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The Boundary Dispute Between Peru and Ecuador

Published online by Cambridge University Press:  27 February 2017

Ronald Bruce St John
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Extract

In an article in this Journal some years ago, Professor Georg Maier analyzed the legal cases presented by the Republics of Peru and Ecuador during their long boundary dispute and concluded that the Ecuadorian Government had a much stronger de jure title to the disputed territory, while the Peruvian Government’s claim rested primarily on a strong de facto title. Consequently, he argued that the 1942 Rio Protocol which awarded the Peruvian Government the bulk of the territories in question was not an equitable solution to the dispute since such a solution would lie between the extremes of Ecuador’s de jure case and Peru’s de facto case. He further concluded that a more equitable solution should be sought so the dispute would no longer be an impediment to amicable relations between the two countries. The conclusion of this writer is that the Peruvian Government’s de jure case in the dispute was stronger than that of the Ecuadorian Government and that Peru’s legal case was then buttressed by a prolonged occupation and development of much of the disputed area. Furthermore, even if the Rio Protocol was not an equitable solution to the problem, no legal justification exists for demanding the renegotiation of a pact signed and ratified by both the Peruvian and Ecuadorian Governments and then guaranteed by four other American Governments.

Type
Notes and Comments
Information
American Journal of International Law , Volume 71 , Issue 2 , April 1977 , pp. 322 - 330
Copyright
Copyright © The American Society of International Law 1977

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References

1 Maier, G., The Boundary Dispute Between Ecuador and Peru, 63 AJIL 28–46 (1969)CrossRefGoogle Scholar.

2 The Protocol of Peace, Friendship, and Boundaries was signed at Rio de Janeiro on January 29, 1942.

3 For maps of the disputed areas, see De La Barba, F., Tumbez, Jaen, Y Maynas 48 (1961)Google Scholar and Peru, , Ministerio De Guerra, Biblioteca Militar Del Official No. 31: Estudio De La Cuestion De Limites Entbe El Peru Y El Ecuador 37, 40 (1961)Google Scholar.

4 Supra note 1, at 28–29. Wagner De Reyna, A., Los Limites Del Peru 41 (1962)Google Scholar; Wright, L. A., A Study of the Conflict between the Republics of Peru and Ecuador, 98 Geographical Journal 253 (1941)CrossRefGoogle Scholar. The population of Jaén adhered to the Republic of Peru in 1821 and their representatives attended the Peruvian Congresses of 1822, 1826, and 1827. Representatives of Tumbez also attended these first three congresses.

5 Wagner De Reyna, supra note 4, at 41; Wright, supra note 4, at 254. Maynas was liberated from Spanish rule in 1821 but had to be reliberated in 1822. Representatives from Maynas attended the 1826 and 1827 Peruvian Congresses. Maynas, also spelled Mainas, is frequently referred to as the Oriente.

6 Wood, B., The United States and Latin American Wars, 1932–1942 at 3 (1966)Google Scholar. Approximately thirty boundaries demarcated the Latin American states at the time of independence, and disputes over the location of twenty of them lasted into the twentieth century. The Republic of Peru, for example, had prolonged border disputes with all five of its neighbors, and none of these conflicts was resolved before the turn of this century.

7 For examinations of the respective legal cases, see Morales Padrón, F., La frontera peruano–ecuatoriana, 2 Estudios Americanos 455–66 (1950)Google Scholar; Peru, , Documentos Relativos A La Conferencia Peru–Ecuatoriana De Washington, 49–81 (1938)Google Scholar; Arroyo Delgado, E., Las Negociaciones Limitrofes Ecuatoriano–Peruanas En Washington, 44–53 (1939)Google Scholar; and Pastoriza, Flores, History of the Boundary Dispute Between Ecuador and Peru 67–70 (1921) (unpublished doctoral dissertation, Columbia University)Google Scholar.

