723.2515/1756: Telegram

The Secretary of State to the President of the Plebiscitary Commission ( Pershing )

The following is the Arbitrator’s opinion and decision:

“In the matter of the arbitration between the Republic of Chile and the Republic of Peru, with respect to the unfulfilled provisions of the Treaty of Peace of October 20, 1883, under the Protocol and Supplementary Act signed at Washington July 20, 1922.88

Opinion and Decision of the Arbitrator upon the appeal from the decision of the Plebiscitary Commission made on the ninth day of December 1925.

1.
On December 9, 1925 the Plebiscitary Commission adopted a resolution to the following effect:
(a)
The Commission declined to accept a schedule of dates proposed by the Chilean member for the adoption of registration and election regulations, for the commencement of the functioning of registration boards, for the early disposition of appeals from rulings of the registration boards, and for the taking of the plebiscitary vote.
(b)
The Committee appointed by the Commission to prepare drafts of registration and election regulations was directed to report as soon as practicable with a view to the adoption and enactment of such regulations on or before January 15, 1926.
(c)
The registration and election boards were directed to begin their functions on February 15, 1926 or as soon thereafter as practicable and to continue to function for a period of one month.
(d)
Proceedings to review rulings by the registration boards were required to be expedited so that appeals from such rulings should be decided within three weeks following the close of registration.
(e)
The date of the plebiscitary vote was fixed at April 15, 1926 or as soon thereafter as the Commission should deem practicable.
(f)
It was provided:
Section 6. “That the foregoing schedule of dates is based upon the assumption that both parties to the plebiscite will proceed expeditiously and in good faith to give full effect to the resolutions and regulations heretofore adopted or which may hereafter be adopted by the Commission, to the end that a fair and orderly plebiscite may be held, it being understood that the schedule is subject to change from time to time if, in the judgment of the Commission, any such change shall appear to be necessary or advisable.”
(g)
It was further provided:
Section 7. “That the Commission hereby respectfully calls upon His Excellency the Chilean member formally to advise the Commission clearly and specifically whether or not the Chilean Government [Page 278] is prepared henceforth to cooperate effectively with the Commission and especially to instruct its officials and representatives in Tacna-Arica, effective as of the date of the Chilean member’s reply hereto, thereafter to cooperate adequately in carrying out the regulations and resolutions heretofore adopted or which may hereafter be adopted by the Commission, always having the right of appeal to the Arbitrator in accordance with the provisions of his Opinion and Award and the rules of procedure of the Commission.”
(h)
The President of the Commission was instructed to transmit an authenticated copy of the resolution to the Chilean member who was in turn instructed to bring the resolution to the attention of the proper Chilean authorities.
2.
On December 16, 1925 the Plebiscitary Commission by resolution certified to the Arbitrator89 under the appropriate provisions of the Opinion and Award of March 4, 192590 that portion of “the dissenting opinion and request for certifications on appeal” of the Chilean member “which sets forth a dissent and appeal from the action of the Commission on December 9, 1925 in substituting for a resolution to fix the date of the plebiscite introduced by the Chilean member, a resolution on the same subject introduced by the President of the Commission, and in adopting the latter” as presenting “a question of general importance in relation to the holding or result of the plebiscite”. Under the same resolution of December 16, 1925, the Plebiscitary Commission transmitted to the Arbitrator all other portions of the said dissenting opinion for such consideration as the Arbitrator might deem proper on his own motion.
3.
