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Territorial Disputes and Their Resolution The Case of Ecuador and Peru

Two — Territorial Conflicts in Latin America

Nearly every border in Latin America has been disputed at some point in its history.⁵ Most of these claims date back to the colonial era, resulting from the uncertainty in the colonial administrative boundaries and lack of information about the continent‘s geography. In the early nineteenth century, it was hardly crucial where these lines fell exactly, since they usually passed through sparsely populated jungle or mountainous areas that were largely unexplored and practically beyond colonial administrative control. Since most of these areas were under the domain of the Spanish Crown, there was little reason to undertake precise border delineation on the continent.⁶

     Upon independence, most of the emerging states in the region accepted the principle of uti possedetis, which provides that newly decolonized states should inherit the colonial administrative borders that they held at the time of independence.7 However, there was disagreement over what constituted evidence of such "possession." According to one view, only Spanish legal documents could define borders (uti possedetis juris); but another view posited that lands actually held at the time of independence were the basis for continued possession (uti possedetis facto). For example, Brazil claimed large stretches of land beyond the borders that were stipulated in treaties between Spain and Portugal, simply because it had the strongest claim to their "control."⁸

     For these reasons, most, but by no means all, borders in Latin America have been disputed at one point or another (see Table 2). The few boundaries that apparently never have been disputed often involve countries that were very unevenly matched in terms of standard measures of power at the time, such as population and military personnel and expenditures. In highly contentious border disputes, resolution has often taken decades, in some cases more than a century. Some territorial disputes were articulated only many years after independence, and after further exploration, as well as an initial period of state consolidation—a fact that should be kept in mind when making comparisons to Africa and the newly independent states of the former Soviet Union.

     

     A number of these disputes involve military clashes, even full-fledged war, though this method of resolving uncertain borders was much more common in the nineteenth century than in the twentieth. Peru and Colombia fought viciously over their borders early in the nineteenth century. The War of the Pacific (1879—83) resulted in the transfer of Bolivian territory to Chile, including the port city of Antofagasta, thereby depriving Bolivia of access to the Pacific Ocean. Victors in the War of the Triple Alliance (1865—70) transferred significant portions of Paraguay‘s territory to Brazil. In this century, the Chaco War (1932—35) over the vast grazing lands between Paraguay and Bolivia cost a quarter of a million lives, while Ecuador and Peru fought a border war in 1941 that resulted in the territorial agreement Ecuador has disputed for more than half a century.

     Governments have a broad range of options in settling mutual disputes, including bilateral diplomatic negotiations; the use of a third party‘s "good offices" to intercede between parties for whom communication is difficult; mediation, in which a third party contributes to dispute settlement by offering concrete proposals; commissions of inquiry, which attempt to help resolve disputes through providing credible information regarding disputed facts; and arbitration and adjudication, in which the parties agree to submit their dispute to a neutral third party for an authoritative ruling.

     Bilateral negotiations are the most common approach to settlement, and are sometimes augmented by various forms of non-binding third party involvement. Occasionally such efforts produce successful settlements, as when representatives of Pope John Paul II mediated a solution to Argentina and Chile‘s dispute over the Beagle Channel in 1984. Often, however, the efforts of third parties are rebuffed or their proposals rejected. Prior to the outbreak of the War of the Pacific, the United States tried unsuccessfully to mediate Bolivia and Chile‘s territorial dispute. A number of states have offered at various times to mediate—with little success—in Honduras and Nicaragua‘s border dispute before that case was settled by the ICJ.⁹ And in 1965, Britain and Guatemala requested the United States to mediate in determining the boundaries of newly independent Belize, though the two sides ended up rejecting the U.S. proposal.

     Arbitration and adjudication differ from mediation and good offices in a number of crucial respects. First, agreements that give rise to these procedures generally specify that a decision must respect the rule of international law, making arbitral or judicial awards (in theory) legal rather than explicitly political decisions.¹⁰ Second, and most important, the decisions that result from arbitration and adjudication are legally binding (enforceability is another matter altogether), though the decision to submit to legal processes in the first place is voluntary. Except under unusual circumstances, the award of a court or an arbitral tribunal settles the dispute definitively, without the right of appeal. This effectively means that an agreement to submit a dispute to arbitration or international adjudication raises the stakes for each state by publicly committing it to the settlement of the dispute—regardless of the decision.

     While adjudication typically relies on an international court (principally the ICJ), arbitration is largely an ad hoc procedure: The countries involved in the dispute agree to submit the issue to a neutral third party—either an arbitral panel (made up of representatives from other countries) or a regional power. Because arbitration does not involve international courts per se, but does result in authoritative, legally binding rulings, it is sometimes referred to as a quasi-judicial form of international dispute settlement.

     That Latin American countries have waged wars over adjacent territory is sadly no surprise, for this has been the case the world over. What is surprising about border disputes in the Western Hemisphere is the extent to which they have been subject to legal processes of arbitration and adjudication, given the political sensitivity of territorial issues and their centrality to notions of state sovereignty and national identity.

