452.11/212

The Diplomatic Agent and Consul General at Tangier (Blake) to the Secretary of State

No. 321

Sir: I have the honor to transmit to the Department, annexed hereto, copy of a Memorandum which, in pursuance of the Department’s cable Instruction No. 11 of August 9th, 1928, 1 p.m.,15 I have prepared and despatched, under date of August 15th, 1928, to Ambassador Hammond, dealing fully with the question of the reservations as to certain claims, appended by my Spanish Colleague, to the report drawn up jointly by him and myself on the subject of the general liquidation of outstanding American claims, as a preliminary to the recognition of the Spanish Zone of Morocco by the American Government.

The Memorandum is divided into three sections. The first concerns the possibility of a spontaneous waiver by the Spanish Government of the reservations in question, or the admission of the claims practically without discussion, upon grounds of conciliatory expediency. The second, views the contingency of a controversy of a formal nature on the subject and sets forth a detailed exposition of the arguments and circumstances supporting the admissibility of the claims in question. The third and concluding section—on the supposition that there might be failure to agree—refers to the desirability of an early adjustment of the position between Spain and the United States in Morocco, and reiterates my former suggestion that American recognition of the Spanish Zone of Morocco be made immediately after payment of the undisputed larger claims, and [Page 360]that the small claims under reservation be left over for further discussion. However, this suggestion is modified by the proposal to relieve both the American and Spanish Governments from further preoccupation with these minor claims, by referring the ultimate disposition thereof unreservedly to the American Diplomatic Agency in Tangier and to the Spanish Residency-General in Tetuan.

In conclusion, it will be of interest for me to signalize to the Department that Great Britain is the only Power which has, so far, obtained any adequate satisfaction in regard to indemnity for claims against the Maghzen in the Spanish Zone. The successful liquidation of British claims has been due solely to the relentless persistence with which the British Government has pursued the matter with the Spanish Government over a period of 12 years up to the date of the arbitration referred to in Section II of the enclosed Memorandum. It will be obvious to the Department, that if a more or less immediate liquidation by the Spanish Government of American claims should fail to result from the present negotiations, the unrelaxing pressure of the Department upon, and its constantly recurring reminders to, the Spanish Government will similarly be essential for the purpose of obtaining the desired adjustment of the position, in so far as concerns their relations in Morocco, between the Governments of Washington and Madrid.

I have [etc.]

Maxwell Blake
[Enclosure]

Memorandum Prepared for Ambassador Hammond by Maxwell Blake, Diplomatic Agent and Consul-General at Tangier, Morocco, in Pursuance of Department’s Cable Instructions, No. 11 of August 9th, 1928, 1 p.m.

Subject: Inclusion in settlement of American claims in Spanish Zone of Morocco, of those claims subjected to reservations of the Spanish Representative at Tangier, in report drawn up jointly by him with the American Diplomatic Agent at Tangier.

I. At the time when Don Antonio Pla y da Folgueira, the Spanish Representative in Tangier, formulated the reservations in regard to certain specified claims referred to in the Department’s telegraphic instructions above cited, he … assured Mr. Blake, his American Colleague, that, notwithstanding the formal reservations which he felt constrained in principle to append to their joint report, he would personally recommend his Government to include these items in the general settlement of American claims in the Spanish Zone of Morocco. …

It is therefore not impossible that Ambassador Hammond may discover a visible inclination on the point [part?] of the Spanish Government to overlook the exceptions taken by its Representative in [Page 361]Tangier, to various claims, and to make a full settlement on the aggregate findings of the joint report of the Commissioners in Tangier.

In the absence of the spontaneous manifestation by the Spanish Premier of such a disposition, Mr. Hammond may still find, however, that the Spanish Government may be induced to adopt the same action, in accordance with the broad and generous minded spirit which habitually characterizes its attitude in friendly diplomatic discussions. When considering, in the premises, the relatively very minor importance of the pecuniary amounts involved in the reserved claims, as compared with the admitted aggregate, the Spanish Government may be led to perceive the advantage of a waiver of the reservations, which, in producing a complete liquidation of American grievances against the Maghzen, will hasten the creation of a situation permitting the full and cordial cooperation between the American Diplomatic Agent in Tangier and the Hispano-Moroccan Administration at Tetuan.

