Costa Rica-Panama arbitration. Report submitted to the representatives of Costa Rica

Index

OP THE

CHAPTERS.

I. THE REPORT OF THE GEOLOGIST 5

H. THE REPORT OF THE COMMISSION 13

(i) The Lower Sixaola.

(2) The Lower Sixaola (continuation).

(3) Tracing of the eine that ceoses the

Valeey of the Sixaoea upon the north.

(4) The Upper Teeiri.

III. SOME EXPLANATIONS AS TO THE TRACING

OF THE LINE THAT CLOSES THE VALLEY OF THE SIXAOLA UPON THE NORTH 57

IV. ANSWERS TO QUESTIONS PROPOSED BY

COSTA RICA AND PANAMA TO THE COM= MISSION OF ENCifNE^RS IN THE ORDER IN WHICH THE COMMISSION SUBMITTED THEM FOR THE EXAMINATION OF THE ASSISTANT=ENGINEERS IN THE FIELD 64

V. THE STARTING POINT, UPON THE MAPS OF THE COMMISSION, OF THE SUPPOSED DIVIDE, MARKED WITH TWO BLACK, CONTINUOUS AND PARALLEL LINES 84

VI. THE BASES OF SOME POINTS DISCUSSED

IN THE PRECEDING CHAPTER 99

VII. THE LONGITUDINAL PROFILE SUBMITTED

BY THE COMMISSION 120

VIII. NEW PROOFS 123

IX. THE DIVIDE BETWEEN THE WATER=

SHEDS OF THE TWO OCEANS 134

Chapter I. The Report Of The Geologist

1. If the Report of the Commission of Engineers be examined with some care, especially in its declarative portion, it will be observed that it is based upon the opinions of the Geologist.^

2. Before analyzing this document it is indispensable to determine precisely the limits of the territory personally explored and traversed by the Geologist, for the purpose of ascertaining what facts must be admitted as authentic, as being data gathered upon the ground, and at the same time excluding every item of information or fact in that report lying outside the boundaries of his personal inspection, for the reason that it was not obtained directly upon the ground but by reports, comparisons and unverified hypotheses.

3. The Geologist has exactly fixed those boundaries which we are now about to consider.

On page 8 he says : "The territory personally examined geologically * * * is contained between north latitude 9° 35' and 9° 38' and west longitude 82° 38' and 82° 60'."

As we shall see further on (Chap. IV; O. XIV, a), these boundaries exclude at once the territory from the mouth of the Sixaola, 82° 34' 50" west of Greenwich to a halfmile to the west of Punta Mona, meridian 82° 38' west, or a distance of 5,852 meters.

^Report of Commission, p. 43.

On the other hand, he says: " Unfortunately the writer did not have time to thoroughly examine this upper valley except to make a hasty visit to the lower end of it."^

This statement confines his personal inspection strictly to a hasty visit to the extreme lower end of the upper valley of the Sixaola ; and on page 45 he indicates the separation of the two valleys into an upper part and a lower part and places the boundary between them at Piedra Grande, by saying "* * * that the division between these two parts is in the vicinity of Piedra Grande."" If the map presented by him is consulted it will be found that Piedra Grande is situated at 82° 52' 30" west of Greenwich and 9° 36' north latitude; from which it may be inferred that his personal inspection did not reach finally to the meridian of 82° 60' as it is literally stated, but only as far as 82° 52' 30" west of Greenwich, or, that is to say, over a territory embraced between 82° 38' and 82° 52' 30".

4. The Geologist excludes as a matter of fact all personal investigation in the region of Punta Mona, and within the whole of the territory which extends from Piedra Grande to the meridian of 83° 30'; that is to say, that his reconnaissance, which should have included the territory between the meridians of 82° 34' 50" and 83° 30', or a distance of fifty-five geographical miles, covered only the territory between the meridians of 82° 38' and 82° 52' 30", or fourteen and a half miles, and hardly three miles in latitude.

5. The accompanying map, Plate No. I, shows the territory explored by the Geologist between the boundaries that he himself fixed.

