Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 6, 1910
File No. 2419/68–74.
The Minister of Panama to the Secretary of State.
Washington, July 30, 1909.
Excellency: Pursuant to instructions received from the secretary of foreign relations of my country I have the honor to place in your excellency’s hands a memorandum containing a clear statement of the controversy between the Republics of Panama and Costa Rica about their boundary line.
With a view to bringing to an end and final solution the anomalous situation that has been observed in this matter for more than half a century between the two Republics, my Government, relying on the enlightened judgment and righteous decision of your excellency’s. [Page 785] Government, and, considering that the Government of the United States undertook by a solemn treaty with my country to recognize and maintain the independence and sovereignty of the Republic of Panama, respectfully submits the contents of the annexed memorandum to your excellency’s consideration.
I append various documents referred to in the memorandum, together with a map of the region lying between the two Republics.
I avail, etc.,
Memorandum regarding boundaries between the Republics of Panama and Costa Rica.
I.
When, upon seceding from the mother country, Colombia and Costa Rica constituted themselves free and independent nations, the problem arose regarding the fixation of the boundary line between the two Republics. Direct negotiations were begun with a view to determining this line, these negotiations culminating successively in the public treaties known as the Gual-Molina treaty of 1825, the Herran-Calvo treaty of 1856, the Venezuela-Castro treaty of 1865, and the Correso-Montufar treaty of 1876; but nevertheless the end sought was not attained.
Both Colombia and Costa Rica, being convinced of the futility of their efforts to reach a practical result by means of direct negotiations, resolved in 1876 to appeal to the system of arbitration in the hope of terminating, forever and irrevocably, the controversy which had existed between them since the time they ceased to be Spanish dependencies.
With a desire to accomplish this purpose they proceeded to conclude, at San Jose, Costa Rica, on December 25, 1880, the first arbitration convention, known by the name of Quijano Otero-Castro, in which His Majesty King Alfonso XII was designated to act as arbitrator, and which never went into effect owing to the death of the latter.
By this convention the parties pledged themselves to accept the award, as is seen from article 4, which reads as follows:
Article 4. The arbitrator, after hearing orally or in writing the parties or party who appear, and after considering the documents which they produce or the arguments which they present, shall render his award without further formality; and this award, whatever it be, shall at once be as a concluded, perfect, binding, and irrevocable treaty between the high contracting parties, who hereby formally and expressly waive any reclamation of whatever nature against the arbitral decision and obligate themselves to respect and carry out promptly, faithfully, and forever, pledging the national honor to this end.
Clauses 2 and 3 of this new convention indicated the maximum boundaries of both Republics. They were as follows:
- Article 2. The territorial boundary claimed by the United States of Colombia reaches on the Atlantic side to Cape Gracias a Dios, inclusively, and on the Pacific side to the mouth of the Golfito River in Dulce Gulf. The territorial boundary claimed by the Republic of Costa Rica reaches on the Atlantic side the island of Escudo de Veraguas and Chriqui (Calobebora) River, inclusive, and on the Pacific side as far as the Chriquiviejo River, inclusive, to the east of Burica Point.
- Art. 3. The arbitral award shall be confined to the disputed territory lying within the extreme limits already described, and it shall not in any wise affect the rights which a third party who has not taken part in the arbitration may allege to the ownership of the territory comprised between the boundaries indicated.
Finally, on November 4, 1896, Messrs. Jorge Holguin and Ascencion Esquivel signed a third arbitration convention at Bogota, which the Colombian Congress approved by law 71 of that year, and the purpose of which was to carry out the conventions concluded at San Jose, Costa Rica, on December 25, 1880, and at Paris on January 20, 1886, approved in accordance with article 3 of this latter convention.
The final paragraph of article 4 of this third convention embodies a previous acceptance of the award, as follows:
The arbitral award, whatever it be, shall be considered as a perfect and binding treaty between the high contracting parties and shall not be subject to any appeal. Both parties pledge themselves to carry it out faithfully and waive any protest against the decision, to which end they pledge the national honor.
