Informal discussions concerning the character of the changes proposed by the Cuban Government and the reasons therefor have been held with both Dr. Céspedes and Dr. Gutiérrez, the legal adviser of the Cuban Department of State. It appears that the Cuban Government is animated by certain very natural wishes in connection with the negotiation of the new treaties, and these wishes were frankly explained. In the first place, the Cuban Government feels that the Spanish texts of the treaties now in force between the United States and Cuba are obviously merely translations of the English texts and that the impression therefore conveyed to any one who studies these treaties is that the texts thereof were dictated by the United States and then literally translated into Spanish. Both Dr. Céspedes and Dr. Gutiérrez expressed the earnest desire that the texts of the new treaties being negotiated, and particularly that of the Consular Treaty, should be expressed in idiomatic Spanish as well as idiomatic English and that due regard should be had for Spanish phraseology. A second point which was raised in connection with the Consular Treaty was the desire of the Cuban Government to make this convention a model convention-one which could be used as a basis not only for future treaties between Cuba and other foreign countries but also as a model for Latin-America in general. Dr. Céspedes, during the course of our conversations, referred several times to Article II of Project No. 23 concerning consuls as prepared by the American Institute of International Law at the request of the Board of Directors of the Pan American Union. It appears that on March 6, 1925, the Board resolved to send this project to the Governments members of the Union 24 in order that their comments might be submitted to the Commission of Jurists which will meet at Rio de Janeiro on August 2, 1926. It is the frankly expressed desire of the Cuban Government to conclude the negotiation, signature and ratification of the Consular Treaty with the United States prior to that date in order that Cuba may be able to present to the conference at Rio de Janeiro a fait accompli in the line of model consular conventions. It is possible that the Department may be willing to concur in certain of the changes suggested by the Cuban Government as being more applicable to Latin-American countries whose penal codes are based on Spanish models and whose jurisprudence follows Latin rather than Anglo-Saxon practices. I have [etc.] E. H. CROWDER "The resolutions were approved by the Governing Board on March 2; March 6 was the date of the letter of certification by the Secretary of the Governing Board; see Codification of American International Law (Washington, Pan American Union, 1925) p. 4. 211.37/25 The Ambassador in Cuba (Crowder) to the Secretary of State No. 1176 HABANA, September 11, 1925. SIR: I have the honor to refer to the Department's instruction No. 532 of September 2, 1925,25 in which I am directed to submit a complete report regarding the present status of the negotiations with respect to the proposed extradition convention. With a communication dated May 5, 1925,25 I transmitted to the Secretary of State of Cuba a draft convention for his consideration. This draft will be found as Enclosure No. 2 to a note of August 21, 1925, from Doctor Céspedes commenting on the American Government's proposals and submitting in return a counter-draft. Copy and translation of Doctor Céspedes note and its enclosures are transmitted herewith.25 It will be observed that the Cuban Government desires to amplify the original proposals of the American Government by the inclusion of certain additional crimes. With reference to the expression "abusos deshonestos" referred to in Article I of the Cuban counter-draft, and which has been translated "immoral abuses", I requested the Cuban Foreign Office to furnish me with a definition of the meaning of this term. There is enclosed herewith copy and translation of a note from Doctor Céspedes, dated August 26, 1925,25 furnishing the required explanations. I have the honor to refer to my telegram No. 105 of August 28, 12 M.,25 setting forth the Cuban desire to omit the word "offenses" and to confine the supplementary treaty to "crimes" (delitos) so as to emphasize the fact that misdemeanors (faltas) are excluded not only from the supplementary treaty, but from the original treaty. In its telegram No. 100 of September 3, 4 P. M.,25 the Department informed me that it had no objection to the omission from the proposed supplementary extradition treaty of the words "and offenses", stating that, however, this omission, if made, could not be considered as altering obligations incurred by the existing extradition treaty. Acting on these instructions I sent a note to the Foreign Office on September 4, 1925, a copy of which is enclosed herewith.25 There are enclosed herewith copy and translation of a note dated September 9, 1925,25 expressing the concurrence of the Cuban Government in the statements made in my note. With reference to the first sentence of the last paragraph of the second page of the Department's instruction No. 532 of September 2, 1925, I beg to state that I brought to the attention of the Cuban Government the desire of the American Government to include in 25 Not printed. 26 the supplementary treaty violations of the customs laws of both countries. I enclose herewith copy and translation of a note dated September 10, 1925, from Doctor Céspedes 20 expressing the consent of the Cuban Government to comply with the Department's suggestion, but proposing certain changes in phraseology. In considering, therefore, the text of the Cuban counter-draft (Enclosure No. 1) 26 there should be borne in mind the willingness of the Cuban Government to add, presumably as Paragraph No. 23 of Article II, the following provision: "Infractions of the customs laws or ordinances which may constitute crimes". I should be pleased to receive, as soon as may be convenient, instructions concerning the Department's attitude toward the changes which have been proposed by the Cuban Government. I have [etc.] 211.37/25 E. H. CROWDER The Secretary of State to the Ambassador in Cuba (Crowder) No. 543 WASHINGTON, September 24, 1925. SIR: The Department has received your