Foreign Relations of the United States, 1958–1960, Volume V, Microfiche Supplement, American Republics

EC–21. Telegram from the Secretary of State to the Embassy in Rio de Janeiro¹

Washington, October 27, 1960, 11:11 a.m.

525. Following are Department’s views on substantive issues presented by current Peruvian-Ecuadorean dispute (Deptel 493 to Rio, Rio’s 545, 550 and 565 to Department and Lima’s 286 to Department).² You should discuss these points of view with representatives other Guarantor powers with view to eliminating confusion and reaching precise agreement:

(1) We consider 1942 Protocol between Ecuador and Peru currently valid and binding on both Governments particularly in view of approval by Congressional bodies both countries as provided in Article IX. This has always been U.S. position. The word “currently” as used above is intended to recognize that Government of Ecuador has right to request that its claims of invalidity of protocol based on (a) duress and (b) impossibility of applying boundary description to the ground (the watershed issue under Article VIII B(1) of Treaty) be submitted to the International Court of Justice. For the Department to recognize that Ecuador has right to make such a request does not imply that Department considers that Ecuador’s claims in this respect are necessarily valid or that they would probably be sustained by the International Court. Furthermore, we recognize that Peru’s agreement to submission of Ecuadorean claim to International Court would be necessary as neither country has accepted compulsory jurisdiction of Court. In this connection we note Embassy Lima believes there is little likelihood that Peru would agree at this time to a reference of Ecuador’s claim to the Court.

(2) Department also considers that the 1942 Protocol may not be nullified or abrogated by a unilateral declaration on the part of the Ecuadorean Government. There are no caveats or qualifications to this second point.

(3) Department also considers that under terms of the 1942 Protocol Guarantors currently repeat currently have two principal responsibilities. The First relates to the “guaranty” under Article V. The Protocol does not define the word “guaranty” but it would seem to impose upon the Guarantors a duty to use their good offices to the end that Peru and Ecuador accomplish the definitive demarcation of the frontier line and that Peru and Ecuador resolve any legal difficulties which stand in the way of that demarcation. The second responsibility of the Guarantor powers arises under Article VII of the Treaty which specifically provides that any disagreement arising in the execution of the Protocol “shall be settled by the parties concerned” with the “assistance” of the Guarantor powers.

Foregoing is consistent with comments which Department has made (Deptel 493 to Rio) regarding Peruvian assertions that Protocol is “untouchable”; that existing boundary markers are “immovable”; and that parties should renew activities to complete demarcation. These would seem to deny, by affirmative guarantor decision, the possibility of future reference of legal issues to International Court. In our opinion Guarantors should carefully avoid arrogating a judicial function to themselves.

Following are Department’s views on tactics and procedures:

(1) No “gentlemen’s agreement” concerning any future Guarantor meeting was entered into with Ecuador by Guarantors (Quito’s 231).³ The Guarantors informal decision among themselves on September 26 (Depcirtel 456)⁴ was based upon premise that Ecuador would cease publicly agitate border issue and was designed provide cooling off period both countries. This was made clear to Chiriboga (Deptel 430).⁵

(2) In view of continued agitation of issue, Department believes a joint statement should be made by Guarantors rather than separate statements which would be subject varying interpretations. This would presumably include a clear statement of Guarantors position that Protocol cannot be invalidated by the unilateral act of one of the parties.

(3) The text of statement can we believe best be worked out in Rio, to be cleared then with Department and presumably other Foreign Offices. We believe that it should be designed to encourage both Peru and Ecuador to cease public agitation of issue having in mind the need to maintain peaceful, friendly relations between the two countries and the need for a united hemisphere capable both of facing up to the intensified external and internal threats to its wellbeing and to the grave economic and social problems facing it. Some of the language used in Article I of Protocol and in last year’s draft Guarantor statement might be useful in this regard.

(4) Department sees merit in suggestion made to us by Chileans that statement would have less adverse impact on Ecuadoreans in particular if it were issued in response to Chiriboga’s message apparently sent to all Guarantors. (Lengthy telegram October 22 addressed to Secretary⁶ presumably similar to memoranda you refer to as having been received by Brazilian and Chilean Foreign Offices from Chiriboga.) Statement might also refer in general to various memoranda received by Guarantors from Peruvians. Department suggests that, before text of statement is made public, later on behalf of Guarantors might consult with Rio representatives of both Ecuador and Peru re statement. Later might wish to make clear to Ecuadoreans that statement is directed to issue of unilateral denunciation and is not intended close door on possibility of eventual settlement satisfactory to both Peru and Ecuador.

Herter

1. Source: Department of State, Central Files, 622.233/10–2560. Confidential; Niact. This telegram was drafted by Assistant Secretary Mann and initialed by the Secretary of State. It was repeated to Quito, Lima, Buenos Aires, and Santiago.
2. None printed; the file numbers respectively are 622.233/10–1960, 10–2060, 10–2160, 10–2560, and 10–2260.
3. Not printed; 622.233/10–2160.
4. See Document EC–20.
5. Sent to Quito as telegram 222, October 1.
6. Text in circular airgram CG–387 to Rio de Janeiro, October 27, 1960; 622.233/10–2760.