^ Report of the Geologist, top of p. 46. -Report of the Geologist, sec. 4, p. 45.

6. It was important that this matter be settled at the outset in order to find an explanation for the various anomalies observable in the report.

7. For the purposes of its consideration it will be convenient to divide that paper into three parts:

The first is occupied mainly with historical generalities of geology.

The second is devoted to the theory which has recently been prevalent as to the prehistoric formation of such ground.

The third is the practical portion, applied to the description of the territory.

8. The first two parts do not affect the question. It may even be conceded that the hypothetical submergence at some prehistoric date may have really taken place, but that does not prevent the present situation from being a different one.

9. For that reason everything that relates to the first two parts is excluded from the discussion in this paper in order to take up the third, or the conclusions and facts stated by the Geologist, but always within the boundaries he himself fixed as coming under his personal observation.

10. A simple inspection of the small area explored by the Geologist, marked byarectangle in the accompanying map, Plate No. I, will be sufficient to show that it is not possible nor logical to accept any of the general principles that he lays down for the whole of the vast region that is to be considered. Geology is a science based upon observation and not upon deduction, and it is impossible to lay down rules covering a given region when only a small portion of it has been studied.

11. Hence it comes that the opinions of the Geologist in respect to the valleys of the tributaries of the Sixaola, or as to any other point outside of the limits fixed, cannot be taken into consideration.

12. In this same lower part of the Sixaola, the Geologist, doubtless without looking at the maps, either those prepared by the Commission or the one submitted by himself and, furthermore, without having been there, emphatically states : ^

"* * * the upbuilding of these natural levees, coupled with the 2.3 meters rise of the land, both brought about in late Pleistocene time, certainly some hundreds and possibly some thousands of years ago, have caused some of the former branches of the Sixaola River, such as Gadokan Creek, to approximately parallel the main stream and flow out into the ocean instead of into the Sixaola where it certainly formerly emptied * * *."

and on the same page, 24, farther down he says:

"In prehistoric times, then, practically all of the creeks, including Gadokan and those northeast of it which now flow into the ocean, were tributaries of the Sixaola."

13. On the contrary, the maps and reports declare that the sources of the Gadokan lie very far to the westward of the Sixaola; the Chief Engineer of Party A, Mr. Weakland, says (I^a Palma, May 19, 1912):

"We have established the fact that Gadokan Creek has no connection with the Sixaola and that it heads more to the west than shown on any map we have."^

^Appendix No. 2, p. 24. ^Appendix No. 3, p. 2.

14- The Commission, then, at the same time accepted the parallehsm of the Gadokan and the Sixaola, as laid down by the Geologist, and the net divergence of the same, estabhshed by the Engineer of Party A, who visited personally and drew the course of the Gadokan.

The conclusions of the Commission reveal the fact that it was influenced by the opinion of the Geologist, who had not been upon the ground, and disregarded that of its own Engineer at the head of Party A.

15. The citation of these contradictions might be continued at great length, but a few of the more important will be sufficient.

On page 15, section D, the Geologist says:

"The percentage of run-off during the wet season is very large, because the rain falls much more rapidly than it can be absorbed by the ground, hence must run off."

And ten pages further on (p. 25) he says:

"Many of the swamp areas are passable in the dry season, which may have one to three meters of water over them after heavy rains."

16. The Geologist neglected to consider the evaporation, which is very great in that region, by reason of the high temperature that he himself noted there, ^ but as he also makes the assertion (p. 14) that the maximum rainfall in one year (1910) hardly reached 149 inches, or say 3.75 meters, we would have to suppose that the run-off, percolation, etc., be considered as null, together with a dam three

1 Report of the Geologist, pp. 12 and 13.

meters high, keeping the waters permanently at that height. But it should also be noted that the 149 inches mentioned was the amount of rainfall for the entire year and not merely one heavy rain, as the Geologist intimates.

