718.1915/438

The Minister in Panama (Price) to the Secretary of State

[Extract]
No. 2940

Sir: Reporting further upon the Panaman–Costa Rican situation and confirming Legation’s cablegram No. 87 of yesterday, 11 a.m.,. and No. 88 of same date, 8 p.m.,77 I have the honor to enclose (enclosure No. 1), a translation in full of the reply and of the enclosure which accompanied it,78 referred to in said cablegrams, of the Secretary of Foreign Affairs of Panama to the last note of the Department to the Government of Panama,79 asking for compliance by Panama with the Award of Chief Justice White and the delivery in an orderly manner of the disputed boundary area on the Pacific side to Costa Rica.

. . . . . . . . . . . . . .

I have [etc.]

William Jennings Price
[Enclosure—Translation80]

The Panaman Minister of Foreign Affairs (Garay) to the American Minister (Price)

S. P. No. 784.

Your Excellency: I have the honor to refer to the important communication from Your Excellency, dated the 16th of the present month, marked F. O. No. 1080, in which Your Excellency incorporated the text of a note from the Department of State in Washington intended to be made known to His Excellency the President of Panama,79 who directs me to answer it in the following terms.

The very complicated questions presented today for our consideration in connection with the offer of its good offices which the Department of State at Washington made to the Government of Panama [Page 191] with a view of ending its present conflict with the Government of Costa Rica, have to be considered by Panama from a double point of view, according to whether the United States assumes toward us the character of a friendly mediator—as by its recent offer—or the character of a guarantor of our independence, in conformity with article I of the Canal Treaty.81

It is far from my thoughts, Mr. Minister, that the suggestions contained in Your Excellency’s note, above referred to, may have any other character than that of a friendly and well-intended suggestion, so appropriate from a great power which has made the peaceful and just solution of international conflicts one of its most constant desires. The good offices and the mediation which the Department of State, first, and Your Excellency, in the name of your Government, later, were kind enough to offer to Panama, oblige this Republic to respond to these cordial advances and kindly desires with the frankness, fullness, and sincerity which the circumstances demand, and to analyze these suggestions and counsels in the light of our national interests and our international obligations. If, then, as an amicable mediator, Your Excellency’s Government is in this matter giving us suggestions and advice from the viewpoint of arbitrating a basis of settlement and understanding between Panama and Costa Rica, as a guarantor of the independence of Panama, the acts of Your Excellency’s Government would show a different aspect and would bring up for consideration rights and obligations which in this case I ought to analyze and discuss with the frankness and loyalty which our special relations demand.

The Department of State says, in its cablegram incorporated in Your Excellency’s note which I am answering, that the obligation assumed by the Government of Your Excellency to guarantee the independence of the Republic of Panama, implies the investigation, by that Government, of the territorial limits to which the sovereignty of Panama extends, and that this obligation carries with it the corollary of studying thoroughly the merits of the boundary controversy between Panama and Costa Rica. To these declarations my Government opposes no objection, as they concern the internal policy of the United States; we note, simply, that the guarantee of our independence is the principal obligation assumed by Your Excellency’s Government in return for very valuable and very liberal concessions which it obtained from Panama by virtue of the same treaty, and that by reason of their generosity were the object of astonishment in the Senate of the United States. This guarantee, therefore, is understood to be in the interest of the country guaranteed, and should have for its object the defense of the sovereignty of Panama according [Page 192] to its titles of dominion, its jurisdictional rights, and rights of possession, and all the actions and interests which result from them and are dependent on them. As this guarantee has in the Canal Treaty no express limitation contrary to the rights and actions of Panama, there is no reason whatever for establishing such by inference, and the Government of Panama in this respect does not admit restrictive interpretations. The rights of jurisdiction and territorial sovereignty of Panama, such as this nation understands and interprets them, whether they emanate from colonial titles, from acts of possession, or from arbitral decisions, should be in their integrity and without limitation protected by the contractual guarantee stipulated in article I of the treaty, and whatever restriction introduced into the application or interpretation of this obligation would constitute a modification of the treaty, to which Panama has not given, nor can give, its consent or its approval.

The territorial rights which the Loubet Award conferred upon Panama and which were consecrated in the Constitution of the Republic have not been in any way nullified by the decision of Chief Justice White, since Panama, using its clear rights, declined to accept it. Costa Rica not having agreed to execute the Loubet Award, just as Panama, in her turn did not accept the White Award, the rights of possession and jurisdiction which Panama had never ceased to exercise remained in force over the territories which the Loubet Award took from Colombia on the Pacific coast, as compensation for those adjudicated to her on the Atlantic. Complying then with the obligation assigned to the Government of the United States by the first article of the Hay-Varilla Treaty, that Government is jointly liable with Panama in the defense of all the rights and interests accruing to Panama from her titles of dominion and from immemorial possession.

