Señor Rengifo to Mr. Sherman.
Washington, May 15, 1897.
Sir: The undersigned, Julio Rangifo, chargé d’affaires ad interim of the Republic of Colombia, has the honor to acknowledge the receipt of the communication of the honorable Secretary of State of the 5th instant, in which is acknowledged the receipt of the communication which the undersigned had the honor to address him on the 1st instant.
The circumstances that the honorable Secretary of State entertains certain views as to the law of arbitrament and award which he conceives to be applicable to the present situation, and which he states in the paragraph immediately succeeding the acknowledgement of the communication of the undersigned of May the 1st, is said to be a circumstance which precludes the honorable Secretary of State from considering in any way the statements made by the undersigned in support of the protest of his Government against the fifth article of the award of the President of the United States.
The undersigned can only infer that with this view of the subject the honorable Secretary of State has inadvertently omitted to notice that the undersigned in his note of May 1 scrupulously abstained from asking any action or expression by the President of the United States, or the Secretary of State on his behalf, but at the same time expressly reserved, as he conceived he might properly do, the right to lay before [Page 252] the Secretary of State of the United States a more extended statement of the views of his Government when he should receive the same by mail.
Without doubt the undersigned has failed to express himself with sufficient clearness in his previous communication, and he takes the liberty of now explaining that it was his intention to promptly convey to the President of the United States, through the Secretary of State (through whom alone the undersigned is permitted to communicate with the President), the information that his Government has approved the protest of March 3 against the fifth article of the award of the President of the United States under the protocol of August 18, 1894, and while he also thought it right to communicate the fact that he had been instructed to ask the rectification in toto of said article, he purposely refrained from preferring any request on the subject at this time, and it was his intention to indicate a reason for this attitude by giving the further information that the minister of Colombia at Rome had been instructed to invite the Government of Italy to join in asking the rectification or reconsideration of article 5 of the award.
The undersigned was, however, expressly instructed to say, and did say in his note of May 1, that the approval and adoption of the protest of March 3 by the Government of the Republic of Colombia did not in any wise involve the ignoring by it of the award in other respects, and that the £10,000 sterling directed to be paid within sixty days from the 2d day of March, 1897, the date of the award, would be paid on condition that the right to seek the rectification of the fifth article was admitted by the Government of Italy.
The purpose of the undersigned, which through the infirmity of his own language he has failed to accomplish, was to make clear to the President of the United States, through the honorable Secretary of State, three points:
- First, that as to so much of the award as was within the submission of the protocol of August 18, 1894, that is to say, the first four articles, Colombia felt bound to announce her prompt acquiescence therein, if they were to be separately considered.
- Second, that so much of the award as was without the submission of the protocol of August 18, 1894, that is to say, the filth article, Colombia felt bound to announce that she could not accept under any circumstances as part of the award.
- Third, that the Colombian minister at Rome had been instructed to begin negotiations as to this fifth article with the Government of Italy, which might well result in relieving the President of the United States from any responsibility in the premises.
But lest the matter should take such a course that it would be necessary for the President to understand fully the views of the Government of Colombia, the undersigned deemed it his duty to expressly reserve the right to lay before the Honorable Secretary of State, always for the information of the President of the United States as arbitrator under the protocol of August 18, 1894, a more extended statement of these views, when he should receive the same by mail.
If the undersigned has now succeeded in making clear the scope and purpose of his former communication he can not doubt that the reservation, which he had the honor to make in his note of May 1 on behalf of his Government of the right to be heard, will be recognized by the President of the United States, and that the well-known justice and courtesy of the honorable Secretary of State will lead him to the conclusion that the scope of the representations which Colombia may feel [Page 253] bound to make to the President of the United States should not be limited in advance.
It is at least possible that the representations of Colombia alone or in conjunction with a joint request from the Governments of Italy and Colombia might convince the President of the United States that he is not functus officio as to the matter in hand.
It is also possible that the President might on full consideration hesitate to apply the technical principles recited by the Secretary of State if he should become convinced that the matter is one in which the two Governments might find many insuperable objections to a new submission and arbitration, but could well agree in asking the discharge under the original submission and arbitration of an admitted duty pertaining to the office of arbitrator, accepted by the President of the United States as a friendly act to both Governments.
If in either of these modes it shall be made to appear that by the fifth article of the award the President of the United States has, through error or misapprehension, clearly exceeded the power and jurisdiction conferred on him by the two parties to the protocol, it is conceived that the chosen arbitrator, who is the President of the United States, and not the individual who made the award, or his successor in office as an individual, can not hesitate as to the question of power or duty in the premises.
And in this connection the undersigned with great deference invites the attention of the honorable Secretary of State to the fact that Colombia and Italy desiring to put an end to the subjects of disagreement between them, and for the purpose of arriving at a settlement as between the two Governments of the matters submitted, selected as arbitrator under the protocol of August 18, 1894, not a natural person, nor yet a tribunal of limited duration, but the President of the United States, who accepted the office as a friendly act to both Governments, and who can never be said to be functus officio until the arbitrator himself has made a valid and final award.
As already stated, the first four articles of the award, if separately considered, may well be said to be both valid and final; but the fifth article Colombia can not admit to be either valid or final. And unless with or without the cooperation of Italy the fifth article can be eliminated, the deplorable result will follow that the whole award would be void, because it would not be a final determination by the President of the United States of a controversy submitted to the President of the United States alone, and to no other person or tribunal.
In the light of the explanations which the undersigned has had the honor to offer, he ventures to hope that he may expect from the honorable Secretary of State some assurance that his note of May 5 was not intended to deny in advance to the Government of Colombia the right to present to the President of the United States its views with reference to the fifth article of the award, nor to decide in advance of receiving said views what would be the action of the President. Such assurance would be most gratefully appreciated by the undersigned as an evidence that his own unfortunate choice of language in his note of May 1 had not misled the honorable Secretary of State to the injury of the country which the undersigned represents, and by his Government as a proof of that consideration which Colombia has always endeavored to deserve, and which the United States is accustomed to accord to all nations, great or small.
If the honorable Secretary of State could at the same time assure the undersigned that the President, without in any way committing [Page 254] himself to any particular action, authorizes the honorable Secretary of State to receive and lay before him the representations which the Government of Colombia may feel itself bound to make, or any request which the Governments of Colombia and Italy may agree to present for his consideration, relative to the fifth article of the award, no question would be prejudged, and it might well be that only a formal acquiescence in the wishes of both Governments, to befriend which the President of the United States agreed to act as arbitrator, might be necessary to completely discharge the duties of that office.
I have, etc.,