of American States, possess a special character demanding the maintenance of the integrity of the Congress as an exclusively American institution. I am [etc.] CHARLES E. HUGHES THE TACNA-ARICA QUESTION: THE ARBITRATOR'S AWARD AND THE ESTABLISHMENT OF THE PLEBISCITARY COMMISSION" 723.2515/1318c: Telegram The Secretary of State to the Ambassador in Chile (Collier) 30 WASHINGTON, March 5, 1925—3 p. m. 7. The President yesterday signed Tacna-Arica decision. It is being printed and will be handed to the Chilean and Peruvian Ambassadors by the President at 10 o'clock Monday morning, March 9. A 12,000 word informal summary will be cabled to you before midnight tonight.31 You will please arrange for its immediate decoding taking every possible precaution that no inkling whatsoever of its contents becomes known to anyone outside the commissioned personnel of your mission. You will arrange an audience with the Minister for Foreign Affairs for Monday, March 9, at a time corresponding to 10 o'clock A. M. Washington time to hand him a copy of the summary. KELLOGG 29 Continued from Foreign Relations, 1923, vol. 1, pp. 364 ff. Among the Chilean governmental publications relating to the award and plebiscite are: Tacna-Arica Arbitration: The Case of the Republic of Chile, etc. [Washington (?), 1923]; The Appendix to the Case of the Republic of Chile, etc. [Washington (?), 1923]; The Counter-Case of the Republic of Chile, etc. [Washington (?), 1924]; The Appendix to the Counter-Case of the Republic of Chile, etc. [Washington (?), 1924]; and Notes on the Peruvian Case and Appendix, Submitted with the Counter Case of the Republic of Chile, etc. [Washington (?), 1924]. Among the Peruvian governmental publications relating to the award and plebiscite are: Arbitration between Peru and Chile: The Case of Peru, etc. (Washington, 1923); Appendix to the Case of Peru, etc. (Washington, 1923); The Counter Case of Peru, etc. (Washington, 1924); and Appendix to the Counter Case of Peru, etc. (Washington, 1924). Also El Arbitraje de Tacna y Arica: Actas de las Comisión Plebiscitaria, 2 vols. (Lima, Imprenta Torres Aguirre, 1928); Documentos relativos al plebiscito de Tacna y Arica, 6 vols. (Lima, Casa Editora "La Opinion Nacional", 1926); and El proceso de Tacna y Arica (1925-1927): reseña de las principales sucesos, etc. (Lima, Casa Editora "La Opinion Nacional", 1927). Although it is not printed as a government publication, the following should be added to the foregoing publications: Memoria presentada al Supremo Gobierno por el Miembra-Representante de Chile en las Comisión Plebiscitaria (Arbitraje de Tacna y Arica), etc. (Santiago, Soc. Imp. "Universo", 1926). The same to the Ambassador in Peru as Department's telegram No. 12. "1 Not printed; see complete text of the award, infra. 723.2515/1324 Opinion and Award Rendered March 4, 1925, by the Arbitrator in the Matter of the Arbitration Between the Republic of Chile and the Republic of Peru With Respect to the Unfulfilled Provisions of the Treaty of Peace of October 20, 1883, Under the Protocol and Supplementary Act Signed at Washington, July 20, 19223 32 In response to the invitation of the Government of the United States of America, representatives of the Republic of Chile and the Republic of Peru assembled in the City of Washington in May, 1922, for the purpose of arriving at a settlement with respect to the unfulfilled provisions of the Treaty of Peace of October 20, 1883. As a result of their deliberations, a Protocol of Arbitration was signed containing the following provisions: "ARTICLE I. It is herein recorded that the only difficulties arising out of the Treaty of Peace concerning which the two countries have not been able to reach an agreement, are the questions arising out of the unfulfilled provisions of Article 3 of said Treaty; "ARTICLE II. The difficulties to which the preceding article refers will be submitted to the arbitration of the President of the United States of America who shall decide them finally and without appeal, hearing both Parties and after due consideration of the arguments and evidence which they may adduce. The terms and procedure shall be determined by the Arbitrator." At the same time the following Supplementary Act was signed: "For the purpose of defining the scope of the arbitration provided for in Article 2 of the Protocol subscribed upon this same date, the undersigned are agreed to leave on record the following points: "1. Included in such arbitration is the following question, brought