452.11/330

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

No. 1132

Sir: I have the honor, in response to the Department’s cable Instruction No. 1 of January 30, 1936, 5 p.m., respectfully to submit my observations upon the Spanish Memorandum enclosed in Ambassador Bowers’ despatch No. 1012 of January 13, 1936, and upon the action suggested in that despatch.

The various points of the Spanish Memorandum are hereunder serially summarized and followed by their relative rejoinders:

1. That the settlement of the American claims must be conditioned not only by recognition of the Spanish Zone, but by abrogation of American capitulatory rights in that Zone.

This is a departure from the agreed basis of the negotiations, and is aptly characterized in the fourth paragraph of the Ambassador’s despatch. The question of the capitulations, it will be recalled, was clearly excluded, in the initial exchange of Notes between the Department and the Spanish Ambassador in Washington, from the discussions relative to the settlement of claims and the recognition of the Spanish Zone. (See Note of July 26, 1927, from Spanish Ambassador in Washington, to Secretary of State).32

2. The settlement of the claims reposes not upon their justice, but merely upon the benevolence of the Spanish Foreign Office.

These claims have all arisen from violation of elementary principles of justice, or from violation of American treaty rights. In their settlement, it is not benevolent treatment, but some approach to justice, which is claimed. The conciliatory concessions made in regard to them, by the American negotiator, rather weighs the balance of benevolence on the American side.

If any such assumption as this is to prevail, it might be appropriately suggested to the Spanish Government that the Department would be quite agreeable to have the matter of the claims submitted to arbitration, as was done in the case of British claims; the Department cannot but reject the imputation that it is pressing for the settlement of unjustified claims, and further it has no intention of appealing to any charitable considerations in the matter.

3. For the American Government to accept jurisdiction of Spanish tribunals and authorities in Spanish national territory and not to accept it in the Spanish Zone of Morocco, is an unjustifiable incongruity.

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The charge is absolutely irrelevant, since the political conditions in the territories referred to are fundamentally different. In Spain, the judicial and administrative authorities are those of a sovereign state.

The Spanish intervention in Morocco is of the nature of an administrative trust; it does not give Spain sovereign rights in that country. The authority of the Spanish Protectorate Government there, is governed vis-à-vis the treaty powers by the same limitations as those which are imposed upon the Shereefian Government by the Morocco treaties. The removal of any such limitations can obviously be effected only with the consent of the treaty power concerned, and there is nothing incongruous in the maintenance by such power of any particular existing treaty right (e. g., extraterritorial jurisdiction) until it deems conditions to be satisfactory for the respect and continued safeguard of its remaining treaty rights (economic, commercial and civil), under the modified administrative regime (Spanish Protectorate) which it is expected to recognize.

It is obvious that no negotiations could properly be entered into with Spain, for the surrender of any American rights under the Moroccan treaties, until her position, as a Protectorate power in Morocco, had first received the formal recognition of the American Government.

4. That the retention of the capitulations implies a lack of confidence in the judicial and administrative authorities of the Spanish Zone.

So far as we are concerned, such lack of confidence is amply justified, but that consideration is beside the point. The reply to the Spanish Government is that without questioning the guarantees of justice which may be afforded by the judicial organization of the Spanish Zone, the relinquishment of the capitulations raises a question of the modification of our treaties in Morocco, and involves a restatement, in substitute treaties, of our now existing treaty rights in that country—substitute treaties which would require the approval of the Senate. It might appropriately be added that it would be difficult to present a proposition to that body, for an abrogation of the clauses of the Moroccan treaties relative to our extraterritorial rights in the Spanish Zone, in the face of evidence of such serious violations by the Spanish authorities there of other provisions of the same treaties, which define our economic and commercial rights in the Shereefian Empire.

5. Since the settlement of Dutch claims in the Spanish Zone was made, when Holland simultaneously recognized the Spanish Protectorate and abandoned the capitulations, it would be difficult for the Spanish Government “to concede to the United States a treatment more favorable in this regard than was conceded to other nations.”

