Special attention is invited to the final statement of Mr. Pani in
relation to Article 2 of the proposed Treaty of Amity and Commerce,
namely, “but I refrain from dwelling upon these again, since you have
already informed me that the Government of the United States will not
insist upon this point.” Early this morning, I arranged for an interview
with Mr. Pani and pointed out to him that his statement, as above
quoted, was entirely erroneous. I stated that not only had I never made
a statement to that effect but also that I had no reason to believe that
my Government would not insist upon the point in question. Mr. Pani
stated that he had gathered the impression that the Department would not
insist on this Article. He said that the entire text in its present form
had already been telegraphed to Washington and suggested that I write
him in regard to the error and that the correction could be made in that
manner. This I have done, and a copy of my informal note of to-day in
regard to the correction is enclosed herewith.5 A copy of Mr. Pani’s correction
will be promptly forwarded to the Department.5
The Mexican Secretary of State for Foreign
Affairs (Pani) to the American
Chargé (Summerlin)
Mexico, February 9,
1922.
My Dear Mr. Summerlin: With reference to
your informal communication of the 6th instant, relative to the
conventions on claims which our Governments propose to make and the
Treaty of Amity
[Page 642]
and
Commerce submitted by the Government of the United States of America
to the Mexican Government through the medium of yourself, I take
pleasure in replying to you, likewise informally, as follows:
The Mexican Government, as I have expressed to you on other
occasions, is disposed to sign immediately the conventions on claims
the drafts of which it submitted to the Government of the United
States as a result of the general invitation which this Government
extended to the governments of all countries whose nationals have
claims pending against Mexico. With the signing of convention number
one, upon the Mexican Government’s being implicitly recognized and
diplomatic relations being resumed, concurrently all the
difficulties emanating from the present revolution would be
eliminated. With the signing of convention number two the
difficulties of the past which still persist and which might impede
the friendly rapprochement of the two peoples
would disappear. And thus the field being cleared of obstacles, past
and present, the Government of Mexico would be enabled to enter into
a discussion of the Treaty of Amity and Commerce, if such a treaty
should serve as a factor in strengthening the future bonds between
the two countries. But, as the Department of State, through you,
observes:
- (1)
- The Government of the United States is not disposed to
sign the conventions in reference until it shall have the
assurance that the rights acquired by American citizens
prior to the governance of the Constitution of 1917 are
adequately safeguarded; and
- (2)
- Article I of the proposed Treaty of Amity and Commerce
submitted to General Obregón on May 27, 1921, was formulated
solely with this object.
I have to say to you regarding the first point that the desire of the
Government of the United States, quite explicable doubtless, with
regard to obtaining assurances that the rights acquired by American
citizens prior to the governance of the Constitution of 1917 shall
be properly safeguarded, is, in the judgment of the Government of
Mexico, altogether satisfied in a practical and concrete manner,
despite the absence of agreements or treaties, by the mere effects
of the policy adopted since the present Government of Mexico was
inaugurated. If, as this Government understands, the aims of the
White House are, in essence, to obtain, in Mexico, a state of
affairs favorable, legitimate, and equitable, to the development of
American interests established here, or which may be, and thereby
obtain for them the fullest measure of security, then the policy of
guarantees, respect, and encouragement for all foreign interests,
not solely for American interests, put in practice voluntarily and
effectively by this Government from the time of its establishment,
meets the proposals
[Page 643]
previously made, and is sufficient to inspire confidence regarding
the present Government of Mexico and the intentions of its
people.
Regarding the second point: The spirit which inspires article I of
the proposed Treaty of Amity and Commerce has not passed unnoted by
the President of the Republic, nor by this Chancellery. But from the
beginning the President judged that the said article was in reality
unnecessary, for reasons expressed in the preceding paragraph, just
as he now believes that the article in question must be deemed even
more unnecessary by a mere comparison of the present state of the
Mexican Republic—from the time when the results of the policy
delineated above, which policy has been continued to this date
without interruption, have begun to be visible—with the state of
affairs which prevailed previously, and if one likewise takes into
consideration the importance given to the attitude of this
Government with respect to the interests of foreigners by the
circumstance that this is not merely a simple promise, but a pledge
sanctioned by incontrovertible acts. Moreover, the President judged
the wording of said article inacceptable because it contained
stipulations which in some respects are in direct conflict with the
constitutional precepts of Mexico and in others in indirect
conflict, inasmuch as, at least if the Executive accepted them, it
would cause him to invade the sphere of action of the legislative
and judicial powers and disrupt the entire system of government as
established by the Constitution.
Notwithstanding the foregoing, and since such are the desires of the
Department of State, I shall itemize forthwith in an entirely
personal way the principal objections which prevent the Government
of Mexico from accepting some of the stipulations contained in the
proposed Treaty of Amity and Commerce.
The first paragraph of article I says that “The citizens of each of
the High Contracting Parties shall have liberty to … own or lease
and occupy houses, manufactories, warehouses and shops … upon the
same terms as native citizens.” Now, section I of article 27 of the
Constitution provides that only Mexicans by birth or naturalization
have the right to acquire ownership (dominio)
in lands, waters and their appurtenances in the Republic of Mexico.