up by Peru in the session of the Conference of the 27th of May last: "In order to determine the manner in which the stipulations of Article 3 of the Treaty of Ancon shall be fulfilled, it is agreed to submit to arbitration the question whether, in the present circumstances, a plebiscite shall or shall not be held.' The Government of Chile may submit to the Arbitrator such arguments in reply as may seem appropriate for its defence. "2. In case the holding of the plebiscite should be declared in order, the Arbitrator is empowered to determine the conditions thereof. "3. Should the Arbitrator decide that a plebiscite need not be held, both Parties, at the request of either of them, shall discuss the situation brought about by such award. "It is understood, in the interest of peace and good order, that in such an event and pending an agreement as to the disposition of the For text of treaty of Oct. 20, 1883, see Foreign Relations, 1883, p. 731; for texts of the protocol and supplementary act of July 20, 1922, see ibid., 1922, vol. I, p. 505. territory, the administrative organization of the provinces shall not be disturbed. "4. In the event that no agreement should ensue, both Governments will solicit, for this purpose, the good offices of the Government of the United States of America. "5. Included in the arbitration likewise are the claims pending with regard to Tarata and Chilcaya, according to the determination of the final disposition of the territory to which Article 3 of the Treaty refers. "This Agreement is an integral part of the Protocol to which it refers." Ratifications of the Protocol and Supplementary Act having been exchanged, the President of the United States of America accepted the office of Arbitrator, and the Cases and Counter Cases of the respective Parties have been submitted in accordance with a schedule of arbitral procedure proposed by the Parties and approved by the Arbitrator. The record, comprising nearly six thousand pages, having been carefully examined, the Arbitrator now renders the following Opinion and Award. TREATY OF ANCON Article 3 of the Treaty of Peace of October 20, 1883, known as the Treaty of Ancon, reads as follows: "Art. 3. The territory of the provinces of Tacna and Arica, bounded on the north by the River Sama from its source in the Cordilleras on the frontier of Bolivia to its mouth at the sea, on the south by the ravine and River Camarones, on the east by the Republic of Bolivia and on the west by the Pacific Ocean, shall continue in the possession of Chile subject to Chilean laws and authority during a period of ten years, to be reckoned from the date of the ratification of the present treaty of peace. "After the expiration of that term a plebiscite will decide by popular vote whether the territory of the above-mentioned provinces is to remain definitely under the dominion and sovereignty of Chile or is to continue to constitute a part of Peru. That country of the two, to which the provinces of Tacna and Arica remain annexed shall pay to the other ten million pesos of Chilean silver or of Peruvian soles of equal weight and fineness. "A special protocol, which shall be considered an integral part of the present treaty, will prescribe the manner in which the plebiscite is to be carried out, and the terms and time for the payment of the ten millions by the nation which remains the owner of the provinces of Tacna and Arica.”* *(N. B. This text is the translation given in the Appendix to the Peruvian Case. The Chilean translation, which is taken from the Foreign Relations of the United States for 1883, is not materially different.) [Footnote in the original.] THE ARBITRATOR'S DUTY The Protocol and Supplementary Act, which must be read together, provide not only for arbitration but in a specified contingency for the good offices of the Government of the United States, but these contingent good offices have nothing to do with the duty which the terms of submission cast upon the Arbitrator. That duty is 1. To decide whether in the present circumstances a plebiscite shall or shall not be held to determine the definitive sovereignty of the territory in question as between Chile and Peru. 2. If the Arbitrator decides in favor of a plebiscite to determine the conditions of that plebiscite, including the terms and time of the payment to be made by the nation succeeding in the plebiscite as provided in Article 3 of the Treaty of Ancon. 