Papers Relating to the Foreign Relations of the United States, 1921, Volume II
412.11/458
The Chargé in Mexico (Summerlin) to the Secretary of State
[Received November 28.]
Sir: In confirmation of the Embassy’s telegram No. 205, November 20, 5 p.m.,33 I have the honor to enclose herewith copy and translation of an undated Memorandum received from Mr. Pani on the evening of November 19th. I am enclosing, also, copies and translations of the two “Tentative Proposals”, mentioned in the Memorandum as Annexes 1 and 2, respectively.
In view of the importance of this matter and of Mr. Pani’s desire to have it brought before the attention of the Department as soon as possible, I ventured to cable a full summary of the Memorandum.
I have [etc.]
The Mexican Secretary of Foreign Affairs (Pani) to the American Chargé (Summerlin)
In a message read before the Congress on the 1st day of September of this year, the President of the Republic spoke as follows in discussing the state of the relations between Mexico and the United States:
“Our Government is concerned as much as that of the United States with the protection of American interests in Mexico, since this protection is one of its most urgent duties toward that great country, not only because of the material bonds which their geographical position necessarily creates, but also owing to those moral bonds—even stronger—of our sympathy with its democratic institutions and the noble qualities of its people. The two Governments, then, are in accord in this aim, and the Government of Mexico, with a view to cooperating more effectively in its realization, that is, in order that this realization may take a form such as may strengthen the prestige of the Mexican Government, and enable it better to fulfill the duty of protection referred to above, and be at the same time the basis of closer future relations between the two countries, has preferred to eliminate, by the natural development of its political and administrative policy, the occasion for promises which might [Page 507] humiliate it, and it proposes to follow this course until the field appears sufficiently free of obstacles to permit its being recognized without prejudice to its national dignity and sovereignty, and to be able, later, under equal conditions, to conclude and celebrate such treaties as it may deem necessary for the greatest cordiality in the resumed diplomatic relations between the two countries.”
The foregoing statement, made before the legislative power, has all the validity of an obligation solemly contracted with the people of the Republic, and is the expression of a policy carefully weighed with regard both to its necessity and its consequences, or, in other words, the expression of all that the Government of Mexico can do in regard to this matter.
As a result of the foregoing statements, and in accord also, as the Government of Mexico believes, with the essential attitude of the United States (the requirement that Mexico give sufficient guarantees of its good will and of its ability to safeguard the legitimate interests of North American enterprises and citizens in Mexico), the first step which the Governments of the two countries could take would consist in concluding, in accordance with the proposal which the Government of Mexico previously made to the Government of the United States, a convention (annex: draft number 1, relative to the special convention regarding claims for damages caused to American interests in the Mexican revolution) by virtue whereof a mixed commission would be created to examine and decide the claims which the United States may have to make against the Mexican Republic by reason of the damages caused to North American citizens during the revolution. This convention would not be reciprocal in character, but would be destined—and the Government of Mexico, disregarding conventional customs and scruples, frankly so declares—solely to make restitution for damages caused in Mexico to North American interests, and as greater proofs of the good will of the Government of Mexico and of its desire to satisfy all just demands, the claims will not be settled in accordance with the principles of international law, but—and this is a criterion ampler and more favorable to the claimants—in a simple spirit of equity.
Upon concluding this convention, which is embraced in the salutary political program of the Government of Mexico, since it has invited all countries whose nationals have suffered injuries since 1910 to conclude similar conventions which would tend to remove the difficulties which recently have arisen as an obstacle to good relations, the Government of Mexico would be implicitly recognized by the Government of the United States, and, relations being thus reestablished without impairment to the dignity and sovereignty of Mexico, the Government of the latter country would find itself enabled to develop the policy enunciated by the President in the transcribed [Page 508] portion of his message, namely, to take the steps which the highest cordiality in the said relations will require.
