Mr. Olney to Sir Julian Pauncefote.
Washington , June 12, 1896 .
Excellency: I have the honor to acknowledge your favor of the 3d instant, to which is attached a dispatch to yourself from Lord Salisbury, of the 22d ultimo, embodying proposals for the settlement of the Venezuelan dispute, which you are requested to submit to the Government of the United States. These proposals have been considered with care and with the strongest disposition to find in them a practical as well as just solution of the controversy to which they relate.
It is with regret, therefore, that this Government deems itself unable to treat the proposals either as well adapted to bring the Venezuelan boundary dispute to a speedy conclusion or as giving due recognition to the just rights of the parties concerned.
It is suggested, for example, that a commission of four persons, two of them British subjects and two of them citizens of the United States, shall investigate and determine certain facts. But, unless this commission chances to reach its results unanimously or by a vote of three to one, it may well be that it would be better had the commission never been created. In the not improbable event of its standing two to two, nothing could come of it in the way of ascertaining facts, while, by hardening each party in the conviction of the truth of its own contention, its tendency would be to make any peaceful settlement remote or even impossible.
Further, this commission, so constituted as not to be certain of reaching a result as to the subjects which are submitted to it, seems also unfortunately limited as respect such subjects. It is to report the facts affecting the rights of the United Netherlands and of Spain, respectively, at the date of the acquisition of British Guiana by Great Britain. Upon the basis of such report, a boundary line is to be drawn, which, however, is in no case to encroach upon the bona fide settlements of either party. But how are the facts showing the existence and bona fides of such settlements to be ascertained? As this commission is carefully disqualified from investigating and reporting them, the first and, perhaps, the best impression is, that they are left to be determined by further negotiations, involving another convention, and not impossibly still another commission. If this slow and dilatory procedure is not contemplated, it must be because the arbitral tribunal, which is to consider not only the report, but “every other matter concerning this controversy on which either Government desire to insist,” will be bound to receive, and will undoubtedly have laid before it, all matters pertaining to bona fide occupation by settlers. Such may be the fair implication from the power given to the tribunal to make recommendations respecting the equities growing out of such occupation. But if it is intended that the arbitral tribunal shall hear the evidence and find the facts on the subject of bona fide occupation, there is certainly no reason [Page 250] why the power should not be given in explicit terms. Even then it is not apparent why one and the same commission should not be charged with determining all the facts which the controversy involves.
These considerations seem to show that his lordship’s proposals, looked at as embodying a practical scheme for a speedy and final settlement of the boundary dispute, can not be regarded as satisfactory. Another and even graver objection to them remains to be stated. An arbitral tribunal is provided which is to fix the true original boundary line. If, however, this line sets off to one party territory bona fide occupied by a citizen or subject of the other January 1, 1887, it is not to be binding as to such occupied territory. The decision as to this part of the line, it is intimated, will have great moral weight, and the tribunal is authorized to make recommendations respecting the equitable rights of the parties which they are expected to duly consider. But the absolute result is that, though the arbitral tribunal may find certain territory to belong to Venezuela and may even find that there are no equities which should prevent her having it, whether she gets it or not is to depend upon the good pleasure of Great Britain—upon her generosity, her sense of justice, her caprice, or her views of expediency generally. It is to be noted, too, that neither in this dispatch nor in any other way, though the attention of the British Government has been often called to the point, is any clew afforded to what sort of occupation it is that is characterized as bona fide. Would an occupation under a temporary or revocable mining license, beginning December 31, 1886, be of that character? While the claims of Venezuela have always been matter of public notoriety, could a British subject establish his bona fides as against Venezuela by showing that in point of fact he had never heard of them? These, however, are minor criticisms.