On December 22, 1925 the Arbitrator made an order allowing the appeal so certified and reserving for further consideration the question of entertaining an appeal with respect to other matters than those embraced in the resolution of December 9, 1925, and as to these matters the Arbitrator directed the party seeking appeal to present in writing on or before January 15, 1926 a statement showing with suitable precision, the action, or resolution of the Plebiscitary Commission of which complaint is made. The order further provided that the Commission’s authority should not be regarded as suspended pending the appeal and that the Commission should proceed with the performance of its duties under the Opinion and Award of March 4, 1925. Pursuant to the said order of the Arbitrator, the parties on January 9, 1926, filed briefs accompanied by the pertinent documents required for consideration of the appeal and of the other matters referred to in the dissenting opinion and in the resolution of December 16, 1925.
4.
The Agent for the Republic of Chile, on January 9, 1926, filed on behalf of his Government a communication addressed to the Arbitrator, which, among other things, declares that the appeal of Chile from the resolution of December 9, 1925 “is respectfully withdrawn in so far as such resolution fixes the time for the submission and adoption of rules and regulations governing the plebiscite and also the times for registration of voters, appeals and casting of the ballots”. This [Page 279] communication proceeds to state: “as to other portions of the resolution, however, which make the fixing of such times dependent or conditional upon Chile’s giving full effect to certain resolutions and regulations heretofore adopted or which may hereafter be adopted by the Plebiscitary Commission, Chile continues her appeal and submits herewith, in addition to the documents set forth in Your Excellency’s order of December 22, 1925, a memorandum pointing out the provisions in the said resolution of December 9, 1925 to which Chile particularly objects as especially affecting the operation of the last mentioned resolution. The Agent for Chile further declares that her appeal upon the resolution of December 9, 1925, is prosecuted in this sense “in order that the resolution may be amended or modified by eliminating therefrom the objectionable assumptions and conditions.” From the memorandum referred to by the Agent for Chile and accompanying his communication, it appears that the “objectionable assumptions and conditions” thus drawn into question are found in the provisions of Sections 6 and 7 of said resolution hereinabove quoted.
5.
The Arbitrator on due consideration is of opinion that permission to withdraw the appeal, in so far as the schedule of dates fixed by the resolution of December 9, 1925, is concerned, should be granted.
When the order allowing the appeal was made on December 22, 1925, the only specific decision of the Plebiscitary Commission certified for review was apparently the rejection of one schedule of dates and the adoption of another. On examining the two provisions of the resolution to which Chile objects on this appeal, the Arbitrator is of the opinion that Section 6 should not be taken as setting forth conditions modifying or limiting the action of the Plebiscitary Commission in fixing the schedule of dates but rather as intended to express the desire and request that both parties should give their earnest cooperation to the end that a fair and orderly plebiscite may be held in accordance with the terms of the Opinion and Award. Section 7 would seem to be a similar appeal addressed particularly to the Chilean Government as the party charged with the responsibility of administration in the plebiscitary area. These requests do not appear to the Arbitrator to furnish grounds for objection or to constitute specific action of the Commission requiring review. The Commission under the terms of the Opinion and Award has authority to change the dates fixed by the resolution in question and the reference to this authority in the resolution, and the manifest desire that the exercise of this authority should not be required, does not in the opinion of the Arbitrator present ground of appeal.
6.
The Arbitrator is not disposed however, to take a technical view of the situation, and desires, in a considerate and helpful spirit, to assist, so far as he can, in eliminating the differences which have arisen between the parties, acting of course within the limits of the powers which the parties themselves have conferred upon him.

