File No. 711.21/169.
The Minister of Colombia to the Secretary of State.
Washington, May 3, 1913.
Excellency: I have the honor to acknowledge the receipt of your excellency’s polite note dated the 15th ultimo,1 in which, referring to the questions of the highest importance unhappily pending between [Page 310] Colombia and the; United States, your excellency is pleased to say:
“* * * I have the honor to inform you that pending a full study of this matter, which will be made at the earliest available moment, it will not be possible for me to enter into a discussion in regard thereto.”
It is very natural for the new administration to desire to make a full and fundamental study of the antecedents of the said questions so as to obtain, from its own point of view, elements of judgment that will not be vitiated by passion or the influences of a system different from that which, as regards a policy with the Latin American Republics, the present administration has formed the wise purpose to establish.
Hoping to facilitate that study, my Government directs me to lay before your excellency a statement of the case in the light of facts fully demonstrated, so that your excellency may see that the differences between the two countries lie in the interpretation of the Treaty of 1846 and that none of the pending questions can involve, for the United States, matters of honor or vital interests which nations as a general rule refuse to refer to arbitration, even though that civilizing remedy may have already been advocated by eminent American statesmen, and among them ex-President Taft, as the means of settling all international disputes whatever.
Both the people and Government of Colombia have experienced profound satisfaction on hearing of the very noble purposes that animate your excellency to cultivate relations of sincere friendship with the Republics of Latin America by means of an elevated and just policy, of which your excellency had already given the formula in that beautiful sentiment of yours: “The Lord has made us neighbors; let Justice make us friends.”
Who will deny that the beginning of a new era of justice must be marked by giving to my country the reparations that are her due? Her cause is eminently just. Colombia wants the fulfilment of sacred obligations assumed in a solemn compact, that of 1846, and bases that claim on a fundamental postulate of the law of nations which declares all states, whether great or small, to be equal in the family of nations. It may be said that Colombia’s is a typical case in the international life of the world of Columbus, for according as it shall be decided will it be demonstrated whether or not the great Republic proposes to uphold, in its relations with the American States, the fundamental principles of international law.
A happy day for civilization was that in which the President of the United States, after declaring that “the time has come to take a step that may bring into play the good will and effective cooperation of all the nations of the western hemisphere, north and south, in the service of mankind and for the common good of the peoples,” invited “all the independent countries of North and South America to attend a general congress that would meet on the twenty-fourth of November 1882 to consider and discuss the means of preventing war among the nations of America.” The good work, thus started, was given great impetus when, on September 3, 1890, President Harrison said to Congress:
I send with this message a letter from the Secretary of State in which he incloses three resolutions adopted by the Conference of American Nations which [Page 311] recently met in Washington, relative to the question of international arbitration. The ratification of the treaties proposed in those very important resolutions would constitute one of the most happy and hopeful incidents in the history of the western hemisphere.
The delegates of North, Central and South America assembled at the Conference unanimously declared that,
Recognizing that the growth of the moral principles which govern political societies has created an earnest desire in favor of the amicable adjustment of international differences * * * solemnly recommend to all the Governments by which they have been accredited to conclude a uniform treaty of arbitration in the articles following:
- Article 1. The Republics of North, Central and South America hereby adopt arbitration as a principle of American international law for the settlement of differences, disputes or controversies that may arise between two or more of them.
- Article 2. Arbitration shall be obligatory in all controversies concerning diplomatic or consular privileges, boundaries, territories, the right of navigation and the validity, construction and enforcement of treaties.
It matters not, for the prevalence of those immortal principles, whether or not the treaties in which they were set forth went through the ratification or other customary formalities. Those principles in themselves, because of their high moral dignity, will ever be the guiding rule of every justice-loving mind and of all governments that desire to promote the peaceful and fruitful advance of civilization.
From the noble declarations you have made as a statesman, I know that your excellency professes these same principles to the fullest extent, recognizing the necessity of loyally applying [them] to the relations of this great Republic with Latin America. I hope therefore that the just claims of Colombia will be satisfied by the present Government of the United States.
On the basis of the principle above enunciated, it is necessary first to decide whether the differences existing between Colombia and the United States necessarily involve questions of validity, interpretation and enforcement of public treaties.
