DISPUTE BETWEEN PERU AND ECUADOR WITH REGARD TO THEIR COMMON BOUNDARY IN THE LAGARTOCOCHA SECTOR

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP08C01297R000700110009-6
• Release Decision: RIFPUB
• Original Classification: C
• Document Page Count: 6
• Document Creation Date: December 22, 2016
• Document Release Date: October 2, 2012
• Sequence Number: 9
• Publication Date: March 20, 1948
• Content Type: MEMO

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IELDRANDUM
March 20, 1948
DISPUTE BETWEEN PERU AND ECUADOR WITH
REGARD TO THEIR COMMON BOUNDARY IN
THE LAGARTOCOCHA SECTOR
The Protocol of Peace, Friendship and Boundaries between Peru and
Ecuador signed at Rio de Janeiro January 29, 1942 (1) provides, with
respect to the boundary in the Lagartococha-Guepi sector, that the bound-
ary line shall follow: "The Lagartococha or Zancudo River, upstreamp-to
its sources and from there a straight line meeting the Guepi River...."-
_
(Rio Protocol Article VIII(B)6).
When conflicting interpretations of this and certain other provi-
sions of the 1942 Protocol arose between Ecuador 'and Peru, it was agreed,
in accordance with the "Aranha Formula", (2) to submit these differences
to arbitration. The Arbitrator selected was Brazilian Navy Captain Braz
Dias de Aguiar.
N-f
In adjudging the issue created by divergent opinions as to what con-
stituted the "sources" of the Lagartococha and as to which of several
branches was its principal course, the Arbitrator, with respect to the
boundary in this sector, stated in an Award (3), dated July 14, 1945,
that the boundary should follow what is known as the "Quebrada Norte"
(North Branch") of the Lagartococha to its source and thence a straight
line to the Giiepi. On a map accompanying the Award, known as "Anexo 16",
the Arbitrator traced, or purported to trace, the therewith awarded bound-
ary along what he believed to be, from the then available maps (4), the
course of this "North Branch" of the Lagartococha.
The present difficulty has arisen from the fact that the Quebrada
Norte is itself formed by converging streams. The Award declares that
the boundary shall follow the Quebrada Norte to its source, but on the
accompanying map the Arbitrator traced the boundary along the eastern-
most of two converging streams which form the North Branch of the Lagar-
tococha River.
Subsequent
1. Executive Agreement Series 288.
2. The "Aranha Formula" was set forth in notes from the Brazilian Foreign
Minister to the Governments of Peru and Ecuador dated May 17, 19444
The formula was accepted by Ecuador and Peru in exchange of notes
dated May 22, 1944 (Embassy Quito Despatch 1589 of May 25, 1944 and
Embassy Lima Despatch 276 of May 23, 1944).
3. Text of Award transmitted to Department with Embassy Rio Despatch 2070,
July 16, 1945 and, in translation, with memorandum prepared by the
U. S. Technical Adviser to the Ecuador-Peru Boundary Demarcation Commis-
sion, of August 30, 1945 transmitted to Department with Embassy Quito
Despatch 3405 of August 31, 1945.
4, The Arbitrator used, for "Anexo 16", a map prepared by the Boundary
'Commission based on a survey made in 1943.
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Subsequent to the Award, in December 1945-January 1946, a mixed
Peruvian-Ecuadoran field party, serving under the Boundary Demarcation
Commission, surveyed the sector and demarcated the boundary?by setting
up appropriate cement markers--at variance with the Arbitrator's map,
along the westernmost of the two c4rerging streams, which the field
party appears to have regarded unequivocally as the principal course of
the Quebrada ?torte. The boundary thus demarcated would grant to Peru
the 80 square kilometers of the territory in dispute.
At the time that the mixed field party were engaged in this demar-
cation, the Ecuadoran members of the party, as well as their immediate
superior, the Ecuadoran representative on the Boundary Commission, appear
to have agreed to the demarcation as carried out by the field party. Later
on, however, the Ecuadoran Government refused to ratify the conclusions
of the Mixed Commission on the ground that the line sketched on the map
accompanying the Award of 1945 definitively established the boundary line
and that this could not be altered by any subsequent survey or purported
demarcation by the mixed field party.
Pursuant to a verbal understanding reached during an interview
between the Ecuadoran Ambassador in Rio de Janeiro and Arbitrator Diaz
de Aguiar on September 20, 1946, Diaz de Aguiar in a letter (5) to this
Ambassador dated September 23, 1946 "ratified and justified" his Award
of July 14, 1945 with respect to the boundary in the Lagartococha sector.