The President of the French Republic was chosen as arbitrator in the first place, according to article 2, and he having accepted the high office in the manner prescribed by article 4 the arbitration proceedings were begun within the period fixed. [Page 786] After the parties had been heard and the respective allegations of each litigant had been transmitted to the other party the high judge, Mr. Emile Loubet, in view of the documents and evidence which Colombia and Costa Rica had seen fit to present and before the expiration of the period set for the purpose, rendered his award at Rambouillet on September 11, 1900, it having been published on the 15th of the same month and year for the notification of the parties, as follows:
loubet award.
I, the President of the French Republic, arbitrator by virtue of the treaty signed on November 4, 1896, at Bogota by the Republics of Colombia and Costa Rica, which act confers upon me full powers to determine, in accordance with the principles of law and with historic precedents, the boundaries which should be fixed between the aforementioned two nations, in view of all the documents presented by the contending parties, and especially—
1. As regards Colombia:
The statement of Mr. Francisco Silvela, attorney for the Colombian legation in Spain.
The second and third allegations, presented in behalf of Colombia by Mr. Poincaré, attorney of the court of appeals of Paris.
An opinion by Mr. Maura, deputy to the Spanish Cortes, president of the Academy of Jurisprudence of Madrid, regarding the boundary question between Colombia and Costa Rica.
Another opinion by Dr. Simon de la Rosa y Lopez, professor of political law at the University of Seville, and his collaborators.
A chronological summary of the territorial titles of Colombia.
And the numerous maps and texts, original or translated and notated, furnished by the representative of Colombia, specially accredited to the French Government in connection with the present controversy.
2. As regards Costa Rica:
The works of Mr. Manuel M. de Peralta, envoy extraordinary and minister plenipotentiary of the Republic of Portugal at Paris, entitled “Boundaries of Costa Rica and Colombia,” “Costa Rica and Mosquito Coast,” and “Territorial jurisdiction of Costa Rica.”
A statement of the territorial titles of the Republic of Costa Rica.
The reply to the statement of the Republic of Colombia.
The historico-geographical atlas of Costa Rica, Veraguas, and the Mosquito Coast.
The volume of Mr. Peralta, “Historical geography and territorial rights of Costa Rica, etc.”
And, in general, all the decisions, stipulations, royal orders, writs, royal decrees, and laws issued and promulgated by the old Spanish monarchy, absolute sovereign and having free disposal of the territories which then formed part of the two Republics.
Having proceeded to make a careful and thorough study of said documents produced by the parties, and especially of the royal decrees of July 27, 1513, and September 6, 1521; the royal writ of April 21, 1529; the royal decrees of March 2, 1837, January 11 and May 9, 1541, January 21, 1557, February and July 18, 1560, August 5 and 9, 1561, September 8, 1563, June 28, 1568, and July 17, 1572; of the stipulations of Pardo of December, 1573; of the Digest of the Laws of India of 1660, particularly of Laws IV, VI, and IX of this digest; of the royal decrees of July 21 and November 13, 1722, of August 29, 1749, May 24, 1740, October 31, 1742, and November 30, 1756; of the various instructions issued by the Spanish sovereign to the superior authorities of the vice regency of Santa Fe and of the captaincy general of Guatemala during the course of the eighteenth century and subsequent years; of the royal orders of 1893 and 1895; of the stipulations of the treaty concluded in 1825 between the two independent Republics, etc.
And being convinced of the importance of the high mission that has been conferred upon me, as well as of the extremely high honor that has been done me by designating me as judge in the present dispute, having neglected nothing in order to gain an exact account of the titles invoked;
decide
The boundary between the Republics of Colombia and Costa Rica shall be formed by the spur of the mountain range starting from Cape Mona on the Atlantic Ocean and closing on the north the Tarire River Valley in the Sixola River; then by the ridge dividing the waters between the Atlantic and Pacific to 9° of latitude approximately; it shall then follow the line which separates the waters of Chirqui Viejo and the affluents of Dulce Gulf, terminating at Burica Point on the Pacific Ocean.