17. Summarizing the Report of the Geologist, it should be said that notwithstanding the anomalies thus far pointed out, he did state various actual and authentic facts in regard to that region. It is true that if he did state these facts, he did it with a view of applying his theories and hypotheses to them for the purpose of impeaching or denying their effect, and it has been necessary to divest them of the appearance they had, for recognition.

18. A few instances, among others that could be selected are as follows :

First. The Geologist lays it down, for example, that Punta Mona is found to be isolated from the rest of the main land by vSwamp A lying between, but as he applies the theory of ''low saddles," the result is that it is joined to the mainland.

Second. He says that Gadokan and other small streams discharge their waters directly into the ocean, but he subjects them to the submergence hypothesis and makes them in fact tributaries of the vSixaola.

Third. He alleges that the rocks of the Caribbean Coast are formed by coral growths, but insists upon reiterating the theory of a submergence, converting Punta Mona, which lies upon the Caribbean shores, into a homogeneous and integral part of the Main Cordillera, etc

19- If each of the above declarations is divested of the hypothesis by which it is impeached, then each one of them stands out as true and authentic by itself ; thus :

1. It is a fact that Punta Mona is separated from the mainland by Swamp A.

2. It is a fact that Gadokan, Middle Creek, Punta Mona Creek, Manzanillo Creek, Taiodi, Codes and other small streams do discharge their waters directly into the ocean and take their rise upon a basin that is distinct from that of the Sixaola.

3. It is a fact that the rocks forming Punta Mona are those usual upon the Caribbean Coast (the Antillita of Gabb), coral, and sedimentary formations that have no relation to the basic or crystalline rocks of the Main Cordillera.

20. In the course of this paper each one of the points of the Report of the Geologist that ought to be discussed will be examined. But, as will be seen at the proper place, the meteorological data submitted by the Geologist, from observations continued over a period of six years, were not used by him nor by the Commission for the purpose of seeing whether his assertions were or were not well founded. If such data had been considered, the hypotheses of the Commission would have in great part broken down, giving way to the real facts, proved by these very data.

21. The sole purpose of the examination that is now taken up, is to bring out the truth, using solely and exclusively the data and facts furnished by the reports under discussion.

22. It would have been possible to have had recourse besides to other sources and to other means in order to establish the truth, but it was not necessary, and circumstances demanded a strict restriction to the data mentioned as being all that now may be considered to have a full legal status.

23. Thus stated, the foregoing chapter is the preamble to the examination that follows.

CHAPTER 11.

THE REPORT OF THE COMMISSION.

(i) The Lower Sixaola.

1. This document contains 65 pages, of which 35 are devoted to administrative matters of the Commission and the remainder contain a description of the investigations made. The maps submitted are more expHcit than the descriptions, but taking the maps and the report together the subject is so presented that by reference thereto it is very easy to answer the questions asked by the two contracting countries.

2. The matters included by the Commission in the appendices to the General Report, being the special reports of the heads of the technical sections in the localities examined, and which it embodied and embraced by its signature, are in the highest degree instructive, since the facts observed personally and individually are thus established and cannot be controverted.

3. It does not seem as if the Commission gave to these reports the importance which they really have, inasmuch as the conclusions reached by it are not based upon them. It is observed that in some cases the Commission, in communicating them, suppressed some phrases or ideas, but fortunately there exist and are to be found in the communicated documents, texts of the greatest value for clearing up and solving the problems submitted, the sole object of the work of the Commission.

4. The detailed statement of verified facts, made by the chief of Party A, in charge of the surveys and topography of the region embraced between Guabito and

Manzanillo, which appears in Appendix No. 3, is especiallyimportant in this matter; in the first place, because the Commission embodied and transmitted it; and second, because they are facts observed and deduced by the writer in situ, and communicated by him to the Commission, not as the final result of his work in that region, not as a conclusion, but as evident and actually observed facts, discussed and verified while engaged in the course of his investigations and not conceived upon the termination thereof.