Among the jurists and statesmen of the United States there is not one of whom your excellency may have a higher opinion than [of] the Honorable Augustus O. Bacon, the present chairman of the Senate Committee on Foreign Relations, and in that capacity and as a jurist charged with the settlement of all cases of international law similar to that which forms the subject-matter of this note. I beg leave earnestly to call to your excellency’s attention the famous speech delivered by Senator Bacon on the 29th of January, 1904, by which he proposed to demonstrate—and the demonstration reached the height of perfect evidence—that the solution of the differences unhappily existing between the United States and the Republic of Colombia necessarily involve the validity, interpretation and enforcement of the Treaty of 1846 between the two countries. In the development of his demonstration, Mr. Bacon said in the Senate:
The Colombian Government, through General Reyes, says that the United States, by the use of their powerful squadron and by the use of their armed forces, prevented Colombia from using her forces to suppress the rebellion in Panama, and that in the absence of such intervention on the part of the United States and the protection thus given to the Panama revolution the rebellion would have been speedily suppressed, and that, in fact, it would never have taken place; and that by reason of such forcible action by the United States in aiding and protecting the revolutionists in Panama the Colombian Government [Page 312] has been despoiled by that of the United States of its rights and sovereignty on the Isthmus of Panama, and that the United States are responsible for the dismemberment of the territory of Colombia.
Our Secretary of State, in his reply, admits that the United States protected the sovereignty of the Republic of Panama as against Colombia by armed force, and justifies the action under the Treaty of 1846 with Colombia, or New Granada which is the same thing. The contention of the Secretary is that whereas in the Treaty of 1846 the United States guaranteed the rights of sovereignty and property of Colombia in the Isthmus of Panama, so soon as Panama seceded and her independence was acknowledged all the rights of Colombia under that treaty inured to Panama, and that on the instant the United States became obligated by the treaty to protect the sovereignty of Panama in the entire Isthmus, even as against Colombia, with whom the treaty was originally made; that therefore the United States were justified in protecting the revolutionary government in Panama and in preventing by armed force Colombia from using her forces in suppressing the rebellion.
The clause in the Treaty of 1846 upon which the Secretary of State bases this contention is found in the thirty-fifth article and is as follows:
And in consequence the United States also guarantee, in the same manner, the rights of sovereignty and property which New Granada (Colombia) has and possesses over said territory.
Under that clause of the Treaty of 1846 the Secretary contends that the United States were right in protecting the new Panama Republic against the effort of Colombia to suppress the rebellion which set it up. The statement made by him to this effect in the extract already quoted is as follows:
In recognizing the independence of the Republic of Panama the United States necessarily assumed toward that Republic the obligations of the Treaty of 1846. Intended, as the treaty was, to assure the protection of the sovereign of the Isthmus, whether the government of that sovereign rules from Bogota or from Panama, the Republic of Panama, as the successor in sovereignty of Colombia, became entitled to the rights and subject to the obligations of the treaty.
From this it is seen that Colombia claims that the United States, by forcibly preventing Colombia from suppressing the rebellion, caused the dismemberment of her territory. The United States admit the protection of the Republic of Panama as against Colombia, and assert their duty so to do under the Treaty of 1846, and thus the issue is clearly joined between the two.
Upon this issue thus presented the question whether or not the contention of the Secretary of State is correct is a question as to the correct interpretation of the Treaty of 1846.
Now, the point I am coming to is this: The Senator from Wisconsin asked me whether that claim of Colombia on the one hand, and the contention of the United States on the other hand, constitute an issue which is a proper subject-matter of arbitration. I lay down this as a proposition, that the question of the proper construction of a treaty, including the question of whether there has been wrong done in the violation of a treaty, is a question which, above all questions, is recognized as the simplest and most natural question for treaty negotiation, for agreement, if possible, and for submission to other parties for decision if such agreement cannot be had. If there can be any successful dispute of that as a correct proposition I do not know where to find the basis upon which to rest the argument.
Mr. President, the Government of the United States makes no claim of any right in Colombia, makes no argument in justification of anything which has been done there, which is not based on rights, duties and powers under the Treaty of 1846. The whole question at controversy is one which grows out of the question of the construction of that treaty. The message of the President of the United States is one which bases the acts of the Government of the United States upon the construction of that treaty; every argument which has been made in this Chamber in defense of what has been done has been necessarily based upon the question of the construction of that treaty; every argument which assails or disputes the propriety of the action which has taken place is based on the question of the construction of that treaty, and the question of the construction of a treaty is of all questions one which is a proper subject-matter of adjudication and arrangement either by agreement of the parties or by arbitration where such agreement cannot be reached.
I repeat the proposition in brief. My proposition is that these documents contained in the communication sent to us by the President, show that there is a controversy between the United States and Colombia, and that even if for the [Page 313] purposes of the argument we admit that there is no sound basis for the claim of Colombia it is nevertheless a controversy, and the fact is plain that that controversy grows out of the construction of the Treaty of 1846.1
In the memorable speech I have just transcribed the present Chairman of the Senate Committee on Foreign Relations has put in evidence, so clearly that nobody can ever deny them, the following facts:
- That the controversy existing between Colombia and the United States deals, in its entirety and in all of its juridical aspects, with the interpretation of the Treaty of 1846.
- That the interpretation of that treaty constitutes an eminently proper subject-matter of arbitration.
