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GIFT OF 
 
REMARKS ON THE ARBITRAL SENTENCE 
 
 lounced by the President of the Argentine Republic on July 9, 1909 
 
 ON THE 
 
 BOUNDARY QUESTION 
 
 BETWEEN 
 
 BOLIVIA AND PERU 
 
 By PASQUALE FIORE 
 
 Member of the Council for Diplomatic Contentions and of the Institute of International Law, 
 Senator of the Kingdom of Italy 
 
 Translated from the French by 
 
 FANNY R. BANDELIER 
 
 From the 
 
 REVUE GENERALE DE DROIT INTERNATIONAL PUBLIC 
 
 NEW YORK 
 
REMARKS ON THE ARBITRAL SENTENCE 
 
 Pronounced by the President of the Argentine Republic on July 9, 1909 
 
 ON THE 
 
 BOUNDARY QUESTION 
 
 BETWEEN 
 
 BOLIVIA AND PERU 
 
 By PASQUALE FIORE 
 
 iber of the Council for Diplomatic Contentions and of the Institute of International Law, 
 Senator of the Kingdom of Italy 
 
 Translated from the French by 
 
 FANNY R. BANDELIER 
 
 From the 
 
 RclVUE GENERALE DE DROIT INTERNATIONAL PUBLIC 
 
 NEW YORK 
 
tn 
 
 OBSERVATIONS 
 
 REMARKS UPON THE ARBITRAL SENTENCE REN- 
 DERED BY THE PRESIDENT OF THE ARGENTINE 
 REPUBLIC ON JULY 9, 1909, IN THE CONFLICT 
 BETWEEN THE REPUBLIC OF BOLIVIA AND THAT 
 OF PERU IN THE MATTER OF DEMARCATION OF 
 THE BOUNDARY BETWEEN THE TWO STATES. 
 
 Arbitration has become one of the most important juridical 
 institutions for disposing of international conflicts and giving satis- 
 faction to the aspirations of those who endeavor to settle differences 
 between States without hurting their respective dignity, by removing 
 the causes of ill-feeling that might occasionally jeopardize their 
 peaceful relations. 
 
 All who comprehend its importance and practical efficiency ac- 
 knowledge that in order to better enable arbitration to attain its 
 purpose it must be useful to secure for it a regular working. It 
 must therefore be considered as opportune, not only to place in evi- 
 dence its undeniable advantages but also to indicate the incon- 
 veniences which might result from the administration of arbitral 
 Justice, in order to prevent their recurrence and thus render in 
 future the functioning of this judicial method more perfectly. 
 
 Having been invited to express our opinion on the sentence of 
 arbitration rendered by the President of the Argentine Republic 
 in the controversy between Bolivia and Peru, we have concluded to 
 do it with the view of presenting an impartial study of that arbi- 
 
 240984 
 
tration and of investigating if the principles of international law 
 that in our understanding should always preside over the adminis- 
 tration of arbitral Justice, have been rigorously observed. Our re- 
 marks will not be in the least based upon the preconceived idea of 
 criticizing or of favoring the manifestation of certain sentiments that 
 have revealed themselves in regard to that sentence. Far be it from 
 us to forget the respect due in principle to the decisions of the arbi- 
 trating authority destined to settle definitively all disputes, nor to 
 perpetuate the discussion of facts which may have given rise to the 
 said decisions. We belong to the class of authors that have devoted 
 and do devote their existence to the consolidation, in international 
 society the preponderating rule of Right, and only in the quality 
 of a modest writer do we propose to submit our observations in the 
 hope of contributing as much as we may be able to do toward an 
 improvement in the exercise of arbitral Justice, increase its growing 
 prestige and enable it to attain more securely the aim which it must 
 have in view. 
 
 Under these premises our remarks may be regarded as the work 
 of a Jurisconsult expressing his opinion on decisions rendered by 
 high juridic authorities. It cannot be sufficient that Justice be just, 
 it must also appear as solidly based upon the just principles of Law. 
 Thus it must be with arbitral Justice, so that its sentence will not 
 merely terminate litigation, but that it may have indisputable moral 
 value. It is always through critical observations on the sentences of 
 the highest courts that progressive development of justice is attained. 
 It lies beyond all doubt that these high authorities whose sentences 
 are discussed in complete scientific independence, cannot find in that 
 anything that might affect their dignity or diminish their prestige. 
 Thus, at the present time, while we write these lines, a profound 
 discussion is carried on in the juridic circles of Naples to critically 
 examine an important sentence pronounced by the Court of Appeals 
 of Rome with the attendance of all its sections, on a question 
 already discussed extensively in the courts of Italy, as to whether the 
 excess in value of stocks issued by an anonymous society is liable to a 
 
revenue tax like all industrial income. The decision of the High 
 Court of Justice has been vigorously combated and criticized, never- 
 theless, none of the members of that court has found in those criti- 
 cisms anything derogatory to his dignity or prestige. 
 
 In the above it has been our purpose to indicate that critical 
 remarks on the sentences of tribunals of arbitration, if impartial, 
 cannot have the effect of impairing the importance or efficiency of 
 the arbitration destined to satisfy the aspirations of friends of 
 peace who look to it as the institution best adapted for the settle- 
 ment of international conflicts. We have also wanted to demon- 
 strate that these observations can in no manner affect the dignity of 
 the arbiter from whom the sentence emanates. 
 
 The remarks we purpose to make can in no manner offend the 
 high personality of the President of the Argentine Republic, nor 
 lead to suspect his indisputable impartiality as judge. We profess 
 the highest respect for the exalted magistracy of the arbiter and 
 regard as beyond discussion the exalted sentiments of Justice that 
 inspire him in ultimately solving and settling the dispute between 
 Bolivia and Peru, hence we simply propose to formulate objective 
 criticisms, in the general interest, of a better functioning of arbitral 
 Justice, as jurists who desire to co-operate to an improved admin- 
 istration of national Justice. 
 
 FACTS 
 
 On the 21st of November, 1901, Bolivia and Peru concluded, 
 at La Paz, a general treaty of arbitration, by which they agreed on 
 principle, by Article 1, to submit to arbitration all differences exist- 
 ing and hereafter to come up, of whatever origin and nature, and 
 they also have determined the general rules after which the arbi- 
 trage is to be affected. 
 
 Art. 2 of that convention disposes : 
 
 Art. 2. If the case should present itself, the contracting parties 
 will conclude a special convention for determining the nature of the 
 
disagreement, to fix the points to be settled, the extent of the facul- 
 ties of the arbiter and the procedure to be observed. 
 
 The High Contracting Parties have determined the functions of 
 the arbiter in Articles 7 and 8 in which his competency is precised 
 and which read as follows : 
 
 Art. 7. On the questions of a technical or scientific character 
 that will come up in the course of this litigation, the arbiter is under 
 the obligation to ask for the advice of the Royal Geographical So- 
 ciety of London or of the International Geodetic Institute of Berlin. 
 
 Art. 8. The arbiter shall pronounce in strict conformity with 
 the prescriptions of international law and, in the matter of boun- 
 daries, to the American principle of uti possidetis of 1810, when- 
 ever the convention referred to in Article 2 does not establish special 
 rules or does not authorize the arbiter to pronounce in the quality of 
 a friendly intermediary. 
 
 In conformity with this general agreement Bolivia and Peru 
 executed at La Paz the special convention of December 11, 1902, 
 for the purpose of settling their dispute about the limitation of their 
 respective territories. 
 
 This convention reads as follows : 
 
 Art. 1. The High Contracting Parties submit to the judgment 
 and decision of the Government of the Argentine Republic, in the 
 quality of arbitral "Judge of Law," the question of boundaries 
 pending between the two Republics of Bolivia and Peru, in order to 
 obtain by it a sentence, definitive and without appeal, according to 
 which the entire area which, in 1810, pertained to the jurisdiction 
 or district of the former AUDIENCIA of CHARCAS, within the 
 limits of the viceroyalty of Buenos Ayres according to the decrees 
 of the former sovereign, the King of Spain shall belong to the 
 Republic of Bolivia and all the territory that, at the same date and, 
 according to the enactment of the same sovereign, pertained to the 
 viceroyalty of Lima, shall revert to the Republic of Peru. 
 
 Art. 2. The treaty of September 23d of the current year hav- 
 ing regulated the demarcation and bounding of the frontier that 
 
begins between the Peruvian provinces of ARICA and TACNA 
 and the Bolivian province of CARANGAS on the West to the 
 glaciers of PALOMANI that section is not included in the pres- 
 ent treaty. 
 
 Art. 3. In order to pronounce sentence the arbiter shall adhere 
 to the laws in the "Recopilacion de Indias," to the royal decrees 
 and ordinances, Ordinances of the Intendentes, to the diplomatic 
 documents concerning the outlining of boundaries, to the official 
 maps and descriptions and, in general, to all official documents 
 issued in order to furnish the true bearing of and to enable the 
 execution of the royal dispositions aforesaid. 
 
 Art. 4. Whenever the legal enactments or dispositions should 
 not clearly define the domain of a territory, the arbiter shall solve 
 the question in an equitable manner, adhering, as far as possible, to 
 the bearings of these documents and to the spirit that may have 
 inspired them. 
 
 Art. 5. Possession of a territory by one of the High Contract- 
 ing Parties cannot militate against the titles or royal acts which 
 would establish the contrary, nor can it prevail against them. 
 
 Art. 6. The High Contracting Parties shall, as soon as the 
 ratifications of this present treaty have been exchanged, simultane- 
 ously solicit from the Argentine Government, by means of their 
 Envoys Extraordinary and Plenipotentiaries to accept the charge of 
 arbiter, assuming the jurisdiction through the cognizance, investi- 
 gation and resolution of the controversy and establish the procedure 
 to be followed or observed. 
 
 Art. 7. One year after the acceptance of the charge has been 
 communicated, the said diplomatic representatives shall present 
 their informations exposing the rights of their respective States and 
 shall produce the documents supporting them and upon which they 
 are based. 
 
 Art. 8. The aforesaid diplomatic agents shall be the legal repre- 
 sentatives of their governments with all faculties requisite for re- 
 ceiving and presenting allegations and answering the same, offering 
 
evidence, presenting and developing annexes, furnishing all data 
 that might explain rights under discussion and finally, for following 
 the litigation to its end. 
 
