Señor Hurtado to Mr. Foster.
Washington, July 5, 1892. (Received July 5.)
Sir: I have had the honor to receive a note from your predecessor in office, Hon. James G. Blaine, dated the 31st May, in which I regret to find that although the receipt of my communications of the 25th March and 18th May last past, is acknowledged no consideration has been given to the subject of their contents.
You will find by referring to my said communications that I called attention to the fact: (1) That the Government of the United States of America has granted to certain nations the privilege of importing into this country coffee and hides of their production, free of duty; and (2) that the concession has been gratuitously made. I remarked that the grant of those favors freely bestowed had called into existence the prerequisites to put in motion the provisions of article 2 of the treaty in force between Colombia and the United States of America, in virtue of which favors gratuitously granted to other nations by either contracting party become immediately common to the other; and I requested that in fulfillment of the treaty, measures might be taken by your Government to render the stipulation operative.
The proposition thus set forth and presented to your Department for action thereon by your Government has been entirely lost sight of in the said note of May 31. The subject, under the aspect I had the honor to present it, is not even alluded to; nor will it be found that the statements and allegations put forth in Mr. Blaine’s note are relative to the points to which I requested attention.
The examination and consideration of the proposition I advanced and of the conclusions it embodies resolve themselves into the inquiry whether the conditions I pointed out actually exist, and whether, under a treaty containing “the most favored nation clause,” the privileges gratuitously granted by one of the contracting parties to a third nation become common to the other contracting party.
It is hardly conceivable that anything outside of the scope of these inquiries could be pertinent in answer to my note; and I submit that neither the object which the Congress of the United States had in view when enacting the third section of the tariff law, nor the duties incumbent on the President under said section of the law, is to the point in connection with my note of the 25th March, which confined itself to request compliance with the provisions of a treaty stipulation. The same may be predicated of the reference made to the failure to adjust a reciprocity convention between the two countries, as well as of the alleged fact that the negotiations with other governments have not been attended with the like unsatisfactory result. So may be also said of the assertion that the customhouse tariff of Colombia is more unfavorable to the United States than those of the nations alluded to in my note of the 25th March, and likewise of the allegation that until the tariff of Colombia be materially modified that country can not invoke the favorable treatment which at some future time may or may not be conceded to the countries just before referred to. None of these statements has any connection with the issue presented in the note to which they are made in reply.
Admitting, argumentum gratia, that as matters of fact those statements are incontestably correct, it would not follow, nor could it possibly be pretended, that anyone of them in the least modifies any part of the existing treaty between the two countries; nor impairs the right [Page 475] of Colombia to demand and insist upon the observance of treaty stipulations; nor releases the United States from compliance with their obligations under the compact; if, therefore, such allegations have no bearing on the treaty they can not be put forward as a bar to its observance.
I have assumed, for the sake of argument, that the statements I am referring to, substantially extracted from the note of the 31st May, are correct, as matters of fact; but, in reality, I contend that some of them, at least, are erroneous. I shall not, however, discuss these discrepancies of opinion, in order not to divert attention from the main issue.
I can not, however, refrain from observing that while it is asserted that with none of the countries mentioned in my note of the 25th March are the commercial and tariff relations of the United States as unfavorable as with the Republic of Colombia, precisely the reverse happens to be the case, at least with regard to nations on this continent. So, if the custom-house tariff of either the Argentine Republic or Mexico were diminished or reduced by one-third the tariffs so reduced would still be, on the whole, higher than that of Colombia.
Again, tonnage and port dues are an onerous tax on vessels entering South American ports, with the exception of Colombia, where practically these charges are nominal. Fully 30 per cent of our import trade is composed of American produce, a proportion greatly in excess of the share of the United States in the import trade of any other South American country. The proportion of American goods admitted free of duty into Colombia is considerably greater than in any other of the countries south of the United States.
