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tralized Government of Colombia, the Government of the United States bent its earnest efforts toward effecting a just and practical settlement to which Panama, equally with the United States and Colombia, should be a party.
The earlier representations of the Colombian Government, after the recognition of the Republic of Panama and the conclusion of the canal treaty, did not urge arbitration, except by way of alternative submission of pending questions to an impartial court should a diplomatic arrangement not be feasible. These representations were made up of complaints and charges against the United States with imputation of violation of treaty and general bad faith. Colombia. then insisted upon reparation being made by the Government of the United States. This is shown by the correspondence heretofore published.
As an element of the proposed negotiation for a conventional settlement a suggestion of arbitration was made which looked to "the settlement of the claims of a material order which either Colombia or Panama by mutual agreement may reasonably bring forward against the other as a consequence of facts preceding or following the declaration of independence of Panama." This proposition, as formulated, was favored by Secretary Hay, together with the proposal that a plebiscite should determine whether the people of the Isthmus preferred allegiance to the Republic of Panama or to the Republic of Colombia (Mr. Hay to General Reyes, Jan. 13, 1904). Both these proposals were considered in the subsequent negotiations of the tripartite treaties, which aimed to settle all claims "of a material order between Colombia and Panama and which were, in terms, largely responsive to the Colombian demands in this regard; but the only subject to be submitted to arbitration under the abortive treaty between Colombia and Panama signed by Messrs. Cortés and Arosemena was the boundary line in the long-disputed district of Jurado. No provisions for a Panaman plebiscite appeared therein. Even that proposed alternative of arbitration thus disappeared when the parties to the controversy reached the conventional accord formulated in the tripartite treaties of January 9, 1909.
The negotiations of these treaties with the United States and Panama for the adjustment of all questions between the three parties were proposed by the Government of Colombia itself.
The negotiations stretched over a period of some three years, being interrupted from time to time by fresh demands on the part of Colombia and hampered in their course by what seemed a very inconsistent reversion of the Colombian plenipotentiaries of the time to attempt to create issues any bases for which had in effect been set aside by Colombia's own proposal to settle the material questions involved. On one occasion the obstructive tactics of the Colombian plenipotentiary were virtually disavowed by his recall and the substitution of another more in accord with the policies of his Government. The issue had thus been early narrowed to the question of compensation for the losses and injuries pleaded by Colombia, and, it being undeniable that Colombia had suffered by failure to reap a share of the benefits of the canal, the Government of the United States was entirely willing to take this consideration into account, and to endeavor to accommodate the conflicting interests of the three parties by
the conventional fixation of a just measure of compensation, in money or in material equivalence. Throughout the whole discussion the course of the United States was marked by kindly forbearance and quitable generosity. The result was the signature on January 9, 1909, of three treaties, one between the United States and the Re[ublic of Colombia, one between the United States and the Republic of Panama, and one between Colombia and Panama, all three being interdependent, to stand or fall together. The treaties between the United States and the respective Republics of Colombia and of Panama received the advisory and consenting approval of the Senate on the respective dates of February 24 and March 3, 1909. That between Colombia and Panama was ratified by the Republic of Panama January 27, 1909, while the treaty with the United States was ratified by Panama three days later.
It seems unnecessary for the purposes of this report to narrate the elaborate negotiations which preceded the signature of the "tripartite" treaties. The Senate, in executive session, was apprised of the processes by which the conventional results were reached and the nature of those results is made apparent by the text of the three instruments. That their provisions sought to deal, adequately, justly, and in the only practical manner so far suggested, with the international problems growing out of the secession of Panama and out of the assumption by the United States of the great work of constructing the canal, would appear to be evident to the unprejudiced mind. The interests and honor of the three countries were, throughout the negotiation, jealously guarded by their respective plenipotentiaries, and their agreement on all vital points was a confirmatory safeguard. Nevertheless, negotiated as these treaties were at the instance of Colombia, and framed as they were with every desire to accommodate their terms to the just expectations of Colombia; and although they were accepted by the Colombian Cabinet, which made repeated efforts to bring about conditions favorable to their approval by the Congress, the treaties still remain unacted upon.
