Foreign Relations of the United States Diplomatic Papers, 1936, The American Republics, Volume V
The Chargé in Mexico ( Boal ) to the Secretary of State
[Received June 22.]
Sir: With reference to my telegram No. 97 of June 19, 5 pm, I am transmitting herewith a copy of the Foreign Office’s note of June 18, 1936 and of the proposed convention enclosed therewith. There are [Page 739] likewise enclosed a copy of the English text of the proposed agreement and a translation of the Foreign Office’s note. The original Spanish and English texts of the proposed convention in sextuplicate, which have been signed by the Mexican Agent, are being forwarded by today’s pouch with the usual copies of this despatch.
The Mexican Minister for Foreign Affairs ( Hay ) to the American Ambassador ( Daniels )
Mr. Ambassador: I have the honor to reply to Your Excellency’s courteous note number 1634 dated the 2nd instant, in which, under instructions from your Government you were good enough to propose a special procedure whereby claims filed by the two Governments with the General Claims Commission and which the respective Agencies have not memorialized shall be submitted to the consideration of the Commissioners in an Omnibus Memorial which, by including all such claims, shall permit the Arbitral Tribunal to hear and decide them on the sole basis of the Memoranda, (the claims) to be thus eliminated in accordance with Article VIII of the Convention of September 8, 1923.
I beg to inform Your Excellency that the Government of Mexico likewise considers that the Agencies of the two countries before the Arbitral Tribunal have operated on the theory that it would be a futile waste of time, effort and money on the part of both Governments to submit to the consideration of the Commissioners or the Umpire all the claims filed without reference to the merits of each one, wherefore both Agencies have refrained from submitting the Memorials corresponding to a large number of claims duly (opportunamente) presented in the form of a Memorandum in accordance with the Convention of September 8, 1923; nevertheless, I must invite Your Excellency’s attention to the fact that such failure (to file) is not due exclusively to the desire on the part of the two Governments to save time, effort and money, but rather this course has been imposed on them by the Protocol which the Governments of the United States and of Mexico signed on April 24, 1934, paragraph (h) Clause Six of which expressly stipulated the obligation of both Agencies, and therefore of both Governments, to present within the thirty days following the first day of February 1935—the date on which began the two years fixed for the filing of pleadings (escritos) with the Commission—and, six months after said date, the tentative and definitive [Page 740] lists, (respectively,) which would show the total Memorials and Briefs (Alegatos) which will comprise the claims to be completed and filed (qice habrían de formularse en las reclamaciones que en definitiva quedarían formalizadas.) The compulsory nature of the provisions of paragraph (h) referred to above is shown by the fact that this paragraph itself provides that, unless by later agreement between the two Governments, the number of pleadings or briefs can not exceed ten per cent of the number contained in the definitive lists of both Agencies. The Mexican Government understands that both Agencies have fully complied with the provisions of the Protocol in this respect—provisions which, moreover, do not appear to present any difficulty of interpretation. In fact, although Article VIII of the Convention of September 8, 1923, expressly states that claims filed with the Commission shall be considered as fully settled, barred, and, after the close of the Commission’s work, as inadmissible, provided they have been heard and decided; nevertheless, in signing the Protocol of April 24, 1934, which contains paragraph (h) of Clause Six above referred to, both Governments expressed their understanding that those claims which had been filed with the Commission but for whatever reason not memorialized by the Agencies should notwithstanding be considered as definitely eliminated after June 30, 1936; that is to say, the failure of the Agencies to present Memorials should be interpreted as a waiver (desistimiento) on the part of the claimant Government; that therefore, and with no need for the Commission to hear and decide the respective Memoranda, these should be considered as definitely barred and eliminated in the future. This interpretation alone can justify, either from the legal or the ordinary (natural) point of view, the existence of the provisions of paragraph (h), since otherwise such provisions would appear to serve no purpose other than to save the Agencies some labor, and interpretation which perhaps is incorrect, for had this been the intention of the two Governments undoubtedly they would also have established special procedure for claims not included in the definitive list exchanged by the Agencies, nor memorialized prior to that date.
Moreover, this interpretation appears to have been the basis for the explanatory letter which the Agent of the United States sent to the Mexican Agent on July 24, 1935, in transmitting the definitive list of the claims as required by the abovementioned paragraph (h) of the Protocol. In this letter the representative of the United States says: “Those efforts have already been successful as to the extent of reducing by several hundred the number of American claims to be submitted to the Commissioners”; and further on, “… it is our hope by the continuation of this elimination work, to make possible the inclusion of all cases found worthy of arbitration” … “I feel very [Page 741] confident that if it is doing so the number of cases to be submitted by your Agency will also be materially reduced.…”* These statements show that in the opinion of the Agent of the United States the only claims which would be submitted to the Arbitral Tribunal would be those memorialized before June 30, 1936.