 Art. 9. Once the sentence rendered it shall be carried out 
 definitively through the fact of having been brought to the knowl- 
 edge of the said Envoys Extraordinary and Ministers Plenipoten- 
 tiary of the High Contracting Parties. From that time on, the 
 territorial delimitation will be held as definitive and binding between 
 the two Republics. 
 
 Art. 10. In regard to what is not specially established by this 
 treaty, the one of November 21, 1901, shall remain in force. 
 
 Art. 11. After this treaty has been approved and ratified by 
 the governments of both countries, its ratifications shall be ex- 
 changed without delay at LA PAZ or at LIMA. 
 
 (Signed) ELIODORO VILLAZON. 
 FELIPE DE OSMA. 
 
 This treaty, approved by the National Government of Bolivia 
 at LA PAZ on November 11, 1903, was ratified there on January 
 14, 1904. 
 
 The Argentine Government was solicited to that effect by the 
 respective Plenipotentiaries of both Republics, who communicated 
 to it the compromise of December 30, 1902, to accept the functions 
 of arbiter. His Excellency the President of the Argentine Republic 
 consented to accept, in order to render thus a new service to the 
 cause of peace, and his acceptance was notified to the Plenipoten- 
 tiaries of the two contending States on July 30, 1904. 
 
 The President thus legally invested with the functions of 
 arbiter, in this quality appointed, by his decree of October 20, 
 1904, a Commission destined to assist him in his arbitration. 
 
 This consulting Commission fulfilled its mission by examining 
 all the allegations, replies and counter replies, documents and all the 
 evidence produced by each of the two parties and, considering its 
 mission as thereby fulfilled, submitted to the President in a note 
 
 8 
 
dated June 1, 1909, and addressed to the Minister of Foreign 
 Affairs of the Argentine Republic, the following project relative 
 to the line of demarcation. 
 
 This note reads as follows : 
 
 "MR. MINISTER. 
 
 "In the various meetings held with His Excellency the President 
 of the Republic and with Your Excellency for the purpose of 
 deliberating on the question of boundaries pending between Peru 
 and Bolivia and submitted to the Argentine Government for 
 arbitration, we have had ample opportunity to state the reasons 
 which impede the adoption of either one of the boundary lines 
 upheld by the High Parties in litigation. 
 
 "The written allegations, replies and criticisms presented by the 
 Ministers of the two Republics in support of their respective doc- 
 trines, however erudite and remarkable for their historic and 
 juridic value, have placed the discussion at the high level to which 
 it is entitled, and allows the analysis of the basis on which they 
 rest, with the abundance of data that are necessary for forming 
 definitive judgment. 
 
 "Having studied them we have reached the conclusion that the 
 law embodied in the 'Recopilacion de Indias,' the royal decrees 
 and edicts, the Ordinances of Intendentes, the diplomatic acts 
 relating to the demarcation of boundaries, the maps and official 
 descriptions and, in general, the official documents issued for giving 
 to these enactments their scope and for effecting their execution, 
 do not define the domain of these territories in litigation in a clear 
 and precise manner, so that the Argentine Government in con- 
 formity with Article 4 of the treaty of arbitration, the ratifications 
 of which were exchanged at LA PAZ on March 9, 1904, will 
 have to resolve the question in equity by adhering, as much as pos- 
 sible, to the intentions of all these elements and to the spirit that 
 may have inspired them. 
 
 "Considerations de facto and de jure which we have extensively 
 exposed to His Excellency the President and to Your Excellency, 
 
lead us to think that the line most adapted to these conditions and 
 most in accordance with the antecedents of the debate is the fol- 
 lowing: (Here follows the identical designation of the arbitral 
 sentence in which it is textually reproduced.) ^ 
 
 "Basing upon these considerations we must understand that the 
 line indicated can be regarded as the one approaching the division 
 line which, in 1310, divided the jurisdiction and district of the 
 former Audiencia de Charcas within the viceroyalty of Buenos 
 Ayres and of the jurisdiction of the viceroyalty of Lima and, in 
 fulfillment of the mission entrusted to us by decrees of October 20, 
 1904, and December 13 and 27, 1908, we recommend to the Gov- 
 ernment of Your Excellency to sanction it, as boundary between 
 the Republics of Bolivia and of Peru in order to put an end to the 
 transcendental controversy concerning the boundary of these two 
 nations." 
 
 Before the arbitral sentence had been pronounced Mr. Escalier. 
 Plenipotentiary of Bolivia, by his note of July 6, 1909, requested 
 that the question be studied in situ, in order to verify the condition 
 of the territories, the population inhabiting them, and all that might 
 be useful to protect the moral and economical interest involved 
 in the delimitation of the territories between the two Republics. 
 This request was not considered since it was admitted that, if the 
 Commission had judged it useful, it would, of its own accord, have 
 decreed the measure thus solicited. Finally, the President of the 
 Argentine Republic rendered the sentence, the text of which is as 
 follows : 
 
 ARBITRAL SENTENCE 
 OF THE ARGENTINE GOVERNMENT 
 
 Joseph Figueroa Alcorta, President of the Argentine Nation : 
 The Government of the Argentine Republic having been named 
 Arbiter and Judge in law to decide the boundary question pending 
 between the Republics of Bolivia and Peru according to the treaty 
 
 10 
 
of arbitration celebrated at the city of La Paz on December 30, 
 1902, and 'exchanged at that city May 9, 1904. 
 
 Desirous of justifying the confidence thus placed in this Govern- 
 ment by the aforesaid Republics, which are so intimately connected 
 with the Argentine through their origin, traditions and destinies and 
 having appointed a Commission of assessors actually composed of 
 Dr. Antonio Bermejo, President of the Supreme Court of this 
 nation, one-time Minister of Justice and Public Instruction and 
 former Plenipotentiary to the American International Conference 
 of Mexico; of Dr. Manuel Augustus Montes de Oca, former Min- 
 ister of Foreign Affairs, and ex-Assessor of the Argentine Govern- 
 ment in the arbitration between Chile and the Argentine; and 
 Dr. Carlos Rodriguez Larreta, one-time Minister of Foreign Af- 
 fairs, ex-Plenipotentiary to the Second Peace Conference and mem- 
 ber of the Permanent Court of Arbitration of The Hague; Secre- 
 tary, Dr. Horacio Beccar Varela. This Commission was to deter- 
 mine the mode of procedure to be followed, receive the memoirs, 
 pleadings and testimony of the High Contracting Parties and assist 
 the arbiter in the solution of the question of boundaries submitted 
 to his decision. 
 
 In view of: that this Commission after conferring with the 
 Ministers representing Peru and Bolivia, established the rules of 
 procedure to be followed and that, in conformity with these rules 
 were presented the various pleadings, replies, proofs, all carefully 
 studied by the Commission. 
 
 In view of : that according to the defense presented by Bolivia 
 the dividing line should be the following : 
 
 Starting from the South on the river Suchez, the line runs across 
 the lake of the same name its entire length and rises on the Cor- 
 dillera by Palomanitranca and by Palomanicunca to the summit of 
 that name which is the highest of the glaciers of that region then 
 descends to the eastern slope by the boundaries of Yagua-Yagua, 
 Huajza and Lurirni which define the possessions of the two Re- 
 publics. Then it follows the boundary of Hichocorpa, in the moun- 
 
 11 
 
tain chain thus called, and descends again, by the river Corimayo to 
 the river San Juan del Oro or Tambopata and beyond that stream 
 to the confluence of the river Lanza. From that point, the line goes 
 to the mouth of the Chunchusmayo at its confluence with the river 
 Inambari and then descends by it to its junction with the Marcopata. 
 It thence rises on this river to the frontier of the ancient province of 
 Paucartambo and along these limits to the place know r n in colonial 
 times by the name of Opotari at the junction of the rivers Zono and 
 Pinipini. Continuing by the boundaries of the province of Uru- 
 bamba and by the river Janatili, the line penetrates into the Uru- 
 bamba river the course of which it follows to its junction with the 
 Ucayali, whence it goes to the slope of the Yavari along the right 
 bank of this stream. 
 
 In view of: that the defense of Peru resumes the claims of that 
 State in the following manner : 
 
 (1) In 1810 the Audiencia of Charcas in the viceroyalty of 
 Buenos Ayres comprised, in what pertains to the question now 
 under our consideration, from the point, where, according to the 
 treaty of September 23, 1902, the demarcation of the Peru-Bolivian 
 frontier is to terminate, by the line dividing the waters of the rivers 
 Tambopata and Tuiche to the sources of the river Madidi following 
 that stream to its confluence with the Beni and thence eastward to 
 meet the river of the Exaltation Iruyani, the course of which and 
 that of the Mamore to the mouth of the Guapore or Iteneez were 
 the terminal points of the lines of demarcation. 
 
 (2) The territories north and northeast of that line as far as 
 the frontier of Portugal pertained to the viceroyalty of Peru in 
 1810. (See Statement of the Republic of Peru, Vol. I, p. 259.) 
 
 In consideration of that the High Contracting Parties, accord- 
 ing to Art. I of the treaty of arbitration, submit to the decision of 
 the Government of the Argentine Republic as arbiter and lawful 
 Judge, the question of boundaries between the two Republics in order 
 to obtain a sentence, definitive and without appeal, according to 
 which the entire territory that in 1810, pertained to the jurisdiction 
 
 12 
 
of the ancient Audiencia of Charcas, within the limits of the vice- 
 royalty of Buenos Ayres through the enactments of the former sov- 
 ereign be declared to pertain to the Republic of Bolivia and that 
 all the territory which, at the same date and by the enactments of 
 the same sovereign pertained to the viceroyalty of Lima, should be 
 assigned to the Republic of Peru. 
 
 Considering that, interpreting this article relative to the compe- 
 tency of the arbiter according to the faculties admitted by interna- 
 tional law (see Conventions for the peaceable settlement of inter- 
 national conflicts adopted by the Congresses of The Hague, 1899- 
 1907, Art. 48 of the first and 75 of the second, also Calvo Droit 
 International, Vol. Ill, 1857), it must be understood to mean that 
 the High Contracting Parties have given the faculty of fixing the 
 division line between the Audiencia of Charcas and the viceroyalty 
 of Lima in 1810 only in regard to the respective territorial right, 
 because, if he ought to determine the whole perimeter of each of 
 these colonial entities, it might affect the rights of various nations 
 which are not concerned in the arbitral compromise of 1902, basis 
 of the present judgment. Besides this, Article 9 of the treaty states 
 that once the sentence pronounced and notified to the Envoys Ex- 
 traordinary and Ministers Plenipotentiaries of the High Contract- 
 ing Parties, the territorial delimitation of right between the two 
 Republics shall be held as definitive and obligatorily established, 
 which expresses clearly that it is the demarcation (territorial) be- 
 tween the two Republics which is to be determined. 
 
