740.0011 EW (Peace)/3–2848: Telegram

The Minister in Bulgaria (Heath) to the Secretary of State

secret   priority

404. In connection with Bulgarian refusal permit inspection frontiers reported Legtel 396, March 26,1 it must be recognized that no [Page 315]diplomatic measures US could take will in themselves persuade Bulgarian Government fulfill terms treaty already flagrantly violated. Thus value of treaty at present appears limited to:

1.
Publicity and illumination of reprehensible character local regime and
2.
Keeping record clean order that possible subsequent more effective action will be legally justified.

In keeping legal record clear two possible lines action appear open to US in this case:

(a)
To rebut contentions of Bulgarian Government and thereupon let matter rest. Disadvantages are that this leads to no end and appears as diplomatic weakness US in failing follow disputes procedure Article 36 agreed to by US. Only arguments in favor are possibility that US would lose arbitration decision and that situation may be approaching more universal crisis which would make arbitration anachronistic.
(b)
To invoke machinery Article 36 at once with reference refusal permit inspection Greek frontier (leaving out of consideration for moment Article 2, Department may wish include in its dispute specifications refusal Bulgarian Government give all information requested concerning strength and composition Bulgarian armed forces and perpetuation and unprecedented expansion prohibited frontier military zone by Bulgarian Government).

As regards arguments to be used, one theory is that since Article 35 will certainly be invoked by Bulgarian Government we should in our note boldly base our case on our interpretation that article.

British Minister, however, in knowledge his government had shown reluctance hitherto to press interpretation Article 35 to point of arbitration, is recommending that at this stage it would be best not to raise purely legal point at issue, but to state more generally our conception our rights under Article 35 without specific reference that article or to its text. His formula would be somewhat as follows: “(b) Although the three heads of missions cannot separately issue binding interpretations of treaty or prescribe specification for its execution, they have individual responsibility to satisfy selves that treaty being implemented and they entitled not only to information from Bulgarian Government, but to positive assistance in enabling them fulfill that responsibility and to judge whether or not situation exists which would require joint consideration by three heads of missions.”

While in draft note forwarded in next numbered telegram,2 I have followed first theory in resting our case specifically on Paragraph 3, Article 35, I have no preference as between two alternatives. Will Department decide?3

[Page 316]

Arbitral procedure may of course never reach final decision. Nevertheless, in order avoid any reproach of having failed perform our obligations or to have sought our remedies under treaty I believe procedure should start at once. Date of letter notification of dispute should be stipulated date on which Article 36 time limits shall commence. I may say here that several intelligent Bulgarians of opposition have urged our resort to arbitral procedure.

But publicity seems greatest value of treaty at present time although publicity use treaty violations does not necessarily coincide with our legal action. In case in question resort publicity seems unavoidable. Veiled threat in penultimate paragraph Bulgarian note makes them vulnerable publicity. Both British Minister and I feel it would probably be unwise for any governmental statement draw clear inference that Bulgarian prohibition of border area inspections is to protect and conceal activities hostile to Greek Government but hope American press will do so.

Sent Department 404, repeated Bucharest 43, Budapest 34, London 49.

Heath
  1. Not printed; it transmitted the text of the note of March 26 from the Bulgarian Foreign Ministry to the Legation in Sofia briefly described in footnote 6, p. 285.
  2. Neither the draft note nor the telegram under reference here is printed.
  3. The Department appears not to have replied directly to this message.