Papers Relating to the Foreign Relations of the United States, 1925, Volume I

723.2515/1416

The Peruvian Ambassador (Velarde) to the Secretary of State

[Translation]

Washington, April 2, 1925.

Excellency: I have the honor to deliver to Your Excellency with the request that you forward it to its high destination the enclosed memorial which the Peruvian Commission of Defense sends in the name of the Government of Peru on the occasion of the Award made by the Arbitrator concerning the Provinces of Tacna and Arica to the Honorable Arbitrator, His Excellency, the President of the United States of America.

In making this request I renew [etc.]

Hernan Velarde

[Enclosure]

The Peruvian Commission of Defense to President Coolidge

Washington, April 2, 1925.

To His Excellency, the President of The United States of America:

The Peruvian Embassy having informed the Peruvian Defense Commission of your decision in the Tacna and Arica case, and the same having been communicated to the Government of Peru, I am directed to express to your Excellency how highly the Government of Peru appreciates the courtesy of the President of the United States in having pronounced his finding upon the question which was submitted to him for arbitration by the protocol and supplementary act signed at Washington on the 20th of July, 1922. I am furthermore directed to present to your Excellency the following as the views of the Government of Peru.

Before signifying its consent to participation in the plebiscite which is ordered by the said Opinion and Award, it cannot neglect to set forth certain considerations relative to the very essence of the Opinion and Award and to present definite requests tending to the best and most faithful execution of the plebiscite.

First of all, the Government thinks that the Honorable Arbitrator has been led into a substantial error, from which the decision in favor of the plebiscite at this time is derived, in translating the words, which, in the text of the Treaty, say literally: “expirado este plazo”, which in the English language is equivalent to “At the expiration of this time limit”, or “this time limit having expired”, by the words “after the expiration of”, which, translated into Spanish, mean “después de expirado”; the phrase given in the authentic text thus peremptorily fixes a time limit of ten years for possession by Chile, and fixes the time for the realization of the plebiscite. Had the Honorable Arbitrator obtained a correct and unimpeachable translation of the Spanish words used in the Treaty of Ancon, he would necessarily have arrived at the logical conclusion that the plebiscite should have taken place in 1894; and he could not have reached the unacceptable conclusion, which deeply wounds the Peruvian national pride, that Chile had the right to hold our provinces after the time limit expressly stipulated in the Treaty of Ancon, thus leaving the indefinite prolongation of the said period at the arbitrary will of one of the parties.

It is therefore necessary to declare respectfully, before the Honorable Arbitrator, that Peru cannot accept the declaration as to the legitimacy of the Chilean sovereignty over the territories of Tacna and Arica, or the legitimacy of their occupation during the years subsequent to 1894. My Government cannot understand the argument contained in the Opinion and Award to the effect that since no provision was made in the third clause for the nullification of the obligations at the expiration of the time limit, such nullification could not have taken place. The nullification, by its nature, need not be stipulated by the parties, since it is automatically effected when certain circumstances are brought about, without the necessity for a previous agreement; and it is a general principle in law that one reason for nullifying a contract is failure to fulfil the obligations within the time stipulated.

Moreover, the time stipulated was ten years, as is declared specifically and unequivocally by the text of Article 3 of the Treaty of Ancon, when it says, “the territory of the provinces … shall continue in the possession of Chile and subject to Chilean laws and authority for a period of ten years, from the date of the ratification of the present Treaty of Peace”. As the ratification was effected on March 28, 1884, the possession by Chile and the subjection of the territory to the legislation and authorities of that country legally ended on March 28, 1894. The failure to effect the plebiscite upon the expiration of that day, that is, immediately after March 28, 1894, constituted a failure to comply with the third clause and consequently made it void.

While it is true that in the Appendix to the Case of Peru the Treaty was presented in the form given in Foreign Relations of the United States⁴³ where it is roughly translated “after the expiration of”, the obvious meaning of “after” is “upon”, or “at”, or “immediately after” the expiration of the ten year time limit, and not “at any time after”, as the Honorable Arbitrator evidently assumed. In the Case of Peru, on pages 22 and 155, and in the Countercase of Peru, on pages 7, 26, 50 and 71, the correct translation of “expirado este plazo un plebiscito decidirá” was given, and on page 26 of the Countercase of Peru it is clearly shown that these Spanish words can only be correctly translated into English as “at the expiration of that term a plebiscite will decide.”

While the Opinion and Award mentions the rather inaccurate translation in the Appendix to the Case of Peru, it does not mention the fact that twice, in the Case of Peru, and four times in the Countercase of Peru, the accurate translation was made entirely clear, and urged earnestly as the claim of Peru.

The importance of this error of translation is shown on page 7 of the Opinion and Award, where the following language is used:

“The plebiscite was to be had ‘after the expiration of that term,’ that is, after the ten years, but no limit was defined.”

