724.3415/714½
The Bolivian Delegation to the Chairman of the Commission of Inquiry and Conciliation (McCoy)54
Mr. Chairman: We have the honor to refer to the note which Your Excellency saw fit to place in our hands on August 31st, last, informing us that “after a 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”, adding that Their Excellencies the said Delegates had authorized Your Excellency to submit to us the draft Convention on Arbitration and the draft Supplementary Protocol which you also delivered to us with the request that we bring them to the attention of our Government “for appropriate decision”.
Although on that occasion we were able to inform Your Excellency that we did not deem it in order to receive a premature proposal, contrary to the terms of the oral agreement with which Your Excellency is familiar, according to which any proposal for settlement could not be formally made without previous consultation of and acceptance by the Parties, we refrained from formulating any objection, because of the confidence with which the attitude of Their Excellencies the neutral Delegates has always inspired us, and as a matter of courtesy to Your Excellency we did not hesitate to receive the above mentioned documents, which were transmitted immediately to the Government of Bolivia.
In consequence and by virtue of instructions which we have just received, we beg Your Excellency to inform Their Excellencies the neutral Delegates of the following statements:
- 1.
- The Government of Bolivia renews, on this occasion, its invariable adherence to the principle of arbitration as an effective means of settling international controversies.
- 2.
- It expresses its willingness to settle its territorial
differences, with the Republic of Paraguay by such juridical
means, and is of the opinion, in this connection, that the
bases for arbitration cannot be other than those formulated
by the Argentine observer, Mr. Isidoro Ruiz Moreno, at the
Buenos Aires Conference, and which read verbatim as
follows:55
- “1. That the settlement of the controversy should be based upon the uti possidetis of 1810.
- “2. That, in the event that It proves impossible to arrive at a direct understanding, it will be necessary to determine the bases of legal arbitration.
- “3. That the advances that may have been made by either country have created a de facto situation that confers no right and that cannot be submitted to the arbitrator in order to support their respective contentions.”
- 3.
- It maintains in all its force the reservation made to the
General Treaty of Inter-American Arbitration signed in
Washington on January 5, 1929,56 which reads as follows:
“Second. It is also understood that, for the submission to arbitration of a territorial controversy or dispute, the zone to which the said arbitration is to apply must be previously determined in the arbitral agreement”.
The foregoing statements having been made, the Government of Bolivia has charged us to inform Your Excellency, so that you may in turn so inform Their Excellencies the neutral Delegates, that the fourth and fifth articles of the Convention of Arbitration which has been submitted to its consideration, being contrary to the reservation previously made by Bolivia, are also at variance with all the international precedents on arbitration and embody a principle that is destructive of the right of sovereignty, since it does not place any limitation whatever upon any claims which Paraguay may wish to make to the territory of Bolivia. There is surely no country that will submit to an arbitration in which the specific matter to be covered by the award is not clearly determined.
In this respect there is, furthermore, a very valuable antecedent: the Protocol signed in Buenos Aires on April 22, 1927, in Article IV of which the Governments of Bolivia and of Paraguay agreed to the following:57
“IV. Should it prove impossible to arrive at an agreement respecting the definite determination of the international frontier, the Plenipotentiaries will state the reasons for the disagreement and fix the limits of the zone which will form the subject of the decision of an Arbitral Tribunal to be appointed by mutual agreement.”
On the other hand, the exclusion in favor of Paraguay of the zone covered by the Award of President Hayes, while no zone was excluded in favor of Bolivia, signifies the establishment of an unjustified inequality and is equivalent to prejudging the validity of a title, invoked by Paraguay and challenged by Bolivia, and the weighing of which is incumbent upon the arbitrator. There does not seem to be, and in fact there is not, any strict logical relation between this stipulation and those contained in the third and fourth articles of the draft.
Finally, it is necessary to record that the return of Puerto Pacheco to Bolivia, unlawfully retained by Paraguay since 1888, in which year it was occupied by force, constitutes an act of reparation, which should [Page 884] be effected immediately, but which is not a solution of the principal controversy which, as is known, includes territory situated much further to the south of said port.
In view of the considerations above set forth, the Government of Bolivia has instructed us to express to Your Excellency that it would have been pleased to be able to respond to the generous and persevering efforts, thus far made with such marked disinterestedness and impartiality by Their Excellencies the neutral Delegates, by accepting the bases for arbitration contained in the Convention which they were good enough to draft, but it regrets that it is unable to do so owing to the well known antecedents recalled and to the necessity of safeguarding the high interests of our country.
We avail ourselves [etc.]
- David Alvéstegui
- Enrique Finot