The Spanish Government admits that it can do nothing to prevent
Russian participation in the Tangier administration but bases
its objection to such Russian intervention upon a legal argument
shown to be untenable by reference to paragraph 1 of Article 56
of the 1923 Convention concerning Tangier. The paragraph in
question reads as follows:
“The present Convention shall be communicated to the
Powers signatories of the Act of Algeciras and the three
contracting Governments (France, Great Britain and
Spain) undertake to lend each other mutual support in
obtaining the accession of those Powers.”
It is clear from this provision that the signatories of the Act
of Algeciras were admittedly free to accept or to reject
association in the statutory administration of the Tangier Zone
after consideration of the joint persuasive pressure of the
elaborators of the 1923 Convention. No signatory of the Act of
Algeciras could possibly be deemed to forfeit its rights under
that Act as a result of its declining adherence
[Page 1414]
to another and extraneous
instrument such as the 1923 Tangier Statute.
Furthermore there is nothing in the terms of the 1923 Convention
to preclude any signatory of the Act of Algeciras from
subsequently reconsidering its refusal and intimating its desire
to adhere to the Statute subject to eventual agreement with the
contracting powers on the conditions of its entry into the
Tangier administration. Such a contingency is apparently
admitted by the Spanish without demur in the case of the United
States, and there are no grounds upon which that position may be
contested in regard to Russia whose position in the premises is
substantially identical with that of America.
In the event of Russia’s admission, or on other grounds, the
Spanish may claim a right to denounce the Statute. However,
the carrying into effect of their threatened reversion to
the capitulatory regime as and when they may think fit,
appears to be restrained by Article 56 above cited of the
1923 Convention paragraphs 3 and 4 of which read as follows:
“It (the Convention) is concluded for a period of
twelve years dating from its ratification.
“It shall be renewed automatically for one or more
equal periods if at least six months before its
expiry none of the contracting powers has demanded
its revision. In such case it shall remain in force
while the revision by common agreement is being
effected.”
The Spanish position in the premises in reference to the
above provisions appears to be governed by the following
facts:
- 1.
- The Tangier Statute is in its second twelve year
period which terminates in 1948. (The legality of
its continued operation has not been affected by the
farce of the Spanish occupation, which in effect may
be set down as an unconventional method for the
presentation of Spain’s statutory demand for a
revision of, or even for Spanish withdrawal from the
Statute.)
- 2.
- The other two contracting powers, France and Great
Britain[,] are likewise now demanding a revision for
the purpose, entirely compatible with the terms of
the 1923 Statute[,] of arranging for the inclusion
in the administration of the United States and
Russia as, similarly in 1928, a revision2 was made to include
Italy.
- 3.
- During such revisions (and as happened in 1928),
the Statute remains in force and, in accordance with
the terms of its Article 48, paragraph 3, the
capitulatory rights of Spain remain in
abeyance.
- 4.
- An attempt by Spain to set up its consular court
jurisdiction in Tangier during the period of
revision, and presumably in any event until the year
1948 when the second twelve year period of the
Statute
[Page 1415]
terminates, would be illegal as contrary to Spain’s
contractual engagements under the Tangier
Convention.
- 5.
- The authorities which would continue administering
the Zone in conformity with the provisions,
including those of Article 56, of the 1923 Statute
would appear to be justified in ignoring a
reestablishment of the Spanish consular courts and
properly require Spanish ressortissants to submit to the jurisdiction
of the International Mixed Court provided for by
Article 48 of the 1923 Convention.
While the foregoing is believed to represent the legal
position in the premises, the Spanish view and contemplated
intentions are susceptible obviously of increasing the
delicacy and difficulties of the problem of order and
security in the Tangier Zone during the interim
administration.
