Papers Relating to the Foreign Relations of the United States, 1923, Volume II

211f.19/9

The Secretary of State to the Panaman Minister ( Alfaro )

Washington , October 13, 1923 .

Sir: I have the honor to acknowledge the receipt of your note of September 6, 1923,⁶² in further relation to the request made upon the Government of Panama by the Government of Chile, for the extradition of two fugitives from the justice of Chile who embarked for the port of Cristobal, Canal Zone, May 23. You continue your argument that the words “without said zone” as first contained in Article XVI of the treaty of November 18, 1903 refer to the world in general and were used for the purpose of facilitating the extradition of fugitives from the justice of foreign governments that the Government of Panama might grant.

It is true, as you state, that this article contemplates an agreement between the two governments for the delivery to Panama of persons who shall have offended without the Canal Zone and the delivery to the authorities of the United States of persons who shall have offended within the zone. However, this proposed agreement further contemplates, with respect to offenders within the zone, their “pursuit, capture, imprisonment, detention and delivery without said zone”. In other words, assuming that your construction of the provisions of this article is correct, an agreement is contemplated whereby Panama shall pursue, capture, imprison, and detain wheresoever they may be throughout the world, persons charged with the commission of offenses within the Canal Zone. To state such a proposition would seem to be a sufficient answer to it.

Referring to your statement on this point, it may be said that there is, of course, no thought of “converting the Canal Zone into an independent colony capable of maintaining international relations with the outside world”. Foreign governments seeking the extradition of fugitives from justice who have been found within the Canal Zone will necessarily apply to the Government of the United States for the extradition of such fugitives and their surrender will be granted, if at all, by the United States. Furthermore, the arrangement which has been made with Panama pursuant to the provisions of Article XVI of the treaty of 1903 was so made on the part of the United States by the President acting through the Governor of the Canal Zone and by virtue of authority invested in him by the Congress, and the executive order providing for such an arrangement was formally embodied in the laws of the United States, together with other executive orders relating to the Canal Zone by the Panama Canal Act of 1912.

With respect to your statement that the extradition treaties of the United States are not applicable to the Canal Zone “because the very text of Article 12 of the Panama Canal Act forbids it”, I beg to say that this Article provides specifically that all treaties relating to extradition in force in the United States “to the extent that they may not be in conflict with or superseded by any special treaty entered into between the United States and the Republic of Panama with respect to the Canal Zone … shall extend to and be considered in force in the Canal Zone”.

You further say that if the zone were an integral part of the territory of the United States there would have been no necessity for a special arrangement governing the extradition of fugitives between the zone and the Republic of Panama “but the treaty of extradition concluded by Panama and the United States … would have obtained”. I beg to remind you, in this connection, that the arrangement contemplated by Article XVI of the treaty of 1903 and consummated in 1906 relates to the extradition of persons charged with the commission of “crimes, felonies or misdemeanors”. The Extradition Treaty of 1904⁶³ does not extend to persons charged with misdemeanors, and in view of the geographical situation of the Canal Zone with respect to the Republic of Panama and vice versa it is, of course, highly desirable that persons charged with the commission of misdemeanors should not be afforded an opportunity of seeking the easy refuge which would be theirs, were not an arrangement in effect for their delivery to the jurisdiction where their offenses were committed. Moreover, that geographical situation renders it desirable that delivery of fugitives from justice should be consummated without compliance with all of the formalities which are contemplated by the Extradition Treaty of 1904 and it was undoubtedly with these considerations in mind that the two governments provided in the treaty of 1903 for the making of a special agreement for extradition to and from the Canal Zone and the Republic of Panama.

You refer to the supposed identity of the provisions as to an extradition arrangement contained in Article XVI of the Treaty of 1903 between the United States and Panama and in Article XIII of the Hay-Herrán Treaty⁶⁴ signed between the United States and Colombia, and you state that in view of this and since the Hay-Herran Treaty did not grant to the United States the jurisdictional powers in the Canal Zone granted by the Treaty of 1903 between the United States and Panama, but established a mixed jurisdiction with respect to criminal cases “it is obvious that the question [of extradition] was left to the political sovereignty of Panama in the same way as it had been previously left to the political sovereignty of Colombia.”

Inasmuch as the proposed Hay-Herrán Treaty never came into force, a discussion of its provisions is purely academic. However, it may be pointed out that these respective provisions relative to extradition to which you refer are not identical as you suggest. The proposed Hay-Herrán Treaty provided for the making of an agreement generally, for “the pursuit, capture, imprisonment, detention and delivery within said zone of persons charged with the commitment of crimes, felonies or misdemeanors without said zone” and for the “pursuit, capture, imprisonment, detention and delivery without said zone of persons charged with the commitment of crimes, felonies, and misdemeanors within said zone.” On the other hand, the treaty between the United States and Panama contains the additional and limiting provisions that “delivery” within the zone shall be made “to the authorities of the Republic of Panama” and without the zone “to the authorities of the United States.”

However, I am of the opinion that even without these additional and limiting provisions, the words “without said zone”, contained in the quoted provisions of Article XIII of the proposed Hay-Herrán Treaty, must be taken to refer to the territory of the Republic of Colombia outside of the Canal Zone, and in this connection I would point out that it would be most extraordinary for the United States and Colombia to agree to make an arrangement regarding the pursuit, capture, detention, imprisonment and delivery throughout the world generally of fugitive criminals.

I have noted the proposal of your Government that in the event that it is found impossible to reach an agreement as to the interpretation of Article XVI of the Canal treaty in the matter under discussion, the difference of interpretation be referred to arbitration. This Government is generally not indisposed to refer to arbitration legal questions arising from divergent interpretations of a treaty to which it is a party. In the present case, however, the question which you propose to arbitrate is one attacking the exercise of sovereign rights by the United States explicitly granted under Article III of the Treaty of 1903 with Panama. It would be quite impossible for the United States to consent to arbitrate a question of that sort.

Accept [etc.]

Charles E. Hughes

62. Not printed.
63. Foreign Relations, 1905, p. 713.
64. See Diplomatic History of the Panama Canal (S. Doc. 474, 63d Cong., 2d sess.), p. 277.