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

No. 538

Sir: I have the honor to refer to my previous Despatches, Nos. 507, 525 and 527 of May 28th, July 19th, and July 31st, 1930,10 concerning the illicit disposition by the Tangier Administration of a concession for the supply of electric light and power, and to report further developments in this connection.

In my No. 527 of July 31st, 1930, I informed the Department that the Tangier Legislative Assembly, in disregard of the provisions of the Act of Algeciras, had passed a vote according this concession to a Franco-Spanish combine, without the requisite public appeal to international competition, and that this resolution was to be submitted for the approval of the Committee of Control, composed of [Page 592] the representatives in Tangier of the Powers signatories of or adherent to the Tangier Conventions, signed in Paris by Great Britain, France and Spain in December 192311 and by these Powers and Italy in July 1928.12

The question was brought before the Committee of Control on August 25th, 1930, at a meeting presided over by the representative of Spain, and I am indebted to the British Vice-Consul in Charge, for the account which I am able to give hereunder of the deliberations of the Committee on the subject.

The British, Dutch and Portuguese representatives impugned the legality of the resolution of the Legislative Assembly. The French and Spanish representatives contended that the Tangier Administration was free to grant the concession without having recourse to public adjudication on proposals without preference of nationality, under the terms of the Franco-German Agreement of 191113 which superseded the provisions of the Act of Algeciras in this regard. They were supported by the representative of Belgium.

Against this contention the British and Dutch Vice-Consuls in Charge opposed the terms of Article 7 of the Tangier Convention, (quoted on page 4 of my No. 525 of July 19th, 1930), and also the corroborative provisions of Article 11 of the Shereefian Dahir Organizing the Administration of the Tangier Zone, which reads in the. French text as follows:—

“Article 11. L’Administration de la Zone est tenue de respecter les traités actueilement en vigueur entre Nous et les Puissances.

S’étendent notamment de plein droit à la Zone de Tanger les accords internationaux auxquels toutes les Puissances signataires de l’Acte d’Algésiras sont parties contractantes ou auront adhéré.

En cas de désaccord entre les stipulations desdits traités et les lois et règlements établis par l’Assemblée législative internationale, les stipulations des traités prévaudront.

L’Administration de la Zone veille d’une façon spéciale à l’observation des Articles 3, 7 (paragraphe 2), 8 (paragraphe 3), 10, 11 et 12 de la Convention en date du 18 Décembre 1923.”

being in translation:—

“Article 11. The Administration of the Zone is under the obligation to respect the treaties actually in force between Us and the Powers.

International agreements especially, to which all the Powers signatories of the Act of Algeciras are parties or shall have adhered, shall extend of right to the Zone of Tangier.

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In the event of difference between the stipulations of the said treaties and the laws and regulations passed by the International Legislative Assembly, the stipulations of the treaties shall prevail.

The Administration of the Zone shall be particularly heedful of the observation of Articles 3, 7 (paragraph 2), 8 (paragraph 3), 10, 11 and 12 of the Convention of December 18th, 1923.”

The British representative maintained that the adhesions of any of the signatories of the Act of Algeciras to the Franco-German Accord did not imply the application of this agreement in the Tangier Zone; that this position was confirmed by Article 7 of the Convention and by paragraph 2 of the above Article of the Organic Dahir; that even admitting for the sake of argument the doubtful validity of this thesis so far as concerned the adherents to the Franco-German Agreement, it must not be forgotten that one of the signatory Powers of the Act of Algeciras, namely, the United States of America, had not adhered to the Franco-German Convention, and therefore, under the provisions of the Tangier Convention and of the Organic Dahir referred to, the Tangier Administration and the Committee of Control were bound to a full respect of the rights of the United States under the Act of Algeciras, which have been modified by no subsequent instrument. The grant therefore of the electric light concession by the Tangier Administration, without recourse to an appeal to international competition as provided by the Act of Algeciras, and notwithstanding an official protest made by the American Diplomatic Agent in Tangier, was a violation of the treaty rights of the United States, which it was the duty of the Committee of Control to veto.

The French and Spanish representatives refused to admit these conclusions, the Spanish Consul-General contemptuously describing the appeal for the respect of American rights as an academic objection of no weight in the discussion.

Up to this point in the discussions, the Italian Minister had given no indication of his position in the matter. Prior to the meeting of the Committee of Control, private discussions between him and his British Colleague, are understood to have shown the Italian position, in obedience to considerations of a political order, to have been uncertain, with the possibility however that in the event of an equally divided vote the Italian representative would acquiesce in the condemnation of the illegal award of the concession.

