718.1915/368a: Telegram
The Secretary of State to the Minister in Panama (Price)
28. You are instructed to communicate the following note at once in writing to President Porras:
The Government of the United States has been advised by the American Legation in Panama of the receipt from the Government of Panama of a note dated March 474 in which, after referring to the efforts of the Costa Rican Government to evict Panama from its possession of Coto and to the invasion by Costa Rica of the territory on the east of the Sixaola River, the Government of Panama requests a declaration of the manner in which the Government of the United States understands its obligations toward Panama in relation to these events and in the light of the first Article of the Hay–Bunau Varilla Treaty. The Government of [Page 185] Panama states that the territorial and political integrity of the Republic has been affected by what it terms the acts of illegal warfare committed by the Government of Costa Rica.
By Article 1 of the Hay–Bunau Varilla Treaty, it is provided that the Government of the United States “guarantees and will maintain the independence of the Republic of Panama”. The Government of the United States fully recognizes the obligation thus assumed, and its recent communications to the Governments of Panama and Costa Rica have been dictated not only by its manifest interest in the maintenance of peace but by its recogition of its duty in the circumstances disclosed. The Government of Panama cannot fail to realize that in order that the Government of the United States may fully perform its obligation under the treaty it must advise itself as to the extent of the sovereignty of the Republic of Panama and hence of the territorial limits of Panama. It follows that the Government of the United States deems it necessary to inquire fully into the merits of a controversy which relates to the boundary of the Republic of Panama. This Government has no doubt that the Government of Panama will also recognize that there is implicit in the provisions of the Hay–Bunau Varilla Treaty an undertaking on the part of Panama to observe faithfully its international obligations. The guaranty given to the Republic of Panama by the United States is obviously conditioned upon that performance.
It appears that the question which has been raised by the Government of Panama with respect to the boundary between Panama and Costa Rica has two aspects: (1) with respect to what may be termed the Pacific side of the Cordillera, and (2) with respect to the Atlantic side. The Government of the United States deems it to be beyond controversy that the boundary line on the Pacific side was determined by the arbitral award of His Excellency, the President of the French Republic, on the 11th of September, 1900. The line on the Pacific side, as thus determined, was unequivocally accepted by both the Republic of Panama and the Republic of Costa Rica in the Porras–Anderson Treaty of March 17, 1910.75 In Article 1 of that treaty it is stated that the Republic of Panama and the Republic of Costa Rica “consider that the boundary between their respective territories designated by the arbitral award of His Excellency the President of the French Republic, the 11th of September, 1900, is clear and indisputable in the region of the Pacific from Punta Burica to a point beyond Cerro Pando on the Central Cordillera near the 9th degree of north latitude.”
Notwithstanding this fact the Government of Panama apparently has taken no steps to fulfill its obligation to recognize the territory on the Costa Rican side of that line as subject to the jurisdiction of the Government of Costa Rica but has continued to exercise jurisdiction over the territory beyond that boundary until the present time. It is to be observed that it is in that territory, belonging to Costa Rica, that Coto is situated. Because of the obligations and special interests of the Government of the United States, because of the [Page 186] obligations on the part of Panama, and because of the earnest desire of this Government that the Government of Panama shall maintain the most friendly relations with its neighbors in order that its own welfare and prosperity may be enhanced and that its territorial and political integrity may be free from attack, this Government considers it to be an unavoidable duty to request the Government of Panama at once to take steps to confirm the boundary line from Punta Burica to a point in the central Cordillera north of Cerro Pando, near the 9th degree of north latitude, by relinquishing its jurisdiction over the territory on the Costa Rican side of that line, as defined by the Loubet award, and by transferring such jurisdiction to the Government of Costa Rica in an orderly manner.
The controversy which remained, after the award of His Excellency the President of the French Republic, over the remaining portion of the boundary line between Panama and Costa Rica, on the Atlantic side, was submitted to the arbitral decision of the Chief Justice of the United States by the two governments concerned, under the provisions of the Porras–Anderson treaty of March 17, 1910. Article I of this convention provides:
“Article I. The Republic of Costa Rica and the Republic of Panama, although they consider that the boundary between their respective territories designated by the arbitral award of his Excellency the President of the French Republic, the 11th September 1900, is clear and indisputable in the region of the Pacific from Punta Burica to a point beyond Cerro Pando on the Central Cordillera, near the ninth degree of north latitude, have not been able to reach an agreement in respect to the interpretation which ought to be given to the arbitral award as to the rest of the boundary line, and for the purpose of settling their said disagreements agree to submit to the decision of the Honorable the Chief Justice of the United States, who will determine, in the capacity of arbitrator, the question: What is the boundary between Costa Rica and Panama under and most in accordance with the correct interpretation and true intention of the award of the President of the French Republic made the 11th of September, 1900.
In order to decide this the arbitrator will take into account all the facts, circumstances, and considerations which may have a bearing upon the case, as well as the limitation of the Loubet award expressed in the letter of his Excellency M. Delcassé, Minister of Foreign Relations of France, to his Excellency Señor Peralta, Minister of Costa Rica in Paris, of the 23rd November, 1900, that this boundary line must be drawn within the confines of the territory in dispute as determined by the Convention of Paris between the Republic of Costa Rica and the Republic of Colombia of the 20th January, 1886.”
