719.2115/16
The Panaman Minister ( Alfaro ) to the Secretary of State
Mr. Secretary: The Government of Panama has given its most earnest consideration to the memorandum which Your Excellency did me the honor to deliver in person at the conference we had on Saturday the second of June last, and has instructed me to answer it in the terms I will now set forth:
In the first place I wish most duly to thank Your Excellency in the name of my Government for the notice given in your memorandum [Page 342] to the Republic of Panama of the treaty concluded between the United States and Colombia on April 6, 1914 and approved by the American Senate on April 20, 1921.
As very properly remarked by Your Excellency, the one obstacle in the way of concluding the protocol by means of which it is intended to establish diplomatic relations between the Republic of Panama and that of Colombia lies in the difficulty of finding a formula that would be acceptable to the parties concerned with regard to the boundary between the two nations.
As Your Excellency knows, the first drafts that were presented to the Panaman Government for its consideration made no reference whatsoever to the boundary question, which it seemed most natural for us to do, since both the boundary question and the others that are to be settled by Panama and Colombia are properly matters for public treaties which are to be concluded by the respective plenipotentiaries in Panama or Bogota after the desired diplomatic relations are established. It was presented in the latest draft, where for the first time there appeared a clause stipulating that the boundary between Colombia and Panama would be formed by the line laid down by the Granadina law of June 9, 1855.
The Government of Panama promptly answered that the boundary question was not to be put in the protocol under consideration because it would seem that it was thus intended to fix the limits through that instrument, while the constitution of Panama directs that the boundaries with Colombia are to be fixed by means of a public treaty. The Department of State nevertheless has been evincing some anxiety to have the purpose of the Government of Panama with regard to boundaries be established even now, so as to eliminate from the discussions that are to take place later, questions which are troublesome and delicate in nature, as boundary questions always are, and the Panaman Government in deference to the wishes of Your Excellency’s Government and actuated solely by international courtesy and conciliation decided to make a proposition in the boundary question that would eliminate the most arduous part of the question and at the same time conform with the requirements of our constitutional laws and leave an open door for a final settlement through a public treaty.
I had, therefore, the honor on May 8 last, to propose to the Department of State that together with the protocol of establishment of diplomatic relations, there would be signed a preliminary protocol concerning the boundary conforming to the following basis:
I
“Panama and Colombia declare their intention to reach a friendly and final settlement of the boundary between the two countries by [Page 343] means of a public treaty that will be negotiated immediately upon the exchange of plenipotentiary diplomatic missions between the two States.
II
The Republic of Panama declares that it recognizes and is ready finally to accept through a public treaty that will be concluded, the following boundary line with the Republic of Colombia; From Cape Tiburon to the headwaters of the Miel River and following the range of mountains along the cerro de Gandí, to the Chugargún and Malí mountains and coming down along the cerros de Nigue to the heights of Aspavé.
III
Practically the whole of the boundary line between the two countries having been thus agreed upon on the strength of the foregoing declaration, Panama and Colombia declare that there only remains open for future diplomatic negotiations to fix the frontier between the heights of Aspavé and the Pacific Ocean, the said frontier being fixed by means of a direct convention or through arbitration which will be confined to mark down the line within the two extremes hereinbelow stated: At the North and as the extreme claim on the part of Colombia a straight line which running from the heights of Aspavé will go towards the Pacific Ocean to a point of equal distance from the Capes of Cocalito and Ardita; at the South and as the extreme claim of Panama a line beginning at Ensenada de Aguacate or Octavia Bay in front of Punta de Marzo or Morro-Quemado and then over a cerro on the coast following in the Northeasterly direction taken from the North by the summits which separate the rivers that pour into the Atlantic from those that go into the Pacific as far as the headwaters of Juradó River and then eastward as far as the heights of Aspavé.”
To my Government this proposition appeared to offer a happy solution of the difficulty that had arisen and one that would be accepted both by the Government of Colombia and Your Excellency’s Government, because this compromise keeps under the power and in the possession of Colombia the country open to negotiations which implies that to Panama the postponement of those negotiations is of no benefit whatsoever.
The Juradó district had always been an integral part of the Panaman territory until 1908 when Colombia militarily occupied the town of that name following a declaration made by Secretary Root that in the opinion of the United States the boundary between Panama and Colombia is that laid down by the Law of June 9, 1855.
As a matter of fact, the inhabitants of the township of Juradó have always lived under the administrative jurisdiction of the Panaman authorities and always maintained social and commercial relations with the inhabitants of the Isthmus, while they have shown no sign of relations of any kind either with the authorities or the [Page 344] inhabitants of the Department of Cauca, within which Juradó fell on account of the territorial division which is alleged to have been decreed by the Law of June 9, 1855.
