724.3415/714½
The Chairman of the Commission of Inquiry and Conciliation (McCoy) to the Delegations of Bolivia and Paraguay59
Excellencies: I have had the honor to receive the note of Your Excellencies and that of Their Excellencies the Commissioners for Paraguay (Bolivia), both dated September 9 of this year, wherein you (they) were good enough to answer the note I addressed to you (them) dated August 31, last, transmitting to you (them) in the name of the neutral Commissioners a proposal for a Convention of Arbitration and another for a Supplementary Protocol.
Their Excellencies the Commissioners for Bolivia are good enough to state that the Government of Bolivia renews its adherence to the principle of arbitration; states that it is disposed to settle by that juridical method its territorial controversy with the Republic of Paraguay on the bases proposed by the Argentine observer during the Conferences of Buenos Aires; maintains in full force the reservation formulated to the General Treaty of Inter-American Arbitration [Page 888] signed at Washington and states that Articles IV and V of the draft Arbitration Convention are not in accordance with international precedents regarding arbitration and contain a principle destructive of the right of sovereignty since they place no limit whatever on the claims which Paraguay might wish to make against the territory of Bolivia; considers that the exclusion in favor of Paraguay of the zone covered by the Hayes Award, while no zone whatever is included in favor of Bolivia, signifies the establishment of an unjustifiable inequality and is equivalent to prejudgment as to the validity of a title invoked by Paraguay and challenged by Bolivia, a title the validity of which it is incumbent upon the arbiter to weigh; establishes that the return to Bolivia of Puerto Pacheco constitutes an act of reparation which should be effected immediately, and ends by stating that the Government of Bolivia regrets being unable to accept the bases of arbitration in the draft Convention.
For their part, Their Excellencies, the Commissioners for Paraguay, say that their Government reaffirms its sincere and firm devotion to the principle of arbitration as a means of settling international conflicts; that they are pleased to see set forth in subhead a), Article V, recognition of a de facto and de jure condition that is not open to objections namely, that the territory adjudicated to Paraguay by the Hayes Award is excluded from the competence of the Court; that they take the liberty, respectfully, of asserting that the adjudication in advance to Bolivia of the port of Bahía Negra means the cession of a part of the territory which can be submitted to arbitration; that the Government of Paraguay suggests submitting the question to two arbitrations of law in succession, and stipulated in one and the same treaty, the first of which would determine the specific matter in controversy, that is to say, the zone of litigation, while the second would decide who had the better right thereto, excluding from the competence of the arbitrator the territory adjudicated to Paraguay by the Hayes Award; and that, in order to give sufficient time duly to consider so important a matter, the Delegation of Paraguay in the name of its Government begs leave to indicate the convenience, as a matter of prudence, of extending the term fixed by the Protocol of January 3 of this year for the operation of the Commission.
The neutral Commissioners have taken note of both documents with deep satisfaction because from their contents there is evidence of a conformity of principle on the fundamental points and, moreover, because the said documents are sufficiently enlightening to the neutral Commissioners for any study of the suggestions made by the Parties with a view to removing obstacles that stand in the way of their acceptance of the proposed arbitral process.
Before going into the details of the matter, I desire to ask Your [Page 889] Excellencies to be so good as to take into consideration the following statements:
1. The neutral Commissioners have intended to place the Parties on a footing of absolute equality, both with regard to the study of the fundamental points and with regard to the mere procedure followed in prior negotiations.
2. It has never been the purpose of the neutral Commissioners to prejudge the territorial or boundary question and, in that respect, when they have referred to the territory which was the subject matter of the Hayes Award and to the port of Bahía Negra, they have done so without expressing any opinion as to the extent and the force of the titles alleged by the two nations. What induced the neutral Commissioners to consider these aspects of the question were motives of a completely different order than juridical, as the juridical aspects will have to be contemplated by the arbitrators.
The neutral Commissioners declare that, under the Protocol, there exists no power to alter the juridical conditions existing in the Chaco. Both in the documents related to the principal question and in those referring to conciliation, mentioning the reestablishment of the state of things in the Chaco on the same footing as prior to December 5, there has been carefully avoided any prejudgment as to the juridical validity of the situation, both with reference to the facts and the diplomatic instruments.
3. The neutral Commissioners presented the foregoing proposals to the Delegations in view of the fact that, as Your Excellencies are aware, the claims of both Parties were, for the moment irreconcilable and, therefore, closed the road to any solution by a direct agreement.
Turning to the main part of the two notes, the neutral Commissioners beg leave to point out the following:
- 1.
- Both nations renew their invariable adherence to the principle of arbitration as a means for settling the pending question as to the sovereignty over territories in the Chaco Boreal. The difficulty lies, then, in agreeing upon the form for giving practical application to the principle accepted.
