714.1515/800: Telegram
The Minister in Honduras (Summerlin) to the Secretary of State
103. Your telegram No. 70, August 6, 5 p.m. My telegram No. 95, August 8, 10 a.m.48 I have received a note dated August 22nd from the Minister for Foreign Affairs which after lengthy resume of my note of August 8th reads as follows:
“Maintaining in all its terms my prior note of July 27th last49 the concepts of which I have had the satisfaction to have seen unweakened in any of their essentials, my Government also would believe a new reply unnecessary were it not for the frank and close cordiality of the relations it has the honor to maintain with that of Your Excellency, which motivates its desire not to leave without satisfactory explanation a single one of the observations that have been made and permits me to add new reasons in support of the point of view my Government justifiably maintains.
Without declaring, as indeed his just and exact discernment would not permit, the nonexistence of prior undertakings still in full force, which he implicitly recognizes, His Excellency the Secretary of State appears to attach decisive importance to the fact that these undertakings have not served efficiently to solve the question. But the fact [Page 770] that one of the parties by its refusal to give effective form to the existing agreements has rendered them futile does not mean that the legal and moral force of those agreements has been affected and it would only serve for the consideration that future agreements might suffer a similar fate if the other party does not fulfill its obligations or puts obstacles in the way. In such a case it would be quite evident that new agreements given these antecedents could only be effective if the interests and rights of one of the parties were secured at the expense of those of the other party.
Clearly, according to the text of the convention of 1923, the intention of those who negotiated it was the formation of a ‘complete, permanent’ list of 30 jurisconsults for the organization of the Central American Tribunal in each case which must arise. The Government of San Salvador not having ratified the convention the list is therefore reduced to 24. It is true that in conformity with article 26 of the convention it would enter into force by ratification of three at least of the signatory states. The convention is therefore effective; but the lists for the formation of the Tribunal were not drawn up in due time and these are even yet ‘incomplete’ according to the tenor of article 2 of the same convention. The legal effectiveness of a treaty is one thing but an entirely different question is that of the execution and fulfillment of its provisions. Thus the Government of Honduras has not been able to fulfill the obligation which is imposed upon it by the article 2 above cited of transmitting ‘the complete list to each one of the signatory republics’ because these lists have not yet been ‘complete’ as is explicitly required by the convention.
Now as concerns the date of the latter nominations my Government has abided scrupulously by the official decrees which have been communicated to it. Permit me to repeat, because it has been already expressed in my previous notes, that none of the considerations relative to the formation of the Central American Tribunal has any reference to the high moral worth and reputation of the jurisconsults already named or to be named.
The fact has been pointed out that there are actually 12 distinguished jurists eligible for nomination as members of the Tribunal from whom may be chosen those necessary to form it, and thereupon would be constituted of three only, one of whom might be selected by mutual agreement aside from the list of 12 mentioned. My Government with great regret must differ completely with this opinion in regard to the possibility of the formation of the Tribunal in this manner, for it cannot reconcile such an opinion with the clear and definite provisions of articles 2 and 3 of the Convention, which Your Excellency will be able to appreciate upon the slightest examination. The spirit and letter of the agreement clearly indicate that the intention of those who negotiated it was that the tribunal, whenever it might be formed, should be established with all the requisites of the convention without departing from a single one of them. It is made clear in article 1, section 2, paragraph a, that the decision of the International Tribunal established by the convention would be null and any one of the parties might refuse to fulfill it ‘when the Tribunal had not been organized in strict accordance’ with the convention. My Government maintains the position that in whatever form it might be suggested the International Central American Tribunal should be constituted, under [Page 771] present conditions, it would not be ‘in strict accord’ with the convention of 1923, from which are drawn the pertinent conclusions.
In the final session celebrated at Cuyamel on April 23rd of the present year the honorable representative of the mediating government declared the present existence of the arbitration agreement of February 7th, 1923; and after certain considerations of general character, he suggested to the Commissions of both countries that they obtain powers from their respective Governments with a view to negotiating a definitive treaty of arbitration, in conformity naturally with the exigencies of the obligation previously contracted and declared valid by representative of the mediating government.
The Government of Honduras being ready for the request which would be made of it for the purpose of formalizing the protocol of arbitration once recognized at Cuyamel, received with great surprise the unexpected proposal of His Excellency the Secretary of State contained in Your Excellency’s note of June 5th last,50 in which, disregarding or disavowing the resolution of his representative at Cuyamel, he proposes to my Government a negotiation entirely foreign to the nature of the arbitration agreed upon and distinct from all the antecedents bearing on the diplomatic procedure in this affair. Undoubtedly there is such a marked and profound difference between the propositions accepted at Cuyamel and the later proposal of His Excellency the Secretary of State that they are necessarily mutually exclusive.
