Señor Hurtado to Mr. Gresham.
Washington , October 5, 1893 . (Received October 6.)
Sir: On the 16th of June last, Mr. Rengifo, chargé d’affaires ad interim, had the honor to call your attention, among others, to my communication of the 25th of March, 1892, to which no proper and adequate answer has yet been made.
In the note above alluded to I asked attention to one of the provisions of articled of the treaty of 1846, between Colombia and the United States of America, whereby it is stipulated, that when either of the contracting parties shall freely make a concession to another nation the concession thus gratuitously granted shall immediately become common to the other contracting party. I then remarked that certain nations, as, for instance, the Argentine Republic, Uruguay, Mexico, and others, were in the enjoyment and exercise of the privilege unconditionally (and therefore gratuitously) granted, under the second section of the United States tariff law, of importing free of duty into the United States hides and coffee of their respective production; that this state of things constituted the prerequisites to put in motion the treaty clause above referred to; and that I had, in consequence, been directed to ask the Government of the United States to take the necessary measures to render operative the stipulation in observance of the treaty.
In making this request my Government was neither soliciting a favor nor submitting a proposition which it was optional with that of the United States to accept or decline. They were demanding to be put in possession of a right acquired under treaty stipulations, a right growing out of an obligation reciprocally undertaken and respecting which the Government of Colombia had, in the particular case under consideration, fulfilled their part, when, upon ratification of the treaty of 1846, they abolished the existing differential duties oh American commerce.
The United States have therefore already received the consideration for which they undertook to likewise exempt Colombian commerce from [Page 491] the payment of differential duties whenever such might be established as part of the fiscal regulations of this country. This obligation matured when the tariff act of October, 1890, went into operation, and the Government of the United States can not refuse to abide by and at once carry it into effect without departing from the traditional good faith observed in their agreements with other nations.
Receipt of my note of the 25th of March, 1892, was only acknowledged on the 31st of May following, but the issue raised in my communication was entirely lost sight of in the reply. My note was described as referring to “the action of the President under the tariff law of October, 1890, in the imposition of duties on hides and coffee, the product of Colombia. * * * “And I was informed by direction of the President” that he did not consider the law of Congress, nor his action under it, as in violation of article 2 of the treaty of 1846, referred to by me. The law cited applies the same treatment to all countries whose tariffs are found by the President to be unequal and unreasonable.”
It will be seen that my note was interpreted and dealt with as a protest for violation of article 2 of the treaty of 1846 by the tariff law and the action of the President under it. However, I never made such an allegation, nor do I consider that such a construction can be put on what I wrote. The following were the opening words of my communication of the 25th of March, which entirely preclude the idea of protesting against the import duties on Colombian produce, which I looked upon in no other light than as an established fact:
Viewing the payment of import duties, to which hides and coffee of Colombia are subjected upon their introduction into the United States, as an existing fact, on the justice of which it is neither my purpose nor intention to touch in the present communication, etc.
Besides, I entertained the same opinion which the President had directed should be communicated to me. I believe that neither the tariff act nor the proclamation of the President violates the second article of the treaty, though my belief rests upon different ground to that on which the opinion of the President is based. The President seems to consider that since, by the concurring effect of the tariff law and his proclamation, Colombia receives the same treatment as other nations, there is no conflict between the treaty stipulation and the ultimate action of the law. I beg, however, to submit that there is a very great difference between being placed among the most favored nations, as required by the treaty, and being classed among the most unfavored.
The article of the treaty under consideration in no way inhibits the Government of the United States from regulating its commerce with foreign nations and imposing duties on imports as it may deem fit. V Neither does it stand in the way of exercising discrimination in this respect, since the article itself contemplates that such will at times be made, but the article requires that when in the exercise of this discrimination a concession may be freely granted to other nations it shall immediately become common to the other party. It is the refusal to carry out this stipulation when the case may present itself, and not the discriminating act itself, that would constitute a treaty violation. Had I protested, as I am represented to have done, against the tariff law and the proclamation of the President, as in violation of article 2 of the treaty of 1846, I could not have sustained the complaint, but I have protested in a subsequent note for noncompliance with the provisions of said article under the condition of things set forth in my note of the 25th of March.
