File No. 437.00/60.
The Department of State to the Legation of Cuba.
Washington. (Not dated.)
[Memorandum handed to the Cuban Minister on July 12, 1913.]
memorandum.
The desire of the Cuban Government for full information as to the ownership and nature of the claims which the foreign Powers desire to arbitrate seems to be altogether reasonable. It is doubtful, however, whether either in the preliminary examination of the claims by the Cuban Government or in their subsequent arbitration, if one should be agreed upon, the First Transient Provision of the Constitution of Cuba would play an important part. For so thinking there are two reasons. The first of these is that a government is not permitted to set up, as a final answer to demands for the performance of international obligations, provisions of its municipal law, either constitutional or statutory. This principle has been clearly established on many occasions, and very notably in the settlement of the so-called Alabama claims by means of the award of the Geneva Tribunal. In the second place, it is by no means clear that the First Transient Provision forbids the Cuban Government to recognize claims not therein [Page 348] mentioned. The language of the provision is that the Republic of Cuba “does not recognize” any other debts or obligations than those therein mentioned, and that the Cuban Congress “shall examine said debts and obligations and decide upon the payment of those which are found legitimate.” The debts and obligations thus referred to are those “legitimately contracted in favor of the revolution” by commanders of the liberating army before September 19, 1895, and by the revolutionary government after that date. These words indicate that the object of the first transient provision was primarily to recognize and provide for the payment of a certain class of claims. It gave no recognition to other claims; but, in view of the principle above mentioned, it can scarcely be construed as having been intended to forbid the Cuban Government to recognize claims for which it might be liable under international law.
It may be doubted whether, as a matter of practical procedure, it would be desirable to have two processes of arbitration, one for the purpose of determining general questions of liability under international law and the other for the purpose of passing upon the actual claims. There is, however, something to be said in favor of such a course; and, if it should be thought best to adopt it, the immediate submission to arbitration of some or all of points (a) to (m) of the first memorandum of the Cuban Legation would seem to be a logical step. But it is conceivable that practical considerations may lead the Cuban Government to desire first to make a preliminary examination of the actual claims.