ANALYSIS OF THE GUAIRA FALLS DISPUTE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP08C01297R000400370015-4
• Release Decision: RIFPUB
• Original Classification: C
• Document Page Count: 9
• Document Creation Date: December 27, 2016
• Document Release Date: September 24, 2012
• Sequence Number: 15
• Publication Date: February 16, 1966
• Content Type: CABLE

REF Our A_167 of October 13, 1963; A-188 of October 31, 1965;
A.219 of December 1, 1965; A_241 of December 19, 1965;
p Pmbtel 259 of January 29, 1966; Finical 262 of January 31, 1966. -1
A. Introduction 1
B. Map of the Area; explanation 2
C. issues-
Was the Boundary definitively established
in 1874? 3
The question reopened in 19307 3
Where is the cmebre? 4
Do the falls the selves Belong to Brazil? 5
What about hydroelectric development? 6
D. Cement:
Who has a better case? 6
Need for a comprehensive solution. 8
A. Introduction
The above-referenced A-167 from 1963 gives considerable background
on the origins of the Guair4 Falls dispute. The 1965 airgrsme trans-
mitted copies of notes exchanged daring the recent resurgence of Film
issue, and the referenced telegrams provide the latest developments in
which the despite appears to have taken a new and more serious turn.
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In 1962-63, the dispute flared up, prompting our A-167, because the Brazilian
press had announced plans to develop the hydroelectric potential of the fella.
At present, the principal issue is the presence of Brazilian troops in territory
that the Paraguayans regard as still uncharted. The most recent development
is the Paraguayan report that these troops have been reinforced and that the
Brazilians are new building a road into the disputed area. This development is
especially serious in that the Paraguayans themselves have sent a new frontier
detachment of o r 150 men and officers to Godard. Clearly, as the number of
troops increases, the possibilities of an incident also increase.
Although the boundary with Brazil was established by a treaty in 1872 and
by a Mixed Boundary Commission in 1872-74, there were ambiguities as to details.
A Protocol signed in 1930 empowered a new Mixed Border Commission to put inter-
mediate markers in the Guaird area. Two principal question emerged. one,
more directly related to the hydroelectric problen, was wheththe Guair& Falls
themselves (Salto de las State Caidas) belonged to Brazil or to Paraguay and
Brazil in col Ubminirm. The other, more pertinent to the current dispute over
the Brazilian troops, was whether the boundary along the Mtaracay6 mountain
range, which runs west from Guair&, followed the northern or the sourdurn ridge
Just before the falls. The Brazilians claim that the southern ridge is the
boundary and their troops have penetrated the zone between these two parallel
ridges. Since the 1872 Treaty said that the east-west murder should follow the
highest part of the Mtaracayrt range, and since the Paraguayans believe the nor-
thern ridge to be the tallest, Paraguay has protested this movement of Brazilian
troops.
Below, the reporting officer has tried to analyze the principal Issues
involved in the dispute. This approach will hopefully provide useful background
on the problems that remain to he resolved, as well as to suggest possible bases
for a solution. The approach is not historical, and the al ve_referenced
communications should he seen for further background on the care. In discussing
the various aspects of the dispute, the writer has referred back to official
documents whenever possible. Various treatises have been written by Paraguayans
about Guair&, many of which claim the whole area for Paraguay. The following
is intended to represent strictly the officialgoverrment.to-governmentpoints
of view.
B. Map of the Area: Explanation
It to useful to refer to the enclosed map for a visual representation of
the present dispute. The two dotted lines from the Parana River west represent
what is believed to be the two parallel ridges. The solid line ccrossing the
northern ridge Is the approximate location of the road the Brazilian soldiers
have begun to construct. The solid part of this line represents completed
construction, while the dotted extension represents a pioneer mad still in the
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early construction stage. It is interesting to note that the Paraguayan airstrip
below the southern ridge also appears to cross into the disputed territory.
This picture was taken by an IA(5 contractor about a year ago. At that time,
read construction was in evidence. The lines on the picture have been drawn
by the Embassy's Defense Attach2.)
One should also note from this picture the peculiar structure of the Seven
Falls, which lie in a line north-south and fail from east to west. The southern
ridge of the Nbaracayd hits the falls exactly in front of the fifth fall. These
two ridges, in turn, are mere outcroppings, joining at a point some 20 kilometers
from the falls. -
C. Issues
Was the boundary definitively established in 16744
More can be little doubt that the boundary lines, as drawn by the Mixed
Boundary Cozmission in 1872-74, established the juncture of the Mbaracay6
range and the falls at a point near the fifth fall. This is stated quite
explicitely in the 16th Act of the first Border Commission of October 19, 1874.
