Papers Relating to the Foreign Relations of the United States, With the Address of the President to Congress December 8, 1914

File No. 711.21/254.

Minister Thomson to the Secretary of State.¹⁴

No. 59.]

American Legation,
Bogotá, April 15, 1914.

Sir: I have the honor to enclose herewith for the files of the Department a copy with English translation of the Colombian memorandum presented on March 7 last in reply to the counter-proposition contained in your telegraphic instructions of February 28, 11 p.m. This memorandum was summarized and communicated to the Department in my telegram of March 7, 9 p.m.

There is also enclosed a copy of my memorandum handed the Minister for Foreign Affairs on March 16, which was based on your telegram of March 13, 7 p.m.

I also beg to enclose a copy with English translation of the Colombian counter-memorandum of March 21, the substance of which was telegraphed to the Department under date of March 24.

After communicating to the Minister for Foreign Affairs the draft for Paragraph 2 of Article IV, proposed in your telegraphic instruction of March 27 together with an offer to add, if desired, by Colombia, a promise of good offices, I again repeated the assurance that the offer would be raised to 25 millions when all the other points were settled, with an explanation of why it was impossible for the Department to exceed that amount.

The Minister for Foreign Affairs arranged an interview for me with the President for March 30, when I had an opportunity to discuss fully the points on which we were not yet in agreement. After my assuring him that you were unable to go beyond 25 millions, the President promised to use his influence to persuade the members of the Commission on Foreign Affairs to accept this amount if I, for my part, would endeavor to obtain your acceptance of the Colombian draft for Paragraph 2 of Article IV.

After consultation with the Commission the Minister for Foreign Affairs was able to inform me that an indemnity of 25 millions was acceptable and the same day I informed you thereof and submitted their draft for the second paragraph of Article IV.

Upon receipt on the 4th of your telegram of April 2 I promptly communicated your acceptance, at the same time explaining that the phrase “take necessary steps” could of course only be in an “advisory” sense. The afternoon of the same day the texts of the treaty were carefully compared and the full powers of the respective plenipotentiaries examined and exchanged.

The question of a suitable title for the treaty came up and after some discussion, due to the difficulty of finding an appropriate yet sufficiently concise title, the following was agreed upon: “Treaty between the United States of America and the Republic of Colombia for the settlement of their differences arising out of events which took place on the Isthmus of Panama in November 1903.”

On Monday afternoon, April 6, the treaty was signed, about 5.30 o’clock, in the Ministry of Foreign Affairs. The hour of signing was kept a secret but the evening papers were nevertheless able to announce the completion of the treaty. All the newspapers of the capital have expressed satisfaction at the conclusion of the negotiations except two. The general public appears to be pleased and confidently expects to see the treaty ratified without serious opposition in the Colombian Congress, which will convene in special session for 20 days commencing from May 1.

I have the honor to enclose herewith copies of the Diario Oficial containing the Spanish and English texts of the treaty, and also several newspaper clippings¹⁵ which may prove of interest to the Department although there has not yet been time for the papers to express their opinions regarding the terms of the treaty, the text of which was given to the public only last evening. I have [etc.]

Thad. A. Thomson

.

[Inclosure 1—Translation.]

The Minister for Foreign Affairs to Minister Thomson.

memorandum.

In the counter-proposition presented on the 2d instant by his excellency the Minister of the United States the following modifications were proposed to the Colombian proposal:

1. The second paragraph of Section 1 of Article II was omitted, which read as follows: “As regards the use of the Canal, Colombian merchant ships are placed on terms of equality with the merchant ships of the United States.”

2. In Section 2 of the said Article II, for the phrase “likewise in the islands and mainland auxiliary or accessory thereto” is substituted the following: “likewise in the islands and mainland occupied by the United States as auxiliary or accessory thereto.”

3. In Section 4 of said Article where it reads:’”During the construction of the Interoceanic Canal and afterwards, whenever traffic by the Canal is interrupted, or whenever for any other reason it may be necessary or convenient to use the Railway,” the American counter-proposition omits the word “convenient.”

