Papers Relating to the Foreign Relations of the United States, For the Year 1887, Transmitted to Congress, With a Message of the President, June 26, 1888

No. 47.
Mr. Trail to Mr. Bayard .

Legation of the United States,
Rio de Janeiro , December 29, 1886. (Received February 5, 1887.)

No. 68.]

Sir: Herewith I send you a report upon the “Boundary question between Brazil and the Argentine Republic,” recently prepared by me. A copy of the treaty of September 28, 1885, is also inclosed.

I have, etc.,

Charles B. Trail.

[Inclosure in No. 68.]

the boundary question between brazil and the argentine republic.

For several years past the most important question this Empire has had to deal with in her foreign relations has been, and still is, that of the boundary line which separates a certain part of her domain from the Argentine Republic. The controversy dates back to 1750, when the crowns of Spain and Portugal held possession of this entire continent, and although effort after effort has been made to settle the dispute, the exact position of the dividing line is as uncertain to-day as it was a hundred years ago. The territory in question is part of the “Misiones,” interesting as the scene of the early works of the Jesuits, and as the home of the Guarances, that tribe of Indians whose determined and prolonged resistance to the invaders of their soil in colonial times gained for them universal respect and sympathy.

In superficies the territory is about the size of the State of Maryland.

As you are well aware, there exists a feeling of rivalry between the one Empire and the great Republic of South America, and the progress of either is watched by her neighbor with anything but a friendly interest. To this feeling is due in large part the autonomy of the Oriental Republic, neither of the two great powers being willing to see Uruguay become a province of the other. Now, this boundary question has not helped to better the reciprocal bad feeling, and out of it, somewhat over a year ago, grew rumors of war. The Argentines had been quietly moving in and taking possession of the “territorio en litigio,” and Brazil concentrates the flower of her army in the adjacent provinces. For a time there was serious apprehension of a collision between the forces of the two countries. This was in May-September, 1885. Since then there has been a mutual understanding, and the matter is being discussed according to agreements set forth further on.

* * * * * * *

Brazil naturally wishes to feel secure along her southern boundary because it is to her southern provinces of Sao Paulo Parana and Bio Grande do Sul that she looks for that material progress which will keep her well in the lead in South American affairs. It is to this section she is now directing all the immigration coming to her shores, and it is here the Government has continued in carrying out its railroad enterprises after abandoning them in the northern part of the Empire. But to return.

The territory in dispute lies directly south of Paraná, north of Rio Grande do Sul, and west of St. Catharina (provinces of). To understand its situation clearly it is necessary to look on the map, say that made to accompany the report of the Central and South American commission. Directly south of Paraná will be found Misiones, and it is to the blank space just east of this word I desire to direct your attention. It is bounded on the north by the Iguassú or Curituba River, and on the south by the Uruguay; to the east will be seen two rivers, the Chopim, which empties into the Iguassú to the north, and the Chapecó emptying into the Uruguay to the south. Now it is agreed on both sides that the northern boundary of the tract is the Iguassú and the southern the Uruguay. Brazil claims that the river Pepiri-guassú emptying into the Uruguay, and its contravertient, the San Antonio that flows to the north and empties into the Iguassú, form the true boundary line between her and the Argentine Republic. The Argentines say no; the true line is to the east, on our map about three-quarters of an inch, and is made by the rivers you call Chapecó and Chopim, which are really the Pepiri-guassu, and the San Antonio. What you call the Peperi (or Peperi-guassu on the map) is really the Peguiri, and what you call the San Antonio is really the San Antonio guassu. This is the question. The modern maps are on Brazil’s side. How the rivers became mixed in this manner will be explained further on, from the Argentine point of view. But it is only fair to state that this section is little known, and that on our maps there are a dozen rivers within a radius of an inch to which no names at all have yet been given. This question is historic, as the following shows:

The courts of Portugal and Spain on January 13, 1750, made a treaty establishing the limits of their dominions in America and in Asia. As to the frontier to day in dispute between Brazil and the Argentine Republic the following was agreed on:

From the mouth of the Ibicui the line shall ascend by the bed of the Uruguay until it meets the river Pepiri or Peguiri, which empties into the Uruguay on its western side, and it shall continue by the bed of the Pepiri upwards as far as its main source, from which it shall proceed across the high land to the principal source of the nearest river that empties into the Rio Grande de Curituba, otherwise called Iguassu (or Iguazu). By the bed of the said river nearest to the origin of the Pepiri and afterwards by that of the Iguassú or Rio Grande de Curituba, the line shall continue until the same Iguassú empties into the eastern bank of the Paraná and from this mouth it shall proceed upwards by the channel of the “Paraná” until it unites with the river Iguray on its western side.

