The Memorandum is divided into three sections. The first concerns the
possibility of a spontaneous waiver by the Spanish Government of the
reservations in question, or the admission of the claims practically
without discussion, upon grounds of conciliatory expediency. The second,
views the contingency of a controversy of a formal nature on the subject
and sets forth a detailed exposition of the arguments and circumstances
supporting the admissibility of the claims in question. The third and
concluding section—on the supposition that there might be failure to
agree—refers to the desirability of an early adjustment of the position
between Spain and the United States in Morocco, and reiterates my former
suggestion that American recognition of the Spanish Zone of Morocco be
made immediately after payment of the undisputed larger claims, and
[Page 360]
that the small claims under
reservation be left over for further discussion. However, this
suggestion is modified by the proposal to relieve both the American and
Spanish Governments from further preoccupation with these minor claims,
by referring the ultimate disposition thereof unreservedly to the
American Diplomatic Agency in Tangier and to the Spanish
Residency-General in Tetuan.
In conclusion, it will be of interest for me to signalize to the
Department that Great Britain is the only Power which has, so far,
obtained any adequate satisfaction in regard to indemnity for claims
against the Maghzen in the Spanish Zone. The successful liquidation of
British claims has been due solely to the relentless persistence with
which the British Government has pursued the matter with the Spanish
Government over a period of 12 years up to the date of the arbitration
referred to in Section II of the enclosed Memorandum. It will be obvious
to the Department, that if a more or less immediate liquidation by the
Spanish Government of American claims should fail to result from the
present negotiations, the unrelaxing pressure of the Department upon,
and its constantly recurring reminders to, the Spanish Government will
similarly be essential for the purpose of obtaining the desired
adjustment of the position, in so far as concerns their relations in
Morocco, between the Governments of Washington and Madrid.
[Enclosure]
Memorandum Prepared for Ambassador Hammond by
Maxwell Blake, Diplomatic Agent and Consul-General at Tangier,
Morocco, in Pursuance of Department’s Cable Instructions,
No. 11 of August 9th, 1928, 1 p.m.
Subject: Inclusion in settlement of American claims
in Spanish Zone of Morocco, of those claims subjected to
reservations of the Spanish Representative at Tangier, in report
drawn up jointly by him with the American Diplomatic Agent at
Tangier.
I. At the time when Don Antonio Pla y da Folgueira, the Spanish
Representative in Tangier, formulated the reservations in regard to
certain specified claims referred to in the Department’s telegraphic
instructions above cited, he … assured Mr. Blake, his American
Colleague, that, notwithstanding the formal reservations which he
felt constrained in principle to append to their joint report, he
would personally recommend his Government to include these items in
the general settlement of American claims in the Spanish Zone of
Morocco. …
It is therefore not impossible that Ambassador Hammond may discover a
visible inclination on the point [part?] of
the Spanish Government to overlook the exceptions taken by its
Representative in
[Page 361]
Tangier,
to various claims, and to make a full settlement on the aggregate
findings of the joint report of the Commissioners in Tangier.
In the absence of the spontaneous manifestation by the Spanish
Premier of such a disposition, Mr. Hammond may still find, however,
that the Spanish Government may be induced to adopt the same action,
in accordance with the broad and generous minded spirit which
habitually characterizes its attitude in friendly diplomatic
discussions. When considering, in the premises, the relatively very
minor importance of the pecuniary amounts involved in the reserved
claims, as compared with the admitted aggregate, the Spanish
Government may be led to perceive the advantage of a waiver of the
reservations, which, in producing a complete liquidation of American
grievances against the Maghzen, will hasten the creation of a
situation permitting the full and cordial cooperation between the
American Diplomatic Agent in Tangier and the Hispano-Moroccan
Administration at Tetuan.