The freedom of the isthmus ports at either extremity of the Panama Railway, which was established in the interest of interoceanic commerce, and of which the United States have since 1856 benefited to a larger extent than any other, or perhaps than all other nations collectively, is a most important concession, which can not be lost sight of, when considering the commercial and tariff relations between Colombia and the United States. This liberal measure is of itself sufficient to entitle Colombia to any privileges respecting commerce and navigation which this Government might concede to other nations. But I will not further pursue these remarks on the commercial relations of Colombia with the United States compared to those of other countries. It is to be regretted that the subject was not discussed previously to the issuance of the proclamation of 15th March. It has no importance when considered with reference to the observance of treaty stipulations.
In his note of the 31st May, your predecessor does me the honor to say he had been directed to inform me that the President did not consider the tariff law of 1890, nor his action under it, as in violation of article 2 of the treaty referred to by me.
I beg leave to respectfully observe that I have never asserted anything contrary to the opinion which the President has been pleased to express, and in which I entirely concur. That is to say, that neither the tariff law nor its execution can be held to be in direct violation of article 2 of the treaty, the observance of which I have demanded; and I may now remark that, since it is admitted on both sides that there is no conflict between the law or its mode of execution and the article of the treaty, I am at a loss to understand why the provisions of the treaty are not carried into effect.
Immediately after the paragraph in which the above-mentioned communication appears, the following observation occurs:
The law cited applies the same treatment to all countries whose tariff is found by the President to be unequal or unreasonable.
I do not clearly apprehend the purport of this remark, but if it be put forth as the grounds on which the opinion I have adhered to is founded, or intended to imply that the law as executed meets and satisfies the requirements of article 2 of the treaty, I beg leave to state that I entirely dissent from such views and conclusions.
The similarity of treatment guaranteed by the contracting parties to each other in article 2 of the treaty (say, by the United States to Colombia) is equality with the most favored nation, and I need hardly point out that this condition is not fulfilled by bestowing on Colombia the treatment that is meted to the nation most disfavored. This would be placing Colombia in a position diametrically opposite to the one which that country is entitled to occupy, under the treaty, in its commercial relations with the United States.
Inasmuch as article 2 of the treaty does not inhibit either Government from conceding exemption of import duties on the produce of foreign nations, or from imposing import duties on the products of each other, it follows that neither the provisions of the law of October, 1890, or their execution can be held to violate said article. Nor would there be infringement of treaty should it come to pass that in the exercise of those prerogatives by the United States certain articles, say, hides and coffee, the produce of foreign nations, were admitted free of duty into the United States, while like articles from Colombia were subject to duty, since the article in question contemplates the existence of that very condition of things. On these considerations it may, in my opinion, be contended that neither the tariff law of 1890, nor the action taken under it is, strictly speaking, in violation of article 2 of the treaty of 1846.
These views seem to me to be supported by precedents too numerous to need reference to particular cases. When a government freely grants a commercial privilege to a nation, all other nations possessing with said government treaties which contain the most favored nation clause, would be entitled to acquire the privilege supposed to have been gratuitously granted. But it would be unreasonable to prefer the claim to the privilege, based on a protest for breach of treaty.
The mode of proceeding is, invariably, to request to be put on the same footing with the favored nation as provided for in the treaty. If, however, this demand be refused or disregarded, grounds will arise for protest against breach of treaty growing out, not of the concession made, but of the failure to carry out or refusal to comply with the provision of the most favored nation clause. Accordingly, should the Government of the United States continue to withhold from Colombia the favors gratuitously enjoyed by the Argentine Republic, Mexico, and other nations, it may become my duty to protest, not against the provisions of the tariff law, or the action of the President under that law, but against the refusal of the Government of the United States to abide by and carry out the stipulations contained in article 2 of the treaty of 1846.
With reference to the closing remarks contained in Mr. Blaine’s note, I have to say that the information sent by Minister Abbott must refer to a state of things previous to the 15th of March. Subsequently to that date I have received no instructions to modify the proposals which I had the honor to submit to your Department in my notes of the 25th February and 12th March. On the other hand, the difficulty has been pointed out to me of continuing the negotiation on the basis of mutual concessions as long as the coercive measure adopted against [Page 477] Colombian produce upon its importation into this country be not removed.
In conclusion, I beg leave to express the hope that I may be favored, at your earliest convenience, with an explicit reply of my note of the 25th of March last past.
Accept, etc.,