After careful consideration of the problem with the interested
Delegations, and their respective statements concerning the matter,
we, the neutral Commissioners, have reached the conclusion that it
is not possible, at the present time, to reconcile the divergent
viewpoints of the parties to the controversy through a formula for
direct settlement, and they have empowered me to submit to Your
Excellencies the draft of a “Convention of Arbitration” and of a
“Supplementary Protocol”, attached hereto, with the request that you
[Page 875]
be kind enough to
bring them to the attention of your Government, for appropriate
decision.
In view of the fact that, as provided in the Protocol of January 3,
1929, the term for the work of the Commission will come to an end on
September 13, we, the neutral Commissioners, express the hope that
the Government of Bolivia (Paraguay) will be kind enough to transmit
to us its decision with regard to the drafts attached hereto, as
soon as may be possible.
[Enclosure 1]
Proposed Convention of
Arbitration
The Governments of Bolivia and Paraguay (Paraguay and Bolivia),
represented in the Commission of Inquiry and Conciliation,
Bolivia and Paraguay, established in the Protocol signed by
their Plenipotentiaries January 3, 1929, desirous of promoting
the final settlement of their controversy regarding the Chaco
Boreal, have decided to effect the Convention of Arbitration
which has been submitted to them by the neutral members of the
Commission, to wit:
His Excellency Frank R. McCoy, Commissioner for the United States
of America and Chairman of the Commission;
His Excellency Fernando González Roa, Commissioner for
Mexico;
His Excellency Raimundo Rivas, Commissioner for Colombia;
His Excellency Guillermo Ruprecht, Commissioner for Uruguay,
and
His Excellency Manuel Marquez Sterling, Commissioner for Cuba,
for which purpose they have appointed as their Plenipotentiaries
the Commissioners for Bolivia, His Excellency Dr. David
Alvéstegui and His Excellency Enrique Finot, and the
Commissioners for Paraguay, His Excellency Dr. Enrique Bordenave
and His Excellency Dr. Francisco C. Chaves, respectively, who,
after having deposited their full powers, which were found in
good and due form, have agreed on the following:
Article I
The Republics of Paraguay and Bolivia submit to arbitration the
juridical difference, of a territorial nature, as contended by
the first, and of boundaries, as contended by the second, which
exists between both nations with regard to the Chaco Boreal.
Article II
Within a month, to be reckoned from the time of exchange of
ratifications of the present Convention, each of the High
Contracting
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Parties
shall appoint two Arbitrators, of whom only one may be its own
national, and shall agree to the designation of a fifth
Arbitrator, who shall be the President of the Court. In default
of this agreement, each Party shall designate a member of the
Permanent Court of Arbitration at The Hague, not its own
national, and the two so appointed shall immediately select a
fifth Arbitrator hereinbefore mentioned.
All the designations referred to in this Article shall be
bestowed upon citizens of any of the Republics of America.
The Court shall meet, for the purpose of its installation, one
month after the fifth Arbitrator has been appointed.
Article III
The High Contracting Parties shall formulate by common accord a
special agreement which shall clearly define the particular
subject matter of the controversy.
Article IV
Should the High Contracting Parties fail to reach an accord on
the agreement referred to in the preceding Article within a term
of three months to be reckoned from the date of the exchange of
ratifications of this Convention, the agreement shall be
formulated by the Court within the three months following. The
Court shall determine the form in which it will hear the Parties
before formulating the agreement.
Article V
It is agreed that, in any event, the following provisions will be
included in the formulation of the agreement:
- (a)
- The territory adjudicated to Paraguay by the Award of
President Hayes,53 is excluded from the province
of the Court.
- (b)
- In any case and whatever may be the arbitral decision,
there shall be adjudicated to Bolivia the port of Bahía
Negra, on the Paraguay River, and the territorial extent
that the Court may consider appropriate for the free use
and protection of said port.
- (c)
- The Court shall decide ex aequo et
bono all those points which could not be
decided by the express application of the terms of the
agreement or of principles of law.
Article VI
Should the Court render the decision referred to in Article IV,
the members constituting it shall cease in their functions; the
provision
[Page 877]
in the
foregoing clause shall not be so construed as to prevent the
later reappointment by the High Contracting Parties of one or
more of said members to the Court.
Article VII
The Court shall adopt the provisions concerning nationality and
rights acquired by lawful title, by individuals or corporations,
national or foreign, in the territory under dispute which might
be affected by its Award.
Article VIII
The High Contracting Parties agree on the city of . . . . . . . .
. as the seat of the meetings of the Arbitrators and of the
operation of the Court; they also empower the Court to change
its seat, whenever it may deem advisable to so decide.
Article IX
The Court is authorized to appoint, from its first meeting, a
Secretary and such Staff as it deems indispensable for the
discharge of its duties.
Article X
In case of death, resignation or incapacity, of one or more of
the Arbitrators, and in the case provided for in Article VI,
vacancies shall be filled in the same manner as the original
appointment.
Article XI
The High Contracting Parties shall be represented before the
Court by Agents who may be assisted by such counsel and experts
as they may deem necessary.
Article XII
The decision containing the agreement referred to in Article IV,
and the Award fixing the subject matter of the controversy, as
set forth in Article I, duly pronounced and notified to the
Agents, and in lieu thereof to the Governments, shall be
final.