In the eventuality however that the Spanish Government should not
acquiesce in the above suggestions, and is inclined to enter upon a
technical examination of the principle of the responsibilities
involved, then the following line of argument is suggested:—
II. The claims which are the subject of this Memorandum, enumerated
at the conclusion of the joint report drawn up by Don Antonio Pla y
da Folgueira and Mr. Maxwell Blake, respectively representing Spain
and the United States of America in Tangier, are the following:—
|
|
|
Pesetas: |
| Thamy Slawee |
{ |
Robbery of Cattle |
11,222.00 |
| “ “ a Mare |
555.55 |
| “ “ a Horse |
277.75 |
| “ “ a Mule |
555.55 |
| Mohammed Oknin |
{ |
Robbery of Animals and goods near R’Gaia, (a Spanish
Military Camp) |
4,188.25 |
| Singer Company |
{ |
For 14 Sewing Machines destroyed or stolen at the time
of the rebellion of the Western [sic] Zone |
6,412.50 |
In the first place, it should be recalled that the claimants (with
the exception of the Singer Sewing Machine Company) have
established, to the satisfaction of the Commission of Examiners in
Tangier, that the above losses were actually incurred by them, and
that the amounts involved are those which, after careful scrutiny,
have been ratified by the Commissioners.
The reservations of Don Antonio Pla y da Folgueira are made in
respect of the general principle of the non-responsibility of
Governments for damages caused by rebels.
[Page 362]
The objection to the application of this principle in regard to the
claims in question may be stated as follows:—
It has been the invariable practice of all the Powers represented in
Morocco to demand and successfully to obtain full redress from the
Moorish Government, for all losses or prejudice suffered by their
citizens, subjects and protégés, as the result of depredations
committed during disturbances in various parts of the Shereefian
Empire.
Not only are there innumerable examples of the demands in respect of
such claims put forward individually by the various Ministers to the
Court of Morocco, but the admission of such claims against the
Maghzen was insisted upon by the collective pressure of all the
Powers in respect of the Casablanca Claims Commission of 1908, and
in regard to the general liquidation of claims against the Moorish
Government, out of the Franco-Moroccan Loan of 1910, up to the date
of that loan. In connection with the last mentioned settlement, it
is interesting to recall that, in the preliminary correspondence
(recorded in the Archives of the “Decanat” of the Diplomatic Corps
at Tangier) which took place between the Sultan’s Commissioner and
the Representatives of the Powers, the attempt of the former to
place a time limit upon the presentation of claims for theft was
rejected by the Powers, but it must be noted that the admissibility
of claims for theft was not even questioned by the Moorish
Government. Many awards were made both by the Casablanca Claims
Commission of 1908 and by the Arbitrators in the settlement of 1910,
in respect of thefts and robberies committed to the prejudice of
foreign claimants, subjects, citizens or protégés, alleged to have
been perpetrated by rebels, or by vulgar individual thieves or
marauders, or even by the ordinarily peaceful native inhabitants in
districts disturbed by dissidence or tribal revolt.
These principles must apply equally to the American claims in the
Spanish Zone of Morocco, since in fact the conditions are
fundamentally unmodified. The American Government’s claims are
formulated against the Moorish Government; their presentation to the
Spanish Government is merely incidental to the position which has
subsequently been developed between the Spanish and the Shereefian
Governments in Morocco.
The Spanish troops of occupation, and the Spanish Commissioners and
functionaries were but the auxiliaries of the Moorish Government in
the re-establishment of law and order in certain regions, and the
depredations committed there against the property of American ressortissants during that process are,
according to the established principles above cited, clearly covered
by the responsibility of the Maghzen.
Prior to the intervention of Spain in Morocco, the attitude of His
[Page 363]
Catholic Majesty’s
Government towards the Shereefian Government was, in common with the
position taken by all the treaty Powers in Morocco, regulated by the
comprehensive doctrine as to the responsibility of the Maghzen,
which has been above outlined.
It is, not unnaturally, the desire of the Spanish Government, in view
of the responsibilities which it subsequently assumed in Morocco, to
narrow down in favor of the present Hispano-Shereefian Government,
the ample scope of liabilities attributable to the old Maghzen, and
to assimilate the international relations of the Spanish Zone of
Morocco, in this respect, with those existing between normally
conducted Governments.