This situation having materialized, France, Spain and Belgium being opposed on the question by Great Britain, Holland and Portugal, the Italian Minister made a statement to the following effect:—

In his opinion the concession for the supply of electric light and power should be the subject for appeal to international competition, however, in view of the fact that the Committee of Control, when considering this very important question, was mainly composed of [Page 594] Vice-Consuls, (the principals being on leave of absence) he proposed that the question relative to the interpretation of the treaty principles involved, should be referred to the consideration of the Governments represented on the Committee of Control.

However, notwithstanding the eventual maintenance by the Powers of the principle of international competitive bidding in conditions of perfect equality in regard to concessions for public service to be let in the Tangier Zone, Mr. de Facendis further proposed that, in view of special circumstances attending the electric light and water services of the city, the members of the Committee of Control should suggest to their Governments the advisability, in the present instance, of acquiescing in a derogation from the aforesaid principles, and of permitting a direct grant by the Tangier Government of the concession jointly to the Spanish Electric Light Company and the French Water Company, on the stipulation that the special arrangement should not be deemed to create a precedent.

Aside from this aspect of the matter, he continued, the terms of the concession, as granted by the Administration might be described as iniquitous. In the first place the basis of the capital and of the tariffs was Spanish paper currency, liable to wide fluctuations which could not but prove eventually prejudicial to the consumers; the tariff was subject to periodical increase dictated by variations of the price, in Spanish Pesetas, of fuel oil and also of the cost per hour of labor employed by the concessionary company, and which the latter was in a position arbitrarily to inflate. The financial working of the concern should be based on a gold currency allowing the fixation of unvarying tariffs. The tariffs as approved by the Legislative Assembly included an additional payment by the consumer representing 8 percent of certain capital expenditures of the concessionaires. The concessionaires were further empowered to increase the tariffs in such measure as to wipe out any aggregate loss sustained by the operation of the enterprise during two successive years. Such provisions eliminated all commercial risk and made the concession inadmissible as a rational financial proposition. He therefore proposed that the concession should be referred back to the Administration for its reconsideration of these financial aspects.

Both the above proposals of the representative of Italy were adopted by the Committee of Control.

The resolution adopted by the Committee of Control on the question of the treaty principles governing economic equality in Morocco, is of a disquieting character.

I venture to believe that in view of the attitude of the Moroccan Government, under the aegis of France and Spain, towards its treaty obligations in the connection under discussion, the Department will be averse to any condonation of further violation of these principles.

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I cannot concur in the validity of the consideration to be urged by the members of the Committee of Control upon their Governments, in support of the irregular grant of the electric light concession at Tangier.

My British Colleague frankly admits that the Committee of Control is being coerced into submitting the proposition, under intimidation by the interested companies, who threaten, unless their demand for the concession is satisfied, to retaliate on the community by deliberate indifference in the execution of their present contractual obligations, which still have three years to run.

It is further distressing though not perhaps surprising to note that the French Engineer of the Tangier Administration, Technical Adviser of the Shereefian Government, and of the Legislative Assembly, was actively concerned in devising the contract which granted to the concessionaires the extraordinary privileges referred to above, and that in the Commissions and meetings of the Assembly he advocated these terms with aggressive effrontery.

Aside from the foregoing circumstances which are of primary importance in the American Government’s consideration of the matter, and in the determination of the action which it may deem proper to take in the premises, the conduct of the Committee of Control, in this instance, is open to criticism from the point of view of its own statutory position.

The representation, duly provided for in the circumstances, of the Powers on the Committee of Control by Vice-Consuls in Charge, is no valid reason to justify the shirking by the Committee of its legal responsibilities. The Tangier Convention provides that a majority vote of the Committee shall be binding, and there was a majority in support of respect for the treaty provisions in the premises. The Committee failed therefore to comply with the obligations imposed upon it by Article 26 of the Organic Dahir, which provides that the Committee of Control shall immediately annul “deliberations and decisions of the Legislative Assembly taken in violation of the law or of the treaties.”

Furthermore, it is quite within the possibilities that the Tangier Administration may attempt to over-ride the hesitating latent opposition of the Committee of Control.

The Administration would appear to be in a position to claim that as a result of the provisions of Article 31 of the Tangier Convention, the Committee of Control has forfeited its right to veto the decision of the Legislative Assembly awarding the concession. The Article above referred to stipulates that within fifteen days from the date of receiving the texts of the laws and regulations voted by the Assembly, the Committee of Control will have the right to veto the promulgation of any enactment. In such cases the non-observance of the provisions and principles of the statute must be recited in the decision.

So far as concerned the violation of the Act of Algeciras by the [Page 596] conditions in which the concession is accorded, the Committee of Control has failed to meet the provisions of this Article of the Statute.