4. In the same section where the Colombian proposal reads: “on the Panama Railway or on any other railway substituted therefor or in addition thereto,” the American counter-proposal says: “on the Railway between Ancon and Cristobal, or on any other railway substituted therefor.”

5. At the end of the same section the counter-proposition of the United States adds the following, which does not appear in the Colombian proposal: “The provisions of this paragraph shall not, however, apply in case of war between Colombia and Panama.”

6. In Section 5 of the said Article II the North American proposal changes the following phrase: “Coal, petroleum and sea salt, being the products of Colombia, passing from the Atlantic coast of Colombia to the Colombian coast of the Pacific, and vice versa,” to this one: “Coal, petroleum and sea salt, being the products of Colombia, passing from the Atlantic coast of Colombia to any Colombian port on the Pacific coast, and vice versa.”

7. In the same section for the phrase “which shall not in any case exceed one half of the usual or ordinary freight charges which are levied upon similar products of the United States in transit from one port to another of the United States” there is substituted the following: “which shall not in any case exceed one half of the ordinary freight charges levied upon similar products of the United States passing over the Railway and in transit from one port to another of the United States.”

8. In the 3d article of the Colombian proposal the indemnity of $30,000,000 and an annual rental of $250,000 for one hundred years, is reduced to $20,000,000 in the American proposal.

9. In Article IV, Paragraph 1, the American proposal differs from the Colombian in that, instead of the boundary line terminating at Cocalito upon descending from the heights of Aspave, it proposes that the line shall terminate at a point on the Pacific half way between Cocalito and La Ardita.

10. The American counter-proposition omits the 2d paragraph of said Article IV, as follows: It is distinctly understood that in recognizing the independence of Panama, Colombia rejects and declines all responsibility in respect to any governments, entities or individuals for acts or events which may have taken place at any time in the Territory of Panama.”

The Colombian Government, desiring to give one more proof of its good will to hasten and terminate the present negotiation in the most cordial understanding, agrees to accept the modifications mentioned in Nos. 4, 5, 6, 7 and 9.

As regards the first modification, Colombia insists upon the necessity to keep the clause relative to the equal treatment of her merchant ships with those of the United States in the transit of the Canal. Basing her claim in the sovereignty which Colombia has possessed in the territory of the Isthmus, she demanded in her first proposal that her merchant marine be given a privileged position in the transit of the Canal; but thereafter, taking into consideration the observations of the United States, she agreed to renounce this right in order to place herself upon terms of equality with the United States in this particular, which is quite reasonable and equitable, because, if it is true that the United States are the constructors of the waterway, it cannot be forgotten that Colombia has been the sovereign of the territory, and upon renouncing this title in the convention now being negotiated the least that she can demand is for the passage of her merchant ships upon equal terms with those of the United States. When the second Hay-Pauncefote Treaty was concluded in 1901, both Great Britain and the United States also recognized the sovereignty of Colombia in the Isthmus where the Canal was to be constructed; consequently it cannot today be considered extraordinary, neither to Great Britain nor to the United States nor to any nation, that upon renouncing her dominion over all the territory of Panama, Colombia should expressly reserve for her merchant marine a juridical situation equal to that of the United States, who takes her place in the said sovereignty as regards the Canal Zone.

In consideration of all this, and in order to give one more proof of her desire to arrive at a definite settlement, Colombia proposes, after the first paragraph of Article II, the following formula, which conciliates and harmonizes all interests:

If at any time the merchant marine of the United States shall enjoy especial advantages in the use of the Panama Canal, it is understood that the same advantages shall be enjoyed by the merchant marine of Colombia.

As regards the second modification, Colombia accepts it with the following phraseology, which is intended solely to clarify the idea and avoid ambiguities which might arise in the future: “likewise in the islands and mainland occupied or which may be occupied by the United States as auxiliary or accessory thereto.”

Colombia accepts the third modification with the single substitution of the adjective “convenient” for “necessary.”

