F 1549 
 .B7 U59 
 Copy 2 
 
 In the Matter of the Arbitration of the Boundary Dispute 
 
 Between the Republics of Costa Rica and Panama 
 
 Provided for by the Convention Between Costa 
 
 Rica and Panama of March 17, 1910. 
 
 Opinion and Decision of Edward Douglass White, 
 Chief Justice of the United States, acting in the 
 capacity of Arbitrator as provided in the Treaty 
 aforesaid. 
 
 WASHINGTON, 
 SEPTEMBER 12, 1914 
 
 
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In the Matter of the Arbitration of the Boundary Dispute 
 
 Between the Republics of Costa Rica and Panama 
 
 Provided for by the Convention Between Costa 
 
 Rica and Panama of March 17, 1910. 
 
 Opinion and Decision of Edward Douglass White, Chief Justice 
 of the United States, acting in the capacity of Arbitrator 
 as provided in the Treaty aforesaid. 
 
 Washington, September 12, 1914. 
 
 Before proceeding to a consideration of the subject for 
 decision, to avoid breaking continuity of statement, it is 
 observed that a motion made by one of the parties to strike 
 out certain documents because not filed in duplicate, and 
 a motion by the other party to eliminate certain papers 
 because they are said to be partial and hence unauthor- 
 ized, have both been considered and found irrelevant to the 
 determination of the case and the motions are therefore 
 overruled without further statement on the subject. 
 
 Moreover, at the threshold I say that when the duty of 
 considering this case as provided in the treaty was under- 
 taken, it was understood that all the documents and 
 papers in the Spanish language would be translated by the 
 parties into English, and therefore such documents will be 
 referred to in the translations which the parties have fur- 
 nished. 
 
 To state at the outset, first, the geographical situation of 
 the two countries, parties to this arbitration, and, second, 
 to give the history of the nature, origin, development and 
 undisputed facts of the controversy, will conduce to a 
 clearer appreciation of the matters to be passed upon. In 
 doing so for the purposes of the rights with which this ar- 
 bitration is concerned, Costa Eica will be taken as repre- 
 
senting not only rights enjoyed by it in its own name, 
 but all those concerning the matter here in dispute which it 
 possesses as the successor of a prior government, the Re- 
 public of Central America; and Panama will likewise be 
 taken as representing for the same purposes, not only its 
 o^n rights, but also those of its governmental ancestors, 
 the Republic of Colombia, the Republic of New Granada, 
 the United States of Colombia and the Republic of Colom- 
 bia. 
 
 First. The two countries have an extended coast line on 
 the Atlantic and the Pacific Oceans, the territory between 
 the oceans being divided by the main range of the Cor- 
 dilleras. Not taking into account any conflict as to bound- 
 ary, if any there be, between Panama and the Republic 
 of Colombia lying southeast of Panama, the territory of 
 Costa Rica and Panama on the Atlantic extends from the 
 upper boundary of Costa Rica at about the eleventh paral- 
 lel of latitude in a southeasterly direction dowm to about 
 8° 40', a distance not considering the sinuosities of the coast 
 approximating 450 miles. 
 
 Second. For seventy-five or eighty years there were con- 
 troversies between Panama and Costa Rica or their prede- 
 cessors concerning the extent of their territorial authority. 
 All the disputes referred to arose from two subjects differ- 
 ing fundamentally; the one, a contention on the part of 
 Panama that its territorial sovereignty embraced the entire 
 Atlantic coast, not only along its own front, but also along 
 the front of Costa Rica and Nicaragua, which country lies 
 above Costa Rica, since the claim of sovereignty terminated 
 only at Cape Gracias a Dios, which was practically the up- 
 permost boundary of Nicaragua dividing that country from 
 Honduras. This claim was based upon what was asserted 
 to be the operation of a Spanish Royal Order of 1803. The 
 other claim, distinct from the former because resting upon 
 independent considerations and which would require to be 
 disposed of even if the former claim was held to be un- 
 founded, concerned the boundary dividing the territory of 
 the two countries in the expanse from the Atlantic to the 
 Cordilleras, across the same and on the Pacific side. So 
 
far as the entire territorial claim is concerned and the 
 points in the mere boundary claim which concern the cross- 
 ing of the Cordilleras and the line of boundary on the 
 Pacific side, no further statement need be made for reasons 
 hereafter to be set forth. The aspect of the controversy 
 therefore necessary to be stated here involves only the 
 boundary between the two countries in the territory sit- 
 uated on the Atlantic side between that ocean and the range 
 of the Cordilleras. 
 
 On the part of Costa Eica in substance from the begin- 
 ning its lower boundary was claimed to embrace an island 
 in the Atlantic Ocean designated as Escudo de Veragua 
 opposite the mouth of a river named as the Chiriqui, which 
 emptied into the Atlantic shortly below what was known as 
 Almirante Bay, and following the course of that river to 
 the Cordilleras. This claim of boundary, if valid, would 
 necessarily have deprived Panama or its predecessors of a 
 large area of territory over which that country asserted 
 jurisdiction. This assertion of boundary right made by 
 Costa Rica was based, besides a reference to other Spanish 
 documents or decrees, especiallly on what was asserted to 
 be the result of certain Spanish Cedulas or Capitulacions 
 of 1540, 1573 and 1600. Again for reasons w^hich will here- 
 after be made apparent, the facts concerning the rightful- 
 ness of this claim of boundary on the part of Costa Rica 
 need not be further enumerated. 
 
 On the other hand, the claim on the part of Panama or 
 its predecessors was that the boundary line was made by a 
 river which took its source in the Cordilleras and flowed 
 into the Atlantic at a point much above Almirante Bay. The 
 river which it was thus contended by Panama constituted 
 the boundary was designated by various names and the 
 point at which it emptied into the Atlantic would seem for 
 a considerable time to have been in doubt. There is no 
 ground, however, for real dispute that it came finally to 
 pass that Panama recognized that the stream which it re- 
 lied upon and continued to insist constituted the boundary 
 along its entire course from the mountains debouched in 
 
the Atlantic Ocean shortly below a point indifferently 
 designated as Punta Carreta or Punta Mona — indeed that 
 such river was the first stream emptying into the Atlantic 
 below that point — and that at its mouth at least the stream 
 in question was known as the Sixaola. The boundary 
 dispute therefore involved the territory lying between 
 the two rivers contended for in their courses as they flowed 
 from the mountain range in which directly or indirectly 
 they took their sources to the ocean, and the area, and ex- 
 tent of the controversy, therefore, depended in the nature 
 of things upon the direction of the flow of the bounding 
 rivers which the parties had in mind and upon which they 
 respectively relied as constituting the division between the 
 two countries. 
 
 As the statement just made in a general way points to 
 the questions of fact and law to be passed upon, it might 
 well be taken as adequate for the purposes of the mere out- 
 line which I at the outset indicated, and therefore would 
 render it necessary now to make no further statement 
 before coming to an analysis of the questions of law and 
 fact for decision under the present arbitration. 
 
 But as when the discharge of that duty is reached it will 
 become apparent that in its last analysis every issue for 
 decision will involve an appreciation of the facts concern- 
 ing the claim of river boundary relied upon by Panama, 
 the assertion of the river boundary contended for by Costa 
 Eica being, as I have said, out of the case, in order to avoid 
 repetition and to clear a broad way leading to the merits, 
 I propose to state the facts concerning the essential matters 
 which require to be considered, concerning the claim of 
 Panama under a third heading as follows : 
 
 Third. The origin of the claim made by Panama, the acts, 
 dealings and admissions of that Government or its prede- 
 cessors concerning such claim, the negotiations for a prior 
 arbitration, the environment of such negotiations, the 
 treaties made agreeing to the same, the award, the course 
 
taken by the parties in executing it, the controversy which 
 resulted, either concerning its interpretation or its binding 
 force, the entering into the arbitration treaty now being 
 executed, and such additional facts as are found in this 
 record as may be considered necessary to be taken into 
 view in connection with the questions of law which require 
 to be passed upon. 
 
 To the end of orderly consideration I state the subjects 
 which this general proposition embraces separately under 
 four headings enumerated (a), (b), (c) and (d). 
 
 (a) The source of the boundary claim of Panama and 
 Panama's official assertions of its right by way of nego- 
 tiations or attempts to negotiate with Costa Rica with ref- 
 erence to the same or otherwise. 
 
 There is no document in the record upon which the 
 assertion by Panama or its predecessors to the river bound- 
 ary above referred to can be said to rest as an original 
 muniment of title, and therefore the non-existence of any 
 document of that character may be assumed. I say this 
 because although Seiior Madrid, a Colombian pubhcist, 
 in 1852 in a report made to the Colombian Minister of 
 Foreign Affairs declared that official documents to such 
 ejffect existed, Seiior Borda, another Colombian publicist, 
 as late as 1896 in a work prepared officially for the use 
 of the Colombian Government declared that no such official 
 documents had been found and could not be said to exist 
 unless they were considered to be embraced by two alleged 
 maps which were referrd to. 
 