- That the contention that the pending controversy involves, for the United States, vital questions of “interest and honor” that cannot be referred to arbitration is a mere pretext without any reasonable foundation.
Senator Bacon did not choose to touch upon the solution of the problems involved in the correct interpretation of the Treaty of 1846; he advanced no opinion whatever about them, for he said that it was for the arbitrator to solve them.
In compliance with the instructions that my Government has been pleased to give me, I will now lay before your excellency a brief statement of the antecedents, as they are recorded in the true history and in authentic documents, of that grave event which for a number of years past has been keeping the Colombian people in a most painful state of mind.
At the very dawn of her freedom, before the confusion of that great war of Independence had been dispelled, Colombia endeavored to cultivate the most cordial relations of friendship with Washington’s noble country, the first-born child of Democracy in America, that to her sisters in the South was the pole star which was to guide them, by great examples of honor, purity and justice, to the attainment of high destinies.
I beg your excellency to be pleased to look over the set of public treaties of the United States I shall have occasion to cite in the course of this note. Your excellency will find in the first of those treaties, which was signed in 1824 by the two countries, the spirit of true friendship and genuine confidence that animated Colombia toward this great Republic. Those were always Colombia’s feelings for the United States until one of its Presidents decided, as he publicly and deliberately confessed, to take the Isthmus of Panama, in flagrant violation of the Treaty of December 12, 1846, which placed upon the United States the formal obligation to New Granada (as Colombia was named) to uphold her rights of sovereignty and property over the Isthmus which Mr. Roosevelt took, in disregard of the express covenant and also of the powers and prerogatives of the American Legislature.
Vindication of the act has been sought in the sophism, above referred to by Senator Bacon, that the Treaty of 1846 had for its object, not what its very text says and clearly reveals to be the intentions of the contracting parties, but solely “to assure the protection of the sovereign of the Isthmus, whether the government of that sovereign [Page 314] rules from Bogota or from Panama.” Rules of juridical interpretation justifying so arbitrary a construction of Article 35 of that treaty, whose existence and binding force are admitted by the United States, cannot be found. Nor is it necessary for a correct interpretation to resort to the grammatical, logical, historical and systematic criteria discussed by writers on international law; it is enough to read in good faith the text of that article which is worded as follows:
Art. 35. The United States of America and the Republic of New Granada desiring to make as durable as possible the relations which are to be established between the two parties by virtue of this Treaty, have declared solemnly, and do agree to the following points.
- For the better understanding of the preceding articles, it is and has been stipulated between the high contracting parties, that the citizens, vessels and merchandise of the United States shall enjoy in the ports of New Granada, including those of the part of the Granadian territory generally denominated Isthmus of Panama, from its southernmost extremity until the boundary of Costa Rica, all the exemptions, privileges and immunities concerning commerce and navigation, which are now or may hereafter be enjoyed by Granadian citizens, their vessels and merchandise; and that this equality of favors shall be made to extend to the passengers, correspondence and merchandise of the United States, in their transit across the said territory, from one sea to the other. The Government of New Granada guarantees to the Government of the United States that the right of way or transit across the Isthmus of Panama upon any modes of communication that now exist, or that may be hereafter constructed, shall be open and free to the Government and citizens of the United States, and for the transportation of any articles of produce, manufactures or merchandise, of lawful commerce, belonging to the citizens of the United States; that no other tolls or charges shall be levied or collected upon the citizens of the United States, or their said merchandise thus passing over any road or canal that may be made by the Government of New Granada, or by the authority of the same, than is under like circumstances levied upon and collected from the Granadian citizens; that any lawful produce, manufactures or merchandise belonging to citizens of the United States thus passing from one sea to the other, in either direction, for the purpose of exportation to any other foreign country, shall not be liable to any import-duties whatever; or, having paid such duties, they shall be entitled to drawback upon their exportation; nor shall the citizens of the United States be liable to any duties, tolls or charges of any kind to which native citizens are not subjected for thus passing the said Isthmus. And, in order to secure to themselves the tranquil and constant enjoyment of these advantages, and as an especial compensation for the said advantages and for the favors they have acquired by the 4th, 5th and 6th articles of this Treaty, the United States guarantee positively and efficaciously to New Granada, by the present stipulation, the perfect neutrality of the before-mentioned Isthmus, with the view that the free transit from the one to the other sea may not be interrupted or embarrassed in any future time while this Treaty exists; and in consequence the United States also guarantee, in the same manner, the rights of sovereignty and property which New Granada has and possesses over the said territory.
- The present Treaty shall remain in full force and vigor for the term of twenty years from the day of the exchange of the ratifications; and from the same day the treaty that was concluded between the United States and Colombia on the third of October, 1824, shall cease to have effect, notwithstanding what was disposed in the first point of its 31st article.
