In accordance with this instruction, on November 22 a letter was
addressed to Mr. Sierra, the Mexican negotiator, a copy of which is
enclosed herewith.
As the Department is already aware, the Mexican Government has decreed
official holidays for all Government employees from November 20, the
anniversary of the revolution, until the end of the month, which this
year brings these holidays up to Monday, December 2. During these
holidays it is practically impossible to do any business with the
various departments of the Mexican Government, since the responsible
heads of the various departments go out of town and leave a very junior
official in charge. A reply from the Mexican government can, therefore,
not be expected until after these holidays next month.
[Enclosure]
The American Ambassador (Daniels) to the Oficial Mayor, Mexican Ministry for Foreign
Affairs (Sierra)
Mexico, November 22, 1935.
My Dear Mr. Sierra: I refer to your aide-mémoire dated October 11, 1935,8 with which was
enclosed a draft of a protocol relative to the agrarian claims
referred to in Article I of the protocol signed in the City of
Mexico on April 24, 1934. A copy of the aide-mémoire and the draft of the proposed protocol were
forwarded to my Government
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for consideration and I have now received further instructions in
which I am requested to inform you as follows:
In the aide-mémoire referred to above, it is
stated in the discussion of Articles II and III of the draft that
the Mexican proposal stipulates that the memorials shall deal
exclusively with facts, although it is admitted in the same sentence
that the protocol of April 24, 1934, permits the memorials to state
also “the legal principles the basis of a claim”. Moreover, in this
same discussion the aide-mémoire cites as an
evident advantage of the system the Mexican Government is proposing
that “it satisfies the Mexican stand on the elimination of all legal
discussions”. Furthermore, in discussing the provisions of Articles
IV and V, it is stated in the aide-mémoire
that the text of the draft protocol submitted with my letter of
September 26, 1935,9 would appear to admit the possibility
of presenting arguments of a legal nature and that the text of the
Mexican protocol is designed to overcome this difficulty.
In connection with the foregoing, it is provided in the General
Claims Convention between the United States and Mexico of September
8, 1923, (Article III) that each Government may present to the
General Claims Commission, orally or in writing, all the arguments
deemed expedient in favor of or against any claim and (Article II)
that the Commissioners shall make and subscribe a solemn declaration
stating that they will decide the claims in accordance with the
principles of international law, justice and equity. It is even set
forth in Article IX of the Convention that in any case the
Commission may decide that international law, justice and equity
require that a property or right be restored to the claimant in
addition to the amount awarded in any such case for loss or damage
sustained prior to the restoration.
The Convention clearly contemplates that the claims of American
citizens on account of property expropriated for so-called agrarian
purposes by the Mexican Government shall be supported by their
Government with arguments of a legal nature and shall be decided in
accordance with international law and consequently the American
Government would not be justified in imperiling the interests of the
claimants by agreeing to any provision which might later be
construed to preclude the American Government from supporting the
claims by arguments directed to the legal issues involved. Moreover,
in the absence of such arguments it is difficult to see how the
persons appointed to deal with the claims, should the Mexican draft
be accepted, would have sufficient basis for reaching a rightful
determination thereon.
[Page 762]
Turning to the specific changes proposed in the Mexican draft, it is
observed that in Article I there have been added to the definition
of agrarian claims those arising from the subdivision of large
estates, while with respect to the claims arising from the
nullification of titles the limitation contained in my draft
submitted September 26, “for the benefit of centers of population”
has been omitted.
My Government is unable to agree to the proposed change and is of the
opinion that claims arising from the taking of lands when such lands
have not been distributed as ejidos are not
properly agrarian claims and have not been so considered in the
discussion of this subject between the two Governments beginning
with the Bucareli Conference of 1923. Moreover, the terms
“subdivision of large estates” and “nullification of titles” are so
general in character that it might later be argued that they would
embrace claims clearly not agrarian in nature. In this relation it
should be pointed out that in at least one claim (that of Mattson,
Docket No. 3079) where the issue involved was the expropriation of
petroleum deposits, the Mexican Agent has declined to answer the
memorials on the ground that the claim is agrarian in character.
