Foreign Relations of the United States, 1952–1954, Africa and South Asia, Volume XI, Part 1

771A.00/5–1452

Memorandum by Smith N. Crowe of the Office of the Legal Adviser for Near Eastern, South Asian, and African Affairs to the Assistant Legal Adviser of That Office (Maktos)

secret

[Washington,] May 14, 1952.

Subject:

• The Rights of the United States and Other Powers Under the Anglo-French Agreement of 1945 Relating to International Administration in the Tangier Zone of Morocco.

Approximately three weeks ago the Spanish Government presented to the Governments represented on the Committee of Control in Tangier a note¹ suggesting that the international administration of the Zone be returned to its status under the agreement relating to a statute for the international administration of the Tangier Zone signed by France, Spain and Great Britain in 1923, as amended in 1928,² at which time Italy was also a party. In making this suggestion, the Spanish attacked the Final Act agreed to by the United States, Great Britain, France and Russia in 1945 and the Anglo-French Agreement of that year which re-established an international administration in the Zone.³ The 1945 Anglo-French Agreement was adhered to by a number of other countries, excluding the United States and Russia. The Final Act consisted of recommendations in the form of resolutions, among which were those stating that the United States and Russia, in view of their interests in the Zone, would be invited to participate in the international administration, and the resolutions provided that the Anglo-French Agreement of 1945 was to constitute an Annex to the Final Act. The Anglo-French Agreement provided that invitations of this nature should be sent to the United States and Russia. It provided further that the international administration was to be re-established on the basis of the Statute of 1923, as amended in 1928, except as modified in the Anglo-French Agreement. Among others, these modifications consisted of changes in the police force operating in the Zone. It was provided in Article VIII of the Agreement that it could be amended by the unanimous vote of the Committee of Control.

The Spanish Government stated that the 1945 Agreement should not be considered in force and referred as substantiation for this position to the fact that Spain had not been included in the 1945 arrangements and that a convention was not held within six months after the new regime became effective, as was provided in the Anglo-French Agreement of 1945. A meeting was held by representatives of WE, AF, and L/NEA, in which it was decided that the Spanish note should be answered by a statement that the problem should be handled at Tangier by the Committee of Control operating under the 1945 Agreement. It was further decided that this could be accomplished through the utilization of Article VIII of the 1945 Agreement. The Spanish were notified in accordance therewith.

A second Spanish note⁴ was recently received which indicated substantially the same position as was stated in the first note. In connection with discussions of this note, the thought was presented that it might be desirable to clear up the situation at Tangier by excluding the Soviet Union from participation in the administration. Initially, the suggestion contemplated an international conference to accomplish this. More recently, consideration has been given to attaining the desired goal either (1) within the framework of the 1945 Agreement through the Committee of Control at Tangier, or (2) by the issuance of a Dahir by the Sultan of Morocco⁵ which amends the Dahir of September 22, 1945, to exclude Russia from the Committee of Control and the Legislative Assembly of the Zone. It, thus, became desirable to review the legal basis of United States rights as well as Russian rights to participate.

It is believed that United States rights emanate from acceptance of the invitation extended by France pursuant to the 1945 Agreement. The Agreement itself contemplated that affirmative rights accrued to all participants in the regime and each assumed the obligation to the other to guarantee the operation of the international administration in accordance with that Agreement. While the fact that the French could compel Morocco to pass the necessary Dahir implementing the Agreement may have been a basis for handling the matter in this fashion, this does not mean that the authority to participate results only from the approval by the Sultan of that participation as evidenced by his Dahir. The particular form of carrying out action in Morocco should not obscure the actual origin of rights regarding the international administration. It is, therefore, difficult to see how the United States could agree to a modification of the administration solely on the basis of the issuance of a new Dahir without acknowledging that its right to participate does not depend upon the 1945 Agreement and without admitting that it has no affirmative rights thereunder.

There has been presented the theory that the legal situation consists of two primary factors. The first is that the 1945 Agreement created rights between the parties only, and secondly, that legal rights to participate in the Tangier administration result from the Dahir issued by the Sultan of Morocco in implementation of the 1945 Agreement. It is reasoned that this Dahir could be modified to exclude the Russians, which would be consistent with the second portion of the legal analysis just mentioned. It seems difficult to accept this separation of legal authority when considering the question of United States rights of participation. This type of analysis seems to lead inexorably to the conclusion that the 1945 Agreement does not create rights against the Sultan and further that all rights of a substantial nature in Tangier are dependent upon the Sultan’s Dahirs. As stated above, this seems to ignore the practical aspects of the Agreement in that parties must have intended to create rights and obligations which could be enforced, and, therefore, even though it might have been contemplated that they were to be enforced through the channel of French authority in Morocco, the basic rights of the parties do fundamentally rest upon the 1945 Agreement. In addition, if it is assumed that legal rights come from the Sultan, it must follow that the rights between the parties to the 1945 Agreement are merely nominal. This creates two possible difficulties. It is not believed that the French Government would wish to state a legal theory which would imply such an independent authority residing in the Sultan. A reliance on Tangier administration authority based on Dahirs would leave open the possibility of independent action by the Sultan with respect to Tangier affairs which would not only be embarrassing to the French, but inconsistent with their long stated position of control and influence over Moroccan foreign policy. On the other hand, the French would find it difficult in view of the practical situation existing to deny responsibility for the Sultan’s action against a Russian objection. The French could be accused of breaching their Agreement with the Russians in 1945, and there appears to be no reasonable explanation for this except to deny French authority and responsibility for the Sultan’s action, a position which the French could not very well take in view of the ICJ case⁶ and the general policy in Morocco. It is also interesting to note that in the 1945 Agreement the Committee of Control was given authority to amend the 1945 Agreement, but in the Sultan’s Dahir of September 22, 1945, implementing the 1945 Agreement, this provision was not included. The parties to the Agreement must, therefore, have contemplated that authority independent of the Sultan was established by the 1945 Agreement. It also follows that, for the Committee of Control to take any action modifying the Agreement under Article 8, it is not acting pursuant to the authority granted to the Sultan.