The holding of the plebiscite is but the execution of the agreement of the parties as found in the Treaty of Ancon. In the submission to the Arbitrator, it was explicitly agreed that the Arbitrator was empowered “to determine the conditions” of the plebiscite. The agreement for a plebiscite manifestly would not be satisfied by the holding of a plebiscite as a mere matter of form and the purpose in empowering [Page 280] the Arbitrator to determine the conditions of the plebiscite was to the end that there should be proper safeguards for the holding of a fair plebiscite. Hence the Arbitrator concluded, as the Award states, that the conditions of the plebiscite should be such as would “work substantial justice between the parties in the present circumstances.” As it was plainly impossible that all the requisite conditions should be fixed in detail by the Award, it was necessary that a suitable agency should be constituted. The Arbitrator stated in the Award that it was obvious “that the holding of the plebiscite should be appropriately supervised by competent and impartial authority.” It was for this purpose, and as one of the conditions determined by the Arbitrator under the submission, that the Plebiscitary Commission was established. The construction of its powers and duties should be determined in the light of the end to be achieved, that is, the holding of a fair plebiscite in accordance with the agreement of the parties.

It was provided in the Award that the Plebiscitary Commission should have “in general complete control over the plebiscite.” The specification of the particular powers of the Commission in relation to registration and the casting and counting of the vote was not intended by the Arbitrator to detract from, this “complete control” and this control, for which the Award provides, embraces all authority necessary for the determination of the prerequisites of a fair plebiscite. The action of the Commission in determining these prerequisites, and in making its requirements accordingly, is at all times subject to review by the Arbitrator upon proper appeal. But the determinations and requirements of the Commission taken in the exercise of the full authority thus conferred by the Award constitute conditions of the plebiscite with the same force and effect as if prescribed by the Arbitrator directly under the submission, and these conditions are binding upon both parties. From the very moment of its organization, the conditions for the holding of a fair plebiscite in Tacna and Arica became the primary concern of the Plebiscitary Commission. It was and is the duty of the Plebiscitary Commission, in order that appropriate requirements for a fair plebiscite might be made, to take note of the actual situation in the plebiscitary territory and to form its own judgment with respect to appropriate measures.

This authority of the Plebiscitary Commission does not derogate from the administrative powers of Chile conferred by the Treaty of Ancon over the plebiscitary territory. As the Arbitrator pointed out in the Award, it was not deemed to be necessary to discuss any question of sovereignty over this territory. It was sufficient to take the express words of the Treaty under which the territory was to be in Chile’s possession and subject to Chilean laws and authority pending the plebiscite. But this retention of possession and administrative authority were subject to the provision for the taking of the plebiscite and it was stated in the Award that the exercise by Chile of legislative, executive and judicial power should not go to the extent of frustrating the provision for a plebiscite. As both parties had agreed to a plebiscite, both parties were bound to take proper action that it should be fairly held. The agreement of Chile and Peru that the Arbitrator should establish the conditions of the plebiscite carried with it the undertaking to abide by these conditions and these conditions prescribed by the Award include, as has been [Page 281] said, the requirements made by the Plebiscitary Commission under the authority conferred by the Award. The execution of these requirements is but the exercise by both parties of their jurisdiction respectively in accordance with their agreement. The carrying out of these requirements of the Commission in the plebiscitary area is not in derogation of the administrative authority of Chile but is the use of that authority in accordance with the terms of the Treaty and the Award. This does not involve the assumption either by the Arbitrator or by the Commission of any authority other than that of determining the conditions upon which a fair plebiscite may be held, and if these conditions are not observed by either party the responsibility must rest upon the party or parties to which the failure may be attributed.

Conclusion

The Arbitrator accordingly decides upon the present appeal:

1.
That the appeal from that portion of the resolution of December 9, 1925 which fixes the time for the submission and adoption of rules and regulations governing the plebiscite, and also the times for registration of voters, for the institution and conclusion of proceedings to review the rulings of the registration boards, and for the taking of the plebiscitary vote, having been withdrawn, be and the same is hereby dismissed of record.
2.
That Sections 2, 3, 4 and 5 of the resolution of December 9, 1925 be and they are hereby construed as an order of the Commission fixing “the date for the plebiscite and the time and places of registration and voting”, subject to the power of the Commission to change the same as provided in the Opinion and Award, but not conditioned by or dependent upon any of the other provisions or recitals contained in said resolution.

Calvin Coolidge
Arbitrator.

By the Arbitrator
Frank B. Kellogg
Secretary of State.

January 15, 1926.”

Kellogg
  1. For text of treaty of Oct. 20, 1883, see Foreign Relations, 1883, p. 731; for texts of the protocol and supplementary act of July 20, 1922, see ibid., 1922, vol. i, p. 505.
  2. See undated telegram from the president of the Plebiscitary Commission, Foreign Relations, 1925, vol. i, p. 428.
  3. Ibid., 305.