File No. 711.21/64.

The Minister of Colombia to the Secretary of State.

No. 10.]

Mr. Secretary: The necessity, which in the opinion of the Government of Colombia still exists, of settling as soon as possible in a just and honorable way the claims it has made and with untiring insistence maintained, resulting from the attitude and conduct of the Government of the United States with respect to the separatist movement of the Colombian Department of Panamá in 1903, and the experience of recent years having demonstrated the utter unlikelihood of such a result being attained by means of a direct agreement, the Government of Colombia believes and has directed me so to declare to your excellency, that the time has come to urge anew upon the Government of the United States that—abandoning a course notoriously ineffective and adopting the one that the present administration of this country amid general applause advocates with so much zeal and success for the termination of all controversies of an international character—it assent to entering with us into a simple convention or treaty of arbitration under which the differences herein referred to shall be unappealably adjudicated, thus bringing to an end the present anomalous state of the relations between the two countries and placing them for the future and to their material honor and profit on a footing of the most sincere cordiality not only in their political but also in their commercial and economic aspects.

The outcome of the attempt that was made to regulate the situation by means of a direct agreement embodied in the treaties of 1909 was in truth most unfortunate. Let it be enough to say that it was on the point of causing a serious disturbance of public order in Colombia which was arrested only by the Government’s withdrawing the treaties from the consideration of the National Assembly, whose debates on the question, even though they lacked a genuine popular origin, did voice the prevalent sentiment of the country and brought about a change in the personnel of the administration and the voluntary and hasty expatriation of the head of the Government. The Colombian plenipotentiary who signed those conventions had to keep out of the country thereafter and not until a few months ago did he think it safe, after failing in a previous attempt, to return.

The present Chief of the nation, without having to analyze the cause of the sentiment that is now practically unanimous, must, as [Page 285] the faithful representative of an honorable democracy, respect it and look to it in his decisions: a course the more sensible and praiseworthy the more evident it becomes, to all who are familiar with the antecedents of the case, that the sentiment is swayed by noble aspirations after justice which soar high above consideration of mere material advantages, evidence of which is found, despite the assertion of persons bent on injuring Colombia and the lack of authentic and bona fide information, in the fact that, neither at the time of the discussion and rejection of the Treaty of 1903 by the Colombian Senate nor when that of 1909 was discussed in the National Assembly without coming to a vote, could there be heard in committees, reports or debates any allusion worth mentioning to the pecuniary compensations which in both cases were stipulated in Colombia’s favor. The public statement recently made by the citizen who was the Chief Executive of the United States at the time of the secessionist revolution of Panamá that he took a part of the territory of the friendly nation, failing in the performance of this act of war to observe even the constitutional requirement of previously referring the case to the Congress of his country, will have proved the least likely to allay that sentiment.

It having been demonstrated in practice that the desired settlement of the existing difference cannot be reached by direct agreement, my Government does not perceive the absence in this case of any of the circumstances which suggest, or rather impose, as between nations that have been bound during the greater part of their existence by the ties of traditional friendship, the expediency of resorting to the decision of an impartial tribunal as being the civilized and effective means par excellence of settling their disputes.

It is well known that those pending between the United States and the Republic of Colombia substantially grow out of the diverse interpretation put by each country upon certain stipulations of the treaty signed by their representatives in 1846. According to the Colombian Government’s judgment—which seems also to prevail in the public opinion of the United States if the statements of the press are to be taken as a criterion—the conduct of the Government of the United States toward Colombia in regard to the separatist movement of Panamá in 1903 and the proclamation of the independence of that Colombian department under the name of Republic of Panamá, was not that which was clearly dictated by the specific obligations solemnly assumed under that treaty; it shattered, moreover, the invariable tradition of that same Government, it broke away from the doctrine that all its statesmen had proclaimed, and contravened elementary and incontrovertible precepts of the law of nations.