In this letter the Arbitrator repeats and confirms the conclusions reached
in his Award of 1945, but makes no mention of the subsequent survey of
December 1945-1946 of which he had no knowledge, as is clearly indicated
by the letter itself. It would seem that when the Ecuadoran Ambassador
approached the Arbitrator on September 20, 1945 and solicited a reaffirma-
tion of the Award, he made no reference to the more recent activity of
the Mixed Commission, of which the Arbitrator was unaware.
In December 1946 the Peruvian Government submitted to Diaz de Aguiar,
through the Brazilian Foreign Office, a written clarification (6) of the
Peruvian view of the matter which contained a detailed account of the
survey and demarcation carried out by the field party in December 1945-
January 1946.
Cognizant of the more recent findings, Diaz de Aguiar issued a new
opinion ("Parecer") which he communicated to both the Peruvian and Ecua-
doran Ambassadors in Rio de Janeiro with letters dated January 13, 19470(7)
In this opinion he explains that the more recent findings of the mixed
field party have led him to "modify" the opinion he expressed in the letter
of September 23, 1946 to the Ecuadoran Ambassador and to conclude that
the "principal source of the Lagartococha River is that which was deter-
mined by the mixed Peruvian-Ecuadoran Commission during the work performed
in 1945-1946".
On April 7, 1947
5.- The text of this letter and of subsequent correspondence of Diaz de
Aguiar was delivered to the U. S. Embassy in Rio by the Brazilian Ministry
of Foreign Relations and transmitted to the Department with Embassy Rio
Despatch 2106 of April 22, 1947.
6. The text of this exposition is set forth as Anexo No. 10 of the state-
ment of the Peruvian case which was delivered to the Department with a note
from the Peruvian Embassy No. 5-3-N/127 of June 9, 1947.
7. Copies of these letters were delivered to the U. S. Embassy in Rio by
the Brazilian Ministry of Foreign Relations and were transmitted to the
Department with Embassy Rio despatch No. 2105 of April 22, 1947.
tirilkIV TNTPUT r T
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? On April 7, 1947 the Government of Ecuador delivered a note (8) to
the Governments of the United States, Brazil, Argentina and Chile dated
March 14, 1947 announcing that Ecuador would not accept this new opinion
of Diaz de Aguiar and requesting the intervention of these governments,
as Guarantors under the Rio Protocol, in order to establish the boundary
in accordance with Ecuador's contention, namely, along the line traced on
"Anexo 16" of the Award of 1945. Notice of this ddMarche having been
given to the Press, it was followed up by an official communique setting
forth Ecuador's contentions. Meanwhile, the Peruvian Foreign Office
issued a statement on April 9, 1947 which characterized the representa-
tions made by the Ecuadoran Government as "inexplicable and improper" and
presented the Peruvian contention as to the proceedings. (9)
On April 16, 1947 the Brazilian Government proposed to the other
Guarantors that a meeting of their representatives be held to consider their
problem. (10) This proposal was approved by the Guarantors who designated
their respective Chiefs of Mission in Rio de Janeiro for this purpose.
The Brazilian Foreign Minister called a meeting of therl)resentatives on
June 18, 1947 and distributed documents relating to the case to the par-
ticipants. It was decided that the representatives would study the doc-
uments, report to their governments and. request instructions thereon.
The general consensus of the meeting was that Ecuador's case was very
weak and that the conclusion of the Guarantors would be that the bound-
ary marked by the field party in 19451946 was the correct one. It was
felt, however, that from the viewpoint of Inter-American friendship as
well as a matter of equity, it would be highly desirable for Peru to
waive its claim to this small area. .(11) When the Peruvian Government
was informed of this suggestion, its immediate reaction was to reject it
emphatically, by informing the Guarantor governments that their task was
to guarantee "the execution of the treaty without regard to considerations
that may detract from it or produce anti-juridical effects". (12)
It was then decided to suspend further meetings of the Guarantors
representatives until after the Rio Conference, and no further meetings
have been called since. The question has been held in abeyance as far as
the Guarantors are concerned. The former Arbitrator, Captain Diaz de
Aguiar, died on December 17, 1947.
In October 1947 and again in January 1948, on the occasion of the
visit of the Ecuadoran Foreign Minister to Washington (13) the Ecuadoran
Government has requested the Department to promote a resumption of these
discussions with a view to a speedy solution of the dispute. Pursuant to
the request of the Ecuadoran Foreign Minister, the Department instructed
the United States Charge d'Affaires in Rio de Janeiro to take steps with
a view to the resumption of the Guarantors' discussions. When this sugges-
tion was made to the Brazilian Foreign Minister, he informed our represent-
ative that he had deferred calling a meeting because he was of the impres-
sion that there was no urgency in the matter, since the governments of
Peru and Ecuador had never expressed to him any interest in achieving a
speedy solution. (14)
The Peruvian
8. The note was delivered by Ambassador Yllescas of Ecuador to Under
Secretary of State Acheson on April 7, 1947.
