AMERICAN JOURNAL OF INTERNATIONAL LAW

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• Publication Date: April 1, 1977
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322 THE AMERICAN JOURNAL OF INiERNATIONAL LAW [Vol. 71
THE BOUNDARY DISPUTE BETWEEN PERU AND ECUADOR
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.2
He further concluded that a more equitable solution should be sought so
the dispute would no longer be an impediment to amicable relations be-
tween 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 ratifiedk both the peruvian and Ecuadorian_Gpvernments
and then guaranteed by four other American Governments.
_ ? ?
The geographical area disputed by the Republics of Ecuador and Peru
consisted of three separate territories: Tumbez, Jaen, and Maynas.3
Tumbez was a desert area of approximately 500 square miles on the Pacific
seaboard between the Tumbez and Zarumilla Rivers. Jaen, an area of less
than 4,000 square miles, lay on the eastern side of the Cordillera of the
Andes between the Chinchipe and Huancabamba Rivers. As Maier pointed
out, both Tumbez and Jaen were subject to Peruvian sovereignty after
1822, the year Peru became an independent state.4 Maynas, the third and
vention. It was further held that in the fall of 1971, there had been a practice of
inhuman treatment at one other interrogation center, which had been tolerated at the
level of the government authorities. Application No. 5310/71, Ireland against the
United Kingdom of Great Britain and Northern Ireland, Report of the Commission
( adopted on January 25, 1976).
* J.D., University of California, Berkeley; member of the California Bar.
** Senior Lecturer in Law, Queen's University of Belfast, Northern Ireland; Bar-
rister-at-Law.
f The authors were legal counsel in the Donnelly case throughout proceedings before
the European Commission of Human Rights.
G. Maier, The Boundary Dispute Between Ecuador and Peru, 63 AJIL 28-46
( 1969).
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 F. DE LA BARRA, TUMBEZ, JAEN, Y MAYNAS 48
( 1961 ) and PERU, MINISTERIO DE GUERRA, BIBLIOTECA MILITAR DEL OFFICIAL No. 31:
ESTUDIO DE LA CUESTION DE LIMITES ENTRE EL PERU Y EL ECUADOR 37, 40 ( 1961 ).
4 Supra note 1, at 28-29. A. WAGNER DE REYNA, Los LIMITES DEL PERU 41 ( 1962 );
L. A. Wright, A Study of the Conflict between the Republics of Peru and Ecuador, 98
GEOGRAPHICAL JOURNAL 253 ( 1941 ). The population of Jaen 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.
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v [Vol. 71
17,CUADOR
Georg Maier
and Ecuador
re Ecuadorian
uted territory,
a strong de
'rotocol which
es in question
tion would lie
le facto case.2
be sought so
relations be-
t the Peruvian
n that of the
buttressed by
lisputed area.
;olution to the
gotiation of a
Governments
dor and Peru
Ind Maynas.3
on the Pacific
in area of less
dillera of the
Maier pointed
areignty after
the third and
n a practice of
tolerated at the
Lnd against the
the Commission
n Ireland; Bar-
ceedings before
33 AJIL 28-46
o de Janeiro on
, Y MAYNAS 48
,FICIAL No. 31:
40 ( 1961).
ERU 41 (1962);
nd Ecuador, 98
to the Republic
resses of 1822,
iree congresses.
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NOTES AND COMMENTS 323
largest of the disputed territories, included well over 100,000 square miles
of land. It was a triangularly shaped region outlined by the headwaters of
the Amazon tributaries on the west, the Yapurn or Caqueta Rivers on the
north, and the Chinchipe-Mara??n-Amazon Rivers on the south. After
independence, much more of the vast area of Maynas was under the juris-
diction of Peru than Ecuador, but the inhospitable character of the terrain
limited either country's capacity to occupy all of it effectively.5
? The conflicting territorial claims of the Peruvian and Ecuadorian Govern-
ments arose from the uncertainty of Spanish colonial administrative and
territorial divisions. Colonial jurisdictions were often vague and over-
lappmg, while boundarysurveys were either inadequate or nonexistent.
