Development of the Dispute:From 1829 to the Present Time

CHAPTER IV.

DEVEWPMENT OF THE DISPUTE: FROM 1829 TO THEPRESENT TIME.

Independent Ecuador, as heir to Colombianclaims;' has repeatedly demanded from Peru the ful-filment of the treaty of 1829 and the Pedemon-te-Mosquera protocol, but Peru has steadily re-fused. From the day of its separation down tothe present time, there have been protracted lullsbetween the periods of dispute, only to be brokenwhenever the clashing claims of the two countriesbecame too pronounced.' The events that make upthe story were concerned, either with the actualnegotiations, or with specific acts of jurisdiction onthe part of each of the contestants over the areasaffected.

In 1832 a treaty of friendship and alliance wasdrawn up between Ecuador and Peru. Article XIVstates that "until an agreement on the boundary ques-tion should be made between the two countries, thepresent boundaries are to be respected and recogn-

I Cf. R. Auoda, Coleocidll d. 1'r<Uado, kl pen., Vol. v., p. 3~2;Pal,lo, Batteda. dlegGlo del Peru, eh. 1,~. 2.

2 W. R. Shpberd, 1'114Bupa,,':': NOlio,,", of l/le New World, p. 1&6.

so TnE BOUND4BY D13PUTB

ized." Basing its contention on this article, Perutried to imply that the treaty of 1832 nullified that of1829, but no such statement is found in the treaty,and on the contrary, Article XIV expressly confirmsthe validity of the treaty of 1829.t

Although no negotiations were carried on fOT thenext eight years, neither country was idle in its at-tempts to exercise jurisdiction over the territory thatboth claimed. Thus the congress of Ecuador estalJ..lished in 1832 a maritime department with a navalstation at the port of Guayaquil, including the riverand city of Tumbez on the south which formed partof the disputed area. Though Peru suffered thismeasure to pass unchallenged, it had created on inown part the same year a department called "Ama-zonas", in which was incorporated another portionof that area, built there the port of La Laguna anderected a shipyard on the river Maranon,l

No further steps were taken by either countryuntil December 16, 1840, when Ecuador, althoughengaged in fighting Granadine troops in the north,wished to settle the southern boundary, and accord-ingly demanded from Peru the fulfilment of thetreaty oi 1829, Peru proposed a new treaty whichEcuador rejected, submitting instead in 1842 the fol-lowing proposal based on the treaty of 1829: "Thetwo contracting parties recognize as boundaries ofthc.ir respective territories those held before their in-dependence under the old viceroyalties of-New Gra-

I R. AUllrla, op. cit., \'01. V, p. 18.l M.. nijle.IO de I" Jllnla PatriDh.,.. NaciolllJl, pro 1-13.

51

nada and Peru, including within Ecuadorian boundsthe provinces of Mainas and J aen. By special agree-ments the two states shall make the necessary con-cessions leading to a natural boundary that will avertfurther complications,")

This proved unacceptable to Peru. In thenegotiations that ensued there was discernible a dis-tinct and undisguised effort on the part of Peru toavoid the provisions of the treaty of 1829 which, itwill be remembered, called for the adjustment of theboundary line on the basis of the possessions of theold viceroyalties of New Granada and Peru. Thus,replying to the Ecuadorian offer of 1842, the Peru-vian minister insisted that the boundary should con-form to the line that existed before the independenceof the two countries, and furthermore that, in view ofthe fact that the towns which Ecuador claimed hadbeen in Peruvian hands so long, the latter was just-ified in refusing to return them. At the same time,Peru put forth the royal "cedula" of 1802 by wayof justification for its stand.! The reply of Ecuadorwas simply that the Peruvian contention was in plainviolation of the treaty of 1829. Moreover, with re-gard to the "ceduta", the Ecuadorian representative,General Daste, maintained that the latter had nobearing on the issue, because it had been set asidelater by the treaty of 1829. Furthermore the "ce-dula" in itself created no territorial division butmerely areas of administration.

