723.2515/1624: Telegram

The Secretary of State to the Consul at Arica ( Von Tresckow )

[Paraphrase]

For Pershing: Your telegram September 24, 10 a.m. I have carefully considered with former Secretary of State Hughes63 the legal questions and propositions in your proposed resolution and submit the following for your personal information, not as a ruling of the Arbitrator, but as personal opinion:

1.
It is important that the Arbitrator should maintain his position strictly as arbitrator and should not assume any different responsibility. President Coolidge would not have consented to undertake to effect settlement between Chile and Peru by use of armed forces. Forcible intervention for purposes except protection of the interests of the United States and its nationals would not have been within proper exercise of his authority. President Coolidge consented to act as Arbitrator under definite terms of submission. He made his award upon careful examination of the facts, and has thus demonstrated his desire to obtain peaceable and just settlement. If his decisions within scope of the arbitration are not carried out, responsibility will rest with those who obstruct fulfillment of the award and not with him. Course of procedure should be so determined as to make perfectly clear that responsibility, so that all efforts to obscure it would be of no avail.
2.
Chile is entitled to possession of the territory in dispute during holding of a plebiscite, and her administrative authority continues [Page 386] while she thus retains possession. The grounds of this conclusion are explicit in the award. The decision rests upon provisions of the Treaty of Ancon which Arbitrator had no authority to disturb. Right of Chile to remain in possession until the plebiscite is not only derived from construction of the treaty but is supported in terms of the submission to the Arbitrator which provide that, even should Arbitrator decide that a plebiscite should not be held, the administrative organization of the territory should not be disturbed until agreement should be reached regarding the disposition of the provinces. Chile would not have made an agreement divesting herself of possession and administrative authority during plebiscite period, and cannot now be held to a course which would violate her right under treaty and the terms of submission.
3.
But Chile’s right to continue her administrative authority during the holding of a plebiscite is no clearer than is her duty with respect to the holding of plebiscite itself. Under Treaty of Ancon which, as Arbitrator held, was still in effect, Chile not less than Peru was bound by provision for the plebiscite. This provision manifestly implied fair opportunity for a plebiscite through absence of coercion or intimidation which would frustrate purpose of a plebiscite. The fact that Chile had the right to maintain administrative authority during plebiscite period gave no color of right to permit coercion or intimidation so as to destroy fair opportunity for a plebiscite, but on contrary placed on her the responsibility of exercising her administrative authority in such way as to provide fair opportunity and to protect from intimidation, fraud, and oppression those who were entitled to vote. Chile’s very right to retain possession of the territory in dispute is based on her agreement for the plebiscite which implies necessarily use of her authority properly to safeguard it. This duty of Chile’s is fundamental, underlying the award and all proceedings under the award for the holding of the plebiscite.
4.
As the Governments of Chile and Peru had not been able to agree upon conditions of a plebiscite, the Arbitrator was empowered, should he find that a plebiscite should be held, to establish these conditions for it. Purpose of the submission to the Arbitrator of conditions of plebiscite was manifestly to permit establishment of conditions which would permit fair plebiscite and not merely to define details of a plebiscite which by means of intimidation, coercion, or fraud would be plebiscite in form only and not one in substance and truth as contemplated by the treaty. While Arbitrator was not empowered to deprive Chile of her right under Treaty of Ancon to continue her administrative authority during plebiscite period, he was empowered to require use of that administrative authority for [Page 387] proper safeguarding of plebiscite in such manner as to prevent coercion, intimidation, and fraud in connection with it. As Chile’s retention of administrative authority was conditioned by Treaty of Ancon upon holding of a plebiscite, her exercise of administrative authority until and during the plebiscite was subject to the conditions laid down by the Arbitrator, and these conditions could properly embrace such requirements with respect to her administrative authority as in opinion of Arbitrator were essential to fair opportunity for the plebiscite. It was to this end that the Arbitrator provided that Chile and Peru should enact appropriate legislation for protection of members of the Plebiscitary Commission and of the registration and election boards in discharge of their functions and for apprehension, trial, and punishment of persons guilty of intimidation, bribery, fraud, or other offenses in connection either with registration or with voting, or of interference with the Commission or of the boards or of their members, etc. Not only was Chile bound by her agreement for the plebiscite to use her administrative authority to protect voters against practices of intimidation, fraud and oppression, but also if her existing legislation was inadequate to provide punishment for aforesaid offenses, Chile was required by award to enact such additional legislation as might be needed to meet situation.
5.
In defining conditions of the plebiscite, the Arbitrator provided for constitution of Plebiscitary Commission for purpose of securing supervision of plebiscite by competent and impartial authority. The powers of the Commission are derived from the award, which provides that the Commission “shall have in general complete control over the plebiscite.” This general provision was not limited by subsequent particularization of certain questions which Commission was authorized to determine. It is right and duty of Commission to deal with any questions which relate to holding of the plebiscite, and necessarily to deal with any questions arising from attempts to interfere with plebiscite by coercion, intimidation, or fraud. The Commission’s action in this regard must, of course, be consistent with terms of the treaty. Commission could not require, any more than Arbitrator could require, Chile to surrender her possession or her administrative authority during plebiscite period, but Commission is entitled to require that Chile exercise her authority in such a manner as to protect the plebiscite and take all appropriate measures to prevent abuse of that authority by fostering or permitting coercion, intimidation, or fraud.
6.
You must determine, I think, the advisability of proposing this resolution. It depends on state of the facts to which it is addressed; and, in view of your knowledge of situation and in view of investigations which have been conducted under your supervision, I assume [Page 388] that the conditions are as they are reported and that the resolution is justified. I am of opinion that, subject to reservations stated below, Plebiscitary Commission has authority to make the requirements set forth in the resolution:
(a)
I assume that army, carabineers, police, and secret service personnel, referred to in paragraphs 1, 2, 3, and 4 of the resolution, are administrative officers within control of executive branch of Chilean Government. I believe that such officials as those and other administrative officers subject to executive control may properly be subject of the resolution. I question whether resolution should be made applicable to local judges or judicial officers who may have status under Chilean Constitution which would make it impossible for Chilean authorities to comply with resolution. I think care should be taken not to introduce into resolution any officers who are not subject to control of the Government of Chile under the Constitution. I have had no opportunity to examine carefully new Chilean Constitution; brief examination indicates that Constitution promulgated September 18, 1925, promises in substance that judges will remain in office during good behavior, but that the lower judges will carry on respective functions for such time as law may determine. Elsewhere in Constitution provision is made for their appointment by President of Chile. I make this suggestion for your careful consideration.
(b)
I also think wisdom doubtful of providing for a determination with respect to “reputation,” such as is provided in paragraph 5 of resolution. It seems to me that without putting matter on basis of “reputation,” it should be put, with qualifications stated above regarding officers having constitutional status, upon basis of such persons using or having used position or powers they hold in manner hostile to fair plebiscite. Commission would have to get at facts in order to establish reputation and these facts would probably serve purpose in demanding transfer or removal.
(c)
In regard to paragraph 10 of resolution which provides for “removal of censorship if any exists,” I wonder if it would not be better for Commission to determine whether such censorship exists or not and its effect. Commission could demand freedom from censorship if it has reason to believe that censorship exists.
7.
I send this to you personally because Arbitrator should not prejudge any question which may come before him in future. The broad right of appeal exists and Arbitrator may review any action of Commission. It is, of course, obviously important that I should be advised as far as practicable of contemplated proceedings of Commission so that I may advise with you or aid and assist you by representations to the Governments of Chile and Peru if you think that step advisable. There is, I think, a distinction between the [Page 389] Arbitrator’s advising these Governments upon disputed questions which may be presented to him on appeal which may embrace questions of fact, and my recognition in course of diplomatic interchanges of the clear principles laid down by him upon which award proceeds and advisability of these Governments doing everything possible to carry but fair plebiscite.