Consequently, even when South American Republics agreed that their
new national boundaries should reflect those of the former colonial ad-
ministrative units, they still found it extremely difficult to delineate their
frontiers. In this regard, the_ territorial dispute between Peru and Ecuador
was typical rather than, unique in the post-independence period since all
of the new South American Republics were involved in one or more
boundary disputes.6
The principal legal arguments of the Peruvian and Ecuadorian Govern-
ments centered on conflicting interpretations of the rule of uti possidetis de
jure.' Under this rule of regional international law, the Latin American
states formerly a part of the Spanish Colonial Empire agreed to fix their
international boundaries along the same lines as the former colonial ad-
ministrative areas. While uti possidetis was generally accepted by all
Latin American states, it has no validity in universal international law, and
even in Latin America the parameters of its application have remained un-
certain. Furthermore the complexity of colonial documents and the fact
that colonial boundaries were vaguely defined and inaccurately drawn
have always made any attempt to apply the rule of uti possidetis extremely
difficult.5
{
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
Maims, is frequently referred to as the Oriente.
6 B. WOOD, THE UNITED STATES AND LATIN AMERICAN WARS, 1932-1942 at 3 (1966).
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 F. Morales Padron, La frontera
peruano-ecuatoriana, 2 ESTUDIOS AMERICANOS 455-66 (1950); PERU, DOCUMENTOS
RELATIYOS A LA CONFERENCIA PERU-ECUATORIANA DE WASHINGTON, 49-81 (1938); E.
ARROYO DELGADO, LAS NEGOCIACIONES LIMITROFES ECUATORIANO?PERUANAS EN WASH-
INGTON, 44-53 (1939); and Pastoriza Flores, History of the Boundary Dispute Between
Ecuador and Peru 67-70 (1921) (unpublished doctoral dissertation, Columbia Uni-
versity).
8 G. SCHWARZENBERGER, INTERNATIONAL LAW 1, 21, 304-05 (1957). As Schwarzen-
berger 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
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324 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 71
The Republic of Ecuador based its case for the application of utipossidetis
on a series of decrees published by the King of Spain starting in 1563 with
a cedula awarding Maynas, Quijos, Jaen, and any adjoining land, i.e., the
whole of the area in dispute, to the Audiencia of Quito. Ecuador main-
tained, under the doctrine of uti possidetis and the cgdulas of 1563, 1717,
1739 and 1740, that the disputed territories were first part of the Audieneia
of Quito, then part of Gran Colombia, and finally became part of the
Republic of Ecuador when it emerged in 1830 after the breakup of Gran
Colombia. ? The Republic of Peru argued that the essence of independence
in the Kmericas was the sacred and inalterable character of movements of
self-determination. Within this greater principle, the Peruvian Govern-
ment argued that uti possidetis served only as a guide to the demarcation
of actual boundaries and not as a basic principle for the assignment of
provinces or the organization of states.1? Peru had a strong legal case
here since a corollayry_to_the_rule_oLuti_possidefis_ existed which gave
provinces the right to attach themselves to the republic of their choosing.'
From this argument, the Peruvian Government concluded that the ter-
ritories in question were Peruvian because the population of Jaen, Tumbez,
and Maynas had voluntarily adhered to Peru at the time of Peru's inde-
pendence and several years before the independence of Ecuador.12
The Peruvian Government developed two refinements to its general argu-
ment that the principle of self-determination was most relevant to the ques-
tion of the ownership of Jaen, Tumbez, and Maynas. Through a codula
on July 15, 1802, the King of Spain separated for ecclesiastic and military
purposes the provinces of Maynas and Quijos, except Papallacta, from the
Viceroyalty of New Granada and transferred them to the Viceroyalty of
Peru. The Peruvian Government claimed that the ceduta of 1802 was a
valid guide for determining the jurisdiction of Maynas; however, it always
put forth?this clifin7s?ce-c-Oridary -to its title to the area based on the prin-
ciple of self-determination. Ecuador unconvincingly attempted to counter
de jure or de facto possession. Furthermore, the Tribunal found it difficult to deter-
mine 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 Padr6n, supra note 7, at 458; Flores, supra note 7, at 67-70; and ARROYO
DELGADO, supra note 7, at 44-53.