The commissioners appointed to draw the boundary line decided that the rivers Peperi-guassu, and the Santo Antonio formed the common frontier; but this demarcation became of no value because the two courts annulled this treaty by making another on February 12, 1761. The first treaty was abrogated on the part Spain on account of the resistance the Portuguese made to giving up the colony of the Sacramento, and because the Spanish Jesuits would not abandon the “Misiones” ceded to Portugal.

In 1777 another treaty was concluded, and as the monuments or posts setup by the commissioners named by the treaty of 1750 had been destroyed by order of the Governments, a commission was appointed to go over the ground again and to draw the line anew. The chief commissioners were the astronomer Saldanha and the geographer Gundin, who proceeded on the exploration to a certain point on the Uruguay (from which they should have descended until they reached the mouth of the Pepiri-guassú, which was the principal object of their commission). Here, however, Gundin, left his companion and struck out in an entirely opposite direction from the one agreed upon, and in the course of his voyage discovered a river till then unknown, which the Spaniards named Pequiri-guassú, and which was from that time regarded as the true Pepiri-guassú.

Such was the origin of the controversy which lasts until the present time, and which was not settled by the courts of Spain and Portugal, in consequence of the war of 1801, which annulled the treaty of 1777; the unexpected pretensions of the Spanish commissioners not having been examined and decided upon in the mean time.

When the United Provinces of the Plate became independent, in 1816, the boundary question was still undecided, nothing having been resolved on the points by the Vienna Congress of 1815. In 1821 Portugal recognized the independence of the United Provinces, and by this act annulled whatever agreements existed between her and Spain on the boundary question. In 1822 came the independence of Brazil, and from this date the question is no longer one that concerns either Portugal or Spain, but is transferred to Brazil and the Argentine Republic. Between these two powers the subject was first discussed in 1857, and a treaty was drawn up which took for its base that of 1750, and which stipulated that the rivers Pepiri-guassú and Santo Antonio, therein mentioned, were the same as those the boundary makers named by the treaty 1750 had so called. This last treaty was not ratified by the Argentines, and from this time until 1882 numerous efforts were made by the diplomatic agents of the two countries, but without success. At last, in 1882, the Argentine Government, while engaged upon making some change in that part of the “Misiones” belonging to it, felt constrained to open up the subject once again, and the Brazilian minister accredited there was invited to enter upon a new negotiation. This offer was accepted, and from it originated an Argentine memorandum and a Brazilian contra-memorandum, giving the claims of the two parties respectively. Translations of the two memorandums are herewith annexed, as is also a copy of the new treaty of September 28, 1885. A perusal of these documents leads one to infer that * * * the line is just as undecided now as it was a hundred years ago.

The Argentine memorandum.—Translation.

I.

The demarcation of 1759 was wrongly conceived and contrary to the plan and instructions of the courts (of Spain and Portugal).

II.

The error or mistake of the boundary-makers arose (1) from their being guided by the statement of an Indian who had been over the country but once, when a child; (2) from their not having determined with exactness the situation of the Uruguay-pita, which should have served them as their starting point; (3) from their not having ascended the Uruguay Guazu by the necessary passage until they should meet the Uruguay-pita, and farther on the Pepiri or Pequiri.

III.

The demarkation made by them became valueless by the treaty of 1761, and can not be invoked in this question.

IV.

The treaty of 1777 is in full force and is the only title (titulo) and antecedent applicable to the boundary question; it agrees also with article third of the treaty of 1778.

V.

This treaty was not annulled, nor did it become void by the war of 1801 between Spain and Portugal, because it Settled the dividing lines creating rights under the reciprocal guaranty of the two sovereigns, and because it was not expressly annulled nor modified by the treaty of Badajoz. All of which is in accord with the principles and jurisprudence of international law.

VI.

By this treaty the line of division that was drawn, by it (the treaty) of 1750 was modified in its greater part, territories that Spain had by it ceded to the crown of Portugal retroverting, and that part embraced between the Uruguay and Iguazu alone being preserved.

VII.