Therefore, the equality of treatment which article I of the proposed
treaty would establish for Americans cannot be conceded. It is true
that the same Constitution, in section I of article 27, before
mentioned, says that the State may concede the right to acquire
immovable property to foreigners, but this it does with certain
requirements which are not required of Mexicans.
It is not too much to say that the Government of the Republic is
animated by a really friendly spirit toward all foreigners, and to
this date a case has not arisen where a single one of them has
[Page 644]
encountered difficulties
in the Department of Foreign Relations in fulfilling the necessary
requirements for acquiring landed property, provided this property
be not located in the prohibited zone (a zone of 100 kilometers
along the frontiers and of 50 kilometers along the coast).
Furthermore, as there were many foreigners in the country who
possessed, prior to the promulgation of the Constitution of 1917,
landed properties in the prohibited zones, the Executive has issued
a decree, through the Department of Agriculture and Fomento, by
virtue whereof the status quo of these
properties is maintained, as long as the legislative power does not
enact the law regulating the application of the principles of
constitutional article 27.
Paragraph 6 [5] of article I provides that:
“Property rights of whatever nature, heretofore or hereafter
acquired by citizens of either country within the territories of the
other, shall under no circumstances be subjected to confiscation,
under constitutional provisions, legislation or Executive decrees or
otherwise.” Generally speaking, this stipulation does no more than
formulate the universal principle of respect for acquired rights,
wherewith the Government of Mexico could do nothing else than be in
accord; but it contains a limitation which could not be included in
an international treaty, by providing that confiscation—even if the
Constitution decreed it—may not be carried into effect. This
Government believes that such a constitution could not be adopted,
but even in the event that such a constitution should be adopted,
since it would be the supreme law of the nation, it would have to be
respected above treaties, inasmuch as the latter could not have
greater force than the Constitution itself, and the Government of
the United States knows this perfectly, for it has had to decide
several cases of treaties at variance with the Constitution, and it
has always decided that the Constitution was supreme. This statement
is not based upon our own theories, but upon those of international
authorities of many countries, among which might be cited the
American, Moore, held to be an authority on the subject throughout
the civilized world. I attach, accordingly, a supplement8 which contains pertinent
quotations taken from various authors and incorporated by the
aforesaid Moore in his notable work International
Law Digest.
Paragraph 7 [6] of article I of the treaty
seeks to include a consequence of the principle established above
and, in this sense and unalterably, stipulates that neither the
Constitution of 1917 nor the decree of January 6, 1915, to which the
Constitution refers, shall have retroactive effect, and that,
therefore, all rights which have been acquired by Americans prior to
the governance of the Constitution of 1917 shall be respected,
especially those which have been acquired
[Page 645]
in the subsoil in accordance with the Mining
Law of 1884. Upon this question of the nonretroactive effect of
article 27, the President of the Republic has already stated his
opinion in a clear manner that all rights acquired legitimately must
be respected, and he has supported this opinion by repeated acts of
his Government. But even though the legislative power has already
eloquently manifested the same opinion, until the organic law of
constitutional article 27 shall be promulgated, the signature of the
President of the Republic placed on an international treaty which
would fix interpretations of said article would be equivalent to an
undue invasion of the exclusive sphere of the legislative power,
since, although a constitutional text establishes a principle, its
particular effects may only be determined by the organic law which
regulates it, and this has still to be enacted by the Congress of
the Union.
In this respect, that is, as to the inexpediency of signing an
international treaty which should include the clause under
discussion, the attitude of the Executive Power of Mexico cannot be
modified, and also it cannot be modified because the Supreme Court
of Justice of the Nation has already rendered its decision which
accepts the principle of nonretroactivity of article 27, whence it
is to be expected that all the cases pending before this same
tribunal will be decided according to the same principle.
Article 2 of the projected treaty refers to the religious liberty of
the citizens of each of the contracting parties in the territory of
the other, and it is desired that citizens of the United States, in
Mexico, shall have the same rights as citizens of Mexico, in the
United States. On another occasion I presented to you the legal
reasons which preclude the Mexican Government from accepting this
stipulation, but I refrain from dwelling upon these again, since you
have already informed me that the Government of the United States
will not insist upon this point.
The foregoing are the principal objections of legal character which
the Government of Mexico would raise to signing the proposed treaty;
and regarding the contents of the clauses to which these objections
refer, Mexico would desire that another arrangement be made more
compatible with the laws. All the other articles of the treaty in
question could be accepted with slight variations, and the omission
of those which refer to points embraced in the projects for the
Mixed Claims Commissions, which are already in the possession of the
American Chancellery.
I sincerely hope that the Department of State will appreciate the
force of these observations in the same cordial spirit in which they
are made, as well as the natural just scruples of the President of
the Republic for the dignity of the country, in obtaining
recognition for his Government on the basis of previous pledges; and
[Page 646]
that, in view of all
this, the American Government will accept these observations and
will respect his scruples. This being the case, the signing of
convention number 1, to which I made reference at the beginning of
this note, would signify implicitly the recognition of the
Government of Mexico, and, diplomatic relations between the two
Governments being thus resumed, the signing of convention number 2
could be proceeded with, and the designation of the respective
Ambassadors, through the medium of whom the details of the Treaty of
Amity and Commerce which the American Chancellery desires would be
studied and the treaty definitely formulated.
I remain [etc.]