I should, for these reasons, like to have your views on whether or not you think that the time has come for me to acquaint Chilean Government, through diplomatic channels, with view that while the Arbitrator will render his decisions upon questions that come to him in due course, it is quite inadmissible that Chile, after having invoked the authority of the President of the United States as Arbitrator and after having insisted upon recognition of her administrative authority under Treaty of Ancon during plebiscite period, should attempt to use that administrative authority to thwart a fair plebiscite. This is matter of broad international consequence and I feel there would be ample justification for directing attention of Government of Chile to regrettable character and consequences of such an attitude as it appears to have assumed. If any question of fact is at issue, the Plebiscitary Commission is on the ground and can determine it; but if Chile entertains any idea that she has right to use her administrative authority not only so as not to prevent coercion and intimidation but actually to countenance or to foster them, the Government of Chile should be disabused of this notion.

Arbitrator’s award has sustained right to a plebiscite under the Treaty of Ancon and has provided for the plebiscite; and if now Chile thwarts plebiscite by failing to use her administrative authority properly to protect it and by refusing to accede to the reasonable requirements of the Commission for such protection as is required, she will be responsible for all the consequences.

It may be well to have in mind that one of these consequences may be not merely failure of the present plebiscite and ordering of a new plebiscite, but a forfeiture of her right to a plebiscite and with it of any right to the disputed territory; for, as award indicates, one of conditions of Chile’s retention of the territory is that a plebiscite should be held, with implication that neither Chile nor Peru should frustrate it. Arbitrator has held that there was not sufficient evidence that Chile had frustrated it, and that plebiscite should be held as stated in the treaty. But if now, with plebiscite ordered and with Plebiscitary Commission on the ground, it appears that the administrative authority of Chile is used in such a way as to frustrate the holding of an appropriate plebiscite and that she refuses to take the reasonable measures essential to that plebiscite, she may [Page 390] be exposed to the contention that she has forfeited any right to the territory under the Treaty of Ancon.

I am not unmindful of provision in award for the ordering of new plebiscite and this would appear to be appropriate if it appeared that objections which vitiated the first plebiscite were not of such fundamental character as to void agreement for a plebiscite. But if it appeared that Chile’s administrative authority had been exercised in way to thwart purpose of the plebiscite or that she had refused to use that authority on request of the Commission in way that would reasonably support a fair plebiscite, the logic of the Arbitrator’s award might be turned against her and a court of arbitration might well hold that Chile had been guilty of a prevention of performance of article III of Treaty of Ancon and had lost her rights under it.

Upon the evidence presented to the Arbitrator in the case submitted, he was unable to find Chile guilty of conduct frustrating the plebiscite. The Arbitrator was unwilling to resort to disputable inferences in reaching such a grave conclusion. As he said in the award, the plebiscite furnished an appropriate method of deciding the controversy; but now award for the plebiscite is being carried out, and if the plebiscite under award is prevented by Chile, this conduct can easily be put before the world in light which will take from her all sympathy and will clearly demonstrate impartiality and justice of position of the United States.

Please advise whether you wish me to make representations to the Government of Chile, and, if you do, whether I shall wait until your resolution has been formulated and presented to Plebiscitary Commission. It seems to me, if representations are made, that they should be made at substantially same time your resolution is presented or else immediately afterwards before they are rejected, and should be made on basis of your resolution.

Kellogg
  1. Charles Evans Hughes, Secretary of State, Mar. 4, 1921–Mar. 4, 1925, continued to advise and consult with Secretary Kellogg during the period of the plebiscite.