Such a juncture would seem to favor the Brazilian contention that the boundary
follows the months= ridge of the Kbaracayd at the falls. But o also
draw a line from the end of the northern ridge to the fifth fall,1eandnthe text
of the 16th Act does not appear to be explicit enough to discount this. The
text says that the line goes in the "general directions of go many degrees for
many kilometers until it reaches the "fifth and most important- of the Seven
Falls.) To be certain where the boundary lies, o would need a detailed map.
Unfortunately, the Emiesey does not have copies of the official maps which were
drawn in 1874 and signed by the Paraguayan and Brazilian members of the boundary
commission. It would appear, however, that the official map is unfavorable to
the Paraguayans since they insist quite strongly in their latest note (Note #712
of December 14, pp. 14-18) that treaties take precedence over acts and acts over
maps when a boundary is in question.
The Brazilians, of c , insist that the work of the commission in 1872-74
has definitively established the border.
The Weston reopened in 1930?
In reply to the Brazilian argwment that the border was established by the
Boundary Commission of 1872-74, the Paraguayans turn to another document; the
Protocol of 1930. The primary purpose of this Protocol was to create a boundary
Commission to carry out the terms of a Complementary Boundary Treaty signed in
1927, which makes no mention of the Guaird Falls area. But the Protocol also
empowered the new Boundary Commission to repair old boundary markers and to
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place intermediate markers along the ttaracayd to Guaird. Tress new markers
were tore placed so that they would be directly visible one from the other.
Although the Protocol adds that the lines are to be drawn in accordance with the
1872 Treaty and with the final act of the 1872.74 Border Commission, the
Paraguayans hold that it has essentially reopened the border question.
The acts of the Boundary Comeission from 1872-74 established only one offi-
cial marker along the Mbaracaya; that of Yblcuf, where the range joins the
Primacy mountains. No marker was placed at the falls themselves since they were
considered a natural boundary'. Hence, the Paraguayans contend that the entire
border along the Lroaracayd from Ybicufto the falls - 135 kilometers - was not
effectively demarcated until the new Co?Ission began its work. They chide the
Brazilians for claiming that the border has been completely d narcated since
1874 when the reconstituted Boundary Commission has laid s e 341 new markers
from Yblcul to the point where the range splits just before the falls.
The Paraguayans use the case of the 1934 markers (See our A-167, pp 12.14)
to buttress their argument that the 1930 Protocol reopened the border question.
This marker constructed by the new Carmission -observation poste lies at as ami the foot of the southern ridge of the Iscaracayt. Although Brazil, wished to have
an official boundary marker established in this area, the Paraguayans refused
to accept the idea until scientific observations could be made. The Paraguayans
thus established for the record at the beginning of the work of the new Commission
that they at least considered the boundary as still undetermined.
Where is the timbre?
The Treaty of 1872 definitely states that the Border lies along the cembre,
or the highest part, of the Mharacayd. The Paraguayans claim that the northem
ridge is the cumbre and should hence be the border. This claim is based on the
fact that the meat recent measurements of the new Boundary Commission show that
the three high Pointe in the northern ridge are higher on the average knom the
three highest points In the southern. (See our A-167, pp. 1516) However, the
highest point in either ridge is in the southern, d the southern ridge has
more high points in total than the ridge to the north. There might, therefore,
hee a e for arguing that the cumbre is the southern ridge even on the basis of
the latest measurements.
Another factor complicating the issue is that of the watershed. The Brazilians
seem to believe that the watershed is along the southern ridge which, if true, (and
assuming a watershed can be established at this point), would be another argument
in favor of the southern ridge as the enable. (Sao GOB Note #310 of October 29,
1965, paragraph 15, quote from the 8th Act of the new Commission.)
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The Treaty of 1872 is indefinite on this point, stating simply that the
boundary goes up the Pursed River to the Salto Grande and then from the Salto
Grande across the Flbaracay6. Since the Paraguayans insist OR the primacy of
the treaty,it is interesting to note that the wording "suite guards- sans to
imply "fifth fall", which leaves open the Possibility of awarding at least the
first four falls exclusively to Brazil on the basis of the treaty alone. Never-
theless, one can signs, as moat Paraguayan writers do, that "Salto prende' is a
generic team for the falls as a whole. In addition, even If the fifth fall is
accepted as the boundary, a straight line dream from the foot of the northern
ridge (assuming the northern is cleaved the oumbre) to the crest of the fifth fall
would cut across the four northern falls rather than leaving exclusively to Brazil.