[Page 787]With respect to the islands, groups of islands, islets, and bars situated in the Atlantic Ocean in the vicinity of the coast to the east and southeast of Mona Point, these islands, whatever may be their number and area, shall form part of the Colombian jurisdiction, and those situated to the west and northwest of said point shall belong to the Republic of Costa Rica.
With regard to the islands situated farther from the continent and comprised between the Mosquito coast and the Isthmus of Panama, especially Mangle Chico, Mangle Grande, Albulquerque Keys, San Andres, Santa Catalina, Providencia Escudo de Veraguas, as well as any other islands, islets, and bars which formerly belonged to the ancient province of Cartagena under the denomination of Canton of San Andres, it is understood that the territory of these islands, without any exception, belong to the United States of Colombia.
On the Pacific Ocean Colombia shall likewise possess all the islands situated to the east of Burica Point, counting from and including Burica Islands, and those to the west of said point are awarded to Costa Rica.
[Signed at Rambouillet in duplicate, on September 11, 1900.]
Emile Loubet.
This award was entirely in accordance with the conditions stipulated in the arbitration convention signed at Bogota on November 4, 1896.
II.
The award having been rendered in accordance with the stipulations of the convention of 1896, Colombia, and Costa Rica, in view of the last paragraph of article 4, were confronted by a final judgment beyond objection or appeal, not only by its very nature but by virtue of an express agreement contracted before it was rendered, which agreement conferred upon it the character of a res judicata and dispensed with the formality of subsequent acceptance.
Nevertheless, although it was not necessary, Colombia and Costa Rica recognized the award rendered at Rambouillet as final in the boundary dispute. This is known to the State Department of the United States, as is seen in the note addressed on April 16, 1906, by Mr. Elihu Root to the honorable Charles E. Magoon, envoy extraordinary and minister plenipotentiary of the United States to the Republic of Panama.
On November 3, 1903, the Republic of Panama arose to independent life and by this act of transcendental importance it assumed the rights and obligations resulting from the compacts which Colombia had concluded with Costa Rica or from the awards arising from such compacts. This was the way Costa Rica regarded the matter, as is stated in the note addressed on April 6, 1904, by the secretary of foreign relations of that country to the secretary of foreign relations of Panama, as follows:
The independence of the Republic of Panama has now permanently withdrawn from the Bogota foreign office the negotiations looking to a fixing of the boundary line between our territory and that of our new neighbor.
One of the first acts of the provisional government of the Republic of Panama was to furnish a proof that the new Republic also recognized the Loubet award as final, and in creating the Province of Bocas del Toro and determining its boundaries, in decree No. 18 of November 16, 1903, it said that it considered the following to be the boundaries: “On the northwest the dividing line between this Republic and Costa Rica, according to the arbitral award of the President of the French Republic.” This decree has force of law in accordance with article 145 of the Panama constitution.
This recognition by the Provisional Government was expressly ratified in the constitution itself, when, in defining the territory of the Republic, it provides as follows:
Article 3. The territory of the Republic is composed of all that territory out of which was formed the State of Panama by an amendment to the Granada Constitution of 1853, made on February 27, 1855, it having been transformed in 1886 into the Department of Panama, with its islands and the continental and insular territory adjudicated to the Republic of Colombia by the award rendered on September 11, 1900, by the President of the French Republic. The territory of the Republic is subject to the jurisdictional limitations stipulated or to be stipulated in the public treaties concluded with the United States of North America for the construction, maintenance, or sanitation, of any means of interoceanic transit.
The boundaries with the Republic of Colombia shall be determined by public treaties.
It is evident that the various nations which have been concerned as parties in this controversy over the boundaries of the now Panama and Costa Rica have agreed in regarding as final and conclusive the award rendered at Rambouillet on September 11, 1900, by the President of the French Republic in his capacity as arbitrator appointed by Colombia and Costa Rica, which award was rendered in accordance with the arbitration convention signed for the purpose at Bogota on November 4, 1896.
