Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President, Transmitted to Congress, December 4, 1893

Señor Peralta to Mr. Gresham.

[Translation.]

Legation of Costa Rica,
Washington, April 12, 1893. (Received April 17.)

The undersigned, envoy extraordinary and minister plenipotentiary of the Republic of Costa Rica, has the honor to call the attention of the honorable Secretary of State of the United States of America to the following points, which are of the highest importance as regards the international relations of Costa Rica and the United States and with the Republic of Colombia:

The boundary question pending between the Republics of Costa Rica and Colombia which, according to the treaty of San José of December 25, 1880, and the additional convention concluded at Paris, January 20, 1886 (Inclosures Nos. 1 and 2), is to be decided by arbitration, was submitted, in pursuance of an agreement with the United States Government (as appears from the communications of Mr. Bayard, Secretary of State of the United States, to this legation, dated Washington, November 14, 1885, and May 26, 1886), to the Government of Spain by the plenipotentiaries of Costa Rica and Colombia at Madrid, by a note bearing date of May 19, 1887. (Inclosure No. 3.)

The Spanish Government accepted the office of arbitrator sub conditione suspensiva, with the proviso that its acceptance was not to begin until after it should have pronounced its decision in the boundary question between Venezuela and Colombia, which had been submitted to it. This declaration was made by Mr. Moret in his note of June 12, 1887. (Inclosure No. 4.)

The representative of Colombia having expressed some doubt with regard to the meaning of the condition imposed by the Spanish Government for its acceptance of the office of arbitrator, the minister of Costa Rica at Madrid requested the minister of state of His Catholic Majesty (by a note of October 23, 1888, Inclosure No. 5) to furnish an explanation of the terms of its acceptance according to the aforesaid note of Mr. Moret. The Marquis de la Vega de Armijo replied, on the 30th of the same month (Inclosure No. 6), “that as the labors relative to the boundary question pending between Venezuela and Colombia had not yet been finally terminated, the acceptance of the office of arbitrator, with which the Government of Colombia and that of Costa Rica had honored that of His Catholic Majesty, would not begin until the decision had been pronounced and the new commission appointed.”

This sufficiently precise explanation was communicated by the minister of Costa Rica to the legation of Colombia on the 6th of November, 1888, in a note to Mr. Putnam, chargé d’affaires, and was repeated on the 11th of January, 1889, to Mr. Bétancourt, who had succeeded Mr. Putnam. The legation of Colombia did not raise the slightest objection, but, on the contrary, the language of the Colombian representative induced His Catholic Majesty’s minister of state to believe that not only did Colombia not have any objection to the conditions imposed by the arbitrator, but that it was disposed to present its own argument in due time.

In this belief, which was contradicted by no fact and by no official statement of the Government of Colombia, and after the decision of the boundary question between Venezuela and Colombia(^*) had been pronounced, the minister of state requested the parties, by a note bearing date May 11, 1891, to present their respective arguments, reserving the declaration that the arbitration had commenced until the time when these arguments should be in his possession.

Mr. Bétancourt, the Colombian minister, replied that he would present the argument of his Government with as little delay as possible. “No objection was made by Mr. Bétancourt on the ground of the nullity of the treaties of arbitration; on the contrary, he recognized that the new arbitration had been initiated between his country and Costa Rica.” (Note from the Duke of Tetuan to Mr. Peralta, dated Madrid, January 22, 1892. Inclosure No. 7.)

The Spanish Government was consequently awaiting the presentation of the arguments, and the minister of Costa Rica had repeatedly stated that the argument of his Government was ready, and he desired that the commission which was to take cognizance of the case should be appointed in order that he might transmit that document to the ministry of state.

The Duke of Tetuan, however, being actuated by a lofty sentiment of benevolence, was unwilling that the arbitration should be definitively begun until the argument of Columbia (which he thought was likely to be handed in at any moment) should have been presented.

Such was the state of things in December, 1891, when the Spanish Government was informed by a note from the minister of Spain at Bogota, bearing date of October 19, 1891, that the Government of Colombia desired to conclude a new treaty of arbitration with Costa Rica, because, in its opinion, the time had expired within which the arbitrator could pronounce a valid decision.

Neither the Government of Spain nor that of Costa Rica has accepted the declaration of the Government of Colombia as being just and well founded, and the Duke of Tetuan has declared that he was very much surprised by the course pursued by Colombia. This he did in a dispatch addressed to the representative of Spain at Bogotá, and in his communication of the same date (January 22, 1892, Inclosure No. 8) to the minister of Costa Rica at Madrid.