8 Schwarzenberger, G., International Law 1, 21, 304–05 (1957)Google Scholar. As Schwarzenberger points out, the Guatemala–Honduras Boundary Arbitration of 1933 is a good example of the uncertainties of the rule of uti possidetis. The Special Boundary Tribunal in that arbitration left open the question of whether possession in 1821 meant de jure or de facto possession. Furthermore, the Tribunal found it difficult to determine the actual frontier line in 1821 because the Spanish colonial administration had never fully established frontiers nor even established administrative authority in many areas of the border zone.

9 Morales Padrón, supra note 7, at 458; Flores, supra note 7, at 67–70; and Arroyo Delgado, supra note 7, at 44–53.

10 Peru, , Resume or the Historical–Juridical Proceedings of The Boundary Question Between Peru and Ecuador 3, 14 (1937)Google Scholar; Tudela, F., The Controversy Between Peru and Ecuador 12–38 (1941)Google Scholar; Peru, The Question of The Boundaries Between Peru and Ecuador (hereinafter cited as Question); Statement of the Peruvian Delegation to the Washington Conference concerning the scope of the boundary negotiations with Ecuador, in accordance with the Protocol of the 21st of June, 1924, within the historical–juridical process of the controversy, 6–7 (1927); and Ulloa Sotomayor, A., Posicion Internacional Del Peru 17 (1941)Google Scholar.

11 Maier, supra note 1, at 36.

12 Porras Barrenechea, R., El Litigio Peru–Ecuatoriana Ante Los Principios Jurtdicos Americanos 7 (1942)Google Scholar and Cornejo, M. H. and De Osma, F., Memorandum Final Presentado Por Los Plenipotenciarios Del Peru En El Litigio De Limites Con El Ecuador 16–17 (1909)Google Scholar.

13 Peru, Question, supra note 10, at 15–7; Morales Padrón, supra note 7, at 458; Zook, D. H., Zarumilla–Maranon: The Ecuador–Peru Dispute 28–29 (1964)Google Scholar; and Wagner De Reyna, A., Historia Diplomatica Del Peru, 1900–1945, 1, at 173 (1964)Google Scholar. Maier (supra note 1, at 34) was incorrect in stating that the Republic of Peru based its legal claim on this document as its claim based on the cédula of 1802 was always secondary to the title based on the principle of self–determination.

14 V. Santamaria De Paredes, A Study of the Question of Boundaries Between The Republics of Peru and Ecuador 277–80 (1910) and Ulloa, supra note 10, at 19–20.

15 Art. XIV. 20 Brit, and for. State Papers 1311, 13 Martens, Noveau Recueil 23, 82 Parry, Consolidated Treaties Series 463.

16 Peru, Question, supra note 10, at 10; Wagner De Reyna, supra note 13, at 25; Flores, supra note 7, at 33, 38–40, 44–45; Perez Concha, J., Ensayo Historico–Critico De Las Relaciones Diplomaticos Del Ecuador Con Los Estados Limitrofes 145–47 (1959)Google Scholar. Woolsey, L. H., The Ecuador–Peru Boundary Controversy, 31 AJIL 98–99 (1937)Google Scholar. Maier was inaccurate in his statement that the 1829 treaty was duly ratified by both signatories as Gran Colombia’s ratification was imperfect. He was misleading to suggest that the treaty provided for a “clear and unambiguous definition of the boundary” as the exact boundaries of the Viceroyalties of Peru and New Granada were uncertain which was the reason the treaty provided for a commission of limits. Supra note 1, at 38.