9. The text of this statement was delivered to the Department with a note
from the Peruvian Embassy No. 5.-34/840 April 10, 1947.
10. Memorandum of conversation between Brazilian Embassador and NY. Braden,
April 17, 1947.
11. Embassy Rio Telegram No. 748 of June 18, 1947.
12. Aide Nemoire presented by the Peruvian Ambassador to the Department June 241947
1-so4-urclon Pn MiniRter Parra and MY. Armour,
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The Peruvian Ambassador in Washington has also approached the Depart-
ment, in. March 1948, on instructions from his government, expressing Peru's
desire to reach an early settlement, and terminate the boundary question
once and for all.
Thus, both Ecuador and Peru have officially expressed, to the Depart-
ment, their desire to achieve a speedy solution of the dispute. Briefly,
the conflicting contentions may be stated as follows:
Ecuador contends that the line traced on the Arbitrator's map, "Anexo
16, definitively established the boundary since this map was attached to
the Award of July 14, 1945. Peru maintains that the wording of the Award
as applied to now known "geographical reality" determines the boundary.
From the viewpoint of the United States, speedy solution of this dis-
pute is desirable. The dispute, which in itself involves an insignificant
segment of territory, keeps the whole boundary issue alive, and perpetuates
the possibility that Ecuadoran leaders, in the interest of internal political
considerations, may seek to exploit this particular dispute in the hope of
achieving a sweeping revision of the whole boundary as established by the
Protocol of Rio de Janeiro of 1942. It is in the interest of the United
States to reach a definitive settlement of this element of discord in the
Inter-American system. A final solution of the problem, accomplished by
the cooperative efforts of the four Guarantors, would be regarded as an
Inter-American achievement in the elimination of causes of international
disputes.
Close examination of the contending claims reveals that Ecuador's posi-
tion is rather weak. On the other hand, a decision by the Guarantors wholly
in accord with the Peruvian contention would inevitably cause profound dis-
illusionment an*esentment in Ecuador, readily subject to exploitation by
political factions.
There are a few possible compromise solutions to the problem, to which
the guarantor governments may give consideration in future discussions, should
the meetings in Rio de Janeiro be resumed or should the issue be presented in
a different form on the occasion of the Bogota Conference.
A discussion of these possible compromise alternatives is presented
herewith as follows:
A. Renunciation of Peru: The Guarantors might recommend that Peru
relinquish its claim in the Lagartococha area in exchange for compensa-
tion in another sector of the boundary. It does not appear that the
question of such compensation to Peru was discussed in connection with the
tentative suggestion that Peru waive its claim made in 1947. It is ex-
tremely doubtful, however) that such a plan for solution.could be found.
The Protocol of 1942 was so overwhelmingly in favor of Peru's contentions,
that it would be difficult to find any parcel of land now Ecuadoran, that
Ecuador would code with the slightest good grace without obtaining some-
thing more than recognition of its colorable claim in the Lagartococha
sector.
B. ,Division of the Territory: The Guarantors might recommend that
the parties in dispute reach an agreement dividing the contested territory.
This territory is a rough quadrangle whose sides are the qUepi River,
the West Branch of the Quebrada Norte (surveyed by the Mixed Commission,
December 1945 to January 1946)and two Meridians, the latter being
approximately 10 kilometers apart. Of these, the location of the Western
Meridian, as surveyed and marked by the Mixed Field Commission in
January 1946 and which constitutes the boundary as claimed by Peru,
is 750 36' 40.12" IV. Longitude; the location of,the eastern Meridian,
which
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which constitutes the boundary as claimed by Ecuador, is, as it appears
on the arbitrator's now inopportune map, "Anexo 16" of his Award of
June 1945, approximately 75? 32' 15" W. Longitude. A successful re-
commendation might be made that the two disputants agree to a new bound-
ary beginning at a point on the Gaepi River, located between the Meri-
dians described above, thence southward along a Meridian, to the
west branch of the Quebrada Norte and thence downstream along the
Quebrada Norte. In this connection, use might be made of the fact
that a non-recognized marker has at one time been placed on a point on
the Gilepi River almost half-way between the two described Meridians,
at 750 33/ 58405" W. Longitude, which appears an the maps and which
might be approved as the starting point of this compromise boundary.
It is likewise extremely doubtful that this solution would be accepted
by either of the parties. The United States representative at the
Guarantors' meeting of June 1947, Ambassador Pawley, has reported that
the possibility of dividing the territory was discussed last year and
.appeared to be impossible.
