B. That foreign individuals, without regard to the time when they lawfully acquired rights and irrespective of whatever "positive acts" they performed, will be deprived of such rights unless they renounce their citizenship with respect to such rights (Article 4), and

C. That the number of "positive acts" recognized shall be much less than those enumerated in the decisions mentioned (Article 14), and

D. That even as to foreign individuals who performed "positive acts" recognized in the law and make the renunciation mentioned, confirmation of their rights must be applied for within a year or such rights will be forfeited (Article 15).

3. In apparent contradiction to the statements made by the Mexican Commissioners in the conferences held in Mexico City in 1923, as to the past, present and future policy of the Mexican Government to grant preferential rights to the owners of the surface or persons entitled to exercise their preferential rights to the oil in the subsoil, who had not performed a "positive act", the law in question seems to give no preferential rights to such owners or persons.

My Government also directs me to invite Your Excellency's attention to the provision in the laws under discussion requiring foreigners to waive their nationality and to agree not to invoke the protection of their respective governments so far as their property rights are concerned under penalty of forfeiture, and to inform Your Excellency that my Government has consistently declined to concede that such a waiver can annul the relation between an American citizen and his Government or that it can operate to extinguish the obligation of his Government to protect him in the event of a denial of justice.

In connection with the foregoing considerations, my Government further calls attention to the statements made by the Mexican Commissioners at the conference mentioned regarding the duty of the Federal executive power under the Constitution to respect and enforce the decisions of the judicial power, wherein, speaking as they stated for the Mexican Government, Mexican Commissioners said: "In accordance with such a duty, the Executive has respected and enforced, and will continue to do so, the principles of the decisions of the Supreme Court of Justice in the 'Texas Oil Company' case and the four other similar Amparo cases, declaring that paragraph IV of Article 27 of the Constitution of 1917 is not retroactive in respect to all persons who have performed, prior to the promulgation of said Constitution, some positive act which would manifest the intention of the owner of the surface or of the persons entitled to exercise his rights to the oil under the surface to make use of or obtain the oil under the surface". Then enumerating a large number of positive acts the Mexican Commissioner added: "The above statement has constituted and will constitute in the future the policy of the Mexican Government, in respect to lands and the subsoil upon which or in relation to which any of the above specified acts have been performed, or in relation to which any of the above specified intentions have been manifested".

My Government is therefore unable to escape the conclusion that the petroleum law as published in the Diario Oficial violates rights lawfully acquired under Mexican law, provisions of the present Mexican Constitution, recent decisions of the Supreme Court of Mexico, and

pledges solemnly given but two years ago by designated representatives of the Mexican Government.

With respect to both the laws referred to, my Government is of the view that these laws are in violation of the principles of international law and equity.

In view of the foregoing my Government directs me to inform Your Excellency that it hereby reserves on behalf of citizens of the United States whose property interests are or may hereafter be affected by the application of the two above mentioned laws, all rights lawfully acquired by them under the Constitution and laws of Mexico in force at the time of the acquisition of such property interests and under the rules of international law and equity, and points out that it is unable to assent to an application of the recent laws to American owned properties so acquired which is, or may hereafter, be retroactive and confiscatory.

KELLOGG

RENEWED NEGOTIATIONS FOR A SETTLEMENT OF THE DISPUTE OVER THE RIO GRANDE BOUNDARY

711.1215/566

The Secretary of State to the Ambassador in Mexico (Warren)

No. 68

WASHINGTON, May 9, 1924.

SIR: The Department encloses a copy of a letter of December 1, 1923, from the American Commissioner on the International Boundary Commission, United States and Mexico,57 in which he advised the Department that he was forwarding under separate cover the minutes of the first formal meeting between the American and Mexican sections of the Commission since the resumption of diplomatic relations with Mexico.58 It appears from the Commissioner's letter that the Mexican Commissioner had requested that a survey be commenced south of El Paso, Texas, for the elimination of bancos under the Convention of 1905 between the United States and Mexico. You will observe the statement of the American Commissioner in relation to the suspension of action looking to the elimination of bancos, and in this connection it may be stated that prior to January 6, 1911, at the instance of the Mexican Government, the Department agreed to instruct the Boundary Commission to suspend awards concerning bancos pending the settlement of the Chamizal case, and that by the Department's letter to the American Commissioner of the date last mentioned, the Department indicated its ac

59

57 Not printed.

61

68 For correspondence concerning recognition of the Obregón government, see Foreign Relations, 1923, vol. 1, pp. 522 ff.

Ibid., 1907, pt. 2, p. 837.

For previous correspondence concerning the Chamizal case, see ibid., 1913, pp. 957 ff.

Letter of Jan. 6, 1911, not printed.

quiescence in the further suggestion of the Mexican Ambassador that this suspension should apply "only to the bancos lying above Rio Grande City and that the investigation and settlement of the case of bancos in the lower stream between Rio Grande City and the Gulf of Mexico proceed."

Accordingly the suspension of awards in banco cases above Rio Grande City was continued pursuant to the Department's letter of January 6, 1911, and has remained in force to the present time.

The Mexican Commissioner's request that these banco cases be now taken up for investigation and settlement raises interesting and important questions.

The Department desires that the Boundary Commission resume the important work of the elimination of bancos suspended because of the differences between the two governments with respect to the Chamizal case, which unfortunately were not adjusted by the arbitration of 1911,62 but the resumption of this work would seem to be a matter attended with great difficulty unless Mexico has abandoned the novel theory of treaty interpretation promulgated by presiding Commissioner Lafleur, and together with this theory, her claim upon the Chamizal tract.