Article 27 of the Organic Dahir provides moreover that: “The laws and regulations voted by the Assembly, and which, within the delay fixed by Article 31 of the Convention of December 18th, 1923, have not been vetoed by the Committee of Control, shall be effective only after promulgation by Our Mendoob, with the countersignature of the President of the Committee of Control.”

Now the position is that no formal veto on any point has been registered by the Committee of Control, that the French representative could secure promulgation by the Mendoob of the Legislative Assembly’s decision, and the representative of Spain, as the President of the Committee of Control, would probably have no compunction in countersigning the promulgation.

Recourse to the above procedure may be looked upon perhaps as a somewhat remote contingency, but I venture to submit that the proved versatility of the political consciences at work divests the suggestion of its inherent extravagance.

In conclusion, I would inform the Department that the Resident-General of France has totally ignored my communication to him of July 18th, 1930,14 (Enclosure No. 3 to my Despatch No. 525), requesting that the Tangier Authorities be recalled to a respect for the rights of American nationals to participate in bids on the concession above referred to, and I venture to suggest that, in view of the conditions herein above set forth, identic Notes be addressed, without delay, to the four Powers, France, Spain, Great Britain and Italy, the signatories of the Conventions relative to Tangier, protesting against the violation by the Tangier Administration of American treaty rights, and demanding the observance of the requisite conditions in respect of the adjudication of the concession for the electric light and power services in Tangier. The other Governments signatories of the Algeciras Act should also be informed of the tenor of the American Government’s representations in this connection.

Indications would appear to show that the position of the American Government would be supported by Great Britain, Holland and Portugal; the American action might also promote the adjunction of Italy with prospects of successfully vindicating the principles of the Act of Algeciras in the Tangier Zone and, incidentally, of scoring in the controversy between the Department and the French Residency-General in regard to the irregular award of the concessions, in the French Zone of Morocco referred to in the Department’s Instruction to this Diplomatic Agency, No. 458 of February 10th, 1928, (File No. 881.77/31.)15

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The Department may perhaps deem it opportune to point out, in its Note to the four Powers which sponsor the Tangier Régime, that the American Government has given proofs of its voluntary assistance to the Tangier Administration and that it cannot conceal its surprise at the failure of the Authorities concerned to restrain the Tangier Administration from violation of American treaty rights, in the matters in question.

I have the honor to annex hereto copy of a protest, which I have addressed to Mr. Lucien Saint, as Minister for Foreign Affairs of His Shereefian Majesty, under date of August 25th, 1930, in regard to a further instance of violation by the Tangier Administration of the provisions of the regulations issuing from the Act of Algeciras in connection with the procedure for the adjudication of public contracts.

There is also appended hereto for the Department’s information an excerpt from the Tangier Gazette of August 23rd, 1930,16 containing a clear and concise statement of the position relative to the electrical concession in the Tangier Zone.

Respectfully yours,

Maxwell Blake

The American Diplomatic Agent and Consul General ( Blake ) to the French Resident General in Morocco ( Saint )

Mr. Resident-General:—I have the honor to signalize to Your Excellency a fresh instance of disregard by the Tangier Administration, of the terms of the treaties in connection with the adjudication of public contracts.

Notice of the award to be made on September 9th, 1930, of a contract for the supply of 200 tons of tar, (émulsion de bitume) appears in the Tangier Gazette of August 23rd, 1930.

Under the regulations issuing from the Act of Algeciras, the publication of proposed adjudications is required 100 days in advance, and, even in cases of emergency, this period may not be less than 60 days. In the case above mentioned, this notice is reduced to 17 days, a period manifestly insufficient to allow concerns in the United States of America an opportunity to secure the data relative to the specifications and conditions of the contract, and to put in their bids.

I shall be grateful if Your Excellency will be good enough to draw this matter to the attention of the Authorities concerned, and I shall be pleased to be informed that, as a result of Your Excellency’s action, dispositions will be taken by the Tangier Administration for the proper [Page 598] respect of the treaty provisions in the premises, both in regard to the contract above referred to, and to all other contracts to be awarded in the future.

Please accept [etc.]

Maxwell Blake
  1. None printed.
  2. December 18, 1923; League of Nations Treaty Series, vol. xxvii, p. 541
  3. July 25, 1928; ibid., vol. lxxxvii, p. 211.
  4. Convention between France and Germany respecting Morocco, signed at Berlin, November 4, 1911; British and Foreign State Papers, vol. civ, p. 948.
  5. Ante, p. 589.
  6. Not printed.
  7. Not reprinted.