C. Renunciation by Ecuador: The Guarantors might recommend that
Ecuador relinquish its claims in the Lagartococha area, in exchange for
adjustments in Ecuador's favor in another sector of the boundary, to wit,
where the straight line of the boundary crosses the meandering courses
of the Bobonaza-Pastana, the Cunambo-Pintoyscu and the Cononaoc-Cursray.
This recommendation could be bolstered, if necessary, in order to con-
tend with Ecuador's objections, by an indication that the Guarantors are
ready to-decide in favor of Peruls contention of the ground of its
legal validity. Compensation to Ecuador along the stream meanders has
already been suggested by the United States Technical Adviser to the
Ecuador-Peru Boundary Demarcation Commission, in belief that Peru might
be disposed to yield the small sections of territory in the angles of
these meandering rivers, (approximately 4 1/2 square kilometers in all)
thereby obtaining what is recognized as a better boundary, and at the
same time leaving Ecuador less dissatisfied with the adverse decision
on the Lagartococha dispute.
D. Judicial Settlement: There remains the possibility of the
Guarantors relieving themselves of the burden of deciding by referring
the issue to some competant juridical authority for a strictly judici4
settlement. It should be borne in mind that a decision of the Guarantors
is necessarily a political decision rather than a judicial sentence, since
the Guarantors act as mediators and are not required, under the Rio
Protocol of 1942, to act in a judicial capacity. It is believed that
expert judicial opinion on the matter would be in favor of Peru. On
the other hand, this course would preclude Ecuadoran resentment being
directed specifically against the Guarantor countries.
Objections may be made to this suggestion on the grounds that
Peru contends that there is no "juridical" question involved and that
it is a matter of "technical" application of the Protocol of 1942. The
latter contention is specious, since it is beyond question that this
Peruvian contention is itself susceptible of adjudication, namely,
whether, as a matter of international law applied to the circumstances
of the case (the Protocol, the adoption of the Aranha formula, the
Award, the subsequent demarcation of geographic malty, the "reaffirma-
tion" and subsequent "modification" by the arbitrator), there is or is
not a juridical question and, if so, whether there is an international
law right of one or the other party which must prevail.
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The question is, in.essence, whether, as a matter of international
law, the parties are bound by the boundary shown on the map annexed to
the Arbitrator's Award of July 1945 (as claimed by Ecuador), or by the
language of both the Protocol of 1942 and the Award of 1945 as applied
to "geographical reality" (as claimed by Peru).
Relegation of the issues to a competent authority for judicial
determination might be accomplished by one of several procedures:
1) The Guarantors could undoubtedly submit any question subscept-
ible to one or more recognized juridical experts for what may be
termed as "advisory opinion". These experts would be selected by
the Guarantors who would adopt the ensuing judicial determination
as their own recommendation. The Guarantors might each appoint a
jurist of their own nationality, or it might be found more expedi-
ent to call in outsiders, preferably Europeans.
2) The Guarantors could recommend that the parties refer the issue
to some impartial juridical authority, which might be one of the
following:
a) An ad hoc tribunal, set up by agreement between Ecuador
and Peru. Here again, it might be best to call upon European
jurists.
b) An arbitral tribunal organized under the General Treaty
of Inter-American Arbitration, signed at Washington on
January 5, 1929. Under this treaty, the arbitrators may be
of any nationality, except that there may be no more than
one of each of the nationalities of the parties. Both
Ecuador and Peru are parties to this treaty.
c) The International Court of Justice. Neither Peru nor
Ecuador have accepted compulsory jurisdiction of the court
under Article 36 of the Statute of the Court. It would
therefore be necessary for both parties to agree to the
submission of this case to the Court. The Court_has not
had much business in recent times, and this facility should
be used. Determination by the International Court, composed
mainly of European jurists, would also have the advantage
of a decision by a body that cannot be suspected of parti,,,
ality as regards this particular dispute.
Nevertheless, the objections that may validly be made to settle-
ment of the Guarantors' problem by referring the dispute to a judicial
determination are pointed out, as follows:
First, in calling upon a new arbitral tribunal or the Interna-
tional Court, the Guarantors would in effect be abdicating from
their functions. It is argued that under the Protocol of 1942 the
Guarantors have the power to render a final decision, binding on
both parties. In a sense, the Guarantors also have an obligation
to decide.
Second, the impartiality of such a tribunal would be sought
by involving European jurists or the International Court. This
is objectionable on the ground that it is better to preserve the
Inter-American character of the settlement.
Third, the principal objection lies in the fact that any trans-
fer of the problem to a new authority will cause considerable delay,
possibly a few years, in finding a settlement. It will therefore pro-
vide an opportunity for political factions of both parties, especially
in Ecuador, to further publicize the question and stir up public ex-
citement and resentment on every preceeding in preparation for the
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