In point of fact, correctly translated, there was a specific limit of time, and that limit was “at the expiration of that term,” which was limited, by the Treaty, to ten years from the date of ratification of the Treaty. The Treaty was ratified March 28, 1884. The ten years therefore expired on March 28, 1894.

The word “plazo” is defined in Spanish dictionaries to mean “time limit”, so that the language of the Treaty, correctly translated, expressly fixes a time limit for the holding of the plebiscite.

The exact translation of the words would be “expirado”, “having expired”, “este”, “this”, “plazo”, “time limit”, which is the equivalent of “at the expiration of that term”, and clearly places a time limit upon Chilean possession of the provinces, and upon the holding of the plebiscite.

The Spanish word “después” means “after”, in the sense adopted by the Honorable Arbitrator. No such word is found in the Treaty, and no other word that could be properly interpreted to mean “after” in such a sense.

To insert the word “después”—“after”—in the second paragraph of Article 3 of the Treaty of Ancon is to change entirely its meaning and add an express provision not therein contained.

The consequence of this error of translation runs through the entire Opinion and Award. It is made the basis of excusing Chile for failing to surrender possession of Tacna and Arica at the time named in the Treaty, when the right of Chilean possession ceased, and it is used to relieve Chile from responsibility for all the acts committed under the claim of sovereignty illegally committed by Chile since March 28, 1894, inasmuch as possession of the provinces should, under the terms of the Treaty, have been yielded to Peru at that time.

It must also be noted that the Honorable Arbitrator seems to have failed to give weight to the conclusive proofs offered by Peru relative to the expulsions, spoliation of property, acts of terrorism and fraudulent colonization of Chileans on lands of the Peruvians, facts which are so notorious to the world that the Honorable Arbitrator might well have taken judicial notice thereof, and which are sufficient, if they are duly examined and appreciated, to leave no doubt as to the error of submitting this controversy to solution through a plebiscite.

The manner with which the Opinion and Award has seemed to treat these acts of vandalism, outrage, and oppression has led the Chileans to renew their persecutions against the Peruvians of Tacna and Arica even since the Award was published, as if they were reassured that they could continue to commit such crimes with impunity. Indeed, through our Embassy, we have informed the Honorable Arbitrator of the recent criminal acts, among which are the following:

A Peruvian merchant, Antonio Mollo, with his family, on the 11th of March was violently driven out from Putre. In Tarata the Peruvian homes of Musso, Bulis and Bravo were assaulted, and the last named was killed. The schools of Tacna have been closed. Martines Birne’s house on the Chilean side of the River Sama in Tacna was also assaulted, after the Award was handed down, by three Chilean carabineers and the master of the house and two other Peruvians, Roman y Angel Yanes, and all the occupants of the house were tied and beaten. Threats and violence were committed against defenseless Peruvian inhabitants of Tarata, the women being outraged by Chilean carabineers. The Peruvians Felix Nalvarte, Timoteo Rodriguez, Vicente Mamani, Pedro Lamrec and Lorenzo Flores having escaped from the persecutions of Chilean authorities in Arica, reached Locumba and advise that two hundred Peruvians resident in Arica were shipped from that port to the south of Chile to avoid their vote in the plebiscite. New detachments of Chilean carabineers have been established on the Ticalaco and Tarata rivers cutting off communications between Locumba and Tarata and from there are shooting in upon the defenseless inhabitants of Locumba. Chilean forces are terrorizing the Peruvian inhabitants of the territories involved in the plebiscite with the purpose of forcing them to vote in the plebiscite in favor of Chile, and when they resist they are persecuted and expelled from the territory. Steps are being now taken by Chilean officials to compel Peruvian citizens by force to sign documents of allegiance in which they request that they continue under Chilean sovereignty. Carlos Becerra, Manuel Corvacho, Felix Baluarte, Saturnino Florez, Miguel Corvacho, Nataniel Corvacho, Luciano Lira, Benjamin Navarro, Tomas Chambo y Carlos Otoya have arrived at Locumba, fugitives from Chilean persecutions in Arica, saying that their families have been cruelly outraged. They were forced to flee, making the trip on foot, to avoid being embarked for the South of Chile.

This picture of actual conditions which has been sketched shows that there has truly been a violation of the essential conditions for the plebiscite, which would justify Peru in refusing to accept the decision; but, as it is the invariable policy of our country to comply with international responsibilities, we will not fail to carry out the Award rendered, notwithstanding the errors which have been pointed out, and in spite of the fact that they so deeply wound the sentiments of justice which actuate Peru in insisting that Chile by her refusal to hold the plebiscite when it should have been held, in 1894, brought about the nullification of the third clause of the Treaty of Ancon. That clause was unfulfilled by wish of Chile alone, which country has not had and could not show the slightest legitimate excuse for its recalcitrant attitude.