[Page 788]III.
Colombia was suffering an unfortunate period of civil war, which began in 1899 and ended in 1902, when the award was rendered which closed forever the long boundary dispute with Costa Rica. The internal political situation absorbed the whole attention of the Bogota Government and it was unable to devote its mind to the solution of the great vital problems pending between it and foreign countries. Nevertheless, being conscious of the importance of the boundary matter, its envoy extraordinary and minister plenipotentiary to the Mexican and Central American Governments, Mr. Lorenzo Marroquin, in obedience to instructions from Bogota, on February 27, 1901, stated as follows to the Costa Rican Government in a note addressed to Mr. Justo a Facio, at that time minister of foreign relations of said Government:
Moreover, the Colombian Government believes itself under obligations to give attention to the territories which said award (the French award) recognizes as a portion of its dominions, by establishing customhouses and customs officials, founding military and agricultural colleges, introducing a missionary service, providing for political and judicial administration, and employing means conducive to the furtherment of the wealth, development, and progress of the regions whose boundaries are defined.
Thus, and refraining from stating other reasons with which I do not wish to tire your excellency, the Government of Colombia will send commissioners about the middle of next September to take possession of the territories adjudicated to it by the Loubet award and to deliver to Porto Rico those belonging to it.
In Colombia the civil war grew in proportions and with it came the crisis which became constantly aggravated to the visible detriment of the public administration until the end of 1902, when peace was permanently restored.
Colombia had not passed 12 months of tranquil existence when she was taken by surprise by our secessionary movement of November 3, 1903.
The ancient department of Panama having become a free and independent nation, the new Republic proceeded to give itself a suitable organization and hardly had its first constitutional President assumed his office when Costa Rica, which had accredited a legation at Bogota for the purpose of carrying out in a friendly manner the fixing of the boundary line between Costa Rica and Colombia, began negotiations with this office on April 6, 1904, for the same purpose, namely, the fixing of the boundary fine between Panama and Costa Rica.
The circumstances mentioned both with respect to Colombia and Panama, kept the execution of the Loubet award in suspense from 1900, the date of its promulgation, to the middle of 1904.
IV.
At the beginning of July, 1904, the Costa Rican Government decided to send an extraordinary mission to this capital, and established a legation here in charge of Mr. Leonidas Pacheco.
Panama, though not ceasing a moment in her conviction that Costa Rica is under obligation to respect and strictly carry out an award having all the features, force, and value of a final judgment, nevertheless did not hesitate, owing to the spirit of friendship which she cherishes for her neighbor and sister, in listening to the complaints made by Costa Rica against the award, which, in the judgment of the latter, injured her interests located in the valleys of the tributaries of the Sixaola, above the Yorquin, which complaint she has formally presented to Colombia in the hope of acquiring dominion over these territories.
In view of these complaints, and after an emphatic declaration had been made that, our boundary dispute with Costa Rica “was settled by the award rendered by his excellency the President of the French Republic at Rambouillet on September 11, 1900,” there was signed in this capital on March 6, 1905, the treaty ad referendum known by the name of Guardia-Pacheco, which treaty, as attested to by Mr. John Barrett, envoy extraordinary and minister plenipotentiary of the United States in Panama, in his note to the plenipotentiaries under date of March 6, 1905, “will bind Panama and Costa Rica together forever by the closest ties as neighboring and sister Republics chiefly because the fine adopted grants great material and territorial compensations as well as moral advantages to both nations without injuring either in any respect”—the treaty which, finally, to a certain extent constituted the effectual carrying out of the Loubet award.
Having been submitted to the national assembly this treaty was approved by law 6 of January 26, 1907, which inserted certain elucida “aclaraciones” in it which were deemed necessary by the national parliament.
The approving law of 1907 terminated with the following article:
Art. 2. If the Republic of Costa Rica does not approve this treaty at the latest during the next regular session of its legislature, the executive is authorized to suspend the action of this law and require the execution of the Loubet award.