Therefore, in the present status and until there shall be a new arrangement or treaty which may change the relations of the rights between Panama and Costa Rica, my Government declares in a manner most definite and solemn that the sovereignty of Panama extends throughout all the Panaman line of the status quo and that the guarantee of the sovereignty, stipulated in article I of the Canal Treaty, should extend likewise to those limits. Moreover, that guarantee should protect not only the de facto sovereignty which Panama exercises up to the line of the status quo or uti possidetis of 1810, but also the de jure sovereignty which she enjoys over all the territory conceded to the Republic by virtue of the Loubet Award, solemnly accepted in principle by the two countries adjoining. This was the conception of Your Excellency’s Government in 1906 when that eminent jurist and statesman, the Honorable Elihu Root, held the office of Secretary of State, as is evidenced in his note no. 37 of the [Page 193] 16th of April, 1906,83 communicated to this Chancellery on the 21st of December, 1908, by Minister H. G. Squiers, Your Excellency’s predecessor. The pertinent paragraphs of this note say:

“It can not be denied that the de jure sovereignty has been in Colombia and Panama since the Loubet Award, accepted as it is by Panama and Costa Rica, so that either by virtue of that award, or of the pending boundary treaty (Guardia–Pacheco), the territory will ultimately remain under the jurisdiction of Panama.”

And further on is added:

“In the Department’s conception of this matter, Costa Rica exercises a temporary de facto sovereignty over the territory included in the McConnell plantation, subject of right to be divested at any time and at the initiative of Panama, but actually continuing until such time as the pending boundary treaty is ratified. She exercises the powers of Government that are necessary for the orderly administration of the district, but should not use this sovereignty in such a way as to impair the rights of the de jure sovereignty of the territory. Her functions of government are limited by her tenure which is of a temporary and precarious character. Her duty is to preserve the property, not to destroy it, and to hand it over to her successor without the commission of any act tending to impair the ultimate rights of the de jure owner.”

It is a principle of modern international public law, consecrated by the Allied nations in the Treaty of Versailles and subscribed to by the neutrals in the Pact of the League of Nations, that even the semicivilized countries placed under the mandate of any great western power, possess the right to have the exercise of that mandate inspired by the exclusive interests of the people under the mandate, to the absolute exclusion of the interest of the mandatory. And if this is so, when it concerns the former German colonies of Africa, how can it be maintained, with the remotest show of reason, that a guarantee contracted by a public treaty between two sovereign nations of our continent is to be understood in any other way than as instituted in the exclusive interest of the guaranteed nation, without restrictions or limitations which do not appear in the treaty and are not presumable under the law?

From the beginning of her boundary differences with Costa Rica, Panama sustained the thesis that the Loubet Award was one and indivisible, that it should be accepted as a whole or rejected bodily, and contingent upon this theory established as the basis of the arbitral compromise of 1910,84 as it had done before in the Guardia-Pacheco Treaty, the solemn declaration ratified in writing that both countries accepted the Loubet Award in all its parts. Panama considered [Page 194] this award as a precious legacy to whose preservation the Republic was committed, not only by virtue of a constitutional provision clear and precise, but also with respect to the vital interests of the Republic, by the duties which it had undertaken for itself and for future generations. In the opinion of this Chancellery, article I of the Hay–Varilla Treaty does not constitute the United States judge and arbitrator of the territorial rights and actions of Panama in relation to its neighbors, but simply a guarantor of its independence and integrity, such as results or may result from its rights and titles, and this conventional obligation involves a moral obligation of the United States of America toward the country which more than any other has contributed to its present greatness and power; the country which made its own, without being deterred by any scruples of neutrality, the cause of the United States in the World War, and which has been at all times its best friend and most faithful ally, without forgetting on this account its duties of self-preservation which are primordial for any state.

The Department of State says that according to the arbitral pact of 1910, Panama bound itself to accept the decree of arbitration and to consider it final and conclusive, and this assertion is correct if there is added in continuation: by means of essential conditions which were stated in writing in the same agreement and for the observance of which the plenipotentiary of Panama never ceased for an instant to press. But as the principal condition of the pact was not respected by the Arbitrator, but was, on the contrary, explicitly rejected by him, Panama’s refusal to accept the award in this form has left its honor safe and the country absolved from all compromise. For the rest, declarations of this kind, which are proper in arbitral compromises, are never understood as prejudicing the legitimate rights of the parties, nor can they be alleged to legitimatize a denial of justice through the exceeding of powers or through any other failure of those who bring about the nullity of the award.