As regards the eighth modification, the Colombian Government has already indicated in former memoranda to the Legation of the United States that it considers from every point of view modest an indemnity of $50,000,000 for the enormous losses suffered by the Republic by reason of the events which took place in November 1903, as compensation for renouncing her right of sovereignty over the best part of her territory, which is likewise the most precious portion of the globe. This indemnity has been substantiated, moreover, by exact numerical computations of the rights which Colombia renounces and which she held by means of contractual engagements in the form of an annual rental to run for nearly a century, respecting the Railway and Canal of Panama, and also, at the end of that period, through her proprietary right to the said works.

Animated by the conciliatory spirit which has presided over the present negotiations, the Government in its last project reduced the amount of the indemnity to only $30,000,000 and an annual rental of $250,000 for one hundred years; and now, after having consented to the greater part of the last modifications contained in the North American counter-proposition, Colombia limits the rental to fifty years, keeping the payment of $30,000,000 six months after the ratification of the present treaty, in the firm assurance that this clause will be definitely accepted in this form.

Finally, as regards the omission of the second paragraph of Article IV (No. 10), based on the reasoning that it is not germane to the treaty under discussion, Colombia insists that the said paragraph remain, as it is strictly just and the principle which applies here is quite in accordance with law. It is not considered to be out of place in Article IV, as the first paragraph thereof refers only to declarations which Colombia makes in a treaty with the United States, declarations which are exclusively for the benefit of Panama, which recognize its independence as a sovereign state, and fix its territorial limits with Colombia. Moreover, the connection between the two paragraphs of Article IV is so intimate that the second may be considered as a condition of the first, and this is the proper occasion to make all the declarations contained in the said article.

Foreign Office,
Bogota, March 7, 1914.

[Inclosure 2.]

Minister Thomson to the Minister for Foreign Affairs.

memorandum.

Referring to the five points presented for consideration by his excellency Dr. Francisco Jose Urrutia on the 7th instant.

I. As regards the first modification, providing equal treatment for the Colombian merchant marine in the use of the Canal, the United States Government regrets its inability to accept this proposed addition to Paragraph 1 of Article II, and, for the reasons already given, is obliged finally to decline to include merchant ships in exemption from tolls.

II. The United States Government agrees to add after the word “occupied” in Article II, Paragraph 2, the words “or which may be occupied.”

III. The United States Government regrets inability to substitute in Article II, Paragraph 4, the word “convenient” for “necessary.” The phrase which his excellency asks to be changed was inserted at his request and in the precise terms submitted by his excellency.

IV. As regards the indemnity, the United States Government will raise the offer to 25 millions if and when all other details are settled and if the Colombian Government will agree in advance to accept it.

V. For the reasons submitted to his excellency on March 3, the United States Government regrets that it is unable to accept the proposed insertion in Article IV whereby the Republic of Colombia proposes to renounce liability for any acts or events which may have taken place at any time in the Territory of Panama.

In the belief that such would be acceptable to the Colombian Government, especially in view of the contents of Paragraph 6 of the “Resume” of Reasons presented by his excellency on January 22 last, the Government of the United States was consulted regarding the insertion of a clause similarly releasing Panama from obligation to pay its share of the internal and external debt of Colombia existing on November 3, 1903.

The Legation has been informed that in the opinion of the United States Government the question of reciprocal release from liabilities and obligations would naturally form a part of the negotiations which are to be undertaken by the Governments of the Republics of Colombia and Panama for a treaty of peace and friendship for which Article IV of the present treaty provides.

This question could not be dealt with by the United States and Colombia in the present negotiations without virtually making Panama a party to them, to say nothing of importing also into these negotiations a subject which might well give rise to extended discussions and delays.

It is to be hoped that the Colombian Government will treat this reply as a satisfactory and final response to its demands. The proposals which his excellency has from time to time put forward have all been given the most careful consideration with a view to make every possible concession to Colombia’s desires.

The United States Government believes that the interests of both Governments will be best served by the immediate signature of a treaty embodying the proposals on which they are now agreed.

American Legation,
Bogotá, March 16, 1914.

[Inclosure 3—Translation.]

The Minister for Foreign Affairs to Minister Thomson.

memorandum.