The foregoing circumstances created an abnormal situation, which was entirely outside of the law which was tolerated by the parties, and according to which Panama exercised temporary de facto sovereignty over territories whose de jure sovereignty belonged to Costa Pica, and in turn exercised temporary de facto sovereignty over regions whose de jure sovereignty belonged to Panama, but the continuation of this state of affairs depended tacitly on the ratification of the treaty of March 6, 1905.
The note of the State Department of the United States, addressed to the Hon. Charles E. Magoon on April 16, 1906, and to which reference was made before, confirms this doctrine.
V.
It having become known to this Government that the elucidations inserted into the Guardia-Pacheco treaty of law 6 of 1907 constituted an obstacle to the Congress of Costa Rica granting its approval to it, and Panama being anxious to have this long, annoying controversy effectively concluded, she found no objection to declaring that in face of the discussions incident to the resumption of the case she was willing to obtain from the next national assembly a revision of law 6 of 1907, so as to eliminate the aforementioned elucidations, as is shown in note No. 40/11, addressed to his excellency Herbert G. Squiers, envoy extraordinary and minister plenipotentiary of the’ United States in Panama, Mr. Ricardo Arias, secretary of foreign relations of this Republic, on February 18, 1908.
The official silence of Costa Rica regarding the fate that had befallen the Guardia-Pacheco treaty in her constitutional Congress, induced Panama to establish a legation at San Jose, where our minister was received on April 19 last, he having received the greatest demonstrations of cordial esteem from that Government from the time he arrived.
The first news of an official origin received of the treaty is contained in the following phases found in the message of the President of the Republic to the constitutional congress of our neighboring nation under date of May 1, 1909:
Now that the Pacheco-Guardia treaty has expired, it is necessary, unless there should be an agreement between the two countries indicating the boundary line, to decide which of the two different interpretations of the Loubet award is in conformity with the spirit of the award and with the validity of the procedure, and for this purpose to proceed to a new arbitration.
Upon an express inquiry being made to our minister regarding the fate of the Guardia-Pacheco treaty, the secretary of foreign relations, in a note of June 15, 1909, informed him officially that his Government considered the treaty in question to have expired.
VI.
The Republic of Panama, not without regret, considers exhausted the means within its reach of bringing to a happy termination this long-standing boundary dispute, since it has no objection to agreeing to all the remedies which Costa Rica has deemed satisfactory for this purpose but which she finally rejected, so that, at its request, I now have to state the matter as follows:
An arbitral award, solemn and inappealable, which the national honor had been pledged to strictly respect and faithfully carry out (this agreement having been made even before the award was rendered), adjudicated to the Republic of Colombia a portion of territory which since the birth of the Republic of Panama has formed an integral part of the latter and is thus recognized as the constitution.
The independence of the Republic of Panama is guaranteed by the United States of America in accordance with article 1 of the Hay-Bunau-Varilla treaty, and this guaranty comprises the sovereignty of the nation over all the territory which lawfully belongs to it.
A Panama law, No. 6 of 1907, directs the executive to demand the execution of the arbitral award in case the Guardia-Pacheco treaty is not perfected through the fault of Costa Rica.
Therefore, out of respect to the precepts of the law, strengthened by the justice of its cause, and animated by an earnest desire to put an end to this long and in many ways annoying boundary dispute, the Republic of Panama proposes to demand of Costa Rica a strict enforcement of the Loubet award, in order to supersede the present de facto boundary by the lawful one and permanently close this controversy by determining the territory to which the jurisdiction of each Republic is to extend.
VII.
The objection made by Costa Rica to the Loubet award consists in the fact that, in her opinion, the arbitrator awarded us territories which were not in dispute, for which reasons she has alleged against the award the flaw of “ultra pepita” (beyond the [Page 790] things asked). This assertion is far from being correct, for the award gives us on the whole much less than what belonged to us according to Columbia. Nevertheless, the Republic of Panama desires to distinguish itself by its spirit of justice, and is willing to respect the concessions of lands which the Costa Rican, Colombian, or Panaman Government may have made in the territories being held temporarily by Costa Rica in her possession as de facto holder and which belongs de jure to Panama, by passing for this purpose special laws applicable to these territories and to these occupants, so that in future they may enjoy the same advantages that they enjoy at present while exercising de facto sovereignty over them; moreover, it does not desire to appropriate a single inch of territory which does not belong to it in accordance with the law.
