Gift 2.5. Cenfield 2-15.30 54 CHAMIZAL ARBITRATION. PRINTED ARGUMENT OF THE UNITED STATES OF AMERICA BEFORE THE INTERNATIONAL BOUNDARY COMMISSION, THE HONORABLE EUGENE LAFLEUR PRESIDING. INTRODUCTORY STATEMENT.—THE CONVENTION OF JUNE 24, 1910. Article 5 of the Convention of June 24, 1910, provides 5. "At the first meeting of the three Commissioners each party shall deliver to each of the Commissioners and to the Agent of the other party, in duplicate, with such additional copies as may be required, a printed argument showing the points relied upon in the case and counter-case, and referring to the documentary evidence upon which it is based."a In accordance with this provision the United States submits the following statement of points relied upon, supported with references to the documentary evidence in the record before the commission. The question to be decided by the International Boundary Commission in this case is precisely defined in Article 3 of the Conven-, tion which says "the Commission shall decide solely and exclusively as to whether the international title to the Chamizal Tract is in the United States of America or Mexico." The tract in dispute is defined by metes and bounds in Article I of the Convention. As has been pointed out in the Case of the United States, this is not a case of first impression, but has already been once submitted to the International Boundary Commission. The Treaty of June 24, 1910 categorically states that the "differences which have arisen between the two governments as to the international title to the Chamizal Tract upon which the members of the International Boundary Commission have failed to agree" (Preamble) are now "again referred to the International Boundary Commission * ** enlarged by the addition for the purposes of the consideration and decision of the aforesaid differences only by a third commissioner, who shall preside over a U. S. Case Appendix p. 5. c U. S. Case Appendix p. 3. d Case of the U. S. p. 13-19. 3 the deliberations of the Commission" (Article II). It is therefore the same case sent back for retrial in the same court. а Mexico was claimant at the first trial of the Chamizal Case before the International Boundary Commission in 1894–96 a and is therefore again claimant now that the case has been "again referred" for trial. This result also follows from the fact that Mexico is seeking through the decision of the International Boundary Commission to oust the United States from territory which has been in its possession ever since the gradual formation of the land. The fact that in accordance with terms of the convention both parties file their cases and countercases and printed arguments on the same day is in no wise inconsistent with this contention, this being a common practice in international arbitration of this character, even in cases in which one of the litigant governments is clearly the claimant.c Mexico as claimant, is accordingly charged with the burden of establishing her case upon all propositions of law and fact by the preponderance of evidence. An additional duty of going forward with the evidence rests upon Mexico because Mexico is attempting to maintain that the international boundary line along the Rio Grande is a fixed. mathematical line coinciding with the Rio Grande only at points of intersection, whereas the United States contends for a fluvial boundary along the Rio Grande and "Vattel says, Book I, ch. 22, sec. 268: 'In case of doubt, every territory terminating on a river is presumed to have no other boundary than the river itself; because nothing is more natural than to take a river for a boundary, when a settlement is made; and wherever there a Joint Journal July 10, 1896, U. S. Case Appendix, p. 185. Article 5 Rules and Regulations of the International Boundary Commission, U. S. Case Appendix, p. 93. See Case of the United States, p. 13. See U. S. Case Appendix, p. 212. b Case of the U. S., p. 44. The opening sentence of the Mexican Case appears to recognize that Mexico comes before this Tribunal as a claimant in the following apt language: "The United States of Mexico demand from the Government of the United States of America the acknowledgment on the part of the latter as the property of the former, and therefore subject to the jurisdiction of Mexico, the lands known as "El Chamizal," etc. (Mexican Case, p. 1.) At the conclusion of the Mexican Countercase, however, the learned Mexican Agent reaches the conclusion that "in none of the articles of the Convention does it appear that Mexico has assumed the character as claimant." (Mexican Countercase, p. 52.) See, for example, Protocol of February 9, 1909, United States and Venezuela, submitting three cases in which the United States was claimant, to the Hague Tribunal, Treaties and Conventions, Vol. 2, p. 1889. Protocol of December 1, 1909, United States and Chile, submitting the Alsop Claim, in which the United States is claimant, for arbitration, etc., etc. Compare Mexican Countercase, p. 52. is a doubt, that is always to be presumed which is most natural and most probable.' "a The Treaty of June 24, 1910 modifies and supplements the Convention of 1889 establishing the International Boundary Commission in the following particulars: First. By the "addition for the purposes of the consideration and decision of the aforesaid differences only, of a third Commissioner" (Article 2). Second. By making the decision "final and conclusive upon both Governments, and without appeal", (Article 3), instead of subject to the disapproval of the two governments within the period of one month as provided by Article 8 of the Convention of 1889.d Third. In view of the contentions set forth in the Mexican note of January 15, 1910, it is recited in the preamble of the convention of June 24, 1910, that the two governments desire that the decision of the International Boundary Commission be rendered "in accordance with the various treaties and conventions now existing between the two countries, and in accordance with the principles of international law".e The preamble of the convention was proposed by the United States and accepted substantially as proposed. The Mexican countercase lays great stress upon the fact that while the draft as proposed by the United States reads “the United States of America and the United States of Mexico, desiring to terminate in accordance with the various conventions now existing between the two countries and in accordance with the principles of international law