Minister Bowen to
the Secretary of State.
American Legation,
Caracas, February 5,
1905.
No. 385.]
Sir: I have the honor to inclose herewith
copies of my correspondence with the minister of foreign affairs and of
the cablegrams that have passed between Washington and this legation
since the 23d of January last and to acknowledge the receipt of your
instructions No. 234, of the 20th ultimo. I am holding the said
instructions until I receive an answer from you to my cablegram of the
3d instant, asking whether or not you desire me to decline the request
of President Castro for a general treaty of arbitration. I am decidedly
of the opinion that we should not make a treaty with him of that kind
until he settles all pending questions in conformity with our repeated
requests and consents to accept our definition of what are diplomatic
questions. His evident purpose is to maintain the Calvo doctrine in its
entirety, and he has no doubt he can do so if he can persuade the
Government of the United States to agree to make with Venezuela a
general treaty of arbitration for settling questions that may become
diplomatic in accordance with the rules of international law.
* * * * * * *
I am, etc.,
P. S.—I have just had a talk with General Ybarra, the minister of
foreign affairs. He told me that he has cabled to Washington in the
hope of securing your assent to the making of a general arbitration
treaty. I expressed the opinion that he would not succeed, unless he
is willing to submit to arbitration the asphalt case and all other
pending cases that can not be settled by mutual consent. He replied
[Page 1024]
that President
Castro is anxious to make only one treaty and to have that cover
everything. “That might be possible,” I remarked, “if he really
would let it cover everything; but so far he has excluded
everything. Send for me the moment he consents to submit the asphalt
case and all other questions to arbitration, and we will then see
what we can do.”
[Inclosure 1.]
Minister Bowen
to the Minister of Foreign
Affairs.
American Legation,
Caracas, January 30,
1905.
Mr. Minister: I have the honor, in
compliance with instructions I have received from Washington, to
request your excellency to inform me whether the Government of
Venezuela is willing to agree to the principle of an impartial
arbitration of the asphalt case, the Critchfield and Jaurett cases,
and the revision of the Olcott award and of the trial of all those
cases absolutely on their merits before arbitrators appointed to
hear and to decide them.
A favorable answer to that question would, in my opinion, be
indisputably creditable to the Government of Venezuela and surely
acceptable and gratifying to the Government of the United
States.
The only reason, if I understand clearly the views of the Venezuelan
Government, why it has hesitated to submit the asphalt case and
similar cases to arbitration is because it is inclined to hold that
while cases are before the Venezuelan courts they can not be
considered diplomatic questions, and that they can only become such
after the courts have rendered their final decision in such a way or
in such terms as to constitute a denial of justice.
If the Venezuelan Government is deterred by those views from
submitting to arbitration the aforesaid cases or any of them, I
suggest that it propose to the Government of the United States that
an arbitration tribunal be selected and authorized to declare
whether or not the aforesaid cases or any of them may be properly
regarded as diplomatic questions, and to hear and to decide such of
them as are diplomatic questions.
It would not be practical nor is it necessary to submit to
arbitration the general principle of international law that a case
pending in a national court is not a diplomatic question. We are not
discussing a general principle, but specific cases, and these
specific cases can, in my opinion, be shown to be wrongfully
referred to the aforesaid general principle.
Furthermore, I suggest that Venezuela at the same time propose that
the same arbitration tribunal be authorized to hear and decide such
cases of the other creditor nations as it may declare are diplomatic
questions, and may decide what sum should be paid yearly to the
creditor nations out of the customs revenues of La Guaira and Puerto
Cabello.
I have made these suggestions in order that I may never be reproached
with having failed to put forth every effort possible to induce the
Government of Venezuela to settle in a fair and honorable way her
disputes with foreign nations. Your excellency will appreciate my
friendly motives, and will, I know, give to every view I have
expressed very careful and conscientious consideration.
I gladly avail, etc.,
[Inclosure
2.—Translation.]
The Minister of Foreign
Affairs to Minister Bowen.
Ministry of Foreign Affairs,
Caracas, February 2,
1905.
Mr. Minister: I acknowledge the receipt of
your excellency’s note of the 30th of January last, and I have
received instructions from the Provisional President of the Republic
to answer in order the points which it contains in the following
terms:
The asphalt cases have been fully answered in previous notes to your
excellency from this office by it being stipulated in such contracts
between the interested parties and the government of the Republic
that doubts and controversies which may arise in the execution and
fulfillment should be decided by the tribunals of justice of the
Republic, there not being able to be in any case grounds for
international claims, and now your excellency, who is a jurist, will
understand that it would not be creditable for the Venezuelan
Government to violate the said proviso agreed upon with American
citizens or companies.
[Page 1025]
The Jaurett matter is a mere police question, and as to the revision
of the award of Mr. Olcott, although it is not known that any
protest about the matter has been made by him, the case, in the
opinion of the Federal Executive, would be of such gravity if it
were made that in his judgment all the protocols would be annulled
which your excellency signed in Washington in the name and as the
representative of Venezuela.
Nothing creditable would then result to the government of the
Republic from its acceptance.
If a judicial question can be taken away from the competent tribunals
which have cognizance thereof in order to be submitted to a
diplomatic decision, as your excellency has affirmed already in your
various notes, the Venezuelan Government would not be indisposed to
accede to your repeated request, provided always, this principle
were thus sustained, maintained, and embodied in international
law.
The government of the Republic has not been able, even remotely, to
foresee the denial of justice, because the cases in court are of
such a character that they are not susceptible to it, nor much less
would it be acceptable to the Federal Executive if the honor and
dignity of the nation were involved.
Your excellency knows by the contents of previous notes from this
office that the Venezuelan Government has proposed in every way to
the Government of the United States a general arbitration treaty for
all the questions which in due international form can be thus
decided; and as regards this paragraph of the note of your
excellency which I am answering, the President observes, moreover,
that the very fact of submitting to an arbiter the decision as to
whether a question is diplomatic or not would be not only a proof
that it was not, but even prejudicial to the exact investigation of
the questions by the chancelleries that discuss them; nor is it
understood that the special cases to which your excellency refers
can be governed by other principles or other rules than the general
ones.
The next paragraph of your excellency’s note is of such magnitude and
gravity that, dealing with your excellency, I have to say that the
Federal Executive hardly can understand it or explain it, as your
excellency, as former representative of Venezuela, ought to know
what sum is the one which from the date of the protocols is being
paid to all the creditor nations or to all the nations which signed
with her diplomatic agreements. The point which the government of
the Republic could not settle—that is to say, preferential
treatment—your excellency knows the award of The Hague tribunal
decided it clearly and categorically, and thus it has been observed
and fulfilled by the Government of Venezuela.
If any new rule or agreement in the form of payment, but not as to
the amount, could be obtained by the Government of the United States
with the other nations for the Government of Venezuela, said payment
would be equally acceptable. I have to inform your excellency anew
that the Venezuelan Government has no pending questions of any kind
in relation to what your excellency embodies in the paragraph to
which I have just alluded.
I have special instructions from the Provisional President of the
Republic to give to your excellency at all events the most cordial
thanks for your good offices and desires, and avail myself of the
opportunity, etc.