5. The Commission while sitting, not in its headquarters at Sanchez, nor at Punta Mona, nor even at San Jose, where it had its central office, but at Evanston, ana doubtless when it had finished in the latter place the drawing of the maps, located thereon a line that it felt authorized to call: "lyine of a hypothetical divide arbitrarily drawn." That line does not exist.

6. According to the regulations for its internal operation, prepared by the Commission and approved at its Session, No. 17, of January 19, 1912,^ the various chiefs of parties were required to draw out in the form and manner provided all the field notes taken during the previous three days in the course of their surveys.^ That provision, as may be seen by the special reports of the four different chiefs of parties, was always complied with by them, and, referring to only one instance, among the many that could be cited, it appears that the chief of Party A reported^ that he had personally verified the fact that no connection whatever existed between the

'Appendix No. i, p. 102.

-Rule 18 of General Instructions: Appendix No. i, p. no.

^Appendix No. 3 to the General Report.

course of Gadokan Creek, throughout its entire length, and that of the River Sixaola.

7. It Hkewise appears that this same section chief arrived some days later at Punta Mona, but there is nothing to be found in his report showing that he met with any connection between that point and the interior of the region. If he had found any he would have reported it, as he did in the case of the low ridge of Gadokan, between this creek and the river; but on the contrary what he did report was, as shown by the maps and documents, marshy and low-lying lands, and the great swamp between Middle Creek and Manzanillo which extends over the whole south of Punta Mona.

8. This is the reason why it is mentioned here that it was at Evanston, and not at the places on the ground where the work was done, that the line traced was called the "Line of a hypothetical divide arbitrarily drawn."

9. The very name given to it by the Commission definitely excludes it from all argument, and if it were not that its creation might be detrimental to the interests of Costa Rica, the designation thus applied to it would be enough to cause it to be disregarded. We feel, therefore, compelled to discuss the basis of this line assumed by the Commission, which was also the supposed frontier that the French Arbitrator conceived.

10. In calling it "arbitrary," and "hypothetical," the Commission confirmed the fact that it was their imaginary creation, just as the spur that started out from Punta Mona was also an arbitrary and hypothetical creation.

1 1 . If the supposition advanced in the French Arbitral Award in this respect had never existed, there would have been no room for the present discussions, and that arbitrary line would never have been imagined, at least in the place where it is now located. Such a supposition may to a certain extent have been justified in the mind of the President of France when he drew up the Award of 1900, on account of the little or almost entire lack of knowledge then had of that littoral, but now, after the careful investigation and maps prepared by the Commission appointed by the Honorable Arbitrator and the contending countries, there is no ground for such a supposition, it not being, as the Commission asserts, "hypothetical" or "arbitrary," but simply replacing the line that the President of France thought existed. As to this, the General Report, the maps and the details submitted by the Commission, could not be more eloquent or decisive, for they clearly and definitively show that the line supposed by the Arbitral Award to exist was a "hypothetical and arbitrary line."

12. The best explanation regarding this and covering this point was furnished by the commissioner Mr. Hodgdon, in his special report, where he speaks of establishing the fact that the little streams of Gadokan, Middle Creek, Manzanillo and others, discharge their waters "directly into the Ocean," and without any connection with the Sixaola or with its valley.'

Having set forth this preamble, let the facts now be examined.

13. Plan No. 2, Sheet No. 2: "A map of the eastern portion of the region covered by surveys in 191 2," upon a scale of 1:10,000, definitely marks a line separating throughout its entire extension the basins of the vSixaola and of the Gadokan. This line begins upon the map exactly on the meridian of 82° 40' and at 9° 35' 20" north latitude, and it ends upon the Atlantic Coast to the west

'vSupplemental Report of Mr. Hodgdon, p. 5.

of the outlet of the vSixaola at 82° 34' 39" west of Greenwich, and 9° 35' north latitude. This line, from its starting point upon this map, follows a ridge, the contours of which indicate an elevation of about fifty meters, to the parallel of 9° 34', at longitude 82° 39' 20" west; where no contours nor details of elevation appear upon the plan, but the course of the Gadokan is indicated and the ridge continues until it terminates at the coast.