The first step embraced in this policy—the most favorable doubtless to North American interests, since it is the most just, frank, and effective—would be to conclude another convention (annex: draft number 2, relative to the general claims convention) which would establish a mixed commission to decide pending claims of either country with regard to the other, for acts which have taken place from the signing of the convention of July 4, 1868,35 to date, such subjects being excluded from the jurisdiction of the special convention first named. The effect of the second convention, in solving all the difficulties which have arisen between the two countries in the past, would be to clear the way of obstacles, to the end that Mexico and the United States might attain a closer relationship in the future than that which has been possible heretofore.
If this plan merit the approval of the Department of State of the United States, the Government of Mexico would take the initiative by referring to the note already presented to the United States, not yet answered, in order to proceed with the nomination of a mixed commission on claims for damages suffered during the revolution.
Draft of Special Convention between the United States of America and Mexico on Claims for Damages Caused to American Interests during the Mexican, Revolution
The United States of North America and the United Mexican States, desiring to adjust and settle amicably all pecuniary claims growing out of the damages suffered by American citizens in Mexican territory by revolutionary acts during the period from November 20, 1910, to May 31, 1920, have resolved to enter into a convention with this object, and to this end have nominated as their plenipotentiaries:
-
The President of the United States:
. . . . . . . . . . . . . .
-
The President of Mexico:
. . . . . . . . . . . . . .
Who, after having communicated to each other their respective full powers, found to be in proper form, have agreed upon the following articles:
[Page 509]Article 1. All claims against Mexico which may arise from damages caused, whether to corporations, companies, or persons of North American nationality, during the revolutions which have occurred in Mexico from November 20, 1910, to May 31, 1920, and which have been presented to the United States for its mediation with Mexico, shall be submitted to a commission composed of three members, one of whom shall be nominated by the President of the United States, another by the President of Mexico, and the third, who shall preside over the commission, by mutual agreement of both Governments. If the two Governments should not be able to agree on the nomination of the third member in the course of the two months following the exchange of ratifications, he shall then be designated by the Court of Arbitration at The Hague. In the case of the death, absence, or incapacity of any member of the commission, or in the event that a member fails to act and ceases to function, the same method followed in his nomination shall be observed in filling the vacancy.
Article 2. The commissioners so nominated shall meet in Mexico within the six months following the exchange of ratifications of this convention, and each member of the commission, before beginning his labors, shall make and subscribe a solemn declaration that he will carefully examine and impartially decide, in accordance with the principles of equity, all claims presented, since it is Mexico’s desire that its responsibility be not fixed according to the general principles of international law, but in accordance with the point of view of magnanimity, it being sufficient that the damage alleged exists and that it arose from causes stated in article 3 for Mexico to feel morally obliged to make indemnification.
The declaration in reference shall be entered in the record of the proceedings of the commission.
The commission may fix the time and place of its subsequent meetings, according to its convenience, but always subject to the special instructions of both Governments.
Article 3. The claims to be tried by this commission are those arising from acts of revolutionary forces between November 20, 1910, and May 31, 1920, that is to say:
- 1.
- By revolutionary forces upon the triumph of whose cause Governments de facto or de jure have been established;
- 2.
- By forces brought into existence by the disbanding of the above-mentioned, forces and before the Government de jure had established itself as the result of the said revolution;
- 3.
- By forces of the dissolved Federal Army; and
- 4.
- By insurrections or acts of bandits, provided there be proved omission, lenity, or cause imputable to the authorities.
The commissioners shall adopt, as the standard in their proceedings, the rules established by the mixed commission created in 1869.
The contracting parties may nominate agents and commissioners authorized to submit to the commission, orally or in writing, all the reasons which they may deem pertinent in favor of or against the claims. In each case, only one agent or counsellor shall be permitted to make allegations for each Government. The decision of the majority of the members of the commission shall be the decision of the commission. Spanish shall be the language used in the proceedings.
Article 4. The commissioners shall keep an exact record of the subjects and cases submitted and correct minutes of their proceedings with the dates thereof. To this end, each one of the interested powers may nominate a secretary; these secretaries shall work conjointly as secretaries attached to the commission and shall be subject to its instructions. The commission may also nominate and employ any other necessary functionaries to assist it in the discharge of its duties.