The guarantees which we are about to enumerate specifically, if granted and declared by the Honorable Arbitrator—guarantees which are unanimously required by our national opinion supporting the just desires of the Peruvian population that has been expelled from our provinces, after suffering countless outrages—would respond to the principles of elementary justice. Without such guarantees, the rights of our voters would be destroyed; intimidated by Chilean acts of violence, they would hesitate to return to the land in which they were born. Even today those that have remained still continue to be subjected to the cruelty of oppressors who, by the terms of the Opinion and Award, consider themselves amply justified in continuing the abuses and violence which they have endured for more than thirty years.

The guarantees which the Government of Peru asks of the Honorable Arbitrator, as a condition for assuring the fairness of the voting, are the following:

• First: the evacuation of the territories of Tacna and Arica by the Chilean civil authorities, army, gendarmerie and police force, who should be replaced by American authorities and forces not only during the plebiscite, but immediately, in order to put an end to the hostilities which are still being carried on against Peruvian inhabitants who still remain in these territories, and to make it possible for the natives who are outside of the territories to return freely, without the fear of becoming the victims of a repetition of the outrages and crimes which have been committed and continue to be committed even after the arbitrator’s decision, since it is absolutely necessary for the inhabitants of the said territories to remain free from all moral and material pressure which tends to curtail their personal liberty and their freedom to vote, as is universally established by the doctrines and precedents concerning plebiscites.
• Second: that the installation and operation of the Plebiscite Commission be hastened, in order that its high, impartial authority may at once begin to govern the provinces of Tacna and Arica, avoid the continuation of acts of violence, expulsion and internment in the southern provinces of Chile of the Peruvian inhabitants who should take part in the plebiscite, and permit Peruvians and Chileans, on an equal footing, to prepare directly in the disputed territories the conditions for their participation in the plebiscite.
• Third: that the time limit for the taking of the plebiscite vote commence to be reckoned from the date of the civil and military evacuation of the provinces of Tacna and Arica, a procedure which is in accordance with the known precedents and very particularly with that of the plebiscite of Upper Silesia, in which a representative of the United States actually intervened (second and fourth annexes to Article 88 of the Versailles Treaty).⁴⁴
• Fourth: that it be declared that Peruvians who have resided in Tacna and Arica for five years and who have been expelled by the Chilean authorities, have not lost the character of residents. The same period is fixed in the Award in treating of residents with a right to vote, and the right to make claims is recognized in similar cases, especially in the plebiscite of Schleswig (Versailles Treaty) and in that of Upper Silesia (fourth annex to Article 88 of the Treaty of Versailles).
• Fifth: that the Honorable Arbitrator arrange for the residents to be required to prove the character of the occupation or industry in which they are engaged and from which they gain their livelihood, since this would be the only method of avoiding fraud, which the Government of Peru knows has been perpetrated systematically for several years and continues to be perpetrated at present in Tacna and Arica, in order to give the appearance of the existence of a large Chilean resident population. It is obvious that this requirement should be clearly established because it is the one most likely to assure the honesty of the voting.
• Sixth: that it be taken into consideration with reference to the provisions contained in that part of the Award relative to the qualification of voters, by which the right to vote is taken from a person who has been imprisoned by virtue of a judicial sentence for common crimes, that trials for such alleged offenses have for years been instituted by the Chilean authorities, a party interested in the present controversy, on ostensible, simulated and fraudulent grounds, for the very purpose of putting such Peruvians out of the way and incapacitating them from voting in any eventual plebiscite.

These requests do not involve any substantial modification of the Opinion and Award. They concern only such measures as are absolutely necessary for the faithful execution of the plebiscite, which it is indispensable to have declared expressly as the only effective means of guaranteeing the liberty and honesty of the voting in the plebiscite, more particularly in the present case, above all others, because it has reference to a country which for the last thirty years has made our countrymen the victims of the most reprehensible violence. In making these requests, my Government accepts the provisions contained in the second part of the second Article of the protocol of arbitration, which authorizes the Honorable Arbitrator to determine the procedure and time limits for the execution of the Opinion and Award.

I have [etc.]

By the Peruvian Defense Commission,

Solón Polo

President

43. Foreign Relations, 1883, p. 731.
44. The meaning of this statement is obscure. On June 4, 1919, the Council of Four of which President Wilson was a member resolved that a plebiscite should be held in Upper Silesia; on June 14, the Council of Four decided that the plebiscitary period should be from 6 to 18 months (League of Nations, Minutes of the Extraordinary Session of the Council of the League of Nations, Held at Geneva from August 29th to October 12, 1921, To Consider the Question of Upper Silesia, pp. 11 ff.). Although annex 2 to article 88 of the Treaty of Versailles provided for an American member of the Plebiscitary Commission, none was ever appointed.