Papers Relating to the Foreign Relations of the United States, 1921, Volume I

718.1915/438: Telegram

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

Washington , April 27, 1921—5 p.m.

38. You are instructed to obtain an audience with President Porras and to deliver to him the following note:⁹⁹

“The Government of the United States has received the note dated March 18, 1921,¹ sent by the Government of Panama to the American Legation on April 12, 1921, and received by the Department of State on April 21, 1921, referring to the note addressed by this Government to the Government of Panama on March 16, 1921.² The Government of the United States, before passing to the consideration of the questions raised in the note under acknowledgment, considers it would be lacking in candor and in true friendliness to the Republic of Panama if it did not express to the Panaman Government the surprise and regret which the contents of the note have caused it.

The Government of the United States believes that its views regarding the boundary dispute between Panama and Costa Rica, as well as its opinion as to the only just and equitable solution of that dispute, have been indicated with such clarity to the Panaman Government that an extended discussion of the contentions advanced by the Government of Panama should be unnecessary. As a further evidence however, of its friendly consideration for the Republic of Panama, which this Government has never failed to manifest, the Government of the United States desires to make the following statements at this time in order that there may be no room for doubt as to the reasons for the insistence of this Government that the Government of Panama comply with its international obligations.

The Government of Panama, in its references to the note addressed to it through the American Legation on March 16, appears to overlook the fact that the Government of Panama on March 4,³ had requested this Government to declare the manner in which it understood its obligations towards the Republic in the light of the first article of the Hay–Bunau Varilla Treaty. While the note above referred to contained suggestions as to the course which it was believed the Government of Panama should follow, which were offered by this Government as the friendly mediator in the dispute, the note also contained the expression of the views of this Government as the guarantor of the independence of Panama. This Government believes that it would be inadmissible to interpret its obligations to the Republic of Panama as embracing an obligation to support any claims for adjoining territory which might be advanced by the Government of Panama, no matter what the opinion of this Government might be as to the validity or justice of these claims and without the limitation obviously implied in the first article of the Hay–Bunau Varilla Treaty. The Government of the United States has already indicated to the Government of Panama what it understands its obligations to be, and must again state, in the most positive manner, that its duty to guarantee and maintain the independence of Panama requires it to inquire into the merits of any controversies relating to the boundaries of the Republic of Panama in order that it may satisfy itself as to the true extent of the territory of Panama and obliges it to assure itself that the Government of Panama faithfully performs its international obligations. The fact that the “rights of jurisdiction and territorial sovereignty of Panama”, as stated by the Government of Panama, emanate “from colonial titles, and from acts of possession, or from arbitral decisions”, so far as the Republic of Panama is vested with these rights of jurisdiction and territorial sovereignty, cannot be deemed as in any way entitling the Government of Panama to demand the occupation of territory which is not a part of the Republic of Panama and has been conclusively adjudged to belong to Costa Rica.

With respect to the finality of the Loubet award, as to that portion of the boundary line in the region of the Pacific from Punta Burica to a point beyond Cerro Pando on the Central Cordillera near the 9th degree of north latitude, this Government cannot now regard that line as being in question which the Republic of Panama has heretofore formally, by treaty, stated to be “clear and indisputable.”

As to the statement contained in the note of the Government of Panama that it does not accept as correct an attempt to separate the boundary question into two parts, it should be sufficient to point out that this separation was unequivocally recognized by the Porras–Anderson agreement between the Republic of Panama and the Republic of Costa Rica, when it was set forth that there was no question with respect to the portion of the boundary line in the region of the Pacific, as above described, while the other portion of the line was to be made the subject of arbitral award. Upon this point this Government believes it necessary only to repeat the words of the first paragraph of Article I of the Porras–Anderson Treaty of March 17, 1910, as follows:

“Art. I. The Republic of Costa Rica and the Republic of Panama, although they consider that the boundary between their respective territories designated by the arbitral award of his Excellency the President of the French Republic the 11th September, 1900, is clear and indisputable in the region of the Pacific from Punta Burica to a point beyond Cerro Pando on the Central Cordillera, near the 9th degree of north latitude, have not been able to reach an agreement in respect to the interpretation which ought to be given to the arbitral award as to the rest of the boundary line, and for the purpose of settling their said disagreements agree to submit to the decision of the Honorable the Chief Justice of the United States, who will determine, in the capacity of arbitrator, the question: What is the boundary between Costa Rica and Panama under and most in accordance with the correct interpretation and true intention of the award of the President of the French Republic made the 11th September, 1900?”

“In order to decide this the arbitrator will take into account all the facts, circumstances, and considerations which may have a bearing upon the case, as well as the limitation of the Loubet Award expressed in the letter of his Excellency M. Delcassé, Minister of Foreign Relations of France, to his Excellency Señor Peralta, Minister of Costa Rica in Paris, of the 23rd November, 1900, that this boundary line must be drawn within the confines of the territory in dispute as determined by the Convention of Paris between the Republic of Costa Rica and the Republic of Colombia of the 20th January, 1886.”