Permit me, Your Excellency, to remind you in this connection that the Republic of Costa Rica bound herself in a form even more solemn to accept the award offered by the President of the French Republic in its dispute concerning boundaries with Colombia, agreeing in this form: “The arbitral decision, whatever it may be, will be considered as a perfect and obligatory treaty between the High Contracting Parties, and will admit of no appeal. Both parties agree to its faithful execution and renounce all protest against the decision, pledging thereto their national honor.”85

[Page 195]

Nevertheless, Costa Rica always avoided the fulfillment of the award and not only was no appeal made to the sense of honor of that nation, but actually she was aided afterwards in an efficient manner to evade compliance with a sacred international obligation. Panama on this account complains of being the object of unfair treatment, which she considers that she in no way deserves.

In effect, if compliance with its international obligations were an explicit condition for making available to Panama the contractual guarantee stipulated in article I of the Hay–Varilla Treaty, this Government could remain tranquilly sure of its external security. It has fulfilled—even to excess—these obligations, and by fulfilling them in good faith finds itself confronted with the difficulties of the present situation.

The respect which it showed for the rights of possession of Costa Rica and its dislike of violent and arbitrary methods when the Loubet Award assigned to Costa Rica control of the two banks of the Sixaola, are in contrast with the effrontery with which Costa Rica took possession in 1909 of the west bank of the Sixaola, in spite of the repeated protests of Panama, and with the novel method put in practice by the former country a few days ago in order to assume jurisdiction over territories inhabited exclusively by Panamanians, cultivated by the sweat of Panamanian brows and which always have been under the jurisdiction of Panama.

The international obligations of Panama are necessarily limited by its right of self-preservation, the defense of our territorial patrimony, included in our fundamental charter, and the jurisdictional rights depending upon its secular possession. Whatever may be the opinion which the Government of Your Excellency may have formed concerning the attitude of Panama in its boundary controversy with Costa Rica, it cannot deny—because this is a point upon which there can be no discussion—that this attitude has been from the first one and invariable and that our present rights do not rest upon the White Award—not recognized by us—but upon that of the Loubet Award, recognized but not executed by Costa Rica.

The manner in which Your Excellency’s Government views in the note referred to the question of boundaries between Panama and Costa Rica, dividing it into two parts—one on the Atlantic, the other on the Pacific, independent of each other—is not in accord with the conception which the Government of Panama has formed on the question. It is precisely the indivisible character of the obligation which the line of the award imposed on the two countries, which my Government invariably sustained before Arbitrator White; and it is opposed to the pretension of Costa Rica of dividing this obligation to burlesque it piecemeal, taking advantage of the Loubet [Page 196] Award in that which favored her and repudiating it in that which prejudiced her in order to obtain later, through an interpretative award, the annulment of the compensation which the Loubet Award gave to Panama on the Atlantic side, in such a way that this decision has assumed in the eyes of public opinion in Panama the proportions of a symbol of injustice, exasperating the national sentiment which has expressed itself in unmistakable manifestations of general discontent.

Just as in civil matters one of the parties can not adduce in his favor a decision or proof, taking advantage of it when it favors him and rejecting it when it prejudices him, so in international matters it is not legitimate to avail oneself of what is exclusively favorable in an award and repudiate the rest; and it is this universal principle of law, common to all the bodies of law of the world, which Costa Rica has desired to have annulled for her benefit and to the injury of Panama.

This Government again reminds Your Excellency that in accepting as clear and unquestionable the line of the Loubet Award which runs from Punta Burica to a point in the Central Cordillera, above Cerro Pando, near the 9th degree of north latitude, it did not do this by virtue of a mutual agreement with Costa Rica, as might be pretended by interpreting tortuously the pertinent stipulation of article I of the Porras–Anderson agreement, but by virtue of the obligation to which Panama was subject under the Loubet Award. This obligation came from the award as a whole; but once the latter was rejected as “nonexistent” by the Honorable Chief Justice White and the White Award in turn was rejected by Panama, the acceptance by this Government of a partial line of the award on the Pacific brought about for it the lapse of the agreement and the arbitral award as sources of obligations, and the situation of Panama with regard to Costa Rica continued to be governed in fact by the status quo and in right by the Loubet Award.