- Notwithstanding the foregoing, if neither party notifies to the other its intention of reforming any of, or all, the articles of this Treaty twelve months before the expiration of the twenty years stipulated above, the said Treaty shall continue binding on both parties, beyond the said twenty years, until twelve months from the time that one of the parties notifies its intention of proceeding to a reform.
- If any one or more of the citizens of either party shall infringe any of the articles of this Treaty, such citizens shall be held personally responsible for the same, and the harmony and good correspondence between the nations shall not [Page 315] be interrupted thereby; each party engaging in no way to protect the offender, or sanction such violation.
- If unfortunately any of the articles contained in this Treaty should be violated or infringed in any way whatever, it is expressly stipulated that neither of the two contracting parties shall ordain or authorize any acts of reprisal, nor shall declare war against the other on complaints of injuries or damages, until the said party considering itself offended shall have laid before the other a statement of such injuries or damages, verified by competent proofs, demanding justice and satisfaction, and the same shall have been denied, in violation of the laws and of international right.
- Any special or remarkable advantage that one or the other power may enjoy from the foregoing stipulation are and ought to be always understood in virtue and as in compensation of the obligations they have just contracted and which have been specified in the first number of this article.
As clearly stated, in the first paragraph of the inserted article, the United States guaranteed not any sovereignty that might impose itself on the Isthmus but, as the quoted text says, “the rights of sovereignty and property which New Granada (now Colombia) has and possesses over the said territory.” And this solemn promise in which the United States pledged their public faith was not an onerous obligation nor a gratuitous protection of the rights of Colombia. On the contrary, the promise of guaranty was set down as a compensation, in payment of the immense advantages secured by the United States from Colombia through that treaty.
Your excellency is perfectly conversant with the history of your country and it is therefore needless to undertake to demonstrate to you that the great development of California and all the Western States was mainly due to the free and untrammeled transit across the Isthmus of Panama which, in return for the aforesaid guaranty, the United States secured in virtue of the Treaty of 1846.
In submitting that international pact to the approval of the Senate, President Polk said, with reference to Article 35: “The importance of that concession to the commercial and political interests of the United States cannot easily be surpassed.”
In truth no other international pact can be found with so great advantages and benefits for one of the contracting parties as those which were secured by the United States and conceded by Colombia with the main object of gaining a substantial guaranty of her unquestionable rights of sovereignty and property over the Isthmus of Panama. Such was, on Colombia’s part, the goal she had in view, the intention she harbored in concluding the Treaty of 1846.
But on the part of the United States, as appears from the texts inserted in this note, a different interpretation of the said pact has been advanced; hence the necessity of resorting to an arbitral tribunal to let it solve in the light of the law and decide the true interpretation of the Treaty of December 12, 1846. This was demonstrated with perfect clearness in the luminous speech delivered in the American Senate on January 29, 1904, by the Honorable Augustus O. Bacon, to which I have referred by quoting it in this note. There is also no doubt that there is, in the present case, no plausible exception that can be taken to arbitration on the part of the American Government. Quite to the contrary, there are precedents in which the United States accepted arbitration for the settlement of similar questions, as shown by the Treaty of 1863 with England and the Geneva Arbitration. The memorable Alabama case also supplies [Page 316] decisive arguments to show how the American Government always upheld and practiced the principle of international arbitration, one of the great and transcendent conquests of civilization.
The United States, keeping faith with the great deeds of its own history, signed the Convention of The Hague of October 18, 1907, for the peaceful settlement of international disputes, and, under Article 38 of that convention, all disputes over the interpretation, execution and violation of public treaties must be submitted to arbitration. This was precisely the civilizing doctrine always upheld by the United States and professed by its most notable jurists in accordance with the noble spirit of the American people. The same doctrine, which now has the approval of the civilized world, has been solemnly advocated by the Presidents of the United States, at all times, and even by Mr. Roosevelt who, speaking of international arbitration, said:
The interpretation of a treaty is preeminently a subject-matter of arbitration when the contracting parties do not agree on its true meaning. Generally that interpretation is a judicial act of the class especially proper for submission to an arbitral tribunal. (The Outlook; October 14, 1911.)
By virtue of the foregoing, my Government hopes that your excellency’s Government will agree to submit to The Hague Tribunal the questions pending between Colombia and the United States, so that they may be determined by a final award.
I gladly avail [etc.]
- Not printed.↩
- For the entire speech delivered by Senator Bacon in the Senate on January 29, 1904. see Congressional Record, 58th Cong., 2d sess., Vol. 38, pp. 1366 et seq. This passage is on pp. 1376–1377.↩
- See For. Rel. 1906, pp. 412–419.↩
- See ante.↩
- The note of October 21, 1905, was answered by the Secretary of State on February 10, 1906; this answer immediately follows the note itself in For. Rel. 1906, pp. 419–421.↩