10 PERU, RESUME OF THE HISTORICAL?JURIDICAL PROCEEDINGS OF THE BOUNDARY
QUESTION BETWEEN PERU AND ECUADOR 3, 14 (1937); F. TUDELA, THE CONTROVERSY
BETWEEN PERU AND ECUADOR 12-38 ( 1941); PERU, THE QUESTION OF THE BOUNDARIES
BETWEEN PERU AND Ectimport (hereinafter cited as QUESTION); Statement of the Peruvian
Delegation to the Washington Conference concerning the scope of the boundary negotia-
tions 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 A. ULLOA SOTO-
MAYOR, POSICION INTERNACIONAL DEL PERU 17 (1941).
supra note 1, at 36.
12 R. PORRAS BARRENECHEA, EL LMCIO PERU-ECUATORIANA ANTE LOS PRINCIPIOS
JURIDICOS AMEFUCANOS 7 ( 1942) and M. H. CORNEJO AND F. DE OSMA, MEMORANDUM
FINAL PRESENTADO POR LOS PLENIPOTENCIARIOS DEL PERU EN EL LITIGIO DE LIMITES CON
EL ECUADOR 16-17 ( 1909 ).
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[Vol. 71
!di possidetis
tn 1563 with
Lnd, i.e., the
uador main-
1563, 1717,
e Audiencia
part of the
,up of Gran
dependence
Dvements of
an Govern-
lem arcation
>ignment of
legal case
1which gave
I choosing.11
tat the ter-
n, Tumbez,
3eru's inde-
2
meral argu-
o the ques-
h a cedula
ad military
a, from the
eroyalty of
1802 was a
-, it always
n the prin-
to counter
alt to deter-
istration had
ity in many
and ARROYO
: BOUNDARY
;ONTROVERSY
BOUNDARIES
he Peruvian
ary negotia-
924, within
LLOA SOTO-
PRINCIPIOS
EMORANDUM
AMITES CON
1977]
NOTES AND COMMENTS 325
this argument and pressed for the applicability of the older colonial decrees
only by claiming that the cedula of 1802 separated Maynas and Quijos
from the Audiencia of Quito for ecclesiastical and administrative ends but
not in any political sense.13 The Peruvian Government also argued that
the principle of uti possidetis was not applicable until the complete end of
colonial dependence, which it interpreted to be the 1824 Battle of Ayacucho.
Since 1810 was generally accepted in Latin America as the year from
which uti possidetis was applicable, Ecuador refused to consider the later
date of 1824, especially since by that year the populations of Jaen, Tumbez,
and Maynas had all expressed their intention to become a part of the Re-
public of Peru.14
The three other documents of legal importance to the dispute were the
treaties of 1829 and 1832 and the supposed Pedemonte?Mosquera Protocol
of 1830. The first document, the Treaty of Peace signed by Gran Colombia
and the Republic of Peru at Guayaquil on September 22, 1829,15 recog-
nized as the boundary between the signatories the limits of the ancient
Viceroyalties of New Granada and Peru. However, while the 1829 treaty
established a commission of limits to fix the boundaries, it neither estab-
lished a clear boundary line nor definitely settled the boundary question;
it merely specified a procedure to be followed. The treaty did not even
mention Jaen, Tumbez, or Maynas, much less impose on Peru a specific
obligation to surrender those territories. Article VI of the 1829 treaty
left the final solution of the problem to the boundary commissioners.
Treaty ratifications were exchanged on October 27, 1829, but Gran Colombia
ratified unconstitutionally without congressional approval.16 Boundary
negotiations between the Governments of Peru argl Gran Colombia, were
halted in May of 1830 when the latter state split into the three secessionist
? ?
states of Venezuela, Ecuador, and Colombia. Two years later on July 12,
13 PERU, QUESTION, supra note 10, at 15-7; Morales Padron, supra note 7, at 458;
D. H. Zoox, ZARUMILLA?MARARON: THE ECUADOR?PERU DISPUTE 28-29 (1964); and
A. WAGNER DE REYNA, HISTORIA DIPLOMATICA DEL PERU, 1900-1945, 1, at 173 (1964).
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 cedula of 1802 was always
'
secondary to the title based on the principle of self-determination.
(,)?-toN?1 ? 14 V. SiNTAMARIA DE P?AREDES, 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 Fon. 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; J. PEREZ CONCHA, ENSAYO HISTORICO-CRITICO
DE LAS RELACIONES DIPLOMA'TICOS DEL ECUADOR CON LOS ESTADOS LIMITROFES 145-47
(1959). L. H. Woolsey, The Ecuador-Peru Boundary Controversy, 31 AJIL 98-99
(1937). 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 bound-
ary" as the exact boundaries of the Viceroyalties of Peru and New Granada were un-
certain which was the reason the treaty provided for a commission of limits. Supra
note 1, at 38.