The arguments contained in the note of Your Excellency and intended to persuade the Government of Panama that it ought to accept as good and valid the White Award, are doubtless based on the sincere but erroneous belief that Panama has at sometime agreed to be despoiled, in two successive acts, first of her territorial rights on the Pacific, and afterwards of her territorial rights on the Atlantic. The Porras–Anderson agreement, which gave birth to the White Award, is not a boundary treaty but a simple arbitral agreement, which lapsed with the nonacceptance of the award by Panama. There does not exist, therefore, a Porras–Anderson boundary treaty, as the note from the Department of State seems to suppose, but [Page 197] a simple arbitral agreement which ceased legally to exist when this Government notified Costa Rica, the Arbitrator, and Your Excellency’s Government, that the White Award lacked obligatory force for it and was null and void so far as it was concerned. The belief of the Government of Your Excellency visibly rests on a misunderstanding or on a confusion, and the undersigned feels special satisfaction in being able to contribute by means of these explanations toward the reestablishment of the true position of Panama in the conflict, and to rectify the erroneous concept which seems to prevail in the Government of the United States concerning the alleged concessions or admissions or unfair acts to which this Government might have consented.

Much error and uncertainty have been injected into the views of the Department of State by the wholly gratuitous assertion contained in the award of the Honorable Chief Justice White, and which the Department accepts in its cablegram of the 15th of the present month, that “Both parties recognize that in accord with this convention the power and the duty exist to substitute for the line set aside, a line within the scope of the authority granted under the previous treaty.” As Your Excellency will see later, this assertion is absolutely without foundation as far as concerns the Republic of Panama.

Your Excellency’s Government observes that the White Award gave to Costa Rica a portion of the territory which Panama claimed and to Panama a portion of the territory which Costa Rica claimed. This observation, which would be exact in speaking of the Loubet Award, is not so when applied to the White Award; and it is precisely because in this observation there throbs a noble impulse of equity—which does honor to the Government at Washington, at the same time that it makes clear its imperfect knowledge of the material under discussion—that this Government has profound faith in the success of its cause and expects confidently that with a more complete knowledge and an idea more exact of the rights and the attitude of Panama, we will see a radical change in the spirit and in the attitude of the Department of State.

This fundamental error in conception explains the opinion which the Government of the United States seems to hold sincerely today, that Panama has carried its patriotic zeal very far, perhaps to the detriment of its agreements and international obligations; but I do not doubt for an instant that a government loving peace, justice, and right, like that of Your Excellency, will, once the facts which have contributed to form its opinion are rectified, know how to do honor to the spirit of rectitude, loyalty, and conscientiousness with which Panama has labored to comply with its internal and [Page 198] external duties in the boundary dispute which for so many years it has maintained with Costa Rica. The assertion that the award of Chief Justice White is “definite and unmistakable,” doubtless reveals a conviction very profound and worthy of appreciation; but from it with all respect and with an abundance of reasons, the Government and people of Panama have permitted themselves to dissent from 1914 to the present date.