 But without reference to the source of the title, the 
 existence of the dispute as to boundary at an early date 
 is clearly shown, since in 1825 Costa Rica as a state of 
 the United Provinces of Central America in its Consti- 
 tution declared its boundary to be the Escudo de Veragua, 
 the island opposite the Chiriqui River which, as I have said, 
 is the boundary now relied upon by Costa Rica. And in 
 the same year, presumably as the result of a dispute con- 
 cerning this boundary, the Republic of Colombia (Panama) 
 and the United Provinces of Central America (Costa Rica) 
 
6 
 
 entered into a convention by which they obliged themselves 
 **to respect the limits of each other as they now exist," 
 and expressed their purpose to fix their boundaries upon 
 that basis and contemplated a future agreement or con- 
 vention to give effect to that purpose. The provisions thus 
 referred to were embraced in Articles VII and VIII of the 
 convention. There was no express agreement between the 
 parties for the settlement or demarcation of the territorial 
 claim as to sovereignty over the coast up to Cape Gra- 
 cias a Dios, although Article IX of the convention con- 
 tained a provision for a modus vivendi between the 
 parties concerning such claim. 
 
 Clear as is the text of the treaty in question on the two 
 distinct subjects stated, if there were room for obscurity it 
 would be greatly illumined by a consideration of the nego- 
 tiations which preceded the adoption of the treaty. I say 
 this because in those negotiations a proposition on the 
 part of Colombia (Panama) to adjust or compromise the 
 larger territorial claim on a basis stated was promptly 
 rejected by Costa Eica, and on the other hand a proposi- 
 tion made by the representative of Colombia that ''as to 
 boundaries it is necessary to hold to the uti possidetis of 
 1810 or 1820 as may be desired," was promptly accepted 
 by Costa Rica, thus indicating why as to the larger claim 
 nothing but a provision for a modus vivendi was inserted, 
 while as to the boundary claim proper a basis for its 
 adjustment was agreed upon and a declaration of the 
 purpose to execute in the future that agreement was made. 
 What exactly was the possessory boundary relied upon as 
 then existing does not appear. Subsequently, the con- 
 templated purpose of delimiting the boundary stated in the 
 convention not having been carried out, that is in 1836, the 
 Republic of New Granada (Panama), in establishing a 
 new territory called Bocas del Toro fixed the limits of that 
 territory on the Atlantic coast from the river called Con- 
 cepcion up to the mouth of a river described as the Culebras 
 and then "on the northwest [that is, from the mountains 
 to the mouth of the Culebras] by th,e frontier line which 
 
separates on that side the Republic of New Granada from 
 that of Central America." It is apparent that this de- 
 scription, while it amounted to an attempt to definitely fix 
 a line of boundary on the Atlantic coast at the entrance 
 of the Culebras River, did not define the line of that bound- 
 ary from the point of the mouth of that river to the main 
 Cordilleras, but left it to follow the course of the exist- 
 ing boundary line between the two countries — an omis- 
 sion which was presumably caused by the fact that by Ar- 
 ticles VII and VIII of the Convention of 1825, as we have 
 seen, the line of such boundary was to be determined by 
 the application of the doctrine of uti possidetis and the 
 subsequent demarcation which was contemplated but which 
 had not taken place. It is to be observed, however, that 
 while the line from the mouth of the river to the mountains 
 was thus left open to be marked, the provision clearly 
 points out that the line of boundary or frontier as it then 
 existed and as it was understood between the parties, con- 
 sidered in its trend from the mountains to the mouth of the 
 river, ran in a northeasterly direction, or, conversely, from 
 the mouth of the selected river to the mountains, in a south- 
 westerly course. 
 
 Following the assertions of right on behalf of Costa Rica 
 to the southern boundary at the Chiriqui River, as at the 
 outset stated, and of Panama to a northern boundary at the 
 mouth of the river called the Culebras, running from the 
 mountains to the ocean on a line having the course above 
 indicated, many subsequent negotiations occurred which we 
 outline briefly as follows : 
 
 In 1856 a treaty was drawn between New Granada (Pan- 
 ama) and Costa Rica, by which the northern boundary be- 
 tween the two countries on the Atlantic was fixed by a river 
 named the Doraces from its source in the Cordilleras 
 ''down-stream by the middle of the principal channel of 
 this river until it empties into the Atlantic." When the 
 Congress of New Granada (Panama) came to act upon this 
 Treaty it Refined the mouth of this river in the Atlantic 
 as being ' ' the first river which is found at a short distance 
 
8 
 
 to the southeast of Punta Carreta [Punta Mona]." As a 
 result of this definition the Treaty was not ratified because 
 Costa Eica declined to agree to the definition, which, of 
 course, if accepted, would have destroyed its claim to 
 a boundary by the Chiriqui, whose point of emptying into 
 the Atlantic was many miles below Punta Carreta. And 
 this serves to demonstrate that the real difference between 
 the parties, at least as to the boundary on the Atlantic side, 
 did not arise from the fact that the parties were quarrel- 
 ing over the direction of either of the different bounding 
 rivers upon which they respectively relied, but were disput- 
 ing and unalterably at odds as to which river was the 
 boundary. 
 
 Again in 1865 a further attempt by treaty was made to 
 fix a boundary by a river described as the Carnaveral, 
 which if made the boundary would in substance, that is, 
 for all practical purposes, have created a boundary the 
 equivalent of that claimed by Costa Eica in the Chiriqui 
 Eiver. The treaty failed of ratification, and without going 
 into detail it is true here again to say that the failure of 
 the ratification in part at least arose from the impossibility 
 of securing a meeting of minds of the two countries as to 
 the abandonment of the claims of the river boundary 
 pressed by either side, and was not concerned with the 
 contention upon one side or the other concerning the course 
 or direction of the bounding river which either claimed, if 
 that river had been accepted as the boundary. 
 
 In 1873 another treaty was drawn which defined the 
 boundary by a river called the Bananos flowing from its 
 source in the Cordilleras emptying in the Atlantic at Al- 
 mirante Bay. As the concession of the boundary by this 
 river would have clearly repudiated Panama's claim pre- 
 viously asserted of a river emptying into the Atlantic, the 
 first below Punta Carreta or Punta Mona, its ratification 
 would have destroyed all right of Panama to such claim. 
 But the treaty was not ratified, thus again affording an 
 illustration of what was the real dispute, that is, which of 
 
the rivers was the boundary, and the difficulty of securing 
 the ratification of any treaty on that subject. 
 
 In the long period of time embracing the acts to which 
 I have just referred there weriC various official statements 
 of responsible officers of the Colombia (Panama) Gov- 
 ernment, all resting its boundary claim upon a river bound- 
 ary, and not one word of intimation is found in the slight- 
 est degree tending to show that any oth^er or different 
 boundary right was claimed than one by a river, whatever 
 may have been the controversies or doubts suggested con- 
 cerning the particular name of the river or the point where 
 it emptied into the Atlantic, and, indeed, this also is true 
 concerning the general course and trend of the bounding 
 river relied upon. I make these statements, not overlook- 
 ing the fact that there are instances where Punta Mona, a 
 place on the Atlantic shore not on the mouth of any river, 
 is mentioned as the boundary and indeed one instance 
 where it was declared that Humboldt was authority for 
 that proposition, although the very official making the 
 statement pointed out that the boundary was the Culebras 
 Eiver which, as then understood, was a stream entering 
 the ocean below Punta Mona. Likewise, Madrid, the distin- 
 guished Colombian publicist already referred to, making a 
 report to the Colombian Senate said in referring to the 
 boundary on the Pacific as well as on the Atlantic and of 
 the crossing of the boundary line over the Cordillera range, 
 that the whole boundary line, both on the Pacific and the 
 Atlantic sides, including the crossing of the mountains, con- 
 sisted of a line to be drawn from the middle of the Gulf of 
 Dulce on the Pacific side, thence crossing the Cordilleras 
 and traversing the Atlantic side to ''the mouth of the 
 River Doraces or Culebras, a short distance from Punta 
 Careta, which is also, approximately, the boundary indi- 
 cated by Baron de Humboldt an(j other celebrated travel- 
 lers," thus in effect confirming a river boundary as as- 
 serted from the beginning and at all times without hesi- 
 tation or deviation by Panama, and in addition making 
 it quite clear that the course and direction of the bounding 
 
10 
 
 river as understood between the parties was that which has 
 been previously stated. 
 
