711.35/6–146: Telegram
The Acting Secretary of State to the Ambassador in Argentina (Messersmith)63
898. In regard to compliance with International Commitments, Argentine views as expressed by von der Becke, Perón and others are obviously premised on the proposition that the commitments are fully satisfied when the Executive Branch places the matter for implementation before the Legislative or Judicial Branches. Both because it makes Argentine commitments illusory and because as a precedent it would undermine the foundations of structure of international relations based on mutual obligations of Governments, this position is unacceptable. Not with the Executive Branch alone were our agreements with Argentina. Although the known constitutional limitations on the power of the Executive Branch to bind Government as a whole are universally understood as to most modern Governments, the assumption of obligation implies representation and auxiliary obligation that the Executive Branch will take every possible step needed for timely performance by the Government as a whole, and that the Executive Branch is unhampered in this by conditions undisclosed to the obligee Government. Argentina has sought and enjoyed the benefits of the agreements to adhere to Chapultepec and obtain admission to UN without any indication to the world that their concomitant obligations not also assumed by Argentina and binding, and, in justified reliance that the obligations and benefits of the agreements were reciprocal, benefits were given by U.S. and other Governments. From the beginning, we had been assured by responsible Argentine officials, including Vice President Perón, that these agreements fully binding of the Argentine Government and had in fact embarked on actual substantive performance of specific obligations (reDeptel 1124, dated June 1, 194564) thereafter, as required by provisions of Argentine commitments, Argentine Government apprehended and deported certain German agents, seized German assets, intervened and liquidated certain firms, closed certain schools, etc. Without ever having raised any question concerning the binding effect of obligation on Argentine side or precedent necessity of obtaining any further ratification or implementary action, to have accepted the benefits of commitments from this Government and other United Nations must lead [Page 269] to the conclusion either that fundamental misrepresentation was made to the United States or that reference to other branches of the Argentine Government is essentially a form of callous violation and repudiation. If at all dependent on congressional ratification, the original obligation required the Argentine Government immediately to convoke congress or take the necessary steps of congressional convocation before acceptance of the benefits and not so to conduct self as to constitute representation in fact that the commitments were then binding in full. Therefore, failure to convoke Congress constitutes an unacceptable method by which Argentina disables own performance or is a deception of a serious nature. Re cases to Judicial Branch, similar considerations apply. Although no requirement interfering with the exercise by courts of judicial function may be imposed under law with respect to pending cases, all Branches, and especially Executive and Legislative, must be deemed obligated by international commitments to take every step necessary to insure the speediest possible performance by the Argentine Government of the obligations thereunder either by passage of expediting legislation or by the exercise of administrative discretion. The Department, specifically, cannot admit propriety of further postponement of determination of cases of expulsion or replacement for allegedly normal period routine court calendar or drawnout procedures where expedition is in fact possible now. It is expected by us that the Argentine Government provide expedition as, for instance, by preferential calendar treatment by administrative action or legislation of setting up, with limits permitted by the constitution or law, of a special court. Under existing Argentine law these forms of expedition are possible, according to the Department’s information. Obligations require the Argentine Government, moreover, through executive or judicial agencies to pursue vigorously and thoroughly litigation all issues of pact and law by competent counsel and before thoroughly impartial judge. Throughout at every stage, sincerity and good faith of litigation and presentation of facts and arguments must be evident.
For your information the foregoing statement of the thinking of the Department on this subject is sent to you. Of course, if there is prompt and adequate performance by Argentina these questions will not arise. Your comments on the above are requested, nevertheless. It is also requested that you explore the domestic aspects of Argentine law covered above with a reputable and wholly impartial Argentine lawyer.