Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 7, 1903
Mr. Seeger to Mr. Hay.
Petropolis, January 20, 1903.
Sir: The optimistic prediction of Mr. Bryan, that “long before January, when the rubber shipments begin, the new Government of Brazil will have solved the pending difficulties with regard to free transit on the Amazon River,” is far from being fulfilled.
I have, consequently, in obedience to your No. 302, of December 9, made “proper and temperate remonstrance” against Brazil’s obstruction to the commerce on the Amazon.
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Inclosed are copies of memoranda on the subject, shown me by Doctor Pinilla, and of my note of to-day to the foreign office.
I have, etc.,
Consul-General in Charge of Legation.
Opinion on the question of transit by the Amazon, by Mr. Louis Renault, professor of international law of the faculty of Paris, member of the Hague conference, legal adviser of the minister of foreign affairs, etc.
I am of the opinion that the remonstrance made by Mr. Decrais to the Brazilian Government is well founded.
There can be no doubt that in the absence of constitutional provisions a State is free to regulate as it sees fit the passage across its territory or on its waters. We [Page 39] would have had no right to complain if Brazil, not having a commercial treaty with us, had subjected the transit on Brazilian waters to transit taxes. But this is not what she has done in the exercise of her sovereignty. She has by an act of legislation, even by her constitution, established free transit. We therefore confine ourselves to invoking against Brazil the rules which she herself has established and upon the upholding of which foreigners have a right to rely as-long as they are not modified in accordance with legal forms. There would be no sort of security if a condition of things created by so solemn an act as the constitution could, by a simple ministerial decree, arbitrarily be modified to the detriment of the foreigners. That would be a genuine surprise which the governments charged with the protection of their own nationalities could not accept.
(This was presented to the London foreign office by the Bolivian minister at that capital.)
Memorandum on the suspension by Brazil of free transit to Bolivia through the Amazon.
The treaty of 1867, Article 6, declares that “the communication between the two States by the common frontier shall be free and the transit by it exempt from all national and municipal duties.” Article 28: “All the conditions of this treaty which do not refer to frontiers shall be in force for the term of six years, after which they shall continue in force until one of the contracting parties shall notify the other of his desire to put an end to them and they will cease to exist twelve months after the date of this notification.” Article 29: “The contracting parties undertake to negotiate before the expiration of the fixed term of six years a new treaty with the alterations and provisions which experience and the interests of both countries may render necessary.”
The treaty of 1867 was denounced by Brazil on the 6th of September, 1884, and if there had existed any right on the part of Brazil to suspend the free transit of merchandise along the natural waterways, a right which Bolivia had exercised ab initio, it would have been done at the expiration of the agreed term, i. e., on the 6th of September, 1885; but it was not done, and the transit of Bolivian exports down the river Madera, the only commercial route through Brazil from Bolivia existing at that time, continued as before.
Negotiations went on, and a new treaty was concluded on the 31st of July, 1896, and ratified by the Bolivian Government on the 15th of August of the same year, but the Brazilian Government kept it in suspense.
The treaty of 1896 was finally withdrawn from Congress by the Brazilian Government in July, 1902.
On the 19th of July, 1902, the Brazilian minister of foreign affairs, under pretext of this act of withdrawal, declared that “in future no free transit along the Amazon would be granted to produce coming from its affluents.” Soon after he explained that this resolution referred only to Bolivian traffic. At the same time he declared that “article 6 of the protocol of October 30, 1899, remained without effect.” This article reads as follows: “As long as there is no Brazilian consul at Puerto Alonso the custom-houses of Manaos and Belem shall accept as valid, from the 15th of November next, all customs notes and other documents issued by the administrator of the custom-house of Puerto Alonso, provided they are accompanied by a certificate from the captain of the ship which receives the cargo.”
Now, the Brazilian minister, in a recent explanation given to the Bolivian minister at Rio, propounded that “the Federal Government, in anticipation of a favorable vote of Congress accepting the treaty of 1896, had consented on the 23d of October, 1898, as an act of friendship toward Bolivia, to the recognition of the custom-house of Puerto Alonso, the commerce of that region receiving the provisional enjoyment of the advantage which would be granted in a permanent and definite form when the said treaty should be approved and come into operation.”