BETWEEN ECUADOR AND PEBU

1 \'>i:qlH':, up. cil., pp. J31-134.2 Jtoid., p. 144.

On March to, 1853 the dispute came up apia,when the Ecuadorian minister informed the goverD-ment of Peru that Ecuador had passed an act orgaa~iaing on a political and military basil the Loreto(Mainas) region and other portions of the area atissue which Ecuador considered part of its Datiooalterritory. In November of the same year, alIo,Ecuador declared the rivers Chinchipe, Santiap,Morona, Pastaza, Tigre, Curaray, Napa and Putu-mayo open freely to navigation. I Later, upon learn-ing of an American expedition that had obtainedfrom the Peruvian government passports to explorethe auriferous region of the Santiago River, Ecuadornotified the United States that the region in qua-tion lay within Ecuadorian jurisdiction, and thatcolonizers and explorers would receive encourage-ment and protection under the Ecuadorian law of1853.'

On its part Peru was quite as active in assertingjurisdiction over parts of the disputed area. Sup-plementing a colonization law of 1845 for this re-gion, in 1853 it opened a port in Nauta, organizedthe Loreto (Mainas) into a Peruvian province, aedoccupied Pebas, Oren, La Laguna, Tarapoto, Pa-chira, Yapaya, Belen, Sarayacu, Catalina and SierraBlanca. In 185"',moreover, Peru and Brazil declaredthemselves to be joint owners of the Amazon, Perubeing adjudged the owner of the upper part of theriver. In the same year Peru also appointed a gcv-

I \'hqul'~,op. cit., p, 150.I Ibid., rP. ISS·If;'.

BETWEEN ECU~DOE ~ND PEBU S3ernor over the district comprising Andoas, Sander,San Antonio, Borja, Santa Teresa, Limon and Bar-ranca.'

In 1860 the government of Ecuador fell into thehands of General Franco, who exercised the execut-ive power under the tide of "Supreme leader ofGuayaquil." Under these circumstances, Peru man-aged to have Franco sign the treaty of Mapasinge,in which the provisions of the "cedula" of 1802weretaken into consideration. This action so greatlystirred the public against him that it hastened hisdownfall. Neither the government of Peru nor theEcuadorian national convention of 1861 ratified thisarrangement." Peru, nevertheless, insisted on its ex-ecution, and on August 24, 1861 made a demand tothis effect. Ecuador refused to heed it, on the groundthat the so-called treaty had been ratified neither byPeru nor by the Ecuadorian congress, declaring in-stead that the treaty obligations of 1829 should beadhered to. Sr. Carvajal, the Ecuadorian envoy,asked that the commission authorized by that treatybe appointed to adjust the differences left open by it.In the event that the report of the commissioners beunacceptable to both parties, it should be submittedto the adjudication of an acceptable arbitrator. "Inthe meannne," declared Sr. Carvajal, "r. do not con-sider a legitimate cause for war a question thai wassettled by the treaty of 1829."·

I P. Motlc."o, C..uti<l .. de Llmitel e..tre et Ecuador 11 ~l Perli, pp.16·81.

1 Mo ..;ftc.to de 10 JUI\lo NGCW~ol, pp. 1-13.J Vhqun, op, cn-, p. 16$.

54 THE BOUND.4BF DISPUf'B

But Peru was unwilling to admit the conclusive-ness of the treaty of 1829 or to abide by its terms.On January II, 1864, apparently with a view to set-ding political, territorial and economic disputes thatmore or less troubled most of the South Americancountries, it suggested that all of these states meet ingeneral conference amicably to adjust their differ-CRees. To this Ecuador declared in reply that itbelieved it absolutely necessary for the republics toconvene for this purpose, since only in that way couldtheir true interests and needs be given due discus-sion. Brazilian boundary questions, in particular, itasserted, should be considered, since Ecuador, Co-lombia, and Venezuela were all concerned withthem. But the matter pending between Ecuador andPeru, so Ecuador contended, should not be submittedto the congress of plenipotentiaries, because thegovernment of Ecuador stood ready to carry outfaithfully the treaty of 1829 which provided formeans of settlement.'

