File No. 437.00/57.
The Cuban Secretary of State to the French Minister to Cuba.1
Habana, August 18, 1913.
[Translation by the Cuban Legation, left by the Cuban Minister at the Department of State.]
Mr. Minister: Pursuant to what was stated in my note of the 5th of June last2, I hasten to inform your excellency of which is the view of the President of the Republic and its Government, in the matter of the claims of some English, German and French citizens for acts that took place during the war for the independence of Cuba, and of the best plan to be followed in order to reach a final decision of the questions arising out of those claims, which will be the means of strengthening, still more than they are at present, the good relations which happily exist between the Cuban Republic and the three claiming Powers ever since the former came into national life on the 20th of May, 1902, and its Constitutional Government was recognized, for the first time, by the three Powers.
Neither the first Government of the Republic of Cuba which was presided over by Señor Estrada Palma—to which in 1903 it was made known that there were French, English and German nationals who believed themselves entitled to file specific pecuniary claims arising out of the war of independence against Spain, notwithstanding that [Page 349] their respective Governments did never grant belligerent rights to the Revolutionary Government, and for which reason those nationals could never be entitled to consideration as neutrals in that struggle, not only because they always maintained their allegiance to the Government of Spain and paid taxes to it, helping said Government to defray the expenses of the war, but also because Spain had always facilities of all kinds and of which the revolutionists were deprived of, to obtain loans, arms and ammunition and vessels in England, Germany and France, which Spain made use of in order to wage a war of extermination against the Cuban patriots—neither that first Government ever requested that the claims should be presented in due form, so as to be able to examine them, and find out in what they consisted, and separating and classifying them, neither did the Government of President Gomez ask to have same duly filed, for it confined itself only to denying the soundness of the majority of the said claims, until finally, and in view of the insistence of the claiming Powers that some solution be forthcoming, for which end they proposed in their joint notes of July 3rd, 1911, the submission of the claims to an international arbitration, it accepted in principle said arbitration in a note of the Secretary of State, Mr. Sanguily, of July 10th, 1911, and addressed to the Diplomatic Representatives of the three Powers, proposing the acceptance, as the sole arbitrator, of the President of the United States of America, Mr. Taft, and reserving to specify the matter which should be the subject of the arbitration.
The non-acceptance of that sole arbitrator, by the three Powers, and their proposal of the 9th of August, 1911, that in view of the international importance of the decision, the arbitration should be entrusted to a commission in which the three Powers should be represented, caused my learned and honorable predecessor to suggest, on the 12th of said month and year, to the Representatives of the Powers that inasmuch as they had declined to accept the proposition of having recourse to a sole arbitrator, the Government of the Republic might judge itself free from the obligations that they wanted to impose on him, and the ground of which might have been the acceptance in principle of the arbitration proposition that was made to them, but as the Powers on the 7th of November 1911, again insisted that the question be submitted to an international arbitration, inasmuch as the Government of Cuba, when it proposed the arbitrator of a head of a nation had, in their judgment bound itself to adopt the principle of arbitration, although not to any specific procedure therefor, he stated on the 28th of February 1912 that the Government did not at that time reject in principle, as it had not rejected before, the recourse to arbitration, for on the contrary it reiterated its adhesion to that principle of deciding through that method the international conflicts of all of which there was unequivocal evidence in the Convention of The Hague of the 18th of October, 1907, which was signed by the Delegates and approved by the Senate on the 10th of March 1909, and in the other Convention of Rio de Janeiro of the 13th of August 1906, which by reason of the recess of the Senate of the Republic was approved and ratified by the Provisional Governor, on the 17th of March 1908, who hastened to declare in the name of the Government of the Republic of Cuba that [Page 350] this Republic was always disposed to pay what it may legitimately be indebted for and should be proved beyond any sort of doubt.
The Diplomatic Representatives of the three claiming Powers addressed again a new joint note to the Department of State on the 20th of December 1912, setting forth that they had carefully examined the reply of the Cuban Government dated the 28th of February 1912, and that inasmuch as the Government had in principle accepted the arbitration for the satisfaction of the indemnities claimed by the subjects of the three countries, they had the honor to renew their propositions on the 7th of November 1911 and, consequently, they submitted to the acceptance of the Cuban Government a plan for the arbitration which was annexed to their note, and on the 30th of that same month of December, the Secretary of State, Mr. Sanguily, informed the Representatives of the three Powers that the Government did not agree with the terms of the agreement on arbitration, and that it would draw, at the proper time, its objections and counter propositions, but that it would appeal to Congress for the request of the necessary authority to agree on the arbitration in regard to the claims for damages, notwithstanding and by reason of the circumstance, that these claims were not covered by the text of the First Transitory Provision of the Constitution which pointed out specifically which obligations and debts incurred into by the Revolution were accepted by the Republic and said Constitution had instituted, and that in case that Congress should authorize the execution of the agreement that might be stipulated, it should be submitted to the approval of the Senate—the Secretary of State reproducing in the memorandum in which he set forth the above, the assertion which he had already made on other occasions that it would always be necessary to appeal to Congress for the case included in the above mentioned Transitory Provision of the Constitution, and for the indispensable appropriation that the arbitration trial and its incidentals would demand—the President of the Republic having shortly afterwards sent a message to Congress describing the condition in which the matter stood, and asking authorization to stipulate, with the approval of the Senate, the agreement of arbitration that it might be necessary to arrange with the three powers.