The rivers to which the treaty of 1777 refers are consequently the true Pequiri and the one flowing in the opposite direction that empties into the Curitiba; there is no motive nor reason in affirming that because the names Pepiri-Guassú and San Antonio were employed; that permanence should be sought to be given to the boundary of 1759, which had been expressly annulled.

This mistaken boundary was one of the causes of the treaty of abrogation of 1761.

The Pepiri is not the Pepiri-guassú, and the treaty names as the first boundary the Pequiri.

VIII.

The uti possidetis invoked is not applicable to the case in question as opposed to the boundary determined by the treaty, because there is no possession, nor can any regular possession be alleged, nor can the treaty be accepted in part and rejected as to the rest. As little is it granted td allege possession where there is none as to succeed to (or inherit) the area embraced between the rivers in dispute.

IX.

The boundary makers of 1788, ’89, and ’91, subjecting themselves to the directions and spirit of the treaty of ’77 and to the instructions it gave, fixed upon by common consent of the Portuguese the situation of the Uruguay-pita, and sought, explored, and with the consent of the same determined upon the situation of the true Pequiri, which they named the Pequiri-guassú to distinguish it from the one the boundary makers of ’59 had wrongly designated.

X.

The treaty of 1857 can not be invoked in this question according to the principles of international law, because it was not ratified, but if it should be cited as an antecedent, it would have to be itself dependent upon what it approved, by which the most easternly rivers were designated as the boundary, or those of the boundary makers of 1788, ’89, and ’91.

XI.

The Republic has not renounced its rights of dominion by any act nor has it desisted to make them valid according to the terms of the treaty in force.

XII.

Modern geographical maps and charts have no official character, nor can they be cited as proof of renunciation, abandonment, or cession of rights, since they ate not revised in the manner such acts are required to be in order to be effective.

Only those can be considered in the question which were of the time anterior to the treaties, those which were made in the time of them (the treaties), or those which came immediately after the operations of the fixing the boundary.

The original manuscript chart of 1749, which served for the treaty of 1750, subsequent agreement and instruction given to the commissioners place the Pequiri to the east of the mouth of the Uruguay-pita. This map subsists (subsiste) because if the treaty and its effects should be annulled the true situation of the rivers could not be (annulled).

The old maps of Brazil also place the Pepiri or Pequiri to the east of the Uruguay-pita, and the plans of the geographers who took part in the demarcation do the same.

The considerations set forth, founded on data and antecedents irrefutable, demonstrate with clearness the rights of the Republic to the territory in question.

She does not disavow for a moment the fitness and the necessity of terminating it by friendly and equitable measures, such as correspond to two nations which esteem each other and are destined to live in the greatest harmony drawing closer their interests and cordial relations.

Acting then with justice and submitting to the rules of law and experience, the controversy should cease by a frank and explicit acknowledgment of the rights of the Republic to the territory in dispute.

The Brazilian memorandum.—Translation.

I.

The treaty of January 13, 1750, determining that each of the contracting parties should retain what it then possessed, and tracing the frontier by the Pepiri or Pequiri and by the nearest river that ran towards the Iguassú, recognized the possessions of the Portuguese Government to the east of these two rivers.

II.

The demarkation of 1759 and 176 was made very regularly and in entire conformity with the treaty of 1750 with the instructions sent for its execution, with the local tradition, and with the maps prepared and published by the Jesuits in 1722 and 1786.

III.

Consequently all the territory situated to the east of the rivers Pepiri-guassú and Santo Antonio was recognized as belonging to Portugal.

IV.

The treaty of February 12, 1761, annulled that of 1750, but it could not annul the fact of the Portuguese possession, which did not spring from it, because it existed anterior to it, and its existence was even recognized by it. This fact remained in full force.

V.

The treaty of 1750 was not annulled because there was error in the demarkation made between the Uruguay and the Iguassú, nor because the two contracting parties had changed their ideas as regards the respective possessions, nor with reference to the direction of that part of the frontier; it was annulled on the part of Spain on account of the colony of the Sacramento, which the Portuguese did not give up, and from the opposition of the Jesuits, who were Bat willing to abandon the “missions” ceded to Portugal.

VI.

The fact of the possession anterior to 1750 being undeniable and there not having been error in the demarkation, whatever new adjustment should be made ought naturally to agree to this as the practical expression of the right of Protugal.

VII.

And on it indeed was based the treaty of October 1, 1777, which, reproducing the frontier of 1750 respected the then recognized possession, and giving to the rivers which bound it the names agreed upon by the respective boundary makers, sanctioned the demarkation made by them.

