I shall be thankful to Your Excellency if you will kindly cause to be
delivered to the Honorable Mr. Taft the enclosed original and
translation of which I take the liberty to enclose copies for Your
Excellency’s information.
[Enclosure—Translation]
The Panaman Minister of Foreign Affairs on
Special Mission (Garay) to the Chief Justice of the United States Supreme
Court (Taft)
Washington, August 8, 1921.
Your Honor: I have been advised that
Your Honor has been requested by the Republic of Costa Rica to
appoint two commissioners who shall delimitate and mark by
appropriate monuments the line which the Honorable E. D. White
defined in the Award rendered September 12, 1914 in his capacity
as Arbiter conferred upon him by the Republics of Panama and
Costa Rica through the Arbitral Compromise of March 17, 1910 and
through the joint request addressed to him by the
Plenipotentiaries of both countries on the 10th of July of the
same year.12
Costa Rica bases its request to Your Honor on the text of
articles II and VII of the aforementioned Compromise, which read
as follows:
“Article II.—If the case shall arise for making a survey
of the territory, either because the Arbiter shall deem
it advisable or because either of the High Contracting
Parties shall ask for a survey (in either of which cases
it shall be made), it shall be conducted in the manner
which the Arbiter shall determine upon, and by a
commission of four engineers, one of them shall be named
by the President of Costa Rica, a second by the
President of Panama, and the two others by the Arbiter.
The persons selected by the Arbiter shall be civil
engineers in private practice, in every respect
independent and impartial, and without personal interest
of any kind as respects either Costa Rica or Panama, and
not citizens or residents of either of said
countries.
“Said Commission shall make detailed reports, with maps
of the territory covered by their survey or surveys,
which reports and maps, with the data relating thereto,
shall be returned to the Arbiter and copies thereof
shall be communicated to the High Contracting
Parties.”
“Article VII.—The award, whatever it be, shall be held as
a perfect and compulsory Treaty between the High
Contracting Parties. Both High Contracting Parties bind
themselves to the faithful execution of the Award and
waive all claims against it.
[Page 222]
“The boundary line between the two Republics as finally
fixed by the Arbiter shall be deemed the true line, and
his determination of the same shall be final, conclusive
and without appeal.
“Whereupon a Commission of Delimitation shall be
constituted in the same manner as provided in Article II
with respect to the Commission of Survey, and shall
immediately thereafter proceed to mark and delimitate
the boundary line, permanently, in accordance with such
decision of the Arbiter. Such Commission of Delimitation
shall act under the direction of the Arbiter, who shall
settle and determine any dispute as to the
same.”
I have the honor to call Your Honor’s attention to the fact that
shortly after the late Chief Justice White rendered his Arbitral
Award, the Republic of Panama fulfilled the unpleasant duty of
informing the Chief Justice in a note signed by the Minister
Plenipotentiary of the Republic of Panama in Washington,13 that his Award was null and void
because he exceeded his powers, that it was not efficacious
juridically to end the controversy, and that Panama did not
consider itself bound to abide by the Award. Similar
communications were sent at the same time to the Government of
Costa Rica and to the Government of the United States.
Seven years have passed since and the nullity claimed by the
Republic of Panama against the White Award has not been decided
upon by any impartial tribunal in accordance with the precedents
established by International Law.
The Award having been rejected by Panama because the Arbiter who
rendered it had exceeded his powers, the Arbitral Compromise
that gave life to it, likewise ceased to exist, and Panama fails
to see how that Compromise can be revived to-day and be made to
produce juridical effects to the detriment of Panama.
The appointment of Commissioners to execute an arbitral award
which Panama has rejected in the use of its rights as an
independent and sovereign nation would be a direct attack on its
sovereignty and independence, an act to which Your Honor
assuredly will not be a party.
Also, the above quoted Articles of the Arbitral Compromise of
1910 can in no case be applied to-day since Article II has
already been carried out when Arbiter White appointed the
Commission of Surveys which surveyed the territory in dispute,
discovered the spur of the Cordillera, marked the summits which
constitute the watershed, and defined without a trace of doubt
the true line of the Loubet Award, and delivered the respective
maps and reports. With regards to Article VII it provides for
the immediate execution of the Award in case it was unreservedly
accepted by both parts [parties]; but
after seven years of constant protests and resistance on the
part [Page 223] of Panama, those
dispositions cannot be invoked to enforce on Panama an award
against which it has presented from the start legal objections
of great weight which have not been as yet considered or
resolved by due process of law.
In protesting, as I am now doing, on behalf of my Government,
against the improper request which the Republic of Costa Rica
has made Your Honor, allow me to bring before your attention
with all the respect due Your Honor the fact that this note of
protest, and the considerations stated therein, do not signify
that Panama becomes a party to the litigation which Costa Rica
seems to wish to lay before Your Honor; nor do they signify that
Panama recognizes the jurisdiction of the Tribunal if any such
had been constituted.
Please accept [etc.]
