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

No. 1019

Sir: I have the honor to acknowledge the receipt, through Ambassador Bowers, of the comments contained in the Department’s telegraphic instruction No. 7 of January 29, 1935, 7 p.m., concerning the five-point formula recently proposed by me as a possible basic procedure in connection with the recognition of the Spanish Zone, and I herewith respectfully submit the following observations, in reply thereto.

It would appear that there exist now only slight discrepancies between the Department’s attitude and my five-point formula, and these, I believe may have resulted from insufficient amplification, on my part, of elucidations with regard to the application of the formula.

During the conversations in Madrid, we found that the Spanish Government, with some justification, considered the findings of the Plenipotentiaries who drew up the Joint Report in 1928,20 and the adjustments thereto of General Jordana in 1929,21 to be purely advisory, and consequently subject to further consideration and acceptance by the Madrid Government. We were therefore forced to adopt the Spanish Note of January 22, 1930,22 as the basis of our renewed negotiations, and I was convinced that little headway could be expected on practical lines, unless we were disposed to fall in with this procedure.

Furthermore, it seemed apparent to me that the present attitude of the Spanish Government has become one of complete indifference to our recognition of the Spanish Zone. They appear to perceive no inconvenience to themselves in a continuation of the extremely unsatisfactory situation in which we find ourselves vis-a-vis their Moroccan Administration.

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For many years, the inertness of the Spaniards in their Moroccan Zone, made it a matter of small consequence, from the practical point of view of our general interests, whether we recognized them or not. The advantage of recognition was then all to the benefit of the prestige of the Spanish position in Morocco.

Now, however, that—following the French example—they seem to be actively bent upon demolition of the treaty system, and inclined to over-ride our specific rights both commercial and jurisdictional, the question assumes another aspect, and absence of recognition, with lack of proper contacts, has become a disadvantage and danger for ourselves.

What is particularly preoccupying me is that incidents, such as those recently occurring in connection with the threat to imprison our ressortissants, might be carried so far as to lead to regrettable conflicts between our Governments, in matters which intrinsically are of small importance, and which have much greater probability of being adjusted, before they reach a compromising stage, if normal official relations and contacts existed between the American Legation at Tangier and the High Commissioner at Tetuan, as the result of de jure recognition of the Spanish Protectorate.

It is plain therefore that recognition is a desirable step, and the sooner effected, the better for our own interests. In these circumstances, I was prompted to put forward my five-point formula for the Department’s consideration, designed, I conscientiously felt, to bring about an early recognition of the Zone by us, and, let me repeat, creating thereby more normal relationship, and facilitating methods of common approach to the pending problems in that Zone, while, at the same time, not sacrificing, in any respect, any claims or principles on which we have hitherto taken a position. My formula also completely divorced the question of recognition from that of the surrender of the capitulations, a point which appears to have somewhat escaped the notice of the Department.

Let me analyze very briefly the significance of this formula:

Point 1.

Settlement of all claims agreed to be paid in the Spanish Note of January 22, 1930, but without reference to categories or conditions.

A recapitulatory table of these claims is annexed hereto.23

This proposition, in effect, would give immediate satisfaction to all our claimants, with the exception of Driss El-Kittany.

Point 2.

With reference to the claim of Driss El-Kittany, the Spanish Note subjects this controversy to the decision of the Spanish Land Courts [Page 1010] in Morocco, our recognition of which is incompatible with the treaties. The formula provided for in my suggestions, rescues the case from what may become an interminable controversy over appropriate jurisdiction, and places the equitable adjustment of the case in the hands of the Spanish High Commissioner and myself, both to be clothed with full powers to execute the settlement.

It is my belief that once Señor Rico Avello and myself, accompanied by our experts, should visit the property with our respective documents, the indisputable character of the American claimant’s rights would become apparent, since I have reason to believe that the Spanish Government has no documents whatsoever showing its ownership of the land in question, the Spanish occupation being effected by sheer encroachment, the evidence of which will be revealed by boundaries laid down in the documents.

In the event that the Spanish High Commissioner would not find himself convinced, or would be reluctant to admit the facts, arbitration by competent local jurists might be resorted to, the costs in connection therewith being borne by the claimant himself. In any event, the arbitration charges of local jurists involve but relatively nominal amounts.