There is also an argument of great weight which I do not care to overlook at this point because I believe that it may influence strongly the Government of Your Excellency to reconsider its recent attitude toward Panama. It is this: When the United States suggested to Panama86 the idea of availing herself of the former’s mediation to settle by peaceful methods her boundary dispute with Costa Rica, with respect to the interpretation of the Loubet Award, Panama responded wholeheartedly to this suggestion; and I say wholeheartedly because she did not limit herself to accepting it, but, having absolute confidence in the sense of justice which distinguishes the American nation, she wished to establish as a previous condition to her acceptance the guarantee on the part of the United States that Costa Rica would accept as final the decision which the Honorable President of the Supreme Court of Justice of the United States might pronounce. In this sense Don C. C. Arosemena, our Minister in Washington, made request of Secretary of State ad interim, the Honorable Huntington Wilson in note 29 of the 20th [23d] of October, 1909,87 and in this sense our Chancellery in the note of the 2d of November of the same year to our Minister in Costa Rica notified him, he being later charged with the defense of our rights in the arbitral proceedings due to open shortly in Washington. To these advances of this Government the Government of Your Excellency did not believe it wise to accede, and in note no. 14 of the 2d of November, 1909,88 the Secretary of State, the Honorable Philander C. Knox, answered our Minister in Washington that “As to the finality and binding character of the award, which ever it may be, this Government cannot doubt the good faith of the parties to the arbitration, and while not asking for a formal engagement on the part of either or both, would have pleasure in receiving assurance from Panama as well as from Costa Rica that the award shall be accepted as final.” Events have demonstrated the admirable wisdom and foresight with which the Government of Your Excellency acted in those days, preventing Panama from now having to struggle with the obstacle of a guarantee or a formal pledge [Page 199] asked for by itself, notwithstanding that this pledge or this guarantee in no case would have annulled the right which every nation or individual has, not to be denied justice nor to be condemned without being heard, which is, in short, the only thing which Panama claims today. Because it is nothing else than denying her justice and condemning her without a hearing to place the case in a sphere in which Panama lacked arms to fight with Costa Rica on an equal footing. The archives which had served Colombia for the defense of the case which it maintained before Arbitrator Loubet, are now inaccessible to Panama, as they were to Arbitrator White, and to reopen without these elements the historical aspect of the case would be to deliver Panama, unarmed and with breast uncovered, to the well-aimed blows of a fully prepared adversary. On different occasions our lawyers and counselors thus pleaded before the Arbitrator, without succeeding in getting him to mention anywhere in his extensive award this prime consideration, founded on the most elemental notion of equity. In the award there appear only isolated observations which however well they corroborate the legitimacy of Panama’s claim, do not take into consideration the element of justice involved in our allegation. For example: “The whole record which was before the former Arbitrator is not shown to be a part of this record, but neither party disputes, if they do not in terms concede, that the substantial facts which I have previously stated were embraced in the record for the purposes of the prior arbitration. Before making the award and as an aid in doing so, the Arbitrator appointed a commission of distinguished officials of the French diplomatic corps, and in addition the Keeper of the Maps in the National Library, to consider the subject presented by the arbitration. The written report of that Commission, if any was made, is not in this record.” Nevertheless, the Arbitrator ignored entirely the work of his predecessor, in place of interpreting it, without having been able to acquaint himself with the elements which had served to form the award.

The earnest desire of the Arbitrator seems to have been set on suppressing the boundary of mountain peaks imagined by the President of France to be the most natural and permanent barrier between the two adjacent countries, substituting for it a fluvial boundary exposed to the action of great floods, to the changes of the river beds, and other inconveniences which make it very inferior, without perhaps remembering that since the rest of the line had been accepted by Panama and Costa Rica as clear and unquestioned and therefore withdrawn from the action of his interpretation, half the boundary would be constituted by chains of mountains or spurs of the Cordillera, while the other half would be purely fluvial. [Page 200] This result, at variance with the homogeneity of the frontier system between the two countries is sufficient evidence that the Loubet Award did not lend itself to revision basically without introducing into it confusion and disorder in its handling.

As the lawyers of Panama did not suppose that the line of the award could have another substituted for it by the Arbitrator nor that the terminal points explicitly accepted by the two parties and the Mediator, would be deviated from, this Government made no effort toward the defense of its rights in the event that there should be adopted a fluvial boundary, and there is not a line in our allegations and statements that remotely contemplates this possibility; it is in this sense, Mr. Minister, that I have permitted myself to state that Panama was condemned without being heard and is worthy of having her case made the object of a careful and conscientious examination, as we can hardly consider satisfactory the explanation of this fact given by the Arbitrator in his same award when he says: “In the argument of this case Costa Rica stated a formal decree which it deemed should be entered upon the hypothesis that the award here made should be against the mountain line and in favor of the Sixaola–Yorquin line, and no objection to the form of such proposed decree has been made by Panama.”89

