Costa Rica-Panama arbitration. Synopsis of case and argument for Costa Rica in reply

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IN ORDER TO DECIDE THE QUESTION SUBMITTED TO ARBI- TRATION, THE TERMS OF SUBMISSION REQUIRE AN EXAMINATION INTO THE MERITS OF THE CONTROVERSY WHICH RESULTED IN THE LOUBET AWARD, IN ACCORD= ANCE WITH WHICH THE CORRECT INTERPRETATION AND TRUE INTENTION OF THAT AWARD MUST BE DETER= MINED.

The Cases presented by Costa Rica and Panama in this arbitration disclose a fundamental and significant difference between the two governments in their respective contentions as to whether or not the merits of the dispute submitted to President Loubet should be examined by the present Arbitrator in order to determine the question now submitted for his decision.

This question is —

"What is the boundary between Panama and Costa Rica under and most in accordance with the correct interpretation and true intention of the Award of the President of the French Republic made the nth of September, 1900."^

Costa Rica insists that the form of the question itself, which calls upon the Arbitrator to ascertain the correct

^Documents Annexed to the Argument of Costa Rica, vol. 2, p. 704.

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interpretation and true intention of the Loubet Award, demonstrates the inherent necessity for examining into the merits of the controversy which resulted in that Award, and that this necessity is recognized by the terms of the treaty, which, after stating the question to be decided, expressly provides that "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."^ The words quoted would be meaningless under any other construction of the treaty, and that they have the meaning indicated is admitted by Panama in the statement in her Case that —

"It would be impossible for the Arbitrator to ignore these things in interpreting the Award and determining its ' true intention.' "^

Notwithstanding this admission the position of Panama on the question of examining into the merits of the controversy is stated in her Case as follows :

"With the original question of boundaries, submitted to President Loubet, we have, then, nothing to do. Upon this arbitration we do not know, and have no occasion to inquire, what were the merits of that controversy, what documents or other proofs were before President Loubet, nor what his reasons were for his decision."^

The theory upon which the Case of Panama is presented seems to be that the correct interpretation and true intention of the Loubet Award can be ascertained by an exami-

iDocuments annexed to the Argument of Costa Rica, vol. 2, p. 704. '^Argument of Panama, p. 3.

HUd., p. 5- nation of the terms of that Award without inquiring into-' any of the antecedents or surroundings which influenced', that Award, but the Panama Case fails to explain why the parties to this arbitration, if that was their understanding, expressly provided in the treaty that in order to decide the question submitted, the present Arbitrator "will take into account all the facts, circumstances and considerations which may have a bearing upon the case."^

That this provision necessarily means an inquiry into the merits of the controversy is further shown by another provision immediately following it in the same clause of the treaty which requires the Arbitrator in order to decide the correct interpretation and true intention of the Loubet Award also to take into account the limitation of the Loubet Award

"expressed in the letter of His Kxcellency Monsieur Delcasse, Minister of Foreign Relations of France, to His Excellency Sefior Peralta, Minister of Costa Rica in Paris, of November 23, 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 January 20, 1886."^

These two provisions are given by the treaty precisely the same relation to the determination of "the boundary under and most in accordance with the correct interpretation and true intention of the Award."

In other words if the Award boundary is not justified by reason of any of the facts, circumstances and considerations which may have a bearing upon the case, the

^Documents annexed to the Argument of Costa Rica, vol. 2, p. 704.

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Award boundary must be reformed, just as it must be reformed if it extends into undisputed territory of Costa Rica.

It is admitted in the Panama Case that —

"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. "^

Panama here admits that the Award must be modified if it exceeds the limitation fixed as one of the things which the present Arbitrator must take into account in determining its correct interpretation and true intention. The same result necessarily must follow if the Award fails to conform to the other facts, circumstances and considerations which the Arbitrator is required by the treaty to take into account in determining the correct interpretation and true intention of the Award.