 Considering that, in accordance with Article 2 of the treaty of 
 arbitration, modified according to terms of the minutes of exchange 
 of ratifications dated La Paz, the 9th of March, 1904, the arbiter 
 finds himself, in regard to the determination of the division line, 
 in the presence of a point of departure expressly signalled to wit: 
 "the place where the actual boundary line coincides with river 
 Suchez according to the following terms of Art. 2 of the treaty of 
 arbitration, completed by the minutes of the exchange before 
 mentioned." 
 
 13 
 
Art. 2. "The treaty of the 23d of September of the present year 
 having settled the demarcation and the setting of landmarks of the 
 frontier which begins between the Peruvian provinces of Tacna and 
 Arica and the Bolivian province of Carangas in the West to the site 
 where the actual frontier line coincides with the river Suchez this 
 section is excepted from the treaty." 
 
 Considering that the arbiter, after having studied with the ut- 
 most attention the invoked titles of one and the other party, does 
 not find enough grounds to consider as dividing line between the 
 Audiencia of Charcas and the viceroyalty of Lima in 1810, neither 
 one or the other of the demarcations pretended by the defenses of 
 the States who have signed the compromise. 
 
 Considering that, in reality, the disputed zone was in 1810 and 
 until recently, completely unexplored, as it appears by the numerous 
 geographical maps of the colonial period as well as from posterior 
 ones presented by one and the other party and recognised by both; 
 which explains that the demarcations of these governmental entities 
 (the viceroyalty and the Audiencia) , subject to the same sovereign, 
 had not been perfectly determined. 
 
 The defense of Bolivia acknowledges it when, indicating the 
 successive modifications in the frontiers of the principal colonial 
 sections, it expresses that : "during this long process, which lasted 
 more than three centuries, one perceives frequently that the dis- 
 positions of the Spanish Crown have been contradictory, vague 
 some of them and many in disagreement with the position of the 
 places and topographical features. This was due to the lack of geo- 
 graphical knowledge and therefore the interpretation must be equi- 
 table within the frame of the ideas of the period, in order to appre- 
 ciate the true signification and bearing of these dispositions; al- 
 though it adds: that with regard to the district of the Audiencia of 
 Charcas, the royal orders and dispositions were more precise (Me- 
 morial presented by Bolivia, p. 2) . 
 
 In its turn, the defense of Peru, entering upon the study of the 
 principles upon which the demarcation of the Audiencias is founded, 
 
 14 
 
says : "that the eastern territories, which are the object of this liti- 
 gation, territories ignored and unconquered during the entire colo- 
 nial period, could not be included or excluded from any inferior 
 and subaltern Audiencia." (Memorie du Perou, t. 1, p. 77.) Fur- 
 ther on it adds, "Circumspection and honorability consist here in pre- 
 senting the title of the disputed domains, considered as a whole uti 
 nniversitas, and to produce thereof the documents which allow the 
 arbiter to create a juridic demarcation and also geographically 'pru- 
 dent.' " (Memoirs d'observations et censures du Perou, p. 104.) 
 
 Considering that the demarcation sustained in this litigation by 
 the defense of Bolivia, in following the course of the rivers Cori- 
 mayo, San Juan del Oro or Tambopata, Inambari, Yanatile, Uru- 
 bamba and Ucayali as far as the sources of the Yavari, had been 
 indicated previously as a straight line that, starting from the said 
 sources of the Yavari reached as far as the confluence of the Inam- 
 bari with the river Madre de Dios (Notes du 5 Mai 1894 et du 23 
 Octobre 1902, dans les annexes de la Republique de Bolivie, pp. 26 
 et 36; Protocole Polar Gomez du 21 Mai 1877; whereas Peru 
 which, in this litigation traces the line along the rivers Madicli, 
 Beni and Mamore, and formerly fixed it by the rivers Tequeje and 
 Beni to its reunion with the Mamore. (Note de la legation du 
 Perou, datee a La Paz le 10 Novembre 1902, dans les Annexes de 
 Bolivie, p. 40.) t 
 
 Considering that these differences explain themselves perfectly, 
 if one takes into account as the treaty of arbitration of the 30th of 
 December foresaw it, and as it follows the notable works presented 
 by the two parties to the assessorial commission, that the royal acts 
 and dispositions in vigor in 1810 did not define clearly if the dis- 
 puted territory had been assigned to the jurisdiction of the vice- 
 royalty of Lima or to the Audiencia of Charcas, two colonial en- 
 tities subject to the same undoubted sovereign of these territories 
 and that, until 1776, the second constituted a part of the first. 
 
 To understand it, it suffices to note besides the Laws in the 
 "Recopilacion de Indias" indicated as the first element of decision 
 
 15 
 
in Article 3 of the treaty of arbitration, bounded the "Audiencia of 
 Charcas" : "In the North by the Royal Audiencia of Lima and undis- 
 covered provinces, in the South by the Royal Audiencia of Chile, 
 and in the East and West by the Atlantic and Pacific Oceans, and 
 the boundaries between the crowns of Spain and Portugal on the 
 side of the province of Santa Cruz, of Brazil" and that of Lima, 
 "on the North by the Royal Audiencia of Quito, in the South by the 
 one of La Plata, and in the West by the Pacific Ocean and in the 
 East by undiscovered countries." (Lois 5 et 9, tit. 15, livre II.) 
 
 In the meantime no document of a decisive character has been 
 presented that would allow to place these undiscovered provinces 
 which bounded in the North the Audiencia of Charcas and in the 
 East the Audiencia of Lima, that could authorize to extend them, 
 as Peru sustains, from the Maranon to the northern frontier of 
 Paragua, comprising the valley of the river Madre de Dios (Re- 
 ponse du Perou, p. 102) or rather as Bolivia asserts, that they ex- 
 tend along the shores of that river, when it says : "The only vague 
 point which exists in these demarcations consists in these undis- 
 covered provinces. But there is not a single word in all these laws on 
 boundaries which even makes allusion to the virtual and actual dis- 
 tricts. It is true, that between the Audiencias of New Granada and 
 of Quito to the South and the one of Lima to the West and the one 
 of Charcas to*the North, there remained a space or zone of lands 
 which were called the undiscovered provinces; but these provinces 
 which according to all probability extended along the borders of the 
 river Maranon did not enter within the limits of the stated Au- 
 diencias. 
 
 As to the province of Chunchos, known later on under the 
 designation of Missions of Apolobamba, nothing authorizes to ad- 
 mit that it comprised the whole extension of the concession which, 
 under the name of New Andalusia, was granted to Alvarez Mal- 
 donado in 1568 and 1569 and much less still that it extended toward 
 the North as far as the line of the treaty of St. Ildefonso of 1777, 
 which extended from the sources of the Yavari to a point at equal 
 
 16 
 
distance of the confluence of the Madera with the Mamore and the 
 Maranon. 
 
 Considering that the same thing takes place in regard to the 
 boundary of the said Audiencia of Charcas with the Atlantic Ocean 
 and the demarcation line between the crowns of Spain and Portu- 
 gal and the inclusion of the province of Chunchos according to the 
 said Recopilacion de Leyes de Indias since even without taking into 
 account that the criterium of the demarcation in vigor in 1810 had 
 modified that of this compilation, according to the Ordinances of 
 Intendentes of 1782 and 1803, it suffices to observe, that, at the time 
 when they were promulgated, the Audiencia of Charcas could not 
 confine with the Atlantic Ocean as well in the region of Para, West 
 of the line of Tordecillas, as well as with the province of Rio de la 
 Plata, comprised in its district. 
 
 Considering that under those circumstances, Clause 4 of the 
 treaty which stipulates that 
 
 "Whenever the acts or royal dispositions should not define the 
 dominion of a territory in a clear way, the arbiter shall resolve the 
 question equitably, by coming as close as possible to the signification 
 of the said acts or dispositions and to the spirit which might have 
 inspired them," becomes applicable. 
 
 Considering the signification as well as the spirit of the laws 
 contained in the "Recopilacion de Indias," of the royal decrees and 
 orders, ordinances of intendentes; diplomatic acts relative to the 
 demarcation of frontiers, maps and official descriptions and other 
 documents presented by the High Contracting Parties and especially 
 the laws 1, 5, and 9 of title 15, book II of the "Recopilacion de 
 Indias," relative to the general demarcation of the Audiencias and 
 in particular of those of Charcas and Lima, law 3, title 7, book I of 
 the same recopilacion on the demarcation of the bishoprics, the 
 royal decrees of 26th of August, 1573, and February 8, 1590, rela- 
 tive to the concession made to Juan Alvarez Maldonado ; the royal 
 decree of February 1, 1796, which severed the Intendencia of Puno 
 from the viceroyalty of Buenos Ayres in order to add it to the vice- 
 
 17 
 
royalty of Lima; the negotiations relative to the formation and exe- 
 cution of treaties of limits of 1750 and 1777 between the crowns of 
 Spain and Portugal ; the Ordinances of Intendentes of January 28, 
 1782, and September 23, 1803; the documents concerning on the 
 one hand the development of the missions of Carabay in the region 
 of San Juan del Oro or Tambopata and, on the other, development 
 of Apolobamba and Mojos in the region of the river Toromanas. 
 
 And, in accordance to the considerations that precede, / must 
 decide this question equitably and conform this decision as much as 
 possible to the meaning of the royal dispositions invoked by the re- 
 spective defenses and to the spirit ivhich inspired them. 
 
 For these reasons, in accordance with the advice given by the 
 assessorial commission, I declare that the line of boundaries is the 
 following : 
 
 Starting from the place where the actual frontier lines coincides 
 with the river Suchez, the territorial boundary line between the two 
 Republics will cross the lake of the same name as far as the moun- 
 tain cerro of Palomani Grande, whence it will continue to the 
 lagunes of Yagua-Yagua and along the river of that name will 
 reach the river San Juan del Oro or Tambopata. It will follow the 
 course of this river Tambopata as far as to meet the mouth of the 
 river Lanza or Mosohuaico. From the confluence of the Tambopata 
 and Lanza the line will run as far as the western extremity of the 
 river Abuyama or Heath and continue along the latter to its junc- 
 ture with the Amarumayo or Madre de Dios. By following the 
 "Thalweg" of the Madre de Dios the boundary line will descend to 
 the mouth of the Toromanas, its tributary on the right bank. From 
 this confluence of the Toromanas and Madre de Dios a straight 
 line shall be drawn to the intersection of the river Tahamanu with 
 the 69th degree longitude West of Greenwich and following this 
 meridian the divisory line will extend toward the North until its 
 meeting with the limits of the territorial domain of another nation 
 that has not been party to the arbitration treaty of the 30th of 
 December, 1902. 
 