One of the elements which has most contributed to increase confusion in this case and to bewilder the general understanding, is the letter which the Minister of Foreign Affairs of (France, M. Delcassé, sent in 1900 to the Costa Rican Minister in Paris, Señor Peralta, in reply to one which the latter had sent him to obtain from President Loubet a declaration concerning his intentions as Arbitrator. The Minister from Costa Rica expounds in this letter the interpretation which the Government of Costa Rica gives to the Loubet Award and adds: “This interpretation conforms with the evident intentions of the Arbitrator and with the configuration of the territory as well as with the terms of the agreement of arbitration. It corresponds perfectly to the desire to establish with accuracy and permanence a natural frontier and varies only very little from a straight line drawn between Punta Mona and Punta Burica, which is, so to speak, the fundamental idea of the Arbitrator.” To these expressions, very clear and significant, M. Delcassé agreed stating that “through lack of precise geographical data, the Arbitrator has not been able to determine the boundary further than by means of general indications,” and that “there would be inconvenience in determining them with precision on a map.” And he added: “It will be necessary for the Republics [Page 201] of Colombia and Costa Rica to proceed with the material determination of their frontiers.” All this which is so clear, so sensible, and so logical, it has been desired to transform into a veritable riddle, by means of and thanks to the explanations of the other side, and it has been taken as a basis for pretending that Arbitrator Loubet assented to a revision of the award. There is no such evidence. It is well known that every decision concerning boundaries, whether between nations or private parties, consists of two parts, delimitation and demarcation. In the first part, that of delimitation, the tribunal traces from its office and in general terms the dividing line, taking into consideration all the elements of fact and law which the parties have adduced in their favor. This operation ends the first part of the case and leaves pending the second part, the demarcation, in which the tribunal, assisted by experts and men conversant with the art, goes to the actual place involved in the controversy and proceeds actually to demark, upon the ground, the dividing line between the two nations of the two estates. It is then that they start to solve the problems which geographical accidents and material difficulties place in the way of the delimitation. The letter of M. Delcassé, written when the Arbitrator had just finished dictating his award and ending the first part of the case, the only one which could be brought to a conclusion in France, had no other significance. That which then remained pending, the delimitation, could not be settled except upon the actual ground and to this M. Delcassé refers when he says: “That the Arbitrator defers at this point to the spirit of conciliation and good will which have until now inspired the two Governments in the case.” Returning to the terms of the letter from Señor Peralta in which he records the interpretation given to the Loubet Award by the Government of Costa Rica, permit me, Your Excellency, to point out, because the point is of the greatest importance to Panama, that the Government of Costa Rica there claimed much less territory than that which the Arbitrator, Chief Justice White, assigned to her in his award of 1914, and this act alone is another obvious demonstration of the lack of equity in the award.

That which the two Governments of Panama and Costa Rica submitted to the decision of the Arbitrator, was their two interpretative lines of the Loubet Award: that of Panama was formulated at the end of his argument by the Plenipotentiary, Dr. Morales, and the lawyers, Messrs. Cromwell and Hill, and that of Costa Rica was formulated by the Plenipotentiary, Señor Peralta, in his already cited letter to M. Delcassé of the 29th of September, 1900, and was reiterated to this Government by the Minister of Foreign Affairs [Page 202] of Costa Rica in his notes to our Minister in San José on the 15th of June and on the 13th of August, of 1909, which said respectively:

“The Plenipotentiary of Costa Rica could not have signed a declaration referring to this point, without making the reservation which my Government had already presented before the Chief Justice, and before the Government of Colombia. In other words, Minister Pacheco could not have recognized the force of the Loubet Award, except on the understanding that the dividing line determined by general landmarks in the award given in Rambouillet, would follow the directions determined in the note directed to Señor Delcassé the 29th of September, 1900, since otherwise the force of the award would be entirely undermined.”

And the other:

“If the Award has not been executed, it has only been on account of differences of interpretation of its terms, something which should have been considered beforehand in order to be able to judge its purpose. From the beginning, Costa Rica has understood it in the form which Señor Peralta expressed to the Arbitrator, and that Your Excellency cites in part. So that, if it is thus to be definitely understood, my Government stands ready to deliver the territory of Gandoca and to recover that of Punta Burica. In the meantime both Republics have reason and right to maintain the possession of de facto line agreed upon as a provisional boundary.”

In his message to the Congress of Costa Rica in 1909 President González Víquez expressed himself thus: “As the Guardia-Pacheco Treaty has expired, it would be in order, unless there should be an agreement by both to determine the boundary line, to decide which of the two interpretations of the Loubet Award is that which conforms to the spirit of the award, and to resort to a new arbitration.” Also the Department of State of the United States in a note of the 20th of October, 1909,90 addressed to the Minister of Panama to the United States and signed by the Secretary, ad interim, the Honorable Huntington Wilson, affirms this view of the points which are going; to be the subject of arbitration: “I desire to express my great satisfaction at the cordial attitude of Panama in accepting the good offices of this Government and in submitting to the Chief Justice of the United States, as sole Arbitrator, the final decision of the question as to which of the two boundary lines between Panama and Costa Rica is the correct one.” And shortly afterwards this same Government in Washington under the signature of the titular Secretary, Honorable Philander C. Knox, in an official note addressed to the Minister of Panama in Washington on the 2d of November, 1909,91 [Page 203] confirms this perfect understanding in these terms: “This Government has assumed that the two parties were in discord as to a part of the Loubet Award, and that all that is wanted is for each to submit its interpretation as to that part of the line in disagreement, and invite the Arbitrator to determine which of those two interpretations is the correct one under the Loubet Award.”