 (b) The light thrown upon the subject, if any, by a con- 
 sideration of maps and charts applicable to the claim. 
 
 It is undoubted that in the earlier maps there was great 
 uncertainty as to the particular name of the river relied 
 upon, some showing a river named Dorces, Doraces or 
 Dorados, some a river called Culebras, and some showing 
 two distinct rivers one named Dorces, Doraces or Dorados 
 and the other Culebras. However, it is true to say that in 
 a general sense all the rivers so named are shown on all 
 these maps to have a general northeasterly direction from 
 the main Cordilleras where, or in the vicinage of which, 
 they purported to take their source and flowed to the At- 
 lantic Ocean, whatever was the confusion in the respective 
 maps as to the precise point of location of the rivers or the 
 place where they emptied into the Atlantic. For instance, 
 what is known as the Spherical Chart of 1805-9 shows the 
 Dorados river flowing from the region of the mountains in 
 a northeastern direction without tributaries to its mouth 
 in the Atlantic, the first below Punta Mona, while the 
 map of Ponce de Leon and Paz of 1864 showed the Cule- 
 bras or Dorados having the same general course empty- 
 ing into the Atlantic above Punta Mona. But none of 
 these differences serve to confuse the situation when 
 looked at comprehensively, that is, they do not serve 
 to create any material doubt concerning the boundaryl 
 river, the first below Punta Mona, relied upon by Pan- 
 ama and the general northeasternly course which such river 
 was considered to have from the point of view of its source 
 in the mountains and journeying from thence to the place 
 where it emptied into the ocean. 
 
 And indeed it is here again worthy of remark that this 
 coincidence of course corresponds in its general trend with 
 the assertion by Colombia (Panama) of its boundary line 
 in the very first instance where it found exact expression in 
 
11 
 
 the definition of the boundary in the act creating the terri- 
 tory of Bocas del Toro, to which I have referred. 
 
 (c) The demonstration as to the exact nature of the claim 
 afforded by the occupation or settlement of the territory 
 covered by the boundary during the period of dispute. 
 
 It is, moreover, to be observed that it is obvious if the 
 parties contemplated the boundary to be a river flowing 
 from the mountains to the ocean in a northeasterly course, 
 the eastern bank of such a river would belong to Colombia 
 (Panama) and the western bank to Costa Eica, an under- 
 standing which it is undoubted was the one entertained by 
 the two Governments. I say this because the proof here is 
 adequate and comprehensive that the western bank of a 
 river so flowing was occupied and settled under the juris- 
 diction of Costa Eica, and that as far as settlements were 
 made by Colombia (Panama) the eastern bank was taken 
 as the line of its jurisdiction of that country. This is aptly 
 illustrated by the following facts. A Colombian settlement 
 was located at the mouth of the boundary river, the first 
 below Punta Mona, which came to be known as the Sixaola. 
 This bank, if a river had been contemplated as flowing east 
 and west in its course from the Cordilleras to the sea, 
 would have been the south bank of the river, as indeed at 
 the point of settlement it was accurately speaking such 
 bank owing to the direction of the flow of the Sixaola in the 
 immediate region of its mouth. But disregarding this 
 merely local condition and evidently looking at the situa- 
 tion with reference to the trend of the boundary line which 
 it had entertained from the beginning and the general 
 course of the river which had been from the commence- 
 ment and without change considered to be the boundary, 
 complaint was made by Colombia (Panama) to Costa Eica 
 of intrusion upon 'Hhe Colombian village 'Sixaula,' situ- 
 ated upon the eastern side of that river." And similar 
 language was repeatedly used in the course of the negotia- 
 tions betweeen the parties. Indeed, it is correct to say that 
 whatever may have been the more accurate knowledge ac- 
 
12 
 
 quired of the names of rivers and of their true location and 
 courses and distances, there *is nothing whatever in the 
 record to indicate any action taken or any expression by 
 word which directly or indirectly would justify the belief 
 that up to the period when the previous award was ren- 
 dered, the consideration of which we shall hereafter 
 approach, the boundary line between the two countries 
 as insisted upon by Panama, was made in any other 
 way than by a river having the general trend and course of 
 the river or rivers to which we have referred and which 
 in practice were treated as the dividing line — a practice 
 which, as I have said, was shown by ofi&cial action in many 
 forms, by the exercise of dominion by the respective coun- 
 tries and was demonstrated by the settlements which mani- 
 fested the practical conception which prevailed concerning 
 the real situation as to boundary. 
 
 (d) The controlling effect of the action of Panama con- 
 cerning the submission of the matter to a former arbitra- 
 tion, and the dominating influence of its conduct in connec- 
 tion with the hearing and submission thus previously made. 
 
 The failure to provide for the exact delimitation of the 
 boundary line as contemplated by the Convention of 1825 
 may well be presumed to have produced its natural results. 
 Certain is it that as there had been a failure to do so 
 not only on the Atlantic but on the Pacific side of the 
 mountains, in 1880, growing out of disputes as to rights 
 of possession and authority in the territory on the Pacific 
 side, a rupture between the two countries was threatened 
 and war between them was imminent. In view of these ex- 
 igencies and in contemplation of a proposed negotiation 
 with Costa Rica for an adjustment which might obviate an 
 armed conflict, the Senate of Colombia (Panama) on July 
 14, 1880, formulated a statement of the claim of Colombia 
 embracing the following conclusions-: 
 
 *'(1) Colombia has, under titles emanating from 
 the Spanish Government and the uti possidetis of 
 1810, a perfect right of dominion to, and is in pos- 
 
13 
 
 session of the territory which extends towards the 
 north between the Atlantic and Pacific Oceans to the 
 following line: 
 
 "From the mouth of the River Cnlebras, in the 
 Atlantic, going upstream to its source, from thence 
 a line along the crest of the ridge of Las Cruces to 
 the origin of River Golfito ; thence the natural course 
 of the latter river to its outlet into the Gulf of Dulce 
 in the Pacific. 
 
 "(2) Colombia has titles which accredit its right, 
 emanating from the King of Spain, to the Atlantic 
 littoral embraced from the mouth of the River Cule- 
 bras as far as Cape Gracias a Dios. 
 
 ''(3) Colombia has been in uninterrupted posses- 
 sion of the territory included within the limits indi- 
 cated in Conclusion I. ' ' 
 
 And in another Conclusion which I do not reproduce, 
 it was virtually declared that as a condition preced- 
 ent to negotiations there must be an "evacuation [by 
 Costa Rica] of any portion of territory in which that nation 
 may have established its authorities beyond the limits 
 marked out in Conclusion I. ' ' Although these Conclusions 
 were communicated for his guidance to the Negotiator rep- 
 resenting Colombia, who was endeavoring to reach an ad- 
 justment with Costa Rica, it is worthy of remark that the 
 instructions transmitting to the Negotiator the Conclusions 
 of the Senate while insisting that as a sine qua non to the 
 negotiations certain territory situated on the Pacific coast 
 which was the more immediate cause of the dispute should 
 be evacuated, made no request of such a character as to one 
 foot of soil on the Atlantic side based on the want of right 
 to possess along the bounding river having the course and 
 direction which I have stated. This conduct certainly 
 shows that even in the vivid light which must have been 
 thrown on the controversy between the two countries re- 
 sulting from the almost flagrancy of war, the parties con- 
 cerning the boundary on the Atlantic coast entertained and 
 suggested no different view of that boundary than a river, 
 by whatever name it might have been called, following the 
 general trend and course of the bounding river which had 
 
14 
 
 been asserted by Panama from the beginning, and that 
 settlements by Costa E-ica on the Atlantic coast which did 
 not transcend or interfere with such a boundary were not 
 really the subject of serious dispute between the two 
 countries. It is also worthy to be observed that although 
 the larger territorial claim of the Atlantic coast to Cape 
 Gracias a Dios was embodied in the Conclusions of the 
 Senate under Number 2, no express instructions what- 
 ever concerning that claim were given to the Negotiator, 
 and it is in addition of importance that the President 
 of Colombia issued a prolamation concerning the claims 
 of that Government and although in such proclamation 
 he embodied in so many words the propositions con- 
 tained in the Senate Conclusions with reference to the 
 assertion of the river boundary, no mention whatever was 
 made as to the claim of sovereignty over the coast up to 
 Cape Gracias a Dios as mentioned in the Senate Conclusions 
 since the Senate's statement as to that asserted right was 
 wholly omitted from the proclamation — a fact which gives 
 support to the view that such controversy was not em- 
 braced by the Treaty of 1880. 
 
