction retain all their rights and prerogatives.”19

The offenses with which the American protégé, Allal Ben El-Mamoon, was charged were clearly not of a nature to threaten the security of the French army of occupation in a region of Morocco so thoroughly pacified as that in which occurred the events that led to his arrest, and, from the Ministry’s references to the effect of the proclamation of a state of siege and to the duty of the French authorities with respect to the maintenance of public order in Morocco, my Government is constrained to infer that the offenses charged were not seriously regarded by the French authorities as affecting the security of the occupying forces. The question at issue would thus appear to be whether the jurisdictional rights of the United States under its treaties with Morocco have been modified in such a way as to withdraw American citizens and protégés from the jurisdiction of the American consular courts in all cases of the disturbance of public order.

It seems obvious that such a modification of the rights of the United States as that just suggested could not be effected without the consent of my Government. Since it appears that the acquiescence of my Government in all military measures deemed necessary for the maintenance of order is regarded by the Government of the Republic as implied in the recognition of the French protectorate by the United States, it is necessary to consider the terms of that recognition.

On January 2, 1917, the Secretary of State in a communication to the French Ambassador at Washington said:20

“I have, as a result of careful consideration, reached the conclusion that, owing to the pressure of business before the Senate of the United States, which would have to approve any treaty entered into between our countries, and in view of your expressed desire that my Government take prompt action relative to the Moroccan situation, possibly the best mode of procedure to be adopted would be to consider separately the question of the recognition of the Protectorate and the question of our capitulatory and other rights in Morocco, as has been done, I understand, by all the European Powers in respect to their relations to Morocco. In order to advance the matter with all possible expedition I am prepared to recognize in a formal note the French Protectorate in Morocco,. … If this proposal is agreeable to your Government and this step is accomplished, there would remain for further negotiation the question of our capitulatory and other rights in Morocco, which could be taken up in due time.”

In accepting the proposal of the Secretary of State the Ambassador, in a note dated January 8, 1917, said:21

“As for the abrogation of capitulations, while we have no objection to the matter being separately considered, we earnestly desire as you know, that it be taken up at once so that we could sign the convention referred to in previous correspondence.”

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On January 15, 1917, the Secretary of State wrote to the Ambassador as follows:22

“Referring to my informal note of the 2d instant and Your Excellency’s reply of the 8th instant in regard to the recognition of the French Protectorate in Morocco, I have the honor to inform you that the Government of the United States, taking into consideration the political relations of the Government of the French Republic to the Government of Morocco, has concluded to recognize, and hereby formally recognizes, the establishment of the French Protectorate over the French zone of the Shereefian Empire.”

The note of January 15, 1917, was supplemented by a statement on October 20, 1917,23 that the recognition of the French protectorate was subject to the special rights and privileges of Spain in Morocco.

From the foregoing statements, showing the terms of my Government’s recognition of the French protectorate in Morocco, it is clear that the rights enjoyed by the United States under the capitulations were not relinquished. The recognition by the United States of the French protectorate did not, as was suggested in a note of the French Ambassador dated February 14, 1918, constitute an adhesion to the Franco-Moroccan Treaty of March 30, 1912, in pursuance of which the protectorate was established, nor did my Government, as suggested in the same communication, adhere to the Franco-German Agreement of February 4, 1911, which preceded the treaty of protectorate. On the contrary, my Government in a note of December 15, 1911,24 informed the French Ambassador that its adhesion to the Franco-German Agreement “would involve a modification of our existing treaty rights with Morocco, which, under our Constitution, could only be done by and with the advice and consent of the United States Senate”. The remark just quoted applies in principle with respect to the Franco-Moroccan treaty of protectorate. My Government has, since the recognition of the protectorate, as before, been at liberty to exercise its extraterritorial jurisdiction to the fullest extent conformable with its treaties with Morocco. It has in no way admitted that the responsibility which the French Government has assumed with respect to the maintenance of order in Morocco imports any diminution of the authority of the American courts established in pursuance of treaties with Morocco and exercised in conformity with the laws of the United States.

It is needless to add that my Government has no desire to interfere with the performance by the French Government of its proper undertakings in Morocco, but it cannot overlook contravention of American rights by the action of the French military authorities in Morocco in assuming jurisdiction over an American protégé charged with an offense that obviously did not threaten or in any way affect the security of the Army of Occupation. My Government is therefore obliged to insist that this American protégé be without further delay surrendered to the American consular authorities in Morocco for proceedings in accordance with the rights conferred upon the United States by treaties which are still in force.

I am [etc.]

Charles E. Hughes
  1. Translated from Gilbert Gidel, “L’Arbitrage de Casablanca”, Revue Générale de Droit International Public, Tome xvii, 1910, p. 344.
  2. Foreign Relations, 1917, p. 1093.
  3. Ibid.
  4. Foreign Relations, 1917, p. 1094.
  5. Ibid., p. 1096.
  6. Ibid., 1911, p. 623.