723.2515/1547

The Peruvian Ambassador ( Velarde ) to the Secretary of State

[Translation]

Excellency: In compliance with instructions from my Government I have the honor to apply to Your Excellency with a request [Page 364] that you kindly place in the hands of His Excellency the President of the United States of America, Arbitrator in the case concerning the Provinces of Tacna and Arica the communication which I append to this note.

I renew [etc.]

Hernán Velarde
[Enclosure]

The Permian Ambassador ( Velarde ) to President Coolidge 47

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

The Government of Peru has duly received the ruling and observations of the Honorable Arbitrator on the appeal presented on March 31, and has decided in accordance with the provisions of paragraph “A” of the chapter entitled “Plebiscitary Commission”, page 43 in the original English text of the Award, to appoint a member who on behalf of Peru is to act on said commission and in doing so begs to place the following observations on record:

The Government of Peru considers that the petitions which it has presented do not involve an amendment of the Award nor even a broadening of its terms but simply to enunciate its scope clearly and precisely in the spirit of equity and justice in which the Honorable Arbitrator has acted and in which, it is but natural, a plebiscite will be held, presided over by one who so worthily represents him and his great nation.

Further, the Government of Peru holds that in a decision pronounced in an arbitral suit touching so serious a matter involving as it does the integrity of territory and the sentiment of nationality, one of the parties thereto is not to be debarred from freely and fully exercising every legitimate action in order to defend its rights. Therefore, the Government of Peru does not concur with the Honorable Arbitrator when he asserts that the fundamental petitions in its appeal are beyond the powers of the Arbitrator inasmuch as the arbitral agreement precisely provides that in the event of a plebiscite being declared in order the Honorable Arbitrator is authorized to determine the conditions thereof.

The principle among such conditions is that the absolute freedom and protection of the voters shall be assured as otherwise the provision for a popular ballot called for in Article III of the Treaty of Ancón would be frustrated.

Although the Honorable Arbitrator considers that the plebiscitary commission is sufficient to guarantee a true ballot there can be no [Page 365] doubt that the presence of the authorities and troops of the occupant state would hamper said guarantees with inevitable difficulties and limitations, both as to the prevention of fraud and to avoid and repress violence on the part of the administration in occupation, which it would be practicably [practically] impossible to control effectively in such a manner as to prevent it from harming the other party by availing itself of its dominant position to win the plebiscite by unlawful means if needed. The Government of Peru is confident that should this eventuality materialize the authorities and troops of the occupying state would be replaced by those of some neutral administration.

Nor does the Government of Peru concur with the Honorable Arbitrator in his interpretation of the Supplementary Act of the Arbitration Protocol, where from the provision 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” he deduces that “therefore, even in the event that 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”.

As a matter of fact, the relevant article of the Supplementary Act contemplated only the possibility of not changing the administrative organization of the territory in the event that the holding of the plebiscite would be decided against, clearly establishing thus the fact that said administrative organization could be changed should the contrary occur, namely, a declaration that a plebiscite should be held.

The aim of the Peruvian petition is to establish in the territory subject to the plebiscite, a situation of at least relative equity, inasmuch as absolute justice would be an impossibility after the acts of intimidation and terrorism of which the Peruvians have been the victims and which have created a situation sui generis in the Provinces and from which, in all fairness, the only way out would have been the return of the Provinces directly to the rightful owner. Such a situation of equity is all that Peru asks for and it is to be regretted that the Honorable Arbitrator, in all his wisdom and who had and has unlimited powers to determine the conditions of the plebiscite, should have considered it convenient not to use as yet precisely the most important of them all, thus placing one of the parties in a dominant position and leaving the other in one of evident inferiority. In view of the foregoing, Peru did not deem it necessary to specifically request, in the presentation of her case, the evacuation of the territory because it relied on the justice of the Arbitrator in the event of the rejection of the Peruvian thesis that a plebiscite would not be in order owing to the time elapsed since it should have been held, and owing [Page 366] also to the recalcitrant attitude of Chile and to the acts committed by that country against the Peruvian population, that the Arbitrator would impose such conditions for the plebiscite as would tend to compensate Peru for the evident injustices committed against her during the unlawful occupation of her territory.

Our claim for guarantees arises from the unequal position of the two States in the territories in dispute and tends to counteract the effects of the acts of violence and injustice to which one of the parties has made a victim of the other and since the Honorable Arbitrator established other conditions, it would seem reasonable to expect that he would not forget the main feature that stands out above all others in modern plebiscites, namely, that of removing the armed forces of both the interested parties as well as the heads of their administrative bodies.

