Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 7, 1903
Mr. Beaupré to Mr. Hay.
Bogotá, June 20, 1903.
Sir: Referring to my No. 48, of the 13th instant, I have the honor to report that I have received from the minister for foreign affairs a [Page 152] counter memorandum relating to the Department’s telegram of the 9th instant, and to the Panama Canal negotiations.
A copy and translation of the same are herewith inclosed.
I am, sir, your obedient servant,
Bogotá, June 18, 1903.
counter memorandum.
In the memorandum presented to this department by the minister of the United States, personally, on the 13th of the present month, he says he has received instructions from his Government, by cable, to state that it seems that the Government of Colombia does not appreciate the gravity of the situation; that the negotiations for the opening of the Panama Canal were initiated by Colombia, and energetically pushed during several years; that the propositions presented by this Republic were finally accepted with slight modifications; that in virtue of the agreement, the Congress of the United States reversed its former judgment and decided for the Panama route, and that if Colombia rejects the treaty or unduly delays its ratification, the friendly understanding between the two countries would be so seriously compromised that the Congress of the United States might take measures which would be regretted by every friend of Colombia.
This ministry deems it indispensable to make the following observations, which it respectfully presents to the minister for transmission to his Government:
The fact of Colombia having initiated the negotiations does not demand the approval of the same by that Government, for the approval of Congress is necessary to the ratification of them, to which is given the constitutional power of approving or disapproving the treaties which the Government makes; this formality was recognized in the beginning by the Government of the United States in the course of the negotiations, as is seen in articles 25, 26, and 28 of the project of the convention signed November 28, 1902.
One of those articles (the twenty-fifth) says, textually, that the convention shall be ratified at a time when it is approved by the legislative bodies of both countries, and that condition is stipulated in articles 25 and 28 of the convention signed in Washington on January 22, 1903, the last of which articles in the part pertaining to this matter is as follows:
“The convention, when signed by the contracting parties, shall be ratified according to the laws of the respective countries, and shall be exchanged at Washington within a term of eight months from this date, or earlier if possible.”
The Government of the United States sent the convention to the Senate with the request that it be confirmed, and in that body the debate was so long and vehement that it was not approved until in the following extra session, and if it had been rejected it would have been without any diminution of any right of Colombia, just as its rejection here will be without any diminution of any right of the United States.
Having proposed a negotiation does not necessarily imply that it is to be approved, either in whole or in part, by the legislative body of the country which began it. Among international instances which prove this statement can be cited the instance which occurred between the same United States of America and England over the projection for the abrogation of the Clayton-Bulwer treaty of 1850, which project, if I am not badly informed, was initiated by the Government of the United States, and notwithstanding that the Senate proposed that it be modified in the following terms:
“It is determined, however, that none of the preceding stipulations and modifications in paragraphs 1, 2, 3, 4, and 5 of this article (2) shall apply to the methods which the United States believe it necessary to make to secure with their military forces the defense of the United States and the maintenance of the public order.”
The British Government did not accept this modification, and this refusal deferred, for a long time, the approval and ratification of the treaty.
If the initiation of negotiations of a convention should imply the correlative obligation of approval by the legislative body, the submitting of such convention to their decision would be an illusion (superfluous), for the power to make treaties with foreign powers would be in reality vested solely in the executive power, which is openly contrary to the spirit and the letter of the constitution of this Republic.
[Page 153]The Government of Colombia has given to the negotiation all the importance pertaining thereto, on account of the great political and commercial interests involved. This is unmistakably shown in a note which the minister of this department, Hon. Sr. Paúl, sent on September 25, 1902, to the governors of the departments, in which he invited them to discuss and study with all freedom, through the press, the project of the treaty and the documents which should be published, with the object that when Congress should meet the country should be sufficiently instructed in that which particularly applied to the patriotic interests, and their representatives in the legislative bodies could easily reach a solution which would harmonize with the rights and benefits of the Republic.
There is a very notable difference between some of the propositions presented by Colombia and the respective modifications introduced by the United States.