To establish the gravity of these facts and the anomaly of the situation they create, it suffices to observe that now, while the Treaty of 1846—observed by Colombia with indisputable fidelity, under which the United States in return for most valuable concessions by Colombia (then called New Granada) assumed the obligation to guarantee to her “the rights of sovereignty and property which she has and possesses over the territory of the Isthmus of Panamá”—is still in full force and is the law of both nations, the United States is seen to guarantee, by a subsequent treaty which they consider to be also in [Page 286] force, the independence of another nation which on the sole strength of that guaranty holds in its power that same territory, the so-called Republic of Panamá.

It would indeed be impossible even to conjecture what considerations could have led the United States to create, this situation but for the remaining explanation that the United States practically put upon the existing treaty with Colombia in that emergency an interpretation in absolute conflict not only with that which Colombia holds to be the faithful and correct one and which it has placed upon it to this day, but also with that adopted by the United States until 1903.

It is a thoroughly well-known doctrine that if there are international disputes especially suitable for arbitration they are those arising from disagreement in the interpretation of public treaties: an aphorism which an ex-President of the United States expresses as follows in a recent publication: “In general the interpretation of a treaty is preeminently a matter for arbitration when the contracting parties disagree about its true meaning. Ordinarily this interpretation is a judicial act of the class especially adapted for submission to an arbitral tribunal.” (Theodore Roosevelt: “A Proper Case for Arbitration.” The Outlook, October 14, 1911.)

It is equally well known that the nations which were represented at the Second Conference of The Hague, in which the United States took so active a part, promptly proclaimed and made a solemn and permanent record of that doctrine when the contracting parties declared in article 38 of the Convention for the Pacific Settlement of International Disputes that: “in questions of a legal nature, and especially in the interpretation or applications of international conventions, they recognize arbitration as the most effective and at the same time the most equitable means of settling disputes which diplomacy has failed to settle.”

Although it cannot be denied that in the case of Colombia’s claim there is no occasion to exert extraordinary efforts or resort to special circumstances in order to reach the conclusion that the case in hand is one of the ordinary cases which, because of their nature, are most proper subjects for the decision of an arbitral court, I cannot resist the desire of citing here as one of the many grounds upon which Colombia founds her hope of a fully equitable hearing on this occasion the following admirable remarks made by the present President of the United States to the American Peace and Arbitration League: “I find in our arbitration treaties some exceptions as to submitting questions of honor to arbitration. Personally I see no reason why such questions should not be referred to arbitral courts just as those relative to public or private property.” Later and on a no less solemn occasion the same President said: “If we now should succeed in concluding with some great nation an express convention for the submission to an international tribunal of arbitration of any controversy that we could not settle by means of a negotiation, no matter whether it involved questions of honor, territory or money, we should take a long step toward demonstrating that it is possible at least for two nations to establish as between themselves the same system of legal procedure which exists between individuals under the jurisdiction of the same government.” (Speech of President Taft before the American Association for International Arbitration.)

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It may not be out of place to observe here that if this initiative which has already led to the signing of treaties of that scope with two of the most powerful European nations and has won for their author the applause of the world is meritorious and praiseworthy to a degree where powers of the first order are concerned, it cannot but be much more so, and in part of more importance and value to the example of magnanimity and rectitude thereby given, when the same hand is extended to a poor and real American Republic which in long years of friendship with the United States always acted with unquestionable loyalty and unhesitatingly complied, at times even at the cost of great sacrifices, with the obligations it assumed when it signed, sixty-five years ago, the treaty whose interpretation has given rise to the present controversy.

Colombia in this case has nothing but her right to bring forward in her behalf. But her people and her Government believe that to a Government that has taken that initiative and by that example has given evidence of its good faith that right is all the more entitled to consideration and respect as the claimant thereunder is forlorn; and the people and Government of Colombia feel assured that the people of the United States wall never fail to emulate their Government when it becomes a question of turning into acts of uprightness and justice the spirit of Christian civilization to which it owes its highest conquests.

In conclusion I beg leave to condense this note in these few words: All that the Government of Colombia asks is that, all efforts toward arriving at a satisfactory solution of the controversy pending with the United States by means of direction negotiations having failed, the Government of this country will assent to its being decided by an impartial tribunal of arbitration.

I avail [etc.]

Pedro Nel Ospina.