After a careful study of the memorandum presented by his excellency Mr. Thomson on the 16th instant, the Government of Colombia communicates to his excellency the following:

1. In spite of the fully justified reasons stated in former memoranda in support of Colombia’s request that her merchant ships should be placed on the same footing as those of the United States as regards the use of the Canal, and in spite of the highest importance which such a clause would contain for the future of the Republic, this Government, desiring to reach a definite understanding in the present treaty, agrees to withdraw the said stipulation.

2. The Government of Colombia for similar reasons likewise withdraws from the position that in Article II the word “convenient” be substituted for the word “necessary.”

3. But, conforming or having conformed to these and other desires of the Government of the United States, the Colombian Government does so on the condition and assurance that the former for its part will definitely adopt the two formulas which today the Colombian Government presents for Article III and for Paragraph 2 of Article IV, which are as follows:

Article III.

The United States of America agrees to pay to the Republic of Colombia, within the six months following the exchange of ratifications of the present treaty, the sum of $25,000,000 gold, United States money. In addition thereto the United States will pay to Colombia the sum of $5,000,000 gold, in the same money, one year after the said date, Colombia engaging herself to use the said sum for the sanitation and improvement of the Colombian ports of Cartagena and Buenaventura, which works shall be commenced by Colombia immediately after the exchange of the above-mentioned ratifications.

Article IV, Paragraph 2.

As a condition of this recognition, the United States agrees, immediately after the exchange of the ratifications of the present treaty, to take the necessary steps to obtain from the Republic of Panama the despatch of a duly accredited agent to conclude with the Government of Colombia the negotiation of a treaty of peace and friendship which when completed may render possible the establishment, in the usual form, of diplomatic relations between Colombia and Panama and which shall comprise a settlement relative to the internal and external debts of both countries, all in accordance with the principles of law recognized and the antecedents accepted by Colombia and Panama.

If the varied reasons which have up to this day been presented to the Government of the United States are borne in mind, in order to appreciate the enormous losses caused the Republic of Colombia by the events of November 1903, as well as that above mentioned by which the Government, with a view to facilitate this negotiation, agrees to give up the valuable right for equal treatment for its merchant marine in the use of the Canal, an indemnity of $30,000,000 and fifty annuities of $250,000 each, as proposed for Article III, can only be considered as very moderate. Nevertheless, the Government, giving still another proof of the good will animating it in this delicate affair, agrees to accept the $25,000,000 offered by the United States together with an additional $5,000,000 which will be invested in works which will not only be of service to Colombia but also to the world’s commerce and especially to the commerce of the United States and above all to the Canal, as would be the sanitation and improvement of the ports of Cartagena and Barranquilla, which are the nearest situated to the great waterway.

Moreover, an indemnity less in amount would undoubtedly meet with great opposition in Colombian public opinion.

That which is proposed in Paragraph 2 of Article IV by the Colombian Government not only is in harmony with the principles of justice and right but also with international practice, with analogous occurrences in the Republic and with the precedents of this negotiation.

In truth, a pure and simple recognition of the Republic of Panama would not be reasonable without recording anything in the same diplomatic document regarding the proportional payment of the internal debt which was borne by Colombia before the 3d of November 1903.

In 1830, at the time when the Provinces of the South of the old Colombia which now form the Republic of Ecuador seceded, the convention of New Granada, by the Law of February 10, 1832, provided as follows:

• Article 1. Authority is hereby given to the Executive Power to recognize through a treaty the new State which has been formed in the south of Colombia, composed of the Departments of Ecuador, Azuary and Guayaquil, in the extent of the limits which they possessed in the year 1830, fixed by the Law of June 25, 1824, relative to territorial division.
• Article 2. The said treaty shall contain the following articles:

  I. The contracting parties shall obligate themselves to respect each other’s boundaries.

  II. They shall also undertake in the most solemn manner to pay their proportional part of the domestic and foreign debt, as integral parts of the Republic of Colombia which recognized the said debts in solidum; and to be responsible for the bonds belonging to the aforesaid Republic of which they may respectively have made disposal.

