File No. 722.2315/601.

The Minister of Peru to the Secretary of State.

[Not a translation.]

Sir: Acting on instructions of my Government I have the honor to enclose a confidential memorandum with four annexes and a map, in reference to the boundary dispute between Peru and Ecuador.

Accept [etc.].

F. A. Pezet.
[Inclosure—Not a translation.]

[Untitled]

memorandum.

The Government of Ecuador having addressed itself to the Government of the United States insisting that, thru the mediation of the Argentine Republic, Brazil, and the United States, the Government of Peru be called upon to seek, by a direct discussion, the settlement of the pending boundary questions between Peru and Ecuador, this Chancellery considers that it behooves it to confirm in this memorandum the ideas that it has made manifest already in previous memorandums, giving in detail the reasons that it has for considering as inefficacious and fruitless such a manner of solving the question.

After a discussion that was begun in the first years following the Independence, the Governments of Ecuador and Peru agreed on solving by means of arbitration their boundary differences, and signed a convention dated August 1, 1887, in which H. M. the King of Spain was designated as Arbiter.

The nature of the arbitration agreed upon was to be strictly “juris” and the award final and without appeal in accordance with article 1 of the convention.

It was further established in this convention that before the rendering of the award, and in the shortest time possible after the exchange, “both parties should do their utmost to reach by direct negotiations a settlement of all or of some of the points embraced in the boundary questions,” and that if such agreements should be perfected in conformity with such proceedings as govern the validity of public treaties, they should be made known to His Catholic Majesty and the arbitration be considered as ended, or limited to the points not agreed upon, as the case might be. And there was added that in default of a direct agreement, the arbitration should hold in all its fullness.1

[Page 1158]

In conformity with this stipulation, the Government of Ecuador, after the exchange of the convention on arbitration and when the King of Spain had accepted the designation to be Arbiter, invited the Government of Peru on December 28th, 1888, to a direct discussion of the question, to see if it were possible to reach a friendly agreement as a compromise, without prejudice to the continuation of the arbitration proceedings. The Government of Peru accepted the invitation tendered it and gave full powers to its Minister at Quito, Senor Garcia, for such negotiations.

These negotiations in behalf of a direct agreement were begun on October 28, 1889, and concluded on May 2, 1890, with the signing of the treaty “Garcia Herrera” in which was stipulated the boundary line that appears in the Annex No. 11 (green line, on the accompanying map).

By this treaty Peru ceded the greater portion of the river Pastaza, the rivers Santiago and Morona, and one shore of the Marañón between the Chinchipe and the Pastaza, notwithstanding that in the protocols of the conference that preceded the agreement it was fully demonstrated, without any contradiction from the Ecuadorian plenipotentiary, that the Marañón as likewise the rivers Santiago, Morona and Pastaza, had remained since the incorporation of Mainas to Peru, by the Royal Cédula of 1802, subject to the Peruvian authorities and under the effective sovereignty of Peru.

The Peruvian plenipotentiary called attention to the fact that our country was sacrificing in its desire to attain a settlement “the possession that she holds on the left bank of that great river (Amazon) from the Chinchipe to the Pastaza.”

The foregoing considerations explain why the Garcia-Herrera treaty was warmly accepted by the political leaders of Ecuador, the Congress of which approved it unanimously; while on the other hand a formidable opposition against it was raised in the Peruvian Congress. The jurists, well knowing the strength of the titles that assisted Peru, could not consider acceptable so great a sacrifice of perfectly clear rights, and the representatives in Congress of the Department whose citizens inhabited and explored the regions that were going to be turned over to Ecuador, made strenuous efforts to obtain that the treaty be not approved.

The Congress of Peru desiring, however, to reach a settlement even though ceding a portion of the territory which both by right and in effect belong to Peru, resolved to accept the treaty, but on the condition that two amendments should be introduced, (dotted green line on the accompanying map) so that a part oil the rivers Morona and Pastaza and of the territory ceded in the region of the river Napo, should remain within Peru.