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326 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 71
1832_, the Governments of Peru and Ecuador agreed in a Treaty of
Friend-
ship, Alliance, and Commerce17 to recognize and respect their present
convention was negotiated. The treaty did not
specify, however, whether the phrase "present limits" referred to the ter-
ritories then in the physical possession of the Governments of Peril and
Ecuador or to the territories of the Viceroyalties referred to in the treaty of
1829. The Peruvian Government later insisted on the first interpretation
and the Ecuadorian Government on the second."'
Several basic points were in contention between the Peruvian and
Ecuadorian Governments when they argued over the applicability of the
1829 and 1832 treaties. First, there was the question of the extent to which
the 1829 treaty actually fixed a boundary. The Ecuadorian Government
maintained that the treaty definitely settled the question, while the Peruvian
Government argued that it established a principle of delimitation and a
procedure to be followed rather than an actual line. In support of its
position, the Ecuadorian Government later introduced the Pedemonte-
Mosquera Protocol into its legal brief. According to Ecuador, the
Peruvian Foreign Minister, Carlos Pedemonte, and the Gran Colombian
Minister to Peru, General Tomas C. Mosquera, agreed to a protocol on
August 11, 1830, which determined the basis of departure for the border
commissioners established in the 1829 treaty. pilhjipi__?otocol the Peruvian
representative supposedly accepted the Marafion Aixer_as.a,frontier_le.aying_
iridol-W-67-117-wreThenireld be completed with the Chinchipe
or Huancabamba R]i-Niers. The Peruvian Government never accepted the
authenticity orfliis protocol, and, to prove its point, showed that General
Mosquera sailed from Lima's port, Callao, on August 10, the day before
the protocol was theoretically signed. It also argued that Mosquera had
ceased to representGran---
Colombia by August 11 and that, in fact, Gran
_ -
Colombia had ceased to exist because Venezuela seceded before that Cie-.ia 9
The seconcl.ZICTOTririn ?contention was whether or not the Rei-Tiu
Ecuador was legally the party to assume the rights and obligations of the
,public. of Gran Colombia, when that national entity ceased to exist. As
Brierly has pointed out, when a state ceases-t-o-aigrIrs?treaty rights and
obligations generally cease with it.2? Therefore, since Gran Colombia
17 Art. V. 16 BRIT. AND FOR. STATE PAPERS 1242, 9 MARTENS, NOVEAU BECUEIL 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.
18 L. ULLOA CISNEROS, ALCO DE HISTORIA. LAS CUESTIONES TERRITORIALES CON
ECUADOR Y COLOMBIA y LA FALSEDAD DEL PROTOCOL? PEDEMONTE?MOSQUERA ( 1911);
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
Exposicion filed on October 20, 1906. The Peruvian Government also pointed out that
a document of such importance as the Pedemonte?Mosquera Protocol would have re-
quired congressional approval if it had existed and none was given.
20J. L. BRIERLY, THE LAW OF NATIONS 153 (6th ed., 1963).
If
I VII
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f Friend-
present
did not
the ter-
)eru and
treaty of
pretation
'ian and
y of the
to which
rernment
Peruvian
n and a
rt of its
emonte-
lor, the
)lombian
tocol on
; border
'eruvian
leaving
ainchipe
)ted the
General
, before
era had
Gran
I date.19
ublic of
3 of the
ist. As
hts and
3lombia
uEn. 26,
note 10,
LES CON
( 1911);
)lombian
3ntion it
ef in an
out that
have re-
1977]
NOTES AND COMMENTS 327
split into three secessionist states in 1830, it is difficult to accept Maier's ?
