353/8–553
Memorandum by the Deputy Director of the Office of African Affairs ( Cyr ) to the Deputy Assistant Secretary of State for Near Eastern, South Asian, and African Affairs ( Jernegan )
Subject:
- Regularization of U.S. Treaty Position in the International Zone of Tangier.
The regularization of our treaty position in the International Zone of Tangier, so that it conforms to the position we are now maintaining in the French Zone of Morocco under the decision of the ICJ, involves (1) a cut-back in the scope of the jurisdiction of our consular court, and (2) the relinquishment of our right to assent to Tangier laws before they can be applied to Americans.
Prior to the ICJ decision our Consular Court in Casablanca was exercising exclusive civil and criminal jurisdiction in all cases in which an American citizen was defendant. The ICJ ruled, however, that the scope of our consular jurisdiction was confined to that granted to us in our 1836 treaty with Morocco which gives us jurisdiction only in those cases both civil and criminal where Americans (or American protégés) are both plaintiff and defendant and to those cases specifically set out in the Act of Algeciras (these relate mostly to customs cases). The Court said that we had lost the broader jurisdiction in 1937 when the British surrendered their capitulatory rights in Morocco. Prior to 1937 Britain, under a treaty with Morocco of 1868, had enjoyed the right of consular jurisdiction in all cases in which a British subject was a defendant and we had claimed this right under the most-favored-nation clause in our treaty of 1836.
The ICJ also ruled that we did not have the right to claim that local laws could not be applied to American citizens without the assent of this Government. Our claim to this right was not based on any specific provision in any treaty, but rather was based on custom and usage coupled with the fact that our consular courts in the past simply refused to apply to Americans any law to which this Government had not assented.
The decision of the ICJ does not by its terms apply to the Tangier Zone. However, our rights in Tangier are based on exactly the same treaties as our rights in the French Zone. In order to contend that we still have in Tangier the broader rights which we are now exercising, we could only adduce the same arguments which were rejected by the ICJ in the case concerning our rights in the French Zone. In brief, in the light of the ICJ decision, we are without a legal basis on which to maintain our present position in Tangier. Under the decision of the Court, the International Administration can terminate these rights simply by notifying this Government that it no longer acquiesces in the [Page 225] exercise of such rights. This would cut our position in Tangier back to what it now is in the French Zone under the ICJ decision.
We believe that it is in our best interests to keep the initiative in this problem by voluntarily taking this action. It is hoped that by so doing we will be able to obtain agreement to (1) the enactment of a satisfactory Tangier radio ordinance which will govern the future operations of RCA and Mackay, (2) a government-to-government agreement governing the future operations of our VOA relay station, and (3) agreement to certain technical problems involved in cutting back our consular jurisdiction. This will permit us to regularize our position in an orderly fashion while obtaining maximum protection for our own interests and the interests of RCA, Mackay and other commercial companies. The alternative is to lose these rights by action of the Tangier Administration which would, in the case of RCA, Mackay and VOA subject the operations of their stations in Tangier to the provisions of an existing radio ordinance which gives the Administrator of the Zone almost unlimited control over their activities.