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Settlement of British claims, in the Spanish Zone of Morocco, has been made by the Spanish authorities without surrender of the British capitulations, or even British recognition of the Spanish Zone. If the treatment of other nations, by the Spanish Government, is to be the criterion of that to be accorded to the United States, then we would be entitled to refer to the British rather than to the Dutch precedent.

6. The Spanish Foreign Office asserts that the suppression of American capitulations in the Spanish Zone, should not be subordinated to the settlement of pending claims in the French Zone.

In conversation with the Spaniards, mention of the French Zone has been made only to illustrate the procedure followed between the French and American Governments, namely, that a settlement of outstanding American claims in the French Zone had preceded American recognition of the French Protectorate, without renunciation of American capitulations in that Zone of Morocco. No reference has ever been made, in these conversations, to claims actually pending in the French Zone. This allusion of the Spanish Foreign Office to pending claims in the French Zone, is again entirely irrelevant to the issue between the American and Spanish Governments, and results from a confused knowledge of our relations with the French Protectorate authorities.

7. Delay in surrender of the capitulations in the Spanish Zone, must not be justified by the argument that such surrender should take place simultaneously in the two Moroccan Zones. (French and Spanish).

A stipulation that there should be concurrent action in the premises in both the French and Spanish Zones, would certainly not be an unreasonable condition for the Department to impose.

Since the Moroccan treaties to which the United States is a party apply to Morocco as a political and economic unit, the Department has hitherto held that it would become practical to consider the abrogation of the capitulations only when conditions in Morocco as a whole made it possible to proceed with a submission, for the approval of the Senate, of substitute treaties with Morocco, relative to the entire territory of the Empire (French, Spanish and Tangier Zones). To say the least there is involved a matter of convenience to the American Government, such as is deserving of consideration on the part of the soliciting Governments. (See Department’s Instruction No. 5 of January 18, 1930, File No. 881.00/1042, to Ambassador Laughlin).33

In any event, even should the Department now be inclined to modify its views in the above connection, no negotiations dealing with modification of any particular American right under the existing Moroccan [Page 430]treaties could be properly entered into with the Spaniards, until after formal recognition by the American Government of the association of Spain with the Shereefian Government in the administration of Morocco.

The foregoing analysis of the contents of the Spanish Note, it is hoped, may be found to contain some suggestive indications, in the event that the Department may desire to instruct the Embassy in Madrid to make a reply to the Memorandum.

The Ambassador’s despatch appears to suggest that, since our withholding of recognition is proving a useless weapon to bring about the payment of our claims, the Department should consider the feasibility of a voluntary recognition of the Spanish Protectorate, on our part, and reserve, for a later date, the relinquishment of our capitulatory rights, as a quid pro quo for the eventual settlement of American claims in the Spanish Zone.

The Ambassador’s suggestion is made, perhaps, under the impression—or with the hope—that American recognition of the Spanish Protectorate—by permitting direct official contact between the Diplomatic Agent at Tangier and the Spanish High Commissioner at Tetuan—would obviate the present circuitous route via Washington and Madrid for representations to the Spanish Government in respect of Moroccan questions, which, as a consequence of recognition, could then be normally treated directly between Tangier and Tetuan.

Unfortunately, I can but express my conviction that these happy results cannot be anticipated.

A modus vivendi between the American Legation at Tangier and the authorities at Tetuan has been re-established, providing informal contacts through the medium of the Spanish Consulate General at Tangier, which mutually permit the adjustment of local complaints made by either authority. In this way matters involving individual incidents of minor importance are frequently settled. It is certain, however, from my observation, and from the experience of my colleagues whose governments have already recognized the Spanish Protectorate, that no improvement in the adjustment of controversies, would follow American recognition of the Spanish Zone, of greater moment that [than?] the limited measure of satisfaction at present afforded by the existing modus vivendi.