 The rupture between the two countries was avoided and 
 a treaty was negotiated and ratified between them for the 
 purpose of submitting to the arbitrament of the King of 
 Spain the disputes stated in the treaty. The preamble of 
 this treaty recited that its purpose was "to close the only 
 source of differences that may arise between them, which is 
 no other than the question of boundaries foreseen in articles 
 VII and VIII of the Convention of March 15, 1825, between 
 Central America and Colombia, and which has subsequently 
 been the subject of diverse treaties between Costa Rica and 
 Colombia" — a declaration of purpose clearly embracing 
 the river boundary dispute which was the subject provided 
 for in the articles of the Convention of 1825 referred to and 
 which articles were therefore virtually incorporated into 
 the treaty and became by reference a part thereof. The 
 first article, which gave effect to the purpose thus expressed 
 in the preamble, by its terms when reasonably construed 
 
15 
 
 related to the fixing of a boundary along the disputed line 
 coming within the scope of articles VII and VIII of the 
 Convention of 1825 to the end that the possession of both 
 parties within their proper territory might be secured — a 
 boundary which, as we have seen, by the acts and declara- 
 tions of Colombia, by the authoritative writings of the 
 publicists of that country, and by the very conclusions of 
 the Senate leading up to the treaty had come to mean a 
 river flowing from its source in the Cordilleras in a 
 northeasterly direction to a point where it emptied into the 
 Atlantic Ocean as the first river having its mouth below 
 Punta Mona. And the fact that this was the subject con- 
 templated by the treaty is further shoTSTi when it is con- 
 sidered that the Convention of 1825 had in it an article ex- 
 pressly referring to a modus vivendi regarding the larger 
 claim concerning the Atlantic coast to Cape Gracias a Dios, 
 and that no reference or incorporation of the provisions on 
 that subject was made in the treaty — a view additionally 
 sustained by the instructions to the Negotiator who com- 
 menced the negotiation of the treaty and by the President 
 in his proclamation, in both of which the controversy as to 
 the sovereignty of the coast line was treated as negligible 
 for the purpose of the negotiations which the treaty con- 
 summated. 
 
 The King of Spain accepted, but before his duty was 
 discharged, although the Government of Spain had taken 
 initial steps towards its performance, the King died. 
 Thereafter in 1886 the two Governments negotiated an ad- 
 ditional treaty of arbitration. The preamble of this Con- 
 vention after reciting the previous treaty, the acceptance of 
 the King of Spain, the beginning by the Spanish Govern- 
 ment of the execution of the duties incident to the arbitra- 
 tion and the death of the King, declared that the parties to 
 remove all doubt regarding the competency * ' of his succes- 
 sor [the King's] to continue to exercise jurisdiction over 
 said arbitral suit until final judgment, have agreed to 
 execute the following convention ad referendum additional 
 to that signed * * * on December 25, 1880." The 
 
16 
 
 first Article of this treaty recognized in express terms the 
 right of the successor of the King or the government of 
 Spain ' ' to continue exercising jurisdiction over the arbitra- 
 tion proposed by the two Republics, and to render an irre- 
 vocable and final award in the controversy pending con- 
 cerning the territorial boundaries between the High Con- 
 tracting Parties. ' ' While no reference in terms was made 
 to an additional power to consider and decide as an arbitra- 
 tor the controversy concerning the larger territorial claim, 
 it cannot be subject to serious dispute that under the 
 terms of the treaty an additional power to that conferred 
 by the previous treaty was given to the arbitrator to ad- 
 judge as to the larger claim of Panama to territorial 
 sovereignty extending along the coast line to Cape Gracias 
 a Dios. I say this because such is the natural result of 
 an enumeration of the limits of the territory in dispute 
 embraced in Article II and the statement in Article III 
 concerning the authority of the arbitrator to decide the 
 controversies. 
 
 I do not reproduce the text of the two articles since it 
 is hereafter quoted (p. 25) in the analysis of the legal ques- 
 tions which are involved in the merits of the controversy. 
 But in my opinion the fact that the additional power was 
 given concerning the territorial claim clearly did not change 
 or expand the power conferred by the previous treaty con- 
 cerning the boundary claim, since such conclusion is ren- 
 dered absolutely necessary by the express statements which 
 I have referred to in the treaty that the power formerly 
 given and which had been partially executed was to con- 
 tinue until final judgment, and finally by the provision 
 saving the prior treaty from abrogation as a result of the 
 adoption of the latter. 
 
 It having resulted from reasons purely of convenience not 
 necessary to be stated, that the King of Spain did not com- 
 plete the discharge of the duties of arbitrator begun 
 under the first treaty nor enter upon those resulting from 
 the second treaty, the parties in 1896 entered into a Conven- 
 tion agreeing to submit the subjects to the arbitration of the 
 
17 
 
 President of the French Eepublic. The Convention ex- 
 pressly declared that it made no change in the fundamental 
 matters referred to, and that it was but intended to sub- 
 mit the controversy under the terms and limitations thereof 
 to the arbitrament of a new tribunal. Prior to the 
 assumption by the President of the French Eepublic of the 
 duties created by this treaty, the authorized representa- 
 tive of Costa Eica addressed to him a letter enclosing the 
 text of the arbitration treaty and asking him to under- 
 take the duties which it imposed. The letter in addition 
 said: ''I also enclose a geographical map of the territory 
 in litigation upon which are indicated the boundaries 
 claimed by each of the contracting parties." The map 
 which was thus sent clearly delineated the bounding river, 
 the Chiriqui, claimed by Costa Eica, and the river claimed 
 to be the boundary by Colombia (Panama), that river being 
 marked on the map as entering into the Atlantic the first 
 below Punta Mona and having in its flow from the moun- 
 tains to the ocean a general northeasterly direction con- 
 forming to the course and flow of the bounding river 
 which, as I have seen, had prevailed without question 
 or hesitation from the beginning. The river which was 
 thus delineated on the map was designated as the *'Yur- 
 quin" (Yorquin) from its source in or near the Cordil- 
 leras to a point where it emptied into a river named the 
 ''Sixola" (Sixaola), the two in the course and direction 
 indicated thus being marked on the map as the bound- 
 ing river on which Colombia relied. There is no proof 
 in this record that such letter written by the representa- 
 tive of Costa Eica, was ever communicated to the repre- 
 sentatives of Panama, but there is nothing in the record 
 indicating that anything occurred which called for its 
 communication, as there is nothing to show that there was 
 any intimation of controversy between the parties as to the 
 trend and course of the bounding river claimed by Colom- 
 bia to constitute the boundary if the general controversy 
 between Colombia and Costa Eica as to which of the two 
 rivers was the boundary should be determined in favor of 
 
18 
 
 Colombia. The duty under the treaties was accepted by 
 the President of the French Republic and the case was 
 made up and submitted for award. 
 
 On the part of Panama an elaborate argument was sub- 
 mitted to sustain the claim of that country to sovereignty 
 over the Atlantic coast to Cape Gracias a Dios, under the 
 Royal Order of 1803, and in addition an argument was 
 made to sustain a broad claim of territorial authority under 
 a Royal Cedula of March 2, 1537, which it would seem was 
 presented for the first time in the argument in question. 
 Aside from the elaborate argument just stated there was 
 no detailed discussion or argument on the part of Panama 
 concerning the dispute between itself and Costa Rica as to 
 which of the two rivers was the boundary and nothing 
 whatever was said concerning the course and trend and 
 location of the river claimed by Panama as the boundary, 
 if the river asserted by it should be found to be the true 
 boundary, which in the slightest degree conflicted with the 
 statements on that subject contained in the letter written 
 by the minister of Costa Rica or which, moreover, in any 
 way whatever challenged the source, the course and the 
 trend of the river relied upon by Colombia as resulting 
 from the history of the boundary controversy from the 
 beginning which has been previously given. I say this 
 because the only statement concerning these subjects con- 
 tained in the argument made by Colombia after a discus- 
 sion concerning the validity of its claim to authority over 
 the coast line was a general reference to Colombia's title to 
 what it called the Duchy of Veragua, which Colombia con- 
 fessedly held, and the claim in the following words asserted 
 to exist as the result of the ownership of that title : * * This 
 title alone would suffice to show the actual right of posses- 
 sion of Colombia over Chiriqui Lagoon, the Bay of the Ad- 
 miral [Almirante Bay] and the contiguous country in 
 the direction of the Sixaola River (dans la direction du 
 Rio Sigsaula)." 
 
 On the part of Costa Rica the argument was addressed 
 to an attempt to refute the larger claim as to sovereignty 
 
19 
 
 over the coast made by Panama and in addition as to the 
 boundary dispute to establish that the River Chiriqui, was 
 the true boundary and by a negative pregnant to thereby 
 demonstrate that the river claimed by Colombia was not. 
 But there was not one word in the argument tending to 
 show that it was considered that if Colombia's claim to 
 boundary was rightful, it embraced any other territory 
 or any other river than that which had been described in 
 the letter to the Arbitrator, and which description con- 
 formed to all the facts which, as I have stated, are demon- 
 strated by the history of the subject from the beginning. 
 