- 2.
- The two Delegations make formal criticism of subheads a) and b) of Article V which refer to the territory adjudicated to Paraguay by the Hayes Award and to the adjudication of the port of Bahía Negra to Bolivia. There is attributed, in good faith, to those subheads an intention which was not meant to be given them by the neutral Commissioners, who take this opportunity to clear up any misunderstanding based upon the supposition that it was intended to enter upon a determination of the territory or boundary litigation. Consequently, since these subheads do not meet with the favor of either of the two Parties, the neutral Commissioners believe that a cause of disagreement would be removed by simply suppressing the said subheads.
- 3.
- The Bolivian Delegation reiterates its adherence to the
bases for arbitration contained in the formula of the
Argentine observer during the Conferences of Buenos Aires,
expressed as follows:
- “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.”
As these bases were accepted in principle by the Delegation of Paraguay at Buenos Aires, as appears on pages 205, 212 and 213 of the “Libro Blanco” (White Book) of the Government of Paraguay (Asunción 1928), the neutral Commissioners consider that there is no obstacle in the way of substituting for the subheads which are eliminated from Article V, the first and third points in the suggestion of the Argentine observer.
In reiterating the reservation formulated by its Government to the General Treaty of Inter-American Arbitration signed at Washington, the Delegation of Bolivia expresses its point of view by citing Article IV of the Protocol signed at Buenos Aires on April 22, 1927, by the Plenipotentiaries of Paraguay and of Bolivia, as follows:
“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.”
Since that Protocol was signed by the two Governments, there is no obstacle to inserting substantially the said Article IV in the draft Convention, changing Article III of the same draft which refers to the formulation of the special compromis.
The fundamental objections of the two contending Governments having thus been met, the only questions which might divide them relate to the extent of the provisions in the formula of the Argentine observer and those which refer to the nature of the difference, since Bolivia maintains that it is a territorial question and Paraguay that it is a boundary question, these being aspects of the controversy which the neutral Commissioners deem appropriate for arbitral consideration, because they involve the study of questions of fact and of law belonging to a judicial determination by means of an organism especially constituted for that purpose.
The expressions of approval of both nations for the principle of arbitration give the neutral Commissioners hope that the two nations will entertain, for the natural methods leading towards the arbitral solution of the controversy, the same approval which they entertain for the application of the principle to the main question, because it would be inexplicable why the nations should be in agreement as to settling their differences by an Award and should refuse an appropriate compromis or, in case they cannot agree on such compromis, should decline to submit the difference to the same arbiters, as stipulated [Page 891] in the Treaty of Washington which bears the signature of the Delegate for Bolivia. It is to be noted that Bolivia does not consider that its reservation closes the road to arbitration, inasmuch as by a circular to its Legations abroad, dated January 8, 1929, that Government contrasts its attitude with that of the Government of Paraguay, the latter having made a reservation to the application of the Treaty of Washington which, according to His Excellency the Minister for Foreign Affairs of Bolivia, “will constitute an insurmountable obstacle to the arbitral solution which Bolivia desires”, an insurmountable obstacle which has already been removed by the statement of His Excellency the President of Paraguay, in his message to the Honorable National Congress in April of the present year.
Nevertheless, in a desire to contemplate to the last extremity the possibility that the Government of Bolivia may not wish to resort to an arbitral Court without first agreeing to the determination of the zone which will be the subject matter of the arbitration, and the fact that the Government of Paraguay may not agree on the nature of the other elements which must be considered, the neutral Commissioners believe that the insertion of a clause giving an optional character to the further procedure for formulating a compromis would be satisfactory and, to this end, they beg leave to submit a provision which would require, as is natural, some slight changes in the phraseology of other Articles of the draft Convention, as follows:
“When the compromis has been formulated by the Court, the Parties remain free to state whether the said compromis is satisfactory or not. In the former case the procedure shall be subject to the stipulations agreed on in this Convention. In the contrary case the Party which may not be satisfied shall have power to withdraw from the Court, the procedure thus being closed.”
The obstacles being thus removed and all doubtful points elucidated, the neutral Commissioners reiterate their proposal that the controversy be submitted to arbitration, there being introduced in the draft Convention and Protocol which were submitted by them such changes as may be necessary to make them acceptable to the two Parties.
The neutral Commissioners make this new suggestion in the most friendly spirit and inspired by sentiments of the greatest cordiality with no other thought than the welfare of two peoples who, because they are a part of the American family, have interests as dear to them as if they were their own; they cherish the hope that their new endeavor will be received with the same friendly spirit that induces them to make it and that the two Governments will deem it another proof of the intense solicitude for the peace of the Continent which dominates the American peoples.
I take [etc.]
- Transmitted to the Department by the Secretary General of the Commission on September 16, 1929.↩