The decision, which in its last sessions and before it adjourned in the last month of June was adopted in the Congress of the Republic in the direction of not giving its approval to the plan for submitting to a tribunal of arbitration the claims filed by the Governments of England, Germany and France, has left an open field for the President of Cuba to initiate again the negotiations in order to reach a decision which may be satisfactory, by its being founded on justice with or without arbitration, or with an arbitration which may have as a subject matter those points only which should be considered as essential in the matter, and which arbitration should at the proper date be set forth in an agreement which must be submitted to the approval of the Senate of the Republic.
It is a clear fact that the Government, moved as it is by its wish to reach a final decision, cannot but need to that end a full information of all the dates and antecedents of the claims referred to, especially in what it refers to the nationality of the claimants their property [Page 351] titles, and the exact and specific, circumstance about the date of the fact on which the indemnity applied for rests, about the place in which they took place, and the verification of the exact amount claimed.
It is not possible, indeed, to advance a step forward in this matter of the claims, without knowing before their essential ground of facts in regard to the nationality and the other above mentioned circumstances because if those elements of nationality, of the title of such property as the claimants alleged to belong to them and the setting forth of the facts which, as the claimants allege, justify their claims and its amounts were lacking, it would not be possible to deal with the subject since it would not even have the foundation of fact set forth by the claimants themselves as the grounds for their allegations.
Up to the present time there are on the files of the State Department no other records in regard to these claims than the concise filed in regard to same, and containing the name of the claimant, the place in which it is alleged that the facts took place and the amount in which the claimant appraises his claim, with some other circumstances which do not complete the amount of information that the Cuban Government needs in order to consider, with full knowledge of causes, the problem that is in course of decision.
Accordingly the Cuban Government believes that it is indispensable for the proper consideration of the matter, that the claims should be filed, together with the documents which should prove the nationality of the claimants, and with those that may also contain the title to the estate of property under discussion with a sworn statement of the fact, on which the claim may rest, and of the evidence thereof, as also of such principles of international law as in the judgment of the claimant may justify the claims, notwithstanding that it is positive that in the majority of the cases the facts have occurred in the course of war, and as a necessary military operation or for necessities of the campaign at the time in which the present Republic of Cuba had not come into existence and in regard to persons who were not neutrals, inasmuch as they lived officially under the flag of Spain when the latter was the sovereign of Cuba, and the respective Governments of the claimants had not granted belligerent rights to the revolutionary Government.
I feel great satisfaction in communicating to your excellency that, with the data and antecedents at hand, the Cuban Government, within the natural and necessary and usual delay in those cases, be able to consider the matter so as to finally decide as to its attitude on those claims, and decide whether, if in fact, the Government of Cuba would be or not justified in accepting in principle and subjecting to evidence all such as may be proper, the propriety of claims of that kind, or in case it should not accept that propriety, whether it would be proper to submit the question of the responsibility of the Republic to an arbitration in the form and terms which might be agreed upon, and which would differ a great deal from the agreement proposed by the powers and with the understanding that if Cuba should acknowledge as liability in that respect or it should be declared by a Tribunal of Arbitration, then and only then would it undertake to decide specifically [Page 352] each one of the claims in accordance with the evidence that may be produced, and with the principles of International Law on those matters.
Nothing, however, of what is stated in the foregoing paragraph would be possible if the above mentioned data and documents of nationality, titles to property and facts causing the claims and its amount are not presented to the Government, for this is the basis which is under discussion and without that ground, even its consideration would not be possible, for it would be regretful to have to employ time and perhaps to have to defray the expenses of an arbitration on claims lacking even the elements of nationality, titles and the other before mentioned circumstances.
On the other hand, the filing of all data heretofore set forth will permit the Cuban Government to examine the claims and duly classify them in order that those governed by the First Transitory Provision of the Constitution of the Republic may be referred to Congress, pursuant to that legal rule, so as for its consideration on evidence that may be required and produced, and the voting of the appropriation necessary for its payment and in regard to the other claims, to decide in view of the merits of each one of them whether the Government of the Republic may go forward to consider them on the ground of their being no doubt as to the allege nationality and property title, and because the damage which it is alleged to have been caused should be proved, with the purpose of specifying the reasons on which the Government may ground its refusal to pay in opposition to the assertion of the claimants, as sustained by his Government, all of this bringing about the divergence of views, which may justify the recourse to international arbitration as a means of deciding on said divergence, the Government of Cuba presided over by General. Menocal showing thereby that it maintains, because it was thus expressed by the preceding Government, its adhesion to the principle of arbitration.
Although it may seem unnecessary, the Government of Cuba wishes that the Government of your excellency should take notice of the declaration which it now makes to the effect that the claims that are to be examined are those contained in the statements filed by the Representatives of the three Powers up to the time that Congress rejected the bill before mentioned, and that it could not admit or receive new claims arising out of acts occurred prior to the Independence of Cuba for in the course of the years elapsed since the advent of the Cuban Republic to international life, on the 20th of May 1902, there has been sufficient time to file the claims, and it is not possible that the Cuban State should be subject to an indefinite period of time to the troubles and inconveniences which will be brought about to its credit and tranquillity by new claims of the nature of such that are under the files of the Department of State, and which will be the ones to be examined at present on being filed in due form, that is to say, as it has been set forth in the foregoing paragraph of this Note.
I avail [etc.]
Note.—There is no further correspondence during the remainder of the year.