The Government of Ecuador did not accept said modifications and it withdrew its approbation from the treaty.

As a result of the aforesaid events that define in a manner absolutely unquestionable the interests and aspirations of both nations as to the projected boundary line, the arbitral proceedings as a matter of fact came to a standstill, but by no means were they broken, because by virtue of the treaty the proceedings, had to follow their natural course after the direct negotiations had failed.

The ample discussion between the negotiators that the agreement of 1890 gave rise to the thorough study of it by technical commissions and by the Congress of both nations, and the heated polemics in the press, proved with absolute and conclusive evidence the utter impossibility of arriving at a direct settlement; as the agreement that was satisfactory to Ecuador, such as the Garcia-Herrera treaty, was not acceptable to Peru, and the one that even incompletely considered the interests of Peru, such as the line proposed by the Peruvian Congress, encountered serious opposition on the part of Ecuador.

After the disavowal of the Garcia-Herrera treaty, Peru, actuated by a friendly sentiment towards Colombia, accepted the indication to discuss conjointly with said Republic and with Ecuador, the boundary problems pending with both nations. The result of these negotiations was the convention for an arbitration of equity agreed upon by the three nations on the 15th of December, 1894. This convention was approved by Peru and Colombia, but did not receive the sanction of the Congress of Ecuador, and thus the tripartite arbitration failed.

The absolute faith of the Government of Peru in the validity of its titles from a juridic standpoint induced it to work for the carrying out of the convention of 1887 and obtain that Ecuador should remove the obstacles that she had presented [Page 1159] for the prosecution of the arbitration proceedings. After protracted negotiations the desired end was attained in 1904.

The arbitral proceedings having been renewed, Peru and Ecuador presented to the Arbiter their respective defenses, which were submitted for study to a Technical Commission appointed by H. M. the King of Spain. The commission after a thorough examination of the allegations and proofs adduced by each, presented to H. M. a finding in which it proposed as a boundary between both countries the line that appears in the Annex No. 3.1 (black line on the accompanying map).

This decision and its findings were the subjects of renewed study by the Council of State. This High Body submitted the question of [sic] its Permanent Commission, who introduced into the boundary line proposed by the Technical Commission the modifications favorable to Peru, which appear in Annex No. 41 (red line in the accompanying map).

This notwithstanding, the Council of State meeting as a full Body concluded by adopting the same findings as the Technical Commission, although it recognized the fundamental right as presented by its Permanent Commission.

At this stage of the proceedings news of an extra-official character reached Ecuador and Peru, in reference to the boundary lines suggested in the said findings.

These boundary lines produced a very disappointing impression on public opinion in Peru as they barely indicated some modifications favorable to Peru from the line of the Garcia-Herrera Treaty, while they were decidedly less favorable than the line which the Peruvian Congress considered, as indispensable to the needs of Peru.

However, the Government of Peru, being absolutely confident in the justice of its cause, limited itself to reiterate to the Arbiter its confidence and instructed its Plenipotentiaries in Madrid to redouble their efforts to the end that the Arbiter should concede to Peru a line that would better conform to her interests and rights.

In the meanwhile, in Ecuador, the press attacked most vehemently the line proposed by the Technical Commission, although this line did not substantially differ from the one of the Garcia-Herrera Treaty which had been unanimously accepted by her Congress in 1890 and when by reason thereof Ecuador would have extended her jurisdiction to points where it had never reached or been able to reach.

This propaganda produced its effects. In the first place it determined the Government of Ecuador to paralyze the arbitral proceedings or to break them, so as to attempt direct negotiations on bases more convenient to its pretensions; and later it brought about amongst the masses of the people a current of opinion hostile to Peru, that caused them to perpetrate the lamentable acts of April 3, 1910, without any provocation for such excesses from either the Government or the people of Peru.2

As a consequence of the attacks that were made on that date upon the Peruvian Legation in Quito and our Consulate in Guayaquil, a very perilous situation akin to an armed conflict was created, and it was then that the Governments of the United States, Argentina and Brazil interposed the weight of their authority and influence in behalf of peace.3

Peru readily accepted unconditionally the mediation tendered, and which came to reinvigorate the principle of arbitration, invariably upheld by Peru, as the most honorable method of solving international conflicts.

