The Diplomatic Agent and Consul General at Tangier (Blake) to the Secretary of State
[Received August 8.]
Sir: I have the honor to acknowledge the receipt of cable Instruction No. 32 of July 25, 5 p.m., which replies to my despatch No. 1547 of July 12, 1940, and requests me to submit upon the two cases dealt with in that despatch, further comments which may be of assistance to the Department in its consideration of the action to be taken on the general subject of the interjection of military jurisdiction, whether French or Spanish, into the administration of justice in the French and Tangier Zones of Morocco.[Page 810]
I note that the general principles cited in the Department’s telegram are substantially those set forth in previous instructions to the American Embassy in Paris, to which reference was made in my No. 1547, namely:
That extraterritorial jurisdiction exercised in virtue of existing treaties, customs and usages, by American Consular Courts in Morocco, cannot be superseded by Military Courts of other powers, in the absence of express agreement with the Government of the United States.
The process for our vindication of the position in regard to French Morocco is a comparatively simple matter because of our recognition of the French Protectorate. Our reaction to the claims of Spanish Military Courts in Tangier (or indeed elsewhere in Morocco) is complicated by the fact, (pointed out in both in my despatch No. 1547 and in the Department’s cable No. 32), that the American Government has given no formal recognition to the status of Spain, whether civil or military, in the Shereefian Empire.
The following background information may be helpful to the Department in the consideration of eventual action to be taken in the Spanish case:
(1) Whatever may have been the vicissitudes of the negotiations, the Spanish military occupation of Tangier45 was the result of agreement, or at least connivance with France and Great Britain, two of the sponsors of the Tangier regime.
(2) The measures taken by French, British and Italian naval forces at Tangier for the preservation of order in the Zone during the Spanish civil war, is a precedent to which the Spaniards may point as justifying their occupation of Tangier, because of present international disturbances.
Moreover, under the Tangier regime which, from the point of view of the adherents to the “International” Statutes,46 is an offspring of the Act of Algeciras,47 the military police of the Zone, is under the supreme command of a Spanish officer, and the forces of occupation coming from the Spanish Zone are Moroccan troops officered by Spaniards.
(3) The promulgation of the notice by the Spanish Commander of the troops of occupation in Tangier, is claimed to have been necessitated by an incident of which I have just become apprised. Two persons were brought before the Tangier Mixed Tribunal on charges of affronting members of the Spanish military forces, but the Mixed Tribunal declared itself incompetent to deal with such charges. It [Page 811]may be added that a Spaniard was the presiding magistrate of the section of the Mixed Court concerned, and the inference is that the incident was probably staged for the purpose in view.
Incidentally the creation of such motive to justify the introduction of Spanish Courts Martial into the Tangier Zone, would have seemed superfluous if, as Colonel Yuste implies in the preamble of his proclamation, (enclosure to my No. 1547) it is indeed “a recognized basic principle of public international law that military jurisdiction at all times follows the forces of occupation, whatever the reasons for the occupation.”
At all events, our opposition to such pretensions stands upon our extraterritorial rights under the Moroccan treaties, while our Consular Courts, unlike the Tangier Mixed Court, are not prepared to acquiesce in any arbitrary abridgment of their competency to hear charges brought against American ressortissants.
While representations must necessarily be made for the safeguard of our treaty position in the Shereefian Empire, it is not easy, on account of the very complicated and confused political and diplomatic situation in Tangier, to determine what form these representations should take or to what Spanish authorities they might appropriately be addressed.
Here are some of the points which contribute to the complexity:
- Our exceptional position, among the other representatives of the powers in Tangier, because of the fact that we alone still retain the exercise of our capitulatory rights, in the “International” Zone.
- Our position of detachment from the Tangier organization, and consequently from the considerations which have induced other powers to assent to the Spanish military occupation of the Zone.
- The fact that we have not recognized Spain’s position in Morocco,48 whether in the Spanish or in the Tangier Zones, and that consequently official relations with the Spanish authorities in Morocco are debarred to the American representative in Tangier.
- Informal representations to the Administrative Authorities of the Spanish Zone have been effected by the American representative through his Spanish Colleague in Tangier. Should this same modus vivendi be extended to representations to the Spanish Military Authorities in Tangier?
The important question is whether our representations in the premises should be made at Tangier through my Spanish Colleague, or to the Spanish Government through the Spanish Ambassador in Washington, or through the American Ambassador in Madrid.
All things considered I believe address to the Government at Madrid to be the advisable one. It would simultaneously maintain our aloofness from the local political complications which present events [Page 812]have accentuated among the European powers in regard to Tangier, and be consistent with the absence of our formal recognition of Spanish Authority in Morocco.
At the same time the Department may consider it advisable that I should informally notify my Spanish Colleague of such “démarches” as may be taken by the Department vis-à-vis the Madrid Government.
In order to complete the Department’s documentation on the subject, I enclose herewith copies of the French text together with English translations of:
(a) The Spanish Minister’s Note to the individual representatives of the powers in Tangier, and (b) his circular as President of the Committee of Control to his fellow members of that Committee, concerning the establishment of Spanish Courts Martial in the Tangier Zone.49
P. S. As regards the case of the American protégé under prosecution by the French Court Martial at Fez, I am in communication with the Consul General at Casablanca and according to his account of the actual situation, the matter will be dealt with in pursuance of the directions contained in the Department’s cable instruction, hereby acknowledged, and a report of the action eventually taken, will follow by mail.
- For correspondence on this subject, see pp. 783 ff.↩
- Signed at Paris, December 18, 1923, League of Nations Treaty Series, vol. xxviii, p. 541.↩
- Foreign Relations, 1906, pt. 2, p. 1495.↩
- For previous correspondence on this subject, see Foreign Relations, 1936, vol. iii, pp. 422 ff.↩
- Neither printed.↩