In evidence of this condition of affairs the resolution issued by the President of the Sovereign State of Panama on May 7, 1881, upon complaints made by the inhabitants of Juradó and which decreed that the said township would continue to be governed as it had been in all times by the constitutional laws and authorities of the State of Panama may be cited. There may be cited also all together so as to avoid being too prolix the many acts relative to that district by the Assemblies of the State and Department of Panama and the note addressed on November 4, 1890 by General Juan V. Aycardi, Governor of the Department and the Minister of Gobierno, in which he asked that the Department of Panama be finally marked in accordance with Article IV of the Unitarian Constitution issued in 1886.
It may be observed also that the line which runs from Octavia Bay to the heights of Aspavé and which, according to the proposition I have the honor to submit in those negotiations, will constitute the extreme claim of Panama, is not the arbitrary idea of any Panaman, but that which is marked as expressing the true facts by the eminent Colombian geographer, Doctor Felipe Pérez, by virtue of a contract entered into in 1861 with the government of his country for the writing of a general geography of Colombia and a geography of every one of the States, and it is furthermore that which completes the natural boundary of the mountain range which takes the place of the boundary which is also natural of the Atrato River to which Panama has adduced historical title.
The Sovereign State of Cauca did not consider that its boundary dispute with the Sovereign State of Panama was finally settled by the Law of June 9, 1855, as seems to be the claim today; and it is proved by the fact that in 1882 it appointed for its plenipotentiary General Buenaventura Reinales, Senator for Cauca, to come over and arrive at an understanding with the political authorities of Panama in order to settle the old standing dispute between the two States. He failed in his mission not being able to arrive at an agreement with the Secretary of Gobierno of Panama, Doctor José M. Vives Leon. But in 1883 the President of the State of Panama, Don Dámaso Cervera, accredited Señor Joaquin María Pérez, as plenipotentiary of Panama to the President of the State of Cauca, General Eliseo Payán, and on August 27 they signed a convention, Article XXVII of which reads as follows:
“The question pending between the two States as to the marking of the dividing line of their respective countries will be referred subject to the acquiescence of the two legislatures to the award of [Page 345] the citizen President of the Sovereign State of Bolivar, and the decision arrived at will be held to be final on the subject.”
The Executive Power of the State of Panama thereafter approved that convention but the legislatures of the two States did not reach the point of considering it as it was not referred to them, and there the negotiations stopped. The impossibility of doing away with those antecedents no doubt actuated the Government of Colombia in having its plenipotentiary, Don Enrique Cortés, affix his signature to the tripartite treaties of Washington in 1909, in which there was included an arbitrament clause like that contained in the Convention of 1883 between the Sovereign States of Panama and Cauca and which as above stated was never executed.
The capital consideration which compels the Panaman Government to insist on the solution proposed by it is that it reproduced while making it more precise and perfect, the solution which was arrived at in the question of boundaries through the above mentioned tripartite treaties concluded between Panama, Colombia and the United States in 1909, the plenipotentiaries of the three countries being the then Secretary of State, Mr. Elihu Root, and the Ministers Arosemena and Cortés. If in the above mentioned year Mr. Root himself, who was the party who favored the line of 1855, agreed to refer to arbitration the Juradó district why should it be suggested now that Panama upon entering into relations with Colombia should concede more in this matter of boundaries. In this respect, I have been told that those treaties lapsed because they were not approved by the Government of Colombia, but in answer to that remark I would in turn point out that the failure to approve was not on account of the boundary clause but of the clause relative to the pecuniary compensation which Colombia was to receive, and that in the Treaty of 1914 it was found fair to fix a sum ten times as large as that agreed upon in the 1909 treaty. And if Colombia in 1909 accepted arbitration on the Juradó question when the other clauses of the treaty were not so favorable to it why should it not accept that same solution which is now proposed by Panama? It has also been remarked that the treaty between the United States and Colombia establishes the boundary of the Law of 1855 as that of Panama, but in this respect I must remark that inasmuch as Panama was not party to that Treaty, what third parties agreed to in that respect cannot in any way concern it.
But this is not all. The 1909 Treaty was approved by the National Assembly of Panama, less than one month after it had been signed, by Law No. 21 of February 1 of the year above mentioned. In so approving it the Panaman legislature virtually expressed its wishes in regard to the boundaries with Colombia and how can the [Page 346] Government of Panama agree to an award and a protocol expressly running counter to that desired? By what argument could the Panaman Government justify now to the country a greater concession than that which was made in 1909? The Panaman Government, try as it may, is unable to see any at present as it believes that any covenant concerning the boundary which would go beyond the proposition of May 8th is out of time and out of place in the present negotiations.
The note of Your Excellency makes the astonishing disclosure of the fact that in the course of negotiations of the Treaty of 1914, the Colombian authorities proposed to designate the 79th meridian of longitude west of Greenwich for the boundary between Colombia and Panama, but that the Government of the United States declared that in its mind the boundary was that laid down by the Law of June 9, 1855, and obtained Colombia’s acceptance thereof.