The inherent weakness of Panama's contention on this point is illustrated by the admission in the above quoted extract to the effect that under certain circumstances the Arbitrator would have to substitute for the line of the Award "such line as he should determine to be 'most in accordance with' what he should find to be the true intention of the Award."

Here the contention of Panama completely breaks down, for how can the true intention of the Award be ascertained in the supposed case without an examination into the merits of the controversy?

'lA.rgument of Panama, p. 10.

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This difficulty is well illustrated by Panama's interpretation of the meaning of the Award. The Panama Case states that —

' ' The question before President I^oubet was the fixing of a boundary. For that purpose the only thing of importance was that there should be natural features of the country to define it, if such could be found. Intending to award to Colombia ever5rthing south of the north boundary of the watershed of the Sixola and east of the cordillera, the natural boundary was the divide to the north of the Sixola and that formed by the crest of the cordillera."^

Costa Rica has shown that this line throughout its entire length runs through the undisputed territory of Costa Rica. It is therefore necessary, in the words of the Panama Case, 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. According to Panama's case, ' ' for that purpose the only thing of importance was that there should be natural features of the country to define it, if such could be found." The Panama Case further states that "in accordance with the usual practice, at the present day, this boundary follows the summit of successive watersheds."^ Presumably, therefore, Panama's interpretation of the Award would be, when the divide of the northern watershed of the Sixaola proved to be impossible, that the line should follow the summit of some divide within the disputed territory, but even so, it would be difficult, without going into the merits of the case, to determine whether that divide be the one nearest to the Sixaola river on the south, or the divide of the northern watershed of the

^Argument of Panama, p. 23. ''Ibid., p. 14.

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Changuinola, or whether on the other hand, as contended by Costa Rica the boundary should not preferably follow the course of the Changuinola river.

The same difficulty is found in dealing with the situation presented by the uncertainty, vagueness and ambiguity of the Award description of this boundary, which, as stated by Minister Delcasse,^ on behalf of President Loubet he had been unable to fix except by means of general indications on account of the lack of exact geographical data, which general indications were based upon assumed geographical conditions, differing radically from the actual conditions as reported by the Commission of Engineers. The Panama Case very properly admits as to this situation that—

"if an ambiguity should appear, or if, because, in any part, the line cannot be drawn exactly as described in the Award, it becomes necessary for the present Arbitrator to determine the line ' most in accordance with' 'the true intention' of President Loubet, then, to resolve the ambiguity or to determine the 'true intention,' he must, necessarily, and even if the convention had not expressed it, 'take into account all the facts, circumstances and considerations which may have a bearing upon the case.' ""

But the Panama Case then proceeds to contend that there is no uncertainty or ambiguity as to the intention of the Award because, although President Toubet was mistaken about the existence of a mountain spur or counterfort bounding on the north the valley of the Sixaola, which would have furnished a barrier forming a convenient international boundary, there still remained the watershed on the north of the Sixaola, the northern limit of which,

^Documents Annexed to the Argument of Costa Rica, Vol. 2, Doc. 421, ^Argument of Panama, p. 3.

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although not furnishing a barrier, was in the neighborhood of where President Loubet assumed the barrier to be, and therefore that the northern divide of this watershed must be assumed to be what President Loubet intended.

According to Panama's contention, all that is required of the present Arbitrator is to record the existence of the undisputed fact that the Sixaola has a watershed on the north, and the further fact that the Commission of Engineers has been able to locate the northern limit of that watershed and to conclude from these facts that the line of the divide thus located was intended to be the boundary, without taking into account any of the many other facts, circumstances and considerations which have a bearing on the case.

If this was all that was required of the Arbitrator by the terms of submission, it would be difficult to explain why the Parties did not call upon the Commission of Engineers to decide the question, instead of submitting it to a distinguished jurist.