In the eventuality however that the Spanish Government should not acquiesce in the above suggestions, and is inclined to enter upon a technical examination of the principle of the responsibilities involved, then the following line of argument is suggested:—

II. The claims which are the subject of this Memorandum, enumerated at the conclusion of the joint report drawn up by Don Antonio Pla y da Folgueira and Mr. Maxwell Blake, respectively representing Spain and the United States of America in Tangier, are the following:—

Pesetas:
Thamy Slawee { Robbery of Cattle 11,222.00
“ “ a Mare 555.55
“ “ a Horse 277.75
“ “ a Mule 555.55
Mohammed Oknin { Robbery of Animals and goods near R’Gaia, (a Spanish Military Camp) 4,188.25
Singer Company { For 14 Sewing Machines destroyed or stolen at the time of the rebellion of the Western [sic] Zone 6,412.50

In the first place, it should be recalled that the claimants (with the exception of the Singer Sewing Machine Company) have established, to the satisfaction of the Commission of Examiners in Tangier, that the above losses were actually incurred by them, and that the amounts involved are those which, after careful scrutiny, have been ratified by the Commissioners.

The reservations of Don Antonio Pla y da Folgueira are made in respect of the general principle of the non-responsibility of Governments for damages caused by rebels.

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The objection to the application of this principle in regard to the claims in question may be stated as follows:—

It has been the invariable practice of all the Powers represented in Morocco to demand and successfully to obtain full redress from the Moorish Government, for all losses or prejudice suffered by their citizens, subjects and protégés, as the result of depredations committed during disturbances in various parts of the Shereefian Empire.

Not only are there innumerable examples of the demands in respect of such claims put forward individually by the various Ministers to the Court of Morocco, but the admission of such claims against the Maghzen was insisted upon by the collective pressure of all the Powers in respect of the Casablanca Claims Commission of 1908, and in regard to the general liquidation of claims against the Moorish Government, out of the Franco-Moroccan Loan of 1910, up to the date of that loan. In connection with the last mentioned settlement, it is interesting to recall that, in the preliminary correspondence (recorded in the Archives of the “Decanat” of the Diplomatic Corps at Tangier) which took place between the Sultan’s Commissioner and the Representatives of the Powers, the attempt of the former to place a time limit upon the presentation of claims for theft was rejected by the Powers, but it must be noted that the admissibility of claims for theft was not even questioned by the Moorish Government. Many awards were made both by the Casablanca Claims Commission of 1908 and by the Arbitrators in the settlement of 1910, in respect of thefts and robberies committed to the prejudice of foreign claimants, subjects, citizens or protégés, alleged to have been perpetrated by rebels, or by vulgar individual thieves or marauders, or even by the ordinarily peaceful native inhabitants in districts disturbed by dissidence or tribal revolt.

These principles must apply equally to the American claims in the Spanish Zone of Morocco, since in fact the conditions are fundamentally unmodified. The American Government’s claims are formulated against the Moorish Government; their presentation to the Spanish Government is merely incidental to the position which has subsequently been developed between the Spanish and the Shereefian Governments in Morocco.

The Spanish troops of occupation, and the Spanish Commissioners and functionaries were but the auxiliaries of the Moorish Government in the re-establishment of law and order in certain regions, and the depredations committed there against the property of American ressortissants during that process are, according to the established principles above cited, clearly covered by the responsibility of the Maghzen.

Prior to the intervention of Spain in Morocco, the attitude of His [Page 363]Catholic Majesty’s Government towards the Shereefian Government was, in common with the position taken by all the treaty Powers in Morocco, regulated by the comprehensive doctrine as to the responsibility of the Maghzen, which has been above outlined.