Both Panama and Costa Rica explicitly agreed to abide by the award. Its conclusive character was defined by Article VII of the Treaty, as follows:
“Article VII. The award, whatever it be, shall be held as a perfect and compulsory Treaty between the High Contracting Parties. Both High Contracting Parties bind themselves to the faithful execution of the award and waive all claims against it.
The boundary line between the two Republics as finally fixed by the arbitrator shall be deemed the true line and his determination of the same shall be final, conclusive, and without appeal.
Thereupon a Commission of Delimitation shall be constituted in the same manner as provided in Article II with respect to the Commission of Survey, find shall immediately thereafter proceed to mark and delimitate the boundary line, permanently, in accordance with such decision of the arbitrator. Such Commission of Delimitation shall act under the direction of the arbitrator, who shall settle and determine any dispute as to the same.”
The Chief Justice of the United States accordingly determined the boundary line between Costa Rica and Panama on the Atlantic [Page 187] side. His award was made in 1914. It gave to Costa Rica a portion of the territory claimed by Panama and to Panama a portion of the territory claimed by Costa Rica.
It would serve no useful purpose to enter into an extended discussion of the reasons which underlay the award of the Chief Justice of the United States, since these reasons are expressed with the utmost clearness in his decision. In an elaborate opinion, the Chief Justice of the United States dealt with the terms of submission, his jurisdiction as arbitrator under the submission, and with the line which should be drawn defining the boundary between Panama and Costa Rica from the Cordillera to the Atlantic. The award of the Chief Justice is definite and unmistakable.
The Government of the United States has noted with deep concern the statement contained in the communication addressed by the Panaman Minister for Foreign Affairs to the American Legation on March 8,76 to the effect that the action taken by the Government of Panama in retiring its military forces from Coto “should not be interpreted in any case as an implied recognition of the White award, which the executive power, the legislative assembly and the people of Panama have jointly refused to accept since 1914, the year in which it was rendered.” This Government understands that in refusing to accept the award of the Chief Justice of the United States the Government of Panama has urged that the Chief Justice exceeded his jurisdiction as arbitrator. This Government, mindful of its duty to examine this contention in order that it may fully discharge its obligation in the circumstances, and with the utmost regard for the interests of Panama and the earnest desire that her just rights should be maintained, has been unable to find any ground upon which this contention can be advanced.
In dealing with the Loubet award, the Chief Justice of the United States, under the express terms of Article I of the Porras–Anderson treaty had regard to the limitation expressed in the letter of his Excellency M. Delcassé of 23rd November, 1900, to which Article I refers, “that this boundary line must be drawn within the confines of the territory in dispute as determined by the Convention of Paris between the Republic of Costa Rica and the Republic of Colombia of the 20th January, 1886.” Finding that “the line of boundary of the previous award from Punta Mona to the Cordillera was not within the matter in dispute or within the disputed territory” as determined by the Convention of 1886, the arbitrator treated that line as non-existing, and it was then incumbent upon the arbitrator to substitute a line which was “most in accordance with the correct interpretation and true intention of the former award.” This duty of the arbitrator arising from the Treaty was fully recognized in the Statement submitted to him on behalf of the Republic of Panama, and it is set forth by the arbitrator in his opinion that his power and duty in this respect were conceded by both parties. The Chief Justice explicitly adjudged that the boundary between the two countries “most in accordance with the correct interpretation and true intention” of the former award was a line which he defined as starting at the mouth of the Sixaola River in the Atlantic and thence, as described, to the point near the 9th degree of north [Page 188] latitude, “beyond Cerro Pando” referred to in Article I of the Porras–Anderson Treaty, and that line was decreed and established as the proper boundary between Panama and Costa Rica on the Atlantic side.
This Government finds no basis for the contention that the arbitrator exceeded his powers and his award, according to the express terms of the Porras–Anderson Treaty, became “a perfect and compulsory treaty between the High Contracting Parties” and both Panama and Costa Rica bound themselves to its faithful execution and waived all claims against it. They have agreed that “the boundary line between the two Republics as finally fixed by the arbitrator shall be deemed the true line and his determination of the same shall be final, conclusive, and without appeal.”
The Government of the United States therefore feels compelled to urge upon the Government of Panama in the most friendly, but most earnest mangier, that it conclude, without delay, arrangements with the Government of Costa Rica for the appointment of the Commission of Engineers provided for by the terms of Article VII of the Porras–Anderson treaty in order that the boundary line laid down by the decision of Chief Justice White may be physically laid down in a permanent manner and in accordance with the findings of the award.
It is to be hoped that the Government of Panama will recognize that motives of true and impartial friendship for the Governments of Panama and Costa Rica prompt the making of these representations to the Government of Panama. The Government of the United States would view with apprehension a continuance of this dispute, which has already given rise to hostilities with attendant loss of life, if such a continuance were caused by the refusal on the part of the Government of Panama to carry out obligations which it has bound itself solemnly to perform. This Government, therefore, deems it its duty to ask that the Government of Panama definitely indicate its intention to comply with the representations made to it by the Government of the United States.
You are instructed to cable the Department as soon as a copy of this note has been delivered to the President. Upon receipt of advice from you to this effect, a copy of the note will be given to the press and will be transmitted to the American Legation at San José for communication to the Government of Costa Rica.