Article 5. As the Government of Mexico is desirous of arriving at an equitable adjustment of the claims of the citizens and corporations of the United States, and of granting them, in accordance therewith, just and adequate compensation for their damages, said Government hereby agrees that the commission shall not deny or reject any claim by application of the general principle of international law to the effect that, as a condition precedent to the validity of the claim, all legal expedients must have been exhausted.
It is stipulated, further, that no indemnification for damages to properties may exceed the value declared by the interested persons themselves for taxation purposes plus ten percent as coefficient of its true value, and that the indemnifications for personal damages shall not exceed those conceded by the most favorable law of the States of the American Union relating to accidents.
Article 6. All claims must be presented to the commissioners within the year following the date of their first meeting, unless in any case reasons satisfactory to the majority of the commissioners are adduced for the delay, and in such case the period for presentation of the claim may be prorogued for a period which shall not exceed three additional months.
The commissioners shall be obliged to examine each claim and to decide upon it within the five years following the date of their first meeting.
Beginning six months after the date of the first meeting of the commission, the commissioners must submit to the contracting Governments, every four months, reports showing in detail the labors [Page 511] of the commission up to date, including a statement of the claims heard and decided.
Article 7. The contracting parties pledge themselves to consider as final and conclusive the decision of the commissioners on all claims adjudged by them, and to give full effect to such decisions. They agree, further, to consider the result of the proceedings of the commission as a complete, perfect, and final adjustment of all claims against the Government of Mexico arising from any of the causes stated in article 3 of the present convention; and they pledge themselves, further, that from and after the date of the termination of the proceedings of the commission, any of said claims may be considered and treated as completely adjusted, excluded, and therefore inadmissible, whether or not they have been presented to the jurisdiction of said commission, or made, proposed, or submitted to it.
Article 8. After the termination of the labors of the commission, the terms of payment of the indemnities decided in favor of American citizens shall be fixed by agreement between the two Governments, in accordance with the financial capacity of Mexico.
Article 9. Each Government shall pay its own commissioner and shall defray its own expenses. The expenses of the tribunal, including the salary of the third commissioner, shall be paid equally by both Governments.
Article 10. The present convention shall be ratified by the high contracting parties in accordance with their respective Constitutions. The ratifications of this convention shall be exchanged in, as soon as may be practicable, and this convention shall begin to take effect on the date of the exchange of the ratifications.
In testimony whereof, the respective plenipotentiaries have signed this convention and affixed thereto their seals.
Draft of General Claims Convention between the United States of America and Mexico
The United States of North America and the United Mexican States, desirous of arranging and adjusting amicably the pecuniary claims which the one may have against the other from the signing of the claims convention concluded between both countries on July [Page 512] 4, 1868, to date (without including herein the claims growing out of the late revolutions, which form the basis of another and different convention), have decided to conclude a convention with this object, and to this end have nominated as their plenipotentiaries:
-
The President of the United States:
. . . . . . and
-
The President of Mexico:
. . . . . . . . . . . . . .
Who, after having communicated to each other their respective full powers, found to be in good and proper form, have agreed upon the following articles:
Article 1. All claims against Mexico, except those arising from acts of the late revolutions, of nationals of the United States, whether corporations, companies, or persons, for pecuniary losses or damages caused to persons or properties in Mexico, and all claims against the United States of North America of nationals of Mexico, whether corporations, companies, or persons, for pecuniary losses or damages caused to persons or properties in the United States, which have been presented to either country for its mediation with the other, from the signing of the convention on claims entered into between both countries on July 4, 1868, and which may be pending, as well as any other similar claims which may be presented within the period specified hereinbelow, shall be submitted to a commission composed of three members, one of whom shall be nominated by the President of the United States, another by the President of Mexico, and the third, who shall preside over the commission, by mutual agreement of both Governments. If the two Governments should not be able to agree on the nomination of the third member in the course of the two months following the exchange of ratifications, he shall then be designated by the Court of Arbitration at The Hague. In case of the death, absence, or incapacity of any member of the commission, or in the event that a member fails to act or ceases to function, the same method followed in his nomination shall be observed in filling the vacancy.
