File No. 2491/48.
The Costa Rican Minister on Special Mission to the Secretary of State.
Washington, December 28, 1908.
Mr. Secretary: I have the honor to acknowledge the receipt of your note, dated the 26th instant, in which you were pleased to inform me that the department received a telegram from the American minister to Panama, conveying the information that the Government of that Republic accepts in principle the submission of the boundary question between Costa Rica and Panama to the impartial arbitration of the Chief Justice of the United States, but would like to know what questions are to be submitted.
In reply, with the object to join the desire of his excellency the minister of foreign affairs of Panama, I have the honor to say:
As I have expressed to your excellency, the award of his excellency Mr. Loubet, the President of the French Republic, did not decide the boundary question between Costa Rica and Colombia (now Panama), by “fixing a line that should permanently and clearly divide the territory of the first from that of the second,” as it was graphically expressed in the convention concluded between the two countries on December 25, 1880, by virtue of which the high judge pronounced his decision. The sentence is both vague and indefinite, and its meaning, moreover, was abandoned to an ulterior understanding between the litigant Governments. The question having thus been left open, the interested countries remained without having been able to reach an agreement; but, on the contrary, the award in what it refers to the boundary line on the Atlantic side offered ground to various interpretations, among them to that given by Colombia, which goes beyond the limit of the disputed territory—a pretension, by the way, that, if it would prevail, would dispose of all the legal force of said award, as it would bring forth the defect of ultra petita, which, as it is well known, would cause the invalidation of any sentence of this nature.
In view of the foregoing I believe that it would be advisable to submit the whole boundary question to a decision to be given in clearer and more definite terms than the Loubet award, thus determining the rights of each of the two countries; but, as Panama, according to the dispatch of his excellency Mr. Squiers, which your excellency deigned to communicate to me, is inclined to adhere to the boundary line as fixed upon by the Loubet award and article 3 of the constitution of that Republic, I beg leave to suggest that the points to be submitted to a new arbitration, which Costa Rica desires and Panama accepts its principle, be as follows:
- I.
- Whether the Loubet award is free from defects that, according to the principles of international law, impair its legal force.
- II.
- If, considering that the award is not thus defective, to determine what its meaning is, and through which points the frontier line shall be drawn.
Be pleased, etc.,