This theory is utterly utenable because the protocol of October 13, 1899, says: “Article 4. Until the mixed commission shall have completed the definite demarcation of the frontier, there shall be adopted as provisional boundary a line which, departing from the Madera at latitude 10° 20′, runs to latitude 70° 11′ 48″, fixed by Captain Lieutenant Augusto da Cunha Gomes at the point of the source of the river Javary.” And article 5: “The Bolivian custom-house of Acre shall continue established at Puerto Alonso until by the demarcation of the frontier in its neighborhood [Page 40] the statement that it is in Bolivian territory has been confirmed, the Bolivian Government undertaking in the contrary case to remove it to a suitable place.”
Therefore the establishment of the custom-house of Puerto Alonso was not consented to by Brazil in anticipation of the approval of the treaty of 1896, as the minister propounds, but as a natural consequence of the delimitation of the frontier on the river Acre, Bolivia having the right to fix her own custom-house at any point within her frontier.
Brazil pretends that because the treaty of 1896 has been withdrawn from Congress the Federal custom-house of Manaos has the right of charging duties on merchandise imported to Bolivia (which is being done), and that the governor of Amazonas has the right of collecting duty on the rubber exported from Bolivia as if it came from its own territory.
But the treaty of 1896 did not create any rights, because it was never in force, and its withdrawal does not in any way change the situation. The relations between the two countries were fixed by the treaty of 1867, and the commercial conditions established by it have continued to exist without interruption, as the rights acquired under a treaty can not be altered capriciously, nor can two neighboring countries exist without some kind of understanding in their commercial relations, and until a new treaty is signed the normal relations established by the previous one continue to exist. The only rights which Bolivia could not claim were those which she did not previously exercise, such as the navigation of the Brazilian rivers under her own flag.
The position created becomes still more delicate when it affects the rights of third parties. Under the conditions of existing treaties foreign settlers established themselves in Bolivian territory, and during the last forty years have been trading through the Amazon. English companies were formed, such as the Orton Rubber Company. English and other merchants advanced considerable sums of money to the merchants of that territory.
Without any warning, at a moment’s notice, Brazil now begins to collect a prohibitory duty on all merchandise going to Bolivia and 22½ per cent ad valorem on rubber exported, besides 15 per cent charged by Bolivia, which inflicts a deathblow on all the trade of that region. It is to be remembered that the traffic through the Madera was not subject to the same conditions as that from the Acre. In the former there was never any dispute about boundaries, and free transit has existed ab initio, but now the State of Matto Grosso, seeing that Amazonas is allowed to collect duty on rubber coming from Acre, claims a similar right on all rubber coming from the Bolivian province of Beni.
This conduct of Brazil, being simply an abuse of her topographical position at the mouth of the great waterways of the Amazon, and being contrary to the law of nations, does not only affect the revenue and prosperity of Bolivia, but also and most injuriously all foreign settlers and people interested in the commerce of that part of the world. Bolivia is unable to protect them on account of her disadvantageous geographical position, and they have applied to the foreign offices of England, Germany, and France for protection. Their claim seems to be reasonable and worthy of prompt attention before they are ruined by the wanton action of Brazil.
Mr. Seeger to the Brazilian minister for foreign affairs.
Petropolis, January 20, 1903.
Mr. Minister: Pursuant to instructions from my Government, I have the honor to submit to your excellency’s kind consideration the following facts and conditions:
Your excellency knows that important commercial relations exist between the United States of America and that portion of the Republic of Bolivia whose only outlet is the Amazon River.
Through the decree of the honorable minister of fazenda of Brazil, of August, 1902, issued without a moment’s warning and imposing prohibitory transit duties on all merchandise to and from Bolivia by way of the Amazon River, a great injury is done to the material interests of my country.
The Government of the United States of America has always considered the navigation of the Amazon through Brazil as being free to all nations, and it has consequently regarded the above-mentioned ministerial decree as only temporary and transient in its nature. For this reason it has refrained, until now, from submitting to your excellency the deep grievances of our merchants doing business in the Amazon region.
[Page 41]I beg your excellency to kindly consider that a continuance of the policy as applied in the ministerial decree above mentioned would be a death blow to our vast interests in eastern Bolivia.
I have taken the liberty to call your excellency’s attention to these facts and conditions, feeling confident that you will exercise your great influence to bring about such changes in the premises as our important commercial relations with Brazil and the strong ties of close friendship that bind us to your glorious country give us reason to hope for.
I would be particularly grateful to your excellency if you would enable me to transmit your answer to our Department of State before my leave of absence takes effect, on February 1, next.
I have, etc.,
Consul-General, in Charge of Legation.