 The whole record which was before the former Arbitra- 
 tor is not shown to be a part of this record, but neither 
 party disputes, if they do not in terms concede, that the 
 substantial facts which I have previously stated were em- 
 braced in the record for the purposes of the prior arbitra- 
 tion. Prior to making the award and as an aid in doing so, 
 the Arbitrator appointed a Commission of distinguished 
 officials of the French diplomatic corps, and in addition the 
 Keeper of the Maps in the National Library, to consider 
 the subject presented by the arbitration.. The written 
 report of that Commission, if any was made, is not in this 
 record. 
 
 The award of the Arbitrator was made on September 11, 
 1900. Leaving aside certain provision contained therein 
 as to islands both along the Atlantic and Pacific so much 
 of the award as is necessary here to be considered is as 
 follows, the translation from the French being taken from 
 the argument of the Republic of Panama in this case, there 
 being no question on the other side as to its substantial 
 accuracy. 
 
 ' ' The Frontier between the Republics of Colombia 
 and Costa Rica shall be formed by the counterfort of 
 the Cordillera which starts from Cape Mona, on 
 the Atlantic Ocean, and closes on the North the 
 valley of the Tariare or Rio Sixola; then by the 
 chain of division of waters between the Atlantic 
 and Pacific, to nine degrees, about, of latitude; it 
 
20 
 
 will follow then the line of division of waters be- 
 tween the Cheriqui Viejo and the affluents of Gulf 
 Dulce, to end at Point Burica on the Pacific Ocean. 
 
 Upon the announcement of this award the Minister of 
 Costa Rica who had also been its agent for the purposes 
 of the proceedings under the arbitration addressed a letter 
 to Monsieur Delcasse, the Minister of Foreign Affairs of 
 France, in the name of Costa Rica in form at least seeking 
 to interpret the award and requesting that a particular 
 line be indicated by the arbitrator as a boundary. The line 
 thus asked as an interpretation of what had been awarded 
 was substantially like that which the Minister of Costa Rica 
 had marked on the map which he sent to the President of 
 the French Republic before the arbitration was undertaken 
 as showing what the claim of Colombia was as to the river 
 which it asserted to be the boundary and therefore as 
 demonstrating what that country would be entitled to if its 
 claim was allowed. 
 
 To this letter the Minister of Foreign Affairs replied as 
 follows : 
 
 "Answering the request which you have been 
 pleased to express in your letters of September 29th 
 and October 23rd ultimo, I have the honor to inform 
 you that, on account of the lack of exact geographic 
 data, the Arbitrator was not able to fix the boundary 
 except by means of general indications; I think, 
 therefore, that there would be difficulty in fixing them 
 on a map. But there is no doubt, as you observe, 
 that, in conformity with the terms of articles 2 and 
 3 of the Convention of Paris of January 20, 1886, 
 this boimdary line must be drawn within the confines 
 of the territory in dispute, as they are determined by 
 the text of said articles. 
 
 "It is in accordance with these principles that it 
 is for the Republics of Colombia and Costa Rica to 
 proceed to the physical delimitation of their front- 
 iers, and the Arbitrator trusts, on this point, to the 
 spirit of conciliation and good understanding with 
 which the two Governments in litigation have up to 
 the present time been inspired. * * * " 
 
21 
 
 Costa Eica declined to accept the award unless it was 
 interpreted according to its view as stated in the letter 
 written by its minister to Monsieur Delcasse, and Colom- 
 bia insisted that the award required no interpretation and 
 should be executed according to its terms. The award re- 
 mained without practical effect although various negotia- 
 tions were had on the subject and although a proposed 
 treaty for adjusting the differences was drawn but failed 
 of ratification. In this situation a treaty providing for 
 the duty of arbitration to be performed by the Chief Jus- 
 tice of the United States, now being executed, was entered 
 into. By that treaty the previous award as to the Pacific 
 coast, as to the line crossing the Cordilleras and the 
 dividing line on that range of mountains ''to a point be- 
 yond Cerro Pando * * * near the ninth degree of 
 North Latitude" was expressly declared to be binding, 
 and, therefore, all controversy concerning those subjects 
 was put at rest. It follows, therefore, that the treaty 
 accepted in its entirety the award as to the Pacific coast 
 and provided only by the methods and to the extent con- 
 templated by its terms, which I shall hereafter have occa- 
 sion to specifically state and consider, for an examination 
 and decision concerning the controversy in relation to the 
 award concerning the dispute as to the boundary between 
 the two countries on the Atlantic coast from the mountains 
 to the ocean. 
 
 The record contains nearly fifty volumes, and the argu- 
 ments submitted as to the subjicct-matter in controversy are 
 voluminous, covering on one side or the other the widest 
 possible field and every aspect of everything that has taken 
 place in the long period of time to which I have referred. 
 Without reference to its materiality to the issues here 
 to be decided there is certainly this distinction between 
 the record now under consideration and that which was 
 before the previous Arbitrator which ought not to be 
 passed without mention. By the terms of the present 
 treaty, provision was made for the appointment of a com- 
 
22 
 
 mission "for making a survey of the territory"; and 
 this request having been made, in October, 1911, such a 
 board was organized, composed of four members, one ap- 
 pointed by the President of Costa Rica, one by the Presi- 
 dent of Panama, and the other two by the Arbitrator. The 
 appointeies were all civil engineers of the highest attain- 
 ment and distinction in their profession. They were as 
 follows : Professor John F. Hayford, of Northwestern Uni- 
 versity, Evanston, Illinois, Chairman; Professor Ora M. 
 Leland, of Cornell University, Ithaca, New York, Secre- 
 tary ; Mr. P. H. Ashmead, of New York City ; and Mr. Frank 
 W. Hodgdon, of Boston, Massachusetts. After the organi- 
 zation of the board and after the adoption of a plan to gov- 
 ern the performance of its duty, which plan was approved 
 by both countries, a survey in the field was undertaken and 
 accomplished after prolonged and arduous labor, and its 
 results were submitted in a report and in many maps 
 and charts displaying the situation in the most careful, 
 comprehensive and accurate manner. It is true to say, 
 overlooking what may be qualified as minor differences, 
 the board was in substance united. And great as is the 
 satisfaction afforded by the action of the Commission of 
 Survey, there is an additional and important cause of grati- 
 fication arising from the fact that its work as to fiscal ar- 
 rangements and in every other respect was aided and facili- 
 tated by the two countries whose controversy is here for de- 
 cision. I do not go into detail concerning the report or the 
 map or maps which accompanied it, since in the view now 
 taken of the case it does not depend upon their analysis or 
 statement. But although it is not essential to the con- 
 clusion which I have reached, it is pertinent to the conten- 
 tions which I shall be obliged to notice before announcing 
 that conclusion to state the facts shown by the report and 
 maps of the Commission concerning a continuous counter- 
 fort (range or spur) stretching from the main Cordilleras 
 to Punta Mona which was made the boundary line in the 
 previous arbitration. These facts show that there is un- 
 doubtedly a high spur projecting itself out in the direc- 
 
23 
 
 tion of Punta Mona from the main range for a distance 
 of about nine miles, but there is then a sudden drop of 
 about 3600 feet in less than four miles, where an elevated 
 but broken country begins, full of ridges, transverse to 
 the direction of the spur. From this region continuing 
 towards the Atlantic there is a gradual lowering except 
 for occasional peaks, the country falling to an elevation 
 of about six hundred feet when a distance of about six- 
 teen miles from Punta Mona is reached, and sinking yet 
 farther to about three hundred feet most of the way and 
 finally subsiding into a swamp which is a mile and one- 
 half wide, until a small eminence which marks Punta 
 Mona is attained. Whether, as is urged, the designation 
 of '' counterfort " was mistakenly applied to such a situa- 
 tion, however, I am not called upon to consider, since my 
 conclusion, as I have said, is wholly independent of that 
 fact. 
 
 There is no real controversy between the parties as to 
 the facts previously stated. I say real controversy be- 
 cause if it be that there is any dispute on the subject the 
 preponderance of evidence makes such clear proof con- 
 cerning such facts that they may be accurately said to be 
 not disputable. And in my opinion it is also true to say that 
 likewise the inferences which I have drawn from the facts 
 stated in the course of making the statement are so clearly 
 compelled by the facts stated as to be equally beyond dis- 
 pute. I now come to consider the propositions relied 
 upon by the parties in the light of the facts and the infer- 
 ences which I have heretofore or shall hereafter draw from 
 them under a heading — The Merits of the Controversy. 
 
 The Merits of the Controversy. 
 