 18 
 
The territories lying to the East and South of the boundary 
 lines just established pertain to the Republic of Bolivia and the 
 territories lying to the West and North of the same line pertain to 
 the Republic of Peru. 
 
 This arbitral sentence shall be brought to the cognizance of the 
 Envoys Extraordinary and Ministers Plenipotentiaries of the High 
 Contracting Parties to whom one copy be given according to terms 
 of Article 9 of the treaty of arbitration. 
 
 Executed in three copies, sealed with the big seal, with the arms 
 of the Republic and countersigned by the Minister of Foreign Af- 
 fairs, and Cult in the Palace of the National Government in the 
 city of Buenos Ayres, capital of the Republic of the Argentine, the 
 ninth of July One Thousand Nine Hundred and Nine. 
 
 J. FIGUEROA ALCORTA, 
 V. DE LA PLAZA. 
 
 OBSERVATIONS 
 ON THE ARBITRAL SENTENCE 
 
 Our observations taking their inspiration from the general in- 
 terest in the better functioning of arbitration, we will in the first 
 place say that the prevailing custom to choose as arbiter the head 
 of a State does not seem to us a happy choice. This custom was 
 adopted in former times when the object of arbitration was to 
 resolve conflicts between two sovereigns. These naturally en- 
 trusted this task to another sovereign. This usage has continued 
 through the Middle Ages and has prevailed even in our era. It 
 seems to us that, in order to preserve to arbitration its true charac- 
 ter, namely, that of an exclusively juristic institution, official bodies 
 like the Court of Arbitration of The Hague, the Institute of Inter- 
 national Law, a law faculty should be preferred, or the task should 
 be entrusted to eminent jurists enjoying the confidence of the liti- 
 gating parties. We do not wish to intimate by this that the sov- 
 ereigns should be systematically excluded from arbitral functions. 
 
 19 
 
It would be truly abnormal to create such an incapacity or to limit 
 the autonomy of the parties in their faculty to select as arbiter a 
 king, an emperor or a president of a republic. We only say that 
 the choice of a chief of State cannot be considered as the best. 
 
 Indeed even if it were not in this capacity that a chief of State 
 assumes the functions of arbiter, and though undoubtedly he will 
 fulfill his mission as a judge with scrupulous impartiality, it cannot 
 always be avoided that when the sentence is contrary to the inter- 
 ests of one of the parties the inconsiderate manifestations of the 
 people of the country to which the sentence is unfavorable, should 
 attack the dignity of the State whose sovereign is the judge. It is 
 in reality not always easy for the inhabitants of the two litigating 
 countries, excited by national interests, to distinguish the function 
 of judge from that of sovereign united in the same personality. In 
 this manner the criticisms intended for the sentence may attack the 
 dignity of the head of State and a conflict originally of a juristic 
 character may be transformed into a conflict of a political nature. 
 The arbitration having for its object the consolidation of pacific 
 relations between the States one should, therefore, to our idea, con- 
 sider it preferable not to select sovereigns as arbiters. What has 
 happened on the occasion of the arbitral sentence rendered by the 
 President of the Argentine Republic demonstrates this fully. We 
 will certainly not criticize but only indicate the facts. The people 
 of Bolivia allowed themselves to be driven to demonstrations as 
 noisy as they were inconsiderate in front of the Argentine Legation 
 to express in that manner very improperly their resentment and the 
 Bolivian Government was obliged to check this popular movement. 
 Furthermore, the press improperly meddled with this question and 
 the people continued to make manifestations, the dignity of the 
 two Governments was fatally compromised ; the conflict of an emi- 
 nently juristic character was transformed into political difficulty 
 and the recall of the respective representatives of the two States 
 confirmed the rupture of their diplomatic relations. The civilized 
 world was painfully shocked thereby. Even a declaration of war 
 
 could be feared. 
 
 20 
 
Admitted in principle that the authority of sentences has to be 
 respected religiously, especially when arbitral sentences are con- 
 cerned where it is absolutely inconceivable that the juristic founda- 
 tion of these decisions might be the object to popular demonstra- 
 tions: that the Bolivian Government has done all in its power to 
 suppress the popular manifestations, while we abstain absolutely 
 from judging the conduct of the two Governments, we limit our- 
 selves to state that, what has occurred must constitute a lesson ab- 
 solutely demonstrative for the future. 
 
 The whole world agrees to admit that the sovereigns desig- 
 nated as arbiters conscientiously fulfilled their mission and are 
 sheltered from all the influences which could have impaired their 
 impartiality. 
 
 Notwithstanding, this cannot prevent the people, excited by 
 their passions, to suppose that diverse influences outside of strict 
 justice, might have determined the decision of the arbiter. It is 
 advisable to avoid this danger by abstaining from choosing as 
 arbiter chiefs of States and to submit the matter in litigation to 
 the arbitral Court of The Hague. 
 
 In principle, one must admit that international conventions 
 duly concluded must have between the parties the same authority 
 as law, and that therefore one must consider as absolutely obligatory 
 and reciprocal the fulfillment of engagements taken and the produc- 
 tion of effects thereof notwithstanding the prejudice that could 
 result therefrom. 
 
 In matters of private interest regulated by a contract, one may 
 admit that a lesion beyond certain limits may be a motive for 
 annulling the convention, or suspension of the execution of the 
 contract, but it cannot thus be regarding international treaties. If 
 a State, after having duly concluded an international convention, 
 could misconceive its compulsory nature and refuse the strict and 
 faithful execution of the obligations contracted under pretext of 
 lesion of its interest, one would thus arrive to legitimize under an 
 unjustifiable pretext the non-observation of the treaty. 
 
 21 
 
Any serious government 'should exactly know to what it en- 
 gages itself, and even, had it imprudently entered into a compro- 
 mise without competent knowledge, it could, nevertheless, not fail 
 to acknowledge the obligatory power of the convention and of its 
 effects. 
 
 We have thought it useful to recall here these principles, which 
 must serve to maintain the integrity and the prestige of the au- 
 thority and the efficacy of the arbitral sentences. Arbitration, at 
 our present time, is regarded as the most efficient means and the 
 most rational one to realize, as far as possible, the generous and 
 peaceful aspirations and to resolve conflicts when it could not have 
 been done by means of diplomacy. Nevertheless, one must not 
 exaggerate the practical importance of general conventions of arbi- 
 tration by which a compromising clause is stipulated which in 
 reality depends effectively upon the good will of governments, 
 What is really efficient in this matter is the special convention, in 
 other words the compromise, by w 7 hich the litigating parties leave 
 to the decision of the arbiter the definitive solution of the difficulty 
 which has arisen between them. 
 
 To the compromise one must apply the general rule that this 
 convention, constituting an international treaty, must be reputed as 
 concluded in good faith and that the same must be the case with 
 the execution of the arbitral sentence rendered by virtue of the 
 same agreement. No government after having concluded an 
 arbitral convention by which the arbiter is entrusted with the solu- 
 tion of the conflict by a definitive sentence without appeal, can later 
 on misconceive the authority of this sentence and refuse to execute 
 it under the pretext of the damages that might accrue. Arbitration 
 would be deprived from all efficacy. 
 
 We therefore agree with the authors who maintain that the 
 arbitral sentence, duly rendered, must have the authority of a judg- 
 ment, that it should be, in principle, executed in good faith, and 
 that in the absence, in the compromise of all reserve for the revi- 
 sion of this sentence, it shall be reputed as absolute in the sense that 
 
 22 
 
the rights and obligations of the parties, such as they have been 
 determined by the arbiter, must be considered as definitively 
 established. 
 
 Whenever the fulfillment of the obligations imposed by the sen- 
 tence should necessitate the authorization of the legislative power, 
 or the adoption of certain measures on the part of the same power 
 it will always encumber upon the favored government to call forth 
 this authorization and these measures ; and its international respon- 
 sibility could not be excluded but in the case when it would have 
 done all that is necessary to this end. All that regards means of 
 execution of the arbitral sentence must needs be considered as be- 
 longing to the domain of internal public law, and in a well organ- 
 ized State it could not be admitted that an arbitral sentence could 
 be made illusory, under pretext of lack of authorization of the 
 legislative power. When the parliament of a constitutional State 
 has approved the arbitral convention, it is self-evident that it can- 
 not misunderstand the authority of the sentence rendered in exe- 
 cution of the compromise, nor refuse to fulfill the tasks resulting 
 from that sentence by rejecting the legislative measures proposed 
 by the government to this end. 
 
 In the case of the Alabama submitted to the arbitral tribunal of 
 Geneva, the English arbiter, Cockburn, refused to sign the arbitral 
 sentence, presenting a memorandum to justify his refusal. He 
 concluded as follows: "Although the decision of the tribunal, to 
 my idea, may justify my objections, I hope, nevertheless, that the 
 English people will receive the sentence with the submission and 
 the respect due to the sentence of a tribunal the decision of which 
 it has freely consented to accept." 
 
 In exposing those principles we have thought to justify our 
 opinion based upon the doctrine of the most esteemed publicists, 
 and according to which the arbitral sentence duly rendered, must 
 have the authority of a judgment and must be considered by the 
 parties as effective to insure the obligatory observation of the duties 
 imposed by the arbiter. 
 
 23 
 
This theory concerns the sentence legally rendered. But can it 
 be sufficient that someone has been chosen by the parties as arbiter 
 with the duty to render a definitive sentence without appeal and 
 that he should have rendered it, in order to maintain that one must 
 attribute to such a decision the authority of the judgment that the 
 parties should execute blindly? 
 
 The authors maintain on principle that, in order that every act 
 might have the legal force which is attached to it, it should bear 
 the characteristics reputed as indispensable or essential to give it its 
 juridic value. 
 
 The absence of one of these essential characteristics deprives 
 the action of its proper juridic value, renders it legally null and 
 void and juridically inefficacious, through the application of the 
 principle quod nulluni est nullum producit effect-urn. 
 