The negotiations which resulted in the treaty of arbitration are significant and enlightening on this point. For the ten years intervening between the rendering of the Award and the signing of this treaty, Costa Rica persistently and invariably maintained that the Loubet Award was defective for reasons which would impair its validity and that it could not be accepted unless, as proposed by Minister Delcasse on behalf of President Loubet, the interested Governments in a spirit of conciliation and good understanding could agree upon a mutually acceptable interpretation of the meaning of the uncertain and general indications of the Award. ^

The United States Government was drawn into the controversy in its early stages to protest against the refusal

^Documents Annexed to the Argument of Costa Rica, Docs. Nos. 427, 435, 443, 445, 446, 448, 449.

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of Costa Rica to recognize the title to extensive tracts of land on the north side of the Sixaola, which certain United States citizens claimed under grants from Colombia and Panama. Subsequently the United States Government' officially recognized that Costa Rica had jurisdiction tO' the north and Panama had jurisdiction to the south of the de facto line which was formed by the Sixaola-Yorquin rivers pending the settlement of the controversy ; but at the same time the United States urged arbitration as ' ' apparently the only manner of bringing about the settlement of a controversy the continuance of which bore so heavily on American interests."^

Negotiations for arbitration were undertaken, but no progress was made owing to the inability of the two Parties to agree on the question to be submitted. Panama insisted on the acceptance of the Loubet Award as a preliminary to arbitration which she wished to limit to a mere interpretation in a verbal sense of that Award. Costa Rica on the other hand insisted that the question of whether or not the Loubet Award was free from defects impairing its legal force must first be determined, and that the whole boundary question should be reexamined on its merits. In the deadlock thus produced the United States in response to the desire of both Parties that it should lend its good offices in bringing about arbitration, undertook the part of mediator/ A communication" was thereupon sent by the Secretary of State to the Government of Panama making it clear that —

"there was no intention to limit the boundary issue between Costa Rica and Panama to the mere interpretation of the Loubet Award; that the United

^Documents Annexed to the Argument of Costa Rica, vol. 2, Docs. Nos. 432, 433, 434, 435, 454, 455- Ubid., Doc. No. 468.

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States Government thinks, and has said, and now repeats that the crucial matter to be submitted to arbitration is the respective contentions of the two RepubHcs, as to the true boundary Hne."

In this communication surprise was expressed by the Secretary of State that, in view of all the facts, the powers of the Special Minister of Panama, then in Washington on that business, were not full powers but were "restricted to the negotiation of a protocol founded upon the strict acceptance first and above all by both countries of the lyoubet Award." ^

It was further stated in this communication that these powers "are not adequate to the task in hand and are not equivalent to the unrestricted powers of the Minister of Costa Rica, and therefore should be amplified by telegraph in order to secure progress in the negotiations." The Secretary of State added:

' ' this Government further feels that its own attitude, assumed before the Special Minister of Panama was accredited, shows that it believed full powers were needed and were confidently awaited in order to settle the real and broad question as to the true permanent boundary, and that the unavailing negotiations with Costa Rica for nearly ten years last past has made it clear beyond peradventure that this long standing controversy cannot be settled by insisting on a mere interpretation of the Loubet Award. "^

The form of the question finally adopted was understood by Costa Rica to require the Arbitrator to pass upon the real and broad question as to the true boundary which the Secretary of State, as an impartial mediator, had announced was the question to be arbitrated, and the record shows that prior to the adoption of the treaty, the final

^Documents Annexed to the Arguments of Costa Rica, vol. 2, Doc. 468,

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form of the question submitted to arbitration was favorably recommended to both Parties by the Department of ^tate.'

The willingness of the United States to recommend the adoption of this question in its present form is in itself sufficient to show that the United States understood the meaning of the question exactly as it was understood by Costa Rica.

It would have been to the advantage of the United States to have the scope of this arbitration limited to a mere verbal interpretation of the Loubet Award without going into the merits of the boundary controversy, in order to avoid reopening the broader question, because, by reason of treaty arrangements between the United States and Panama, it would be to the advantage of the United States to have all the territory in dispute on the Atlantic coast held by Panama rather than Costa Rica.^

It is inconceivable, therefore, that the United States Government, acting the part of a friendly mediator, as is recited in the arbitration treaty, could have recommended to Costa Rica the acceptance of this question in its present form, if it had been understood by the United States as limiting the controversy in any way which would be to the advantage of the United States, and to the disadvantage of Costa Rica.