 Costa Rica insists, first that under the facts the selec- 
 tion by the Arbitrator of Punta Mona as an initial bound- 
 ary point and the making of the boundary line by a range 
 or spur of mountains extending from there to the Cordiller- 
 as was void because beyond the scope of the authority 
 
24 
 
 which the arbitration embraced. Second, it insists that in 
 any event as something cannot be made out of that which 
 does not exist, it clearly follows that the selection of the line 
 was in other respects void since under the proof it is demon- 
 strated that the mountain range made the basis of the award 
 has no existence. 
 
 On the part of Panama the contention is, first, that assum- 
 ing the facts which I have given in stating the history of 
 the case to be true, nevertheless the line of alleged moun- 
 tain boundary was within the power of the Arbitrator to 
 fix because the authority to do so was conferred upon him 
 by the treaty upon which the arbitration was made. And 
 second, that this view remains unaffected even if it be 
 assumed that the range of mountains has no existence since 
 the line of boundary which that range was intended to mark 
 remains and is plainly discernible by the conformation of 
 the country and the watershed which it contains. Third. 
 It is additionally insisted by Panama that the validity 
 of the line of mountain boundary must be tested not by 
 the assumed dominancy of any general principles of law 
 governing arbitration, but by the former arbitration treaty 
 alone, because the treaty under which the power to arbitrate 
 is now being exercised confines the authority of the present 
 Arbitrator to determining whether the previous award was 
 within the terms of the previous treaty and excludes the 
 power to hold the previous award invalid if it was within 
 the treaty upon the theory that it conflicted with general 
 and controlling principles of law. 
 
 Considering these propositions as a whole, inasmuch 
 as there can be no question of the power of the two Gov- 
 ernments to have entered into the previous treaties of arbi- 
 tration and to insert in them such provisions as they 
 deemed best, it clearly results that the first proposition of 
 Panama, if its premise be true, is well founded and is con- 
 trolling since it cannot be said that action taken under the 
 treaties was void for want of power if it was within the 
 power which the treaties conferred. It also is patent, 
 this being true, that it cannot be held under this treaty 
 
25 
 
 that an act done under the prior treaty was void al- 
 though sanctioned by such treaty because of some concep- 
 tion of general principles of law. This must be the case 
 because to so do would amount to deciding that this treaty 
 gave the power to set aside acts which were authorized by 
 the previous treaty. It thus necessarilly comes to pass 
 that the fundamental question to be decided requires it 
 to be determined whether the boundary line fixed by the 
 previous arbitration was within the previous treaty or 
 treaties. And if it was not, it must follow that its cor- 
 rection is within the scope of the authority conferred 
 by this treaty ; and if it was, no power here obtains to re- 
 vise it. It is therefore true that the whole case comes 
 down to the question stated : which is, the scope and mean- 
 ing of the prior arbitration treaty or treaties, and the 
 solution of that inquiry will decide both of the proposi- 
 tions relied upon by Costa Rica, as well as all those in- 
 sisted upon by Panama. 
 
 The study of that question from the point of view of the 
 argument presented by Panama requires the iromediate 
 consideration of the text of the previous treaty, that of 
 1886, the pertinent articles of which are as follows : 
 
 "Article II. The territorial limit which the Re- 
 public of Costa Rica claims, on the Atlantic side, 
 reaches as far as the Island Escudo de Veraguas, and 
 the River Chiriqui (Calobebora) inclusive; and on 
 the Pacific side, as far as the River Chiriqui Viejo, 
 inclusive, to the East of Point Burica. 
 
 ''The territorial limit which the United States of 
 Colombia claims reaches, on the Atlantic side, as far 
 as Cape Gracias a Dios, inclusive ; and on the Pacific 
 side, as far as the mouth of the River Golfito and in 
 Gulf Dulce. 
 
 "Article III. The arbitral award shall confine 
 itself to the disputed territory that lies within the ex- 
 treme limits already described, and cannot affect in 
 any manner any rights that a third party, who has 
 not taken part in the arbitration, may set up to the 
 
ownership of the territory comprised within the 
 
 limits indicated." 
 The construction relied upon to establish that the moun- 
 tain boundary was within these treaty provisions and there- 
 fore valid and not subject to be re-examined under this 
 treaty is this: The second article, it is said, specifically 
 states the exterior points of the vast territory which 
 was in dispute and therefore brought within the juris- 
 diction of the Arbitrator everything within those ex- 
 terior boundaries and gave him authority at his discre- 
 tion w^holly without reference to any particular contro- 
 versy pending or dispute existing as to claims within 
 the boundaries, to fix such a line of boundary within 
 the exterior limits as was deemed best. And support for 
 this proposition is derived from the clause of the third ar- 
 ticle saying, ' ' The Arbitral award shall confine itself to the 
 disputed territory that lies within the extreme limits al- 
 ready described, ' ' the construction given to these words be- 
 ing that they empower the fixing of a line not only concern- 
 ing a dispute as to the exterior limits, but a line within 
 the exterior limits wholly without reference to the dis- 
 putes prevailing between the parties as to land within 
 the exterior limits. The demonstration of the extreme 
 result which would come from maintaining the construc- 
 tion thus asserted is too plain to require more than to 
 direct attention to the consequences which would result 
 from sustaining it — consequences which could not be better 
 exemplified than they are by the facts of this case where in 
 a dispute only as to which of two rivers was the bounding 
 one with no difference whatever as to what either of the 
 parties would be entitled to if either river relied upon was 
 made the boundary, no river boundary was made, but a 
 mountain range was fixed carrying with it a large amount 
 of territory to which the successful party would not pos- 
 sibly have had any title if every claim which was made in 
 the dispute as to that boundary had been held to be correct. 
 Besides, on the face of the text the curious premise upon 
 
27 
 
 which the argument proceeds is patent since it in sub- 
 stance is that from a grant of power to determine as to 
 the ''disputed territory that lies within the extreme limits" 
 there arose the right to determine as to territory within 
 such limits as to which there was no dispute whatever. 
 And that this anomalous result of the proposition is not 
 overdrawn is made manifest by the statement on the sub- 
 ject in the argument on behalf of Panama, where it is said : 
 
 ''Article III only provides that the award shall be 
 confined to the disputed territory within the limits 
 fixed by Article II, and cannot affect the rights of 
 third parties. * * * 
 
 "It will be noted that the only limitation which 
 these Articles imposed upon the Arbitrator was with 
 regard to the terminal points of the boundary which 
 he should fix. He could not, upon the Atlantic, fix a 
 line which should begin south or east of Escudo de 
 Veraguas or the mouth of the river Chiriqui, nor 
 north of the northern frontier of Costa Rica; nor 
 could he fix any line which should meet the Pacific at 
 a point south of the Chiriqui Viejo or north of the 
 Golfito. 
 
 "But except in this respect his jurisdiction was 
 unlimited. No claim was made by either party as to 
 interior lines and nothing in the treaty prescribes 
 any rule upon the subject. So long as the terminal 
 points upon the two coasts were within those stated, 
 he was at complete liberty, in the interior, to connect 
 them by a line running in whatever course he should 
 think proper. ' ' 
 
 I do not stop to point out how plain would be the duty to 
 resort to every reasonable intendment to save the articles 
 of the treaty from the construction attributed to them if 
 the premise upon which the proposition rests were true 
 that their text alone afforded the measure of deciding the 
 question of power conferred as to the boundary issue. 
 But the question of power is not to be solved alone by the 
 article of the treaty thus relied upon by Panama, since on 
 the face of the record it is apparent that it must be solved by 
 
28 
 
 the text of a different treaty which when it is considered 
 renders it impossible to ascribe the meaning relied upon to 
 the provisions referred to. A brief recurrence to the his- 
 tory of the case previously made will make this clear since 
 that history shows beyond the possibility of question that 
 the boundary dispute was first provided for by the Treaty of 
 1880 and contained a limitation or direction based upon 
 the Treaty of 1825 between Colombia (Panama) and Central 
 America (Costa Rica) which causes it to be impossible to 
 suppose that the extensive power now claimedwas conferred 
 concerning the boundary dispute. This becomes clearer, 
 if it were possible to add to its clearness, when the state- 
 ment is recalled that when the Treaty of 1886 was drawn 
 in express terms it reserved the powers granted by the 
 previous Treaty of 1880 and declared that the powers 
 created under the new treaty were additional to those con- 
 ferred by the former, and to make assurance doubly sure, 
 there was added to the Treaty of 1886 a clause saving from 
 repeal the Treaty of 1880. 
 