In proof that it was thus agreed upon in truth and in conscience, I shall remind Your Excellency that when the Government of Panama agreed that the Chief Justice of the Supreme Court of the United States should decide as Arbitrator the correct interpretation of the award, the Department of State in Washington expressed to this Chancellery that the two terminal points of the Loubet line, Punta Mona and Punta Burica, would remain intact. It thus appears in the note of the 2d of February, 1910, addressed by Secretary Knox to the Minister from Panama92 in which he says: “This Government represents further, and suggests that, considering these facts, the terminal points of the Loubet Award should now be finally agreed to as accepted by both parties, namely, Punta Burica and Punta Mona.” The same declaration is contained in the cablegraphic instruction from Mr. Knox for the American Legation in Panama dated 1st of February, 1910, transmitted to this Chancellery by note of that Legation, no. 262 of the 5th [3d] of the same February.93

This statement was later corroborated in general terms by cablegram from the same Secretary Knox to the Secretary of Foreign Affairs of Panama, in which it is declared under date of the 12th of March of the same year, that the arbitral agreement celebrated between Panama and Costa Rica, thanks to the mediation of the United States, “sacrifices no right of Panama”.94

In spite of all these promises, solemnly made by one Government to another, the Arbitrator reconsidered the basis of the arbitral proceedings, rejected the line of the award as nonexistent, repudiated the two interpretative lines of the parties, substituted for Punta Mona—a point of departure which was solemnly binding—the mouth of the River Sixaola, and would have sacrificed the rights of Panama if this country had accepted his award.

Thus as concerns the attitude of the Chancellery of Panama and of our lawyers before the Arbitrator, no one ever admitted the remote possibility of an annulment of the Loubet Award, as seems to be understood by the Department of State in the despatch to which [Page 204] I refer. I refer Your Excellency to the memorandum which my colleague the Secretary of Government and Justice, now on Special Mission to the Government at Washington, placed in the hands of Ex-Secretary of State Colby a few days ago.95 In this document which has already seen the light of publicity in this capital, there are numerous transcriptions of the allegations of Panama before the Arbitrator which dissipate any belief or supposition in this respect.

My Government has only feelings of gratitude and appreciation for the Government of Your Excellency for the very suggestive and friendly declarations with which it has intervened to point out to this Government the advisability of respecting the White Award, and this Government is sure that a conscientious reconsideration of the circumstances, conditions, and facts which have been involved in this complicated affair, as well as the particular reasons which have determined the conduct of Panama, will as a result give most complete justification for our attitude and with it the presentation of new suggestions on the part of the Government of the United States concerning the best form of reaching a definite agreement with Costa Rica which would guarantee a lasting and sincere peace in the Central American Isthmus. Any other solution which leaves out of the case our rights of possession in the Pacific and does not consult the dictates of international equity, would be a seed bed of discord and conflicts which would confuse the situation instead of clarifying it and would nullify the humanitarian and civilizing intentions contained in the offer of good offices from Your Excellency’s Government.

Your Excellency is not ignorant of the fact that a recent consultation of the public opinion of this country, of the National Assembly, and of the Municipalities of the Republic, concerning the recommendation which the Government of the United States made to Panama to the effect that we should adopt the White Award as the basis of mediation in the recent conflict provoked by Costa Rica, resulted in an overwhelming confirmation of the precedent established in 1914. A resolution was unanimously adopted by more than 200 persons, representing all the social classes of the capital, who were present at a meeting called by the undersigned in the National Institute to sound their opinion on the subject; another resolution was adopted by unanimous vote of the national Legislative Assembly on the 10th of this month; the resolutions adopted by all the 62 municipal councils of the Republic and the opinion set forth without a single discordant note by the organs of the national press are clear demonstrations that the country stands as one man in disavowing the White Award. Under these conditions, no truly representative [Page 205] government in Panama would dare to adopt this decision as the basis of mediation in our differences with Costa Rica.

I attach to this note an official copy of the one which I addressed some time ago to the Government of Costa Rica in the form of a protest against the acts of violence of which we were recently the victims and which contain a summarized statement of the rights on our side.96 I trust that that note together with the explanations contained in this one may contribute toward dissipating the prejudices, obscurities and confusions which have accounted in large part for the fact that the Department of State of the United States has not seen clearly from the beginning the reasons and basis of the claims of Panama in its boundary dispute with Costa Rica.

The Government of Panama has relied always on the spirit of justice of the Great People of the United States, for which it feels the most profound admiration, and is sure that Your Excellency’s Government which is the genuine representative of this great and justice-loving people, may receive in considerate and benevolent manner the claims of Panama and will cease its efforts to recommend to her the acceptance of a decision upon which public opinion has already given its final word and which has passed among us into the category of things decided.