 This rule w r hich applies to acts of any kind must also be applied 
 to the arbitral sentence. This sentence cannot exist juridically as 
 such, unless it bears all the essential characteristics to be consid- 
 ered as a sentence. Nobody would dare to question the absolute 
 authority of a sentence nor refuse to it the authority of a judgment. 
 Status enim rei publicae inaximc judicatis rebus continetnr. 
 (Cicero, For. Sulla, cap. 22:69.) Nevertheless, we repeat it, in 
 order that the decision should have absolute authority, it is necessary 
 above all that it constitutes a sentence. May a decision, lacking 
 the essential characteristics for being considered as a sentence, be 
 regarded as one? 
 
 The publicists have examined which are the substantial or es- 
 sential points required to give the arbitral sentence the legal power 
 which it needs, and in the absence of which it must be considered 
 as null. They disagree in this matter but this is not the place to 
 expose the different theories emitted on this matter. We will limit 
 ourselves to say that all the authors agree to maintain that there is 
 one essential characteristic necessary for the value of the arbitral 
 sentence, and in the absence of which this sentence is radically null ; 
 it is necessary that it be rendered within the terms of the agreement. 
 
 24 
 
They all agree on this point, because then the nullity results 
 ex re ipsa. 
 
 It must indeed be admitted that the arbiter invested with juris- 
 diction to definitely settle the controversy started between the 
 parties, in virtue of the compromise concluded between them, 
 which compromise not only must state precisely the object of the 
 litigation, but also the powers of the arbiter, and, furthermore, the 
 conditions the parties had understood to establish in accordance 
 with what concerns the procedure and execution of the arbitral 
 sentence. Consequently, it is the arbitral convention, called com- 
 promise, which forms the juridic basis of the jurisdiction of the 
 arbiter and fixes the limits of his power as a judge. It establishes 
 rigorously what the arbiter can or cannot do as judge. 
 
 The result therefrom is that the arbiter must always be inspired 
 by the rule of Roman law, "Arbiter nil extra compromissum facer e 
 potest." This rule is consecrated in the following fashion by the 
 French Court of Cassation in its decision, in the Mauny affair, 
 from the 18th of January, 1842: "In the matter of arbitration or 
 compromise, the compromise is the only essential thing to consult 
 in order to decide whether the arbiters have judged without power 
 or with due competency." (Journal du Palais.) 
 
 It was in virtue of this principle that when that Court was 
 invited in the quality of arbiter, to settle the conflict which had 
 arisen between the French Republic and that of Nicaragua, it deter- 
 mined by its decision of the 25th of April, 1879, that it accepted 
 unanimously this mission of arbitration, but that it demanded that 
 the French Minister of Foreign Affairs should come to an agree- 
 ment with the Representatives of Nicaragua in order to draw up a 
 compromise by which the object of the arbitration and the extent 
 of the powers which the parties intended to confer upon the Court 
 would be clearly determined. It motivated its decision as follows : 
 "It is important as much for the guarantee of the interests involved 
 in the controversy as well as for the fixity of the sentence that is 
 to intervene, that the powers of the arbiter be exactly and rigor- 
 ously precised." 
 
 25 
 
It is indeed self understood that the extent and limitation of 
 jurisdiction of the arbiter and the juridic value of the sentence are 
 entirely dependent of the powers which are conferred upon him 
 unanimously just as they are determined by the parties themselves 
 in their agreement. Consequently, the parties who invest the 
 arbiter with the power to declare the contested right and to termi- 
 nate the litigation definitively and without appeal can, in complete 
 autonomy, establish that the arbiter must base his decision on titles 
 and documents specified and produced by one and the other of the 
 two parties and that he must observe the general rules of inter- 
 national law or the principles of equity. All this is within the 
 domain of their autonomy. However, if the parties should have 
 fixed expressly the powers of the arbiter and had, by the compro- 
 mise conferred upon him the power to determine as judge in law 
 in virtue of the legal proof resulting from documents, precisely 
 indicated, could the arbiter, in case the legal proof founded upon 
 the titles were not complete and conclusive, constitute himself as 
 judge in equity and decide the question according to his conscience, 
 if this power had not been conferred upon him by the agreement? 
 
 The whole question in this matter resumes itself in the follow- 
 ing manner: 
 
 Given, in principle, that the arbiter, nominated by the parties, 
 must be considered as invested with the jurisdiction to decide the 
 litigation in virtue of the compromise concluded by it ; 
 
 Given that, in case the parties have expressly determined and 
 circumscribed, in the compromise, the powers of the arbiter, must 
 he be considered as compelled as judge, to exercise his powers 
 within the limits and within the terms of the compromise ? 
 
 Given that the parties have conferred upon the arbiter the 
 power to judge as judge in law (jues de derecho) and not as judge 
 in equity, can the sentence pronounced by the President of the 
 Argentine Republic be considered as based upon the compromise 
 and as pronounced within the limits of the jurisdiction which were 
 attributed to him? 
 
 26 
 
Before discussing this question thoroughly, we hold it to be 
 useful to eliminate an error. 
 
 It is incontestable that the arbiter, invested with the jurisdiction 
 to resolve the controversy, has the right to determine its own com- 
 petence. This right is given him by Article 73 of the convention I, 
 title IV, of the conference of The Hague of 1907. It must be 
 stated, however, that this rule cannot be understood in the sense 
 that the arbiter, while determining his competence, could arrogate 
 to himself a power which finds no base in the compromise, only 
 legal title of his jurisdiction. To determine signifies to precise, 
 to circumscribe, to verify, and not to attribute to himself, to arro- 
 gate to himself a jurisdiction which does not belong to the arbiter 
 according to the agreement. 
 
 Such would be the case with an arbiter, who, invested with the 
 power to statuate as judge in law, in determining his own jurisdic- 
 tion would transform it by arrogating to himself the power to de- 
 cide as amicable adjuster or as judge in equity. Being given that 
 the parties had clearly determined, in the agreement, the powers of 
 the arbiter if in the exercise of these powers he finds it impossible 
 to solve the conflict, may he hold himself to be authorized to render 
 a final sentence to put an end to the difficulty, and may he under 
 the pretext of .determining his own competency transform his 
 powers in arrogating to himself a jurisdiction not based upon the 
 compromise ? 
 
 We cannot admit this solution according to the true principles 
 of international law. Having thus removed all equivocation on 
 this point, we shall try to ascertain in an impartial way if the Presi- 
 dent of the Argentine Republic has exercised his arbitral jurisdic- 
 tion within the limits of the agreement and what shall be the juridic 
 value of his sentence. 
 
 The High Contracting Parties who have signed the arbitral 
 convention have clearly determined the powers of the arbiter, ac- 
 cording to the terms of Article 1, which we have textually cited 
 above. They have left to him the solution of the question regard- 
 
 27 
 
ing the boundary lines between the Republics of Bolivia and Peru, 
 conferring upon him the right to judge in his capacity as arbiter 
 in juri. 
 
 Which were the legal titles on which the arbiter as judge in law 
 should base his decision? 
 
 They were thus determined in limitation, by Article 3 : 
 
 "The laws of the 'Recopilacion de Indias' the royal decrees and 
 orders, the Ordinances of Intendentes, the diplomatic instruments, 
 relating to the delimitation of the boundaries, the maps and official 
 descriptions, and, in general, all the documents of an official char- 
 acter, appropriate for fixing the true meaning and the execution of 
 the royal dispositions aforesaid." 
 
 The mandate to judge and to decide as legal arbiter, according 
 to the titles thus specified, was accepted without reserve by the note 
 of the Minister of Foreign Affairs of the Argentine Republic dated 
 July 15, 1904. 
 
 We acknowledge that, in virtue of such a mandate, it must have 
 been very difficult for the arbiter to render the sentence by basing 
 upon the legal titles indicated by the parties, it being given that, as 
 the arbiter indicates it in his considerations that, since the points 
 in question are colonial entities, subject to the same sovereign to 
 whom, without possible opposition the whole territory belonged, 
 this sovereign could not have understood to establish through his 
 acts, precise and well defined territorial demarcations. We must 
 observe, however, that this just consideration by the arbiter, who 
 recognized the difficulty to statuate as judge in juri ought to have 
 induced him to ask of the parties more extended powers in order to 
 pronounce his final sentence on the limitation of the respective 
 territories. 
 
 This is what the Emperor of Russia did when he was nomi- 
 nated as arbiter to settle the difficulty between France and the 
 Netherlands relative to the boundaries of French and Dutch 
 Guiana. The High Contracting Parties, through the compromise 
 of 29th of November, 1888, had determined the powers of the 
 
 28 
 
arbiter, giving him the mission to decide according to titles and 
 documents, which of the two rivers Awa or Tapanahin should be 
 considered as forming the boundary line between their respective 
 possessions. The Czar would not accept a task so closely circum- 
 scribed because he feared not to be able to solve the question by 
 fixing the boundary line within the indicated terms. It is for this 
 reason that the Dutch Government proposed to the States General 
 of the Netherlands to extend the powers of the arbiter by allowing 
 him, in the case that he, according to titles and documents, should 
 not have been able to indicate as dividing line one or the other of 
 the two rivers mentioned, to trace this line in any other way which 
 seemed to him the best justified. In consequence a new compromise 
 was agreed upon between France and Holland which accorded to 
 the arbiter the subsidiary powers indispensable to solve the diffi- 
 culty, Alexander II then accepted the arbitration with more ex- 
 tended jurisdiction and pronounced his sentence the 13-25th 
 May, 1891. 
 
 The President of the Argentine Republic could have demanded, 
 following the considerations wisely proposed by himself in his sen- 
 tence, a subsidiary power of the parties for the case when he could 
 not solve the difficulty as judge in law according to the documents 
 and titles specified in the agreement. Having neglected to do it 
 there is reason to examine whether he has or not duly exercised the 
 powers conferred upon him as arbiter, according to terms of the 
 agreement, which he had accepted without reserve. 
 
 As we have already stated, His Excellency, President Alcorta, 
 had nominated a consultative commission to study all the docu- 
 ments which should serve as basis for his sentence. The commis- 
 sion, after having examined the titles and documents, expressed its 
 opinion in the communication addressed to the Minister of Foreign 
 Affairs which is reported textually above and which terminates in 
 the following manner : 
 
 "After having studied the written allegations, the replies and 
 criticisms of the Ministers of both Republics in defense of their 
 
 29 
 
respective doctrines, we have arrived at the conclusion that the laws 
 of the Recopilacion de Indias, the royal decrees, the Ordinances of 
 Intendentes, the diplomatic documents relative to the demarcation 
 of boundaries, and in general the documents of an official character 
 produced to give their true signification and execution to the said 
 royal dispositions do not determine in a clear and precise way the 
 dominion of the disputed territory. 
 