With reference to our petition regarding the right to vote of those who have been expelled it should be stated that although Chilean and Peruvian residents are apparently on an equal footing, it is a well known fact that the residence of the former has not been interrupted while that of the latter has suffered interruptions at the hands of those interested in eliminating them and who were powerful enough to do so. There is besides the grave circumstance that Chile has been able to introduce into the provinces as large a population as she has seen fit, while on the other hand the Peruvians have been continually expelled, and thus unequal conditions leading to an evident injustice have been created with the result that a Chilean with two years residence prior to July, 1922, can vote whereas a Peruvian born outside the territory of Tacna and Arica and with an equal or even longer residence can not vote simply because the Chilean authorities have expelled him.

As such a state of affairs would cause an exasperating inequality, the Peruvian Government is reluctant to admit that this is the sense in which the Award should be construed and trusts that the Plebiscitary Commission will take a similar view.

The Award admits that expulsions have taken place though not in a number sufficient to warrant a ruling that the plebiscite would be out of order. It declares that it is far from condoning such acts of violence, therefore condemning them, but the logical outcome of such condemnation would appear to have been the provision of such conditions for the plebiscite as would have restored the justice which has been outraged by one of the parties and would to some extent have repaired the harm done to the other. Peru feels, however, that its insistence on this point is now more than ever justified by the fact that since the rendering of the Award, Chile has deliberately and systematically violated the status created by the Award by removing several hundred natives and other Peruvian residents of the Provinces [Page 367] under occupation and sending them south in order to deprive them of their right to vote in the plebiscite. These removals have been denounced to the Honorable Arbitrator and it should be noted that Chile has not attempted to deny them but simply explains them as a “voluntary exodus of the natives who were attracted by the high wages paid in the nitrate fields”, and since this concerns a relatively large number of voters of which the party that wields force within the territory seeks violently to deprive the other, it would appear to be within the right of the Honorable Arbitrator to reestablish the balance thus disturbed, inasmuch as the Washington Protocol has invested him with full powers which he has expressly reserved for himself in the Award.

The Government of Peru with all due respect for the arbitral decision which has been rendered, finds no reason to change the above opinions which have been expressed, and will maintain in its integrity its claim concerning provision of those guarantees which are absolutely indispensable for the holding of a true plebiscite, the execution and results of which will be acceptable to the world at large and which Peruvian citizens may attend on a footing of absolute equality with those of Chile so that the referendum shall express the true popular decision contemplated in the Treaty of Ancon.

It is not to be supposed, and Peru in no way supposes, that it was the intention of the Honorable Arbitrator to deny Peruvian residents expelled by the Chilean authorities the right to vote, as the immediate result of such an interpretation would be to constitute a precedent incompatible with the concepts of justice and leading to a continuation of the acts of violence condemned by the Award.

Moreover, the agreement entered into, empowered the Honorable Arbitrator to decide on all difficulties arising from the unfulfilled stipulations of Article III of the Treaty of Ancon and should the occasion arise, to determine all the conditions of the plebiscite, therefore the present arbitration confers on the Honorable Arbitrator far fuller jurisdiction of powers than the mere deciding of whether the plebiscitary provision is in force or has expired. To sum up, what Peru has sustained and sustains is that the entire plebiscitary process must rest on the strictest principles of international justice and that it would be a painful contrast for the juridic and moral conscience of the peoples of this continent that, if in Europe, which has just immerged [emerged] from a devastating war which left in its wake a host of violent passions, the peoples involved in the struggle reacted immediately and rectified their frontiers decreeing plebiscites based upon these precepts, [while] here in free America, without the pressure and passions of a recent war, a plebiscite is decreed which differs but very little from those which were imposed under a regime [Page 368] of bayonets to disguise the annexations and the conquests of the victorious soldiers of the Napoleonic Wars.

Notwithstanding the foregoing observations which reflect, though imperfectly, the feelings of the Peruvian people, the Government of Peru, whose high sense of duty both for itself and its international obligations has prompted it to accept the Award, takes note of the statements contained in the last communication from the Honorable Arbitrator to the effect that “the foregoing observations, however, are without prejudice to the exercise of the powers of the Plebiscitary Commission”, powers which “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”; that “the plebiscitary commission shall have in general complete control over the plebiscite”; that [it] will “prevent fraudulent voting”; which [that it”] has full powers “involving the qualifications of voters and the prevention of fraud”; insisting also that “ample provision is also made for appeal from the Plebiscitary Commission to the Arbitrator”, and lastly that the Arbitrator “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 Government of Peru interprets these statements regarding its requests for guarantees in the sense that the Honorable Arbitrator refers them to the Plebiscitary Commission as the body which is empowered to grant them and which will grant them if they prove to be necessary.

With due consideration of the foregoing appreciations of the matters herein dealt with, the Government of Peru appoints Mr. Manuel de Freyre Santander as its delegate to the Plebiscitary Commission.

The Government of Peru is confident that this decision arrived at, after mature consideration, will be justified by the rigorous impartiality of the proceedings of the Plebiscitary Commission.

I have [etc.]

Hernán Velarde
  1. Received by the Department in English only.