To state at the outset, first, the geographical situation of the two countries, parties to this arbitration, and, second, to give the history of the nature, origin, development and undisputed facts of the controversy, will conduce to a clearer appreciation of the matters to be passed upon. In doing so for the purposes of the rights with which this arbitration is concerned, Costa Rica will be taken as representing not only rights enjoyed by it in its own name, but all those concerning the matter here in dispute which it possesses as the successor of a prior government, the Republic of Central America; and Panama will likewise be taken as representing for the same purposes, not only its own rights, but also those of its governmental ancestors, the Republic of Colombia, the Republic of New Granada, the United States of Colombia and the Republic of Colombia.

First. The two countries have an extended coast line on the Atlantic and the Pacific Oceans, the territory between the oceans being divided by the main range of the Cordilleras. Not taking into account any conflict as to boundary, if any there be, between Panama and the Republic of Colombia lying southeast of Panama, the territory of Costa Rica and Panama on the Atlantic extends from the upper boundary of Costa Rica at about the eleventh parallel of latitude in a southeasterly direction down to about 8° 40′, a distance not considering the sinuosities of the coast approximating 450 miles.

Second. For seventy-five or eighty years there were controversies between Panama and Costa Rica or their predecessors concerning the extent of their territorial authority. All the disputes referred to arose from two subjects differing fundamentally; the one, a contention on the part of Panama that its territorial sovereignty embraced the entire Atlantic coast, not only along its own front, but also along the front of Costa Rica and Nicaragua, which country lies above Costa Rica, since the claim of sovereignty terminated only at Cape Gracias a Dios, which was practically the uppermost boundary of Nicaragua dividing that country from Honduras. This claim was based upon what was asserted to be the operation of a Spanish Royal Order of 1803. The other claim, distinct from the former because resting upon independent considerations and which would require to be disposed of even if the former claim was held to be unfounded, concerned the boundary dividing the territory of the two countries in the expanse from the Atlantic to the Cordilleras, across the same and on the Pacific side. So far as the entire territorial claim is concerned and the points in the mere boundary claim which con

cern the crossing of the Cordilleras and the line of boundary on the Pacific side, no further statement need be made for reasons hereafter to be set forth. The aspect of the controversy therefore necessary to be stated here involves only the boundary between the two countries in the territory situated on the Atlantic side between that ocean and the range of the Cordilleras.

On the part of Costa Rica in substance from the beginning its lower boundary was claimed to embrace an island in the Atlantic Ocean designated as Escudo de Veragua opposite the mouth of a river named as the Chiriquí, which emptied into the Atlantic shortly below what was known as Almirante Bay, and following the course of that river to the Cordilleras. This claim of boundary, if valid, would necessarily have deprived Panama or its predecessors of a large area of territory over which that country asserted jurisdiction. This assertion of boundary right made by Costa Rica was based, besides a reference to other Spanish documents or decrees, especially on what was asserted to be the result of certain Spanish Cedulas or Capitulacions of 1540, 1573 and 1600. Again for reasons which will hereafter be made apparent, the facts concerning the rightfulness of this claim of boundary on the part of Costa Rica need not be further enumerated.

On the other hand, the claim on the part of Panama or its predecessors was that the boundary line was made by a river which took its source in the Cordilleras and flowed into the Atlantic at a point much above Almirante Bay. The river which it was thus contended by Panama constituted the boundary was designated by various names and the point at which it emptied into the Atlantic would seem for a considerable time to have been in doubt. There is no ground, however, for real dispute that it came finally to pass that Panama recognized that the stream which it relied upon and continued to insist constituted the boundary along its entire course from the mountains debouched in the Atlantic Ocean shortly below a point indifferently designated as Punta Carreta or Punta Mona-indeed that such river was the first stream emptying into the Atlantic below that point-and that at its mouth at least the stream in question was known as the Sixaola. The boundary dispute therefore involved the territory lying between the two rivers contended for in their courses as they flowed from the mountain range in which directly or indirectly they took their sources to the ocean, and the area, and extent of the controversy, therefore, depended in the nature of things upon the direction of the flow of the bounding rivers which the parties had in

mind and upon which they respectively relied as constituting the division between the two countries.

As the statement just made in a general way points to the questions of fact and law to be passed upon, it might well be taken as adequate for the purposes of the mere outline which I at the outset indicated, and therefore would render it necessary now to make no further statement before coming to an analysis of the questions of law and fact for decision under the present arbitration.

But as when the discharge of that duty is reached it will become apparent that in its last analysis every issue for decision will involve an appreciation of the facts concerning the claim of river boundary relied upon by Panama, the assertion of the river boundary contended for by Costa Rica being, as I have said, out of the case, in order to avoid repetition and to clear a broad way leading to the merits, I propose to state the facts concerning the essential matters which require to be considered, concerning the claim of Panama under a third heading as follows:

Third. The origin of the claim made by Panama, the acts, dealings and admissions of that Government or its predecessors concerning such claim, the negotiations for a prior arbitration, the environment of such negotiations, the treaties made agreeing to the same, the award, the course taken by the parties in executing it, the controversy which resulted, either concerning its interpretation or its binding force, the entering into the arbitration treaty now being executed, and such additional facts as are found in this record as may be considered necessary to be taken into view in connection with the questions of law which require to be passed upon.

