781.003/99

The Counselor of the Belgian Embassy (Gruben) to the Chief of the Division of Near Eastern Affairs (Murray)

D7115
No. 683

Dear Mr. Murray: With reference to our recent conversation, I have the honor to send you herewith, for your personal information, a memorandum setting forth the legal argumentation by which the [Page 870]Belgian Government claims that the customs régime of Morocco cannot be modified without its approval.

This memorandum develops the considerations mentioned in paragraphs 2, 3 and 4 of page 2 of the letter addressed by the Belgian Ambassador to the Honorable the Secretary of State on the subject, under date of February 7th 1938.

I remain [etc.]

Baron de Gruben
[Enclosure—Translation]

Belgian Memorandum Relative to the Moroccan Customs Tariff

The French thesis is that the rate of 10 percent was fixed by Article 7 of the Anglo-Moroccan Treaty of Commerce and Navigation of December 9, 1856, Article 50 of the Spanish-Moroccan Treaty of Commerce of November 20, 1861, and Article 2 of the German-Moroccan Treaty of Commerce of June 1, 1890. The other powers cannot claim the application of this rate except by virtue of the clause of the benefit of the most favored nation inserted in multilateral diplomatic instruments like the Convention of Madrid of 1880,25 or of special agreements. Therefore, modification may take place by an arrangement concluded by Morocco with Great Britain and Spain, Germany having renounced her rights in Morocco by the Treaty of Versailles.26

England appears to admit this thesis, which nevertheless does not appear to be well-founded.

If it is sound, as regards countries from which France has requested the recognition of her protectorate, while giving them in compensation the benefit of the most favored nation, it could not be applied to the signatories of the Act of Algeciras.

The Act of Algeciras stipulates in Article 123 that “All the treaties of the signatory powers with Morocco shall remain in force.” It may be said that this article integrates into the Act all previous treaties; it gives to them a new life and aspect and from being bilateral, renders them multilateral, while calling upon the signatories of the Act to ratify them.

Thus the Maghzen has pledged itself toward all the powers which took part in the Conference to maintain the rate of 10 percent. In order to convince oneself of this, it is sufficient to reread the procés-verbaux of the meetings.

As is known, the Sultan sought especially to augment his resources. In this order of ideas, his principal care was to obtain an increase of [Page 871]the customs duties, as is proved by his letters addressed to the negotiators and the many interventions of the Shereefian delegates. From the beginning, the representatives of the powers showed that there could be no question of it. Furthermore, at the second Committee meeting27 (January 25, 1906) the Minister of France, Mr. Revoil clearly indicated that in this domain foreign countries had a right of supervision:

“There is a second category of taxes, those which weigh more particularly on foreigners as, for example, customs duties; as regards this second category the mission of the Conference would be more precise: Leaving the domain of advice, it could enter into the domain of proposals.”

This recognition of the rights of all the powers to intervene in a modification of the rate of the customs duties, as well as the intention of the Conference to confirm the rate of 10 percent, is fully evident from the minutes of the meetings.

After the second meeting of the above-mentioned Committee, there was referred to all the delegates a “questionnaire for preparing the study of a better yield of Moroccan taxes and the creation of new revenues.”

Question 14 was thus framed: “Should we defer to the proposal many times expressed by the Sultan of increasing the customs duties? Should there be a global increase on importation?”

In the course of the third Committee meeting (January 27, 1906) there took place, regarding entry duties, a general discussion in which all the delegates took part, on a question of Baron Joostens28 whether the possible increase of the customs duties would be global. Mr. Revoil stated definitely that “it would indeed be global but it would not be incorporated in the duty; that that duty would remain fixed at the present figures.” Is it possible to find a more formal confirmation by the Conference itself of the rate of 10 percent?

In opening the fourth Committee meeting (January 29, 1906) the President suggested the postponement of the discussion on the raising of the customs duties until the time when the delegates of the powers should have received instructions from their governments. This is indeed a recognition of the right of all to take part in the possible modification of the rate.

At the fifth Committee meeting there was read a Shereefian letter insisting on obtaining an important increase of the entry duties, a differential taxation according to products and the payment of the [Page 872]increase into the treasury. The minutes recorded that “the delegates of the powers are in agreement in recognizing that the idea of increasing the 10 percent ad valorem which now applies to the importation of merchandise into Morocco to 20 percent for the generality of products, to 40 percent for sugar, tea and coffee and to 100 percent for beverages other than mineral waters is not admissible.”

And in the course of the discussion which followed, Mr. Revoil again stated that “Morocco could not increase the import duties without the consent of the powers.”

At the fifth plenary session (February 7, 1906) he confirmed this point of view in the following language: “There is perhaps in the mind of the Moroccan delegates a certain confusion between the import duties and the export duties. On the subject of import duties, Morocco is under the obligation of coming to an understanding with the powers when there is a question of modifying the existing duties.”

These texts need no comment. They clearly and formally imply:

1.
That all the powers including France have recognized that no change can be made in the rate of 10 percent without the agreement of all the powers represented at Algeciras.
2.
That the Conference, if it did not so state in the General Act, nevertheless confirmed that the rate of the import duties could not be raised.

It may be said that this second point is explicitly established by Article 66 of the Act of Algeciras. In consenting to the application of a supplementary duty of 2½ percent ad valorem on the importation of foreign goods, the Conference made three conditions: That it should be temporary; that it should be paid into a special fund and that its revenue should be assigned to certain works, the whole under the supervision of the Diplomatic Corps. Furthermore, the negotiators have taken care that no confusion could take place with the customs duties. The first designation given by the drafting committee to the supplementary duty was “customs surtax”. In the 16th plenary meeting (January 31, 1906) the delegate of Austria-Hungary pointed out that it was not a question of a customs duty, and that the description employed might give rise to misunderstanding. He therefore proposed to replace the designation “customs surtax” by that of “special tax”, which was unanimously adopted.

  1. Malloy, Treaties, 1776–1909, vol. i, p. 1220, or 22 Stat. 817.
  2. Articles 141–146, Foreign Relations, The Paris Peace Conference, 1919, vol. xiii, pp. 292 295.
  3. For reports of the proceedings of the Algeciras Conference, see Algeciras, International Conference on Moroccan Affairs, 1906, Conference international d’Algeciras (Madrid, 1906?); or France, Ministère des Affaires Etrangères, Documents Diplomatiques 1906, Affaires du Maroc: Protocoles et Comptes Rendus dela Conférence d’Algtéiras (Paris, 1906).
  4. Belgian delegate to the Algeciras Conference.