14. Sheet No. i of the same map shows the continuation of the ridge indicated upon Sheet No. 2, and upon the same scale 1:10,000, from a point designated 82° 40' west, and 9° 35' 20" north latitude, in a northerly course and almost upon the meridian 82° 40' west to the parallel 9° 35' 25" north, where the ridge takes a direction toward the northwest. Upon this course the ridge runs until it reaches the parallel of 9° 36', at a point the longitude of which is 82° 40' 45" west, and the elevation of which is marked upon the map at a height of 100 meters. From this point the direction of the ridge continues to the northwest at elevations between 50 and 100 meters; but another divide also appears starting out from that same point, taking a course nearly north, over hilltops, the elevation of which is not greater than 50 meters, and with depressions as low as about 10 meters above sea level, as may be seen by referring to the point where this new divide crosses the intersection of longitude 82° 49' 39" west, with the parallel of 9° 36' 30" north latitude,^ and which is distant one kilometer from the

^The writer of this report takes this method in all cases to indicate the point to which allusion is made and thus avoids making any sign, mark or annotation that might in any way disfigure the original map of the Commission, which is thus left intact.

starting point taken. From this depression the line rises again to the extremity of the ridge, the next level curve being 150 meters, and it reaches a height of 193 meters at Station A-1239. This culminating point is only distant 830 meters from another situated to the northwest, the elevation of which is 169 meters, marked upon the map as Station A-1261, and distant from the coast, in a straight line toward the sea in a northerly direction, only 1,760 meters; but this point upon the coast, as may be seen by a' reference to the map, lies 6,000 meters to the west from Punta Mona; that is to say, still further west than Manzanillo.

15. This other divide which we left at Station A-1239, and which began at the point before cited, 82° 40' 45" and 9° 36' north latitude, is indicated upon the maps by a double continuous black line, and the Commission designate it: "Divide which is the north limit of the area which drains into the Atlantic further south than Punta Mona," in order to expressly and deliberately distinguish it from the divide that is marked by a single continuous black line, and which is entitled: "Divide which is the north limit of the drainage area of the Sixaola River;" and to differentiate it yet more clearly and precisely from the divide marked with a double line of black dashes, and which is called: "Line of a hypothetical divide arbitrarily drawn across Swamp A."

16. This other divide, we repeat, instead of continuing in the direction which has been described and which to a certain degree seems the most logical, inasmuch as it runs along higher elevations, and is consequently better visible and more certain, to the point already mentioned at the height of 169 meters, at Station A-1261, which is distant from the coast only 1,760 meters, although the Commission has indicated it as a "divide" differing from the one that bounds upon the north the Valley of the Sixaola, is continued by the Commission, not forward but rather backward and carrying it to the east, some distance still further to the south, until it reaches, after running a distance of 2,500 meters, a point yet lower than the one just indicated (169 meters), since it only has a height of 90 meters and is situated at 82° 39' west longitude and 9° 36' 4.0" north latitude, or more exactly at 82° 38' 57" west longitude and 9° 36' 43" north latitude, whilst the point A-1261 at the height of 169 meters, distant from A- 1239 only 830 meters, is situated at 82° 40' 34" west longitude and 9° 37' 26" north latitude.

17. From the point having an elevation of 90 meters, the line descends, running toward the north, to the parallel of 9° 37', at longitude 82° 38' 54" west, where it is on the edge of the marsh ; thence in a northeast direction it traverses the entire marsh to the parallel of 9° 38' at longitude 82° 38' 06", where a little hill rises that ends in Punta Mona, and there also the divide that is being traced terminates.

18. The separation of this divide, which, according to the maps, is hypothetical and arbitrary, not only across Swamp A, but also after it leaves vStation A- 1239, is very logical, and the comparison that is made between the hypothetical tracing marked upon the maps and the more accurate one shown by these very same maps, along greater elevations and nearer to the coast, was simply with the purpose of confirming the appellation given to that divide, as a "hypothetical and arbitrary line."