Ecuador, likewise accepted the mediation tendered, but expressed the desire that the solution of the question should be sought by direct settlement, in the discussion of which Colombia should participate.

The Mediating Powers then addressed to Ecuador and Peru a new memorandum, wherein they stated that the acceptance of their mediation implied the acceptance of their condition to the exclusion of all other conditions.

Ecuador insisted, in demanding a direct settlement, invoking Article 6 of the Convention of 1887 and declaring that the resistance on the part of Peru to comply with it was equivalent to the rescinding of the treaty.4

In answer to a question from the Legation of Chile in reference to this matter the State Department at Washington addressed said Legation, a memorandum5 that was likewise sent to Peru and Ecuador. This memorandum expressed the sorrow of the State Department that it could not receive with its usual [Page 1160] good will the proposal contained in the memorandum of May 26th, because said proposal invoked article 6 of the Arbitral Convention of 23 years previous, and based on this, at the last hour, without the consent of Peru and as by right, it insisted on the idea of direct settlement, which had already failed on form occasions.

Ecuador in answer to said memorandum reiterated her demand, and subsequently addressed a new communication in which she asked that dates be fixed for conferences wherein would be discussed a compromise designating Washington as the place of conference.1

The mediating Powers submitted to the consideration of both Government a protocol2 which in reference to the boundary question stipulated that Ecuador and Peru should await events, and accept the action of the mediation in case that the rendering of the Spanish award should be withheld indefinitely, that difficulties should arise after its promulgation, or that the two nation should wish to enter upon some direct settlement, they being obligated to consider as binding the boundary line that might result from the action of the mediation.

The Government of Peru, that has entire faith in the strength of its titles was disposed to accept the protocol with the same sincerity with which it had accepted the mediation.

Not so the Government of Ecuador, the Chancellery of which addressed the representatives of the mediating Powers a note3 in which it stated that acceding to the friendly advices of Chile, it asked that the protocol should be modified in the sense that the arbitration by Spain should be discarded, and solution of the boundary question sought by means of a direct settlement. This attitude was the occasion for a memorandum from the mediating powers the Ecuadorian Government in which they stated that they deplored the attitude of Ecuador, that signified in their judgement, either a wish not to terminate pacifically the boundary question, or else a lack of confidence in the mediators.

Such was the state of affairs when in November 1910, the Spanish Monarch excused himself from pronouncing an award.4

The Mediating Powers under date of December 29th of said year, advised the Government of Ecuador and Peru to submit their pending boundary dispute to the Hague Arbitration Tribunal.5 Peru accepted the new proposal; but Ecuador manifested that she could not accede to said advice because the question with Peru involved her sovereignty, and that, therefore, it could not be include in article 38 of the Hague Convention on Arbitration.6

Having restated the antecedents of the case it is now necessary to explain Peru’s position in the disputed territory, in order to reaffirm the reasons that lead Peru to consider ineffectual all attempts for a direct settlement.

Peru exercises full dominion over the territories claimed by Ecuador, ant not only has she the support of complete and effective possession but also that of the geographic conditions of the zone under dispute.

The Department of Loreto with over 200,000 inhabitants constitutes an indissoluble organism that has its axis the course of the Marañón, called down stream “Amazon,” to which converge as northern arteries the rivers Santiago Morona, Pastaza, Tigre, Napo, Putumayo and Caquetá. The regions watered by said rivers form one continuous and inseparable whole. Its industrial life depends on the Peruvian towns situated on both banks of the Marañón. The capital of the Department, the city of Iquitos, is the center of the vast organism and from it flow all elements of culture and of economic prosperity, extending from there to the limits of fluvial navigation.