The decisive objection to the proposals is that it appears to be a fundamental condition that the boundary line, decided to be the true one by the arbitrators, shall not operate upon territory bona fide occupied by a British subject January 1, 1887—shall be deflected in every such case so as to make such territory part of British Guiana. It is true that the same rule is to apply in the case of territory bona fide occupied by a Venezuelan January 1, 1887. But, as Great Britain asks for the rule and Venezuela opposes it, the inevitable deduction coincides with the undisputed fact—namely, that the former’s interest is believed to be promoted by the rule, while the latter’s will be prejudiced. The true question, therefore, is, is the rule just in itself—without reference to its actual working—so that Great Britain has a right to impose her will upon Venezuela in the matter? How this question can be answered in the affirmative it is most difficult to perceive, and is not even attempted to be shown by the dispatch itself. It is a rule which is certainly without support in any principle of international law, or in any recognized international usage. It is a rule which would hardly be insisted upon unless its practical application were supposed to extend to many persons and to cover large interests. Yet, if the facts are not to be ignored nor the ordinary rules of law set aside, its scope would seem to be quite limited, since the Schomburgk line was proclaimed, for the first time, in October, 1886, while in June, 1887, the governor of British Guiana, by express instruction from the home Government, addressed the court of policy of the colony in the following terms:
Before we proceed to the order of the day I am anxious to make a statement with reference to the question of the boundary between this colony and the Republic of Venezuela. Among the applications which have been received for mining licenses and concessions, under the mining regulations passed under ordinance 16 of 1880, 16 of 1886, and 4 of 1887, there are many which apply to lands which are within the [Page 251] territory in dispute between Her Majesty’s Government and the Venezuelan Republic. I have received instructions of the secretary of state to caution expressly all persons interested in such licenses or concessions, or otherwise acquiring an interest in the disputed territory, that all licenses, concessions, or grants applying to any portion of such disputed territory will be issued and must be accepted subject to the possibility that, in the event of a settlement of the present disputed boundary line, the land to which such licenses, concessions, or grants apply may become a part of the Venezuelan territory, in which case no claim to compensation from the colony or from Her Majesty’s Government can be recognized; but Her Majesty’s Government would, of course, do whatever may be right and practicable to secure from the Government of Venezuela a recognition and confirmation of licenses, etc., now issued.
Any equities of a British subject making the bona fides of his occupation of Venezuelan soil January 1, 1887, at all material must apparently have accrued, therefore, during the seven or eight months between October, 1886, and June, 1887. In the opinion of this Government, however, such bona fides on the part of the British settler is quite immaterial. So far as bona fides is put in issue, it is the bona fides of either Government that is important, and not that of private individuals. Suppose it to be true that there are British subjects who—to quote the dispatch—“have settled in territory which they had every ground for believing to be British,” the grounds for such belief were not derived from Venezuela. They emanated solely from the British Government; and if British subjects have been deceived by the assurances of their Government, it is a matter wholly between them and their own Government, and in no way concerns Venezuela. Venezuela is not to be stripped of her rightful possessions because the British Government has erroneously encouraged its subjects to believe that such possessions were British. In but one possible contingency could any claim of that sort by Great Britain have even a semblance of plausibility. If Great Britain’s assertion of jurisdiction, on the faith of which her subjects made settlements in territory subsequently ascertained to be Venezuelan, could be shown to have been in any way assented to or acquiesced in by Venezuela, the latter power might be held to be concluded and to be estopped from setting up any title to such settlements. But the notorious facts of the case are all the other way. Venezuela’s claims and her protests against alleged British usurpation have been constant and emphatic, and have been enforced by all the means practicable for a weak power to employ in its dealings with a strong one, even to the rupture of diplomatic relations. It would seem to be quite impossible, therefore, that Great Britain should justify her asserted jurisdiction over Venezuelan territory upon which British subjects have settled in reliance upon such assertion by pleading that the assertion was bona fide without full notice of whatever rights Venezuela may prove to have.
In the opinion of this Government, the proposals of Lord Salisbury’s dispatch can be made to meet the requirements and the justice of the case only if amended in various particulars.
The commission upon facts should be so constituted, by adding one or more members, that it must reach a result and can not become abortive and possibly mischievous.
That commission should have power to report upon all the facts necessary to the decision of the boundary controversy, including the facts pertaining to the occupation of the disputed territory by British subjects.
The proviso by which the boundary line as drawn by the arbitral tribunal of three is not to include territory bona fide occupied by British subjects or Venezuelan citizens on the 1st of January, 1887, should be stricken out altogether, or there might be substituted for it the following: [Page 252]
Provided, however, That, in fixing such line, if territory of one party he found in the occupation of the subjects or citizens of the other party, such weight and effect shall be given to such occupation as reason, justice, the rules of international law, and the equities of the particular case may appear to require.
I have to request that you will communicate the contents of this dispatch to Lord Salisbury, furnishing him, should he so desire, with a copy, which is herewith inclosed for that purpose.
I have, etc.,