The record shows that at the first trial of the Chamizal case before the International Boundary Commission in 1894-1896, Mexico contended that the Chamizal tract was formed as the result of an avulsive change and that at the second trial of the case in 1911, Mexico contended for the so-called fixed line theory, that is, that the boundary remained in the thread of the channel of the Rio Grande as shown by the original surveys of 1852. However, Mr. Lafleur, the presiding Commissioner at the second trial, in his opinion and award found against both these contentions on the part of the Mexican Government, and advanced the entire novel, and in the opinion of the Department, the wholly unsound theory that Articles 1 and 2 of the Boundary Convention of 1884 between the United States and Mexico, as interpreted by Article 4 of the Boundary Convention of 1889,64 were not confined to changes brought about through "avulsion or erosion", as set forth in the last mentioned article, but that there is another kind of change which might perhaps be called a change wrought by violent erosion that is to be assimilated as to legal effects to an avulsive change. The effect of the application of this theory of Commissioner Lafleur would be to dissever the boundary line from the river to substantially the same extent as the fixed line theory. It would separate the boundary line from the river as it runs today

See Foreign Relations, 1911, pp. 565 ff. "Malloy, Treaties, 1776-1909, vol. 1, p. 1159.

Ibid., p. 1167.

63

throughout a distance of about eight hundred miles, except at the point of intersection of the present channel with the channel of 1852. The practical results of this theory were admirably stated by General Anson Mills, the American Commissioner of the International Boundary Commission, at the first trial of the Chamizal case in 1896, when he was dealing with the then Mexican contention that the erosive change which took place at the Chamizal tract could be classified as an avulsive change. In the course of his opinion General Mills said:

"In the opinion of the United States Commissioner, if the change at El Chamizal has not been 'slow and gradual' by erosion and deposit within the meaning of Article I of the Treaty of 1884, there will never be such a one found in all the 800 miles, where the Rio Grande, with alluvial banks, constitutes the boundary, and the object of the treaty will be lost to both governments, as it will be meaningless and useless, and the boundary will perforce be through all these 800 miles continuously that laid down in 1852, having literally no points in common with the present river, save in its many hundred intersections with the river, and to restore and establish this boundary will be the incessant work of large parties for years, entailing hundreds of thousands of dollars in expense to each government and uniformly dividing the lands between the nations and individual owners, that are now, under the supposition that for the past forty years, the changes have been gradual, and the river accepted generally as the boundary, under the same authority and ownership; for it must be remembered that the river in the alluvial lands, which constitute 800 miles, has nowhere to-day, the same location it had in 1852." (Appendix to the United States Case, Chamizal Arbitration, page 211.)

Therefore, if the Lafleur theory of "violent erosion" is to be applied by the Boundary Commission, it would appear to be useless to begin the work of the elimination of bancos. On the other hand, it would of course be inconsistent and unjust for Mexico to claim the Chamizal tract if it be conceded that the work of the Commission is to proceed upon the American theory of "slow and gradual erosion" as opposed to "avulsion", the Lafleur theory of violent erosion being reserved solely for use in the Chamizal case. The inconsistency of such contention on the part of Mexico is clearly shown by the case of the Weber banco mentioned by the American Commissioner in his letter of December 1, as one of the first bancos requiring the attention of the Commission. This banco is but a short distance from the Chamizal tract and is understood to have been formed by the rapid erosion which shifted the channel of the Rio Grande from its course in 1889 to its course in 1907. The river appears rapidly to have eroded the American bank at that point and built up an accretion on the south bank and then in 1911 to have made an avulsive change, thereby throwing the accretion to the Weber tract to the north or left bank of the Rio Grande and constituting a typical banco. If the

American theory of avulsion and erosion is applied to this banco it will doubtless be held to the Mexican territory and then eliminated to the United States. If on the other hand the Lafleur theory of "violent erosion" be applied thereto, the banco would probably be adjudicated wholly or at least in great part to the United States in the first instance. In other words, if the American theory of construction is applied in this case the banco will be awarded to Mexico, thus preserving the Mexican private titles therein and then eliminated to the United States, but if the Lafleur theory is applied the banco will be held to be American territory and the Mexican titles to this property will be voided. The application of the Lafleur theory will apparently produce the immediate result in the case of this banco of a great injustice to the private persons interested and the ultimate result of confusion all along the boundary, while the application of the American theory will result in the doing of justice in the case of this banco. Nevertheless, it would be highly unjust for Mexico to invoke sound principles of construction in order to obtain the Weber banco while still clinging to her claim, based on precisely the opposite theory, to the Chamizal tract in the immediate vicinity.

In view of the foregoing it will be seen that a satisfactory adjustment of the questions indicated should be arrived at before the elimination of the bancos can well proceed, and the Department believes that the time has arrived when such an adjustment can be reached. You will observe that in his communication of December 1, 1923, the American Commissioner states that the Mexican Commissioner is of the opinion that "as far as our Boundary Commission is concerned the Chamizal zone case is disposed of and is now placed. before the two Governments for such disposition as they may deem proper". This expression on the part of the Mexican Commissioner would seem only to go to the extent of saying that the Chamizal case is disposed of as far as the Commission is concerned without committing the Mexican Government itself, but the Department has been informed by you in your letter of January 31, 1924,65 that during the course of your informal discussions with the Mexican Commissioners during the summer of 1923 you brought the Chamizal case informally to the attention of one of them and that he advised you, after consultation with the Foreign Office, that the Mexican Government was disposed to abandon the controversy and recognized the correctness of the view of the United States that the award of Commissioner Lafleur could not be carried out. You further stated that the Mexican Commissioner said that the matter could be readily adjusted through the usual diplomatic channels when relations were restored.

85 Not printed.