The failure to reach any adjustment throughdiplomatic channels, however, did not deter Ecuadorand Peru from pursuing their old policy of colonia-Ing and regulating the territory in dispute as meas-ures obviously aimed at strengthening their respect-ive claims. Thus in 1866, in accordance with a lawof the preceding year, the Congress of Ecuadorgranted one of in nationals certain privileges for theopening of a road along the river Morena and for

BETWEEN ECD4DOB 4ND PEED ssthe settlement of a district between that fiver andthe Manseriche rapids. I

Peru, on its part, passed an act in 1868 by whichsettlement on the banks of the Amazon should bestimulated by grants of land to prospective im-migrants. There was sharp objection to this moveon the part of Ecuador, and Sr. Flores, the ministerof Ecuador in Lima, notified the Peruvian govern-ment that neither the act in question nor the grantingof land could be allowed to infringe upon the priorrights of Ecuador in the region. Again, in 187+.the despatch by Peru of a scientific expeditionthrough the rivers of the Oriente drew from theEcuadorian foreign minister, Sr. Leon, the follow-ing protest: "Since these acts tend to affect injuri-ously the property rights of Ecuadorian nationals,my government solemnly protests against them, andagainst any other jurisdictional act that might takeplace in the future." Despite these protests, Perugradually extended its authority over the disputedarea.

The fruitless negotiations of 1864 were resumedin 1870. At this time Peru, which was adjusting itsunsettled boundary with Brazil, proceed to assign aportion of the Oriente region to that country by wayof satisfying its claims. On January 15, the Ecua-dorian foreign minister informed the Peruvian gov-ernment that Ecuador would not recognize any cfthe acts, stipulations or titles associated with this

raB BOU.vD4.BY DJ8Pur.

procedure which might violate in any way the justprerrogatives and claims of Ecuador. He took.occas-sian abo to reiterate the Ecuadorian demand that thetreaty of 1829 be adhered to, and that a mixed com-mission be authorized to fix the long unsettled bound-ary line.'

From now on events assumed a radical tum.Hitherto the negotiations between the two countrieshad proved practically barren of result. On theother hand the conflicting laws relative to jurisdic-tion over the disputed area, which each countrypassed in rivalry with its opponent, sharpened thepoints of difference between them. Conscious ofthe inefficacy of these methods to settle a controversybehind which always lurked the menace of war, bothnations agreed on August I, 1887 by the Espinosa-Bonifaz treaty of arbitration, to submit the disputeto the arbitral judgment of the king of Spain.'

The substance of the Ecuadorian claim was statedas follows: "First, that the governments of Ecuadorand Peru, in the terms that your majesty may deemwise, instruct the commission provided for in Article6 of the treaty of 1829, to fix the boundary line be-tween the two stales on the basis of the demarcationof the old viceroyalties of New Granada and Peru,according to the "cedula" of 1563 of the old "au-diencia" and presidency of Quito, wholly incorpor-ated into the viceroyalty of New Granada, first in

1 \"DU!U..... op ... it., p. Ii4,2 A, Lntino, op, cit •. ApendiJ: No.3. p. jJ; Cornejo J O~mn. op cit.,

Vol HI. 'Ii.