 Even upon the hypothesis that the Treaty of 1880 pro- 
 vided both for the boundary dispute and for the territorial 
 claim up to Cape Gracias a Dios which embraced on the 
 Atlantic side the exterior boundaries subsquently stated in 
 the Treaty of 1886, such assumption would be without con- 
 sequence because it could not possibly be assumed that the 
 inclusion of the larger and wholly distinct territorial claim 
 was intended to destroy the express limitations concern- 
 ing the boundary claim which the treaty embodied by mak- 
 ing reference as it did on that subject to the articles of the 
 Treaty of 1825. And, indeed, this would be the result if it 
 were additionally supposed for the sake of argument that 
 the Treaty of 1880 and the Treaty of 1886 became incorpor- 
 ated into one and the same instrument by the effect of the 
 adoption of the Treaty of 1886, since it would be obvious 
 under the terms of the Treaty of 1886 as thus construed 
 that it was the clear intention of that treaty to preserve un- 
 impaired and unchanged the powers, duties and limita- 
 tions previously created and therefore to impose the duty 
 
29 
 
 of enforcing the two harmonionsly so that the duties under 
 both might be performed. 
 
 While these considerations dispose of all the principal 
 arguments advanced to maintain the contention that the 
 text of the Treaty of 1886 sustains the extreme power 
 asserted and I might well pass from the subject, neverthe- 
 less before doing so in order not to seem to overlook sug- 
 gestions made or necessarily arising, I proceed to notice 
 some considerations concerning some words in the text 
 which have been deemed to be of importance but which I 
 have not previously noticed in order to avoid breaking the 
 continuity of the argument. The clause in the third 
 article of the Treaty of 1886 saving the rights of third 
 parties, it is suggested by reasoning whose import is not 
 clearly discernible, lends some strength to the conten- 
 tion that the treaty conferred the extreme authority 
 claimed. But it is obvious that this clause instead of 
 removing a limit, imposed one, since its plain terms evi- 
 dence that it was intended in any and all events but to 
 restrict the operation of the award so as not to affect 
 third parties — a restriction presumably inserted because 
 at the time the treaty was drawn the United States was 
 insisting that rights which it asserted might otherwise 
 without such restriction be affected, and, moreover, because 
 the line embraced in the shore claim of Panama, as we have 
 seen, extended beyond the territory of Costa Rica up to 
 Cape Grracias a Dios. And the contention in another as- 
 pect, manifests a confusion like that which I have pre- 
 viously pointed out since it would be singular, indeed, to say 
 that a limitation which was inserted for the purpose of pro- 
 tecting those who were not heard had for its object the ex- 
 tension of the scope of the arbitration so as to cause it to 
 embrace as to the parties to the convention the absolute 
 right on the part of the arbitrator to condemn them without 
 a hearing, which, of course, would be the result if the 
 provision had the extreme construction which it is now in- 
 sisted belongs to it. 
 
30 
 
 From these considerations the following general con- 
 clusions are established: (1) That the controversy as to 
 boundary between the parties which had existed for so 
 many years was limited to a boundary line asserted by 
 one party and to that asserted by the other, the territory 
 in dispute between them, therefore, being that embraced 
 between the lines of their respectively asserted boundaries. 
 (2) That the previous treaties of 1880 and 1886 by which 
 the boundary dispute thus stated was submitted to arbitra- 
 tion, instead of going beyond the general principles of law 
 which otherwise would have applied and conferring an 
 extreme power to make an award wholly without reference 
 to the dispute or the disputed territory, by their very 
 terms confined the award to the matter in dispute and the 
 disputed territory. (3) That as the line of boundary 
 fixed by the previous award from Punta Mona to the Cor- 
 dilleras was not within the matter in dispute or within 
 the disputed territory, it results that such award was 
 beyond the submission and that the Arbitrator was without 
 power to make it, and it must therefore be set aside and 
 treated as non-existing. The only question then is, Wliat 
 in other respects is the duty arising under the present 
 arbitration from that situation? 
 
 As by the terms of the present treaty the previous award 
 was not set aside as a whole, and the power was only given 
 to correct it in so far as it might be found to be without the 
 authority conferred, the consequence is that all the results 
 necessarily implied by the selection of the mountain line 
 from Punta Mona along the stated counterfort, which can 
 be upheld consistently with the previous treaty, must be sus- 
 tained although the mountain line itself be void for want of 
 authority to make it. While not in express terms urged, 
 it may be implied from the argument that the contention is 
 that, the mountain line being out of the way for illegality, 
 there would remain as a part of the previous award a river 
 line composed of the Sixaola-Tarire Rivers since the award 
 declared that the mountain line would bound on the north 
 the valley of such rivers and hence they may constitute 
 a boundary line within the award previously made. To 
 
31 
 
 dispose of this suggestion it is only necessary to point out 
 the fallacy of the premise upon which it must rest since that 
 premise virtually is that the previous selection was of a 
 line formed by the Sixaola-Tarire Elvers instead of the 
 counterfort or range of mountains. But this is so obviously 
 refuted by the record as to need only a few words of state- 
 ment to demonstrate its error. In the first place the line 
 previously fixed did not even commence with the mouth of a 
 river, but began at Punta Mona, and in express terms was 
 declared to proceed along the counterfort. It is true, as is 
 suggested, that it was said that the line thus made bounded 
 on the north the valley of the Sixaola and Tarire, but this 
 declaration did not convert the mountain boundary into a 
 river one. In fact such a view of the previous award could 
 only be taken as the result of wholly inadmissible sur- 
 mises and conjectures. It is certain, as indicated by the 
 letter of Monsieur Delcasse previously quoted, that there 
 was not a complete knowledge of the geography of the coun- 
 try when the previous award was made. And it is also cer- 
 tain that under the previous arbitration there were present 
 maps showing a range of mountains from Punta Mona to 
 the Cordilleras ostensibly of such a permanent and domi- 
 nant character as to cause it, if existing, to constitute a 
 natural frontier dividing for all practical purposes the 
 country on the one side from that lying on the other. Wlien 
 this is borne in mind a reason which may have given rise 
 to the selection of the mountains is not far to presume since 
 the natural frontier which their presence would cause and 
 the benefit to arise from the establishment of such frontier 
 may well have led the mind to consider that subject from 
 the point of view of statesmanship alone and therefore have 
 unwittingly concentrated attention exclusively on the ad- 
 vantages of such a boundary and thus have diverted atten- 
 tion from the consideration of the limits which inhered in 
 the submission. On the contrary the suggestion relied 
 upon would necessarily compel it to be assumed that al- 
 though a river boundary was selected, a mountain bound- 
 ary was for some unaccountable and undisclosed reason 
 named. 
 
 ^ 
 
32 
 
 As it is conceded by both parties that under this treaty 
 there is the power and duty to substitute for the line 
 set aside, a line within the scope of the authority granted 
 under the previous treaty "most in accordance with the 
 correct interpretation and true intention" of the former 
 award, I come to that subject. As it was impossible to 
 make the previous selection of a mountain line with- 
 out rejecting both the claim of Colombia (Panama) to 
 the shore up to Cape Gracias a Dios and also without ad- 
 versely disposing of the claim of Costa Rica to the bound- 
 ary of the Chiriqui River, both of those express or im- 
 plied awards remain unaffected by the fact that it is now 
 held that the mountain boundary line was void. And 
 by the same reasoning it follows that the initial point 
 of the boundary which is to replace the rejected one must 
 and can only be the mouth of the first river below Punta 
 Mona, the Sixaola, since there is physically no other river 
 mouth to respond to the claim made under the circum- 
 stances stated. Besides, this result is inevitable because the 
 mouth of such river, under the facts stated, is indubitably 
 the initial point on the Atlantic of the river boundary 
 contemplated by the parties from the beginning, sus- 
 tained by all the facts to which I have referred as to 
 negotiations, declarations and settlements and the exertion 
 of governmental power by the two countries consequent 
 thereon. It is true it results from the previous statement 
 that the river which was relied upon by Colombia (Panama) 
 as the boundary was designated by various names because, 
 undoubtedly, of the want of accurate geographical knowl- 
 edge which prevailed. But whatever may have been 
 the Babel of names, there can be no doubt that they all 
 came to be used to designate virtually one and the same 
 river emptying into the Alantic at about one and the same 
 place and having virtually one and the same course or 
 flow from the source near the mountains to the mouth in 
 the Atlantic. Nothing could serve to make this clearer than 
 does the statement which was made by the Colombian Con- 
 gress in 1856 which, while it described the river as the 
 
