723.2515/1624: Telegram
The Consul at Arica (Von Tresckow) to the Secretary of State
From Pershing: After careful consideration of the conditions disclosed by such observations and investigations as have been practicable under existing circumstances, I am convinced that energetic action must be taken to create an atmosphere of freedom and fairness [Page 380] that is consistent with fulfilment of the award and essential to the plebiscite contemplated by the arbitration, and I propose to lay before Plebiscitary Commission at early date following resolution:
[Draft not printed; the text of resolution adopted by the Plebiscitary Commission on November 2, differs only in minor textual changes, and is printed infra, out of chronological order.]
I and my advisers have given prerequisites embodied in proposed resolution most careful attention. We agree unanimously that fulfillment of these prerequisites or their substantial equivalent absolutely essential to progress.
I am convinced that Commission in adopting the resolution will be acting well within limits of the powers conferred by the award. In this opinion I am supported by Dennis and Kreger54 who have prepared a written opinion that has my unqualified approval. Following is synopsis of their opinion: (1) The authority of the Plebiscitary Commission is derived from and limited by the opinion and award of the Arbitrator. (2) The Arbitrator when deciding that a plebiscite was in order held that during the plebiscite the territory should continue in Chile’s possession, subject to Chilean law and authority, but that consequent control by Chilean Government is subject to the limitation that Chilean laws and authority shall not be applied so as to prevent the holding of a fair plebiscite. (3) Principle that during the plebiscite period Chilean authority may not be so exercised as to prevent a fair plebiscite would follow as an immediate corollary from the principle that the plebiscite is to be held in territory in Chile’s possession as well as the fact that Chilean laws and authority even if limiting principle had not been expressed [disallowed?] by Arbitrator. (4) Chile is not only under a negative obligation not to exercise her powers in such way as to prevent a fair plebiscite but is also under positive obligation to exercise her powers so as to render a fair plebiscite possible. (5) The arbitral provision for the international commission to have in general complete control over the plebiscite is inconsistent with any theory that Chile’s power to govern the plebiscitary territory during the plebiscite is without limitation. The Commission’s control can exist only in derogation of the power of Chile to exercise authority within the plebiscitary territory, and to this derogation Chile consented in agreeing to the supplementary act appended to the protocol of arbitration by which the Arbitrator was empowered to determine the conditions of the plebiscite. Were the authority of Chile unlimited, the Commission could have no control whatever over the plebiscite. The Commission would have no function and there would exist no [Page 381] reason for its establishment, [apparent omission] inconsistent with the high character of the Arbitrator. The Arbitrator specifically mentioned certain matters requiring regulatory action by the Plebiscitary Commission, in some instances adding instructions as to how the regulatory power of the Commission should be exercised, but manifestly he did not attempt to cover the whole ground and he provided for unknown factors and unforeseeable emergencies by empowering the Commission in broad terms to exercise complete control generally over the plebiscite, thus investing the Commission with the power to deal with everything that is essential to a fair election and equal justice to both parties, subject only to the terms of his opinion and award. (7) The plebiscite looked to by the award is one fair not only in form but in substance. As a corollary it follows that Chile is not entitled to any unfair or inequitable advantage by reason of her right to possess and govern the territory during the period of the plebiscite. Complete control over the plebiscite was given the Commission by the Arbitrator for the very purpose of making certain that Chile should not use possession and control of the territory subject to the plebiscite to obstruct or prevent it. (8) It is well within the powers of the Commission to adopt the proposed resolution setting forth certain prerequisites to a fair plebiscite in Tacna-Arica. Whether the accomplishment of the reforms suggested in that resolution is essential to continuing with the plebiscite is a question of fact addressing itself to the judgment and accomplishments of the Commission rather than being a question of law.
The resolution represents a careful and successful effort not to overstep the line between counteractive checking and forestalling misgovernment, on the one hand, which tends to obstruct or prevent a fair plebiscite, all of which is within the competence of the Commission, and taking over the plebiscitary territory, on the other, which is not within the competence of the Commission. The resolution merely points out some instances where it is necessary for Chile to take such action as will amount to the observance of her obligations to exercise her control of the plebiscitary territory so as not to interfere with or prevent a fair plebiscite but to facilitate one.
Doubtless Chile will contend that the Plebiscitary Commission can not lawfully adopt the proposed resolution by arguing that the award invests the Commission with only the limited powers specifically mentioned in the award and that under the award the Commission is required to formulate at once regulations governing the plebiscite. This position is untenable both practically and legally. A committee to formulate the election and registration regulations [Page 382] has been constituted but it can neither carry forward nor complete its labors satisfactorily until after the reforms demanded by the resolution have been accomplished.
The resolution will not satisfy the Peruvian member of the Commission because it comes far short of what he believes to be necessary, but I believe that he will vote for it. Its adoption will most certainly be followed by Chilean appeal to the Arbitrator.
New developments taking place before the introduction of the resolution may render certain modifications advisable. I am not committing myself absolutely to the resolution as now cabled, but in the light of my previous communications it will serve to indicate the nature of any modifications that may have to be made on short notice.
I have made the prerequisites as easy for acceptance by Chile as is consistent with progress. If policy of obstruction be continued, the Commission will be compelled more and more to exercise of its latent powers in order to carry out the award. Pershing.