If one turns from the Treaty to the acts of the 1672-74 Boundary Commission,
it is clear that the border was intended to be at the fifth fall. But even these
acts do not solve the question of whether this line was to go all the way to the
crest of the fall or to some point in front of the fall. Although the official
maps of the Brcadary Commission would elucidate this matter if drawn in enough
detail, they could well be embiguous, especially since the Brazilians auphasize
the acts rather than the maps of 1872-74 in defending their idea that the mundary
ends in front of the falls. (While the maps may solve the question of which ridge
of the Mrarecay6 was considered the hoandary in 1874, it would require more detail
to determine the exact terminus of the line at the falls.) The view of the 18Th74
Commission that the falls themselves constitute a tural boundary earkef' is a
possible argument against the Brazilian contention na that the line stops short in
front of the falls.
It is worth considering the Brazilian position in more detail. In their
recent Note #310, the Brazilians hold that the "extrene eastern" point of the
Paraguayan frontier is on the right bank of the river, exactly in the area of the
1954 observation post. They cite the 16th and 17th Acts of the 1872-74 Boundary
Commission in support of this position. (See paragraph 7 of the note) however,
this is an interpretation of the 16th and 17th Rota and is not specifically stated
in these documents. Indeed, the Brazilians would appear to have taken a right-
bank position as a bargaining point since, in the 1934 dispute over the otserva-
tlon post, they apparently gave the Paraguayans at least to the thalweg, or the
deepest part of the river before the falls. (See GOP Note #712, pp. 18-19)
This question of the thalweg is an interesting one. (It is treated in more
detail in our A167, M. 9-10). It appears that the Brazilians originally tried
to have the right bank of the river established as the border in the 1872 Treaty
but compromised with the wording that it should follow the "cauce o canal."
Although this wonting is ambiguous, it can M argued from thepeculiar structure
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of the falls - falling fr? the east into a north south gorge - that the "canal'
is the gorge itself and not the falls, which would than lie to the east in
Brazilian territory. This would mean that, on the basis of the Treaty itself
(which the Paraguayans regard as the primary domment in the case), the falls
belong to Brazil. Nevertheless, the Paraguayans could counter with the argument
that the main channel should he followed right. up to the falls th oselvea, or
that the whole concept of channel or thalweg is inapplicable when a waterfall is
reached.
Hydroelectric development is undoubtedly the principal Issue lying behind'
the. Guaira dispute. The Paraguayans would like to have the border as far notch
as possible to strengthen their claim over the falls, while the Brazilians would
like to have it stop en the right mink: of the PalanA leaving the falls exclusively
to Brazil. Although the principal point of contention in the recent exchange of
notes has been the northern versus the southern ridge, with the Brazilian troops
between, the Paraguayans developed an interesting argument in the exchange of
1962_63, prompted directly by the hydroelectric development issue. The argrmeet
was that, since Paraguay owns the right bank of the river at the falls, it has
rights over the waterflow a d condominium over use of the water resources. This
argument could be used even if it is determined that the boundarstops at the
light mark. (See GOP Note #368 of June 10, 1963, sent as an enclosure to our
A_5 of July 3, 1963.)
Interestingly, the Brazilians are already diverting water around the falls
Just to the south of the seventh fall to provide electricity for the town of
Puerto Guaira. This was done apparently elthout GOP protest. The project which
caused the Guaira dispute to arise in 1962 called for a major diversion to the
east of the falls, returning the water to as river at a point $=a 25 kilometers
below the falls. (See our A.167, p..19) It is worth noting, however, that
another proposal was to develop electricity by building a and below the falls
across the Parent itself. Since the river is the boundary south of the falls,
this proposal would necessitate a condomic m approach.
D. Covment
Who has the better case?
The drafting officer is not a. lawyer and does not know the legal practice,
followed in boundary disputes, Without a thorough background in international
law, it is difficult to judge, for example, whether a treaty should take prece-
dence over the work of a commission created by that treaty after the work of the
commission has been approved by both governments. Likewise, it is difficult
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to judge the degree to which a protocol such as that of 1930 can reopen a
question supposedly solved over 80 years before, especially when the protocol
specifies that the earlier work is to be followed. Other questions of e more
technical nature, such as how to determine the highest part of a mountain range
r how to treat the probl ns of thalweg and condominium, also require a know
ledge of precedents from international law.