argument that the Ecuadorian Government would legally assume the treaty
rights and obligations of Gran Colombia including the 1829 treaty. Further-
more, even if the doctrine of the succession of states had limited applicabil-
ity, it could not make the Republic of Ecuador the successor to Gran Colom-
bia's boundary to the south because that boundary had never been fixed. In
fact, the boundary commission provided for in the 1829 treaty never met.21
The third major point of disagreement concerned the interrelationship
of the treaties of 1829 and 1832. The Government of Peru argued that the
1832 treaty both nullified the treaty of 1829 and recognized Peruvian pos-
session of Jaen, Tumbez, and Maynas.22 The Ecuadorian Government
contended that the 1829 treaty fixed a final boundary which was unaf-
fected by the 1832 treaty. In supporting Ecuador's case, Maier suggested
that the treaty of 1832 was never in force because ratifications were never
exchanged. This was incorrect, as the Governments of Peru and Ecuador
exchanged ratifications on December 27, 1831, and the Ecuadorian Foreign
ster acknowledged receipt_ of the ratified treaties_on March_13, 1833.23
-AS-To-r Peru's argument that the treaty of 1832 rendered the treaty of 1829
null and void, there was no such statement in the treaty of 1832, but, as we
have seen, it was far from clear that Ecuador inherited the rights and
obligations of the 1829 treaty. In any case, since the treaty of 1829 did
not fix a boundary, it was impossible to state unequivocally whether the
"present limits" mentioned in the treaty of 1832 referred to the Viceroyalties
of Peru and New Granada mentioned in the treaty of 1829 or to those
territories in the actual possession of Peru and Ecuador when the treaty
was signed. Therefore, Maier's conclusion that the 1832 treaty .provided
a status quo recognition of the boundaries between the Republics of Peru
ITid-Eariador was meaningless because _there was absolutely no agreement
between the two states as to where the status quo lay.24
,
Between 1833 and 1887, the Peruvian and Ecuadorian Governments de-
fended their respective legal cases while Peru continued to occupy Jaen,
Tumbez, and much of Maynas. The dispute was not brought before any
legal body in this period, but if it had been, the Peruvian Government ap-
peared to have the stronger de jure case. If the rule of uti possidetis was
applied to the issue, all of Spain's administrative acts up to the time of inde-
pendence had to be considered, including the codula of 1802. Further-
more, since the corollary to uti possidetis giving provinces the right to
choose the republic they would adhere to would also have had to be ac-
21 Supra note 1, at 39.
22 PERU, QUESTION, supra note 10, at 10; TUDELA, supra note 10, at 12-38; L. A.
ECUICUREN, NOTES ON THE INTERNATIONAL QUESTION BETWEEN PERU AND ECUADOR.
Part!. Maynas, 149 (1941).
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 I f
Ecuadorian Government received an authenticated copy of the 1832` freaty from the 1
Peruvian Foreign Ministry.
24 Supra note 1, at 40.
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328 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 71
cepted as valid, Peru had a strong argument that the issue was not one of
deciding the ownership of vast tracts of land but rather simply an issue of
fixing the boundary between Ecuador and three provinces which had opted
at the time of independence to become part of Peru. Under the doctrine
of succession of states, Ecuador may have inherited limited rights to the
boundary procedure outlined in the 1829 treaty, but that document was a
weak foundation for a legal claim as it simply outlined a procedure which
was never followed. As for the Pedemonte-Mosquera Protocol, its au-
thenticity was so debatable that its introduction as a central pillar of
Ecuador's legal case undoubtedly weakened that case rather than strength-
ening it. Finally, while the treaty of 1832 was duly signed and ratified,
the ambiguous wording of the pact added very little support to either coun-
try's legal case. In addition to the relative strengths of Peru's de jure
case, it then had the growing strength of its de facto case since it had oc-
cupied and continued to develop economically both Jaen and Tumbez
- ?
since 1822 as well -a-s-rniteh of Maynas.
In 1887, the Republics of Peru and Ecuador agreed to submit the legal
aspects of their cases to the arbitral judgment of the King of Spain.25 In
the entire history of the dispute, the Spanish arbitration was the only time
the two countries had anything resembling a day in court, and it is, there-
fore, significant that the representatives appointed by the King of Spain
accepted almost all of the Peruvian Government's legal arguments. The
projected award of the Spanish arbitration rejected Ecuador's attempt to
reconstitute Viceroyalties and Audiencias dating back to 1563 and agreed
with Peru's central argument that the real issue was one of fixing the
boundaries between the different provinces that, at the time of indepen-
dence, chose to join one state or the other. Accepting the rule of uti pos-
sidetis, the award further agreed that all of Spain's administrative acts up
to the very moment of independence were applicable and not merely old
decrees and thus accepted the validity of the royal cedula of 1802. As for
the documents central to Ecuador's case, the award rejected the 1829
treaty saying Ecuador had lost its rights as a successor to Gran Colombia
in the question when it signed _the_ 1832 treaTT-ThFaii-d-a-lso concluded
ihirtii-e-Fe-derno-nte--Mosquera Protocol lacked authenticity, as well as the
approval which was required from the Peruvian and Ecuadorian Con-
gresses. Finally, the projected award agreed that_ the 1832 treaty_ had
been ratified and that the ratifications were duly exchanged.26 The
projected award of the Spanish arbitration was disastrous for Ecuador's ter-
ritorial pretensions, and when the terms became known, violent demonstra-
tions broke out in Ecuador. For a time, war between Peru and Ecuador
seemed imminent, and the clamor subsided only after the King of Spain
resolved in November 1910, not to pronounce a sentence.