In view of these considerations Costa Rica contends, as an inevitable conclusion, that under the terms of submission, the merits of the controversy which resulted in the Loubet Award must be examined into as the basis for a correct decision of the question now submitted to arbitration.

^Documents Annexed to the Argument of Costa Rica, vol. 2, Doc. 472.

^Ibid., pp. 164-165; p. 474; footnote; Treaty between United States and Panama, 1903, Articles I and XXV, Malloy's Treaties, Conventions, etc., between United States and other -Powers, 1776-1909, Vol. 2, p. 1349.

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II

UNDER THE TERMS OF SUBMISSION THE PRESENT ARBU TRATOR IS AT LIBERTY TO INTERPRET THE LOUBET AWARD IN ANY WAY NECESSARY TO FIX THE BOUNDARY IN ACCORDANCE WITH THE MERITS OF THE ORIGINAL CONTROVERSY SUBMITTED TO PRESIDENT LOUBET, DISREGARDING ANY COMPLICATIONS DUE TO IMPER= FECTIONS IN THAT AWARD.

It has already been established that the terms of submission require the present Arbitrator to examine into the merits of the underlying question of the true boundary between Costa Rica and Panama in order to determine the correct interpretation and true intention of the I^oubet Award, and it necessarily follows that having determined the merits of that question the boundary must be laid down in accordance therewith.

It also follows with equal certainty that in doing this any complications or difficulties arising out of defects in the Loubet Award line in conflict with the true line, must be disregarded by the Arbitrator; otherwise there would be no object in examining into the basic question."

It cannot be assumed that President Loubet had any intention of deciding the boundary controversy otherwise than according to its merits, and when the merits of that controversy have been determined, the intention to lay down the line in accordance therewith must be attributed to President Loubet, and his Award under the terms of submission must be so interpreted.

President Loubet himself recognized almost immediately after the Award was rendered that it required revision, and Minister Delcasse, on his behalf, undertook to correct some of its errors and uncertainties by giving it an interpretation which, although contrary to its terms, was in

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accordance with the facts, and therefore with what was assumed to have been in the mind of the Arbitrator.

One of these corrections was made by Minister Delcasse in response to a communication from the Minister of Nicaragua at Paris, objecting that by the terms of the Award the Islands of Mangle Chico and Mangle Grande were awarded to Colombia regardless of Nicaraguan ownership of them, which had never been questioned and was expressly excluded from the consideration of the Arbitrator by the arbitration agreement. In reply to this objection^ Minister Delcasse undertook to revise the Award as follows :

' ' Taking account of the agreement arrived at upon this point between the two Republics in the cause, as well as of the general rules of the Law of Nations, the Arbitrator only had in mind, in referring by name to the islands mentioned in his decision, to establish that the territory of the said islands, mentioned in the treaty concluded March 30, 1865, between the Republics of Coast Rica and Colombia is not included in the dominion of Costa Rica.

"Under these conditions, the rights which Nicaragua can have to the possession of these islands remain entirely as in the past, the Arbitrator not undertaking in any way to determine a question which was not before him."^

Here, it will be observed, the express statement of the Award that these islands "shall belong to the United States of Colombia"^ is given the meaning, by interpretation, that they ' ' are not included in the dominion of Costa Rica."^

Again, when the Costa Rican Minister, soon after the Award was rendered, pointed out to Minister Delcasse*

'Documents Annexed to the Argument of Costa Rica, vol. 2, p. 541- ^Ibid., vol. 2, p. 533. ^Ibid., vol. 2, Doc. 420.