[Page 492]Some of the reasons given in the note of the State Department dated the 31st of May, to justify the discrimination against Colombia in the matter of import duties, are founded on the difference existing between the relative position of Colombia and the nations designated in my note of the 25th of March. It is alleged that while all those nations favorably entertained the invitation of the President to enter upon reciprocity agreements, Colombia alone had not made a fitting response. This allegation can now no longer be upheld. The nations referred to have ultimately refused to enter into the agreements represented as in course of negotiation. They now stand in identical position with Colombia; yet they have not been proclaimed. That their tariffs were deemed by the President reciprocally unequal and unreasonable is demonstrated by the fact that those nations were invited to modify them and actually entertained the proposition.
It was stated as a further reason to justify the discrimination against Colombian produce that in the judgment of the President the duties imposed by Colombia on American products were higher than those levied in the countries mentioned in my note. With all due respect for the judgment of the President, I beg leave to assert that precisely the contrary happens to be the case. The tariff of Colombia is the lowest in all South American states. But, assuming it were otherwise, I will observe that neither by public law or treaty stipulations is the Government of Colombia in any way bound to admit imports from the United States at as low a rate of duty as they may be admitted in other countries.
Since there is no obligation on the part of Colombia to modify her tariff in order to adhere to the policy of the United States, none but licit measures and influences should have been brought to bear upon her Government to reach the desired result. Coercion was, however, resorted to, with the aggravated circumstance of having recurred to measures in violation of treaty stipulation. By article 5 of the treaty of 1846 it is expressly stipulated that neither contracting party should impose higher duties on the produce of the other than might be exacted on like articles of any other nationality.
I have gone into the examination of the note of the State Department of the 31st of May, 1892, because it contains the only arguments hitherto adduced for noncompliance with the demand contained in my note of the 25th of March, often before referred to. I believe I may venture to say there is not a single one of those arguments which is either sound or to the point, with reference to the question at issue. I am, therefore, justified in reiterating the demand for observance and compliance with article 2 of the treaty, and beg that measures may be taken at once to render its provisions effective.
Precedents in support of this request are too common to require exemplification. They will be found even in cases growing out of the reciprocity agreements under the present tariff law. So, when the German legation was addressed by the State Department, in common with others in Washington, with a view to carry into execution the duties devolving on the President under the third section of the tariff law of 1890, the correspondence resulted in Mr. Mumm, then acting chargé d’affaires, replying that since the German Empire would concede to the United States the same tariff advantages granted to Austria-Hungary and Italy by a treaty just then negotiated, they would be entitled to the advantages that might be conceded by the United States to other nations beaming on the reduction of import duties. I make this statement with due reserve as I am writing from memory, [Page 493] but the arrangement was held to be based on the principle of the most favored nation clause.
So, also, in the negotiation carried on with Austria-Hungary, whose legation in Washington received the same circular that was sent to this legation, intimating the necessity of entering into a reciprocity agreement with the United States before the 15th of March, 1892, under penalty of the free importation of tea, sugar, coffee, and hides, the produce of the respective country, being suspended. I am credibly informed that the only action taken by the Austro-Hungarian Government was to declare the Government of the United States entitled to the most favored nation treatment in the Empire.
Minister Pitkin addressed the Government at Buenos Ayres on the 17th of September, 1891, opening negotiations. He intimated in the usual form that unless a reciprocity agreement, based on tariff concessions in favor of American merchandise, were entered into, the free importation of hides from Buenos Ayres into the United States would be suspended.
Mr. Pitkin’s note was answered by Mr. Zevallos, the minister of foreign affairs, on the 24th of December, 1891, claiming the right of hides from Buenos Ayres to free importation into the United States in virtue of the most-favored-nation clause existing in the treaty in force between the two countries, and intimating that the imposition of import duties on hides arriving from Buenos Ayres to this country would be followed by the imposition of higher duties on American produce imported into the Argentine Republic.
The result of this exchange of notes has been that hides from the Argentine Republic are freely imported into this country.
Ample proof will be found in the notes of Minister Patkin to Señor Zevallos, that the President deemed the tariff of the Argentine Republic reciprocally unequal and unreasonable, and, notwithstanding that the Argentine Government made no tariff concessions to the United States, the free importation of hides from Buenos Ayres has not been suspended. I can not for a moment suppose that this is due to the intimation that the Argentina would retaliate if her products were taxed on entering this country; and I must, therefore, conclude that the exemption from duty accorded to them is in compliance with the provisions of the most favored nation clause which Mr. Zevallos contended was applicable to the case.
Before bringing this communication to an end, I beg leave to again solicit your earliest convenient attention to its contents, with a view to procure a remedy for the evils which the existing condition of things causes to our trade with the United States.
I avail, etc.,