It is, not unnaturally, the desire of the Spanish Government, in view of the responsibilities which it subsequently assumed in Morocco, to narrow down in favor of the present Hispano-Shereefian Government, the ample scope of liabilities attributable to the old Maghzen, and to assimilate the international relations of the Spanish Zone of Morocco, in this respect, with those existing between normally conducted Governments.

It is evident, however, that the Spanish intervention, before recognition of the Spanish Zone of Influence in Morocco by the American Government, cannot be deemed to prejudice, to impair in the slightest degree, or even to modify the aspects of the rights of the United States vis-à-vis the Shereefian Government, as derived from the treaties and conventions between the two countries, and the principles confirmed by practice and precedent during the century and a half of their relations.

Furthermore, in the years 1917–1918, a “Comision de Reclamaciones” was instituted by the High Commissioner at Tetuan, to adjudicate upon claims against the Maghzen (Moorish Government) in the Spanish Zone of Morocco, and the awards made by this Commission were in various instances such as constituted an admission of liability for claims of the nature which are herein under consideration.

It is probable that Don Antonio Pla y da Folgueira deemed that his reservations in regard to these claims might be supported by supposed precedents arising from the recent settlement of British claims in the Spanish Zone.

Discussions and negotiations between the Spanish and British Governments in regard to British claims in the Spanish Zone of Morocco, had proceeded unsuccessfully, from 1912–1913, the date of the Spanish occupation, up to the year 1923. In that year the two Governments, as the result of a written agreement, submitted the adjudication of British claims to Mr. Max Huber, a judge on the Court of International Justice, and a member of the Permanent Court of Arbitration, at The Hague; it is possible, therefore, that reference may be made to this arbitration by the Spanish Government, in its discussions with Ambassador Hammond, since several British claims for theft were non-suited by the Arbitrator.

It may be pointed out, however, that the reservations formulated by the Spanish Representative in Tangier, tending to exclude Governmental responsibility for damages caused by rebels, was not entirely upheld by the above named Arbitrator in his reports connected with British claims.

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Mr. Huber while discounting the value of previous Commissions as precedents in determining the scope of the responsibilities involved, nevertheless pointed out that the existence of the regime of the capitulations in Morocco, and the inefficiency of the Moorish Administration in the regions involved, at the material period, together with the general local aspects of past conditions in the relations between the Powers and the Moorish Empire, were sufficient—not perhaps to legalize from a point of view of general principles of technical international jurisprudence—but undoubtedly to justify an equitable right to indemnification for claims of such nature as the American claims above enumerated which are impugned by the Spanish Government. The Arbitrator cites extracts of Notes addressed by the Spanish to the French Government in 1881, in connection with Arab attacks on Spanish settlers in Algeria, in general substantiation of his advocacy of the responsibility, in equity, of the Hispano-Shereefian Government, in the premises, on the grounds of the possible allegation of the “inaction of Authorities in situations in which, by virtue of the mission confided to them, they are called upon to protect the rights of foreigners and where, in the premises, they are in a position to do so.” (Page 56 of the “Reclamations Britanniques dans la Zone du Maroc, Accord Anglo-Espagnol du 29 Mai 1923, Rapports, La Haye, May 1925.”)

Furthermore, in treating of the question of thefts and delinquencies which fall under the domain of common law, the Arbitrator lays down the principle (page 57, Idem) that: “The vigilance which, from a point of view of international law, the State is bound to guarantee, may be characterized, in applying by analogy a term of Roman Law, as a ‘diligentia quam in suis.’ This rule, agreeable to the primordial principle of the independence of States in their internal affairs, gives in fact to other States for their ressortissants the measure of security which they may reasonably expect. As soon as the vigilance exercized falls manifestly below this level in respect of the ressortissants of a particular State, the latter is justified in considering itself to be prejudiced in interests which must enjoy the protection of international law.”

