LATEST BRAZILIAN NOTE ON GUAIRD

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP08C01297R000400370010-9
• Release Decision: RIFPUB
• Original Classification: C
• Document Page Count: 6
• Document Creation Date: December 27, 2016
• Document Release Date: September 24, 2012
• Sequence Number: 10
• Publication Date: April 20, 1966
• Content Type: CABLE

gE~,AATMENT OF STATE
Declassified and Approved For Release 2012/12/07: CIA-RDP08CO1297R000400370010-9 ['AR
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DATE: April 20, 1966
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CONTENTS
A. Argument that boundary already demarcated
B. Arguments as to boundary details
C. Does a treaty take precedence?
D.? Validity of the GOP case for the northern ridge?.
E. GOB proposals for the future
GROUP 3
Downgraded. at 12-year intervals,
not automatically declassified.
Page
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4
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Amembassy ASUNCION
.:EmbA-335, Rio Tel 2132 to Dept., Embtel 366, Emb A-397
RM. DS-323
DIHerr:rmo 4/19/66
FOR DEPT. USE ONLY
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Contents and Classification pptove y'
AMB:WPSnow (in draft)
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 CONFTDRNTTAT.
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I. INTRODUCTION
The latest Brazilian note on Guaira, note No. 92 dated March 25, 1966, replies
in some detail to the Paraguayan note No. 712 of December 14, 1965. Rio's
tel 2132 to the Department, No. 73 to Asuncion, summarized the main points.
The Brazilians obviously devoted a good deal of time to the note's preparation.
Although they took a hard line, it is well written and carefully documented..
Following is an analysis of this note with emphasis on new arguments or
important clarifications presented and on possible Paraguayan counter-arguments
to the principal points therein. It is assumed that the reader is already
familiar with the points at issue. The above-referenced A-335 provides further
background, and the Spanish text of the note was submitted with A-397.
II. ANALYSIS OF THE NOTE
A. Argument that boundary already demarcated
Paragraph 15 of the note provides a useful list of the documents from the
period 1872-74 upon which the Brazilians base their argument that the boundary
has been established since 1874. Paragraphs 21-23 indicate that the demarcation
of 1872-74 was reaffirmed by the Treaty of 1927, which its very title describes
as "complementary to the treaty of 1872.1' But since the 1927 Treaty had
nothing to do with the boundary in question, the argument here is essentially a
negative one., i.e. that the 1927 Treaty raises no question (en nada pone en
cuestion) concerning the validity of the earlier border treaty. Finally, the
Brazilians state that the 1930 Protocol establishing a new Border Commission,
.as well as the actual work of the Commission, does not reopen the demarcation
of the border in the Guaira area but merely provides for more detailed
"characterization" of the border already established. Article 10 of the
Protocol, quoted in Paragraph 32 of the note, is the principal documentary
support for this position.
Although these sections of the Brazilian note array impressive documentary
evidence to substantiate its position that the location of the border is
already established, the fact remains that the new Border Commission has been
empowered to make a more definitive determination of the boundary in the
Guaira area. To argue whether this power amounts to demarcation or
"characterization" is in large part to debate a minor semantic point. The
Brazilians themselves in Paragraph 59 of their note admit that "characterization"
may be commonly deemed "demarcation." The more important question is how
precise are the guidelines of 1872-74 and how closely has the new Border
Commission actually followed them.
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This question of how closely the new Commission has followed the 1872-74
guidelines warrants a separate paragraph. Brazil concedes in the ninth
section under Paragraph 51 that certain alterations in the boundary were made
by a "Conditional Agreement" when the conventionally accepted boundary along
the Amambay mountains south to Mbaracayi was found to differ from the demarcated
boundary. Although the "conventionally-accepted" yardstick might not favor the
Paraguayans at Guairl, the very fact that a yardstick was established which
allowed deviations from the previous demarcation could be used to buttress the
Paraguayan case against regarding the work of 1872-74 as controlling. A
further weakness in the Brazilian position appears in Paragraphs 54 and 55.
Here the Brazilians argue that the various points measured by the Commission in
1962 and 1963, measurements which became the basis for the Paraguayan claim to
establish the boundary further north, were "purely of a topographical nature"
and "in consideration of the cordiality" which Brazil wished to maintain with
Paraguay. Nevertheless, the Brazilians were surely aware of the reasons
behind the GOP's desire to make these measurements, despite what may have been
written into the Act of the 25th Conference (copy unfortunately unavailable).,
and the fact that they finally agreed to such brings into question their
contention that the border at Guaira was clearly established in 1874.
