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. 2491/120.
Chargé Weitzel to the Secretary of State.
Panama, February 6, 1910.
Sir: I have the honor to refer to department’s telegraphic instruction of the 1st instant relative to the pending negotiations at Washington between the special ministers of Panama and Costa Rica in the matter of the boundary controversy, and I beg to forward inclosure No. 1, copy of my note transmitting the contents of said telegram to the foreign office, and inclosure No. 2, copy and translation of the reply, the substance of which was communicated to the department in my cable of even date herewith.1
I have, etc.,
Chargé Weitzel to the Minister for Foreign Affairs.
Panama, February 3, 1910.
Your Excellency: I have the honor to advise your excellency of the receipt of a telegraphic instruction from my Government, dated the 1st instant, which I brought informally last evening to the attention of your excellency, yesterday being a holiday and the foreign office closed, and of which I beg to be permitted to deliver a copy.
It refers to the negotiations now pending in Washington between the special ministers of Panama and Costa Rica, respectively, relative to the boundary controversy between those two Republics.
I avail, etc.,
The Minister for Foreign Affairs to Chargé Weitzel.
Panama, February 5, 1910.
Honorable Sir: I have the honor to acknowledge the receipt of your esteemed note No. 262, dated yesterday, inclosing a copy of the cable instructions of your Government relative to the negotiations in Washington, between the special ministers of Panama and Costa Rica, in reference to the boundary controversy pending between the two Republics.
My Government is thankful for the declaration contained therein, that the Government of the United States will confine itself to expressing a friendly opinion in the matter, and emphatically denies any desire to exercise influence on the free opinion of the two Republics or the course of the proposed arbitration, and that the responsibility for the success or failure of the pending negotiations must rest solely with the two Republics interested in the controversy.
Nevertheless, in its capacity as a friendly intervenor, the Government of the United States deems it proper to say, that in view of all the facts, it has felt some degree of surprise upon learning the tenor of the powers of the special minister of Panama, which are not full powers, and designated in certain passages thereof, but powers restricted to the negotiation of a protocol founded upon the strict acceptance, first and above all by both contracting parties of the Loubet award, and further hampered it seems by special instructions which limit his freedom and independence of action.
I hasten to inform you, so that you may communicate it to the Department of State, in reply to the cable instructions, which were the cause of your note above referred to, that the Government of the Republic of Panama has invested its special envoy, Dr. Belisario Porras, charged with adjusting in Washington the long standing boundary controversy between this Republic and Costa Rica, with the most ample powers that it is possible for the Executive to give, taking into account the constitution and the [Page 807] national laws, the respect which the definitive award of an arbitration ought to command, in every civil country, and the permanent interests of the nation. In fact, article 3 of the constitution of Panama determines the territory of the nation in the following manner:
The territory of the Republic is composed of all that territory with which the State of Panama was created by an additional act of the Granadian constitution of 1853, on the 27th of February, 1855, transformed in 1886 into the Department of Panama, with its islands and the continental and insular territory awarded to the Republic of Colombia by virtue of the decision delivered by the President of the French Republic on the 11th of September, 1900. The territory of the Republic stands subject to the jurisdictional limitations stipulated or which may be stipulated in the public treaties celebrated with the United States for the construction, maintenance, and sanitation of whatsoever means of interoceanic communication. The boundaries with the Republic of Colombia will be determined by public treaties.
Said determination implies the respect and consideration which is due to the young Republic by the equitable and civilized principle of arbitration, and, furthermore, it agrees exactly with the facts and circumstances since the 11th of September, the date on which President Loubet rendered in Rambouillet his award of arbitration in the dispute pending between the two Republics, and on the 13th of February, 1904, the date on which the Panaman constitution was signed, because between Colombia and Costa Rica the Loubet award had solely been under discussion as to the precise manner in which it should be interpreted. It so appears in the note of the 20th of September, 1900, directed to His Excellency Señor Delcasse, minister for foreign affairs of the French Republic, by His Excellency Señor Manuel M. de Peralta, minister of Costa Rica in Paris, and in subsequent communications and documents.
The attitude assumed by the Republic of Panama upon adopting its constitution, was on this point entirely correct, and the time when Señor Delcasse in the first paragraph of his reply of the 23d of November, 1900, to the note of Señor Minister Peralta, above cited, said:
But it is not doubtful, as you have observed, that in conformity with the terms of articles 2 and 3 of the convention of Paris, of the 20th of January, 1886, this frontier line should be drawn within the territory in dispute, as appears from the text of said articles—
a declaration which sustains forever and in a definite manner the referred to award against all pretext of nullity, and refutes the argument of ultra petita, set forth by Costa Rica.
