Papers Relating to the Foreign Relations of the United States, 1925, Volume I
723.2515/1416
The Secretary of State to the Peruvian Ambassador ( Velarde )
Excellency: I have the honor to acknowledge the receipt of your note of the 2nd instant enclosing a Memorial, signed by the President of the Defense Commission of Peru, addressed to the President of the United States as Arbitrator in the Tacna-Arica controversy, and to transmit herewith the ruling and observations of the Arbitrator on the questions presented. I beg to request that you transmit this document to the Defense Commission of Peru.
The ruling and observations of the Arbitrator will be given to the press for publication in the morning papers of Friday, April 10, and I therefore beg to request you to consider this note and its enclosure as strictly confidential until that time. In accordance with your authorization to Mr. White,45 in your telephone conversation with him on the 7th instant, the communication addressed to the President on April 2, by the President of the Defense Commission will be given to the press at the same time.
Accept [etc.]
The Ruling and Observations of the Arbitrator
The Arbitrator has had the honor to receive and carefully consider the communication addressed to him under date of April 2, 1925, by the President of the Peruvian Defense Commission, the representative of Peru in the pending arbitration under the Protocol and Supplementary Act signed by the representatives of Chile and Peru at Washington, July 20, 1922. In the course of his communication the President of the Peruvian Defense Commission first, submits the views of the Peruvian Government in regard to the Award of the Arbitrator, second, informs the Arbitrator of certain acts said to have been perpetrated against the Peruvian inhabitants of Tacna and Arica since the date of the Award, and, third, requests certain [Page 356] guarantees in regard to the conduct of the plebiscite decreed under the Award.
The Arbitrator deems it his duty to make the following reply:
First: The views of the Peruvian Government with respect to the Opinion and Award have been duly noted. The Award was the result of a careful examination of the elaborate record submitted by the parties. This record fully covered all the questions treated in the views now submitted on behalf of the Government of Peru and argued all the questions which it is now sought to reargue. Under the Terms of Submission agreed to by both parties as well as by general principles of International Law these questions have been decided by the Award “finally and without appeal.”
This reply well might end here. In deference, however, to the great nations who are the parties to this arbitration, and keeping in mind the importance of a correct understanding of the Arbitrator’s Award, and the proper procedure thereunder, the Arbitrator deems it advisable to make certain additional observations.
A large part of the communication now presented to the Arbitrator is based upon a claim of an improper translation of Article III of the Treaty of Ancon, it being claimed that this Article as translated should read “at” and not “after” the expiration of the term of ten years. As pointed out in the Award, the translation complained of is the translation submitted by Peru in her Case, and in the opinion of the Arbitrator fairly interprets the meaning of the passage in question. The problem before the Arbitrator was one of substance—of construction rather than translation, a problem which had been debated by the parties long before this arbitration gave rise to any questions of English translation. It goes far beyond the relatively unimportant and largely academic question of the use of any particular English word in translating the Treaty whether that word be “after”, “at”, “on”, or “upon”, all of which are used at various places in the Peruvian documents.
It may also be said that the Award of the Arbitrator is in entire harmony with the practical construction placed upon the Treaty by the parties in their dealings with one another after the expiration of the ten-year period, from 1894 to 1912; the parties repeatedly negotiated for a plebiscite and in 1898 agreed on the terms of a protocol providing for a plebiscite which was not ratified by the Chilean Congress.
The President of the Peruvian Defense Commission suggests that the Arbitrator failed to give weight to the “proofs offered by Peru relative to the expulsions, spoliation of property, acts of terrorism and fraudulent colonization of Chileans on lands of the Peruvians,” (page 6 of communication under consideration). There was a large body of testimony submitted by both parties on this subject and the [Page 357] Arbitrator weighed the evidence with the greatest care but did not find the proofs sufficient on which to base a finding “that a fair plebiscite in the present circumstances cannot be held under proper conditions or that a plebiscite should not be had” (Award of Arbitrator page 36).
Second: The Arbitrator also notes the specific instances of expulsion and oppression which the President of the Peruvian Defense Commission charges have taken place since the rendition of the Award. These charges should be brought to the attention of the Plebiscitary Commission when it shall have been constituted.
The Arbitrator notes with satisfaction that the President of the Peruvian Defense Commission, although expressing the opinion that conditions of Tacna and Arica as described by him “would justify Peru in refusing to accept the decision,” gives formal assurance that “as it is the invariable policy of our (his) country to comply with international responsibilities” Peru “will not fail to carry out the Award rendered.”
Third: With regard to the various guarantees with respect to the conditions of the plebiscite requested by the President of the Peruvian Defense Commission, the Arbitrator, so far as his formal ruling is concerned, contents himself with the reply already made to the views submitted on behalf of the Peruvian Government, namely, that the conditions of the plebiscite constituted one of the questions submitted to the Arbitrator; that the Award was made after careful consideration of the record submitted by the parties, and that both by the agreement of the parties and under the principles of International Law the Award is final and without appeal.
However, the Arbitrator makes the following general observations:
As already stated, the conditions under which the plebiscite was to be held constituted one of the questions submitted to the Arbitrator. The parties agreed upon a procedure which was approved by the Arbitrator and which gave to both ample opportunity to be heard. Peru, with full knowledge, made no requests even in the alternative for findings in regard to the conditions of the plebiscite while these conditions were sub judice—neither the requests she now makes nor any others. Of course, orderly procedure and the agreement under which this Arbitration was held forbid that a party to the arbitration should wait until after the Award is rendered before making requests for findings. Nevertheless, the Arbitrator did not permit the interests of Peru to be prejudiced through her failure to make requests for findings in regard to the conditions of the plebiscite. He considered the whole question carefully and fixed the conditions under which the plebiscite was to be held so as to afford the most ample protection to the rights of both parties to the arbitration.