 First of all we shall call attention to, that the compromise of 
 July 9, 1909, recalled the general convention of arbitration con- 
 cluded by the two Republics on the 21st of November, 1901, and 
 that Article 10 of this same agreement expressly stipulated that this 
 general treaty of arbitration should be applied to all that was not 
 limitatively regulated by this agreement, and that therefore the 
 arbiter could not be dispensed from applying the stipulations of the 
 treaty of 1901. Now it is to be noted that in this treaty of 1901 the 
 following special dispositions will be found : 
 
 Art. 7. "Upon questions bearing a technical or scientific char- 
 acter that will present themselves in the litigation, the arbiter shall 
 obligatorily request the decision of the Royal Geographical Society 
 of London or of the International Geodetic Institute of Berlin." 
 
 It was without question not in the power of the arbiter since the 
 commission had found in the titles no certain legal proof relating to 
 contested territorial possessions, to apply or not to the Royal 
 Geographical Society of London. Article 7 at the convention of 
 arbitration imposed upon him formally and categorically the 
 obligation to consult that Society. The said Society might perhaps 
 have been able to find in the official documents sufficient legal proofs 
 to establish the respective legal right of the parties to the contested 
 territories, or else she could have found in those same documents, 
 interpreting them according to their meaning, sufficient motives to 
 determine rights that could not be considered by the terms of the 
 said documents. Undoubtedly the arbiter has neglected to con- 
 sult this Society, although he was bound to do so. 
 
 If the Royal Geographical Society of London or the Interna- 
 
 30 
 
tional Geodetic Institute of Berlin had not been able to throw any 
 light on the matter of determining the question of limits of the con- 
 tested territory according to official documents and would therefore 
 have confirmed the conclusions of the consultative commission, then 
 the arbiter, not being able to decide the contest as judge in law, by 
 basing himself upon the indicated titles in the agreement would 
 have had to either insist to statuate by demanding subsidiary powers 
 of the parties, or then limit himself to pronounce the non liquet. 
 
 Indeed the arbiter, not being permitted to exercise his power 
 beyond the limits of the agreement and unable to judge definitively 
 the case by exercising his powers as judex juris, could not arrogate 
 to himself a jurisdiction not attributed to him by the agreement for 
 pronouncing a sentence based upon other elements of proof. 
 
 In choosing him, what did the parties want? 
 
 They wanted of him that in his quality of judge in law he should 
 decide which were the territories pertaining to each of them accord- 
 ing to the terms of the titles indicated and specified in the agree- 
 ment, being given that this arbiter after investigation by the consul- 
 tative commission and the interpellation of the Societies of London 
 and Berlin, had not found, in the official documents the juridic 
 proof of the respective rights of the parties to the territory in con- 
 test, could he, if he wanted to exercise the powers held by him by 
 the agreement, do anything else than to pronounce the non liquet? 
 
 On the contrary the consultative commission was of the opinion 
 that the arbiter, according to the terms of Article 9, could decide 
 the controversy as judge in equity, and the President of the Argen- 
 tine Republic admitted in interpreting his own competence, that he 
 could statuate as judge in equity. It is thus that in his sentence he 
 traced the boundary line according to his conscience and in con- 
 formity to the conclusions of the Peruvian Plenipotentiary. Never- 
 theless, since the competence which he thus attributed to himself 
 cannot be found to result from the terms of the agreement, it is 
 clear that he arrogated to himself a jurisdiction which did not be- 
 long to him. 
 
 31 
 
If the agreement had really attributed to the arbiter such a 
 power his decision should have been exempt from criticism, in what- 
 ever manner he might have used it. It could not have been pre- 
 tended, actually, that he had not judged properly because he would 
 have found legal proofs insufficient which one of the parties consid- 
 ered peremptory, because the arbiter ought to have been considered 
 as invested with the jurisdiction to decide the controversy in equity, 
 and it could not have been pretended that thus deciding according 
 to his enlightened conscience, he would have given evidence of par- 
 tiality, because such a pretention would not only prove injurious to 
 the arbiter, but would be unsustainable in law. The arbiter having 
 been appointed by mutual consent of the parties, the one of these 
 parties who would accuse him of partiality should impute to itself 
 the deed for having chosen him. 
 
 In the case we are examining, the fundamental argument 
 against the sentence is that the arbiter had no power to statuate as 
 judge in equity and that by doing so, he arrogated to himself a 
 power which, did not belong to him. 
 
 The commission has thought to be entitled to base upon the text 
 of Article 4 of the agreement in order to conclude that, the titles 
 not being sufficient to establish the legal proof of the respective 
 rights of the parties on the disputed territories, the arbiter could 
 decide the question as judge in equity. The President of the Ar- 
 gentine Republic who naturally thought he could not do better than 
 to adopt the advice of the consulting commission which he had 
 nominated, and considering himself as invested of a jurisdiction in 
 equity, rendered his sentence ex equo et bono. 
 
 We really do not know how the commission could find in the 
 agreement legal reasons for transforming the jurisdiction of the 
 arbiter. It thought to be entitled to invoke Article 4 without hav- 
 ing well informed itself of the exact meaning of this clause, as is 
 shown clearly by their comparison of said Article with Articles 1 
 and 3 which exclude absolutely the power to decide as judge in 
 equity in what concerns the disputed territories. 
 
 32 
 
What did the parties require of the arbiter? 
 
 Admitting that the sovereign decrees, the royal decrees and 
 other official documents indicated in Article 3 could obtain as legal 
 titles of their respective domination on the contested territories, the 
 parties invested their arbiter with the power to decide in the quality 
 of judge in law which was the territory belonging to each one of 
 them (Art. 1), basing his decision on the legal proof resulting from 
 the titles. They did not suppose that those titles might be insuffi- 
 cient to establish their rights. If they had supposed it, and wishing 
 to obtain a definitive sentence they would not have agreed upon an 
 arbitration "juris," but upon an arbitration in equity. The intrinsic 
 character and the nature of the arbitral jurisdiction, relative to the 
 delimitation of the territory, not being established in the agreement, 
 we are undoubtedly to conclude that it is a case of a jurisdictio 
 juris. However the parties have stipulated in Article 4 that, when- 
 ever the documents and royal dispositions should not define in a 
 clear and precise manner the domain of a territory, the arbiter 
 should decide regarding this special territory according to equity, 
 inspiring himself, as much as possible, by the royal dispositions and 
 the spirit which dictated them. It appears to us as evident there- 
 fore, that by interpreting this clause of Article 4 it appears that the 
 parties did not wish to transform the substantial character of the 
 arbitral jurisdiction with regard to all of the disputed territory, but 
 that in stipulating regarding the disputed territory the arbiter should 
 decide in his quality of judge in law, they have subsequently ad- 
 mitted that in case the royal dispositions, the titles and documents 
 should not constitute sufficient evidence of the sovereignty of a 
 territory, then the arbiter, in this exceptional case, could decide as 
 judge in equity. 
 
 If the parties had wished to confer upon the arbiter the power to 
 decide in equity, the question of limits in its whole extent, they 
 would have expressed themselves in the following way : 
 
 "If the documents and royal dispositions did not define the 
 domain of the territory in a clear way, the arbiter will decide the 
 
 33 
 
question according to equity." They say on the contrary: "Siempre 
 que los actos 6 disposiciones reales no definan el dominio de un 
 territorio de manera clara, el arbitro resolvera la cuestion equita- 
 tivamente." Here we say again that it results, as well from the literal 
 text of the clause, as from its likeness to the articles which precede 
 and which follow, that the power of the arbiter to act as judge in 
 equity has been stipulated for an exceptional case and not for what 
 concerns the delimitation of the frontier in regard to which the ar- 
 biter was only invested with the power to statuate as judge in law. 
 
 Furthermore, what indicates well that Article 4 referred to an 
 exceptional case, is the text of Article 5 which is thus conceived : 
 "The possession of a territory, executed by one of the contracting 
 parties shall not be opposed to, nor prevail against the titles or royal 
 dispositions which establish the contrary." 
 
 By this clause the parties have agreed that, when the arbiter, 
 judging as j-udex juris, found titles and royal dispositions sufficient 
 to establish the rights of one of the parties to a disputed territory, 
 the other party could not take advantage of its possession of this 
 territory to contest the authority of these titles and royal enactments. 
 
 It appears to us evident, therefore, that the clauses, as well of 
 Article 4 as of Article 5 refer not to the whole of the contested 
 territory but to a special part of it. 
 
 Therefrom it results that the arbiter, by arrogating to himself 
 the power of deciding as judge in equity concerning the whole con- 
 tested territory, when according to terms of the agreement he was 
 invested solely with the mission to statuate as judge in law, has 
 thus arrogated to himself a jurisdiction which was not given him 
 by the parties. 
 
 Can the sentence pronounced by the arbiter be considered as 
 valid, when he has arrogated to himself a jurisdiction which is not 
 based upon the agreement? 
 
 Calvo, after having exposed his theory on the legal principles 
 that should rule international arbitration, puts the question relative 
 
 to the efficiency of the arbitral sentence in this manner. 
 , 
 
 34 
 
"From the fact that arbitral sentence is obligatory without ap- 
 peal it should not be concluded that the absolute consequence be that 
 the parties cannot contest it, there are, on the contrary, certain cases 
 when they are plainly authorized to refuse to accept or execute it. 
 These cases can be summarized as follows: 
 
 1. "If the sentence has been pronounced without the arbiters 
 having been sufficiently authorized, or if it has been statuated out- 
 side or beyond the terms of the agreement, etc." 
 
 The authors whom we cite express the same opinion. Admit- 
 ting that the essential condition of the efficiency of the arbitral sen- 
 tence is, that the arbiter should exercise his jurisdiction within the 
 limits of the agreement they naturally refuse all legal value to a 
 sentence rendered outside of the terms of the agreement. 
 
 Heffter, p. 210, says the following: 
 
 "An arbitral sentence is subject to being attacked in the follow- 
 ing cases : 
 
 1. "If it has been rendered without valid compromise or out- 
 side of the terms of the compromise * * *" 
 
 Goldschmidt says on his part : 
 
 (P. 32) "The arbitral sentence duly pronounced can be attacked 
 and annulled * * * if the arbitral tribunal has exceeded the 
 limits of the competence which the compromise gave it" (/or. cit.). 
 