B. Arguments as to boundary details
Our A-335, especially page 5 on "Do the falls themselves belong to Brazil?",
raised various questions concerning the details of the boundary.at the falls.
The latest Brazilian note makes a few noteworthy comments in this regard,
though it does not really clear up the ambiguities involved. One question
which the Brazilians discuss in more detail than previously is the-precise
location of the border's eastern extremity. In Paragraph 87 especially, they
help to clarify their position as to whether the border stops at the right
bank of the Parana or goes on to the channel of the river itself. They concede
that the'border should extend into the river, though this point is labeled
"imaginary." Perhaps because they regard this point as imaginary, they
seem to return to the right bank in other parts of the note as the effective-
boundary.
Another item worth mentioning is that the GOB appears to concede in Paragraph 90
of the note the Paraguayan argument that the words "Salto Grande" in the treaty
cannot be automatically translated as "Fifth Fall." This concession may well
be unwitting since the Brazilians in the paragraph are not actually discussing
this specific point. They are rather simply attempting to explain why the
Border Commissioners did not refer to the Fifth Fall when they arrived at
the Parana in March 1874. But by stating in the paragraph that the Commissioners
could not refer to the Fifth Fall until after a survey had been made, the
Brazilians seem to support the Paraguayan case against deriving "Fifth Fall":
purely from the treaty.
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At the end of the note, beginning with Paragraph 137, the GOB returns briefly
to the details of the border. Their discussion of the landholdings and the
road in the disputed area is of interest, as are the references to maps in
Paragraphs 142-145. The comments on the "observation pillar" in Paragraphs 139
and 140, however, add nothing new,
The Paraguayans could, of course, find counter-arguments to the.various
Brazilian arguments on boundary details. Some of them are mentioned in A-335.
The most important one, however, is their contention that the treaty actually
requires a new line further to the north.
C. Does a treaty take precedence?
Although the GOB note leads one to be increasingly sure that the acts and maps
of the 1872-74 Border Commission have ambiguities in their own right, the
Paraguayans haveFre:ferred for obvious reasons to turn to the treaty itself to
support their claim to the northern ridge as the rightful frontier. The
:Brazilians do not really face this question in their note head-on. In
Paragraph 107 they argue that borders cannot be left indefinitely open to
modifications on the basis of scientific studies; and in the following paragraph
they quote the International Court to the effect that a treaty cannot be left
open to modification "every time that an inexactitude is discovered" in its
application. But the question at hand is a special case. It is not a matter
of leaving a treaty open to an indefinite number of modifications, but rather
one in which the establishment of a border has been specifically opened to
further "characterization." Although such characterization was to be done in
keeping with the treaty and with the work of the first Border Commission, no
specific guidance is offered in the Protocol as to which to follow when an
inexactitude is discovered. The question of the primacy of the treaty, therefore,
remains unanswered, or ineffectively answered, by the GOB note.
D. Validity of the GOP case for the northern ridge?
In answer to "C"'above, the Brazilians would probably counter that the whole`
matter is academic since the inexactitude in question is invalidated by the.
points raised in Paragraphs 112-129 of their note. The Brazilians elaborate
in these paragraphs an interesting argument concerning the "principal mass"
and the "watershed" of the Mbaracayfi.
Paragraphs 117-119 of the note outline the case as to the "principal mass."
According to these paragraphs, the principal mass of the Mbaracayii near the
falls is neither the northern nor the southern of the ridges in dispute but
rather another ridge still further to the south which runs into the Piraty
River. The two ridges in dispute are thus "spurs" of the more southern ridge
which, being the principal mass, is the true "northern range" of the Mbaracayu
(northern in the sense that a still more southerly range takes off from
Ybycui, where the Mbaracayd mountains begin). However, since the principal
mass and the northernmost spur hit the Parana River below and above the falls
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respectively, the middle ridge, which takes off from the principal mass and
hits the falls at the Fifth Fall, is more appropriate for the border in the
Brazilians' point of view. In addition, both the northernmost spur and the
principal mass end in a marsh (banado), while the middle ridge forms a
watershed. Paragraph 126 of the note stresses the importance of this point and
cites the same article of the 1872 Treaty which the Paraguayans use to support
their argument for following the highest ridge.
