881.00/7–2145

No. 1355
The Ambassador in France (Caffery) to the Secretary of State

secret
No. 2536

Subject: Transmitting Comments on Spanish Threat to Withdraw from the Tangier Statute in the Event of Soviet Participation

The American Ambassador refers to telegram no. 1548, July 18, 1945 addressed by the American Ambassador in Madrid to the Department1 referring to a Spanish threat to withdraw from the Tangier Administration in the event of Soviet participation, and has the honor to transmit, as of possible interest to the Department, a memorandum prepared by Mr. Ernest J. Dempster in consultation with Mr. J. Rives Childs commenting on the disabilities of Spain to carry out its threatened intentions.

J R[ives] C[hilds]
[Enclosure]

Memorandum

Madrid Embassy’s Telegram No. 3981 in Reference to Action Spain Proposes to Adopt If Russia Joins in the Tangier Administration

The Spanish Government admits that it can do nothing to prevent Russian participation in the Tangier administration but bases its objection to such Russian intervention upon a legal argument shown to be untenable by reference to paragraph 1 of Article 56 of the 1923 Convention concerning Tangier. The paragraph in question reads as follows:

“The present Convention shall be communicated to the Powers signatories of the Act of Algeciras and the three contracting Governments (France, Great Britain and Spain) undertake to lend each other mutual support in obtaining the accession of those Powers.”

It is clear from this provision that the signatories of the Act of Algeciras were admittedly free to accept or to reject association in the statutory administration of the Tangier Zone after consideration of the joint persuasive pressure of the elaborators of the 1923 Convention. No signatory of the Act of Algeciras could possibly be deemed to forfeit its rights under that Act as a result of its declining adherence [Page 1414]to another and extraneous instrument such as the 1923 Tangier Statute.

Furthermore there is nothing in the terms of the 1923 Convention to preclude any signatory of the Act of Algeciras from subsequently reconsidering its refusal and intimating its desire to adhere to the Statute subject to eventual agreement with the contracting powers on the conditions of its entry into the Tangier administration. Such a contingency is apparently admitted by the Spanish without demur in the case of the United States, and there are no grounds upon which that position may be contested in regard to Russia whose position in the premises is substantially identical with that of America.

In the event of Russia’s admission, or on other grounds, the Spanish may claim a right to denounce the Statute. However, the carrying into effect of their threatened reversion to the capitulatory regime as and when they may think fit, appears to be restrained by Article 56 above cited of the 1923 Convention paragraphs 3 and 4 of which read as follows:

“It (the Convention) is concluded for a period of twelve years dating from its ratification.

“It shall be renewed automatically for one or more equal periods if at least six months before its expiry none of the contracting powers has demanded its revision. In such case it shall remain in force while the revision by common agreement is being effected.”

The Spanish position in the premises in reference to the above provisions appears to be governed by the following facts:

1.
The Tangier Statute is in its second twelve year period which terminates in 1948. (The legality of its continued operation has not been affected by the farce of the Spanish occupation, which in effect may be set down as an unconventional method for the presentation of Spain’s statutory demand for a revision of, or even for Spanish withdrawal from the Statute.)
2.
The other two contracting powers, France and Great Britain[,] are likewise now demanding a revision for the purpose, entirely compatible with the terms of the 1923 Statute[,] of arranging for the inclusion in the administration of the United States and Russia as, similarly in 1928, a revision2 was made to include Italy.
3.
During such revisions (and as happened in 1928), the Statute remains in force and, in accordance with the terms of its Article 48, paragraph 3, the capitulatory rights of Spain remain in abeyance.
4.
An attempt by Spain to set up its consular court jurisdiction in Tangier during the period of revision, and presumably in any event until the year 1948 when the second twelve year period of the Statute [Page 1415]terminates, would be illegal as contrary to Spain’s contractual engagements under the Tangier Convention.
5.
The authorities which would continue administering the Zone in conformity with the provisions, including those of Article 56, of the 1923 Statute would appear to be justified in ignoring a reestablishment of the Spanish consular courts and properly require Spanish ressortissants to submit to the jurisdiction of the International Mixed Court provided for by Article 48 of the 1923 Convention.

While the foregoing is believed to represent the legal position in the premises, the Spanish view and contemplated intentions are susceptible obviously of increasing the delicacy and difficulties of the problem of order and security in the Tangier Zone during the interim administration.

E[rnest] J D[empster
  1. Document No. 1351.
  2. Document No. 1351.
  3. Signed at Paris, July 25, 1928. Text in British and Foreign State Papers, vol. cxxviii, p. 449.