Moreover, the fact that the boundary line on the Pacific side could no longer be the subject of dispute was specifically set forth in the communication from the Legation of Panama at Washington to the Secretary of State of the United States under date of October 20, 1914,⁴ in which it was stated:

“By the terms of the convention the line of the Loubet award was recognized as binding upon the parties. As to about one-half of that line (from Punta Burica to a point beyond Cerro Pando) it was expressly stated that no question whatever existed, and that portion of the boundary is in no way involved in the present arbitration.”

The contentions which have been heretofore advanced by the Government of Panama, and are reiterated in the note under consideration, with respect to the award of the Chief Justice of the United States as to the boundary line on the Atlantic side, cannot be deemed by this Government to affect in any manner the finality of the Loubet award with respect to the boundary line upon the Pacific side, and that territory which was adjudged to be a portion of the territory of the Republic of Costa Rica by a boundary line which the Republic of Panama formally declared “clear and indisputable still remains”, in the opinion of this Government, the territory of Costa Rica, and is to be respected as such. This Government must point out that no argumentation can change the fact that this territory belongs to the Republic of Costa Rica and that the Republic of Costa Rica is entitled to have its jurisdiction set up and maintained therein by orderly processes. There appears to this Government to be no foundation for the claim that the Government of Panama is entitled to retain territory on the Pacific side which confessedly does not belong to Panama because the Government of Panama is not satisfied with the award of the Chief Justice of the United States as to other territory on the Atlantic side.

Nor is this Government able to find any valid ground for objection to the award of the Chief Justice of the United States with respect to the latter territory. The Government of the United States has given careful consideration to the documents to which the Government of Panama referred in its note under acknowledgment bearing upon the jurisdiction of the arbitrator. This Government has not been able to find in these documents any justification for the assertion that the interpretations of the Loubet award on the Atlantic side advanced by the Governments of Panama and Costa Rica defined the scope of the new arbitration. On the contrary, it seems to this Government to be entirely clear that the powers and jurisdiction of the arbitrator cannot be thus limited. Provision is made for the powers and jurisdiction of the arbitrator in terms which cannot be questioned in Article I of the Porras–Anderson Treaty already quoted. In that Article, the two parties definitely agree to submit to the arbitrator the determination of the question: “What is the boundary between Costa Rica and Panama under and most in accordance with the correct interpretation and true intention of the award of the President of the French Republic made the 11th September, 1900?”, and this question the arbitrator determined. The two Governments agreed in Article VII of the same Treaty that the “award, whatever it be, shall be held as a perfect and compulsory treaty between the High Contracting Parties”, and both parties bound themselves “to the faithful execution of the award and waive all claims against it.” When the Chief Justice of the United States, after exhaustive review of the contentions advanced by the two Governments, determined that the boundary between the two countries as defined in his award was the one “most in accordance with the correct interpretation and true intention” of the former award, the arbitrator decided the precise question which the submission had invested him with jurisdiction to decide, and the two parties to the dispute were, by their most solemn engagement, bound to accept his determination accordingly.

In the opinion of this Government, it would be impossible to ignore the effect of this decision upon the ground that the Chief Justice of the United States should have recognized some other line than the one which he found to be most in accord with the true intention of the prior award, or that he should have given weight to claims which, in the exercise of his undoubted jurisdiction, he determined were without foundation.

This Government must again direct attention to the fact that not only did the Chief Justice of the United States determine explicitly what he was authorized to determine, but that in the process of determination he was most careful to observe the directions set forth in Article I of the Porras–Anderson Treaty. In the second paragraph of this Article, as above quoted, it was provided that the arbitrator was to take into account the limitation of the Loubet award expressed in the letter of His Excellency, M. Delcassé, of the 23rd of November 1900, that this boundary line “must be drawn within the confines of the territory in dispute as determined by the Convention of Paris between the Republic of Costa Rica and the Republic of Colombia of the 20th January, 1886”. It would seem to be obvious that in the discharge of his duty it was incumbent upon the arbitrator to decide what were the confines of the territory in dispute, as determined by the Convention to which reference is made, in order that he might comply with the terms of the submission as to the drawing of the boundary line within these confines. Mindful of this obligation, the arbitrator did consider and determine, as he undoubtedly had jurisdiction and duty to consider and determine, what were the confines of the territory in dispute, and this Government finds no basis whatever for the suggestion that having determined this preliminary fact, the arbitrator was without authority to draw the boundary line accordingly. On the contrary, having made the determination as to the extent of the territory in dispute, he was bound by the explicit provisions of the submission to draw the boundary line within that territory.