 Merignac, treating of the causes of nullity of an arbitral sen- 
 tence, indicates in the first place the excess of power and expresses 
 himself thus : 
 
 "The arbiters can commit excesses of power of various kinds. 
 They will in the first place exceed their power by according to one 
 party more than the compromise will allow them. * * * They 
 would, on the other hand, exceed their powers also if they go 
 beyond the faculties attributed to them." 
 
 Bluntschli also says : 
 "The decision of the arbitral tribunal can be considered as null : 
 
 (a) "In the measure in which the arbitral tribunal has ex- 
 ceeded its powers." (Droit international codifie.) 
 
 35 
 
Rivier on his side says that : 
 
 "The State against whom the sentence has been rendered may 
 have just reasons to refuse its execution * * * finally, and this 
 is most frequently the case, that the arbiter has exceeded his powers 
 or has not observed the prescriptions of the compromise." (Prin- 
 cipes du Droit des Gens, t. II, p. 185.) 
 
 We will not continue our quotations, because in reality the com- 
 munis opinion of all jurists is that the arbitral sentence has no value 
 when the arbiter has not observed the prescriptions of the com- 
 promise and when he has arrogated to himself a jurisdiction which 
 was not stipulated. This results besides from the general principles 
 of law and the nature of things. 
 
 Nobody can assume the quality of judge if he has not been in- 
 vested with the jurisdiction to judge and to decide. Ulpien ex- 
 presses himself in the following manner: "Qui judices esse non 
 possunt." He says, furthermore : "Qui neque jurisdictioni praeest, 
 neque a principe potestate aliqua praeditus est neque ab eo, qui jus 
 dandorum judicum habet, datut est, nee ex compromisso smnptus: 
 judex esse non potuit." (L. 81 Dig. de Judicis, 51.) 
 
 Admitting, therefore, as incontestable, that nobody can be arbi- 
 ter without having been invested with the jurisdiction to decide the 
 litigation by virtue of the agreement and that the competence of the 
 arbiter, as judge, does not exist except within the limits established 
 by the agreement, it seems to us evident, according to the reply of 
 Ulpien, that the arbiter who has arrogated to himself the compe- 
 tence which is not based upon the agreement, judex esse non potuit. 
 
 What would then be the legal value of the sentence rendered 
 according to this hypothesis? 
 
 We will refer to the wise doctrine of the Roman jurisconsults 
 who have taught us that the jurisdiction, having to be reputed as the 
 substantial condition of the imperative force of the sentence, nobody 
 is compelled to execute a sentence pronounced by somebody who 
 has not the legal power, or rendered outside the limits of the juris- 
 diction belonging to the judge. 
 
 36 
 
In the first period of Roman society each magistrate had the 
 plentitude of his imperative power in the province or district sub- 
 ject to his authority, because he possessed the full jurisdiction 
 within his territorial limits. But what happened after he had exer- 
 cised his jurisdiction (which expired at the boundary line .of the 
 province or district) outside the territorial limits of this juris- 
 diction ? 
 
 Here is the reply on this subject given by the jurisconsult Paul, 
 Lib. Ill ad Sabinum : 
 
 "Praeses provinciae in suae provinciae homines tantum im- 
 perium habet : et hoc, clum in provincia est : nam si excesserit, pri- 
 vatus est." (L. 3 Dig: de officio Presidis, 1-18.) 
 
 What was the consequence of an authority exercised by the 
 governor of the province outside the boundaries of the territory 
 over which he held jurisdiction? 
 
 The jurisconsult Paul solves the question in Lib. I ad Edictum : 
 
 "Extra territorium jusdicenti impune non paretur." (L. 20 
 Dig. de Jurisdictione, 2, 1.) 
 
 Consequently nobody was bound to obey the orders of the mag- 
 istrate who exercised his functions outside of the limits of the terri- 
 tory over which he had the jurisdiction. 
 
 Posterior to that, special magistracies were instituted, and the 
 power of each one of these found its limit in the jurisdiction. Ul- 
 pien said that who had no jurisdiction could not be considered as 
 judge. Paul, on his side, expresses himself in the following manner 
 on the subject: "extra territorium jusdicenti impune non paretur." 
 Further he added: "idem est, et si supra jurisdictionem suamvelit 
 jus clicere." (L. 20 de Jurisdictione.) 
 
 One was, therefore, not compelled to consider as judiciary sen- 
 tence one that emanated from somebody who had not the jurisdic- 
 tion for it. 
 
 Taking as basis the doctrine of the Roman jurisconsults and 
 that of the authors whom we have quoted previously, we do not 
 hesitate to assert that legal force of the thing judged cannot be 
 
 37 
 
attributed to the sentence pronounced by an arbiter who had arro- 
 gated to himself a competence not given him by the agreement. It 
 is incontestable that the execution of such a sentence cannot be im- 
 posed upon the parties since the obligatory character of the execu- 
 tion of an arbitral sentence must have as basis the obligatory char- 
 acter of the compromise and the legal force of the sentence rendered 
 within the limits of this same compromise. 
 
 Henceforth the decision of the arbiter could have the character 
 of a proposal made by him in the quality of amicable adjuster with 
 the laudable purpose to put an end to the controversy, or in the 
 quality of a mediator proposing a transaction. However, in such a 
 case it would be necessary for the arbiter to announce his intention, 
 and he ought never to consider himself offended if the parties 
 should refuse to accept and execute his sentence, every time that, 
 for the reasons we have just stated, the character of an executory 
 sentence could not be attributed to his decision as having the au- 
 thority of the judgment. 
 
 The question was solved with reference to the executory force 
 of the sentence rendered on the 10th of May, 1831, by the King of 
 the Netherlands who had been chosen arbiter to solve the pending 
 difficulty between Great Britain and the United States of America 
 regarding their boundaries of the Northeast. In that case, the 
 arbiter had statuated without remaining within the limits of the 
 powers which had been conferred upon him by the. compromise and 
 the United States availed themselves of this reason to refuse to 
 execute the sentence. 
 
 The reasons invoked were exposed at length in the thorough 
 report of the legislative commission of the State of Maine, which 
 was composed of four Senators and of seven members of the Legis- 
 lature. The commission concluded that the arbitral sentence could 
 not be considered as obligatory because while the arbiter had been 
 asked to judge and decide according to the titles and documents he, 
 on the contrary, had eliminated them and had not attained himself 
 to the conditions fixed in the compromise. 
 
 38 
 
In the arbitral convention concluded by the parties on the 20th 
 of September, 1827, it had thus been stipulated in Article 7: "The 
 decision of the arbiter once given shall be held as final and definitive 
 and shall be put in execution without reserve by the commissioner 
 appointed to this purpose by the contracting parties." Nevertheless, 
 this clause did not prevent the United States from considering the 
 sentence as not susceptible of execution in consequence of the just 
 motive that this sentence had not been rendered in conformity with 
 the prescriptions of the agreement which determined the powers of 
 the arbiter. 
 
 Asser, in his learned observations formulated in the doctrinal 
 note which he wrote below this sentence, expresses himself on the 
 subject in this manner : 
 
 "It is true that the compromise, foreseeing that the arbiter 
 would have to terminate the conflict in a final manner, could appear 
 to have given him all the necessary pow r ers to enable him to trace the 
 boundary line : this was at least the reply of England to the refusal 
 of execution by the United States. But this reply was superficial 
 and hasty. By that clause, expressed in due form, the parties did 
 not mean to deprive the arbiter of the right to pronounce the non 
 llqitct in virtue of the compromise, but simply to stipulate that the 
 arbitral sentence should be final, that is, without appeal and decisive, 
 that is, to be executed immediately. Now, in order to have this 
 double character, it was indispensable that this sentence be in con- 
 formity with the compromise. But, in order to be in conformity 
 with the compromise, it was necessary that the sentence be rendered 
 by interpretation and in execution of the texts which precisely King 
 William had thought to be able to reject." (Loc. cit., p. 300.) 
 
 It results from what we have just stated that, when the arbiter 
 arrogated to himself a power which had not been attributed to him 
 by the terms of the compromise, his sentence cannot have the same 
 legal value as the decision of a judge who has judged within the 
 limits of his competence. 
 
 Now we propose to examine if, given but not admitted, that the 
 
 39 
 
President of the Argentine Republic could draw the boundaries ac- 
 cording to equity, he has exercised his power in conformity with 
 the principles of international law. 
 
 In the general treaty of arbitration concluded between Bolivia 
 and Peru on the 21st of November, 1901, which is recalled in the 
 compromise passed between the two States on the 30th of Decem- 
 ber, 1902, it is specified in Article 8 : 
 
 "The arbiter shall pronounce in strict conformity with the pre- 
 scriptions of international law, and, in the question of limits to 
 the American principles of the uti possidetis of 1810, every time 
 when the convention, to which Article 2 refers (that is the special 
 compromise) does not establish the application of special rules, or 
 does not authorize the arbiter to pronounce the sentence as amicable 
 adjuster." 
 
 According to principles of international law, the rule of uti 
 posseditis, of 1810, admitted for the territorial delimitations by the 
 American States, must be understood in its exact sense. 
 
 The colonial possessions, taken as a whole and in the special 
 parts which compose them, have to be reputed as being in the do- 
 main of the State to which the colonies belong. Therefrom it re- 
 sults that, as long as the colonial relation persisted regarding the 
 different countries of America \vhich formed the Spanish colonies, 
 the whole colonial territory was exclusively in the domain of the 
 sovereignty to which it belonged. Therefore the Spanish Sovereign 
 could, in absolute autonomy, regulate the administrative regime of 
 his colonies, institute Captaincies General, Audiencias, Residencias 
 and Viceroyalties ; comprise in these circumscriptions such and such 
 a region in order to determine the territorial circumscriptions of 
 the jurisdictions; and decree the delimitation of these circumscrip- 
 tions the uniting or separating of territories in virtue of right of 
 dominion which belonged to him exclusively on his colonial 
 possessions. 
 
 It must be said, however, that the territorial circumscriptions 
 established by the King of Spain, in order to provide for the ad- 
 
 40 
 
ministrative regime of his colonial possessions, did not have the 
 result of creating true rights of territorial domination for the bene- 
 fit of this or that one of these circumscriptions, since the right of 
 domain had never ceased to belong to the King of Spain, as well 
 on the whole of the territory as on each one of the countries com- 
 posing it. The real question of right of territorial domain belong- 
 ing to this or that of the American Republics was created when, 
 in the wake of revolution and emancipation of these countries who 
 in the beginning were Spanish colonies of South America, they con- 
 stituted themselves into independent States. It was natural that 
 when it came to determine and to delimitate the territories belong- 
 ing to each one of these new States, the administrative circumscrip- 
 tions had to be taken into account such as they had been established 
 by the King of Spain. 
 