Since the Sultan’s Dahir of September 22 places both the United States and the Soviet Union on the Committee of Control, the Russians could argue that the United States should be left off that Committee as well in view of the fact that the rights of both stem from the Agreement made in 1945. The United States answer to this made on the basis of authority in the Sultan would mean a denial of United States rights under the 1945 Agreement and would constitute an implied rejection of the right of the French to control Moroccan foreign policy. In this connection, it is also useful to note that if this Government took this approach, it would be in a difficult position to later object to French actions which brought about changes in United States rights as the result of Dahirs issued by the Sultan.

It is true that to exclude the Russians by a Dahir of the Sultan and to then reply that the Sultan’s authority is supreme would somewhat minimize a Russian charge relating to the breach of the 1945 Agreement, but in view of the legal problems mentioned above, it seems that this is not a great enough advantage to warrant its utilization to explain the action of excluding the Soviet Union. This seems particularly true in view of the fact that Article 8 of the Agreement places modification power in the Committee of Control. Action in accordance with this Article can be taken which would place it within the framework of the 1945 Agreement, thus obviating the necessity of relying on the legal fiction of the authority of the Sultan and thereby also denying United States rights as a result of the 1945 Agreement. Under this procedure the Russian objection can be answered on two grounds. One, the Russians have not accepted the invitation to join in the administration of the zone under the terms of the 1945 Agreement, and, not presently having rights as the result of an acceptance, they cannot interfere with action taken by the Committee of Control under that Agreement. Two, the Russians have not participated in the Committee of Control, and, since Article 8 may be reasonably interpreted as requiring the unanimous consent of only those parties participating, the Russians may not object to appropriate action taken by that Committee. The only difficult problem in handling the matter in this way would seem to be that which arises from the possibility that the Russians might become aware of the action contemplated and demand to take part in the determinations of the Committee of Control. In view of the political circumstances, it is doubtful that the Russians could accept an invitation and proceed to carry it into effect in time to forestall prompt and efficient action taken by the Committee of Control after agreement by the powers concerned. Furthermore, the Russians have indicated no desire to participate in the administration as long as Spanish representation remained and there is no reason to believe that this fact would be altered by Russian knowledge that an attempt would be made to formalize their de facto absence. The Russians would most surely be required to retreat from the position often emphasized in the past with respect to their relations with Franco Spain.

While the various legal factors involved in this question indicate difficulties with any suggested course of action, on balance it would seem that the protection of United States rights not only with respect to Tangier but also vis-à-vis the French, as well as the possibility of defending the action on legal grounds against Russian propaganda, point to the utilization of the established Committee of Control procedures within the framework of the 1945 Agreement rather than the use of a legal fiction resting upon the theory of a unilateral amendment of the 1945 Dahir by the Sultan of Morocco.

It is believed the most legally proper procedure would be to modify the administration through the Committee of Control operating pursuant to Article VIII of the 1945 Agreement. The Agreement of the members of the Committee as constituted presently could be had with respect to modifications desired by Spain, and at the same time Russia could be excluded from participation. Following this a Dahir could be issued by the Sultan in accordance with the Committee of Control’s decision.

It is suggested that L’s position be that any modification, including the exclusion of the Russians, should be handled through Article VIII of the 1945 Agreement and that care should be exercised not to take the position that our rights do not originate in that Agreement or to adopt a procedure which, if challenged by the Russians, would require admission that we had no rights there under.

1. Not printed; the Spanish note Verbale, dated Apr. 7, 1952, addressed to Belgium, France, Italy, the Netherlands, Portugal, the United States, and the United Kingdom, was an enclosure to despatch 1042 from Madrid, Apr. 10, 1952. (771.00/4–1052)
2. The text of the Statute of 1923 can be found in League of Nations Treaty Series, vol. XXVIII, p. 541. For the amended Convention of 1928, see ibid., vol. LXXXVII, p. 211.
3. The text of the Anglo-French Agreement of 1945 is printed in 98 United Nations Treaty Series 250. The text of the Final Act of the Conference with regard to the re-establishment of the international regime in Tangier, signed Aug. 31, 1945, may be found in the Department of State Bulletin, Oct. 21, 1945, p. 613.
4. Not printed; dated Apr. 21, 1952, the text was transmitted in telegram 1128 from Madrid, Apr. 22, 1952. (771.00/4–2252)
5. Mohammed V.
6. This involved an adjudication of U.S. treaty rights in Morocco and arose out of French trade controls which discriminated against U.S. nationals. The decision was handed down on Aug. 27, 1952.