881.156/36

The Acting Secretary of State to the Chargé in France (Whitehouse)

No. 432

Sir: You will recall that on January 3, 1922, the Embassy transmitted to the French Minister for Foreign Affairs a note stating that [Page 724] this Government considered that the grant by the Shereefian Dahir of June 2, 1921, of the concession to construct and administer the harbor works of Tangier to the “Société Internationale pour le Développement de Tanger” was made contrary to the provisions of the Act of Algeciras.

M. Poincaré, in his reply of January 18, stated that the concession for the port of Tangier was granted by the Shereefian Government pursuant to the provisions of treaties in force which were said to permit the Moroccan Government freely to grant large public enterprises on the condition that the grantee should put the construction and supplies up for public competition. M. Poincaré further stated that the terms of the Dahir of June 2, 1921, did not provide for such public competition, owing to the fact that the Powers most interested in the concession had decided, in 1914, that there should be no public competition for the work. M. Poincaré announced, however, that the terms of the concession would immediately be modified so as to provide for competition.

In conclusion, M. Poincaré quoted a statement by Mr. Henry White, on February 25, 1919, to the effect that the United States, in signing the Act of Algeciras, had declared that its sole desire was to assure free access to Morocco to the commerce of all nations, to facilitate its development and to increase its civilization by maintaining friendly relations with Morocco, and that in 1919 the only questions in which the United States was interested in Morocco were the “open door” and cordial relations with Morocco.

Upon the receipt of this note, this Government, although not in agreement with the position taken by M. Poincaré, especially with regard to the alleged right of the Shereefian Government freely to grant concessions in Tangier under the terms of the treaties in force, decided to await further developments in regard to the port concession.

These developments have been such, however, that this Government deems it necessary again formally to make plain to the French Government its views on the subject of the port concession, and the procedure by which it has been granted. As you are aware, the Secretary of State verbally explained to the French Ambassador at this capital, during a conversation on July 10, 1922, the attitude of the United States in this matter. As intimated by the statement of Mr. White, which was quoted by M. Poincaré, the preservation of the “open door”, which is guaranteed to American and other foreign interests by the Act of Algeciras, is the chief concern of this country in Morocco as well as in other parts of the world where the “open door” principle has been established by international agreements or understandings.

[Page 725]

The following statement of the attitude of the United States towards Moroccan affairs, made in the Department’s note of February 13, 1914,4 to the French Ambassador at Washington, sets forth, even more clearly than does Mr. White’s statement, the policy of this Government:

“As the main purpose of the United States in participating in the Algeciras Conference and in the adoption of the Act resulting therefrom was to preserve and increase its commerce in Morocco, this Government desires equal opportunities for American commercial interests not only to maintain their present standing in Morocco but also to share in the country’s commercial development.”

The original project for an international company to develop the port of Tangier, and the procedure contemplated for putting it into effect, were first brought to this Government’s attention by a despatch, dated May 23, 1914,5 from the American Chargé d’Affaires at Tangier, as follows:

“A Commission of four technical delegates, designated respectively by the governments of France, Spain, Germany and Great Britain, as the Powers principally interested, are to meet in Paris at the end of this month to examine the plans of the port drawn up by the Engineer in Chief of the Department of Public Works of Morocco. The ‘Cahier des Charges’ relating to the adjudication of the contract for the works of the port, will simultaneously be submitted to the approval of this same Technical Commission. Following this, a report will be made by each of the technical delegates to their respective governments, and in the event of acceptance, the project will then be submitted for formal approval on the part of the Diplomatic Body in Tangier. Upon the final adoption of the project, the Sultan will issue a ‘Dahir’ granting the concession of the port to an International Company which has been formed for the purpose of financing the works and administering the harbor. The capital of this company has been raised in the following proportions: 30% by France, 20% by Great Britain, Spain and Germany respectively, and 10% open to contribution on the part of the other Powers. Italy, Belgium and Holland, I understand, have already taken up about 2% each.

“As soon as the formalities, above noted, have been completed, the contract for the construction of the port will be put up for international tender, in accordance with the provisions of the Act of Algeciras.”

Attention is especially called to the procedure contemplating submission of the project to the Diplomatic Body at Tangier before the issuance of a Shereefian Dahir granting the concession. Such procedure was in accordance with the Act of Algeciras, and consequently [Page 726] this Government, at that time, foresaw no objection to it. The project of 1914, however, was never realized, owing to the outbreak of the war.

It should be remembered that the United States has not been a party to any agreement modifying its rights in Tangier, under the Act of Algeciras, since 1914.

It was therefore with astonishment that this Government learned that on June 2, 1921, without previous notice to the Diplomatic Body, the Shereefian Government had granted the port concession to the so-called international company, which had been revived in 1921, with 53% of the shares under the virtual direction of France. The submission of the project to the Diplomatic Body in Tangier, required by the Act of Algeciras, and contemplated in 1914 as a matter of course, was omitted. The American Diplomatic Agent at Tangier did not receive a copy of the Shereefian Dahir of June 2, 1921, indeed, until he had specifically requested it.