This general principle, as the Arbitrator, in the course of his report points out, must necessarily be reconciled to the special situation, in Morocco, arising from the limitations imposed by the capitulations upon the Maghzen’s internal independence. The degree of security, during the period in which the claims in question originated, was notoriously below the standard which could reasonably be expected even from the old Moorish Government.

Among the thefts referred to in the claims, which are the subject of this Memorandum, those of which Thamy Slawee and Mohammed Oknin were the victims, occurred in places well within the area of [Page 365]the established occupation of the Spanish troops and of the effective control of the Hispano-Moroccan Authorities of Administration.

The Arbitrator also definitely rules that the obligations of the Protecting Power, as such, vis-à-vis third States, are identified with those of the protected Government. It therefore follows that the Spanish Government is not entitled, in view of its intervention in Morocco, to refuse satisfaction for any claims for which the United States Government could legitimately demand indemnification on the basis of the principles which governed such matters in the latter’s relations with the Moorish Government, prior to the establishment of the Spanish tutelage.

Certain British claims for theft and robbery were rejected by the Arbitrator, on various grounds, such as failure of substantiation, or because committed outside the limits of the Spanish Zone, or in territory in the hands of rebels beyond the area of effective military occupation.

None of these grounds (saving the failure of the Singer Sewing Machine Company to submit documentary proofs of their loss) are applicable to the American claims in question, as has been indicated in earlier paragraphs of this Memorandum.

The Arbitrator dismisses some British claims because of the lack of formal application by the local agents of the British Government for judicial assistance on the part of the Spanish Authorities.

No such application was possible in respect of the American claims, and this circumstance cannot be held as a valid objection against the American Government’s demands in the premises, for the following reasons:—

Unlike the case of the British Government, with whom the Spanish Authorities from the outset had concerted some modus vivendi, no notification or approach whatever was made by the Spanish to the American Government in regard to the régime to be instituted by Spain in North Morocco. There was consequently no basis upon which communication, official or “officieux” was available between the Spanish Authorities in the Spanish Zone and the Representatives in Morocco of the United States of America. Nevertheless, the American claims and complaints, as they arose, were constantly brought by the American Diplomatic Agent to the attention of his Spanish Colleague in Tangier, and the latter was requested to signalize them to the Spanish High Commissioner in Morocco with a view to redress or adjustment. Communication with his Spanish Colleague in Tangier was the only possible channel open to the American Representative in Morocco, and this means of access was constantly though unavailingly utilized by him, until finally he was advised by the Spanish Diplomatic Agent in Tangier that the latter was [Page 366]under instructions to desist from any intervention concerning affairs of the Spanish Zone.

Such are the arguments and circumstances which, it would seem, should determine the Spanish Government to accede to the settlement of these claims, if such accession is not forthcoming as the result of representations made on the grounds outlined in the first section of the present Memorandum.

III. If no agreement is possible in regard to the settlement of these claims as a result of either of the alternative actions set forth in Sections I and II above, then, as indicated in previous reports from this Diplomatic Agency to the Department, and in the observations of Mr. Maxwell Blake upon the reservations made by his Spanish Colleague, it would appear very regrettable that the materialization of the very large and successful measure of agreement attained in regard to the other larger claims, the consequent normalization of local American and Spanish relations in Morocco, and the looked for participation of American interests in the economic development of the Spanish Zone, should be jeopardized on account of the suspension of these claims of relatively very minor material importance.

In this view the American Diplomatic Agent in Tangier, ventures to reiterate his suggestion that, if no other alternative is possible, the mutual settlement of the other American claims and the recognition of the Spanish Zone by the United States Government should be effected forthwith, the disputed claims being left over for subsequent consideration. It is however now suggested that, in order to relieve both the Spanish and American Governments of all preoccupation with these small claims, the eventual reexamination and the ultimate disposition thereof be left to the final decision of the American Diplomatic Agency at Tangier and of the Spanish Residency-General at Tetuan, following the payment of the undisputed claims and the political recognition of the Spanish Zone of Morocco by the Government of the United States.

  1. Instruction not printed.