The Government of the United States is unable to find any warrant for the contention of the Government of Panama that if any part of the line fixed by President Loubet did, in fact, lie outside the limits of the territory in dispute as fixed by the Convention of 1886, it was then the duty of the arbitrator to go no further, that is, to make no award. That would have been in direct antagonism to the terms of the submission and it was in that event the duty of the arbitrator to draw, within the territory in dispute, the line which, under this limitation, he deemed to be most in accord with the true intention and correct interpretation of the former award. This duty was recognized by the Republic of Panama in its statement submitted to the arbitrator which contains the following:

“But, if any part of the line fixed by President Loubet did, in fact, lie outside the limits fixed by the Convention of 1886, that part would require modification and it would be necessary for the present arbitrator to substitute for it such line as he should determine to be ‘most in accordance with’ what he should find to be the ‘true intention’ of the award.”

The Government of the United States is therefore unable to find any force in the contention now made by the Government of Panama in reiteration of the claims that it has made since the award, that the arbitrator by drawing this substitute line exceeded his powers and jurisdiction.

From every point of view, therefore, when the Chief Justice of the United States as arbitrator fixed the boundary line on the Atlantic side as starting at the mouth of the Sixaola River and thence running as described to the point near the 9th degree of north latitude beyond Cerro Pando on the Central Cordillera, he acted in exact compliance with the obligation imposed upon him by the acceptance of the submission. The Republic of Panama and the Republic of Costa Rica are, therefore, bound by his arbitral award which they have promised to accept as final.

The Government of the United States has taken note of the statement of the Government of Panama referring to the expressions of public opinion in the Republic of Panama, which it states evidence the unanimity of the people of Panama against the recognition of the White award. The Government of the United States has learned of these expressions with deep regret. It feels confident, appreciating as it does, the love of right and justice which has always animated them, that the people of Panama will recognize the obligation of their Government to comply with the terms of the solemn agreements into which it has entered, a compliance which will afford the only permanent settlement of the boundary dispute between the Republics of Panama and Costa Rica.

In the light of the obligation of the Government of Panama, under Article VII of the Porras–Anderson Treaty, requiring that Government faithfully to execute the award and to waive all claims against it, and to consider the award as a perfect and compulsory Treaty between the Governments of Panama and Costa Rica, the Government of the United States cannot consider the suggestion made by the Government of Panama that a plebiscite be held in the territory in dispute as a means of reaching a final settlement of the controversy. For the same reason, and also because of the obligations of this Government towards the Republic of Panama, the Government of the United States cannot consider offering any suggestions to the Government of Panama other than the recommendations contained in the note of March 16. This Government is glad to receive from the Government of Panama the expression of its appreciation of the friendly purposes of this Government and of its confidence in the spirit of justice animating the people of the United States. It is precisely because of its friendship for the Republic of Panama, as well as because of its desire to assure itself that the peace of Central America is maintained on a stable basis guaranteed by the scrupulous observance of international obligations, that the Government of the United States feels compelled to state that it expects the Government of Panama to take steps promptly to transfer the exercise of jurisdiction from the territory awarded to Costa Rica by the Loubet award, at present occupied by the civil authorities of the Government of Panama, in an orderly manner, to the Government of Costa Rica, Unless such steps are taken within a reasonable time, the Government of the United States will find itself compelled to proceed in the manner which may be requisite in order that it may assure itself that the exercise of jurisdiction is appropriately transferred and that the boundary line on the Pacific side, as defined in the Loubet award, and on the Atlantic side, as determined by the award of the Chief Justice of the United States, is physically laid down in the manner provided in Articles II and VII of the Porra–Anderson Treaty.

It is with the utmost regret that the Government of the United States feels itself obliged to communicate to the Government of Panama this determination which it has reached after the most careful and friendly deliberation. Its decision has been arrived at because of the special interest of this Government in the Republic of Panama and because of its belief that only by compliance with the reasonable expectations of the Government of the United States in this matter can the welfare of Panama be promoted and its friendly relations with the neighboring Republics of America be assured.”

When the President has ascertained the contents of the note, you should inform him that the Government of Panama may interpret the phrase the “reasonable time” in which the Government of Panama may of its own accord take the steps suggested by this Government before the United States will feel compelled itself to take action to see that its recommendations are carried out, as a period of 60 days from the date of the receipt of this note by President Porras. You may advise the President further that this Government, with the desire to make the compliance by the Government of Panama with its recommendations as easy as possible, will not make this fact public at the present time.

Cable Department as soon as you have delivered the note to the President in order that publication thereof may be made here.

Hughes

99. In a telegram dated Apr. 29, the Department instructed the Minister in Panama to postpone delivery of the note until May 2.
1. Ante, p. 190.
2. See telegram no. 28, Mar. 15, to the Minister in Panama, p. 184.
3. See telegram no. 52, Mar. 4, from the Minister in Panama, p. 180.
4. Foreign Relations, 1914, p. 994.