Without objecting to the considerations advanced by my Government in regard to the juridical nature of the arbitration His Excellency the Secretary of State insists upon the idea of including in the protocol of arbitration elements opposed to the juridical concept. In this connection His Excellency the Secretary of State refers to the report of the Economic Commission presented in September 1921 after an inspection of the disputed zone.
In regard to this report which was refuted in certain of its extremes by the Counsel of Honduras, my Government has never considered it as anything more than a report of a technical character, for demonstration of the nature and economic and commercial value of the zone but never for giving any force to the respective rights of the parties.
The Government of Honduras does not deny the existence of political and economic interests or of those of any other nature in the disputed territory; and it is precisely because of the existence of such interests and because of the manner in which they were acquired that my Government would never be able to accept them as the basis of an arbitral decision, without diminishing the proven and documented territorial rights of the Republic.
The authority given by the Legislative Assembly of Guatemala to the Executive Power in decree number 1568 of the 18th of July last to accept the proposal of arbitration, states that ‘the subject of arbitration will be the fixing of the common boundary between Guatemala and Honduras taking into consideration the political, economic and commercial interests of both countries and likewise the amount of whatever compensation may be thought due.’ The legislative authorization [Page 772] makes no reference at all to judicial and documentary proof of the premises; and naturally the representatives of Guatemala will not in such case be able to get away from the definite arrangement which is indicated by that legislative resolution; thus the protocol of arbitration will be negotiated on a basis of the interests indicated and not on a basis of resolutions adopted and justice. I have already regretfully informed Your Excellency that my Government cannot concur in any case in the drawing up of such a protocol, prejudicial and dangerous to the territorial rights of Honduras.
Concerning the idea expressed by Your Excellency that the question of frontiers between two Central American Republics ought to be arbitrated by the International Tribunal, created for the express purpose of arbitrating questions precisely similar to that under consideration, I must lay before Your Excellency the fact that on the day of the much heralded and solemn ceremony of the signing of the Convention of the Central American Tribunal, a separate agreement to arbitrate was reached, under the decision of His Excellency the President of the United States, indicating clearly that from then on the boundary question was to be out of the jurisdiction or field of action of the said Tribunal, in accordance with and carrying out the Convention of 1914, in force in 1923, as it is today with no later act having affected its existence. This significant fact leaves no doubt that, it have [having] already [been] agreed to submit the boundary question to arbitration by His Excellency the President of the United States of America, it was not contemplated that the question might be later submitted to a different decision.
In conclusion I desire to express once more to Your Excellency the profound appreciation with which the Government of Honduras receives the generous efforts of the Government of the United States of America toward the attainment of a satisfactory solution in the pending question of the boundary between Honduras and Guatemala; and for this reason, although I must again regretfully decline to reconsider the proposal of His Excellency the Secretary of State, and because of my duty to defend the territorial rights of the Republic, I repeat to Your Excellency our frank and firm disposition to accept whatever proposal of arbitration the illustrious American Government may put forward; under the control of whatever functionary, corporation or tribunal it may see fit to designate, so organized that there could not be later a motive for nullity and the arbitral decision being based on the fundamentals of law established by Article 6 of the Convention of 1914. I do not need to remind you that the said Convention also takes into consideration the existence of the interests established (article 6) so far as their possession is by right, is legitimate, and is established according to the general principles of law and the rules of justice which in the particular case are sanctioned by the law of nations. It also seems superfluous for me to add, considering the fraternal feeling and responding to the elevated and conciliatory proposals of the Government of the United States of America, that the Government of Honduras will find it agreeable, after the judicial arbitral award, to discuss with the Government of Guatemala any agreements or formalities for the reciprocal and equitable benefit of both countries. Under such conditions the Government of Honduras would be prompt to appoint its commissioners or representatives for arranging the arbitration, either under the agreement of 1923 or under [Page 773] the new form the American Government might suggest, in harmony with the frank and cordial observations I have had the honor to present in detail, with due respect and honor toward the honorable mediating government.
The Government of Guatemala, bound by a present constitutional restriction, could not allege any impediment to the effectiveness of the arbitration agreed upon in 1923, since at that time there did not exist the mandate which now restrains her to such an extent as to make impossible any settlement by means of arbitration under the terms imposed. It would seem that the American Government has ample perspective with which to reach a solution which will satisfy all interests, harmonize all difficulties and guarantee all rights.
Please accept, etcetera. (Signed) F. Davila.”
Repeated to Guatemala.