File No. 711.1215/350a.

The Department of State to the Mexican Embassy.

The recent arbitration between the United States and Mexico, under the convention of June 24, 1910, with reference to the international title to the Chamizal tract has, in the opinion of the United States, failed to meet the legitimate expectations of the two nations concerned.

For the reasons set forth by the American commissioner in his dissenting opinion, and by the American agent in his suggestion of protest, the United States does not accept this award as valid or binding.

But even on the assumption that the award rendered by the presiding commissioner is valid and binding, it has confessedly failed to accomplish the object which the high contracting parties had in view, namely “to terminate * * * the differences which have arisen * * * as to the international title to the Chamizal tract,” inasmuch as it makes no attempt to locate the boundary line at the tract in dispute, and its effect is to remit once more this all-important matter to the two parties for settlement.

It should be added in passing that the American commissioner advises the Department of State that even if the two Governments should agree again to refer the case to an international commission for the purpose of ascertaining the whereabouts of the boundary line suggested by the presiding commissioner, the river channel before the flood of 1864, it would be impossible to relocate that line, so that the whole matter would once more revert for diplomatic settlement.

Furthermore (a matter of perhaps even greater importance) the presiding commissioner—in disregarding the construction placed by [Page 599] both parties upon the convention of 1884, that this convention treats of only two classes of river changes, namely “through the slow and gradual erosion and deposit of alluvium” (art. 1) or “by the cutting of a new bed or, where there is more than one channel, by the deepening of another channel” (art. 2), and in his implied holding that the treaty of 1884 embraces within its purview a tertium quid, namely “violent” erosion, which is to be assimilated in its legal effect to the cutting of a new bed—places a wholly impracticable construction upon this treaty. If the two Governments should accept this interpretation it would not only throw the international boundary line along the Rio Grande into inextricable confusion and cast doubt upon the private title of well nigh every foot of land on both sides of the river throughout “all the 800 miles where the Rio Grande with alluvial banks constitutes the boundary,” but would fasten upon the boundary treaties themselves an interpretation which would make their application impossible in practice in all cases where an erosive movement is in question, at least until some conventional definition of “violent” erosion had been arrived at.

It would seem therefore that even if the decision of the International Boundary Commission in the Chamizal case were accepted as valid and binding it would not terminate the differences which it was meant to terminate, but would require further diplomatic negotiations to render it possible of application either at the Chamizal tract or elsewhere.

The Government of the United States although profoundly convinced of the invalidity of the award, is loath to press this view so long as it may properly be avoided, and since it seems evident that in any event further diplomatic negotiations and a further convention are inevitable, it appears to the Government of the United States that it would be for the interest of both parties for the two Governments, without discussing the question of the validity of the award or the possibility of scientifically relocating the channel of 1864, to endeavor to settle their differences through a new convention which should avoid as far as possible all contentious matters and look toward a settlement upon a basis of mutual accommodation and convenience.

The Government of the United States accordingly suggests the negotiation of a new boundary convention upon the following basis:

A preamble reciting the pertinent articles of the present boundary treaties and conventions between the two Governments.
A recital of certain general differences as to the interpretation of these treaties as to the international title to the Chamizal tract in particular and as to the validity of the recent award, and a statement of the desire on the part of both Governments to settle these differences in an amicable way.
Certain declaratory interpretations of the boundary treaties and conventions, particularly as to the following points:
The treaties of 1848 and 1853 establish a fluvial or arcifinious boundary.
The treaty of 1884 is retroactive in its scope.
Two classes of changes only are contemplated in the treaty of 1884, i. e., avulsion and erosion, and these classes embrace all the changes which have taken place on the Rio Grande and Colorado [Page 600] Rivers, since by virtue of the treaties of 1848 and 1853 certain parts of the dividing line between the two countries have followed the middle of the channel of the Rio Grande and the Rio Colorado, as well as changes which may take place in the future.
Provisions relating to the adjustment of the international boundary line at El Paso and Juarez, through mutual arrangement by a declaratory interpretation of the boundary treaties and the elimination of the Horcon bar above Brownsville.
Possible provision for the indemnification of private individuals who may be thought by one or the other Government to be damaged through the adoption of the foregoing provisions.

The ever present possibility of friction between the citizens of the two countries on the tract in dispute renders it highly important that the long-standing controversy as to the international boundary line at El Paso and Juárez be settled as speedily as possible. If the Government of Mexico is favorably disposed toward the settlement of pending boundary questions through the negotiation of a declaratory treaty along the general lines indicated in this memorandum, the Department of State ventures to suggest that the details be taken up in personal negotiations to be begun in this city as soon as possible. The Department of State is prepared to give special and continuous attention to these negotiations, in an earnest endeavor to reach an agreement which will enable a treaty to be signed within the next few weeks.