Since the establishment of the Republic of Panama the award has been discussed by the parties, only in regard to its interpretation, but never respecting its validity or obligatory force. This was confirmed in the messages of the different Presidents of Costa Rica to the Congress of said nation, and in the articles of agreement proposed by Panama; in the form of a treaty, as taken from the Guardia-Pacheco; and in the preliminaries of arbitration contemplated, as will be seen by the note in which this Government accepted the good offices of the United States and wherein in an express manner she declined to submit the point to a new decision, but simply agreed to refer to the illustrious decision of the Chief Justice of the Supreme Court of the United States whatever and all points of disagreement in fixing the dividing line between the two countries, in accordance with the Loubet award, and finally, as appears to be desired by the Department of State, as will be seen from the note of instructions which the honorable Elihu Root sent to the honorable Charles E. Magoon, by note No. 37, of the 16th of April, 1906, and officially communicated to Secretary Arango on the 21st of December, 1908, by Minister H. G. Squiers, the fourth paragraph of which is literally as follows:
The first of these is that the Loubet decision of 1908, accepted as final by both Colombia and Costa Rica, the territory included in the McConnel plantation was awarded to “Colombia” (now Panama) and became subject to the jurisdiction of that country.
And further states in the following paragraph:
At the same time it is undeniable that the de jure sovereignty has been in Colombia and Panama since the Loubet award, accepted as it is by Panama and Costa Rica, so that either by virtue of that award, or of the pending boundary treaty, the territory will ultimately come under the jurisdiction of Panama.
And finally in the following paragraph of the above-mentioned instructions with this declaration:
In the department’s conception of this matter, Costa Rica exercises at present a temporary de facto sovereignty over the territory included in the McConnel concession, subject of right to be diverted at any time as the pending boundary treaty is ratified. She exercises the powers of Government that are necessary for the orderly administration of the district, but could not use this sovereignty in such a way as to impair the rights of the de jure sovereignty of the territory. Her functions of government are limited by her tenure, which is of a temporary and precarious character. Her duty is to preserve the property, not to destroy it, and hand it over to her successor without the commission of any acts tending to impair the ultimate rights of the de jure owner.
The foregoing observations fully prove that the Loubet award has been recognized as a final settlement of the controversy of limits between Panama and Costa Rica, not only by the parties, but also by the friendly intervenor.
[Page 808]The Republic of Panama proceeded, therefore, as a basis to fix, as it did fix in the constitution, the limits with Costa Rica in conformity with the Loubet award, subject only to the interpretation to be given to said award, but Panama being convinced that these limits could never again be the subject of a new treaty, as was foreseen in the case of limits with Colombia, in paragraph of article 3 of the constitution above cited.
As a consequence the spirit and the letter of the constitution permit the Panama executive power to solve the difference existing over limits with Costa Rica, basing it always on an interpretation of the award, but in no case is authorized to enter into a public treaty in which this award will be discussed as to its validity. This would imply a flagrant violation, and in this case in justifiable of the constitution. A violation much more evident, as the constitutional precept has received an important corroboration in Law 6° of 1907, by which the Guardia-Pacheco treaty was approved. This law in article 2 sets forth:
The Chief Executive is authorized, so that if the Republic of Costa Rica does not approve said treaty during the approximate sessions of her Legislature, this law may be suspended and the Loubet award carried into effect.
Thus, then, in the most courteous manner, and having weighed with all attention the observations made by the Department of State, I permit myself with all seriousness that the case requires, to inform you that the powers, without more limitation, without other restriction than the prior recognition of the Loubet award by both parties, granted to the special envoy, Dr. Porras, are the most ample which the Panama executive power can extend.
However, I ought to make known to you that the Government of Panama in its vehement and sincere desire to put an end to the boundary controversy with Costa Rica, as long standing as it is vexatious, is disposed to amplify these powers, if they are not sufficiently ample, and in such form as may be possible to arrive at an understanding, proper and satisfactory to both parties, having always as a prior and unalterable basis the recognition of the Loubet award; the sole circumstance which will make such a solution adjustiable to our fundamental charter.
I avail, etc.
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