BBrwllllN BCUAOOll .dND PBllU 57

1717 and then in 1739, in accordance with the tenorof the Colombian negotiation of the treaty of peaceof 1829, when the articles on boundary were drawnup, which were all follows: The mouth of the riverTumbez in the Pacific, expressly fixed by the treatyof 1829, the course of that river to its most southernpoint, a line to the river Alarnor, the course of thisriver to its confluence with the Chira, the course ofthis river as far as the river Macara to its source,then a line that crossing the cordillera of Ayavacawould come southward to lake Huarangas, fromthere follow the present dividing line between theprovinces of Jaen and Huancabamba to the Huan-cabamba River near Chichahua, thence along thisriver to the top of the cordillera which divides theprovince of J aen from that of Lambayeque as far "asQuerecotillo; from thence a line to the source of theriver which runs to the south of Querecotillo includ-ing this town within Jaen; from the confluence ofthat river with the Chota to the river Chi pte ; fromthis point a line that cutting the river Llaucan wouldreach the Marancn or Amazon, including Pimpin-gos, Cujillo and Pion within the line, follow theMaraMn as far as the river Lonia; thence aline along the foot of the cordillera rising over Loniaand j amon (Yamcn P}, including these towns withinthe line of demarcation, and following the Amazonas "far as the river Utcubamba, including the townsof Bagua, Chira, Cop allin, and Peca as far as thepost of Chuchunga, from there a line to the Orienteas far as jeveros, so that this town will be included

1'B8 BOtJND,l.llY D/BPtJ1'.

within Ecuadorian territory; from JeverO! anotherline in the same direction that, cutting the courseof the Huallaga and Ucayali, would follow as far asthe conftuence of the river Galvez [Ygarape-pichu-na} with the Yaravi and finally the course of theYaravi to the Tabatinga."!

Peru, on its part, asked the arbitrator to fix thefrontier between the provinces of J aen and Loja,between Mainas and Pichincha, and between Tiim-bee and Guayaquil." From this it is apparent thatPeru, violating the treaty of t 829 and the Pedemon-re-Mosquera protocol of 1830 which raised the realcontroversial point, whether the boundary line oughtto be traced through the Chinchipe or the Huanca-bamba river, thought that the only point of con-troversy was, to what point Peruvian ownership ofthose provinces should extend.

While the king of Spain's decision was beingdelayed, the two nations negotiated independentlythe Garcia-Herrera treaty of May 2, 1890,· in ac-cordance with Article Six of the convention of 1887,which provided that, while the arbitrator studied thematter, Ecuador and Peru could enter into directnegotiations and settle the dispute regardless of thepending arbitration.' By it Ecuador was to receive

1 \':\",Ul'l, "p. cit, pr. sun, lli6; ~f.F. I'n o9olll!D,,l.flM Gcog"61fcodd P,nl.

2 '<>rllcjo.f O«nul. "JI. <"il., \'01.1\", I'p. 15,i, 10·\11; Pardo 1Br.rr.d ..0". cit .. p. I.~O.3 C:OIl,..jo y o,.m&, "p. cit •• Vol. 111,1'1'. all-97; S. Ahartl Arleta,

L4 Cuoti,,~ d(' L;IIIil .. c"c,.c 146 R('p"lIliNu del ECWGoor '1/ del Pnoi,~lllmt("~ 1/ !Jtl<:"",("ulo>, JI. !'.

4 l."tino, (II" ,·it., AI'I,,"o,li:r, ~o .. 3, p. 9:1.

�gTWEEN ECU~DOR 4ND PERU 59

the northern Amazonian tributaries, with the excep-tion of the lower N apo. The treaty in fact ap-proximated very closely arrangements laid downi.n the Peruvian Congress of 1892 and 1893, whichhowever, called for certain modifications that wouldgive to Peru the lower courses of the rivers Santiago,Morona, Panna and Tigre. Ecuador did not ac-cept these changes and the treaty remained unratified.Accordingly the Question reverted to the status other-wise created by the arbitration convention of 1887.'