Another problem is that of discovering exactly what was intended by those
signing the 1872 Treaty, at was Bete?Ined by the 1872-74 Co mission, and what
have been the guiding principles and decisions of the 1930 Commission since it
began its work. The documents that have been made available thus far are issues.
Plata. It would be most interesting, as suggested above, to have the official
maps signed by the members of the fixed Commission in 1874. In addition, it
would be particularly instructive to have the last Act of the new Commission and
whatever other information might he available on its work in 1962-63, when the
question of the two parallel ridges scene to a head. From the latest GOP note,
it appears that completion and approval of the work on the final stretch of the
Mbaracayd border has been delayed by the 'Nor health' of the Brazilian First
Co?iseloner, (Note #712, p. 30) The Brazilians claim, however, that the work
stopped Because the Paraguayan c ssloners "did not want to finish 19 markers
already constructed, nor to agree to the construction of 12 other markers already
plumed. (Note #310, paragraph 9)
Nevertheless, with these qualifications in mind, the reporting officer would
offer a layman's opinion that the Brazilians probably have the stronger case, both
as to the Mbaracayf ridges and to the falls. The Paraguayans might argue that
earlier treaties gave the Guaird area to Paraguay and that they were under duress
in 1872, having just lost the Triple Alliance War (this last point is suggested
in the GOP's Note #712, but the GOP has based its case on the 1872 treaty as it
stands and this would certainly he the first point of reference in any legal
judgment of the case. To be. re, the treaty and subsequent sets are ambiguous.
In addition, the 1930 Protocol did reopen the boundary question in a sense,
whether or not the Brazilians adult it. But the weight of past tradition memo
to he on the side of at least most of what the Brazilians claim.
To the extent that actual Possession of the falls could serve as an argument
in favor of o rehtp, the Brazilians also appear to have the stronger case.
They are already using the falls for electricity, they have a sizeable town,
Porto Guaird, nearby and they have the only accessible road presently leading to
the area. (In addition, it has been reported that most of the people in the
territory conceded to Paraguay are Brazilians and use Brazilian currency.)
But the Pact that Brazil has the stronger case does not mean that it has the
only case. To most Paraguayans, this issue is vitally important. The Brazilians
do not appear to have given it the attention it is due. Their notes have an
unsympathetic, unmagnamious tone, and they have to all appearances deliberately
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provoked the Paraguayans by moving troops and building a road into the disputed
An effort toward conciliation by the Brazilians would appear to he in
forthcoming
area. order,
neighbors. should
less powerful larger
(Ref: CA- 6394,
serious n. disputes s with their smalleprinciple
in
December 20, 1965)
Need for a prehensive solution
It can be readily seen food the above that this dispute is a complicated
& comprehensive solution is needed which would settle once and for all the
one. questions of the mountain ridges, ownership of the falls themselves, and hydro-
electric rights. Given the highly charged feelings on the Paraguayan side, it
?s doubtful that the two nations will be able to solve the dispute on a
bilateral basis.' Perhaps a temporary sattl rent can be made, with the Brazilians
withdrawing their troops, but this would merely postpone final resolution of the
For that reason and since there are various legal questions involved,
issues. it might well be advi sable to bring the whole matter before an international
court. Of course, the Paraguayans could always refuse to accept the decision of
such a court, and well might, if it went against them. Buthe very fact that
'
objective informational body had so decided would tend in the long run to
erode. the Paraguayan sensitivity to what they deem the "imperiali?^ of Brazil.
Although it would be impertinent to anticipate the solution to the dispute,
one suggestion which may be worth considering vis-a-vis the cumbre question is
to sidestep the issue of the two parallel ridges altogether by drawing the
boundary from the last high point just before the split, which is higher than
any subsequent point in the two ridged, direct to the fifth fall. (If our indi-
cation of the two ridges on the enclosed map is correct ' then such a line might
also sidestep the problem of the Brazilian road and the Paraguayan airstrip by
cutting neatly between them.) With regard to the falls themselves, it should be
noted that, even if they are awarded exclusively to Brazil there would Been to
be some justice to the Paraguayan claim for a voice in their development. One
solution to this question might he to insure Paraguay an option of partial
Whip, up to a given percent, in any hydroelectric plant to be built in the
area.
/// l
Counselor of Erbassy