971.40/4–1554

Background Memorandum, Prepared by the Legation at Tangier 1

confidential

The Tribunal of First Instance of the International Jurisdiction of Tangier has recently handed down a decision which is of great interest to the United States Government. On March 9, 1954, in a case brought by two Moroccan subjects against the Mackay Radio and Telegraph Company, Inc., the Tribunal of First Instance said that in view of the judgment of the International Court of Justice in the case of France v. United States, decided August 27, 1952, the United States no longer can claim in the Tangier Zone capitulatory rights greater than those in Articles 20 and 21 of its Treaty of 1836. The Tribunal went on to say that the United States right of consular jurisdiction, therefore, is limited to disputes between American ressortissants, and that the competence of the International Jurisdiction is now incontestable in a civil dispute, such as the one it had under consideration, between one or more Moroccan subjects and an American company.

My Government, which has studied this matter with great care, is of the opinion that the decision of the Tribunal of First Instance was not warranted on the basis of the ICJ decision. Furthermore, it does not appear that the Tribunal had all of the facts before it.

Even after the entry into force of the Tangier Statute of 1923, which entailed the abolition of the capitulatory rights in Tangier of the parties to the Statute, the United States continued to exercise consular jurisdiction in all cases in which an American ressortissant was defendant, without objection from the Moroccan or Tangier authorities.

In connection with the entry into force of the Four-Power Convention on Judicial Reforms of November 10, 1952, the American representative stated in the Committee of Control, on June 18, 1953,2 that the United States Government intended to adhere thereto with reservation of its position, and that it was seriously studying the possibility of revising its jurisdictional position in Tangier to make it similar to its position in the French Zone of Morocco under the decision of the [Page 228] International Court of Justice. This position was accepted by the members of the Committee of Control and the continuation by the United States of the exercise of its consular jurisdiction, unchanged, was thereby given implied assent.

Also, in a note to the French Government of July 8, 1953,3 the Ministry of Foreign Affairs was notified that the United States Government adhered to the Convention of November 10, 1952, subject to the following reservations:

“1. The adherence of the United States to the Convention does not modify or abridge in any manner the extraterritorial jurisdiction of the United States in the Tangier Zone; …”4

Subsequently a note was sent by the French Government to each of the Governments represented on the Committee of Control calling attention to the United States reservations and stating that, in the absence of objections on their part, the Convention would enter into force as of July 8, 1953. No Government made any observations. (Minutes of the 199th Meeting of the Committee of Control, held July 16, 1953, page 330.)5

Thus the acquiescence of the Tangier authorities to the exercise by the United States of jurisdiction in all cases in which an American ressortissant is defendant, acquiescence which is of some thirty years standing, was confirmed by the acceptance of the United States statement in the Committee of Control on June 18, 1953, as well as by the lack of objections on the part of all Governments concerned to the reservations made by the United States regarding its extraterritorial jurisdiction in the United States note of adherence of July 8, 1953, to the Four-Power Convention on judicial reforms. My Government considers that the International Jurisdiction is bound by this acquiescence of the Tangier authorities as much as it would be if the matter had been reduced to writing in an agreement and, the question being one for the interested Governments, the Tribunal of First Instance has no power to terminate it.

It is the view of the United States Government that the decision of the Tribunal of First Instance of March 9, 1954, cuts across and disregards the understandings reached in the Committee of Control last summer. My Government therefore considers that it is fully justified in recording a strong objection to the decision at this time. I am exploring possibilities of having the judgment of the Tribunal of First Instance reversed, including a possible appeal by the Procureur. It is not, however, my intention at this time to request the intervention of the Committee of Control.

  1. This memorandum was an enclosure to despatch 493 of Apr. 15, 1954 from Tangier. (971.40/4–1554) It discussed the developments in the case of Fatma Bent Si Mohamed El Khadar and Her Son v. Mackay Radio which threatened U.S. consular jurisdiction in Tangier.
  2. Ante, p. 221.
  3. The text of this note can be found in telegram 16 to Tangier of July 7, 1953, p. 222.
  4. Ellipsis in the source text.
  5. Not printed.