437.11/1–545
The Ambassador in Cuba (Braden) to the
Secretary of State
No. 8543
Habana, January 5,
1945.
[Received January 9.]
Subject: Claims of United States Nationals.
Sir: I have the honor to refer to the
Department’s instruction No. 4756 of December 16, 1944. In view of the
recent change of Government,19 I did not feel that I could send a
formal note to the present Government embodying the strong, but very
valid, observations contained in the Department’s instruction. I
decided, however, that it was necessary to put on the record a full
denial of the arguments which had been put forth by the former Minister
of State in his note No. 2466 of October 4, 1944.20
To meet this situation, I have written note No. 2, January 2, 1945, to
the present Minister of State; I enclose a copy for the information of
the Department. It will be observed that I express, in my note,
appreciation for the sympathetic consideration which this matter has
received from Dr. Grau and other members of his Government. At the same
time, I refute the arguments of the former Government in a memorandum
attached to my note.
I regret to say that I am not very optimistic that this important
question will receive prompt attention from the Government of Dr.
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Grau. I believe that the
President has the best of intentions and that when he talks with me he
has every wish to meet the legitimate requests of the United States
Government. Unfortunately, however, his Administration is extremely
unbusinesslike and he does not have the ability to delegate to
responsible Cabinet Ministers the authority to carry out important tasks
such as the one relating to the settlement of claims of United States
nationals.
During my luncheon meeting with President Grau and Ambassador Belt21 on December 28, it was suggested that I
prepare a memorandum showing the present status of all questions pending
between this Embassy and the Cuban Government. Such a memorandum was
prepared and copies were given to President Grau, Foreign Minister
Cuervo Rubio, and Ambassador Belt on December 30, 1944. The following
paragraph with regard to claims is quoted from that memorandum:
“5. Claims of United States Nationals.
President Grau is in agreement that claims which have been the
subject of favorable decisions by the Cuban Supreme Court should
be paid promptly by the Cuban Government. The President is
likewise in agreement that claims admitted by various
departments and agencies of the Cuban Government should be paid
so promptly as possible. With regard to claims which have not
received final approval of the Cuban Government, the President
agreed as to the desirability of submitting these to a Mixed
Commission.”
I would respectfully suggest that the Department take
every possible occasion to impress upon Ambassador Belt the importance
of setting up the machinery for the settlement of these claims so
promptly as possible.
Respectfully yours,
[Enclosure]
The American Ambassador (Braden) to the Cuban Minister of State (Cuervo Rubio)
No. 2
Habana, January 2,
1945.
Excellency: I have the honor to refer to
the conversations which I have had with Your Excellency as well as
those with Their Excellencies the President of the Republic and the
Minister of Finance22 concerning claims of United States nationals
against the Cuban Government.
I wish especially to express my appreciation for the courteous and
sympathetic consideration which this matter has received from the
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present Government.
Also my Government and I are similarly grateful for the intention
expressed by President Grau that prompt action should be taken by
his Government looking toward the meeting of these obligations.
As Your Excellency may be aware, I sent note No. 847 of September 30,
1944, under instructions from my Government,23 to Your
Excellency’s predecessor. In that communication I again expressed
the conviction of my Government that the claims based on Supreme
Court decisions and those based on non-payment for services rendered
or supplies furnished under contract should be paid without delay. I
likewise transmitted with that note a draft Claims Convention24
to take care of those claims of which the validity has not yet been
fully determined. On the afternoon of October 10th, 1944,
immediately after the previous Government had left office, there was
delivered to me note No. 2466 of October 4, 1944 by which the
Minister of State refused to consider the enclosed Convention and
even returned to me the copy which I had sent him under cover of my
official note.
While in the light of the splendid assurances received by me from the
Government of Dr. Grau a discussion of this exchange of notes now
appears academic, nevertheless my Government feels that it cannot
permit to remain on the record unanswered the point of view set
forth by Your Excellency’s predecessor in his above-mentioned note.
I am therefore taking the liberty of sending you herewith a
memorandum setting forth my Government’s observations on note No.
2466.
In view of President Grau’s forthright and highly satisfactory
assurances in these matters and because of the encouraging
conversations which I have had with Your Excellency and with other
officials of the present Government, I trust that steps may be taken
in the near future to implement the President’s desires in respect
of this important matter. To this end, it is my understanding that
Your Excellency’s Government will, so soon as possible, begin
payment on those claims of United States nationals which are based
on decisions of the courts of Cuba and those which are based on
non-reimbursement for services rendered or supplies furnished to the
Cuban Government under contract and that, with respect to those
claims of United States nationals which have not yet been fully
recognized by the Cuban Government, a mixed claims commission will
be set up to consider their, validity.
Please accept [etc.]