Article XIII
The differences which may arise with regard to the interpretation
and execution of this Convention and of the decisions of the
Court, shall be submitted to the Court itself.
[Page 878]
Article XIV
The expenses incident to the arbitration shall be borne equally
by both High Contracting Parties; each contending Party shall
defray the expenses connected with the Arbitrators and the Staff
of its exclusive appointment.
Article XV
Should the Court be unable to establish a majority of votes, the
opinion of the President of the Court shall prevail; but if the
scattering of votes were to take place in connection with the
decision referred to in Article IV or in connection with the
final Award, a new vote shall be taken after the respective
Agents have been heard on the point at issue.
Article XVI
The Court is empowered to adopt and amend its own rules of
procedure by a majority vote of the Commission.
Article XVII
The terms established in the procedure, with the exception of
those pertaining to the organization of the Court, may be
extended, if necessary, by a simple exchange of notes between
the High Contracting Parties.
Article XVIII
Each High Contracting Party undertakes not to carry out any
hostile action against the other as long as the present
Convention is in force.
Article XIX
The President of the Court shall advise the High Contracting
Parties as to the measures of a military nature intended to
avoid all kinds of hostilities.
Article XX
The present Convention shall be signed in nine original copies
which shall be deposited in the Departments of Foreign Affairs
of the nations constituting the Commission of Inquiry and
Conciliation, Bolivia and Paraguay.
The High Contracting Parties agree to effect the exchange of
ratifications of the present Convention, with the least possible
delay, through their diplomatic representatives accredited in
Washington, who will communicate the respective Act and the
instruments of ratification, in a joint note, to the Department
of Foreign Affairs of the neutral countries represented in the
Commission.
[Page 879]
In witness whereof, the Plenipotentiaries of Bolivia and Paraguay
(Paraguay and Bolivia) have signed the present Convention in
nine copies, and have hereunto affixed their seals, under the
auspices of the Commission of Inquiry and Conciliation, Bolivia
and Paraguay, whose members also have set their hands and seals
thereto.
Done in the City of Washington, District of Columbia, United
States of America, this . . . . . day of the month of . . . . .
. ., 1929.
[Enclosure 2]
Proposed Supplementary Protocol
Whereas the Governments of Bolivia and
Paraguay (Paraguay and Bolivia) have signed today in this City
of Washington a Convention of Arbitration, under the auspices of
the Commission of Inquiry and Conciliation, Bolivia and
Paraguay, their Plenipotentiaries have agreed upon the following
supplementary Protocol which shall be considered as an integral
part of said Convention:
Article 1. The High Contracting Parties
agree to extend the life of the present Commission of Inquiry
and Conciliation, Bolivia and Paraguay, until the moment of the
installation of the Court, for the purpose of deciding the
differences which may arise between the Parties concerning the
interpretation of the Convention and such other measures of
conciliation as it may deem pertinent. The Commission shall
recess, and during this period all decisions may be taken by
mail or by cable, the Secretariat General to poll the votes and
to make an official record of the decisions in such case.
Article 2. The High Contracting Parties
will bear an equal share of the expenses of the Secretariat
General, the organization thereof to be determined by the
Chairman of the Commission of Inquiry and Conciliation, Bolivia
and Paraguay.
Article 3. The Chairman may call a
meeting of the Commission if conditions so require.
Article 4. The High Contracting Parties
agree that upon the issuance of the Award by the Court they
shall proceed to organize a Delimitation Commission composed of
three expert topographical engineers or surveyors, one of whom
shall be appointed by the Bolivian Government, one by the
Paraguayan Government, and the third, who shall be the President
of the Commission, by the Geographical Society of (Buenos Aires,
Rio de Janeiro or New York), to determine the course of the
boundary line in accordance with the provisions of the Award.
The President of the Commission shall not be a national of
either High Contracting Party.
Each High Contracting Party and the Geographical Society
appointing a member of the Delimitation Commission shall appoint
a
[Page 880]
Deputy Commissioner
who may be called upon in case of need, to take the place of the
member of the Commission whose alternate he is.
The members of the Delimitation Commission shall be appointed
within one month from the date of the Award of the Court. In the
event of death or resignation of any member of the Commission,
the vacancy shall be filled within one month in the manner in
which the original appointment was made.
In the course of its work in the field, the Delimitation
Commission may agree upon such compensations as may be necessary
in order to demarcate the boundary line in a logical and natural
manner.
The decisions of the Delimitation Commission shall be final and
binding upon the two High Contracting Parties.
The Delimitation Commission shall be empowered to adopt and amend
its own rules of procedure and to decide the manner in which it
will carry out the task with which it may be entrusted by the
Court.
Article 5. The High Contracting Parties
will endeavor not to defer the exchange of ratifications of the
Convention of Arbitration more than six months to be reckoned
from the date of its signature.
Article 6. This Protocol shall be
signed in nine original copies and will become effective on the
date of its signature by the Plenipotentiaries of Bolivia and
Paraguay (Paraguay and Bolivia).
In witness whereof the Plenipotentiaries of Bolivia and Paraguay
(Paraguay and Bolivia) have signed the present Protocol in nine
copies and affixed hereunto their seals, under the auspices of
the Commission of Inquiry and Conciliation, Bolivia and
Paraguay, whose members have also set their hands and seals
thereto.
In the City of Washington, District of Columbia, United States of
America, this . . . . . day of the month of . . . . . . .
1929.