That difference is apparent comparing the memorandum presented by the Colombian legation on March 31, 1903, with the proposed bases by the Secretary of State, especially those referring to the sovereignty of the zone, judicial jurisdiction in same, and the price of compensation for the use of the same for the mere proprietorship of the Panama Railroad, and for the rent of $250,000 demanded for the same railroad, likewise as to the rights, privileges, and exemptions which she gave. It is further to be observed that in the memorandum of the legation the establishment of tribunals in the zone was not mentioned, while the Secretary of State, in a project sent with his note of November 18, 1902, proposed it, and that they be divided into three classes, Colombians, Americans, and mixed; as also in the Colombian memorandum, a sum of $7,000,000 American gold was asked and an annual sum which was to be determined as a price for the enjoyment of the railroad and fee for use of the zone, and in attention to other circumstances. The Secretary of State only offered a sum of $7,000,000 and an aunual rent of $100,000, or if preferred, a sum of $10,000,000 and an annual rent of $10,000. The Government ordered the legation to ask a sum of $10,000,000 and an annuity of $600,000. The Secretary of State, in a note which had the form of an ultimatum, reduced the rent to $250,000. The diminution of $350,000 in a period of only one hundred years represents a difference of $35,000,000, and as the convention will probably last more than a century, it is clear that the difference is no light matter, but of much consideration.
It is also well to make known here what was a motive of substantial difference, that the canal and railroad companies can not transfer their privileges without the authority of the Colombian Government and without arrangement of their pending business.
The broad manner in which the Government of the United States has interpreted the stipulation of the projected convention in this respect has caused the refusal of the companies to enter into arrangements which ought to precede the ratification and exchange, among others, that relative to the shares which Colombia has in the capital of the New Panama Canal Company, a refusal which makes difficult the legislative approval of the pact. This ministry had not known that the United States revoked any law in order to make possible the treaty with Colombia. The Government of the Republic ordered its representative in Washington to sign the pact in the belief that, in conformity with article 4 of the law approved June 28, 1902 (Spooner bill), if the Government of the United States could not obtain from the Government of Colombia dominion over the necessary territory for the work, nor the rights mentioned in articles 1 and 2 of the said law, nor a satisfactory title to the properties of the New Panama Canal Company, the President of the United States, by medium of the Isthmian Canal Commission, would dig and construct a canal for boats by the Nicaragua route. In consequence the Government of Colombia, which has held in view of this law that the base of the treaty on the part of the United States is according as it has been expressed in the introduction accompanying the treaty, has derived the correct conclusion that the only result that can affect adversely the interests of this nation, if their Congress should reject the project of the treaty, is that the Government of the United States will cease negotiations and adopt the Nicaragua route for the construction of the canal.
When is there such an undue delay in the ratification of a treaty which will tend to cause a serious compromise in the friendly relations with the contracting party?
In this country there would be an undue delay if, the ratification having been ordered by the law, the executive power should show a disposition to disregard it with the evident purpose of causing injury to his own country or the other nation interested in the pact.
But as has already been expressed, the previous requisite of legislative approval is indispensable for the exchange of ratifications, and before this is done the treaty is but a project which, according to the law of nations, has no rights or obligations, and for the same reason, according to that law, to reject or delay its ratification [Page 154] is not cause for the adoption of measures tending to alter the friendly relations between the two countries. If such were the case the preparing of the pact would be the occasion of a serious danger instead of an element of peace and progress, of which Colombia has no fear in that the political relations of the great Republic, which offered the blood of its sons to liberate Cuba, and after having stopped the disintegration of Venezuela, as a result of their boundary dispute with Great Britain, deeds which have been made notorious before the world, in most solemn manner, as showing their determination to procure and preserve the independence, sovereignty, and integrity of the American nations.
If the Congress, using its inherent prerogative of national sovereignty, rejects the pact in question because, in their judgment it is not for the benefit of the Republic, it will be, I am sure, with much regret that it can not comply with the desires of the Government and the Congress of the United States; but feeling confident for reasons of justice that by this act it will not have altered in any particular the friendly relations which fortunately exist between the two Republics, and to the preservation of which Colombia attaches the highest importance.
(Signed)