It is evident, however, that the Spanish intervention, before
recognition of the Spanish Zone of Influence in Morocco by the
American Government, cannot be deemed to prejudice, to impair in the
slightest degree, or even to modify the aspects of the rights of the
United States vis-à-vis the Shereefian Government, as derived from
the treaties and conventions between the two countries, and the
principles confirmed by practice and precedent during the century
and a half of their relations.
Furthermore, in the years 1917–1918, a “Comision de Reclamaciones”
was instituted by the High Commissioner at Tetuan, to adjudicate
upon claims against the Maghzen (Moorish Government) in the Spanish
Zone of Morocco, and the awards made by this Commission were in
various instances such as constituted an admission of liability for
claims of the nature which are herein under consideration.
It is probable that Don Antonio Pla y da Folgueira deemed that his
reservations in regard to these claims might be supported by
supposed precedents arising from the recent settlement of British
claims in the Spanish Zone.
Discussions and negotiations between the Spanish and British
Governments in regard to British claims in the Spanish Zone of
Morocco, had proceeded unsuccessfully, from 1912–1913, the date of
the Spanish occupation, up to the year 1923. In that year the two
Governments, as the result of a written agreement, submitted the
adjudication of British claims to Mr. Max Huber, a judge on the
Court of International Justice, and a member of the Permanent Court
of Arbitration, at The Hague; it is possible, therefore, that
reference may be made to this arbitration by the Spanish Government,
in its discussions with Ambassador Hammond, since several British
claims for theft were non-suited by the Arbitrator.
It may be pointed out, however, that the reservations formulated by
the Spanish Representative in Tangier, tending to exclude
Governmental responsibility for damages caused by rebels, was not
entirely upheld by the above named Arbitrator in his reports
connected with British claims.
[Page 364]
Mr. Huber while discounting the value of previous Commissions as
precedents in determining the scope of the responsibilities
involved, nevertheless pointed out that the existence of the regime
of the capitulations in Morocco, and the inefficiency of the Moorish
Administration in the regions involved, at the material period,
together with the general local aspects of past conditions in the
relations between the Powers and the Moorish Empire, were
sufficient—not perhaps to legalize from a point of view of general
principles of technical international jurisprudence—but undoubtedly
to justify an equitable right to indemnification for claims of such
nature as the American claims above enumerated which are impugned by
the Spanish Government. The Arbitrator cites extracts of Notes
addressed by the Spanish to the French Government in 1881, in
connection with Arab attacks on Spanish settlers in Algeria, in
general substantiation of his advocacy of the responsibility, in
equity, of the Hispano-Shereefian Government, in the premises, on
the grounds of the possible allegation of the “inaction of
Authorities in situations in which, by virtue of the mission
confided to them, they are called upon to protect the rights of
foreigners and where, in the premises, they are in a position to do
so.” (Page 56 of the “Reclamations Britanniques dans la Zone du
Maroc, Accord Anglo-Espagnol du 29 Mai 1923, Rapports, La Haye, May
1925.”)
Furthermore, in treating of the question of thefts and delinquencies
which fall under the domain of common law, the Arbitrator lays down
the principle (page 57, Idem) that: “The
vigilance which, from a point of view of international law, the
State is bound to guarantee, may be characterized, in applying by
analogy a term of Roman Law, as a ‘diligentia quam in suis.’ This
rule, agreeable to the primordial principle of the independence of
States in their internal affairs, gives in fact to other States for
their ressortissants the measure of security
which they may reasonably expect. As soon as the vigilance exercized
falls manifestly below this level in respect of the ressortissants of a particular State, the
latter is justified in considering itself to be prejudiced in
interests which must enjoy the protection of international law.”
This general principle, as the Arbitrator, in the course of his
report points out, must necessarily be reconciled to the special
situation, in Morocco, arising from the limitations imposed by the
capitulations upon the Maghzen’s internal independence. The degree
of security, during the period in which the claims in question
originated, was notoriously below the standard which could
reasonably be expected even from the old Moorish Government.