Sheltered under the aegis of international law which protects equally nations large and small, the Republic of Panama has refused to accept the decision of the eminent Chief Justice White with the same right, and almost for the same reasons, with which Your Excellency’s Government declined in 1831 to accept the decision of the King of the Netherlands in the boundary dispute between the United States and Great Britain.97 “The proceedings of the Arbitrator”, said the Minister of the United States to The Hague, on this occasion, “constitute an exceeding of his powers, because he abandons the limits of the agreement and substitutes for them a different line.”

This Government, desirous of cooperating in the laudable efforts which the Government of the United States is at this moment making to secure peace and justice in the Central American regions now disturbed as a result of this boundary controversy, permits itself to reiterate to Your Excellency the terms of my note S. P. No. 505, of the 2d of the present month,98 in which at the request of Your Excellency I confirmed the suggestion made by His Excellency the President of the Republic of Panama in one of the frequent interviews [Page 206] which we have been holding in the Presidential Palace in connection with the events in Coto. That suggestion, which earned from the first the high regard and the praises of Your Excellency, might serve, it seems to me, as an acceptable basis of agreement between the two countries. I am referring to a double plebiscite: one in the Pacific zone and one in the Atlantic zone, in order to decide definitely and forever to which of those two adjoining countries should belong the sovereignty and jurisdiction over the disputed zones. The nationals of both countries would freely indicate their desire of living under the sovereignty of Panama or Costa Rica, and the operation could be carried out by commissioners from both Governments with the mediation of the United States. The two plebiscites should be limited in the mentioned zones to the territory included between the line of the status quo and that of the Loubet Award, one de facto and the other de jure, and both accepted by the two contending Governments.

My Government hopes that the Department of State may receive this suggestion with favor. Consulting the wish of the inhabitants is a civilized and just method of putting an end to this class of conflicts and may well furnish honorable and durable bases for a satisfactory and definite arrangement between Panama and Costa Rica. It must be understood, however, that this final suggestion cannot be carried further than allowed by the constitutional authority which the Executive power of Panama has to negotiate international understandings ad referendum, that is to say, referring them to later consideration by the Legislative power. This notice becomes even more opportune when referring to our western frontier which was definitely fixed by article III of the national Constitution and whose alteration would imply an amendment of the Fundamental Charter.

In repeating here the suggestion for a plebiscite, the Government of Panama accedes in the best possible manner to the exhortation which Your Excellency was pleased to make in days past that between us we should devise plans and seek solutions susceptible of putting an honorable end to the question of boundaries that in these moments is cause for unrest for the interested Governments and for the mediating Government.

I should add before ending—and in this my Government most particularly insists—that nothing which has been said should under any circumstances be taken as lack of courtesy or appreciation for the eminent jurist who presides over the Supreme Court of the United States, to whose honorableness and accomplishments my Government renders the homage of its respect. Only the defense of the interests and rights of the Republic, as well as the inescapable duty [Page 207] which every government has of resisting injustice, have placed this Chancellery in the hard necessity of freeing itself from the conclusions of the Arbitrator, Mr. White, and of discussing the bases of his award.

I avail myself [etc.]

Narciso Garay
  1. Neither printed.
  2. Enclosure to reply not printed.
  3. See telegram no. 28, Mar. 15, to the Minister in Panama, p. 184.
  4. File translation revised.
  5. See telegram no. 28, Mar. 15, to the Minister in Panama, p. 184.
  6. Foreign Relations, 1904, p. 543.
  7. Foreign Relations, 1906, pt. 2, p. 1201.
  8. Ibid., 1910, p. 820.
  9. From article 4 of the boundary convention of Nov. 4, 1896, the purpose of which was to carry out the conventions concluded at San José, Costa Rica, Dec. 25, 1880, and at Paris, Jan. 20, 1886.
  10. See instruction no. 137, Dec. 1, 1908, to the Minister in Panama, Foreign Relations, 1910, p. 775.
  11. Ibid., p. 797; Mr. Wilson was serving as Acting Secretary of State during the temporary absence of the Secretary.
  12. Ibid., p. 798.
  13. Foreign Relations, 1914, p. 1014.
  14. Foreign Relations, 1910, p. 796.
  15. ibid., p. 798.
  16. Ibid., p. 804.
  17. Ibid., p. 806.
  18. See telegram of Mar. 12, 1910, to the Chargé in Panama, ibid., p. 814.
  19. Not printed.
  20. Enclosure not printed.
  21. See Hunter Miller (ed.), Treaties and Other International Acts of the United States, vol. 3, pp. 359 ff.
  22. Not printed.