It thus remained for the Colombian Government to hold up the treaties, to propose the nullification of all the negotiations which had led up to their conclusion and which it had invited, and to suggest entrance upon new negotiations with the United States alone. This suggestion the United States then declined to accept, holding that the tripartite" treaties must stand or fall together and that no such substitutionary arrangement could be considered without the harmonious agreement of all three parties. In the same attitude, the Colombian Government, without seeking the consent of the United States to enter, after these two rebuffs, upon a discussion of an entirely different character, sought to revert to its former proposal of some kind of settlement by arbitration.
The next proposal of Colombia, on January 5, 1910, was that the United States and Panama should agree to submit to a plebiscite the question of the separation of Panama with the promise that the interests of the United States in the Canal Zone should not be affected by the result. This proposal as made was considered intangible and impracticable, although as late as March 26, 1910, it appears to have
1 For. Rel. 1909, pp. 223–233.
For. Rel. 1910, p. 406.
been the subject of an informal suggestion of the Colombian Minister, coupled with the promise that if the vote should be unfavorable to the status of Panama the Government of Colombia would formally recognize the acts of Panama in the canal matter.
Again the suggestion of arbitration in somewhat more tangible form appears in the shape of a confidential memorandum, under date of November 30, 1910, expressing the view of Señor Olaya, the Colombian Minister for Foreign Affairs, that, as the provision of article 35 of the Treaty of 1846 in regard to the guaranty by the United States of Colombian sovereignty over the territory of the Isthmus was differently interpreted by the two Governments, the question whether the acts of the United States on the Isthmus in 1903 were not in harmony with the engagements of article 35 appeared to be a judicial issue proper for arbitral determination. This informal suggestion appeared to involve proposals already rejected by Secretaries Hay and Root. It did not, moreover, materialize in a shape admitting of discussion, and was lost to sight when, about the same time, a new turn was given to the matter by the suggestion of the Colombian Foreign Office that, with a few changes (more apparent than real") the treaties might be approved. No tangible proposal was offered, however, as to the changes desired, although it was intimated in January, 1911, that they might import confirmation of Colombia's claim to the ownership of the Panama Railway and of alleged rights and interests in any canal contract or concession granted by Colombia. This intimation, like others put forward during 1910, never reached the stage of diplomatic discussion.
Still another phase supervened when, on March 28, in view of the statement alleged to have been made by ex-President Roosevelt in an address delivered at Berkeley, California, on March 23, to the effect that "he took the Canal Zone," the Colombian Minister, Señor Borda, construing this reported utterance as an admission that his nation had been "gratuitously, profoundly and unexpectedly offended and injured," demanded that the dignity and honor of Colombia should "receive satisfaction." No diplomatic discussion of this incident ensued. At the end of May, 1911, Señor Borda took leave of the President, and returned to Colombia, being replaced by General Pedro Nel Ospina, who presented his credentials May 31, 1911.
No record exists of any effort by this new Minister of Colombia to reach an understanding in regard to the Panama controversy or the tripartite treaties until his note of November 25, 1911.' In that note he recited, "the utter unliklihood" of a diplomatic settlement of the Panaman issues; characterized the attempt to regulate the situation by the direct agreement embodied in the tripartite treaties of 1909 as "most unfortunate," owing to the adverse sentiment of the Colombian people which had brought about the expatriation of the head of the Government and of the plenipotentiary (Señor Cortés) by whom they were signed; asserted that it had been demonstrated practically that the desired settlement of the existing differences could not be reached by direct agreement, and urged resort to the decision of an impartial tribunal as to the interpretation to be given to that part of the still existing Treaty of 1816, by which the United States, in return for valuable concessions, assumed the obligations to guarantee to New
1 See ante.
Granada (now Colombia) "the rights of sovereignty and property which she has and possesses over the territory of the Isthmus of Panama."
