881.844/5

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

No. 3076

Sir: The Department refers to despatch No. 359 of January 25, 1929, from the American Diplomatic Agent and Consul General at Tangier (copies of which and of its enclosures were forwarded to the Embassy from Tangier) regarding the application to American nationals and ressortissants of the Dahir of May 28, 1927, which made a provisional increase of 20 per cent in the pilotage and harbor dues at the port of Casablanca. It notes from the communication of January 18, 1929, from the Residency-General to Mr. Blake that the matter under consideration has been referred to the French Government.

The original Dahir establishing an obligatory pilotage service in the port of Casablanca and fixing the charges to be imposed for anchorage, dockage and wharfage was issued on March 1, 1920, the customary request for the consent of this Government, under treaty provisions, to its application to American nationals and ressortissants being formally made to the American Diplomatic Agent and Consul General by the then Resident-General, General Lyautey. Under instructions from the Department, consent was granted subject to certain reservations. An increase in the rates established by the original Dahir was effected by the Dahir of May 28, 1927, and these increased charges were collected from American vessels without any previous notification to the American Diplomatic Agent and Consul General, who brought the circumstances to the attention of the Resident-General and recalled to him that, under treaty provisions, the consent of this Government was necessary before the increased taxes could legally be levied on American ships. Thereupon the necessary consent was requested by Mr. Steeg and, under instructions from the Department, the consent was accorded to be effective when the excess taxes, illegally collected prior to consent, should have been refunded. There ensued the correspondence of which the Embassy has been furnished copies, in which the Residency-General contended that to satisfy the condition as to refund would create a “veritable privilege” in favor of American vessels, and that the Franco-German Accord of 1911 and the Franco-Moroccan Agreement of 1912 “have given to France the right to introduce into Morocco any reforms and to bring to existing regulations whatever modifications might be useful”. It was after Mr. Blake had, in his note of December [Page 488]3, 1928, expressed his observations on these two points that the matter was referred to the French Government for consideration.

As you are aware, it has been the policy of the Department to maintain American rights in Morocco as defined by the Act of Algeciras9 and previous instruments, and in accordance with that policy the Department has consistently made representations to the Shereefian Government whenever violations of those rights have occurred. Protests were made against the irregular manner of granting the Tangier port concession, the concession for the production of hydraulic and hydro-electric power, and the Oudjda Bou-Arba railroad concession, as the files of the Embassy will show, and last year it reminded the Shereefian Government of its rights in connection with the proposed construction of a pipe line. The Department has not altered its policy, and it cannot accede to the position of the Residency-General in the present instance, a position which, in view of the treaty rights which this Government retains in Morocco, is, as Mr. Blake points out, clearly untenable.

Furthermore, exception must be taken to Mr. Steeg’s assertion that the Franco-German Accord of 1911 and the Franco-Moroccan Agreement of March 30, 1912, have given to France the right to introduce into Morocco any reforms and to bring to existing regulations whatever modifications she might deem useful. That statement, so far as it implies that those two agreements have affected American treaty rights, is inaccurate, as the Department has clearly set forth whenever such argument has previously been evoked. It will be recalled that this argument was advanced by the French Government at the time of the discussions concerning the Tangier Port Concession, and that the French Government was then fully acquainted with the position of this Government, from which it has at no time receded. At that time it was stated (see the Department’s instruction No. 432 of September 21, 1922,10 a copy of which was handed by the Embassy to the French Government):

“This Government has repeatedly pointed out to the French Government, both formally and informally, that it has never adhered to the protectorate treaty of 1912.

“The recognition of the French Protectorate in the French Zone of Morocco by this Government in its note of January 15, 1917, to the French Ambassador at this capital,11 did not constitute an adhesion to the Franco-Moroccan Treaty of March 30, 1912, nor did this Government, by this or any other act, adhere to the Franco-German agreement of February [November] 4, 1911, which preceded the treaty of protectorate. On the contrary, this Government, in a note of December 5, 1911, informed the French Ambassador12 that its [Page 489]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.’”

and this position was again stated in the Embassy’s note No. 1042 of November 6, 1922, to the Minister for Foreign Affairs.13

The Department had occasion to reaffirm this position to the Shereefian Government in a note which in accordance with its instruction No. 393 of September 2, 1926 (a copy of which was furnished the Embassy under cover of the Department’s instruction No. 2016 of September 2, 192614), the American Diplomatic Agent and Consul General presented in connection with the protest of this Government against the manner in which a concession for the production of hydraulic and hydro-electric power in Morocco was granted. In that note, after referring to the Department’s instruction of September 21, 1922, the notes exchanged in Washington in January 1917,15 which led up to the American recognition of the French protectorate,16 were quoted, and it was stated:

“It is obvious from a perusal of the above documents that the United States merely extended political recognition to the French protectorate over Morocco, leaving the question of a possible modification of its treaty rights (which would require ratification by and with the advice and consent of the United States Senate) for future negotiations between the two Governments, and it is equally obvious that this distinction was clearly understood by the French Government. It need hardly be remarked that no such negotiations have ever been carried out or ratified.

“In consequence it is apparent that the treaty rights of the United States in Morocco remain as defined in the Act of Algeciras and previous treaties.”

The Department approves the position taken by the American Diplomatic Agent and Consul General in the present instance, and it deems it advisable, since the Shereefian Government has revived the point and since the matter has been referred to the French Government, to remind the latter, by stating its entire approval of Mr. Blake’s note of December 3, 1928, that the treaty rights of the United States in Morocco, acquired by the Act of Algeciras and previous treaties, remain unimpaired. You are accordingly authorized to deliver to the French Foreign Office a memorandum in substance as follows:

The Government of the United States has received, through its Diplomatic Agent and Consul General at Tangier, a copy of a note [Page 490]under date of January 18, 1929, from the Residency-General to Mr. Blake,18 in acknowledgment of the latter’s note of December 3, 1928, concerning the application to American nationals and ressortissants of the Dahir of May 28, 1927, which made a provisional increase of 20 per cent in the pilotage and harbor dues at the port of Casablanca. The former note states that the text of the note from the American Diplomatic Agent and Consul General has been transmitted to the French Government for consideration.

The Government of the United States is confident that the French Government will recognize the validity of the position taken by the American Diplomatic Agent and Consul General, which position has the full endorsement of the Government of the United States and is in accord with that which this Government has previously had occasion to set forth to the French Government, and that it will appreciate that this Government is constrained to withhold its assent to the application to its nationals and ressortissants of the Dahir of May 28, 1927, until such time as refund has been made of the excess taxes previously collected in contravention of the treaty rights of this Government.

The Department desires that you report when this memorandum shall have been presented to the French Government.

I am [etc.]

Frank B. Kellogg
  1. Signed April 7, 1906; Foreign Relations, 1906, pt. 2, p. 1495.
  2. Ibid., 1922, vol. ii, p. 723.
  3. Ibid., 1917, p. 1094.
  4. Ibid., 1911, p. 623.
  5. See telegrams No. 857, November 3, 1922, 5 p.m., and No. 361, November 4, 7 p.m., to the Ambassador in France, ibid., 1922, vol. ii, pp. 733, 734.
  6. Neither printed.
  7. See Foreign Relations, 1917, pp. 1093 ff.
  8. See note No. 1977, October 20, 1917, to the French Ambassador, ibid., p. 1096.
  9. Not printed.