This case is cited as evidencing the danger which would be involved
in consenting to a definition of agrarian claims in the terms now
proposed by the Mexican Government.
Article II of the Mexican draft proposes to limit the pleadings to
memorials and answers and taken in connection with the
above-mentioned provisions of the aide-mémoire, it would presumably result under the
protocol, if accepted, that the Mexican Government would insist upon
its interpretation of this Article to the effect that the memorial
should deal merely with facts and abstain from legal discussions.
For the reasons above stated, no such agreement can be made by the
American Government.
With respect to the proposed provisions of Article II of the draft,
my Government is constrained to insist that the provisions of this
Article as contained in the draft submitted with my letter of
September 26 should be retained providing as they do for the right
to submit the pleadings and briefs authorized by Paragraph Sixth of
the Protocol of April 24, 1934.
Article III of the Mexican draft provides that memorials and answers
shall be presented to the representatives appointed to consider the
agrarian claims and that if they shall determine that any particular
claim is not agrarian, they shall transfer the claim to the General
Claims Commission. There is no provision in this Article for the
probable case of a disagreement by the two parties respecting the
classification of a particular claim nor as to the time within which
a claim returned to the Commission shall be so returned. These
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omissions would seriously
jeopardize the work of the American Agency with respect to a claim
returned to the Commission and apparently render it impossible so to
organize the work of the Agency with respect to agrarian claims, as
is necessary to complete such work in accordance with the terms of
the protocol under which the Agency is proceeding. Moreover, under
the terms of Article III of the draft, if accepted, the contention
might be made by the Mexican Agency with respect to some claims
filed by the American Agency with the General Claims Commission that
such claims are agrarian claims. This would result in conflicts
respecting the jurisdiction of such claims with two sets of
Commissioners each in a position to determine which of them had
jurisdiction over the case.
My Government is of the opinion that the only arrangement which might
be expected to work smoothly with regard to the agrarian claims
would be that contemplated in my last draft, that is, to place the
claims before the General Claims Commissioners, leaving it to them
to determine which are agrarian claims, the latter to be disposed of
by the method provided in Articles IV, V and VI of that draft.
With regard to Article IV of the Mexican draft it may be said that in
connection with the above-mentioned statements of the aide-mémoire, it might be argued that, under
the provisions of this Article, if accepted, the Commissioners were
precluded from recording their conclusions of law.
The provisions of Article V of the Mexican draft carry out the idea
involved in Article III thereof that the pleadings shall be
delivered to the representatives provided for in Article IV of the
draft rather than to the General Claims Commissioners and such
provisions are therefore unacceptable to that extent. Furthermore,
no provision is made in this Article for a limitation upon the time
spent by the two Governments in negotiations, if the Commissioners
shall disagree upon the matter of the sum to be paid. A brief period
only should be provided for diplomatic efforts to agree upon the sum
to be paid.
In view of the expressed desire of the Mexican Government to expedite
the consideration of agrarian claims, the American Government would
be willing to agree to limit to three months the period for the
consideration of such claims by the representatives referred to in
Article IV.
So far as concerns the provisions of Article VI of the Mexican draft
they are satisfactory.
I am accordingly instructed to inform you that, except as above
indicated, the draft submitted with my letter of September 26
represents the ultimate concessions which my Government considers
itself
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justified in making
to meet the views of the Mexican Government respecting the
disposition of the agrarian claims and it would be greatly
appreciated if you would kindly advise me at an early date whether
the Mexican Government is disposed to conclude a protocol along the
lines of that draft. Should the Mexican Government not be disposed
to recede from its position as disclosed by the draft under
consideration and the accompanying aide-mémoire there would appear to be no alternative but
to consider the negotiations at an end and to proceed with the
filing of the memorials of the agrarian claims with the General
Claims Commission.
Very sincerely yours,