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that the Award required reformation by interpretation in order to prevent carrying the hne into undisputed territory of Costa Rica which "would be a positive violation of the terms of the compromise, which limits the attributions of the Arbiter, and of the principles of International Law,"^ Minister Delcasse replied on behalf of President Loubet as follows :

"I have the honor to inform you that for lack of precise geographical data, the Arbitrator has not been able to fix the frontier except by means of general indications; I deem, therefore, that it would be inconvenient to trace them upon a map. But there is no doubt, as you have observed, that in conformity with the terms of Articles 2 and 3 of the Convention of Paris of January 20, 1886, this frontier line must be traced within the limits of the territory in dispute, as they are found to be from the text of said Articles.

"It is according to these principles that the Republics of Colombia and Costa Rica will have to proceed to the material determination of their frontiers, and the Arbitrator relies, in this particular, upon the spirit of conciliation and good understanding which has up to this time inspired the two interested governments."^

In both of these cases Minister Delcasse' s solution was the same — reformation by interpretation.

In the first instance he himself undertook to correct the defects pointed out by the Nicaraguan Minister by giving the Award an interpretation in accordance with what he assumed President Loubet had in mind, in contradiction to what he actually said in the Award.

In the second instance, in order to meet the objection of the Costa Rican Minister that the Award line violated the terms of submission, and also the principles of inter-

iDocuments Annexed to the Argument of Costa Rica, vol. 2, p. 543.

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national law, he in effect called upon the parties themselves to correct any defects in the Award by agreeing upon an interpretation, and at the same time he opened the way for them to give the Award any meaning which they could agree upon. In other words, he pointed out that owing to the lack of precise geographical data President Loubet had been unable to fix the frontier except by means of general indications — so general indeed, that ' ' it would be inconvenient to trace them upon a map," and that the Arbitrator had left it for the parties themselves to proceed to the material determination of their frontier, relying upon the spirit of conciliation and good understanding which had hitherto inspired them.

The present Arbitrator, therefore, will find in what has already been done by President Loubet and Minister Delcasse on his behalf, precedents of great authority for reforming the Loubet Award by interpretation in accordance with the merits of the boundary controversy, rather than by mere verbal interpretation of the language of the Aw ard, and that this was what was intended by the terms of submission in the present arbitration has already been shown in reviewing the negotiations resulting in this treaty.

Diplomatic usage, as well as international courtesy and consideration, required that the question submitted for decision should as a matter of form call for the interpretation rather than the reformation and correction of the Award of the president of a sister republic who, at the invitation of the parties, had undertaken the arduous duty of arbitrating their dispute. Recognizing, however, as the former Arbitrator himself had recognized, that the mere interpretation in a verbal sense would not meet the difficulties presented, the scope of the arbitration was enlarged by permitting the intention attributable to the

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former Arbitrator to enter into the interpretation of the Award, in accordance with the precedents he had himself estabhshed, and by requiring the present Arbitrator in deciding this question to take into account all the facts, circumstances and considerations which may have a bearing on the case, thus insuring that the Award should be reformed, and the boundary fixed in accordance with the merits of the controversy.

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THE AWARD LINE IS DEFECTIVE AND REQUIRES REFORMA- TION BECAUSE OF ITS UNCERTAINTY AND AMBIGUITY, BECAUSE IT INVADES UNDISPUTED TERRITORY OF COSTA RICA, AND BECAUSE IT IS NOT JUSTIFIED BY THE OTHER FACTS, CIRCUMSTANCES AND CONSIDERATIONS WHICH ARE REQUIRED TO BE TAKEN INTO ACCOUNT IN DECID= INQ THE QUESTION SUBMITTED.

Costa Rica contends that a line laid down in accordance with the general indications of the Loubet Award, as interpreted by Panama, would not be in accordance with the correct interpretation and true intention of that Award in view of all the facts, circumstances and considerations having a bearing upon the case, which the Arbitrator must take into account in deciding the question submitted.

Among these facts, circumstances and considerations which must be taken into account are the uncertainty and ambiguity of the Award, its disregard of the merits of the controversy submitted to President Loubet, its disregard of the limitations imposed upon the jurisdiction of the Arbitrator, the inequality of treatment to which Costa Rica was subjected during the French arbitration, and the non-existence of certain facts, the assumed existence of which had a controlling influence upon the Arbitrator.

