The Ambassador in Mexico (Daniels) to the Secretary of State

No. 3083

Sir: I have the honor to refer to the Department’s instruction No. 922 of November 2, 1935, concerning the proposed convention regarding agrarian claims filed with the General Claims Commission, United States and Mexico.

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.

Respectfully yours,

Josephus Daniels

The American Ambassador (Daniels) to the Oficial Mayor, Mexican Ministry for Foreign Affairs (Sierra)

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 [Page 761] 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 [Page 763] 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 [Page 764] 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,

Josephus Daniels
  1. Not printed.
  2. Not found in Department files.