As is declared by the arbitrator, through the Duke of Tetuan, the time for taking cognizance of the boundary question had not expired. Colombia, which made not the slightest objection to the conditions imposed by Mr. Moret, ought at least to have presented its argument to the arbitrator, or to have signified in some way that, in its opinion, the time allotted for arbitration had commenced before assuming to itself without the assent or notice of the other party, the responsibility of declaring that the time for the legal arbitration of the case had already expired.

Even supposing that the arbitrator had allowed the time fixed for pronouncing his decision to elapse, such negligence on the part of the arbitrator in no way affects the validity or the obligatory force of the treaty of 1880.

The negligence of the arbitrator may at the utmost be considered as a passive form of his desire not to perform the duties of his office; as a tardy refusal to accept it, or simply as an evidence of his having been unable to render, at the proper time, the eminent service requested of him, and this is the most that can be alleged by Colombia; at all events, however, the contracting parties were still at liberty to have recourse to the stipulation contained in article 5 of the treaty of 1880, and in virtue thereof to request the President of the Argentine Republic to accept the office of arbitrator.

The Spanish Government, however, rejected with very good reason, the charge of negligence implied by the declaration of the Government of Colombia, and has constantly shown its readiness to perform the duties of the noble and disinterested office which was tendered it by the parties; and if these offer it, and again beg the Government of His Catholic Majesty to accept it, that Government has promised that it will accept it, or that it will, at least, most favorably consider the offer.

Be the case as it may, the treaty of arbitration of 1880 provides, in its seventh article, that the boundary question shall be decided by arbitration only, and until such a settlement has been reached, the validity of that treaty is incontestable.

The additional convention of January 20, 1886, stipulated that, notwithstanding the death of His Majesty Don Alfonso XII, the Government of Spain was competent to continue in charge of the arbitration (Article i). It defined with precision, in accordance with the observations of Mr. Bayard, Secretary of State of the United States of America, the extreme and precise limits of the territorial claims of the parties (Article ii), and declared that, whatever should be the decision of the arbitrator, the rights of a third party should remain unimpaired (Article iii).

The additional convention, furthermore, extends the period of arbitration for ten additional months, so that it may last for twenty months, reckoned from the date of its formal acceptance. (Article IV).

The rights of a third party, as was agreed with the Government of the United States, and as explained by Mr. Bayard in his note of May 26, 1886, to Mr. Peralta, are such as in virtue of preexisting treaties may belong to the U. S. Government or to citizens of the United States. (Inclosure No. 9.)

The Government of Costa Rica has, therefore considered, both in view of the stipulations of Article XXXV of the treaty of December 12, 1846, and of the express declarations of Messrs. Blaine^* and Bayard, both before and after the conclusion of the additional convention of January 20, 1886, that the U. S. Government became a party with Costa Rica and Colombia to this latter convention, and consequently to the principal convention of 1880, and my Government thinks that, in this state of things and on account of the respect which the high contracting parties owe to each other, it should maintain the arbitration provided for in those instruments and demand that it be maintained in full force without the conclusion of any new treaty of arbitration, for which the Government of Colombia has expressed its desire to that of Spain.

The treaties which already exist seem to my Government to be more than sufficient to secure to the parties an equitable and speedy settlement of their differences.

The Government of Costa Rica therefore begs the United States Government, in testimony of the friendship existing between it and both Costa Rica and Colombia, in view of the interest which it has ever manifested in the prosperity and peace of those countries, in view of its duties as a guarantor of the neutrality and of the sovereignty of Colombia over the Isthmus of Panama as far as the frontier of Costa Rica, and as a party to the additional convention of 1886, to exert its most friendly and most earnest efforts to induce Colombia, in consideration of the determination of Costa Rica faithfully to abide by what has been agreed upon, and of the declarations of the Spanish Government that it does not consider the time for arbitration as having expired, to withdraw its declaration that the period of arbitration has elapsed, and once more to request the Government of His Catholic Majesty to accept the office of arbitrator; and in case of the nonacceptance of the Spanish Government, to submit the case to the decision of the President of the Argentine Republic.

If the President of the Argentine Republic can not accept, it becomes the duty of the parties, in virtue of Article VII of the treaty of 1880, to designate another arbitrator, and in that case the Government of Costa Rica will be most happy to come to an understanding with that of Colombia and that of the United States of America to tender the office of arbitrator to his excellency Grover Cleveland, President of this Republic.

The Government of Costa Rica begs the United States Government to be pleased to submit this proposition with the utmost earnestness, and with as little delay as possible, to the Government of the Republic of Colombia, to the end that the final settlement of the boundary question may be no longer delayed, that there may be no necessity of resorting to new treaties, and that the settlement may take place in accordance with those now in force, to which, as has already been stated, the U. S. Government is a party.

The undersigned has the honor to reiterate to the honorable Secretary of State of the United States of America the assurance of his highest consideration.

Manuel M. Peralta.