The influence of Iquitos extends over all of the affluents of the Marañón. The colonists that live on the banks of those rivers could not exist if from Iquitos they did not receive the necessaries for their sustenance.

It is indispensable that the Governments of the Mediating Powers should have a perfect conception of what the Department of Loreto means to the Peruvian nation. The revenue of its custom houses constitute the fifth of the total customs revenues of the Republic. Iquitos has a population of over 20,000. It is the capital of the Department, seat of the Prefecture and of a Superior Court of Justice, center of the fifth Military Zone. Most of the nations maintain at Iquitos consular representatives, even unto Ecuador although her territorial pretensions reach out to the Amazon, and thereby include the said city.

[Page 1161]

The Marañón and Amazon as far as the Brazilian frontier are absolutely and thoroughly Peruvian. This explains the discontent aroused in Peru by the Garcia-Herrera Treaty and the decided opposition of the Department of Loreto to the supposed line of the Spanish award. The Minister for Foreign affairs was interpellated by the 1910 Congress in secret sessions, a great number of representatives, being of opinion that in view of the probable terms of the award it was preferable to postpone its rendering; manifestations were started throughout Loreto and petitions against the possible award were circulated and signed. The fact being that the lines of the various findings affected and harmed Peruvian interests, even unto the line most favorable to Peru, the one recommended by the Permanent Commission, which left to Ecuador the river Santiago, a large portion of the Morona and one bank of the Maranon regions in actual exploitation by Peruvians, leaving to Ecuador an opening on the Maranon, that is to say, on a river upon which the flag of Ecuador has never been seen.

The preceding considerations make it clear why Peru refuses to entertain direct negotiations and the reason she has for considering them as to no purpose.

Settlements by means of direct negotiations imply solutions thru compromise, inspired on principles of equity and of a just appreciation of the interests of both parties.

It is a fact, amply indicated in all the foregoing, and which is known to all, and has been acknowledged by the public men of Ecuador in official publications and in articles in the press that Peru possesses and exploits nearly the whole of the region that Ecuador lays claim to.

Ecuador, on the other hand, merely has in the region of the Oriente aspirations and ideals with no actual base; and furthermore, due to unsurmountable geographical conditions, with no prospect of a substantial base in the future, because it is a well known fact that the development and the economic advancement of regions traversed by navigable rivers do not follow a down-stream course but run counter to the stream, so therefore, in the development of such regions the influence of the nation that possesses the lower reaches of the river and their mouths predominates. Specially is this so in the case of Ecuador that by reason of her difficulty of access to the Oriente, can scarcely make felt her influence even at the head waters of the rivers.

Consequently the territory in dispute is and shall be essentially Peruvian, by reason of every factor, historic, geographic and political.

But there is even more. The aspirations of Ecuador, leaving out the exaggeration of her demands—a method of defense in judicial proceedings had their inception in the Garcia-Herrera Treaty which her public men received with applause and her Congress approved with significant unanimity; whereas the interests of Peru in 1891 were expressed by the modifications introduced and demanded by the Congress of that year in order to accept the Garcia-Herrera Treaty.

Since the year 1891 the situation has changed, modified by the natural course of events in a sense favorable to Peru and decidedly adverse to Ecuador. The interests of Peru have grown in an astonishing manner in the region. The line of demarcation which the Congress of 1891 had resigned itself to accept would now harm interests of so great an importance that the Government of Peru could not consider itself at liberty to adopt it. The formula that Peru cannot separate itself in behalf of an equitable compromise from the absolute respect for her own possessions could readily be established.

It would be unjustifiable for us not to maintain strictly the principle of possession when along with the possession for over a century there are our historic titles acknowledged in part by a reliable arbiter.

