971.40/12–854: Circular airgram
The Secretary of State to the Legation at Tangier1
Subject:
- Negotiation of a Radio Ordinance.
CA–3757. Reference is made to despatch No. 211,2 dated November 15, 1954, and enclosures, from the Legation, Tangier, concerning the negotiation of a radio ordinance.
The second enclosure is a memorandum of conversation with the French Minister on November 13, 1954.3 He was told that once the radio ordinance was completed, there would remain only a few small details to negotiate before the United States could accept the jurisdiction of the International Jurisdiction of Tangier in mixed cases.
This statement was in line with the position adopted by this Government in 1953. At that time, the right of the United States to exercise jurisdiction in mixed cases was formally challenged by the representative of France and also questioned, even though not openly, by other members of the Tangier administration. The International Court of Justice had ruled on August 27, 1952, that the United States had no right to exercise jurisdiction in mixed cases in the French Zone. It was argued that the reasoning underlying this decision applied mutatis mutandis to our exercise of jurisdiction in mixed cases in the Tangier Zone. This Government believed it could not adequately defend against this contention. In the light of the legal and political considerations involved, it foresaw it might be compelled to discontinue its exercise of jurisdiction in mixed cases in the not too distant future. On June 18, 1953, the United States representative on the Committee of Control announced that the United States was “seriously considering … the principle of revising its jurisdictional position in Tangiers”,4 it being understood its plan would be tentative and dependent upon securing beforehand a radio ordinance adequately protecting the extensive American radio interests in Tangier.
The decision of the Court of Appeal of the International Jurisdiction of Tangier of August 13, 1954, in El Khadar v Mackay Radio has changed the situation. The tentative plans of the United States for eventual discontinuance of its jurisdiction in mixed cases were the [Page 231] result of necessity. The lack of legal basis for its exercise of jurisdiction in mixed cases put it in an awkward political position where it was restricted to a choice between the prospect of an unsuccessful legal fight which might embitter its future relations in the Zone, and the prospect of a voluntary discontinuance of jurisdiction which would secure the friendly cooperation necessary to the enactment of a radio ordinance favorable to American interests. But the Court of Appeal, the court of last resort, now holds that the United States is legally entitled, under the treaties, to continue to exercise jurisdiction in mixed cases. The Tangier court stated the case for our jurisdiction as strongly as is possible under the peculiar circumstances attending the situation. The United States now speaks from a position of relative legal strength which gives it more maneuvering room and requires reexamination of its political objectives and capabilities.
The Department is aware of course that the strength of our position is only relative. The decision of the Court of Appeal of Tangier is not based on a distinction between the factual situations in French Morocco and Tangier. It simply took the minority view of the International Court on practically all aspects of the arguments involved in the issue of jurisdiction. Where the majority held that jurisdiction in mixed cases acquired through the most-favored-nation clause was a contingent and not a permanent right, the Tangier court adopted the minority view that it was a permanent right which did not disappear when the states—Great Britain and Spain—to which it was originally granted gave it up. It may be doubted, on close analysis of the situation, that we could expect to induce the International Court of Justice to reverse itself. If possible we should therefore avoid a controversy over our right of jurisdiction to reach a point where we would be forced to submit the issue to arbitration. But at the same time, it is also true that the decision of the Court of Appeal of Tangier puts us in a strong position to meet any challenge to our position by the French or other representative on the Committee of Control. To deny the validity of the decision, and hence put in issue the whole problem of the constitutional relationship between the courts and the Committee of Control, would be a heavy political responsibility to assume for those who challenge our jurisdiction. To try to force us into international arbitration would also involve a willingness to embitter their relations with us in Tangier. Before the decision of the Court of Appeal, we ran the risk of jeopardizing our political relationship by resisting their challenge. It would appear now that they must run this risk if they want to insist on our giving up our jurisdiction.
The Department is also aware that a peculiar situation will arise if the radio ordinance should be completed and we are then asked to give up our jurisdiction on the ground that we morally committed ourselves to such a course of action on June 18, 1953, and accepted the establishment [Page 232] of an American judgeship on the courts of Tangier. Presumably, we could not expect to get away with everything, so to speak: jurisdiction of the consular courts over all American defendants, a judgeship on the Tangier courts and a radio ordinance which, as presently drafted, would give substantial control of radio matters in Tangier to Americans. If we elect to give up jurisdiction in mixed cases, we must face the problem of obtaining congressional assent to this move, and in the present circumstances, such an undertaking might not be opportune and would certainly take time. If we consider joining the statute of Tangier, a move discussed prematurely with the French Minister in the conversation of November 13, we must face an even more difficult congressional problem, since this would involve giving up all of our rights of jurisdiction. There remains the possibility of discontinuing the negotiation of the radio ordinance or of giving it a different orientation with less American control. But the appropriate course of action in this matter depends to a large extent on the reports and estimates which the Legation can furnish on the reaction of the other representatives to the decision of the Court of Appeal of August 13, 1954, and their probable position regarding the maintenance of our jurisdiction. The comments of the Legation on this whole matter are requested.5