723.2515/1638a: Telegram
The Secretary of State to the Ambassador in Chile (Collier)
61. You will please call immediately upon the Minister for Foreign Affairs and the Chief of State and read to them the following statement:
“The Secretary of State of the United States of America has received reports concerning conditions in the provinces of Tacna and Arica which have described the obstacles that exist under present condition[s] to a free and fair plebiscite, in view of the course of conduct of the local Chilean authorities.
It appears to be maintained that the Treaty of Ancon and the Award provide that the territory of Tacna and Arica shall be left in the possession and under the administrative authority of Chile pending a plebiscitary vote to the contrary and this being the case the Peruvians could not be considered on the same plebiscitary status as the Chileans.
Mr. Kellogg desires to point out that while Chile is entitled to the possession of the territory in dispute pending the holding of a plebiscite, and while she thus retains possession her administrative authority continues, the right of Chile to continue her administrative authority pending the holding of a plebiscite is no clearer than her duty with respect to the holding of the plebiscite itself. Under the Treaty of Ancon which, as the Arbitrator held, was still in effect, Chile no less than Peru was bound by the provisions for the plebiscite. This provision manifestly implied a fair opportunity for a plebiscite through the absence of coercion or intimidation which would frustrate the purpose of a plebiscite. The fact that Chile has the right to maintain administrative authority pending a plebiscite gives her no color or [of] right to permit coercion or intimidation so as to destroy a fair opportunity for a plebiscite, but on the contrary places upon her the responsibility of exercising her administrative authority so as to provide such an opportunity and to protect those who are entitled to vote from intimidation, fraud and oppression. Indeed, Chile’s right to retain the possession of the territory in dispute is bottomed upon her agreement for the plebiscite which necessarily implies the use of her authority properly to safeguard it. This duty of Chile is fundamental and underlies the Award and all proceedings under the Award for the holding of the plebiscite.
As the Governments of Chile and Peru had not been able to agree upon the conditions of a plebiscite, the Arbitrator was empowered, in case he found that a plebiscite should be held, to establish these conditions. The purpose of the submission to the Arbitrator of the conditions of the plebiscite was manifestly to permit the establishment of conditions which would permit a fair plebiscite and not merely to define the details of a plebiscite which by reason of coercion, intimidation or fraud would be a plebiscite only in form and not one in substance and truth as contemplated by the Treaty. While the Arbitrator was not authorized to deprive Chile of her right under the Treaty to continue her administrative authority pending a plebiscite, he was empowered to require the use of that administrative authority [Page 393] for the proper safeguarding of the plebiscite and so as to prevent coercion, intimidation and fraud in connection with it. As Chile’s retention of the administrative authority was conditioned by the Treaty upon the holding of a plebiscite her exercise of administrative authority pending and during the plebiscite was subject to the conditions established by the Arbitrator. With this in view, the arbitration provided that Chile and Peru should enact appropriate legislation for the protection of the members of the Plebiscitary Commission and the Registration and Election Boards in the discharge of their functions and for the apprehension, trial and punishment of persons guilty of intimidation, bribery, fraud or other offenses in connection with registration or voting in the plebiscite, or of interference with the Plebiscitary Commission or the Boards or the members of the Commission, et cetera (Award P. 49).64 Thus not only was Chile bound by her agreement for the plebiscite to use her administrative authority to protect voters from intimidation, fraud and oppression, but if the existing legislation of Chile was not adequate to provide punishment for such offenses, Chile was required by the Award to enact such additional legislation as might be needed to meet the exigency.
It has been the cause of great disappointment to the Secretary of State to learn that the laws have not been administered in such a manner as to give reasonable assurances to the Peruvian voters that they will be unmolested and permitted the free exercise of their suffrage as provided in the Award. In defining the conditions of the plebiscite the Arbitrator provided for the constitution of the Plebiscitary Commission for the purpose of securing the supervision of the plebiscite by competent and impartial authority. The powers of the Plebiscitary Commission are derived from the Award. This provides (p. 44)65 that the Plebiscitary Commission ‘shall have in general complete control over the plebiscite.’ This general provision was not limited by the subsequent particularization of certain questions which the Commission was authorized to determine. It is the right and duty of the Commission to deal with any questions which relate to the holding of the plebiscite, and necessarily to deal with any questions which arise as to attempts by coercion, intimidation, or fraud to interfere with the plebiscite. The Commission is entitled to require that Chile shall exercise her authority in such manner as to protect the plebiscite and shall take all appropriate measures to prevent the abuse of that authority by the fostering or permitting of coercion, intimidation or fraud.