This disregard of the provisions of the Act of Algeciras was brought to the attention of the French Government by your note of January 3, with the result mentioned above.

On June 8, 1922, the General Commission on Contracts at Tangier, composed of two Shereefian Delegates, two Delegates of the Diplomatic Corps and one Administrative Delegate, met, having been hurriedly and without previous notice called together to receive a communication from the engineer technical adviser of the Shereefian Government concerning the technical project of the construction of the port at Tangier, and concerning the date for the adjudication of the work.

The Secretary of the American Diplomatic Agency, who is one of the two Delegates on this Commission from the Diplomatic Corps, stated at this meeting that the United States Government deemed the port concession in itself to be derogatory to the Act of Algeciras, that the French Government had been so informed, and that consequently he did not consider it proper to participate in any discussion in regard to the execution of the port concession. He therefore requested an adjournment until the matter could be discussed with his Government and until he could receive his Government’s instructions.

His request being concurred in by his Italian Colleague, the Commission agreed that another meeting should be called on June 22 to give an opportunity for the Diplomatic Corps to arrive at a decision in the premises.

In spite of this action of the Commission, the Sultan’s representative, who is chairman, on June 12, caused to be published and transmitted to the Diplomatic Corps a printed notice, signed by [Page 727] himself, that the adjudication of the contract for the port works would take place on November 9, 1922.

A meeting of the Diplomatic Corps at Tangier was immediately held, attended by all its members with the exception of the Agent of France. A communication, of which a translation follows, was addressed to the President of the Commission of Adjudications, upon the unanimous resolution of the meeting:

“I have the honor to inform you that the Diplomatic Corps, with the exception of the Diplomatic Agent of France, assembled on June 12th under my presidency, has heard its delegates on the general commission on adjudications and contracts. From the report presented by them it results that at the meeting of said commission held on June 8th, no resolution was passed concerning the adjudication of the works for the construction of a port at Tangier. On the contrary, the commission decided to hold a new meeting on June 22nd next, at which the delegates of the Diplomatic Corps would make their eventual observations.

“Under these conditions, my colleagues have instructed me to express to you their astonishment at receiving a notice, published in the name of the commission, and fixing for the ninth November next the adjudication of the works in question.

“Setting aside all questions of principle relating to the granting of the concession, and without desiring to insist upon the lack of deference toward the Diplomatic Corps which the procedure might signify, my colleagues have requested me to make a formal protest against the publication of the above mentioned notice, the validity of which they do not recognize.

“They have informed their respective governments in this sense and they suggest to Your Excellency that it would be opportune to have this notice of adjudication withdrawn in view of the regrettable consequences it might be susceptible of entailing to private interests.”

On June 23, the American Diplomatic Agent at Tangier addressed a note, a copy of which is transmitted herewith,6 to the Sultan’s representative at Tangier, stating that this Government considers the procedure adopted by the Shereefian Government in connection with the port concession to be a violation of the Act of Algeciras, with regard to public contracts and concessions. A copy of the reply of the Sultan’s representative, dated July 6, is transmitted herewith.6

It will be observed that the most important feature of this reply has to do with the Franco-German treaty of 1911, which, it is stated, “entirely relieved the Shereefian Government of the obligation to have recourse to adjudication for the granting of concessions”. The reply further states that “the Government of the United States has adhered to the Protectorate Treaty of 1912, which implies recognition of principles contained in the aforementioned Treaty.” These statements [Page 728] appear to be in line with that concerning treaties in force made by M. Poincaré in his note of January 18.

This Government has repeatedly pointed out to the French Government, both formally and informally, that it has never adhered to the protectorate Treaty of 1912.

The recognition of the French Protectorate in the French Zone of Morocco by this Government in its note of January 15, 1917,7 to the French Ambassador at this capital, did not constitute an adhesion to the Franco-Moroccan Treaty of March 30, 1912, nor did this Government, by this or any other act, adhere to the Franco-German agreement of February 4, 1911, which preceded the treaty of protectorate. On the contrary, this Government, in a note of December 15, 1911,8 informed the French Ambassador that its adhesion to the Franco-German Agreement “would involve a modification of our existing treaty rights with Morocco, which, under our Constitution, could only be done by and with the advice and consent of the United States Senate.”

Consequently, the rights of the United States under the Act of Algeciras, with regard to concessions for public works in Tangier, remain unimpaired by any subsequent special agreements to which this Government is not a party.