I hope this explanation will satisfy the Department since the assurance is given that there will be no question of the incurrence of charges on its behalf in connection with arbitration, if this is ultimately resorted to.

Whatever may be the procedure adopted for the settlement of the Kittany claim, it is almost inevitable that a long period of time will elapse before a settlement can be reached, and consequently I felt, in view of the many other interests involved, that it would be neither just nor proper to make a settlement of this one case, notwithstanding its intrinsic merits, a sine qua non of recognition, and I trust that the Department, with the foregoing explanations, may incline to this point of view.

Point 3.

Once agreement on the above two points arrived at, and payment having been effected of all claims, except Kittany’s, my formula provided for immediate political recognition of the Spanish Zone.

Point 4.

We would then be in a position to pursue discussions in regard to the legislation edicted in the Spanish Zone by the Spanish authorities, acquiescing in or rejecting the measures in precisely the same conditions as we do in the French Zone.

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Point 5.

With respect to the final point, it must be distinctly borne in mind that the subject matter which it covers is not to be voluntarily brought up by ourselves. It is referred to now merely for the purpose of considering the line of action to be pursued, in the event that these matters and particularly the capitulations are forced into the discussion by the Spanish negotiators.

The Department of course is fully aware of the insistence of the Spanish Foreign Office upon connecting the question of our recognition of their Zone with the suppression of the capitulations, and there remains the possibility that this question may again be pressed, and create a stumbling block to the negotiations. It was in my mind that this difficulty might possibly be overcome, if we are able to make some gesture to placate Spanish amour-propre, but involving no commitments and this I believe might be done by some formula such as the following:

The Government of the United States would be pleased to see established throughout Morocco conditions which would render superfluous a further retention by it of the regime of the capitulations throughout that country, and it observes with the greatest interest and sympathy the efforts inspiring the Spanish Government to bring about necessary reforms in its Moroccan Zone of Influence.

The question of the capitulations however is one that can only be envisaged by the United States Government as an issue involving principles and policy equally applicable to all parts of Morocco. Once the impediments in this direction are removed, the American Government will be glad to take fully into account all developments favorable to a satisfactory solution of this question in the Spanish Zone.

After de jure recognition, Spain, in fact, could not be denied the right to bring up for discussion with us any matter relating to her Zone in Morocco.

We have repeatedly impressed upon the Spaniards the impossibility of departing, in their case, from the procedure which the American Government adopted in regard to the recognition of the French Protectorate, but this attitude surely implies that we should also go as far with the Spanish Government as we did with the French, under the terms of Mr. Lansing’s Note of January 2, 1917. (See Foreign Relations 1917, page 1093). This Note certainly established the independence of the two questions, recognition and abrogation of the capitulations, but at the same time it contemplated eventual discussions of the latter subsequent to recognition, without reference to either time or to the conditions which might govern the subject.

The Department is aware that on several occasions the French Government has indeed raised the question of the abrogation of the capitulations with us. We have nevertheless, for reasons of our own, maintained [Page 1012] our extraterritorial jurisdiction in the French Zone, and on similar grounds could continue to maintain it in the Spanish Zone.

I have already indicated to the Department that much time will certainly elapse before this stage is reached, i. e., discussion of the subject matter of point 5, if this is eventually forced into the program from the Spanish side.

Furthermore, the demands we may legitimately and reasonably make on the Spaniards, for the eventual guarantee of our commercial interests in Morocco—and the negotiation of substitute treaties—will render as remote as we desire it to become, any practical consideration of the abrogation of the capitulations in the Spanish Zone.

The Department, I am sure, cannot but have noted how persistently, in my despatches extending over a long period of time, I have emphasized the great importance to be attached to the retention of our capitulatory rights in Morocco, a point of view which I continue to hold even more firmly to-day, in the critical period we are traversing.

I would therefore be the first to suggest the elimination of any eventual consideration of the subject matter of point 5, regardless of the possible pressure of the Spanish Government for some statement in this connection, should the Department feel that my proposal in this respect may be miscalculated, or tend in any way to weaken our stand on our capitulatory rights.

I do not feel this to be the case, but naturally the Department is alone competent to make a decision on the point in question.

Respectfully yours,

Maxwell Blake