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[Subenclosure]
Memorandum by the American Ambassador
(Braden)
to the Cuban Minister of State (Cuervo Rubio)
Claims of American citizens and American companies against the Cuban
Government have been the subject of conversations and correspondence
between the Embassy and the Ministry of State over a long period of
time. Some of these claims date back more than thirty years without
any payment having been made on them, despite the fact that a number
of the claimants have exhausted all legal processes open to them and
have been the recipient of favorable decisions in the Cuban Supreme
Court. A partial list of these claims was sent to the Ministry of
State under date of June 2, 1944, and reference thereto was made in
the Embassy’s note no. 803 of September 14, 1944.
Ambassador Braden in his note no. 847 of September 30, 1944, written
under instructions from the Department of State, again expressed the
conviction of his Government that the claims based on Supreme Court
decisions and those based on non-payment for services rendered or
supplies furnished under contract should be paid without delay. With
reference to the other claims the validity of which has not yet been
finally determined, the Government of the United States proposed a
Draft Claims Convention for the consideration of the Cuban
Government. In his note no. 2466 of October 10 [4], 1944, the Minister of State, Dr. Mañach, refused to
consider the proposed Convention; with respect to the other claims,
the Minister reiterated the intention of the Cuban Government to
make payment but gave no indication that any effective action toward
that end had been taken.
The Government of the United States is deeply concerned by this
failure of the Cuban Government to meet its obligations to United
States nationals. The Government of the United States has noted the
statement made by Dr. Mañach in his note of October 10 [4] to the effect that the Government of Cuba
“continues to make necessary arrangement” for the satisfaction of
these claims. The Minister of State referred particularly to the
decree issued August 2, 1944, which “ordered” the payment of
approximately $148,600 on account of only three of the many
outstanding claims of the character under discussion. It is the
opinion of the Government of the United States that the mere
issuance of this decree is not convincing evidence that the Cuban
Government “continues to make necessary arrangement” for payment of
the claims of United States nationals. It may likewise be observed
that the Government of Cuba appears to have taken no
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effective steps to make payment on
account of the three claims involved, much less the payment of the
numerous other undisputed claims involving amounts many times the
total of the claims mentioned in the decree.
In the communication from Dr. Mañach, it is stated that those claims
of which the validity has not yet been fully determined by court
action or through recognition of the Cuban Government are “excepted”
from the provisions of the Inter-American Arbitration Treaty of
1929, to which both the United States and Cuba are parties, and that
consequently such claims should be settled in accordance with the
procedure described by domestic law. It may be observed that by
Article I of that Treaty the Governments obligated themselves to
submit to arbitration “all differences of an international
character” which may arise and which it has not been possible to
adjust by diplomacy. However, by Article II there were excepted from
the stipulations of the Treaty controversies “which are within the
domestic jurisdiction of [any of] the parties to the dispute and are
not controlled by international law”.
The Government of the United States does not contend that the
provisions of the above-mentioned Treaty obligate the Government of
Cuba to agree to submit to arbitration the claims in question. It
may be observed, however, that the stipulation in the convention
excepting certain classes of cases from compulsory arbitration, as
provided for in Article I, merely constitutes a recognition of the
generally accepted principle of international law which requires, as
a condition precedent to the establishment of a valid international
claim, the exhaustion of such legal remedies as may be available in
the tribunals of the state against which the claim is preferred. In
that relation, reference must be made to another generally accepted
principle of international law which dispenses with the requirement
of exhausting local remedies when those remedies appear
insufficient, illusionary, or ineffective in securing adequate
redress.
According to information contained in the files of the Department of
State, several American claimants have exhausted remedies available
to them in the courts of Cuba and, despite the fact that they have
obtained judgments against the Government of Cuba, that Government
has failed to satisfy such judgments, which have now been
outstanding over a period of six to thirty or more years. In view of
the failure of the Cuban Government in this respect to comply with
the obligations imposed upon it by international law to give effect
to decisions of its courts, no reason is perceived why all other
American claimants, including those possessing undisputed claims,
should be required to have their claims reduced to the form of
judgments of
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Cuban courts
against the Cuban Government, a procedure which, in the light of the
past record, would appear to be ineffective and futile.
Consequently, it is the view of the Government of the United States
that the Cuban Government is, from the standpoint of international
law, hardly in a position to insist that American claimants resort
to such procedure as may be provided by Cuban law to reduce their
claims to the form of judgments by Cuban courts. Since it appears to
be well settled that a state cannot appeal to its domestic
legislation as an answer to demands for the fulfillment of
international duties, it is also the view of the Government of the
United States that the Government of Cuba cannot properly seek to
avoid its international obligation to make provision for the
settlement of claims of American nationals on the basis of the
alleged fact that under the laws of Cuba the courts of Cuba are
vested with jurisdiction to consider such claims.
Habana, December 28,
1944.
