The Minister of Panama on Special Mission to the Secretary of State.
Washington, March 10, 1910.
Excellency: The undersigned, envoy extraordinary and minister plenipotentiary of the Republic of Panama on special mission, has given the most careful consideration to the identic memorandum handed to him and to the envoy extraordinary and minister plenipotentiary of the Republic of Costa Rica on special mission, by the Secretary of State at the conference held at the Department of State on March 1, 1910.
It is with great satisfaction that the undersigned notes the recognition of the Secretary of State of the force and validity of the reasons which require the Government of Panama to insist upon a strict adherence to the Loubet award as a necessary prerequisite to any arbitration to which that Government can constitutionally be a party.
It is the understanding of the undersigned, from the memorandum to which reference is made, that this attitude is accepted as the necessary basis for any further proceeding, and with this in view, the undersigned begs to submit the following additional views and considerations upon the subject of the memorandum.
Since the acceptance of the Loubet award must form the basis of the arbitration, the convention of arbitration, it is respectively submitted, should, in the first place, stipulate anew that acceptance by both parties, and should state that the object of the arbitration is confined to the interpretation and application of the Loubet award, it being understood as a part of that award as expressed in the letter of M. Delcasse to Señor Peralta, minister of Costa Rica at Paris, November 23, 1900, “that, in conformity with the terms of Articles II and III of the convention of Paris of January 20, 1886, this boundary line must be drawn within the confines of the territory in dispute as they are determined by the text of said articles.”
The undersigned will consent, with pleasure, to a further stipulation that no doubt exists as to the interpretation of that award with respect to the boundary line from Punta Burica on the Pacific Ocean to a point beyond the Cerro Pando on the Central Cordillerra, which he understands to be the suggestion of the Secretary of State, and, with that understanding, is glad to accept for his Government.
With respect to the question to be arbitrated, the undersigned believes that that question would be accurately stated as follows: “What is the boundary between the Republics of Panama and Costa Rica under and in accordance with the correct interpretation and true intention of the Loubet award?”
The arbitrator will, undoubtedly, in the course of his examination of this question, take into account all the circumstances and facts which may, in his view, properly have a bearing upon his decision, but the undersigned submits that the enumeration suggested of the considerations which the arbitrator shall take into account would extend the scope of the arbitration beyond the determination of the question of fact, to wit, the exact location of the line as fixed by the award, which is all that has been proposed; and might lead to a departure from or modification of the Loubet award, which the undersigned does not understand to be within the scope of the proposed arbitration, and to which it would be beyond the power of the undersigned or his Government to agree, for the reasons heretofore given.
[Page 813]With respect to the title to lands within the disputed territory and rights of occupancy of such lands under grant made by either Republic prior to January 1, 1910, the undersigned (all other provisions of the convention being agreed upon) will accept the suggestion of the Secretary of State that such titles shall be respected, and this acceptance also involves titles arising under the grants of the Republic of Colombia made before November 3, 1903, the date of the independence of the Republic of Panama. After that date the Republic of Colombia can have had no right in the territory, nor to make grants to land therein, and there can be no reason for respecting such grants, if any have been made. The undersigned has no objection to the phrase “other valid rights of property” used in the memorandum of the Secretary of State, if it be defined in such a way as to exclude any collateral privileges, exemptions, or concessions running with the land involved or expressed in any grants.
With respect to the question of a survey of the line by a joint commission, as proposed in the letter of the undersigned to the Secretary of State, of February 25, 1910, the undersigned desires to urge again the importance of such course.
The inadequacy and untrustwothiness of the existing maps of the territory through which the line runs is well known and must be conceded. Nothing material can be added to what was submitted to President Loubet which would enable the new arbitrator to fix the line as described in the Loubet award any more precise than the award itself fixes it. These facts, the undersigned again most earnestly urges, would render the projected arbitration necessarily fruitless, and would leave the question eventually where it now stands, unless a survey be made.
Morever, for the reasons given, there would be grave danger that the arbitrator, if he attempted from the data existing to define the fine as fixed by the Loubet award with more precision, would unintentionally and inadvertently depart, in fact, from the award and, without being aware that he was so doing, modify rather than interpret the award. Such a danger is one which the undersigned is not authorized to incur and which it is without doubt the desire of the Secretary, himself, to avoid, but it can not be avoided without a survey.
Furthermore, and as already suggested in the letter of the undersigned of February 25, 1910, to the Secretary of State, whenever a fine is finally agreed upon as being the fine of the Loubet award, a commission of delimitation to mark the fine will ultimately be necessary, and undoubtedly, as usually happens in such cases, differences will arise as to details in the course of such delimitation. By the plan proposed by the Republic of Panama, the ascertainment and delimitation of the exact line under the Loubet award would proceed simultaneously and the whole question would be finally settled, once and for all, in an equitable, proper, and permanent way, without the necessity for any further action whatever upon the part of either Government.
While convinced that the plan proposed in his letter of February 25, 1910, has many and great advantages, the undersigned is, nevertheless, prepared to accept the modification thereof as suggested in the memorandum of the Secretary of State with two stipulations additional to those therein mentioned: First, such survey or surveys [Page 814] shall be directed by the arbitrator whenever either party shall think it important to its interests and shall so request; second, that the commission to be appointed shall consist of four members, one of whom shall be appointed upon the nomination of each party to the arbitration.
It is the sincere desire of the undersigned and of his Government to obtain a settlement of this entire question at the earliest possible moment, and to cooperate in any means to that end within their constitutional powers. It is with the purpose that this memorandum is submitted.
The Government of the undersigned is sincerely grateful for the interest and intervention of the Government of the United States as friendly mediator upon this question, and its only desire is that the convention to be made and the proceedings to be had thereunder should be such as will lead to a final settlement and will not make the intervention of the United States fruitless or ineffective.
With renewed assurances, etc.