724.3415/714½
The Paraguayan Delegation to the Chairman of the Commission of Inquiry mid Conciliation (McCoy)58
Mr. Chairman: We had the honor to receive, in due time, the note dated August 31, 1929, with which Your Excellency kindly sent us a proposal for an Arbitral Convention and one for a Supplementary Protocol prepared by the neutral members of the Commission over which Your Excellency presides, in accordance with the power granted to them by the Delegations of Paraguay and of Bolivia.
Duly authorized by our Government, the Delegates of Paraguay have the honor to announce to Your Excellency the following points of view regarding the aforesaid proposals:
Once again and taking into account the stage which the Commission has now reached, after self-denying and praiseworthy efforts to find methods for a solution of a long-standing and grave boundary question, Paraguay reaffirms her sincere and firm devotion to the principle of arbitration as a means for settling international conflicts.
Since the Commission began its work, our attitude as Delegates for Paraguay has been directed, even though it became necessary at times to curb expressions of very deep feeling, toward a loyal cooperation in the intelligent and noble efforts of the neutral Commissioners to harmonize interests and to find just formulae in connection with the controversy which was the object of their study.
In that same spirit we will express the thought of our Government [Page 885] regarding the proposals which have been submitted to it, trusting that this thought may be judged as the expression of the state of mind of a people which, conscious of its duties and responsibilities, is a fervent promoter of the peace and brotherhood of the Continent, with no limitations other than those set by its dignity as a nation and its faith in its own destiny.
Article V, subhead a), of the draft Arbitral Convention establishes that: “The territory adjudicated to Paraguay by the Award of President Hayes, is excluded from the province of the Court.” We are pleased to note, in the insertion of this clause, an unchallengeable acknowledgment of a de facto and de jure condition. The territory submitted to the arbitration of President Hayes legitimately belongs to Paraguay, by reason of her historical titles which constitute the immovable foundations of the Award, according to the pronouncement itself, and by reason of the peaceful, uninterrupted, patent, and undisturbed possession which Paraguay has exercised for more than fifty years and still continues to exercise over the zone adjudicated to her by the Award since it was announced.
The spirit of the clause referred to conforms with the fact, only, of the existence of a legal and just title, consolidated by possessions, both of which elements are of insurmountable force in legalizing the domain.
And we would have nothing to add to the foregoing observations, if it were not that the subhead b) of the said Article V introduces a modification as to the spirit which no doubt inspired the draft of the preceding subhead.
“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”, reads the aforesaid subhead b).
Is it possible to explain, on the basis of the previous subhead, a reason which justifies this amendment?
Has Bolivia by any chance such a title, juridically inspired, as is suggested by the verdict, and which would assert her rights to the North of the Chaco, or can she claim a restful, manifest or long-lasting possession of same?
We wish to maintain respectfully that, aside from her demands, the bases of which required the preceding study, we do not deem substantiated the reason which, recommend[s] a cession, in advance, to Bolivia of a part of the territory to be submitted for arbitration in accordance with the decisions of the Court.
In addition to the preceding opinion, would it not be appropriate to meditate on the extent of the authority which would be granted the Court if it be decided that it may also award to Bolivia whatever [Page 886] territorial extension it deems adequate for the development and protection of a ceded port?
The uncertainty as regards territorial sovereignty is a factor which should be attentively and thoroughly considered, above all because, as in the present case, it might eventually become a cause for renewed and pitiful complications and anxieties.
If the criterion which prevailed in behalf of an Award, in advance, of Bahía Negra be the actual or assumed need on the part of Bolivia of a gateway, our country might in all justice invoke her own requirements, together with a desire to assert her titles in their entirety.
All these reasons have impelled the Government of Paraguay to make the respective pertinent objections and to suggest some changes in the terms of the draft Convention, always inspired by the desire to cooperate in the efforts which the Commission is so earnestly making to bring about a solution.
In that sense, the Government of Paraguay, extremely desirous of finding a solution for our boundary differences with Bolivia, begs leave to suggest the following bases:
- First—That the question be decided in two consecutive juridical arbitrations stipulated in one and the same Treaty. The first arbitration to determine the specific matter of the controversy, that is to say the zone in dispute; and the second, to decide who has a better right to the same.
- Second—The territory adjudicated to Paraguay by the Award of President Hayes is at the outset to be eliminated from all arbitral jurisdiction.
- Third—By reason of the first arbitration, proceedings are to be instituted before the Arbitrator, in the course of which the Parties shall assert their respective points of view by submitting memorials, records and evidence.
- Fourth—With all those types of evidence in view, the Arbitrator shall decide without recourse, establishing the boundary lines of the zone which has been declared to be in dispute. The Award shall be accompanied by a statement of the reasons therefor.
- Fifth—By reason of the second arbitration, which shall be undertaken as soon as a decision has been rendered in the first arbitration, ample proceedings shall be instituted in the course of which the Parties shall present memorials, records and evidence, with a view to demonstrate their better right. The Award rendered shall be without recourse, as in the previous case, and shall set forth its juridical grounds.
- Sixth—The Judge shall be the same Arbitrator who rendered the decision in the first arbitration, or some other person, as may be agreed upon.
The most important bases for the draft of an Arbitral Convention thus summed up, the Delegation of Paraguay takes the liberty of suggesting, in the name of its Government, the advisability of reasonably extending the period fixed for the labors of the Commission by [Page 887] the Protocol of January 3rd of this year, and would like to request that Your Excellency submit for the study of the Commission the consideration of such a measure.
In the absence of an adequate study of the same and commensurate with the importance of their contents, the formulae prepared by the neutral Commissioners after careful thought and arduous labor and submitted on the eve of the termination of the period fixed by the Protocol would not produce the effect contemplated. The term thus extended, the Commission could assign itself the time necessary for considering, together with the formulae already before it, the projects or suggestions which are submitted and to which said formulae have given rise.
No one knows better than the Commissioners what efforts have so far been made, nor is anyone in a better position to realize the unquestionable need there is for these efforts to be deservedly crowned with success, in an atmosphere foreign to the haste induced by the briefness of time, in the case of a matter the magnitude and complexity of which would justify any delay.
We avail ourselves [etc.]
- Francisco C. Chaves
- Enrique Bordenave
- Transmitted to the Department by the Secretary General of the Commission on September 16, 1929.↩