25 Convention between Ecuador and Peru, signed at Quito, Aug. 1, 1887, 78 BRIT.
AND FOR. STATE PAPERS 47.
26
PERU, THE QUESTION OF THE BOUNDARIES BETWEEN PERU AND ECUADOR: A HIS-
TORICAL OUTLINE COVERING THE PERIOD SINCE 1910, at 12-18 (1936); Flores, supra
note 7, 56-62; TUDELA, supra note 10, at 12-38.
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- ?
[Vol. 71
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1;4--
1977]
NOTES AND COMMENTS 329
After the King of Spain ended the Spanish arbitration, the Republic of
Peru agreed to bring the dispute before the Hague Tribunal, but the Re-
public of Ecuador declined." Confident in its legal right to the disputed
territories, the Peruvian Government continued to demand a de jure arbitra-
tion of the dispute after 1910, while Ecuador insisted on a solution de
acquit ate either through arbitration or direct negotiations which would
t it saw as its moral right to an exit to the Amazon
110-6.7"
After fighting broke out along the frontier in 1941, the Ecuadorian and
Peruvian Governments finally signed a Protocol of Peace, Friendship, and
Boundaries in early 1942 which established a definite boundary between the
two states." The final settlement, largely the product of the mediatory
efforts of the Governments of Argentina, Brazil, Chile, and the United
States, was also guaranteed by these four states." Therefore, Maier's final
conclusion that the dispute should be reopened would be difficult to achieve
even if it were justifiable, as both signatories and all four guarantors would
have to agree to a proposal which only the Ecuadorian Government sup-
ports. The Peruvian Government is very satisfied with the provisions of
the 1942 Protocol, and the four countries guaranteeing it have taken the
position that a basic principle of international law is that a unilateral de-
termination on the part of one party to a treaty of limits is not enough to
invalidate the treaty or free the party from its obligations.51 In seeking to
27 ULLow, supra note 10, at 179-82; Wright supra note 4, at 269; 8 J. BASADRE,
His-
TORL DE LA REPUBLICA DEL PERU, 3582-83 ( 5th ed., 1963).
29 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). PEnu, supra note 7, at 30-40; Zoox, *supra note 13, at 146,
148; PERU, CONFERENCIA DE WASHINGTON PARA LA CUESTION DE LIMITES ENTRE EL
PERU Y EL ECUADOR. Replica de la delegacien peruana a la contraproposicien ecua-
toriana del 9 de agosto de 1937, 1-13 (1937). 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).
99 INTER-AMERICAN AFFAIRS: 1942, AN ANNUAL SURVEY 15-16 (A. P. Whitaker ed.
1943); J. LLOYD MECHAM, THE UNITED STATES AND INTER-AMERICAN SECURITY 1889-
1960, at 169-70 (1961); A. SOLF Y MURO, MEMORIA DEL MINISTRO DE RELACIONES
ExTEruoREs, Julio 1941 a Julio 1942, at LVI?LIX (1943).
81 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 Pert and Ecuador
on December 7, 1960, expressing their mutual agreement that a basic principle of in-
ternational 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.
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. Declassified and Approved For Release 2012/09/26: CIA-RDP08001297R000700120007-7
330 THE AMERICAN JOURNAL OF INTERNATIONAL LAW [Vol. 71
unilaterally void a treaty of limits, the Ecuadorian Government is chal-
lenging a rule of international law the overthrow of which would threaten
chaos for the entire region, given the large number of boundary treaties
signed in Latin America since independence.
RONALD BRUCE ST JOHN
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