[Inclosure No. 1.]

treaty of arbitration between costa rica and colombia.

San José, December 25, 1880.

The Republic of Costa Rica and the Republic of the United States of Colombia, equally animated by the sincere desire of maintaining and consolidating their amicable relations, convinced that to obtain this benefit, so important to their prosperity and good name, it is necessary to remove the only source of the difference existing between them, which is no other than the question of boundaries, that is foreseen in articles 7 and 8 of the convention of the 15th of March, 1825, between Central America and Colombia has subsequently been the subject of several treaties between Costa Rica and Colombia, none of which were ratified; and both nations, understanding that this antecedent counsels the adoption to-day of other means more expedient, prompt, and sure, of terminating the aforesaid question of boundaries by means of the designation in perpetuity of a dividing line, clear and incontrovertible, for the whole extent in which their respective territories are contiguous; in consequence, the President of the Republic of Costa Rica, by virtue of the powers invested in him, has conferred full powers on his excellency Dr. José Ma. Castro, secretary of state and of the department of foreign relations, and the President of the United States of Colombia, specially and fully authorized by the legislative chambers of that nation, on the Hon. Dr. José Ma. Quijano Otero, chargé d’affaires, near this Government, who, after mutually communicating their respective full powers, and finding them in good and due form, have agreed upon the following articles:

• Article 1. The Republic of Costa Rica and the United States of Colombia agree to submit to arbitration the question of boundaries existing between them and the designation of a line which shall divide forever and with all clearness the territory of the first from the territory of the second, each one remaining in full, quiet, and peaceful dominion, with respect to each other, of all the lands left on its side of the foresaid line, which shall remain without special charge or grievance whatever in favor of the other.
• Art. 2. The arbitrator who shall be pleased to accept the charge stipulated in the preceding article shall, in order that the decision may be binding, complete his duties within the period of ten months, dating from the period of his acceptance, and this notwithstanding either of the high contracting parties shall fail to be present to maintain his rights by means of a representative or attorney.
• Art. 3. In order that the acceptance of the arbitrator may be held to be duly notified to the high contracting parties, and that these may not be able to allege ignorance thereof, it shall suffice that it be published in an official periodical of the nation of the arbitrator or in that of either of the high contracting parties.
• Art. 4. The arbitrator having heard by oral or written argument the parties or party presenting, and having considered the documents that they may produce or the arguments they may make, shall emit his decision without other formality; and this decision, whatever it may be, shall be held immediately as a compact concluded, perfect, obligatory, and irrevocable, between the high contracting parties, who renounce formally and expressly all reclamation of whatever nature against the decision of the arbitrator, and oblige themselves to respect and fulfill it immediately, faithfully, and forever, pledging to this the national honor.
• Art. 5. In consonance with the preceding articles and for their execution the high contracting parties name as arbitrator His Majesty the King of Belgium; in the unlooked-for case that he shall not choose to accept, His Majesty the King of Spain; and in the event, equally unlooked for, that he shall also refuse, his excellency the President of the Argentine Republic; in all of whom the high contracting parties have, without any difference whatever, the most unlimited confidence.
• Art. 6. That one of the high arbitrators named who may come to exercise the arbitration may delegate his functions, not failing to intervene directly in the pronunciation of the definitive sentence.
• Art. 7. If, unfortunately, none of the high arbitrators named can lend to the high contracting parties the eminent service of accepting the charge, they, by common agreement, shall make new nominations, and so successively until some one shall take effect; for it is agreed and hereby formally stipulated that the question of boundaries and the designation of a dividing line between the limiting territories of Costa Rica and Colombia shall never be decided by other means than the civilized and humane one of arbitration, preserving in the meantime the status quo agreed on.
• Art. 8. The present convention shall be submitted to the approbation of the grand national council in the Republic of Costa Rica, and of the legislative chambers in that of Colombia, and shall be exchanged in the city of Panama within the shortest time possible.

In testimony whereof the plenipotentiaries above mentioned sign and affix their respective seals to two originals of the present convention.

Done in the city of San Jose, capital of the Republic of Costa Rica, on the twenty-fifth of December, one thousand eight hundred and eighty.

• José Ma. Castro.
• J. Ma. Quijano Otero.

(From Foreign Relations of the United States, 1881, p. 100.)

[Inclosure No. 2.]

additional convention of arbitration between the republics of costa rica and colombia.

Paris, January 20, 1886.

