714.1515/778: Telegram
The Minister in Honduras (Summerlin) to the Secretary of State
[Received August 1—4:55 a.m.]
94. Your telegram No. 58, of July 10, 2 p.m. My telegram No. 78, June 25, 5 p.m. I have received today a note dated July 27th from [Page 761] the Minister for Foreign Affairs which after preliminary references to previous correspondence reads as follows:
“I must first of all express the satisfaction of my Government with the kind reception which His Excellency the Secretary of State gave to my previous note of June 26 [25]42 already referred to; with so much the greater reason in view of the fact that according to the opinions in his communication the Department of State shares with the Government of Honduras its point of view relative to the effectiveness in 1923 of the Convention of 1914 and relative to the promise of arbitration solemnly agreed upon in 1923 during the Conference on Central American Affairs. The weighty opinion of the Department of State comes to reinforce the conviction always held by the Government of Honduras in regard to the effectiveness of those mutual obligations.
His Excellency the Secretary of State makes the observation that although the Convention of 1914 was then in vigor the Government of Honduras in 1918 had recourse to mediation and in 1923 to the negotiation of a new agreement. Permit me to remark with all respect to Your Excellency that it is precisely around the Convention of 1914 that revolve all the diplomatic entanglements which obtained from the frontier difficulties between Honduras and Guatemala. When the first incidents arose in the middle of 1917 the Government of Guatemala sent to this Republic an extraordinary legation under Mr. Victor Sanchez Ocano for the purpose of effecting a direct agreement between the two countries. Mr. Sanchez Ocano as plenipotentiary of Guatemala and Dr. Marino Vasquez, Minister for Foreign Affairs of Honduras, signed on September 20, 1917, a “preliminary agreement,” Article 5 of which reads as follows: ‘It is understood that if the treaty here projected does not become effective for any reason and if it should not be ratified by the respective legislatures of Honduras and Guatemala, the boundary convention signed between the two republics on August 1, 1914, will remain in force.’
No definite agreement then having been reached the boundary convention of 1914 remained naturally in full effect.
Neither in the opinion of my Government does the mediation of the Government of the United States formally offered, according to a note from the American Legation in Tegucigalpa, dated December 26, 1917,43 destroy the vigor of the convention of 1914 posterior to the mediation, as no definite agreement was reached through the mediation.
It is in consideration of such prior obligations that the Government of Honduras has maintained its thesis of arbitration by His Excellency the President of the United States of America, taking into account likewise the high equity and moral authority of the arbitrator and also the facilities which arbitration in this manner would offer, avoiding delays and difficulties which might prove to be unsurmountable in other methods recently suggested, as I ventured to indicate to Your Excellency in the previous note of June 25.
And I pass now to explain with the spirit of frankness and sincerity which animates my Government in its cordial relations with that of Your Excellency, the opinion just mentioned which was the [Page 762] subject of observation by His Excellency the Secretary of State, according to the courteous communication addressed to me by Your Excellency on July 11th, accompanying your note of the same date above referred to.
As Your Excellency is aware the members for the formation of the International Central American Tribunal, according to article 2 of the convention of 1923, should be selected from a list of 30 jurisconsults constituted as indicated in the same article. The names of the persons designated by the contracting parties should be communicated to the Minister for Foreign Affairs of Honduras by the Government which names them. The Minister for Foreign Affairs of Honduras should transmit the complete list to each one of the signatory republics.
Honduras as Your Excellency can see having been assigned the mission of communicating the complete lists for the formation of the Tribunal in conjunction with chancellery is in a position to appreciate better than any other bureau in the other countries the lack of the lists made at the proper time for the formation of the International Central American Tribunal.
In fact with the exception of the Government of the United States of America which presented its due list in accordance with article 3 of the convention, of the Central American Governments which ratified it only the Government of Costa Rica sent in its list dated October 30, 1925. The Government of Nicaragua has just sent in a list drawn up by decree of His Excellency the President of the Republic dated June 27th of the present year 1928. The Government of Honduras has not made its corresponding appointments and as according to article 2 of the convention the appointments made by the President of the Republic must have the approval of the National Congress, the list to be furnished by Honduras can only be valid after the next meeting of the Congress.
As result of such antecedents of undebatable authenticity, the calmed judgment of His Excellency the Secretary of State will appreciate that judicially, even when in a difficult and artificial manner we may have achieved the getting together of the present lists for the formation of the Central American Tribunal, such lists will be makeshift or temporary, gotten up for the handling of a concrete case in which event the Tribunal could not be such a one as would result from permanent lists made with complete isolation from the pending problems of Central America. In that sense the Tribunal itself would suffer from the effects of its artificial creation against the spirit and hopes which undoubtedly governed its establishment by the convention of 1923 because it would carry the taint of nullity to any of its findings as claimed and explicitly apprehended by subsection (a), paragraph 2 of article 1 of the convention itself. Naturally the foregoing considerations have no reference whatever to the reputation or high moral worth of the distinguished jurists who have been or may be appointed for the formation of the proposed Central American Tribunal.