But to Panama this consent does not imply any concession whatsoever on the part of Colombia since to that nation it meant the recognition by the United States of the extreme limit which it might claim on the strength of an instrument which had at least an apparent legal value. There is no meaning in the wish expressed by Colombia to run the boundary line along the 79th meridian thus cutting in two the territory of the Republic, because being unable to justify such a claim with any legal instrument, any antecedent or foundation in history, law or geography, it would be tantamount to asking the Government of the United States to convert itself into a conqueror of Panaman territory in order to present it to the Republic of Colombia. On the same foundation it might also ask that the boundary line be drawn along the 82nd meridian thus virtually wiping the Republic of Panama off the map.
Your Excellency laid great stress on the letter sent by the present President of the Republic of Panama to the Under Secretary of State, Mr. Phillips, on the tenth of January, 1920.43a As for that letter and others exchanged between the same Under Secretary of State and His Excellency, Doctor Belisario Porras, my attention has been called to them in the course of a conference with the Chief of the Latin American Division, Mr. White, and upon my apprizing the President thereof he in turn referred them to the cabinet plenary council for their examination and consideration, and according to a despatch sent to the Legation by the Department of Foreign Relations “the Cabinet Council arrived at the conclusion that those letters contained no promises that may give the Department of State occasion to declare that Panama agreed to the boundaries described in the Thompson-Urrutia Treaty; quite to the contrary there is noticed [Page 347] in them the writer’s insistence to claim for Panama the boundaries which historically belong to it.”
In essence the letter of January 10, 1920, of President Porras is to the effect that he wished in an informal and unofficial manner to suggest to the Department of State the advisability of having the United States bring out in its Treaty with Colombia the claim of Panama based on history and law to the Atrato frontier; but that owing to the insistence of the United States on the ideas manifested by Secretary Root he realized it would be inconvenient to insist on his viewpoints as he had no purpose to embarrass the negotiations between the United States and Colombia.
The true attitude of the government presided over by Doctor Porras in this matter is that which is justified in the memorandum that in my capacity as Special Envoy of the Republic of Panama, I had the honor to present to Your Excellency on March 17, 1921, which reads as follows:
“The Government of Panama wishes to maintain relations of cordial friendship with all the peoples on earth and will, therefore, see with the greatest pleasure any action or step taken towards the establishment of diplomatic relations with the Republic of Colombia, a nation from which Panama seceded without bad blood or ill will and actuated solely by the vital necessity of resuming the management of its own destiny.
“However, the Treaty between the United States and the Republic of Colombia being about to be considered and voted on in the American Senate, the Government of Panama deems it its duty to renew the protests it has made to the Department of State to the effect that if any clause fixing the boundary of Panama with Colombia is inserted in that Treaty it would constitute a proceeding that cannot depend on the consent or approval of Panama.
“The Constitution of the Republic of Panama, by its Article 3, provides that the boundaries between Panama and Colombia will be fixed by means of public treaties which necessarily means public treaties to which Panama is a party. This matter concerns vital interests of Panama and its Government thinks it has a right to be left at liberty to discuss it with Colombia adequately and at the proper time.
“The Panaman Government declares that if the Treaty between the United States and Colombia is eventually approved by the Senate, its provisions cannot affect the rights of Panama which has not been consulted nor taken into account in the negotiations in spite of its previous protests. It also declares that as it has not empowered the United States to negotiate in behalf of Panama in the matter of boundaries and pecuniary settlements with Colombia, whatever convention in that respect is made between the United States and Colombia will, with respect to Panama, be res inter alios acta and cannot of right be binding upon it.”
I believe, therefore, Mr. Secretary that from the foregoing statement Your Excellency will have formed an idea of the conciliatory [Page 348] spirit and the motives of equity that have inspired Panama, when it made its proposal of May 8th last, and if as the Panaman Government hopes it may be the Colombian Government is now animated by sentiments as friendly and fraternal as those which Panama cherished it will find no difficulty in accepting a solution which will insure immediate success of the negotiations for the establishment of diplomatic relations, happily initiated through Your Excellency’s powerful mediation.
I do not wish to allow the present opportunity to pass by without reiterating to Your Excellency the sincere expression of the wishes of the Republic of Panama that the relations of official friendliness will be entered into by Colombia and that those negotiations which we have entered actuated by no purpose of expectation of material profit, but impelled by the love which we have for the people with whom we have shared misfortunes and achievements in eighty-two years of political union will be crowned with a happy outcome.
I lastly desire to express the profound gratitude of my Government for the interest and tact displayed by Your Excellency in your praiseworthy endeavor to bring about diplomatic rapprochement between my country and Colombia which endeavor Panama will try as far as possible to carry out in order that in the brilliant work Your Excellency is carrying on in the cause of peace and international harmony, entire success will be achieved.
I am [etc.]