[Page 358]The Arbitrator furthermore makes the following observations responsive to each of the several requests submitted by the President of the Peruvian Defense Commission:
“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,” etc.
The Arbitrator is constrained to point out that this request goes beyond the scope of the authority of the Arbitrator under the Terms of Submission and the findings of the Award. The Supplementary Act of the Washington Protocol provides that even in the event that the Arbitrator decides that a plebiscite need not be held, “pending an agreement as to the disposition of the territory the administrative organization of the provinces shall not be disturbed.” Therefore, even in the event the Arbitrator had held Chile’s present possession unlawful, he would have been without power to direct the evacuation of the provinces “pending an agreement as to the disposition of the territory.” But the Award on the contrary holds that “the fair construction (of the Treaty of Ancon) is that Chile was to retain possession pending the holding of the plebiscite and that thus retaining possession her administrative authority continued.” (Award, p. 20).
The foregoing observations, however, are without prejudice to the exercise of the powers of the Plebiscitary Commission as provided in the Award which are ample to guarantee to every qualified voter full assurance of personal protection as well as the assurance that his vote may be freely cast and will be fairly counted. The Award provides “that the Plebiscitary Commission shall have in general complete control over the plebiscite,” and the Arbitrator has named as President of this Commission General Pershing, a distinguished American, who himself embodies every guarantee in his character and personality.
“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,” etc.
In so far as this request merely asks that “the installation and operation of the Plebiscite Commission be hastened,” the Arbitrator points out that it asks for something which depends, first, upon the action of the Government of Peru alone, and, second, upon the action of the Governments of Chile and Peru. In accordance with the terms of the Award, “the members of the Plebiscitary Commission shall be appointed within four months from the date of the rendition of this Award, and the Commission shall assemble in the City of Arica for its first meeting not later than six months from the date of the rendition of this Award. These times may be changed by the [Page 359] Arbitrator.” In other words, the Award merely fixed a maximum time for the appointment of the members of the Commission. The Arbitrator has already appointed the presiding member of the Plebiscitary Commission, as well as the third member of the Special Boundary Commission. Chile has also appointed her member of the Plebiscitary Commission. It is suggested that nothing stands in the way of the constitution of the Commission as soon as similar action shall have been taken by Peru. The Commission once constituted could arrange to hold its first meeting at Arica as soon as the necessary preliminaries shall have been accomplished by the two Governments.
“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, etc.”
This request is governed by the observations of the Arbitrator on the first request since this request also goes beyond the scope of the authority of the Arbitrator under the Terms of Submission and the findings of the Award in that it is predicated on the “civil and military evacuation of the provinces.”
“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.”
As heretofore pointed out the Arbitrator in fixing the qualifications of the voters did not have the advantage of having before him requests for findings in that regard on the part of Peru. He nevertheless considered the questions involved with great care in the light of the evidence and arguments submitted by both parties. The various provisions of the Award on this subject are interrelated in a general plan. Compliance with this request is therefore not only impossible because of the finality of the Award but unnecessary and inadmissible because it would involve the revision of a plan which was carefully drafted and which in its entirety in the opinion of the Arbitrator does justice between the parties.
“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,” etc.
It is the duty of the Plebiscitary Commission to consider all the evidence as to the qualifications of voters in order to prevent fraudulent voting. This request should therefore be brought to the attention of the Commission for its consideration.
“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 [Page 360] 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.”
The Arbitrator is not clear as to the precise meaning of this request. The Award provides, p. 42:
“That no person serving a term of imprisonment after sentence for a non-political offense involving moral turpitude … shall be allowed to register or vote.”
It will be the duty of the Plebiscitary Commission to interpret and apply this provision according to its letter and spirit to the facts of each individual case presented to the Commission to which it is relevant. It is suggested, therefore, that any specific case or cases which are thought to involve the interpretation or application of this provision be presented to the Plebiscitary Commission.
In general, the Award makes the most ample provision for the consideration by the Plebiscitary Commission of all questions involving the qualifications of voters and the prevention of fraud, with a view to insuring to every qualified elector the right to vote. Ample provision is also made for appeal from the Plebiscitary Commission to the Arbitrator.
In conclusion it need hardly be said that only a desire to be of service in bringing about a settlement of a long standing controversy between two great nations with whom the United States enjoys the most friendly relations induced the Arbitrator to undertake this arduous task and that so far as in him lies, acting always within the well defined limits of the Terms of Submission, he will leave nothing undone which scrupulous care and attention on his part can accomplish in securing a fair election and equal justice to both parties.
The ruling which the Arbitrator has felt constrained to make, viz. that the Award is final and without appeal, has rendered it unnecessary to afford opportunity to the Agents of the Government of Chile to present the views of their Government. A copy of the communication of the President of the Peruvian Defense Commission and of this reply is, however, being furnished to the Agents of the Government of Chile.
Arbitrator
By the Arbitrator
Frank B.
Kellogg
Secretary of
State
- Francis White, Chief of the Division of Latin American Affairs.↩