818.6363 Am 6/85
The Secretary of State to the British Ambassador (Geddes)
My Dear Mr. Ambassador: I have received your letter of May 9, in which you refer to the Amory concession and state that while you have ascertained that there is no doubt that an appeal by the holders of the concession to the Courts would lie to test the validity of Law 41, the measure under which the concession was cancelled, you do not feel that the holders of the concession would be convinced that their case would receive an impartial hearing by the Supreme Court of Costa Rica in view of the manner in which the Justices of the Supreme Court were appointed.
[Page 663]Upon investigation, I find that Federico Tinoco appointed several Justices of the Supreme Court by Executive Decree on April 12, and June 4, 1917, and that these appointments were confirmed by a Constitutional Assembly in accordance with Article 3 of the “Transitory Provisions” of a Constitution which did not come into force until June 8, 1917. Article 108 of that Constitution provided that appointments to the Supreme Court should be made by the Senate from a list of candidates submitted by the House of Deputies. As this procedure was not followed, it was held, even during the Tinoco administration, that the appointments to the Supreme Court made by Federico Tinoco had been in violation of the very Constitution which he himself had promulgated.
After the downfall of Tinoco, upon the reestablishment of the Constitution of 1871, it [which] had been temporarily superseded by the Tinoco Constitution of 1917, it was held that the Tinoco appointees to the Supreme Court had never held valid appointments and should be replaced by Justices appointed in accordance with the Constitution of 1871. The Costa Rican Congress therefore, as you state, did remove the Tinoco appointees from the Supreme Court Bench. They were, however, removed because of the fact that their appointment was considered to be illegal, and their successors were appointed in strict accordance with the provisions of the Constitution now in force.
In the circumstances I find it impossible to escape the conclusion, as stated in the interview to which you refer in your letter, that the holders of the concession have access to the courts of Costa Rica, constitutionally set up, in which the matter in dispute may be the subject of appropriate judicial determination.
You will understand, of course, that this Government does not oppose an arbitration if that course should commend itself to the Costa Rican authorities.
Believe me [etc.]