411.12/1765: Telegram
The Secretary of State to the Chargé in Mexico (Hawks)
37. Your cables No. 23, March 14, 5 p.m., No. 24, March 15, 10 a.m.,58 and No. 28, March 17, 10 a.m. Assuming that suggestions contained in your 23, March 14, represent official position of Foreign Office, following comment is submitted for your use in reply thereto:
1. Department has no serious objection to suggested change on page 6 of draft Protocol. It is assumed, however, that by “line 6” in first paragraph your cable No. 23 is meant “line 5”. Since the suggested substitution would occur in Article 5, it is believed that the following words at the end of the suggested paragraph “Article 5 of this Protocol” might be replaced by “of this Article”.
2. Department is unable to agree to the proposed change in paragraph (d), page 8, of Protocol, as explained in your 28, March 17, 10 a.m. If evidence is filed by the respondent Government with reply brief, it would be necessary to give the claimant Government the right to file another pleading in which it could discuss the evidence submitted with the reply brief. This would disrupt the whole plan of simplified procedure. Paragraph (d), as presented in our draft, contemplates that all evidence shall be filed with the Memorial and Answer, except that evidence may be filed with the brief to rebut evidence filed with the answer. This would appear to be fair to both sides, and [Page 439] is in keeping with the desire expressed by both Governments for simplified procedure. Since the Agent for the defendant Government will be obligated to file all of the evidence in defense of the claim with the answer, and since the evidence which may be filed with the brief will be strictly limited to evidence in rebuttal to that filed with the answer, the rights of the respondent Government would be fully protected by the procedure set forth in the draft as submitted. It is hoped that you will be able to convince the Mexican Government that no change in the draft in this respect should be made.
3. Department has no objection to omission of word “umpire”, second line, page 9.
4. Department considers that suggestion that all matter following the word “rests”, line 15, page 9, to end of paragraph, is too sweeping as regards cases in which answers have already been filed. These answers were filed under the old system of pleading. Many of them consisted merely of a denial of the allegations in memorials. Such an answer would not afford the claimant Government sufficient information on which to base an adequate argument in support of the claim in the brief, since it would not disclose the factual and legal defenses of the respondent Government which, under such circumstances, would first appear in the reply brief. It would therefore seem to be only fair that in such cases the claimant Government should have an opportunity, if it should so desire, to file a counter-brief. You may, if necessary, compromise on the Mexican proposal by omitting from line 16, page 9, the words “or hereafter filed”. Such a change would limit the filing of counter-briefs to those cases in which the answers have already been filed.
5. Page 14, line 2. Department considers that the 30–day provision is desirable, and will be found to be most helpful to the Agents of both Governments at times when, because of involved nature and number of pleadings under consideration, or other unforeseeable contingencies, it may be difficult to file all the pleadings within the time specified in paragraph (j) of Article 6. It is believed that a comparison of the reasons for and advantages in retaining the provision with those against it should satisfy the Mexican authorities that it should be retained. For assistance to you in the discussion of the subject with the Mexican authorities, see also the comments on pages 12 and 13 of instruction 283, March 9.59
6. Department concurs in view of Foreign Office that no additional powers are required for the signing of the Protocol, as implied by the first paragraph draft. The reference to full powers may be omitted.
7. It is hoped that the Protocol may now be agreed upon, with only those changes indicated herein.
8. Special Convention:
[Page 440]The Department notes your report regarding the Santa Isabel cases. For the reasons stated in paragraph beginning at bottom of page 2 of instruction No. 282, March 2 [9],60 Department feels very strongly that some provisions should be made for these cases. Department is not so much concerned as to the form that such provision shall take so long as the desired results are attained.
You are requested to urge this point as vigorously as possible, since failure to make some provision for the Santa Isabel cases, in view of the fact that an allowance was made to the British Government in cases growing out of the same incident, might greatly jeopardize the chances for obtaining Senatorial approval of the Convention.
You are, of course, aware of the necessity for prompt action, particularly with respect to the Protocol concerning general claims, in view of the fact that appropriations will have to be obtained for the expenses of this Government. And that should be effected if possible during present session of Congress.