despatch No. 1176 of September 11, 1925, containing a report regarding the present status of the negotiations respecting the proposed extradition convention between the United States and Cuba. You forwarded a counterdraft of the convention submitted by the Cuban Foreign Office, together with copy and translation of the Foreign Office note respecting the provisions of such counter-draft, including the proposition to cover certain additional crimes in the proposed convention, and you state that in view of a subsequent note from the Foreign Office it should be considered in examining the text of the Cuban counterdraft that the Cuban Government is willing to add, presumably as paragraph No. 23 of Article II, the following provision: "Infractions of the customs laws or ordinances which may constitute crimes." It is noted that the Foreign Office desires to designate the proposed convention as an additional protocol to the present extradition treaty, rather than as a supplementary convention as proposed by this Government. With respect to this point it may be observed that as the word "protocol" is used in this country, and generally so far as the Department is informed, it signifies an agreement between two foreign offices, whereas the proposed convention will necessarily, under the system of Government prevailing in the United States, *Not printed. be submitted to the Senate for its advice and consent, and dealt with in all respects like other treaty agreements made by this Government. Therefore the Department is clearly of the opinion that it would be more fitting to refer to the proposed convention as a supplementary extradition convention rather than as a protocol. With relation to the proposed additional crimes to be included in the convention, and taking them in the order in which they are mentioned in the Cuban counter-draft, it may be observed that the crime of dishonest or immoral abuses is not known as such in the jurisprudence of the United States, and the term is so lacking in definitiveness that the Department would be reluctant to include it among the list of extraditable crimes. It may further be said that the Department would have no objection to including among extraditable crimes abortion and seduction of minors. However, the term "corruption of minors" does not connote as such, an offense known to the jurisprudence of the United States, and the Department would prefer not to include an extraditable crime so broadly and indefinitely termed. The Cuban Foreign Office proposes to include the crime of "embezzlement, this being understood to be the defraudation made by one person against another by means of deceit." While pointing out that embezzlement by public officers or depositaries and embezzlement by persons hired or salaried to the detriment of their employers are included among the extraditable crimes covered by the existing extradition treaty between the United States and Cuba, the Department may say that the crime quoted as contained in the Cuban proposal would seem to be covered by the following crime covered in paragraph No. 6 of Article II of the present treaty: "Obtaining money, valuable securities or other personal property by false devices." The following crime is also proposed by the Foreign Office for inclusion in the convention: "Commercial frauds and crimes committed as the result of suspensions of payments or bankruptcy." The Department is of the opinion that this proposal is not sufficiently definite and certain and would prefer that it be amended to read as follows: "Crimes against bankruptcy law, if made criminal by the laws of both countries." The Department is, of course, in accord with the proposal to include in the convention "crimes against the laws for the suppression of the traffic in narcotic products". Furthermore, the Department is willing to accept the Cuban proposal for the wording above quoted of the extraditable crime involving violations of the customs laws and regulations. You will please bring the foregoing promptly to the attention of the Foreign Office and endeavor to conclude a convention in accordance with the desires of the Department as above expressed. I am [etc.] 211.37/30 FRANK B. KELLOGG The Ambassador in Cuba (Crowder) to the Secretary of State No. 1217 HABANA, October 22, 1924 [1925]. SIR: I have the honor to refer to the Department's telegram No. 114 of October 20th, 1 P. M.,27 directing me to forward a copy of my note to the Cuban Foreign Office pursuant to the Department's instruction No. 543 of September 24th and a copy of the Cuban Government's reply thereto with reference to the negotiation of a supplementary extradition convention between the two countries. In compliance with the Department's instruction I transmit herewith, as enclosure No. 1, copy of my note No. 556, dated September 30, 1925, on this subject, addressed to the Secretary of State of Cuba.27 I likewise transmit herewith, as enclosure No. 2, a copy of Dr. Céspedes' note No. 1027, dated October 7, 1925,27 in reply to my note. It was readily apparent to me after studying Dr. Céspedes' note that the negotiation of the treaty was being unduly delayed because of the exchange of formal written correspondence. I therefore requested an interview, and on the morning of October 15th I had a long discussion with Dr. Céspedes and Dr. Gutierrez, his legal adviser, after which I sent the Department my telegram No. 123 of October 15, 3 P. M.27 This morning I had a further conference with Dr. Céspedes, who now consents to the elimination of paragraph 20 of Article II of the Cuban counter-draft, which formed a part of enclosure No. 1 27 of my despatch No. 1176 of September 11, 1925, and which read: "20. Embezzlement, this being understood to be the defraudation made by one person against another by means of deceit." This was the point referred to in my telegraph No. 123 of October 15, 3 P. M., in the following words: "It (the Cuban Government) insists further that the word 'estafa' be inserted in the Spanish text as the equivalent of embezzlement understanding as such obtaining money, valuable securities or other personal property by false devices." Dr. Céspedes finally expressed the belief that the present extradition treaty covers under fair construction the offense sought to be "Not printed. |