In accordance with this authorization there was concluded the Treaty of December 8, 1832, of Peace, Friendship and Alliance between New Grenada and Ecuador, which contained the following provisions:

• Article I. The States of New Granada and Ecuador mutually recognize and respect each other, and will recognize and respect each other as Sovereign and Independent States.
• Article II. The boundaries between the States of New Granada and Ecuador shall be those which in conformity with the Colombian Law of June 25, 1824, divided the Provinces of the ancient Departments of the Cauca and Ecuador.
• Article VII. It has been and is hereby agreed in the most solemn manner, also in accord with the laws of both States, that New Granada and Ecuador shall pay their proportional part of the domestic and foreign debt, as having been integral parts of the Republic of Colombia, which recognized these debts in solidum. Moreover, each State undertakes to be responsible for the bonds belonging to the said Republic of which it may have made disposal.

In conformity with these provisions, the Convention of December 23, 1834, was celebrated between New Granada and Venezuela, which was accepted by Ecuador, relative to the recognition and division of the external and internal debts of Colombia.

These treaties form part of conventional and positive American public law, and include Panama as an integral part of the old Colombia. Today, upon the solution of an analogous case, neither Colombia nor Panama can separate itself from this precedent. Neither would the pure and simple recognition of the independence of Panama be possible, since, as we have seen in the law and the treaties mentioned and quoted above, the recognition of independence has been conditional and simultaneous with the provision regarding the division and payment of the internal and external debt of the State which has suffered territorial dismemberment, the cause of the recognition of the new sovereign entity.

The Government of the United States expressly concurs in the justice of a stipulation such as the one under discussion, because in the last memorandum of his excellency Mr. Thomson it is said:

The Legation has been informed that in the opinion of the United States Government the question of reciprocal releases from liabilities and obligations would naturally form a part of the negotiations which are to be undertaken by the Governments of the Republics of Colombia and Panama for a treaty of peace and friendship for which Article IV of the present treaty provides.

The Legation, however, observes that the fact of introducing the said paragraph 2 in Article IV would virtually make Panama a party to the negotiation, which might possibly give rise to lengthy discussions and delays. The difficulty pointed out by the Government of the United States would, in the judgment of Colombia, be overcome by omitting, as is desired by the Government of the United States, this second paragraph, at the same time adding the third in the manner above mentioned, i. e., by means of an abstract formula which would comprise the idea which the Government of the United States considers “naturally to form part of the treaty of peace and friendship between Colombia and Panama”, without entering into details which might well now cause delays, and simply making an express mention of the object of the convention for the conclusion of which the United States promise to lend their good offices.

Moreover, the formula now proposed by the Government of Colombia for a second paragraph for Article IV is in complete harmony with the statement and promise made by the Government of the United States in the Department’s note dated January 5, 1904, addressed to the Colombian Legation at Washington, in which Mr. Hay, after stating that his Government would not agree to submit the differences that had arisen between Colombia and the United States to the decision of the Hague Tribunal, closes by saying:

But there may be, no doubt, other questions which may form a proper subject of negotiation; among them, for instance, the establishment of diplomatic relations between the Republics of Colombia and Panama, the delimitation of their respective boundaries, the apportionment of their mutual pecuniary liabilities. If the Government of Colombia will take these matters up, with any others which they think may require discussion, and will put their suggestions in regard to them in a definite and concrete form, they will receive at the hands of this Government the most careful consideration with a view to bringing them, in the exercise of good offices, to the attention of the Government of Panama.

As will be seen, the formula which the Colombian Government presents today is based upon the wording of this solemn promise of the Government of the United States, which jointly includes the questions relating to the demarcation of boundaries, the establishment of diplomatic relations and the proportional division of the pecuniary liabilities of Colombia and Panama.

Foreign Office,
Bogotá, March 21, 1914.

[Inclosure 4.]

Treaty between the United States of America and the Republic of Colombia for the settlement of their differences arising out of the events which took place on the Isthmus of Panama in November, 1903.

Diario Oficial, Bogota, April 14, 1914.

[The text of the treaty will be found on p. 163.]

14. Acknowledged on May 21, 1914.
15. Not printed.