It was not until February 19, 1904 that the Cor-oejo-Valverde protocol was signed, with the under-standing that the only point of controversy was thatleft open to discussion by the Pedemonte-Mosqueraprotocol-that is whether the boundary line was tobe the Chinchipe or the Huancabamba River. Onthis ground Ecuador and Peru agreed to ask theSpanish crown to continue as arbiter and to appointa delegate to study the boundary question in thearchives of Quito and Lima. On January 29, 1905Sr. Ramon Menendez Pidal, on behalf of the royalarbiter, called a conference of Ecuadorian and Peru-vian delegates at Quito to discuss the problem. TheSpanish envoy asked both countries to evacuate theterritory occupied by their respective military forcesio tbe Napo region, Ecuador as far as Quito andPeru as far as Iquitos, as a means of showing afriendly attitude of the nations toward each otherand their willingness to submit to arbitration. Both

t Cora~jo 10..&, op cit., Vol. HI. pp. 99-101.

THE BOUNDA.BY D1SPUtE

countries agreed to withdraw their military forces. 1

Ecuador obeyed to the letter, whereas Peru left partof its forces in the region between the Putumayo andthe Santiago rivers."

In the meantime Sr. Cornejo repudiated at thelast minute the Cornejo- Valverde protocol, thus mak-ing unnecessary the visit of the royal delegate. Coin-cidently, a draft of award by the Spanish crownunfavorable to Ecuador became known. It put asideall Ecuadorian claims based upon the boundary Jinesof the viceroyalties of New Granada and Peru, thetreaty of 1829, and the Pedemonte-Mosquera pro-tocol of 1830 which put the treaty into execution.Peru was to be given the Oriente region and Ecuadorreduced to a very small area. Under these circum-stances Ecuador and Peru were brought to the vergeof war,' which would have been precipitated if theverdict had been given in the form that becameknown j and since war was exactly what the countrieswished to avoid, the king of Spain decided not toproceed with the arbitration, but to leave the twocountries at liberty to initiate anew negotiationswhich were started on a former occasion, expressinga hope that the parties would reach a satisfactoryunderstanding, but Peru refused to accept this formof settlement, thus violating Article Six of the treatyof arbitration." Close upon the ensuing popular ex-

1 "~'''~;" .'. Oom" ~'). ,·jt., Yol, 111, PI'. 109-110.2 IIi" .•p. Ill.J En". k, 0". cd .• rp. !I.)·96.4 A. FJo>rt~y (;allmaiio, Ecwador and P~r", ~ C(3"mi of Ih~ Bo..Ad~

(lr,l C,,",rvnn,':I, F'P. 13·14.

BETWBBN BCUADOR AND PBBU 61

cltement came the rapid mobilization of troops. Toave" the danger of war, mediation was offered byBrazill Argentina, the United States and the Haguetribunal. Ecuador replied that since Article Six ofthe Convention of 1887 was in force, a solution bydirect negotiations was thus provided for and wasthe only legal and proper way to bring about a satis-factory solution. I

Then followed a period of political ebb and flowin Ecuador. With revolution rending the country,the question of the boundary line was neglected.During this period of trouble and change for Ecua-dor, Peru advanced her occupation in nearly thewhole of the disputed territory.

In the early part of the last decade, Ecuadoracquired political stability and once again the bound-ary controversy came to the fore. In 1919, when theEcuadorian teniente politico or local magistrate inthe Huasaga (Oriente) region was imprisoned bythe Peruvians, Ecuador's formal protest went un-beeded.' Peru, nevertheless, evinced a willingnessto negotiate directly with Ecuador, but no resultswere reached, except the resignation of the Ecuador-ian plenipotentiary who had attempted to bringabout a settlement.

Thus from the time Ecuador established itsindependence in 1830 to the present have the effortsof almost a century to effect a solution of the

~selIto, DiploMdt~r, eeeolld"?jell, Quito, September9, 1910,pp. ~1-58.

2 Jod Pen-Ita, eoNple &IICfv" pp. 11·12.

6. tHB BOONDABY D18PU1'lr

boundary dispute come to nought. Indeed evenhave taken such a turn as to leave the Ecuadoriarin an angry and resentful frame of mind against wh:they consider the extravagant and inordinate clainof Peru.