The boundary prescribed in the award gives no rise to objections on the part of Costa Rica from its terminal point at Burica Point on the Pacific Ocean until it passes through the ninth degree of latitude approximately, as is seen in the note of the department of foreign relations of said country dated June 15 of this year.
She also has no objection to the part which follows the ridge dividing the waters between the Atlantic and Pacific, since the Guardia-Pancheco treaty, unopen to objection without the elucidations inserted at the time of its approval, confounds this part with the boundary fixed in it (said treaty) as far as the valley of the Tararia or Tiloria.
Finally, the extreme end of the boundary on the Atlantic—that is, Cape Mona—appears just to her because this point is the same one which serves as a starting point for the boundary fixed in the Guardia-Pacheco treaty. Thus the disagreement is confined to the portion of the award comprised between the upper part of the spur of the mountain range which closes to the north the valley of the Parire River in the Sixola River, and a part of the ridge which divides the waters between the Atlantic and Pacific.
Consequently this last-described portion of the award can not be the one which in her opinion allotted lands to us which were not in dispute.
Now, since article 2 of the second arbitration convention, signed at Paris on January 20, 1886, ratified and therefore in force on this point, according to article 5 of the third arbitration convention, signed at Bogota on November 4, 1896, established with perfect clearness the maximum boundary lines, mutually accepted by virtue of these compacts, which were comprised in the claims (aspirations) of either party, it is evident that lands not included in the dispute which belong to Costa Rica (and are) according to her improperly adjudicated to Colombia must necessarily lie beyond the maximum boundary of Colombia.
VIII.
This office, foreseeing the unfortunate fate which in its opinion awaited the negotiations as conducted up to that time, and with a view to facilitating to the United States Government the fulfillment of the obligations which it contracted toward Panama in accordance with article 1 of the Hay-Bunau Varilla treaty, hastened to accept with pleasure the good offices of said Government in submitting to the enlightened decision of the honorable Chief Justice of the Supreme Court of the United States any point or points which might be a cause of disagreement in fixing the dividing line between the two countries in conformity with the Loubet award, which good offices were offered in note No. 9/11 of January 9, addressed to his excellency Herbert G. Squiers, envoy extraordinary and minister plenipotentiary of the United States at this capital.
The time has come to make use of these good offices.
Panama proposes to ask Costa Rica to carry out the Loubet award, and as the only point which can give rise to disagreement in tracing the line which said award indicates is that portion thereof which closes the valley of the Parire River, this Government is willing to submit to the honorable Chief Justice of the Supreme Court of the United States the final decision as to which of the two boundary lines between Panama and Costa Rica is the correct one in case the Loubet award should pass beyond the maximum boundary of Colombia; whether the line which, in view of the award, was fixed by Colombia and which embraces the valleys of the tributaries of the Sixola, above the Yorquin, or whether this boundary is a line which, starting from Cape Mona on the Atlantic Ocean, follows the spur of the mountain range which starts at the said cape until meeting the line which, according to the arbitration conventions, represents the maximum claims of Colombia; which then follows along this maximum boundary line until intercepting the fine prescribed by the award on the ridge which divides the waters between the Atlantic and Pacific, then following this ridge to 9° of latitude approximately, provided Costa Rica enters (acquires) a formal agreement [Page 791] with the United States Government that this decision, whatever it be, shall be accepted by her as final.
By the foregoing proposition the Republic of Panama gives an unequivocal proof of the spirit of justice which animates it, of the respect which it has for the equitable principle of arbitration, and of the consideration which is due the high judge who rendered an award the respect of which strengthens the justice of its cause in a controversy with a friendly nation bound to it by indissoluble traditions of unimpaired confraternity.