Ministry for Foreign Relations,
Bogotá, June 27, 1903.
Mr. Minister: I have the honor to receive
the attentive note which your excellency has been pleased to address
to me on the 10th of the present month, with the English version of
the notes in which the minister of hacienda of Colombia requested
the railroad company and the New Panama Canal Company to name agents
to represent them in the negotiations relative to the permission
which is necessary for the transfer of their respective concessions
to the Government of the United States.
The Congress being in session, to which belongs the decision as to
the approbation of the treaty between the Republic of Colombia and
the United States for the construction of the interoceanic canal
between the Atlantic and Pacific oceans, the said note of your
excellency will be presented to that body to the end that they may
know the construction that the Government of the United States gives
to article 1 of that compact.
The Congress of Colombia in determining the meaning, and, at the same
time, the scope of article 1 of the treaty, will have to consult the
antecedents of the negotiations, among which are found the said
notes of the minister of hacienda, which have the dates 25th and
27th of December, 1902, respectively, while the treaty for the
opening of the interoceanic Canal was signed January 22, 1903; for
this reason they were not interpretations of the pact, but they were
destined to prevent certain foreseen eventualities in the course of
the negotiations, as is seen in that which the minister of Colombia
expressed in his memorial addressed to the Secretary of State in
Washington the 22d of November, 1902.
In paragraph b, section A, it says:
“The preceding reasons serve in part also to show the necessity which
exists that the Government of Colombia celebrate a special contract
with the companies which are to cede their rights;” but to this must
be added that the treaty alone between Colombia and the United
States can not have the judicial effect of resolving or canceling
the legal bonds which exist between the Republic of Colombia and
those companies, bonds arising from a perfect contract which can not
be dissolved, in conformity with the principles of universal
jurisprudence, because one of the parties celebrates a compact, on
the same material, with a third, which in this case would be the
United States.
As in the same way the United States must celebrate a contract in
order to acquire the rights of the said companies, and that
negotiation can not be included in the treaty which is to be
celebrated between the two countries, neither can the resolution of
the obligation between Colombia and the two companies be verified in
the treaty.
If such were admitted, it would result that Colombia, relinquishing
all her rights in relation with these entities (corporations?), or
depriving herself of the means to
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make them effective, would leave in force her
obligations to them. The very payment of the privileged shares which
Colombia possesses in the canal company would not have any guarantee
by the omission of a special contract, so much the more so that in
the proposed reform by the Department of State to article 1 of the
memorandum of April, it was clearly expressed that the United States
would not contract any obligation in that respect (“no obligation
under this provision is imposed upon or assumed by the United
States”).
The affirmations of your excellency as to the legality of the sale to
a foreign government of the shares of the Panama Railway and by that
manner to transfer the control of the work, imposes upon me the duty
to call your excellency’s attention to a very important
circumstance, in that the necessity for the consent of Colombia to
that sale is recognized in article 1 of the treaty, and to manifest
to your excellency that each share, by representing a certain
proportionate value of the privilege, or, that is, of the railroad
itself, and the transfer of that to a foreign government being
prohibited, the shares can not be sold, because with them they would
become copartners in the property of the privilege, which is
judicially inadmissible.
The restrictive condition of the contracts of 1850 and 1867 do not
exclude from the penalty of forfeiture the sale of portions of the
privilege.
This is indivisible as to the rights conceded and the obligations
imposed, and if it were not so the result would be that if a foreign
government bought the total or a greater part of the shares, it
would become, by this means, proprietor of the railroad, or at least
of a part so great of its value that it would give to it the
administration of the work, and in this way the prohibition of the
sale of the privilege to a foreign government would be eluded.
Your excellency knows very well that any interpretation ought to be
discarded that makes illusionary that which is stipulated, and in
this case the condition in reference would be reached if any
proceeding was admitted by which the privilege for the construction
and exploitation of the railroad could be transferred to a foreign
government.
I avail myself, etc.,
(Signed)
Luis Carlos
Rico.
To His Excellency, Hon. A. M.
Beaupré,
Minister Plenipotentiary
of the United States, etc.