• Article I. The Republic of Costa Rica and the United States of Colombia acknowledge and declare that, notwithstanding the death of His Majesty Don Alfonso XII, the Government of Spain is competent to continue in charge of the arbitration offered by the two republics and to pronounce, with the character of irrevocable and without appeal, a final sentence in the pending litigation between the high contracting parties as to their territorial boundaries.
• Art. II. The boundary line claimed by the Republic of Costa Rica reaches, on the Atlantic side, the island Escudo de Veragua and River Chiriqui (Calobebora), inclusively, and on the Pacific side, River Chiriqui viejo, inclusively, to the east of Burica Point. The boundary line claimed by the United States of Colombia reaches, on the Atlantic side, Cape Graeias a Dios, inclusively, and on the Pacific side, the mouth of River Golfito, in Golfo Dulce.
• Art. III. The judgment of arbitration is to be confined to the disputed territory within the extreme limits above described, and can not in any manner whatever affect the rights which a third party, not having taken part in the arbitration, may allege to the ownership of the territory comprised within the limits described.
• Art. IV. If, for any cause whatever, the arbitrator were unable to pronounce his decision within the fatal term appointed by Article II of the convention of arbitration of December 25th, 1880, the high contracting parties agree to prorogue said term for ten months longer, to be counted from the day of expiration of the first term.
• Art. V. With the exception of the foregoing additions and modifications, the convention of arbitration of December 25, 1880, remains in vigor in all its parts.

In testimony whereof we sign two copies of a tenor, with our respective seals, in the city of Paris, January 20, 1886.

• Leon Fernandez.
• Carlos Holguin.

[Inclosure No. 3.—Translation.]

The ministers of Colombia and Costa Rica to Her Catholic Majesty’s minister of state.

Madrid, May 19, 1887.

Most Excellent Sir: We have the honor herewith to inclose a copy of the convention signed at Paris by the plenipotentiaries of Colombia and Costa Rica, being supplemental to that of December 25, 1880, which was signed at San José, and whereby our governments submitted to the decision of His Majesty the King of Spain the questions pending between the two countries relative to their boundaries. Our governments, fearing that the sad death of the distinguished prince who ruled over the destinies of Spain when the San José convention was signed would render doubtful the authority of his worthy successor to bring this case to a termination, desired that a new convention should be signed, which we now present, approved and ratified, expressly declaring that the Spanish Government is competent to pronounce a decision, and that both countries solicit such a decision from this Government.

Hoping that the Government of Her Majesty the Queen Regent will be actuated by the same benevolent disposition by which His Majesty King Alfonso XII was actuated, we hereby lay before you the aforesaid convention, to the end that, when our governments shall present their cases, there may not be the slightest doubt as to the jurisdiction of the Spanish Government.

Trusting that the Government of Her Majesty the Queen Regent will expressly declare its acceptance of this office, we tender your excellency, in the name of our governments, our warmest thanks.

We avail ourselves of this occasion again to assure your excellency that we are, with the highest consideration, your most obedient and faithful servants,

• Carlos Holguin.
• Manuel M. Peralta.

[Inclosure No. 4.—Translation.]

Señor Moret to Señor Peralta.

Ministry of State,
Palace Madrid, June 12, 1887.

Most Excellent Sir: I have received, with the polite note which your excellency, together with Don Carlos Holguin, the representative of Colombia, was pleased to address to me under date of the 19th ultimo, the convention signed at Paris by the plenipotentiaries of Costa Rica and Colombia, supplemental to that of December 25, 1880, which was signed at San José, and by which the governments of the two republics submitted to his majesty, the King of Spain, for arbitration, the questions pending between the two countries relative to their territorial boundaries.

The differences which appear to have existed on this subject between the republics which signed that international instrument, and the Republic of the United States having been satisfactorily settled by the said convention, I have thought that the time has arrived to inform the Government of her majesty of the desires expressed by your excellency and your worthy colleague, the representative of Colombia.

Her Majesty’s Government, which regards with the greatest interest everything connected with the Spanish American States, cheerfully accepts the office of arbitrator which is tendered to it; but, thinking it very proper that the question submitted to it for arbitration should be laid before the commission now engaged in examining the boundary question between Colombia and Venezuela, which will greatly facilitate the new task confided to it, I have the honor so to inform your excellency, to the end that you may apprize the Government which you so worthily represent, adding that the examination of the case in question will begin as soon as the commission above referred to shall have concluded its labors, which are already far advanced, and which I shall endeavor to have terminated as speedily as possible.

I gladly avail myself of this occasion to reiterate to your excellency the assurances of my most distinguished consideration.

S. Moret.

1. Published in the Madrid Gazette, March 17, 1891.

2. In Mr. Blaine’s dispatch to Mr. Putnam, U. S. minister to Belgium, of May 31, 1881 (For. Rel., 1881, p. 70), occurs the following passage:

   * * * It can not he a matter of indifference to the United States of America whether the littoral line of either ocean in the neighborhood of any projected interoceanic communication is within the guaranteed territory of the United States of Colombia, or within the lawful boundaries of the Republic of Costa Rica, with whom its treaty obligations are of a different character.”