It will be observed, that in my communication to Dr. Aguirre-Velásquez I
also took note of his concurring in the suggestion that twelve hundred
dollars per month would seem to be a reasonable honorarium for the
arbitrator and that I told him that his suggestion that a Cuban be
selected as arbitrator, in case the Chief Justice of Belize cannot act,
was brought to the attention of the Department on August 8.
It will also be seen, that in view of the statement in the note of the
Minister for Foreign Affairs that he had said to me that the Government
of Guatemala accepts submission of the question whether Mr. Shufeldt may
collect indemnification “because the Assembly of Guatemala did not
approve the chicle contract”, I recited in my note,
[Page 150]
that he had told me on July 29, that it
would be agreeable to submit to arbitration the question “whether
Shufeldt is entitled to indemnification and if so how much”, and that in
my note, with a desire to facilitating agreement, I added that he and
the Department appear to be agreed now that the question should be
defined with more detail in the proposed identical notes and that I
believe agreement on the precise language should not present great
difficulty.
[Enclosure—Translation]
The Guatemalan Minister for Foreign Affairs
(Aguirre
Velásquez) to the American
Minister (Geissler)
Guatemala, September 19,
1929.
Mr. Minister: I have the honor to refer to
Your Excellency’s note dated the tenth of the present month, in
which you are pleased to tell me that, the Government of the United
States having taken charge of the claim of P. W. Shufeldt against
the Government of Guatemala, it confirmed the previous declaration
by which the Government of the United States desires that this
question be submitted to a single arbitrator, with regard to which
both Governments will be in agreement, the following formula being
the one which will be submitted to arbitration:
“What sum, if any, is justly due from the Guatemalan
Government to the Government of the United States on account
of the action of the Guatemalan Government in canceling by a
legislative decree (No. 1544) of May 22, 1928, approved by
the President on July 4, 1928, a contract celebrated on
February 4, 1922, between the Government and Messrs.
Francisco Nájera A. and Victor M. Morales I., for the
extraction within a defined area of the Department of Petén,
and exportation, of a minimum of 75,000 quintals of chicle
over a period of ten years, the rights of the said Nájera
and Morales having been ceded, by a contract of February 11,
1922, to P. W. Shufeldt, a citizen of the United States,
which was recognized and accepted by the Guatemalan
Government.”
And you kindly propose, besides, the proceedings which the tribunal
is to follow and how the sum is to be paid, in case of judgment
being passed to that effect.
The language which Your Excellency proposes as a formula containing
the question which the arbitration is to decide, is not clear when
translated into the Spanish language, since the translation, such as
it is transcribed, gives one to understand that it deals concretely
with the fixing of the sum of money which the Government of
Guatemala must pay to that of the United States, due to the action
it took in canceling, by legislative decree, approved by the
President, the contract entered into by the same Government of
Guatemala, with Nájera and Morales, and ceded to Shufeldt.
[Page 151]
The language which Your Excellency proposes leaves established the
following facts which my Government does not in any manner accept:
a) That the Government of Guatemala
acknowledges that the action of its Legislative Power in not
approving the contract entered into with Morales and Nájera, and
ceded to Shufeldt, gives that citizen of the United States a right
to collect a sum of money as indemnification; b) that the President of Guatemala has the power to
approve the acts of the Legislative Power, the contrary being the
case; c) that the Government of Guatemala
after having made the contract regarding extraction and exportation
of chicle and approving it, now disapproves it, thus incurring a
crass and inconsistent contradiction with itself.
As to these three points, which would be equal to acknowledging
obligation to pay the indemnity demanded, Your Excellency well knows
that they have never been acknowledged, by the Government of
Guatemala, but that, on the contrary, it has maintained and
maintains that its action has been within strict constitutional
duties without its having incurred any error which can be construed
as a deviation from the standards of strict justice.
The President neither approves nor disapproves the acts proceeding
from the Legislative Power, as the formula, which Your Excellency
proposes, states; the President respects and sanctions the
Legislative Decrees, by virtue of the clear constitutional
prescription which establishes it in this manner; and only in very
limited cases can he veto the acts of the Legislative Power.
With respect to point c) of the formula, I
must make it clear to the Minister that the Government has not
become liable for the inconsistency to which it is desired to make
it confess, but that, within the constitutional procedure, the
Assembly did not give its approval to the Morales-Nájera A. contract
and the President placed “execute,” which signifies the sanction
which he gives to the laws.
Fortunately Your Excellency will remember our conversation on the
subject, when I told you that the Government of Guatemala accepted
with pleasure submission to the arbitral decision of the Chief
Justice of Belize, of the pending question, comprising these two
different points:
- First: Has Shufeldt a right to indemnification because the
Assembly of Guatemala did not approve the chicle
contract?
- Second: In case this right is determined, what is the sum
in which it is valued?
Likewise, Your Excellency will remember the suggestion that I made
that you kindly transmit to the Department of State, that, in the
unexpected event that the Chief Justice of Belize could not perform
the duty of arbitrator, there be appointed in his stead one of the
Cuban Judges from the list pre-established in conformity with the
Central
[Page 152]
American Treaty of
1923, concluded at Washington, under the auspices and friendly
counsels of the Government of the United States, completing this, as
part of the conversation which I had the honor and the pleasure to
carry on with Your Excellency, with the ratification of that already
considered with regard to the salary of the arbitrator, which we
fixed then in the sum of one thousand two hundred dollars
monthly.
In virtue of what I have related I am pleased to inform Your
Excellency, with the request that you transmit it to the Department
of State, that the Government of Guatemala accepts with pleasure to
submit to the arbitration of the Chief Justice of Belize the pending
question expressed in the following terms:
- First. Has Shufeldt the right to collect from the
Government of Guatemala indemnification for damages and
injuries, because the Legislative Assembly did not approve
the contract of the fourth of February 1922, entered into
between the Department of Agriculture and Messrs. Francisco
Nájera A. and Victor M. Morales I., for the extraction,
within a defined area of the Department of the Petén, and
exportation of not less than 75,000 quintals of chicle
during a period of ten years; which contract was ceded by
Nájera and Morales to Shufeldt by a contract dated February
11, 1922?
- Second. In case the arbitrator declares in favor of
Shufeldt regarding the right to receive the indemnification
demanded, what is the amount of that indemnification and how
is it to be paid?
The proceeding proposed by Your Excellency is accepted, by my
Government, in principle, with a few corrections of simple detail
which should offer no difficulty in its wording.