17 Art. V. 16 Brit, and for. State Papers 1242, 9 Martens, Noveau Recueil 26, 80 Parry, Consolidated Treaties Series 97.

18 Santamaria De Paredes, supra note 14, at 29, 247–48; Tudela, supra note 10, at 27–28.

19 Ulloa Cisneros, L., Algo De, Historia. Las Cuestiones Territoriales Con Ecuador Y Colombia Y La Falsedad Del Protocolo Pedemonte–Mosquera (1911)Google Scholar; Wright, supra note 4, at 265; Peru, Question, supra note 10, at 10. The Colombian Government had a copy of the Pedemonte–Mosquera Protocol but did not mention it until 1904, and the Ecuadorian Government first introduced it into its legal brief in an Exposición filed on October 20, 1906. The Peruvian Government also pointed out that a document of such importance as the Pedemonte–Mosquera Protocol would have required congressional approval if it had existed and none was given.

20 Brierly, J. L., The Law of Nations 153 (6th ed., 1963)Google Scholar.

21 Supra note 1, at 39.

22 Peru, Question, supra note 10, at 10; Tudela, supra note 10, at 12–38; Ecuiguben, L. A., Notes on The International Question Between Peru and Ecuador. Part I. Maynas, 149 (1941)Google Scholar.

23 Zook, supra note 13, at 23–24. Ecuador’s ratification was imperfect and its original copy of the ratified treaty was later misplaced. On March 26, 1846, the Ecuadorian Government received an authenticated copy of the 1832 treaty from the Peruvian Foreign Ministry.

24 Supra note 1, at 40.

25 Convention between Ecuador and Peru, signed at Quito, Aug. 1, 1887, 78 Burr. and For. State Papers 47.

26 Peru, , The Question of The Boundaries Between Peru and Ecuador: A Historical Outline Covering the Period Since 1910, at 12–18 (1936)Google Scholar; Flores, supra note 7, 56–62; Tudela, supra note 10, at 12–38.

27 Ulloa, supra note 10, at 179–82; Wright supra note 4, at 269; 8 Basadre, J., Historia De La Republica Del Peru, 3582–83 (5th ed., 1963)Google Scholar.

28 For an examination of Peruvian and Ecuadorian negotiating positions between 1910 and 1942, see Ronald Bruce St John, Peruvian Foreign Policy, 1919–1939: The Delimitation of Frontiers 271–89, 429–93 (1970) (unpublished doctorial dissertation, University of Denver). Peru, supra note 7, at 30–40; Zook, supra note 13, at 146, 148; Peru, , Conferencia De Washington Para La Cuestion De Limites Entre El Peru Y El Ecuador. Réplica de la delegación peruana a la contraproposición ecuatoriana del 9 de agosto de 1937, 1–13 (1937)Google Scholar. In 1935, 1937, and 1938, the Peruvian Government proposed submitting part or all of the dispute to the Permanent Court of International Justice at the Hague, but the Ecuadorian Government refused all three proposals. Ecuador continued to hope for a solution, such as a total arbitration by the President of the United States, which would consider extra–legal arguments.

29 Signed at Rio de Janeiro, Jan. 29, 1942, 56 Stat. 1818, E.A.S. No. 288, 3 Bevans 700, 36 AJIL Supp. 168 (1942).

30 Inter–American Affairs: 1942, an Annual Survey 15–16 (Whitaker, A. P. ed. 1943)Google Scholar; Lloyd Mecham, J., The United States and Inter–American Security 1889–1960, at 169–70 (1961)Google Scholar; Solf Y Muro, A., Memoria Del Ministro De Relaciones Exteriores, Julio 1941 a Julio 1942, at LVI–LIX (1943)Google Scholar.

31 Since 1942, Ecuadorian politicians have occasionally criticized or even denounced the terms of the Rio Protocol. In response to one such outburst, the four countries guaranteeing the Rio Protocol sent telegrams to the Governments of Peru and Ecuador on December 7, 1960, expressing their mutual agreement that a basic principle of international law was that a unilateral determination on the part of one of the parties to a treaty of limits is not enough to invalidate the treaty nor will it free the state from the obligations of the treaty. They concluded that both parties must agree to a change before the stipulations of a treaty can be modified or before an international tribunal can be given the power to consider the case. Maier, supra note 1, at 45—46.