On her part, Ecuador found inacceptable the probable line of the award, a line that Peru could not agree upon in a direct settlement, due to the fact that it jeopardizes to a great extent her rights.

In a direct discussion our nation can not surrender territories which she possesses; and even although she would have accepted the award of the King of Spain out of respect to the agreement contracted, she could not of her own accord have ceded the same; while to enter into a treaty that should consider a less favorable boundary line would be impossible; the entire nation could reject such a treaty. And as Ecuador wishes to better in her favor the boundary line of the Spanish findings the failure of direct negotiations is inevitable.

[Page 1162]

In view of the fact that it is impossible to conciliate in a direct agreement the interests real, effective and vital that Peru has in the disputed territories with the ideals and aspirations of Ecuador in the same regions, it becomes evident that nothing other than an arbitration de juris [sic] which would have the full force and prestige of the International Tribunal of The Hague can settle this boundary dispute.

For this reason Peru hastened to express her willingness when the mediating powers advised such a mode of settlement, because she considers it to be the only possible manner of ending this long-standing controversy.

The Chancellery of Ecuador declined the invitation because she considered that her dispute with Peru “does not refer to a mere delimitation or rectification of boundary lines but to the dominion and sovereignty of very vast territories; to the very life of Ecuador who, without the possession of the zone that Peru claims, would be dead to all future developments.” And it further added, “the boundary question is to us a question of existence; and by reason of the same can not be included in article 38 of The Hague Convention.”

It is necessary to observe, before all else, the curious fact that Ecuador should consider as being absolutely essential to her existence as a free nation the possession of territorial divisions that since the time of the Independence until now have remained under our own sovereignty.

Ecuador has existed during nearly a century as an independent nation without having possessed or even possessing at this date the territories that she claims from Peru.

But there is even more: by the physical nature of said territories, Ecuador has been unable to exercise sovereignty over them nor will, she in the future be able to make apparent her influence there; whereas to definitely consolidate Peru’s sovereignty over the northern affluents of the Amazon, the region under dispute, several special conditions have contributed, notably the free vote, of its townships at the time of the Declaration of Independence, their invariable adhesion to Peruvian nationality for over a century, the acts of the Administration and of the citizens of Peru who by strenuous efforts have carried civilization to those far off regions; and besides all this there are to be considered the salient features of the topography of the region, the course of the rivers—in a word, the whole of nature.

When a nation has lived and has developed as Ecuador has done without any need of the territories that she claims, her references to vital interests and to future development are lacking completely in sincerity. Essential needs of organisms can not be abstract, and when they really exist they determine concrete expansion.

Besides, Ecuador has given to article 38 of The Hague Convention such restricted interpretation that it conflicts with its own terms and with the antecedents of the discussions on arbitration. None of the articles approved in the chapter relative to arbitral justice establishes the exclusion of arbitration from the juridic controversies that may be of exceptional importance to the disputing nations, which is the case in the boundary question between Peru and Ecuador.

To appreciate the sentiment with which Ecuador accepted the ample declarations of the Arbitral Convention it will suffice to recall the statements that the Ecuadorian Delegate made before the Congress of The Hague in the name of his Government and his country, at the time that arbitration was under discussion:

The Delegation of the Republic of Ecuador has the honor to declare and in the name of its Government that it will fully agree to such propositions as may tend to establish the obligatory recourse to courts of arbitration for the pacific solution of international conflicts; or at least to render such proceedings usual and as frequent as possible, reducing thereby when practicable the numbers of cases that are not submitted to this high jurisdiction.

The Republic of Ecuador in so doing faithfully adheres to the principles it has always sustained. And in regard to this subject we take the liberty to recall that Ecuador had the honor, more than nineteen years ago, to succeed in having a general clause of arbitration included for the first time in France in a treaty on friendship, commerce, and navigation which treaty unfortunately was not approved by the French Parliament.