In any event, even the remote contingency which would be considered by my Government, of success in establishing the Central American Tribunal in proper manner, I wish to give immediately some idea of the attitude taken by the Government of Honduras as to the question [Page 763] of the nature of arbitration, in answer to the proposal made by His Excellency the Secretary of State and transmitted by Your Excellency in your note of June 5 last.
In the recently published work (1927) by the eminent American publicist, James Brown Scott, “The Hague Peace Conferences,” the consideration is brought forward on page 200 that the United States has not only favored arbitration as a policy but has made it a juridical proceeding.
Earlier on page 195 he cited the following concepts of Renault in support of his idea: ‘International arbitration will never develop soundly until it frees itself in the most positive manner from the domination of politics and diplomacy by which it has been so long confined and limits itself solely to the judicial field into which it has barely entered. It is only under such conditions that it can inspire confidence in governments and peoples and can offer guarantees to the smaller states often liable to [be] victims of political considerations.’
In the proposal of the Department of State contained in the before-mentioned note of June 5 there is laid down as one of the points presented for the consideration of my Government that the Tribunal of Arbitration be fully empowered to fix a definite boundary between Honduras and Guatemala “taking into consideration the political economic and commercial interests of both States” and also to determine the amount of whatever compensation might be found necessary or desirable to be made by one party to the other. His Excellency the Secretary of State with noble breadth of vision has later explained his idea indicating that his judgment does not exclude from the arbitration the judicial or documentary proof on which may rest the rights of the two parties; but as the legislative decree of Guatemala authorizing the Executive Power of that republic to accept arbitration establishes the above concept to which Honduras takes exception without other review, I must refer to him in that matter for the appropriate considerations.
My Government shares [with] the American author mentioned and with the United States of America, according to his opinion, the idea that arbitration is of an essentially judicial nature. Its judicial character is accentuated in territorial questions. In the boundary agreements made between Honduras and Guatemala in 1895 and 1914 it was established that to settle the question there would have to be considered the observations and studies of technical commissions; lines laid down in public documents and not contradicted by others of equal force, giving to each the value due its antiquity or judicial force; the extent of the territory comprised in the ancient provinces of Guatemala at the date of its independence, the contents of the royal ordinance of intendants which was then in force; and in general all the documents, maps, plan[s] et cetera which lead to the uncovering of the truth, giving preference to those which through their nature might carry most weight by reason of clearness, exactness and impartiality or for any other sound reason according to the principles of justice, all being conditions as Your Excellency will duly appreciate of a particularly juridical and scientific nature. Possession was given only the weight due to what was justly legitimately and fundamentally held according to the general principles of right and the rules of justice which in the premises had the sanction of the law of nations.
[Page 764]A proposal of arbitration which does not rest on a foundation essentially judicial, aside from any other conditions not based on right and justice, and the result being already interwoven with circumstantial conditions, is, in the opinion of my Government, an undertaking to which Honduras could not agree to entrust the vital interests of her territorial integrity without provoking the just censure of the public conscience.
Now animated by the highest sentiments of fraternity and conciliation and attentive to the friendly observations of the mediator government, Honduras would be able once a decision had been dictated based solely on juridical considerations, to consider then the question of reciprocal compensations on grounds of equity and mutual convenience. But such compensations, already contemplated in article 7 of the convention of 1914, must be the result of juridical arbitration and not of prior stipulation and agreements which would prejudice the final decision.
In view therefore of the following fundamental considerations: the nonexistence of the arbitrating tribunal; the impossibility of organizing it in the form required; and the restriction of the territorial rights of Honduras contained in the stipulations in the legislative decree of Guatemala which subjects the provisional arbitration to antecedent conditions dangerous for the integrity of the country, considerations which my Government hopes will be received with a generous and benevolent spirit by the Government of Your Excellency, in view of the rectitude and loyalty which has motivated them, my Government regrets that it is not able to accept the arbitration in the form proposed by His Excellency the Secretary of State in the note of Your Excellency of June 5, 1928, at the same time protesting its firm intention to accept any other arbitration under His Excellency the President of the United States of America, the Chief Justice of the Supreme Court of the United States or any other tribunal established in regular and permanent form, the arbitration being made in conformity with proved rights and documents of the parties and without other considerations than the ones which are derived from those rights.
I am happy to take this occasion to renew to Your Excellency the assurance of my distinguished consideration and high esteem. Signed, F. Davila.”
This note and my note of July 11 based on your telegram No. 58 of July 10, 2 p.m., were published in the local press this afternoon.
Repeated to Guatemala.
- See telegram No. 78, June 25, 5 p.m., from the Minister in Honduras, p. 751.↩
- Foreign Relations, 1917, p. 797.↩