To the end of orderly consideration I state the subjects which this general proposition embraces separately under four headings enumerated (a), (b), (c) and (d).

(a) The source of the boundary claim of Panama and Panama's official assertions of its right by way of negotiations or attempts to negotiate with Costa Rica with reference to the same or otherwise.

There is no document in the record upon which the assertion by Panama or its predecessors to the river boundary above referred to can be said to rest as an original muniment of title, and therefore the nonexistence of any document of that character may be assumed. I say this because although Señor Madrid, a Colombian publicist, in 1852 in a report made to the Colombian Minister of Foreign Affairs declared that

official documents to such effect existed, Señor Borda, another Colombian publicist, as late as 1896 in a work prepared officially for the use of the Colombian Government declared that no such official documents had been found and could not be said to exist unless they were considered to be embraced by two alleged maps which were referred to.

But without reference to the source of the title, the existence of the dispute as to boundary at an early date is clearly shown, since in 1825 Costa Rica as a state of the United Provinces of Central America in its Constitution declared its boundary to be the Escudo de Veragua, the island opposite the Chiriquí River which, as I have said, is the boundary now relied upon by Costa Rica. And in the same year, presumably as the result of a dispute concerning this boundary, the Republic of Colombia (Panama) and the United Provinces of Central America (Costa Rica) entered into a convention by which they obliged themselves "to respect the limits of each other as they now exist," and expressed their purpose to fix their boundaries upon that basis and contemplated a future agreement or convention to give effect to that purpose. The provisions thus referred to were embraced in Articles VII and VIII of the convention. There was no express agreement between the parties for the settlement or demarcation of the territorial claim as to sovereignty over the coast up to Cape Gracias a Dios, although Article IX of the convention contained a provision for a modus vivendi between the parties concerning such claim.

Clear as is the text of the treaty in question on the two distinct subjects stated, if there were room for obscurity it would be greatly illumined by a consideration of the negotiations which preceded the adoption of the treaty. I say this because in those negotiations a proposition on the part of Colombia (Panama) to adjust or compromise the larger territorial claim on a basis stated was promptly rejected by Costa Rica, and on the other hand a proposition made by the representative of Colombia that "as to boundaries it is necessary to hold to the uti possidetis of 1810 or 1820 as may be desired," was promptly accepted by Costa Rica, thus indicating why as to the larger claim nothing but a provision for a modus vivendi was inserted, while as to the boundary claim proper a basis for its adjustment was agreed upon and a declaration of the purpose to execute in the future that agreement was made. What exactly was the possessory boundary relied upon as then existing does not appear. Subsequently, the contemplated purpose of delimiting the boundary stated in the convention not having been carried out, that is in 1836, the Republic of New

Granada (Panama), in establishing a new territory called Bocas del Toro fixed the limits of that territory on the Atlantic coast from the river called Concepcion up to the mouth of a river described as the Culebras and then "on the northwest [that is, from the mountains to the mouth of the Culebras] by the frontier line which separates on that side the Republic of New Granada from that of Central America." It is apparent that this description, while it amounted to an attempt to definitely fix a line of boundary on the Atlantic coast at the entrance of the Culebras River, did not define the line of that boundary from the point of the mouth of that river to the main Cordilleras, but left it to follow the course of the existing boundary line between the two countries an omission which was presumably caused by the fact that by Articles VII and VIII of the convention of 1825, as we have seen, the line of such boundary was to be determined by the application of the doctrine of uti possidetis and the subsequent demarcation which was contemplated but which had not taken place. It is to be observed, however, that while the line from the mouth of the river to the mountains was thus left open to be marked, the provision clearly points out that the line of boundary or frontier as it then existed and as it was understood between the parties, considered in its trend from the mountains to the mouth of the river, ran in a northeasterly direction, or, conversely, from the mouth of the selected river to the mountains, in a southwesterly

course.

Following the assertions of right on behalf of Costa Rica to the southern boundary at the Chiriquí River, as at the outset stated, and of Panama to a northern boundary at the mouth of the river called the Culebras, running from the mountains to the ocean on a line having the course above indicated, many subsequent negotiations occurred which we outline briefly as follows:

In 1856 a treaty was drawn between New Granada (Panama) and Costa Rica, by which the northern boundary between the two countries on the Atlantic was fixed by a river named the Doraces from its source in the Cordilleras "down-stream by the middle of the principal channel of this river until it empties into the Atlantic." When the Congress of New Granada (Panama) came to act upon this treaty it defined the mouth of this river in the Atlantic as being "the first river which is found at a short distance to the southeast of Punta Carreta [Punta Mona].” As a result of this definition the treaty was not ratified because Costa Rica declined to agree to the definition, which, of course, if accepted,