19. So that, among all the numerous facts and data furnished by the report of the Commission of Engineers in justification of the rights claimed by Costa Rica, there is none better, clearer or more convincing than the one shown by the maps at the precise point being analysed in this report.

20. In fact, plan No. 2, sheet No. 2, ends toward the north at the point we have noted as the "divide," at the intersection of 82° 40' west longitude and 9° 35' 20" north latitude. From this point onward map No. 2, sheet No. i, shows the continuation of said actual divide from the basin of the vSixaola upon the north. This divide runs thence upon the same meridian of 82° 40' to the parallel of 9° 35' 25", where the divide bends toward the northwest and on this course is found the point at the intersection of 82^^ 40' 46" and 9° 36', where the other divide starts that is distinguished by the Commission as the ridge that bounds upon the north the drainage area that is "further south than Punta Mona," and which, as has been seen, is hypothetical and arbitrary. The result is, therefore, that looking at the maps, there are to be seen at the same time and to a certain extent parallel, two divides; the first one close to the bed of the Sixaola, being the real and actual one that limits the basin of this river upon the north; whilst the second one, beginning at the point mentioned, proceeds by a very long and winding course, hypothetical and arbitrary, toward Punta Mona. That is to say, there are two divides of the Sixaola Valley upon the north, on the same side of that stream ; one of them cutting the meridian of 82° 40' at the parallel of 9° 35' 24", and the other cutting the same meridian of 82° 40' at the parallel of 9° 37' 04'', the distance between them being 3,000 meters.

21. This undeniable fact, unanimously stated and subscribed to by the entire Commission of Engineers, brings into clearer relief than others that might be cited the fact that, even supposing and conceding that the hypothetical divide of the Commission did exist, there exists at the same time another real divide, which, closer to the course of the Sixaola, closes the basin of this river before the former one ; but this real divide does not enjoy the privilege of terminating at nor does it run to Punta Mona, for it ends just to the west of the outlet of the Sixaola into the ♦ocean.

22. The Commissioner, Mr. Hodgdon, in his supplemental report, had the honor of corroborating this fundamental fact, while establishing those that were derived therefrom; that is, that various creeks, including the Gadokan and others farther to the west of Manzanillo, empty their waters directly into the ocean, without any connection with the Sixaola^

23. The fact could not be otherwise, for it is shown by the documents presented by the Commission, the report or reports of the Engineer of Section A, that he personally examined this portion of the territory, and he says, among other things:"^ "We have established the fact that the Gadokan Creek has no connection with the Sixaola and that it heads more to the west than shown on any map we have;" and he reiterates it when he says:'* "I walked over the ground between the Creek Gadokan and the Sixaola and satisfied myself that there is no connection between them."

24. Evidence of all these statements will be found recorded upon the maps, where the divide shown by a continuous line is extended until it ends at the coast to the west of the mouth of the Sixaola.

^Report of Mr. Hodgdon, p. 5.

-Appendix No. 3, p. 2. ^Appendix No. 3, p. 3.

25- There exists another divide, also, equal to the foregoing, between Gadokan and Middle Creek, which the maps do not indicate, but which is known to all those who travel on foot or upon horseback between Punta Mona and Guabito.

26. Based upon new mathematical data furnished by the investigations of the Commission, other conclusions may be deduced no less important. One is that the delta of the Sixaola, which up to the present time has been understood to extend to near the mouth of Gadokan Creek, is confined to its own actual mouth and very close to which the divide, indicated upon the maps by a broken line, terminates.

27. There is no doubt that these points, inasmuch as they are easily accessible, were recognized at the outset of the work of the Commission, and if it were not that it is presumed the Commission prudently thought it well to gather the fullest data possible in order to facilitate the solution of the problem it might be alleged that the Commission had exceeded the powers committed to it by the Honorable Chief Justice, the Arbitrator in this litigation, who, in accordance with the Treaty, limited the investigations of the Commission to the "line that closes on the north the Valley of the Sixaola," and not the basin of the Sixaola.