My Government agrees with Your Excellency’s Government that the claims arising from bonds included in the Convention of June 16, 1922, known as the “Bankers’ Agreement for the Funding of the Mexican Debt” (Convenio de los Banqueros relativo a la consolidación de Obligaciones Mexicanas) are not included in the interpretation given above to Article VIII of the Convention of September 8, 1923, and paragraph (h) of Clause Six of the Protocol of April 24, 1934; in view of which, as Your Excellency states in the note to which I have the honor to reply, the Government of the United States and the Government of Mexico, by an exchange of notes on July 8 and July 11, 1925, agreed to exclude these claims from the General (Claims) Convention of September 8, 1923.
As regards the claims of American nationals based on obligations of the States or Municipalities of the Mexican Government which for one reason or another have not been memorialized by the Agency of the United States in the terms of the Protocol, my Government states its agreement that it be considered only that international action by the United States against the Government of Mexico has been barred—without, however, this admission being taken as the acceptance of any responsibility on the part of the States and Municipalities in question towards the United States or towards the claimants.
Understanding, however, the desire of the Government of the United States, expressed in Your Excellency’s note, to have the Tribunal in some manner give the force of a decision to the agreement of the two Governments regarding claims neither heard nor decided, thus ratifying their present legal position of having been eliminated, my Government forthwith agrees that the two Agents, United States and Mexico, shall jointly submit to the General Claims Commission an agreement ratifying the elimination of all those claims, and that the Commissioners, by common consent and acting in their judicial capacity, shall approve (this action) without hearing or deciding, contributing in this purely formal manner to the realization of the fundamental desire of the two Governments to have said claims considered definitely eliminated and inadmissible in the future.
In order to avoid an unnecessary loss of time, I take the liberty of enclosing a proposed agreement between the Agents which, should it merit the approval of the Government of Your Excellency, could be [Page 742] signed by the Agent of the United States in sextuplicate, both in English and Spanish. The agent would keep the English copies of the text, returning the Spanish copies duly signed to the Agent of Mexico; so that, on the 30th of the present month of June both (Agents) might present the agreement to the respective Embassies in Washington, D. C, and Mexico, D. F., in accordance with paragraph (c) of Clause Six of the Protocol of April 24, 1934.
Please accept [etc.]
Proposed Agreement Between the Agent of the United States and the Agent of Mexico Regarding Unmemorialized Claims
The Agent of the United Mexican States and the Agent of the United States of America, duly authorized as such, respectfully represent to the Honorable General Claims Commission that they have mutually agreed in the names and in behalf of their respective Governments on the points hereinafter set out, and respectfully submit to the consideration of the Honorable Commissioners for ratification the following agreement:
- First: The subscribing Agents acting in the capacity already stated, have agreed that Article VIII of the Convention of September 8, 1923, and sections (f) and (h) of the Protocol of April 24th, 1934, are to be interpreted in the sense that all claims which were duly registered in Memorandum form before the General Claims Commission and which will not be memorialized by the 30th day of June, 1936, are to be considered and treated after said last-mentioned date as having been fully settled, barred and thenceforth inadmissible.
- Second: The subscribing Agents to the Agreement further represent that the respective Governments are in absolute accord and conformity that the Honorable General Claims Commission, acting jointly through the Honorable Commissioners of both countries, ratify this Agreement, with the express understanding that the legal effect of the decision of said Honorable Commissioners, upon the ratification of this Agreement, is to be considered as that of an agreed judgment of a Tribunal with respect to the extinction of the legal status of those claims which on the 30th day of June, 1936, have not been memorialized in accordance with the provisions of section (h), Clause VI of the protocol of April 24, 1934, it being understood, therefore, that the ratification of the provisions and stipulations contained in this Agreement by the Commissioners is made for the sole purpose of (classifying) the claims not thus memorialized, the effect of res judicata from the standpoint of International Law and with respect to the relations between Mexico and the United States.
- Third: Lastly, both Agents represent that this Agreement was submitted to the consideration and received the approval of the respective Governments which they severally represent prior to its presentation to the Honorable General Claims Commission, and that said Governments have expressly approved the exact text it contains and which said Agents subscribe in sextuplicate in the Spanish and English languages in the City of Washington, D. C, on the . . . . . day of . . . . . . . , 1936, and in the City of Mexico, D. F., on the 12th day of June, 1936.
Wherefore, the Agents of Mexico and of the United States respectfully request the General Claims Commission to ratify the Agreement contained in the foregoing clauses inasmuch as it contains the express desire of the Government which they have the honor to represent.
The Agent of the United Mexican States
- The quotations from the letter of the American Agent appear in the original English in the text of this note. [Translator’s note.]↩