3. If the Arbitrator decides against the plebiscite to take no further action as Arbitrator, except that 4. Whether the decision be for or against a plebiscite, the Arbitrator is to decide the pending questions with respect to Tarata and Chilcaya arising respectively on the northern and southern boundaries of the territory. FIRST-THE QUESTION OF THE PLEBISCITE The first question is whether in the present circumstances a plebiscite shall or shall not be held. The territory of the provinces of Tacna and Arica is understood to be about nine thousand square miles in area and to have a population of between thirty and forty thousand. It belongs to the desert region of the Pacific coast. There are some mineral resources but these do not appear to be extensive. The valleys proceeding from the mountains on the east give opportunities for agriculture. In one of these valleys lies the city of Tacna, which was the capital of the Peruvian province of that name. The city of Arica, the capital of the other Peruvian province mentioned in Article 3 of the Treaty of Ancon, is a port on the Pacific ocean about forty miles from Tacna, with which it is connected by railroad. Arica is the terminal of the railroad running to La Paz, Bolivia, and has commercial importance. At the time of the signing and ratification of the Treaty of Ancon, Chile was already in possession of the territory of the provinces of Tacna and Arica, here in question, as a result of the War of the Pacific. By the terms of the Article it was agreed that she should continue in possession of this territory for a period of ten years and that during this period it should be "subject to Chilean laws and authority." It was further agreed that "after the expiration of that term" a plebiscite should be held to decide whether the territory should "remain definitely under the dominion and sovereignty of Chile" or should "continue to constitute part of Peru," i. e., whether the territory should be permanently Chilean or permanently Peruvian. The paragraph then goes on to provide, "that country of the two" to which the provinces of Tacna and Arica "remain annexed" shall pay the other ten million Chilean pesos or Peruvian soles. Finally, the Article provides for the negotiation by the two countries of “a special protocol" which will prescribe, first, "the manner in which the plebiscite is to be carried out" and second, "the terms and time for the payment of the ten millions." The question whether a plebiscite shall or shall not be held depends upon the question whether the second and third paragraphs of Article 3 of the Treaty of Ancon are still in effect. If these provisions have not expired by lapse of time, if they have not been abrogated or discharged by the conduct of the Parties so that performance can no longer be demanded, the plebiscite should be held because that is the agreement. If that agreement for any reason is no longer binding, then the plebiscite should not be held unless a new agreement for that purpose is made. As the question thus relates to the construction, operation and obligation of this part of the treaty, the province of the Arbitrator is more narrow than the range of the arguments which have been presented. It is neither the duty nor the privilege of the Arbitrator to pass upon the causes or the conduct of the War of the Pacific, or upon the justice of the terms of peace, or upon the relations of either Party to the Republic of Bolivia, or upon the wisdom of the provisions of Article 3 of the Treaty of Ancon, or upon the economic effects of the treaty, or upon alleged general equities of the present situation, or upon any questions whatever which are aside from the meaning and efficacy of the agreement itself. The correct interpretation of Article 3 of the Treaty of Ancon, as a whole, and it might almost be said, of every word thereof, has been ably and ingeniously debated between the Parties for years, and is again ably and ingeniously discussed in their Cases and Counter Cases. Into the refinements of this debate it is not necessary to go, inasmuch as they do not, in the opinion of the Arbitrator, affect the considerations which are controlling in the determination of the issues in this arbitration. LAPSE OF TIME At the outset, it should be observed that the second and third paragraphs of Article 3 do not provide for the termination of their obligations by lapse of time. The Article contains no provision for forfeiture. It fixed no period within which the plebiscite must be taken. The plebiscite was to be had "after the expiration of that term," that |