Without answering in detail the specific arguments advanced by the Sultan’s representative in his note of July 6, it is pointed out that the regulations drawn up under the Act of Algeciras to provide for the award of contracts for public works obviously contemplate the application of the principle of the public award, after competition, of all contracts or concessions for public works, whether such works are to be paid for out of the Special Fund or otherwise. In place of the Special Commission, to which must be submitted contracts for work to be paid for out of the Special Fund, there is established, under the regulations for the awarding of contracts in general, a Special Commission called the General Commission on Contracts. On this Commission, the Diplomatic Body is represented by two delegates, and provision is made for the reference to the whole Diplomatic Body of any objections raised by these delegates. The preamble and pertinent articles of these regulations for the award of contracts in general are quoted below:9

“In view of the General Act of Algeciras, and particularly Article 61, providing that part of the receipts from the tax to be levied on city buildings shall be devoted to the needs of municipal roads and hygiene and in general to the expenses of improvement and [Page 729] keeping up of cities; Article 74, relating to the letting out of the tobacco, opium, and kief monopolies; and Articles 105 to 109 inclusive, relating to public services, supplies, and works; and considering that, according to Article 110, it is necessary to determine the formalities and general conditions to which the awarding of contracts in the Empire shall be subject, the following regulations have been prepared in accordance with the agreement reached between the Sherifian Delegation and the Diplomatic Corps:

Article 1

“The public works executed in the cases provided for in Articles 61, 74 and 105 to 109 inclusive of the General Act of Algeciras shall be declared to be of public utility on a request being made to the Makhzen, accompanied by plans in its support, by the Commission provided for in Article 4 below.

Article 2 [3]

“All awards and contracts for work, supplies, and transportation mentioned in the cases contemplated in Article 1 shall be subject to the rules contained in the regulations on awarding of contracts for work to be paid for out of the Special Fund, as modified in the ensuing articles. …10

Article 4

“In place of the Special Committee organized in accordance with Article 1 of the regulations on the awarding of contracts for work to be paid for out of the Special Fund, there shall be a Sherifian Commission called the General Commission on Contracts, composed as follows:

“Two Sherifian Delegates, two Delegates of the Diplomatic Corps, and one Delegate from the administrative department concerned.

“At the request of one of its members, this Commission shall have attached to it a technical expert to be chosen by it and who shall have a consulting voice. He shall perform the duties prescribed for the engineer in the aforementioned regulations …

“In case the delegates of the Diplomatic Corps should consider that the adoption of a proposition would constitute a violation of the provisions of the General Act of Algeciras, they shall make their objection in the form of a written declaration. Before taking a vote, the president of the Commission shall submit the question thus raised to the Diplomatic Corps, which shall give its opinion regarding the validity of the objection within a period not to exceed 15 days.

Article 5

“When it is necessary to call for bids or conclude direct bargains regarding the matters referred to in Article 1, the Makhzen shall notify the General Commission, which shall have the interested administrative department prepare plans and specifications and submit them to the approval of the Makhzen.

[Page 730]

“These documents shall contain the general provisions relating to the job, and specially: …

“Besides these general conditions, special conditions regarding bargains for supplies, monopolies, and transportation may be inserted in the specifications, but without contravening the rule laid down in Article 109 of the Act of Algeciras. …

Article 8

“In case of the awarding of monopolies or supply contracts, the award shall be made to the highest bidder, or to the one asking the lowest price per unit fixed in the specifications, or to the one making the greatest reduction, or asking the lowest price for the whole supply.”

Notwithstanding the express provisions, especially Article 4, of these regulations, the port concession itself was apparently never submitted to the Commission, and the notice of adjudication was issued irrespective of the protest of the Diplomatic members of the Commission. Thus there appears to have been a double violation of the letter of regulations drawn up under the Act of Algeciras, and also a violation of the spirit of that Act.

This Government is unable to reconcile the above enumerated actions of the Shereefian authorities with the final paragraph of M. Poincaré’s note of January 18, in which he assures this Government that the régime of the “open door” remains in force in Morocco. The manner in which the port concession has been handled gives this Government cause for grave apprehension lest it be the purpose of the Shereefian Government with the encouragement and support of the French Government to disregard the express provisions of the Act of Algeciras in future cases which may arise affecting American interests in Morocco.

This Government is further firmly of the opinion that the granting of an exclusive port concession at Tangier to a company a majority of whose shares are controlled by one nation, taken in conjunction with the fact that this company is granted administrative control of the port for ninety-nine (99) years, is a violation of the principle of the “open door” established by the Act of Algeciras.

The United States Government, as a signatory of the Act of Algeciras, is unable, under the Constitution of the United States, to view with equanimity violations of that Act and, hence, has no other course open to it than to communicate with other signatory Powers with a view to taking common counsel regarding action that may be taken for the protection of the principle of the “open door” and of the rights of the United States.

You may hand a copy of this instruction, together with its enclosures, to M. Poincaré, with the request that he make known to [Page 731] you at the earliest practicable moment the policy of the French Government with respect to the questions herein raised.

I am [etc.]

William Phillips
  1. Foreign Relations, 1914, p. 907.
  2. Not printed.
  3. Not printed.
  4. Not printed.
  5. Foreign Relations, 1917, p. 1094.
  6. Ibid., 1911, p. 623.
  7. French text is filed with despatch no. 359 of June 11, 1908, from Morocco (file no. 295/267–268).
  8. The marks of ellipsis, here and later in this document, appear in the Acting Secretary’s original instruction.