Among the thefts referred to in the claims, which are the subject of
this Memorandum, those of which Thamy Slawee and Mohammed Oknin were
the victims, occurred in places well within the area of
[Page 365]
the established occupation
of the Spanish troops and of the effective control of the
Hispano-Moroccan Authorities of Administration.
The Arbitrator also definitely rules that the obligations of the
Protecting Power, as such, vis-à-vis third States, are identified
with those of the protected Government. It therefore follows that
the Spanish Government is not entitled, in view of its intervention
in Morocco, to refuse satisfaction for any claims for which the
United States Government could legitimately demand indemnification
on the basis of the principles which governed such matters in the
latter’s relations with the Moorish Government, prior to the
establishment of the Spanish tutelage.
Certain British claims for theft and robbery were rejected by the
Arbitrator, on various grounds, such as failure of substantiation,
or because committed outside the limits of the Spanish Zone, or in
territory in the hands of rebels beyond the area of effective
military occupation.
None of these grounds (saving the failure of the Singer Sewing
Machine Company to submit documentary proofs of their loss) are
applicable to the American claims in question, as has been indicated
in earlier paragraphs of this Memorandum.
The Arbitrator dismisses some British claims because of the lack of
formal application by the local agents of the British Government for
judicial assistance on the part of the Spanish Authorities.
No such application was possible in respect of the American claims,
and this circumstance cannot be held as a valid objection against
the American Government’s demands in the premises, for the following
reasons:—
Unlike the case of the British Government, with whom the Spanish
Authorities from the outset had concerted some modus vivendi, no notification or approach whatever was
made by the Spanish to the American Government in regard to the
régime to be instituted by Spain in North Morocco. There was
consequently no basis upon which communication, official or
“officieux” was available between the Spanish Authorities in the
Spanish Zone and the Representatives in Morocco of the United States
of America. Nevertheless, the American claims and complaints, as
they arose, were constantly brought by the American Diplomatic Agent
to the attention of his Spanish Colleague in Tangier, and the latter
was requested to signalize them to the Spanish High Commissioner in
Morocco with a view to redress or adjustment. Communication with his
Spanish Colleague in Tangier was the only possible channel open to
the American Representative in Morocco, and this means of access was
constantly though unavailingly utilized by him, until finally he was
advised by the Spanish Diplomatic Agent in Tangier that the latter
was
[Page 366]
under instructions to
desist from any intervention concerning affairs of the Spanish
Zone.
Such are the arguments and circumstances which, it would seem, should
determine the Spanish Government to accede to the settlement of
these claims, if such accession is not forthcoming as the result of
representations made on the grounds outlined in the first section of
the present Memorandum.
III. If no agreement is possible in regard to the settlement of these
claims as a result of either of the alternative actions set forth in
Sections I and II above, then, as indicated in previous reports from
this Diplomatic Agency to the Department, and in the observations of
Mr. Maxwell Blake upon the reservations made by his Spanish
Colleague, it would appear very regrettable that the materialization
of the very large and successful measure of agreement attained in
regard to the other larger claims, the consequent normalization of
local American and Spanish relations in Morocco, and the looked for
participation of American interests in the economic development of
the Spanish Zone, should be jeopardized on account of the suspension
of these claims of relatively very minor material importance.
In this view the American Diplomatic Agent in Tangier, ventures to
reiterate his suggestion that, if no other alternative is possible,
the mutual settlement of the other American claims and the
recognition of the Spanish Zone by the United States Government
should be effected forthwith, the disputed claims being left over
for subsequent consideration. It is however now suggested that, in
order to relieve both the Spanish and American Governments of all
preoccupation with these small claims, the eventual reexamination
and the ultimate disposition thereof be left to the final decision
of the American Diplomatic Agency at Tangier and of the Spanish
Residency-General at Tetuan, following the payment of the undisputed
claims and the political recognition of the Spanish Zone of Morocco
by the Government of the United States.