During the last twenty years Ecuador has stipulated numerous conventions of arbitration and has signed various agreements appointing arbitrators and enacting the proceedings to be followed in order to reason a pacific solution of the controversies she has pending with other nations. At this very time our boundary question with Peru is submitted to the arbitration of H. M. the King of Spain.

We have therefore always sustained the principle of arbitration and we have always applied it when possible. We would deem ourselves fortunate indeed could we contribute to render the practice customary if not obligatory in solving all international conflicts, for we consider that if, as has been stated, peace is the normal condition among nations, arbitration should be the normal solution to all difficulties arising among them. (Deuxiéme Conference Internationale de la Paix; Tome 11, page 274.)

[Page 1163]

Ecuador declared, as has been shown, in favor of the compulsory recourse to arbitration for the peaceful settlement of international conflicts, without any restrictions. She recalled the invariable tradition of her Chancellery in the matter, and precisely stated that she had submitted to arbitration her boundary dispute with Peru, and which now in forgetfulness of her own declarations and of the words cited she pretends to exclude from the jurisdiction of The Hague International Tribunal.

This new Ecuadorian doctrine, which for the first time appeared on her obtaining knowledge of a project of award rendered precisely on the same dispute and in respect of an arbitration to which the Government was a party of its own free will, does not conform with the diplomatic history of Latin America nor with that of Ecuador.

The greater number of Latin American controversies have been settled through arbitration. Thus we have:

The dispute between Brazil and Argentina over the territory of Misiones (30,000 square kilometers) settled by the award of the President of the United States;

The dispute between Brazil and France over Guayana, settled by the award of the Swiss Government;

The dispute between Brazil and Great Britain over Guayana, settled by H. M. the King of Italy;

The dispute between Argentine and Chile (94,000 square kilometers) settled by the award of H. M. the King of Great Britain;

The dispute between Argentine and Paraguay over the region between the rivers Verde and Pilcomayo, settled by the award of the President of the United States;

The dispute between Peru and Bolivia (over a territory as extensive as the one claimed by Ecuador) settled by the award of the President of Argentine;

The dispute between Colombia and Venezuela, settled by the award of H. M. the King of Spain.

The dispute between Colombia and Costa Rica, settled by the award of the President of France;

The dispute between Venezuela and Great Britain over Guayana (100,000 square kilometers), settled by the award of an arbitration tribunal;

The dispute between Venezuela and The Netherlands over the Ares Islands, settled by the award of H. M. the King of Spain;

The dispute between Honduras and Nicaragua, settled by the award of H. M. the King of Spain;

The dispute between Costa Rica and Nicaragua, settled by the award of the President of the United States;

The dispute between Haiti and the Dominican Republic, settled by the award of H. H. the Pope.

Ecuador herself, although she now hesitates to accept the arbitral recourse in the hope of obtaining, from Peru more than an impartial arbiter might give her on examining unbiasedly the titles upon which she builds her claims, sought always that mode of solution for her boundary questions, stipulating it in the convention of 1887 with Peru; in the tripartite agreement of 1894, entered into on her initiative; and with Colombia in the Convention of 1858, in the aforementioned tripartite agreement and in the treaty of 1904.

It has been demonstrated in the foregoing exposé that:

1.
All negotiations for a direct settlement between Ecuador and Peru are to no purpose, because Ecuador would try to better in her behalf the line of the probable Spanish award, the knowledge of which was the occasion for the attitude assumed by Ecuador in 1910 and that gave rise to the very serious conflict that the mediation of the Powers solved; and Peru, on her part, can not in a direct settlement accept even the boundary line of the Spanish award as she is obliged to maintain all the territories that she possesses and that she has developed through her efforts.
2.
The direct discussion would be productive of nugatory results because its inevitable failure would bring about a new crisis in the relations between Peru and Ecuador.
3.
The only manner in which to solve this dispute, the existence of which is a lasting cause of friction between both nations, is in submitting it to the decision of an arbiter having sufficient prestige and authority so that his award, shall have the necessary moral force.