File No. 437.00/60.
The Legation of Cuba to the Department of State.
Washington, D. C. [, undated.]
In reference to the interview held yesterday between the Honorable Secretary of State of the United States and the appointed Minister of Cuba, the reasons are hereafter stated on which the Government of Cuba objects to submit to arbitration the claims presented jointly by the Governments of Great Britain, Germany and France for damages alleged to have been caused to properties belonging respectively to the subjects of those nations, by Cuban revolutionary forces during the war for independence:
- First. Because recourse to arbitration can be advised only whenever there shall be apparent grounds for differences of opinion on the subject at issue, and not when the facts are so clear and such as make it reasonably impossible to differ in opinion on the question.
- Second. Because in the case of the above-mentioned claims, the facts are so clear that they exclude all possibility of any differences of opinion as to the conclusions to be inferred from them.
- Third. The facts are:
- That the Cuban forces which are alleged to have caused the damages were not granted belligerent rights either by Spain, Great Britain, Germany or France.
- That the war for independence was followed, after the war of the United States against Spain, by a treaty of peace made in Paris between commissioners representing only the Government of Spain and that of the United States, no participation therein having been given to the Cuban Revolutionary Government.
- That pursuant to that treaty an American Military Government was established in Cuba, which lasted until the 20th of May of 1902.
- That the Constitution was framed by a Cuban Convention called together by the American Military Government in Cuba, and the United States approved the Constitution thus framed, and ordered that a republic be established under it.
- That the Republic of Cuba was recognized by all the foreign Powers, as established and regulated by the Constitution, against the provisions of which they made no protest.
- That the Constitution provides in one of its transitory provisions, that the Republic of Cuba did not recognize any debt of liability except that legitimately incurred for the benefit of the revolution by the Chiefs of Corps of the Liberating Army, after the 24th of February, 1895, and prior to the 19th of September of the same year, on which date the Constitution of Jimaguayú was promulgated, and the debts and liabilities subsequently incurred by the Revolutionary Government or its legitimate representatives abroad. Congress will determine said debts and liabilities, and resolve accordingly for the payment of those that are legitimate.
- The properties for the damages of which the claims are made, were properties held and operated under the rule of the Spanish Government, to which taxes were to be paid according to law, and the products or crops of which were sent to and sold in Spanish cities, and accordingly those properties were under the control of the enemy, and served their interests.
- The principle of international law was announced by the Spanish Treaty Claims Commission (Principles 7th and 8th), and many other precedents and authorities, pursuant to which the property of alien residents like that of subjects or citizens of the country, when in the track of war is subject to war casualties, and whatever in front of the advancing forces either impedes them or might give them aid when appropriated, or if left unmolested in their rear might afford aid and comfort to the enemy, may be taken or destroyed by the armies of either of the belligerents; and no liability whatever is understood to attach to the government of the country whose flag that army bears, and whose battles it may be fighting because the destruction of property in war, where a military end is served, is legitimate.
- The Cuban military forces were not responsible belligerents at the time when the injuries to the properties were effected, and they could not be held responsible subsequently for acts for which they were not accountable when they were execucuted, and much less can the Republic of Cuba be held liable if it is borne in mind that it came to life as late thereafter as the 20th of May of 1902.
- The present Government of the Republic of Cuba is legally unable to assent to arbitration of the above-mentioned claims, because it would infringe the constitutional provision whereby the liabilities of Cuba are limited to the debts expressly mentioned in the Constitution.
- The claims now before the Cuban Government were originally filed with the Government of Spain, which was held then by the Powers now pressing the claims as alone responsible for them.
- Article 7 of the Treaty of Paris relieves Spain of her liability for all damages caused to American citizens arising during the insurrection, the fact being that Spain did not disclaim her original liability for all those damages.
- The contention of the claimant nations that the former President of Cuba has committed himself regarding the arbitration of the claims cannot be sustained on legal grounds, for the reason that, even admitting for the sake of the argument that such has been the case, it would not bind the present Government or any government whatever; because, first, such arbitration is inconsistent with the above-mentioned provisions of the Constitution of Cuba, against which no government can go, and which are certainly well known by the claiming Powers; and, second, in such matters the present administration of Cuba is not concluded [sic] by the acts of its predecessor.
A bill was introduced, some time ago, in the Congress of Cuba, providing for submission to some kind of arbitration, of the claims which Great Britain, Germany and France have filed with the Cuban Government, for damages done to the properties belonging to citizens of those nations by the forces of the Cuban Revolution for Independence.
The bill has not ultimately passed, and accordingly has not become a law, so that now the President of Cuba is the one called upon to decide the future course that the Cuban Government should adopt in regard to those claims.
Confidential advices from the Secretary of State of Cuba suggest, though only tentatively, that the best course to pursue is to undertake, first of all, a close examination of each and every one of the claims, so as to determine: first, whether the claimants are really of English, German or French nationality; second, whether their claims are such as may be judged of and approved by Congress pursuant to the first Transient Provision of the Constitution of Cuba; third, whether the titles of the claimants to the properties are good titles pursuant to Cuban law.
If the result of this examination should be, as it will most probably be the case, that some or many of the claims are not such as may be covered by the above-mentioned Transient Provision of the Constitution, the Government of Cuba will have to contend that it cannot assent to an acknowledgment and payment of those claims, and the European Governments will, on the other side, argue that Cuba must pay those claims, there arising accordingly a conflict of views between the Governments of the three claiming Powers and the Government of Cuba, and then will be the opportunity to consider whether the question at issue should be submitted to arbitration.
What the arbitrators would have to decide upon, would be whether in view that the Constitution of Cuba does not permit the payment of that class of claims, and in view that the only Cuban Government recognized by the above-mentioned Powers has been the Constitutional Government of Cuba as it was established when Cuba was constituted as an independent Power on the 20th of May of 1902, which Government cannot violate its own Constitution, and in view that the same Powers did never grant belligerent rights to the Cuban Revolutionists, and, on the contrary, accepted the assertion constantly made by Spain that there was no state of war in Cuba but only an uprising of a few or many rebel subjects of the Government of Spain, to which accordingly they favored with sales of arms and ammunition—whether in view of all this the above-mentioned Powers are justified in presenting [Page 347] now those claims for acts which took place before the advent and birth of the Cuban Republic which was established with its present status pursuant to a law of the Congress of the United States and by order of the President of the same country, who, in his letter of May 10th, 1902, and dated in Washington and addressed to the President and Congress of the Republic of Cuba, said: “On the 20th of the present month the Military Government of Cuba, complying with my instructions, will turn over to you the command and government of the Island of Cuba, so that you may thereafter exercise said command and government pursuant to the provisions of the Constitution approved by your Constitutional Convention, and as promulgated on that day, and he will at that moment declare that the occupation of Cuba by the United States has come to an end.”
In case that the award of the arbitrators should be against Cuba, then and only then will the time come to consider and decide as to the appointment of a commission which may consist of one arbitrator for us and another for the three Powers, with a president appointed by a friendly Government not interested in any of the points submitted, which commission shall decide the cases in which Cuba should pay and the amounts to be paid, according, of course, to the principles of international law, but provided that the claims or that part thereof as may arise from damages caused in the course of or as a result of military operations or by the necessities of war or caused in properties of claimants who may have sided with the Spanish Government or given it any aid as, for instance, paying taxes to same or the like, shall be rejected.