The argument outlined above leads the Brazilians to make four points in
Paragraphs 121 and 124 in defense of the ridge to the Fifth Fall as the only
possible border: 1) it forms a watershed, 2) it hits the river at the falls,
3.) it is part of the principal mass of the Mbaracayu, and 4) it contributes to
the actual formation of the falls. But these points,.while presented with some
care, are not completely convincing. Although the middle ridge may form a
watershed, it is not clear from the treaty that this is necessary to establish
the boundary. The portion of the treaty quoted by the Brazilians says merely
that "all of the watersheds or slopes (vertientes) which run to the north and
east pertain to Brazil,'and those which run to the south and west pertain to
Paraguay." This statement does not say specifically that the border must follow
the watershed. It is also tossed in at the end of the first article rather than
directly qualifying the more explicit stipulation that the boundary follows the
summit (eumbre) of the Mbaracayd. The second point, that of where the ridge,
hits the falls, is likewise unconvincing, unless one takes "Salto Grande" to
mean Fifth Fall, which may be difficult to justify after the Brazilian statements
in Paragraph 90,quoted under "B" above. Although the northern ridge does not,
terminate at the major falls, it does reach what could be deemed the upper
limits or the beginnings of the falls, taken as a whole. Point number 3, in`.
turn, is the weakest of them all. Since the Brazilians have already argued
that the principal mass lies to the south, which in itself may be open to
question, they have to admit that the northern ridge and the middle ridge are
both spurs. The only difference between the two would seem to be that the
middle ridge takes off from the "principal mass" in a more southerly'direction.
The fourth point deserves some elaboration. Paragraph 121, point 3,'presents the
argument to the effect that, since erosion would work upstream, mountains
actually contributing to the formation of a waterfall would have to lie either
at the falls or slightly before, never above. The more basic question of why
the mountains need contribute to the formation of the falls to serve as the
boundary is not discussed. In addition, one could question the point's validity
on purely geographic grounds. Since a waterfall. occurs when the ground-level
becomes suddenly lower, it would seem reasonable to suggest that the principal
mass and highest points of land contributing to the falls would more likely
lie above them than below.
E'. GOB proposals for the future
At the end of the 'note the GOB turns to the future. It first attempts to reply
to the Paraguayan charge that their delays have hindered the completion of the
work of the Border Commission. Although much of their commentary involves a
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list of Paraguayan maneuvers which delayed a meeting of the Commission in 1961,
the GOB does express in Paragraph 136 its willingness to re-activate the
Commission's work, provided it follows "strictly" the 1930 Protocol. In
Paragraph 131, the GOB also offers a proposal for consideration by the Commission,
namely that it attempt to define the terminal point of the watershed of the
Mbaracayd at the falls. Neither of these approaches, however, offers much leeway
for future negotiations.
A more interesting GOB proposal is that an effort be made by the two governments
to forget "sterile conflicts" and to work jointly to achieve the "integral"
development of the resources of the Parana.. This proposal is noteworthy in
that it envisages not only the development of the hydroelectric potential of the
Parana but of its agricultural and navigational potential as well. Although no
specific mention is made, perhaps intentionally, of Paraguayan rights to
participate in the development of the river at the falls, the proposal seems
genuine and may indeed open an "auspicious line" for future negotiations.
This closing accent on the positive is tarnished, however, by the firm GOB
attitude in Paragraph 150 against removing its troops from the area, a gesture
which the Paraguayans have long stated must precede any substantive talks.
III.. CONCLUDING SUMMARY
On the basic points at issue, the GOB note raises as many questions as it answers.
In defense of its claim that the boundary has already been established, Brazil
attempts to makea distinction between "demarcation" and "characterization."
But it is still unclear whether, in characterizing a border, the work of the;
1872-74 Border Commission should be controlling if inconsistencies with the
?:
basic treaty are discovered. In addition, despite the geographic arguments,
.the Brazilians have not really countered the Paraguayan claim that the highest
ridge is the northern. The watershed argument is the strongest in this regard,
but it is by no means clear-cut. Brazilian proposals for the future similarly
do little to resolve the basic stalemate between the two sides. Although the
suggested integral-development-of the Parana is interesting, the problems of
the troops and the border itself remain,
For the Ambassador:
Robert C. Brewster
Counselor of Embassy
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