In expressing the most earnest hope that the Chilean Government will not only issue adequate instructions for the conduct of Chilean officials in the Provinces in dispute but will also see that they are faithfully carried out in order that a free and fair plebiscite as contemplated by the Arbitrator’s Award may be effected, Mr. Kellogg desires to add that it is quite inadmissible that Chile after having invoked the President as Arbitrator, and having insisted upon a plebiscite and upon the recognition of her administrative authority under the Treaty pending the plebiscite should attempt to use that administrative authority to thwart a fair plebiscite. It is hardly [Page 394] necessary to allude to the regrettable situation that would arise should the Plebiscitary Commission formally find, and the Arbitrator, on the matter coming before him, should be compelled to hold, that, on account of the action of the Chilean authorities in opposition to the terms of the Award, a free and fair plebiscite could not be held.
The Secretary of State has also been informed that, in connection with the work of the Special Commission on Boundaries, not only were adequate penalties not being meted out to those officers guilty of molesting Peruvians connected with the Boundary Commission but also that adequate measures were not taken to see that they did not recur. Conditions were such that the Peruvian members of the Commission were finally obliged to withdraw until the situation should be remedied. Under the terms of submission the Arbitrator was empowered to determine the claims pending with regard to Tarata and Chilcaya, that is, to determine the northern and southern boundaries of the territory in question. The Award of the Arbitrator sets forth his decision as to the principle which should govern the delimitation of the boundaries. The Arbitrator reserved the power to appoint a Special Commission to draw the boundary lines of the territory covered by Article III of the Treaty of Ancon in accordance with the Award. As the Arbitrator had the authority to determine these boundaries, and it became necessary for the purpose of this determination to ascertain the Peruvian provincial boundaries of Tacna and Arica, it was competent for the Arbitrator to provide for an agency to make investigation, draw the actual lines and report. The Special Commission is the agency constituted for this purpose. The Arbitrator is still in control of the proceeding; his work as Arbitrator is not finished and will not be finished until the boundary lines are fixed. It was for this reason that the Arbitrator reserved the authority to pass upon the report of the Special Commission or to appoint a new Special Commission and pass upon its report in like manner. Interferences with the Boundary Commission, or its members, representatives or employees, while prosecuting their work under the Arbitrator’s Award are interferences with the Arbitrator. They are interferences with the discharge of the Arbitrator’s duty and with the exercise of his authority under the terms of submission. Where such interferences occur in territory under the Chilean administration, it is the obvious duty of the Chilean Government to afford redress and prevent their recurrence by the proper action of the authorities. If the Chilean Government should not do this, if it should fail to afford protection to the Special Commission, its representatives and employees, while they are at work under the decision of the Award in territory under Chilean administration it would subject itself to the responsibility of interfering with the Arbitrator and of violating the essential conditions of the submission to arbitration. The Secretary of State desires to express his confidence that the Chilean Government will not be willing to disappoint the expectation of the just settlement of the long standing controversy through the agreed submission to the Arbitrator and will readily appreciate the importance of taking such action, in the discharge of its administrative responsibility, as will assure a fair and free plebiscite, as contemplated by the submission to arbitration and the Award, and adequate protection to the Special [Page 395] Commission on Boundaries, its representatives and employees, in the performance of the task assigned to it.”
You may leave a copy of the above statement with the Minister for Foreign Affairs and the Chief of State should they so request. At the same time you may orally call to their attention that one of the consequences of a persistence of the Chileans in their present attitude may be not simply the failure of the present plebiscite and the ordering of a new plebiscite, but a forfeiture of Chile’s right to a plebiscite and with it of any right to the disputed territory. For as the Award indicates, one of the conditions of Chile’s retention of the territory is that a plebiscite should be held with the necessary implication that neither party should frustrate it. The Arbitrator has held that there was not sufficient evidence that Chile had frustrated it and that the plebiscite should be had as contemplated by the Treaty. But if, now, with a plebiscite ordered, and with the Plebiscitary Commission on the ground, it appears that the administrative authority of Chile is used so as to frustrate the holding of an appropriate plebiscite, and that she refuses to take the reasonable measures which are essential to such a plebiscite, she may be exposed to the contention that she has forfeited any right to the territory under the Treaty.
I am not unmindful of the provisions of the Award for the ordering of a new plebiscite (p. 49) and this would be appropriate if it appeared that the objections which vitiated the first plebiscite were not of such a fundamental character as to discharge the agreement for a plebiscite. But if it appeared that the administrative authority of Chile had been exercised so as to thwart the purpose of the plebiscite or that she had refused to use that authority on the request of the Commission in a way that would reasonably support a fair plebiscite, the logic of the Award of the Arbitrator might be turned against Chile and it might well be held that she has been guilty of a prevention of the performance of Article III of the Treaty of Ancon and had lost her rights thereunder.
Cable immediately when this message is delivered.65a