 It could indeed not be overlooked that the inhabitants of one and 
 the same administrative circumscription had formed an actual asso- 
 ciation and that this circumstance had established among them cer- 
 tain ties of affinity, which had in the first place brought about their 
 moral union and which afterwards became the foundation of their 
 political union. Henceforth it was reasonable to admit that the 
 delimitation of each circumscription as soon as it had proclaimed 
 its independence, had to serve as basis for the delimitation of the 
 territory of each of the new States of South America. From this 
 point of view, the colonial regime which from the first was the 
 historical factor of the different administrative organisms, had 
 naturally to be considered also as the historical factor of the diverse 
 political organisms, and in order to determine the territorial delimi- 
 tations of the confining Republics, observation of the rules of pos- 
 session at the time when these Republics were constituted, could 
 not be dispensed with. 
 
 It is in this sense that the rule of the uti possidetis of 1810 ad- 
 mitted by the American States as principle of common right to 
 draw their respective boundaries has to be understood. Peru itself 
 confirms it by its treaty of December 18, 1823, when it was 
 
 41 
 
in conflict with Colombia about its boundaries with that State. 
 It must be said, however, by taking into account the principles 
 which we have exposed above, that, as the decrees, the royal ordi- 
 nances, the acts of the government, the official maps, could not 
 have the effect of establishing in an absolute manner the territorial 
 domain, these documents had to be referred to in taking into ac- 
 count the spirit which had inspired them and the meaning of these 
 acts which had for object the fixing of territorial circumscriptions 
 of the administrative organic unities. 
 
 We cannot study thoroughly, in order to appreciate their value, 
 the acts, edicts, the royal decrees and the ordinances, so as to be 
 able to decide if really these documents did not furnish positive data 
 of fixing the limits of the contested territory. There is no doubt, 
 as we have indicated above, that the arbiter has omitted to do what 
 he was obliged to, that is to allow himself to be enlightened by the 
 Geographical Society of London, since proof with the aid of geo- 
 graphical maps was mentioned among the documents by which the 
 expert had to inspire himself for rendering his sentence. 
 
 Now we will examine a last point, that is, to know if, it even 
 being admitted that the arbiter had not been able to find any de- 
 cisive ground to statuate by application of the rule of the uti possi- 
 detis, he should not have observed the general principles of the in- 
 ternational law to draw the boundary line between the two Re- 
 publics ? 
 
 Article 8 of the general convention of arbitration of the 21st of 
 November, 1901, imposed upon him the obligation to conform him- 
 self strictly to the prescriptions of this law. 
 
 The rules of international law always applicable to arbitrations 
 relating to delimitations of boundaries are the following : 
 
 "To avoid in principle an unreasonable and noxious severity, 
 consisting in adhering too strongly to the mathematical line, but to 
 trace the limits, taking into account territorial irregularities, com- 
 mercial and agricultural exigencies and ways of communication : 
 
 "To even rectify the lines traced by nature, when this is neces- 
 
 42 
 
sary in order not to divide up a complex of works, and to subordi- 
 nate the tracing of the boundary to the temperaments suggested by 
 the exigencies of economy, agriculture and industry and by the 
 considerations of equity." 
 
 For the strict observation of these rules a journey to the sites 
 had to be considered as indispensable. Indeed M. Escalier, Min- 
 ister Plenipotentiary of Bolivia, had justly requested this measure, 
 but the arbiter did not think it necessary to pay attention to this 
 request. 
 
 Furthermore, it was certainly in accordance with the rules of 
 international law to respect, as much as possible, the actual pos- 
 session. 
 
 Indeed, the general rule applicable in this matter is that when 
 the boundaries of two States have to be determined, in the absence 
 of positive titles that could serve as basis for the determination of 
 the respective rights of domain, possession must be regarded as 
 a title. 
 
 According to international law, such an importance is attributed 
 to the effective and actual possession that publicists admit that, even 
 when a territory had originally been taken in a violent and unjust 
 manner, it can, nevertheless, become legitimized by time as a matter 
 of fact and be respected as such. Consequently, it is admitted that 
 we must consider as belonging to each State the territory and its 
 annexes over which the sovereignty had actually exercised its emi- 
 nent right of domain during a reasonable length of time and not- 
 withstanding that the legitimacy of the title in virtue of which this 
 possession had been effected could be assailed. 
 
 Already at his time Grotius maintained that, in order to avoid 
 interminable conflicts between the States, it had to be admitted that 
 time consolidated everything because otherwise interminable diffi- 
 culties would exist on the subject of boundaries of States. 
 
 "A very great inconvenience appears necessarily to be the con- 
 sequence, that is, that never by no lapse of time differences about 
 States and their limits can be extinguished which, not only is capable 
 
 43 
 
of troubling the minds of many and to incite war, but even is con- 
 trary to the common sentiment of nations." (Le Droit de la 
 Guerre, liv. II, ch. IV, No. 1. Traduit par Pradier Fodere.) 
 
 Philimore teaches the same doctrine. 
 
 "It is only/' says he, "by allowing to time the virtue of oblit- 
 erating injustice and to create right that the sentiment of security 
 can be consolidated among peoples and international peace insured." 
 (International Law, p. 255 et suiv.) 
 
 Bluntschli thus attributes to possession as matter of fact the 
 faculty of eliminating for an indefinite length of time all discussion. 
 
 "Even if it can be proven that the original taking possession has 
 been accompanied by violence and has taken place in defiance to 
 law, but if, on the other hand, the peaceful possession lasts since 
 long enough that the stability and necessity of the established order 
 of things be recognized by the population, it must be admitted that 
 the de facto condition brought about by violence has been trans- 
 formed with the time into a lawful condition." (Le Droit inter- 
 national codifie, p. 290.) 
 
 We have admitted this same doctrine into our codified inter- 
 national law formulating it in rules 1074 and 1075 of our fourth 
 edition; our rule 1076 is thus expressed: 
 
 "The action on the part of a third power, which intends to attack 
 the right of the one who is in actual possession cannot be considered 
 as capable of indefinite execution. A limit to this action must be 
 admitted considering in principle that time validates everything and 
 that the original acquisition cannot be submitted to a discussion of 
 indefinite length. 
 
 "Actual possession maintained and prolonged during a long 
 period of years shall be reputed an obstacle to the admissibility of 
 the action." 
 
 These principles of international law which, in a general way, 
 should be applied to territorial acquisitions, realized by means of 
 prolonged possession lasting a considerable length of time, must 
 undoubtedly be applied in order to determine the attribution of cer- 
 
 44 
 
tain parts of the colonial territory which are at the present time in 
 the possession of one or the other of the American Republics. 
 
 In this matter, the application of the rule of the uti possidetis 
 imposes itself and the arbiter could not neglect to apply it, when 
 he was called upon to statuate according to principles of interna- 
 tional law. 
 
 The taking into account of the possession should not have been 
 dispensed with should the conventional clause stipulated by the 
 parties in Article 5 of the compromise be respected. Indeed the 
 parties by this enactment had agreed that the possession of one terri- 
 tory, exercised by one of them, could not be opposed to or made to 
 prevail against the titles and royal enactments establishing the con- 
 trary. Therefore, that clause signified that, when the arbiter, 
 basing on the titles and royal dispositions had, in his quality as 
 judex juris been able to determine which were the respective terri- 
 tories belonging to Bolivia and to Peru, if one or the other of these 
 parties who claimed the zone of the contested territory had found 
 itself in possession of part of that zone, this possession could not 
 prevail against the attribution of the boundary line made by the 
 arbiter in virtue of the legal titles. 
 
 Now, as the arbiter had not found positive legal titles, by virtue 
 of which the distribution of the zone of contested territory could 
 be made, and had decided to draw the boundary line according to 
 rules of equity, it was his duty to conform himself to the principles 
 of international law and undoubtedly he could not abstain from 
 taking into account the possession; and he certainly could not refer 
 to the clause of Article 5 of the compromise, which was in no way 
 applicable. 
 
 The arbiter was therefore bound to respect, at the very least, 
 the possession de facto. On the contrary, in virtue of the arbitral 
 sentence Bolivia has been despoiled, to the advantage of Peru, of 
 certain parts of territory, of which it had realized effective occupa- 
 tion, by founding there industrial establishments, by developing 
 actively commerce and agriculture, and by establishing military 
 
 45 
 
garrisons and planting there the indispensable signs of possession. 
 These regions, inhabited by Bolivians, independently of royal enact- 
 ments and dispositions, formed already integral part of Bolivian 
 patrimony. This was the case with important territories situated 
 on the banks of the rivers Acre, Taguamanu, Buyuyumanu, Manu- 
 ripo, Madre de Dios and Tambopata. To regard the sentence as 
 valid and to establish the division of the contested territory in ac- 
 cordance with the line drawn by the arbiter, possessions, belonging 
 indisputably to Bolivia in the regions occupied by it before the 
 treaty was concluded, would have to be attributed to Peru. 
 
 Could, perhaps, the decision of the arbiter be justified, when 
 it is contrary to the principles of international law, according to 
 which the possession de facto achieved in an effective and perma- 
 nent manner by founding military and industrial establishments 
 thereon and by developing agriculture, must be considered as suffi- 
 cient title for the acquirement of territorial sovereignty ? 
 
 We pay respectful homage to His Excellency the President of 
 the Argentine Republic, whose high intelligence and moral authority 
 everybody recognizes, and we consider it as above discussion that 
 he intended to fulfill conscientiously the noble mission entrusted to 
 him, in tracing the disputed frontier between Bolivia and Peru and 
 thus contribute to consolidate the peace between these nations. 
 Nevertheless, we take the liberty of respectfully observing that the 
 sentence prepared by the competent ocmmission and rendered by 
 him (the President) to solve this difficulty, does not appear to us 
 to be soundly based on the agreement between the High Contracting 
 Parties. 
 
 Naples, May 14, 1910. 
 
 PROF. PASQUALE FIORE, 
 Member of the Council of Diplomatic Contention, 
 Member of the Institute of International Law, 
 Senator of the Kingdom of Italy. 
 
 Translated by Ch. Antoine, Doctor at Law, 
 Member of the Court of Appeals of Douai. 
 
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