33 
 
 Doraces, fixed its mouth as the one first below Piinta Mona, 
 and the further illustration which is afforded by the facts 
 previously stated concerning the settlements at the mouth 
 of the Sixaola by Colombia and the claim of authority which 
 the government of that country asserted thereunder. And 
 this serves to make clear what river was referred to by 
 the use of the name Culebras, since the President of the 
 State of Panama had in 1870 declared that that river 
 was the same as the Doraces. Moreover, when the situation 
 is rightly appreciated these facts readily explain why in 
 the Eesolutions of the Colombian Senate which immedi- 
 ately preceded the Treaty of 1880 the river upon which Co- 
 lombia relied as the boundary was described as the Culebras 
 and not as the Sixaola, which latter river was then known to 
 be the river having its mouth the first below Punta Mona, 
 and therefore was the same as the Doraces or Culebras. 
 But the claim of Colombia as first formulated in 1836 in 
 the organization of the territory knoAvn as Bocas del Toro, 
 called the river whose mouth was fixed as the boundary, 
 the Culebras. And therefore it is quite natural to assume 
 that in stating the claim for the purposes of the Eesolutions 
 and the controversy then pending, desirous of losing noth- 
 ing of the original right and of retaining everything that 
 had accrued under it by way of negotiations, admissions and 
 settlements, the original description was adhered to and 
 reiterated — a conclusion whose cogency is greatly reinforced 
 when it is considered that years before Sen or Madrid, the 
 Colombian publicist, had recognized that the river which 
 Colombia referred to as the Culebras was the river which 
 Costa Rica referred to as the Sixaola. To adopt views 
 contrary to those just stated would necessarily lead to the 
 conclusion that because in formulating its claim Colombia 
 in order to preserve it in its integrity had resorted to the 
 definition of that claim as originally stated, it had thereby 
 abandoned its right, or, what is equivalent thereto, had 
 by resorting to the most efficient way of stating that claim 
 acquired a non-existing, unheard of or imaginary one. 
 
 The only remaining question then is, how is the boundary 
 line to proceed from the mouth of the Sixaola Biver to the 
 
34 
 
 Cordilleras until it joins the line terminating "beyond 
 Cerro Pando"? 
 
 On the one hand it is claimed that such line should follow 
 the thalweg of the Sixaola Eiver to the point where it joins 
 with a river called the Yorquin, then follow that stream in 
 a southerly direction to its source in or near the mountains 
 and thence to the point "beyond Cerro Pando." On the 
 other hand the contention is that the line should run by the 
 Sixaola passing the entrance of the Yorquin to a point 
 where the Tarire is attained and then follow that river to 
 its source in the Cordilleras and thence by a line to the point 
 "beyond Cerro Pando." This contention rests upon the as- 
 sumption that the Sixaolo and Tarire Eivers are shown to 
 be really one and the same, although designated by different 
 names. It cannot be denied that the direction of the bound- 
 ary river, if the Sixaola-Tarire be selected, would be wholly 
 at variance with the trend of the river boundary contem- 
 plated from the beginning and would project a line of 
 boundary into territory over which the authority of Costa 
 Rica was never questioned and thus give to Panama what 
 she had never claimed. While, on the contrary, the line of 
 the Sixaola-Yorquin, if followed, would in substance con- 
 form in its course and direction with that which had been 
 recognized as the direction of the boundary line from the 
 begianing and had been virtually treated as not the subject 
 matter of dispute up to and during the proceedings had un- 
 der the previous treaty. And no reason is afforded for 
 departing from the river line thus shown to be the bound- 
 ary line within the dispute between the parties by suggest- 
 ing that some other river line would most comport with the 
 interests of the two governments and best subserve the pur- 
 pose of a boundary. To admit such considerations would in 
 substance but be indulging in views of public policy and 
 public interest which would lead the mind away from the 
 fundamental proposition which is here controlling, that is, 
 the execution of the duty of arbitration which calls for judg- 
 ment as to a dispute between the parties and affords no 
 room for the application of discretion beyond the limit 
 which that consideration necessarily imposes. Discretion 
 
35 
 
 or compromise or adjustment, however cogent might be the 
 reasons which would lead the mind beyond the domain of 
 rightful power, and however much they might control if 
 excess of authority could be indulged in, can find no place 
 in the discharge of the duty to arbitrate a matter in dispute 
 according to the submission and to go no further. No 
 more fatal blow could be struck at the possibility of arbi- 
 tration for adjusting international disputes than to take 
 from the submission of such disputes the element of security 
 arising from the restrictions just indicated. Under these 
 circumstances, since the duty here is not to elucidate and 
 pass upon mere abstract questions of geography, nor to sub- 
 stitute mere expediency for judgment, but to determine 
 what was the river claimed as the boundary by Colombia, 
 declared by her to be the boundary for so many years, to 
 which she asserted rights and which virtually was claimed 
 to be the boundary upon which she relied prior to the entry 
 into the previous treaty for arbitration and in the proceed- 
 ings under that treaty, it is plain that the Sixaola-Yorquin 
 is the line which should take the place of the line from 
 Punta Mona along the counterfort of the Cordilleras to the 
 point ''beyond Cerro Pando," as declared in the previous 
 award. 
 
 In framing the award and coming to particularly specify 
 the new line there may arise some difficulty because of the 
 absence of precise geographical data as to the situation at 
 the headwaters of the Yorquin Eiver and therefore of the 
 considerations which should control the drawing of the line 
 from such headwaters to the Cordilleras. In the argument 
 of this case Costa Rica stated a formal decree which it 
 deemed should be entered upon the hypothesis that the 
 award here made should be against the mountain line and 
 in favor of the Sixaola-Yorquin line, and no objection to the 
 form of such proposed decree has been made by Panama. 
 Following the line to the headwaters of the Yorquin, the 
 proposed decree from thence directs a stated line to the 
 Cordilleras. This line rests upon the assumption that 
 the headwaters of the Yorquin lie in the region of the 
 northern slope of the northern watershed of a river known 
 
36 
 
 as the Changuinola, and the proposed line runs from 
 the headwaters of the Yorquin along such watershed to 
 the Cordilleras. The situation thus assumed by the pro- 
 posed decree to exist in the region of the headwaters 
 of the Yorquin is in conformity with maps which are 
 in the record, one of which was made by the Commis- 
 sion of Engineers in this case, but which is not, however, 
 the result of a survey by that body as it was not called 
 upon by either party to make one. As the line thus suggested 
 would seem to be in all respects the most reasonable, I shall 
 adopt it with some verbal modifications as a part of the 
 award to be entered, however, with the following reserva- 
 tion: without prejudice to the right of the parties in case 
 there should be differences between them resulting from 
 contentions as to the topography of the country between the 
 headwaters of the Yorquin and the Cordilleras differing 
 from that above stated, to raise such question in any appro- 
 priate way consistent with the provisions of the treaty 
 now being enforced. 
 
 Coming to give effect to the opinions previously stated 
 and the conclusions deduced from them, the award now 
 made under the authority of the treaty is as follows : 
 
 1. That the line of boundary which was purported to be 
 established by the previous award from Punta Mona to the 
 main range of the Cordilleras and which was declared to be a 
 counterfort or spur of mountains in said award described, be 
 and the same is held to be non-existing. 
 
 2. And it is now adjudged that the boundary between the 
 two countries "most in accordance with the correct interpre- 
 tation and true intention" of the former award is a line 
 which, starting at the mouth of the Sixaola River in the At- 
 lantic, follows the thalweg of that river, upstream, until it 
 reaches the Yorquin, or Zhorquin River; thence along the 
 thalweg of the Yorquin River to that one of its headwaters 
 which is nearest to the divide which is the north limit of the 
 drainage area of the Changuinola, or Tilorio River ; thence 
 up the thalweg which contains said headwater to said divide ; 
 thence along said divide to the divide which separates wat- 
 ers running to the Atlantic from those running to the Pa- 
 
37 
 
 cific; thence along said Atlantic-Pacific divide to the point 
 near the ninth degree of north latitude "beyond Cerro Pan- 
 do," referred to in Article I of the Treaty of March 17th, 
 1910 ; and that line is hereby decreed and established as the 
 proper boundary. 
 
 3. That this decree is subject to the following reserva- 
 tions in addition to the one above stated : 
 
 (a) That nothing therein shall be considered as in any way 
 re-opening or changing the decree in the previous arbitra- 
 tion rejecting directly or by necessary implication the claim 
 of Panama to a territorial boundary up to Cape Gracias a 
 Dios, or the claim of Costa Rica to the boundary of the Chi- 
 riqui River. 
 
 (b) And, moreover, that nothing in this decree shall be 
 considered as affecting the previous decree awarding the 
 islands off the coast since neither party has suggested in 
 this hearing that any question concerning said islands was 
 here open for consideration in any respect whatever. 
 
 (c) That nothing in the award now made is to be construed 
 by its silence on that subject as affecting the right of either 
 party to act under Article VII of the treaty providing for the 
 delimitation of the boundary fixed if it should be so 
 desired. 
 
LIBRARY OF CONGRESS 
 
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 015 817 409 1 ' 
 
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