Article 2. The commissioners so nominated shall meet in Washington or in Mexico within the six months following the exchange of ratifications of this convention, and each member of the commission, before entering upon his labors, shall make and subscribe a solemn declaration that he will carefully examine and impartially decide, according to his true knowledge and understanding, and conformably with the principles of public law, justice, or equity, all [Page 513] claims presented for decision; and said declaration shall be entered in the record of the proceedings of the commission.
The commission may fix the time and place of its subsequent meetings according to its convenience, being always subject to the special instructions of both Governments.
Article 3. The commissioners shall adopt as the standard in their proceedings, in general, the rules established by the mixed commission created in 1869. The contracting parties may nominate agents and commissioners who will be authorized to present to the commission, orally or in writing, all the reasons which they may deem pertinent in support or defense of the claims. In each case, as has been said, only one agent or counsellor for each Government may make allegations. The decision of the majority of the members of the commission shall be the decision of the commission. The language used in the proceedings shall be English or Spanish.
Article 4. The commissioners shall keep an exact record of the subjects and cases submitted and correct minutes of their proceedings with the dates thereof. To this end each of the interested powers may nominate a secretary, and these secretaries shall work conjointly as secretaries attached to the commission and shall be subject to its instructions. The commission also may nominate and employ any other necessary functionaries to assist it in the discharge of its duties.
Article 5. The high contracting parties, being desirous of arriving at an equitable settlement of the claims of their respective nationals, and thereby to grant to them just and adequate compensation for their damages, hereby agree that the commission shall not deny or reject any claim by the application of the general principle of international law to the effect that, as a condition precedent to the validity of the claim, all legal expedients must be exhausted.
Article 6. All claims must be presented to the commissioners within the year following the date of their first meeting, unless, in any case, reasons that are satisfactory to the majority of the commissioners are adduced for delay, and in such case the period for presentation of the claim shall be prorogued for a period not to exceed three additional months.
The commissioners shall be obliged to examine each claim and to decide upon it within the five years following the date of their first meeting.
Beginning six months after the date of the first meeting of the commission, the commissioners must submit to the contracting Governments, every four months, reports showing in detail the labors [Page 514] of the commission, up to date, including a statement of the claims heard and those decided.
Article 7. The contracting parties pledge themselves to consider as final and conclusive the decision of the commissioners on all claims adjudged by them, and to give full effect to such decisions. They agree, further, to consider the result of the proceedings of the commission as a complete, perfect, and final adjustment in respect of all claims against either of the two Governments arising from any event prior to the date of the exchange of ratifications of the present convention; and they pledge themselves, further, that from and after the termination of the proceedings of the commission, any of said claims may be considered and treated as completely adjusted, excluded, and therefore inadmissible, whether or not they have been submitted to the jurisdiction of said commission, or made, proposed, or presented to it.
Article 8. After the termination of the labors of the commission, the total sum adjudged in all the cases decided in favor of the nationals of one party shall be deducted from the total amount adjudged to the nationals of the other party, and the balance shall be paid in the city of Mexico or in the city of Washington, in gold or the equivalent thereof, to the Government in favor of whose nationals the larger amount may have been adjudicated, without interest or any other deduction except that specified in article 9 of the present convention.
The terms of payment shall be fixed by agreement between the two Governments, when the balance is known, and in accordance with the financial capacity of the country which proves to be debtor.
Article 9. Each Government shall pay its own commissioner and shall defray its own expenses. The expenses of the tribunal, including the salary of the third commissioner, shall be paid by means of a deduction proportionate to the total of the sum adjudicated by each Government, at the rate of five percent on said sums, or less, according as the two Governments may agree. The remainder, if any, shall be paid equally by the two Governments.
Article 10. The present convention shall be ratified by the high contracting parties in accordance with their respective Constitutions. The ratifications of this convention shall be exchanged in , as soon as may be practicable, and this convention shall begin to take effect on the date of the exchange of such ratifications.
In testimony whereof, the respective plenipotentiaries have signed and affixed their seals to this convention.