It is the experience of all my colleagues that any major individual question, or any representations regarding legislative or administrative measures taken by the Spanish Protectorate authorities, in violation of the economic or commercial clauses of the Moroccan treaties, are given, at best, but a perfunctory hearing at the High Commissariat at Tetuan, and that on all questions of any importance, additional [Page 431]representations are made to the Spanish Government in Madrid, by the Embassies or Legations concerned, often, it is true, with equally negative results.

I do say, however, notwithstanding these circumstances, that direct official contact between the American representative in Morocco and the Spanish High Commissioner at Tetuan, if secured in proper conditions, is desirable and might be advantageous, but the advantage would be so small as to be unworthy of consideration, especially if obtained only at the cost of a gratuitous concession on our part, and the sacrifice of a strong, logical tactical position such as we now occupy.

I can therefore but suggest that the Department stand firmly by the procedure, to which the Spanish Government appears to be explicitly committed by the Spanish Ambassador’s Note to the Secretary of State, of July 26, 1927, namely, a settlement of outstanding American claims in the Spanish Zone, to precede formal recognition of the Spanish Protectorate in Morocco by the American Government, and I venture to indicate, hereunder, some considerations in support of this recommendation:

1. The actual payment of American claims—however equitable and long overdue—should not be viewed out of its proper perspective. Recognition of the Spanish position in Morocco, on the part of the American Government, must carry with it, on the part of the Spanish Government, a recognition of American treaty rights in Morocco, in existence prior to the intervention of Spain in the Shereefian Empire, and there must be a formal undertaking by Spain, as a protectorate power in Morocco, to respect the continued maintenance of these American treaty rights. It is precisely because the claims are the result of violations of American treaty rights, that their settlement, as a preliminary to recognition, is of such vital importance to the principles at issue.

2. In the view of the Spaniards, a relinquishment of this condition on our part might be construed as the successful result of their shifty tactics, and I feel it would be unwise and undesirable, in any circumstances, voluntarily to capitulate from sheer weariness under the tortuous policy which has been pursued by the Spanish Government throughout the negotiations. Such action could but render more difficult ulterior negotiations, and make more remote our ultimate object, namely, an agreement which will prove helpful to Spain in her administrative mission, and also provide adequate safeguards for American rights and interests in Morocco.

3. We could not with propriety deal with Spain in the matter of the recognition of the Spanish Protectorate in Morocco, on terms more favorable than those which we adopted in regard to France, when recognizing the French Protectorate.

The French agreed to settle all outstanding American claims in the French Zone, as a preliminary to recognition, and there is no reason whatever why this logical process should be departed from in the Spanish case.

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As an alternative compromise, it appears to me that it would be impossible for us to go, with safety, any further than a reiteration of the five-point formula suggested by me in my conferences with Ambassador Bowers in Madrid, in January of last year, and fully explained in my despatch No. 1019 of February 6, 1935.34

These points, it will be recalled, were as follows:

1.
Settlement to be made of all claims agreed to be paid by the Spanish Note of January 22, 1930.35
2.
Kittany case to be settled by separate agreement between the American Diplomatic Agent at Tangier and the Spanish High Commissioner at Tetuan.
3.
Political recognition of the Spanish Zone.
4.
At the solicitation of the Spanish Protectorate Government to the American Diplomatic Agent at Tangier, the Department to consider the measure in which it is able to validate the enforcement on American ressortissants of legislation and regulations which have been edicted in the Spanish Zone. (Similar to procedure followed with the French Protectorate Government).
5.
Assurance that subsequent to recognition, any other questions, including that of the capitulations, brought up by the Spanish Government for examination, will be frankly discussed, looking to their satisfactory adjustment.36

Respectfully yours,

Maxwell Blake
  1. Foreign Relations, 1927, vol. iii, p. 272.
  2. Filed under 452.11/238; for text, see Foreign Relations, 1930, vol. iii, p. 605.
  3. Foreign Relations, 1935, vol. i, p. 1008.
  4. Ibid., 1930, vol. iii, p. 608.
  5. Outbreak of civil war in Spain in July 1936 prevented a resumption of negotiations on the subject of these claims and recognition of the Spanish Zone in Morocco.