etc.", the Mexican counter-draft, accepted by the United States reads "in accordance with the various treaties and conventions now existing between the two countries and in accordance with the principles of international law" 9 i. e. the word "treaties" has been inserted. It is submitted that there is absolutely no difference in the meaning of the preamble as proposed by the United States and as proposed by Mexico and adopted by the two countries. The words treaty and convention are for all practical purposes a U. S. Case Appendix, p. 212. b U. S. Case Appendix p. 4. c U. S. Case Appendix p. 4. d U. S. Case Appendix p. 75. e U. S. Case Appendix p. 3. See also Preamble, p. 3. f U. S. Countercase p. 21, citing Mr. Knox to Señor de la Barra, June 17, 1910, U. S. Case Appendix p. 434 and 435 9 U. S. Countercase Appendix pp. 35 and 38. synonyms in international law. As Calvo says "in practice the word treaty or convention is used indifferently"." They require the same formalities in their negotiation and ratification by the constitutional law of both the United States and Mexico. And finally the terms are used interchangeably in the treaties and conventions between the United States and Mexico.c It is submitted therefore that there is no difference in the meaning between the preamble as proposed by the United States and as modified by the insertion of the word "treaties" and adopted by the two countries. However, in the view of the United States this point is of no importance and has been noticed only in deference to the stress placed upon it by the learned Mexican Agent. As queried in the countercase of the United States "if the United States had by any inadvertance" proposed a stipulation which would have precluded the tribunal from considering the fixed boundary theory now propounded by Mexico "is it reasonable to suppose that the Mexican Foreign Office would have accepted it?" This query, as was to have been expected, a Calvo, International Law, 2d Edition, Vol. 1, p. 689. Vattel, Law of Nations, p. 287, 314,— Edition. Piédeliévre, Short treatise on International Public Law or the law of Nations (1894) I: 279. Pradier-Fodéré: II: 472. Hall International Law, 6th Edition p. 321. Butler's Treaty Making Power of the United States, paragraph 463, Note. Larouse, Dictionary, 5:33, 15:402. Répertoire général alphabétique du droit français, 35:977 (Paris, 1905). b Constitution of the United States, Art. 2, Sec. 2, Paragraph 2, Rodriguez, American Constitutions, Vol. 1, p. 24. Butler's Treaty Making Power of the United States. Constitution of the United Mexican States, Art. 72, Sec. 13, Rodriguez, American Constitutions, Vol. 1, p. 56; Article 85, Sec. 10, Ibid, p. 61; Law of November 13, 1874, amending the Mexican Constitution Paragraph 3, Art. 72, Sec. 6B1, Ibid p. 79. 66 c The original treaties and conventions between the United States and Mexico, 1848 to 1910, have no headings, except the Convention of 1848 and the Convention for the Arbitration of the Chamizal Case, 1910. (The Treaty of 1848 has a quasi heading.) The remaining headings assigned to these treaties are purely arbitrary and are therefore bracketed in the Appendix to the Case of the United States. (See U. S. Case Appendix pp. 3 to 92.) In the text of the various treaties and conventions the words "treaty" and convention' are used interchangeably, both words frequently being applied to the same instrument in the same instrument. For example the preamble of the convention (or treaty) of 1889 establishing the International Boundary Commission says that "the two republics have resolted to conclude a treaty," while Article 9 says "this convention shall be ratified". The preamble of the same convention refers to the "treaty of November 12, 1884" whereas Article 4 refers to "Articles 1 and 2 of the convention of November 12, 1884", and Article 5 refers to " Article 3 of the convention of November 12, 1884. Again take the Convention (or treaty) of March 20, 1905, (U. S. Case Appendix pp. 85 to 89). In Articles 1, 3, 4 and 5 the word 'convention" is used to describe that instrument while in Article 2 it is referred to as "this treaty" and in the protocol of signature, signed November 14, 1905, it is referred to as 'the treaty for the elimination of bancos in the Rio Grande". The same instrument in its preamble twice refers to the "convention of 1884", but in article I speaks of "the treaty of November 12, 1884." (Italics in this note are ours.) d Ú. S. Countercase, p. 21. is answered with a decided negative by the Mexican Countercase." But the fact that the two governments agreed to make it clear that in referring the Chamizal case again to the International Boundary Commission they did not intend to confine the commission to the consideration of the case under the treaty of 1884 exclusively but intended to permit the commission to pass upon the contention of the Mexican Government as to the fixed line theory, does not go any distance at all towards showing that the governments intended to say that the treaty of 1884 should not be applied to the case if in the opinion of the International Boundary Commission it is applicable. The admitted intent to leave it open to the International Boundary Commission to say whether or not the treaty of 1884 applies is no argument at all to show an intent that the Commission should not apply the treaty of 1884 or to use the language of the countercase of the United States, "the fact that the United States has agreed to arbitrate this case is not an argument for a decision against the United States. The United States must therefore respectfully join issue with the statement of the Mexican countercase that the treaty of June 24, 1910 has "acknowledged and protected the unquestionable right of the Mexican Government that the case be to-day discussed laying altogether aşide the Convention of Novem ber 12, 1884. The law of this case as prescribed by the terms of the submission is "the various treaties and conventions existing between the two countries" and "the principles of international law." a Mexican Countercase, pp. 15–17. b U. S. Countercase p. 22. c Mexican Countercase, p. 16. See another passage in the Mexican countercase where it is stated "that the desire of both governments was to terminate the El Chamizal case in accordance not only with the provisions established under Articles Number 1 and 2 of the Convention of 1884, but also in conformity with the treaties and conventions now existing." Mexican countercase, p. 17. |