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Uncertainty and Ambiguity of the Award.

As stated by the Secretary of State of the United States in the negotiations leading up to the present arbitration, throughout the ten years which had then elapsed since the lyoubet Award, "Costa Rica has insisted that the Loubet Award was void in part at least on the ground of ultra petita or impaired or vitiated by ambiguity and uncertainty, and that this contention was not in violation of the original agreement of submission which contemplated an award within the defined limit of the claims and not technically void for uncertainty."^

This objection of ambiguity and uncertainty is fully discussed in the Case of Costa Rica, and, as therein shown, arises from the failure of the Arbitrator to fix the frontier except by means of general indications owing to the lack of precise geographical data, and the impossibility of accurately tracing these general indications upon a map, and also because these general indications refer to assumed geographical or topographical conditions which do not exist. The contention of Costa Rica in respect of these objections, so far as they apply west of the Sixaola River, has been confirmed by the geographical and topographical data collected by the Commission of Engineers, as appears from the extensive exposition and analysis of their report presented in the Case of Costa Rica.^ No facts or arguments have been brought forward in the Case of Panama to disturb these contentions, as is shown in the Counter-case of Costa Rica, which contains a full discussion of the position of Panama.^

^Documents Annexed to the Argument of Costa Rica, vol. 2, p. 692. ^Argument of Costa Rica, pp. 281-329. ^Counter-case of Costa Rica, pp. 141-190; 203-263.

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It also appears from the discussion of these objections in the Case and Counter-case of Costa Rica, that these defects in the Award, as well as other deficiencies therein which will be mentioned later, were undoubtedly due to misinformation on the part of President lyoubet about the geographical conditions both as to the topography westward of the Sixaola river and as to the location of that river and the course of the Tarire and Yorquin rivers, and their relation to the Sixaola river. ^

The suggestion made by Minister Delcasse on President Loubet's behalf, as soon as the defects of the Award were called to his attention, that the parties, should proceed to the material determination of their frontier in a spirit of conciliation and good understanding because he had been unable to do more than indicate it in general terms, makes it evident that in preparing the Award he relied on information which he afterwards realized was incorrect, and that he perceived, in view of the incorrectness of this information, that the Award line proposed by him would have to be revised in order to carry out his real intention."

This situation was the natural outcome of the inequality of treatment of which Costa Rica complained during the course of the arbitration, by reason of which Costa Rica was not informed of numerous maps and documents and other evidence submitted to the Arbitrator by Colombia, and had no opportunity of challenging the accuracy or correcting the inaccuracy of this evidence.^ Inasmuch as this evidence has not been communicated to Costa Rica, and none of it has been produced by Panama in the present arbitration, there is a strong presumption that on further

^Argument of Costa Rica, pp. 362-376, 428-450.

^Argument of Costa Rica, pp. 152-159; 419-423; Documents Annexed to the Argument of Costa Rica, Vol. 2, Docs. Nos. 409, 410. This counter case, pp. 97-103. Appendix No. i to this Counter-case. pp. 104-116.

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examination it proved to be unreliable and incorrect, and consequently it may fairly be presumed that it was responsible for President Loubet's mistakes.

Indeed, so far as the maps are concerned, it is stated in the Case of Panama that —

"By the maps which President Loubet had before him, it appeared, no doubt, that the ridge along the summit of which the line must run in order to attain this result [to award to Colombia the entire watershed of the Sixaola] was visibly continuous from Punta Mona to the Cordillera."^

The supposed existence of a natural barrier, as erroneously shown on these maps, unquestionably was one of the inducements which led President Loubet to project the boundary line beyond the Sixaola river, and that he must have been misinformed as to the identity of the Sixaola and the location of the Yorquin and the Tarire rivers is the only possible explanation of why he did not forsee that this projected line would invade the undisputed territory of Costa Rica which was beyond his jurisdiction. The reasons for adopting this explanation are convincingly set forth in the Counter-case of Costa Rica at pages 127 et seq.