In conformity with usage, it was to be expected that the envoy would follow up such a communication by seeking personal conference with the Secretary of State to clear the way for formal treatment of a proposal alike so important and so vaguely comprehensive. As a matter of course, and as a part of the public duty of his office, the Secretary of State was and is, at all times, ready to hold such conference with a foreign representative, knowing the advantage to both parties in such a case, of thoroughly understanding each other's views before their expression in official correspondence. Moreover, a just regard for the sensibilities of a nation with which this Government sincerely desires to maintain friendly intercourse naturally made the Secretary of State averse to making a categorical refusal of the proposition, while on the other hand the vagueness of the proposal, like the nature of some of its implications, forbade its academic discussion without a more distinct understanding of its true scope. General Nel Ospina, however, held aloof from the Department of State. Matters were in this posture when, on the eve of the departure of the Secretary of State on a mission of good will and earnest amity toward the several Republics of the Caribbean, a kindly personal intimation of the pleasure it would afford the Secretary to include Colombia in his itinerary was met by the assertion that such a visit would be inopportune." 1 Included in this reply to an urbane note were arguments and also accusations tending to impugn the honor and good faith of the United States. It is gratifying to know that this singular course of the Minister was taken on his own initiative and was reprobated by his Government." The incident was not of international moment, but it was closed by the spontaneous recall of the envoy by his Government, leaving nothing in the path of that good understanding which this country desires to maintain with its fellow Republic.
It is thus seen that the request of Colombia for arbitration has only recently advanced from the status of a suggested contingent alternative, as a resort in case of failure to attain a diplomatic adjustment, to that of a request predicated on the impossibility of such a direct settlement, an impossibility, if it be one, only because of the act of the Colombian Government in twice repudiating settlements already agreed upon on two occasions by the procedure usual in the intercourse of nations.
It is also to be seen that while the request takes the same form as the earlier suggested contingent alternative and appears to confine the subject matter of arbitration to ascertainment of the true intent of an isolated clause of article 35 of the Treaty of 1846, a decision in that regard would revive the old charges and bring them into the arbitral proceedings.
It does not seem timely or pertinent to the purposes of this message to discuss these charges, which were exhausted in the correspondence of 1904 and 1905, and which were necessarily laid aside
In an informal personal letter to the Acting Secretary of State, dated February 15, 1912. (File No. 033.1100K77/42.)
File Nos. 033.1100K77/24b, 43a, 46, 130.
when the two Governments entered upon negotiations for a friendly adjustment of their differences, with the result of agreement upon conventional terms of settlement. It suffices to say that the thirtyfifth article of the Treaty of 1846 is necessarily to be construed as a whole, that the reciprocal obligations of the United States and Colombia were framed to enable this country to enjoy and maintain the enjoyment of the privileges of free uninterrupted isthmian transit, and that the transit was to be kept open by the United States upon occasion, free from disturbance from within or aggression from without. The stipulation which the Colombian Government isolates from its context and seeks to make the sole basis of its contention is in its essence a part of the rights reserved to the United States in order to secure to itself the tranquil and constant enjoyment of the advantages of the transit.
While it is styled as being in compensation for these advantages and in return for the general commercial privileges accorded by the convention, it is perfectly clear that, like the "perfect neutrality" of the Isthmus, the guaranty of the rights of sovereignty and property is to the end" that the free transit from the one to the other sea may not be interrupted or embarrassed in any future time while this treaty exists." And here it may not be out of place to observe that the neutrality of the Isthmus is not its international-law neutrality. The word neutrality has many meanings and shades of meaning besides its strictly technical sense of impartiality between alien belligerents, and is too often indefinitely or irrelevantly employed. In this instance, the obvious sense is that the territory covered by the transit is not to be allowed to become an arena of foreign assault or internal disturbance that may impair the tranquil enjoyment of its use. The United States has exercised the right to prevent such interruption in the past upon occasion, sometimes with the consent of Colombia, sometimes without it, sometimes at the request of Colombia herself in times of civil disturbance, and in the latter case not in fulfillment of any supposed duty to uphold the authority of the titular Government of the territory, but to prevent disorderly interference with the transit. Indeed, the very acts of the United States upon the Isthmus of which Colombia complained comport fully with the right and duty of the United States under the Treaty of 1846 to keep the line of transit free from the paralyzing disturbance of civil war, just as it would have been a right and duty to prevent its being a prey of alien rapacity in violation of the territorial rights of its own nationals.
When a new American Minister, Mr. James T. Du Bois, was sent to Colombia, in the latter half of 1911, he was informed of the desire of the United States to find some means consistent with its dignity and honor whereby an end might be put to the ill-feeling of Colombia. The view of this Government that, as a condition precedent to any real hope of this desirable result, there should be some modification of attitude in the direction of reasonableness on the part of the Colombian Government was explained, and much time was given by Mr. Du Bois to a careful study of the relations between the two countries. In the summer of 1912 he returned from Bogotá to confer with the Department of State as to how a just and fair settlement of our differences with Colombia could be reached.