881.044/36

The Chargé at Tangier (Elbrick) to the French Resident General in Morocco (Puaux)14

Mr. Resident General: I have the honor to refer to Your Excellency’s note no. 62–D of January 24, 194415 which suggests that the [Page 517]Government of the United States be requested to examine the possibility of its addressing general instructions to the American consular authorities in French Morocco enjoining them to consider as automatically applicable to American ressortissants any decrees taken by the Protectorate authorities for the enforcement of the enabling dahir of September 13, 1938, concerning the organization of the French Zone in time of war.

In this connection reference is made by Your Excellency to a note dated January 9, 1940,16 addressed by Mr. Maxwell Blake to General Noguès to the effect that the then American Diplomatic Agent was disposed to examine and report to the Department of State suggestions concerning measures of cooperation with the Protectorate authorities designed to avoid special difficulties which might result from the failure of the American Government to give its approval to French Zone legislation enacted as a result of the present exceptional circumstances. It would seem that Your Excellency’s above-mentioned proposal was put forward on the assumption that it might be deemed to fall within the compass of the terms of Mr. Blake’s note. That such is not the case is apparent from the terms of the note itself, limited as they are to the consideration of situations arising from the failure or the inability of the Department to validate certain Protectorate legislation. The ensuing explanations, it is believed, will further elucidate the position.

Your Excellency’s suggestion has been brought to the attention of the Department of State, and in pursuance of its instructions the Legation is directed to point out that the enforcement upon American ressortissants of decrees and regulations to implement the dahir of September 13, 1938 would necessarily be incumbent upon the American consular courts in Morocco and that, pursuant to the Statutes of the United States, the system of laws, both criminal and civil, to be applied in these courts shall, in all cases, be in conformity with the laws of the United States.

The Statutes, however, further make provision for the issuance of special decrees emanating from the appropriate American authorities, necessary to furnish suitable remedies where the provisions of the American system of laws applicable in the American consular courts may be deficient to meet particular exigencies in extraterritorial countries.

In regard to Morocco, local laws or decrees validated by the Department of State are deemed to be equivalent to the special decrees envisaged by the Statutes as above said. It follows, therefore, that no local dahir, decree, or regulation can become part of the corpus juris of the American consular courts in this country, in the absence [Page 518]of the Department of State’s previous validation, with its attendant reservations, of each of such local enactments individually.

From the foregoing Your Excellency will appreciate that, on treaty, statutory, and juridical grounds the Department of State is not in a position to entertain a proposal such as that submitted by Your Excellency, which would imply a foregone approval to the enforcement by the consular courts upon American ressortissants of local legislation eventually to be enacted.

While, therefore, it is unable to consider any departure from the normal procedure established for the validation of Moroccan legislation which it is sought to apply to American ressortissants in this country, the Department is anxious at all times, as Your Excellency is aware, to afford the Protectorate authorities the fullest cooperation. In all cases, therefore, particularly those which the Residency General may consider of urgent interest, the procedure under reference is carried out with the greatest possible expedition.

The Residency General at Rabat will have noted further that the Department’s validation of dahirs and decrees appears not to have been withheld nor have its reservations been formulated except in respect of legislation which, in the opinion of the Department, was at variance with fundamental principles of the Moroccan treaties, or for other cogent reasons.

Prior to the receipt of Your Excellency’s note of January 24, 1944, no suggestions have been submitted on the part of the Protectorate authorities in response to Mr. Blake’s note of January 9, 1940. Nevertheless, the Legation at Tangier and the American Consulates in French Morocco have, since then, been consistently engaged in carrying its terms into practice. They have successfully induced American ressortissants voluntarily to comply with local dahirs, decrees, and regulations issued in the interest of the Moroccan community at large in the present exceptional circumstances, but to which laws the Department is unable to give its formal assent because of their departure from the basic treaty principles. As an instance, the matter of the requisition of olive crops may be cited. While such expedient implies no waiver of treaty rights, it brings about the desired cooperation with the Protectorate authorities. In taking such action, the American Consuls concerned must of course be assured that American ressortissants shall not incur discriminatory or otherwise inequitable treatment as a result of their voluntary compliance with laws and regulations not legally binding upon them.

The efforts of American Consuls in French Morocco to promote the success of the above modus operandi will be facilitated if they are [Page 519]opportunely furnished by the Protectorate authorities with complete data in regard to the requirements of the pertinent Protectorate legislation and regulations. Through such mutual cooperation it is hoped that such difficulties as are referred to in Your Excellency’s note can be reduced to a negligible minimum.

Finally, the two specific matters which have occasioned Your Excellency’s note, namely, the suppression of the constitution of clandestine stocks and the restraint of excessive consumption of water or electrical power, have occupied the sympathetic attention of the Legation and of the Consulate at Casablanca.

As regards the first, it is obvious that the existence of local “black” markets proceeds from temporary departure from observance of the basic treaty principle of the liberty of commerce in Morocco. Consequently, as above shown, the American Consulates’ treatment of this matter could not be conducted on a legal plane. Consideration is, however, being given to the feasibility of applying administrative action susceptible of deterring American ressortissants from engagement in discreditable transactions on the “black” markets. The particular case to which Your Excellency refers is apparently the alleged constitution of clandestine stocks of kerosene by Mohammed Ben Driss Drissi, a semsar of the Socony-Vacuum Oil Company at Moulay Idriss Zerhoun.

Correspondence between the American Consul General at Casablanca and Your Excellency’s Diplomatic Cabinet reveals that this matter had been complicated by the unwarranted action of the local authorities of control in taking such proceedings against the American ressortissant as, in virtue of the Moroccan treaties, are of the exclusive competency of the American Consulates in their judiciary capacity. Incidentally the Legation has since been informed that Mr. H. Earle Russell’s investigation in this connection has shown the unsustainable character of the charges brought against the above named Mohammed Ben Driss Drissi.

As regards the regulation of the use of electrical power, the legislation would not appear intrinsically to involve a basic treaty principle and might therefore be susceptible of receiving the Department’s eventual approval, subject to appropriate reservations, of its enforcement upon American ressortissants, following the formal application to that end on the part of the Sherifian Government. This initial procedure having now been followed as the result of the presentation to the Legation of Your Excellency’s note no. 235–D of March 14, 1944, the legislation in question is at present under consideration.

Please accept [etc.]

C. Burke Elbrick
  1. Copy transmitted to the Department in despatch 2072, May 8, from Tangier; in this despatch the Chargé noted that the last two paragraphs had been “recast to take into account subsequent developments …” (The earlier copy had been transmitted to the Department in despatch 1963, February 11, p. 510.)
  2. Not printed.
  3. Foreign Relations, 1940, vol. iii, p. 772.