VIII.

The intention of the two courts was made clear in the instructions sent out by the Spanish Government for the execution of the treaty of 1777, by the viceroy of the United Provinces of the Rio da Prata and by the principal Spanish commissioner to his subordinates.

IX.

Therefore all that the Spanish commissioners, who were appointed in virtue of the treaty of 1777, did to make the frontier run by two rivers distinct from those designated in this treaty and entirely unknown, was null.

X.

And moreover when the Spanish Government, receiving and approving the idea of her commissioners, sought for the substitution of the frontier which had been fairly and solemnly adjusted, in order that she could effect it, the agreement of Portugal was indispensable. But there was no agreement, consequently the frontier stipulated in 1750 and confirmed in 1777 help, good until the treaty of this date was annulled as a result of the war of 1801.

XI.

This nullification (annullacão) continued in consequence of the following events:

War of 1808.

Transference of the crown of Spain to Napoleon I, and soon afterwards to his brother.

Independence of the United Provinces of the Rio da Prata without their renewing the treaty of 1777 or making another to take its place.

Recognition of the independence of these provinces on the part of Portugal without her renewing the treaty or making another suited to the new circumstances.

Independence of Brazil just when the boundary question between Portugal and the said provinces remained undecided.

XII.

Proved as it is, the nullification of the treaty of 1777, on which the Argentine Government bases its right, the question is solved by the uti, possidetis, as a fact anterior to the treaty of 1750, by which it was recognized as it was respected by the other of 1777.

XIII.

The Argentine Government morally bound by the treaty of 1857 can not reject the uti possidetis as the base of the right of Brazil, not only because in it the dispositions of the treaty are found, but also because it (the Argentine Government) recognized it (the uti possidetis) officially by means of the declaration her minister of foreign affairs made in the explanation to the Chamber of Deputies when he discussed the said treaty in the [city] of Paraná.

XIV.

Consequently the frontier between the Uruguay and the Iguassú runs, according to the demarkation of 1759 and 1760, by the rivers Pepiri-guassú and Santo Antonio.

Accompanying the Argentine memorandum was a note, from which I extract the following:

But to accept the suggestion of your excellency in the form in which it is put would be equivalent to a motiveless renunciation to the territories over which the Republic considers herself to have the right.

This Government thinks, then, that could the demarkation be continued by the river that flows in the opposite direction to the Pequiri and the sources of the one and the other be united by a line which would divide the mountain chain at its center and would be relatively short as Oyarvide proved (Oyarvido, Spanish geographer, 1791). * * *

Brazil replied:

If the Imperial Government should accept * * * this proposition it would equally renounce its right to the frontier formed by the true Pepiri-guasú and the true Santo Antonio. This it can not do.

While the Imperial Government is convinced of the right that Brazil has to the frontier she defends, she is conscious of the good faith with which the Argentine Government from its side combats it, * * * and desiring on her part to give once again a proof of the sincerity of her sentiments and the certainty of her rights, she resolved to propose to the Argentine Government, as she now proposes, that a mixed commission * * * shall be named by both the Governments to explore the four rivers Pepiri-guassú, Santo Antonio, Chapeco, and Chopim, which the Argentine Government terms Pequiri-guassú and Santo Antonio-guassú, and the zone included by them, making an exact map of the rivers and of all the zone in dispute.

This proposition was accepted by the Argentines, and, after some delay, on the 28th of September, 1885, a treaty was duly ratified by the two powers at Buenos Ayres. By this treaty, a copy of which is inclosed,^* it will be seen that the final settlement of the boundary dispute is for the time being postponed; that the commissioners appointed by the two countries, accompanied each by an escort, are to proceed to the disputed territory to explore and define it and the four rivers bounding it, and to report from time to time to their respective Governments, but they are not to pass any opinion upon the subject of the boundary line itself; this the respective Governments are to settle afterwards. That they will of themselves be able to come to an amicable agreement is more than doubtful, and it is probable they will be forced to call on some third power to decide upon their respective claims. The frontier dispute between the Argentines and Paraguayans, after the war of 1865–’70, was settled by President Hayes, and the claims of the Argentines and Chilians to Patagonia were submitted to the Ministers Osborn, our late representatives in the two Republics, and were adjusted to the entire satisfaction of both countries. * * *

I am, etc.,

Charles B. Trail.

1. Treaty omitted in present publication.