     Table 2 indicates that there have been some twenty-two instances of legally binding third- party arbitrations or adjudications with respect to sovereignty over territory in Latin America. By comparison, similar rulings apply to only one small case in continental Europe (thirty-six acres between Belgium and the Netherlands); two among independent states in Africa; two in the Middle East; and three in Asia, the Far East, and the Pacific. Certainly, more than any other region on the globe, the Latin Western Hemisphere has a relatively strong tradition of using formal legal procedures to resolve disputes over contested territory. Arbitration was an especially popular form of dispute settlement in Latin America around and shortly after the turn of the century.11 Several recent cases indicate continuing interest in this form of dispute settlement, including El Salvador and Honduras‘s recent use of the ICJ in 1992, and Chile and Argentina‘s use of arbitration to settle their contested border in the Laguna del Desierto region in 1994.

     Countries vary greatly in their willingness to let third parties decide issues as important as territorial sovereignty. In Latin America, states that are more symmetrical in their military capabilities (as measured by total population and, to a lesser extent, ratios of military personnel) have been more likely to submit a territorial dispute to arbitration than highly asymmetric pairs of countries, suggesting that arbitration is viewed as useful when it is less certain which side would prevail should the dispute turn violent. Furthermore, countries that have had a history of difficulty getting territorial agreements ratified by their own national legislatures also have been more likely to agree to third-party legal rulings.¹² For example, Honduras failed to ratify at least two boundary conventions or demarcation agreements (1870 and 1889) with Nicaragua and one arbitral agreement (1920) before agreeing to submit the issue to the ICJ in 1960. Neither Bolivia nor Paraguay could manage to ratify a border agreement (four negotiated treaties filed for ratification between 1879 and 1907) before agreeing in 1938 to a commission of six regional powers to settle the border definitively. Colombia and Venezuela negotiated three agreements that failed to be ratified before they agreed to Swiss arbitration in 1916. These cases seem to suggest that the legal device of binding quasi-judicial procedures holds an attraction in cases where continued domestic obstruction to border settlement prevents a solution.

     Prior experience with quasi-judicial procedures can often lead to their repeated use in settling border disputes, especially between countries that share long borders. Argentina has a long track record with this form of dispute settlement, accounting for seven of the twenty-two cases in Table 2. The Argentine-Chilean arbitrations, in fact, account for five of these cases, giving these two countries a long history of experience with formal international quasi-adjudication. More than once, both countries have been on the "losing" end of arbitral awards, but have accepted the decisions nonetheless. One country, Honduras, has used arbitration or adjudication four times for portions of all three of its international borders, making it the one Latin American state with the most judicial rulings per border-mile (a distinction it likely holds worldwide as well).

     Arbitration hardly guarantees that a border will be definitively settled once and for all. Venezuela‘s claim to territory currently controlled by Guyana, and Peru and Ecuador‘s long-time dispute, are examples of specific disagreements that have been arbitrated in the past, but for which comprehensive agreement has been elusive (at least until October 26, 1998 in the latter case). Similarly, arbitration does not guarantee compliance: regionally, the number of awards that have not been complied with slightly exceeds the number of awards that have. Only Nicaragua and Ecuador have failed to comply with more than one arbitral award (in each case, the dispute involved non- compliance with two awards with the same neighbor).

     Peru and Ecuador are long-time rivals with a history of war; seemingly perpetual border skirmishes with intermittent periods of latency; and extensive third-party involvement, including mediation, guarantor status, and specific efforts at binding arbitration, none of which has resulted in a comprehensive border settlement until recently. The case thus illustrates many aspects of the dispute settlement process available to states, the enduring success of which will be tested in the coming years.

     One of the unique aspects of the Ecuador-Peru case is the role of four regional powers—Argentina, Brazil, Chile, and the United States—as legal "guarantors" of the boundary agreement reached between the parties in 1942. Guarantors have been used in a number of explosive or potentially violent international conflicts in Europe,¹³ but this type of third-party involvement appears in Latin America only in the case of Ecuador and Peru‘s dispute. In the Peruvian-Ecuadoran Protocol of Peace, Friendship, and Boundaries, signed in Rio de Janeiro in 1942 (hereafter, the "Rio Protocol"—see appendix), the four regional powers agreed that "Any doubt or disagreement arising due to the execution of this Protocol shall be resolved by the parties . . . with the participation of the Representatives of the United States, Argentina, Brazil, and Chile" (Article VII).

     The Rio Protocol describes an agreed-upon borderline (Article VIII), allowing for "reciprocal concessions considered convenient so as to adjust said line to geographic reality" and providing that "these corrections shall be made with the assistance of representatives of the four guarantor states" (Article IX). Article V provides that the guarantors should continue in this role "until the final demarcation of the borders between Peru and Ecuador." In short, the four guarantors are legally committed by an international treaty to ensure the execution of the 1942 Rio Protocol, a function that goes well beyond mediation and gives a certain internationally recognized legitimacy to the agreement which it otherwise might lack. Both Articles VII and IX imply a possible arbitration role for the Guarantors, but they do not specifically mandate one.

     While guarantors ostensibly take on a legal obligation to ensure implementation of the terms of the treaty, there may be conditions under which they may evade the execution of a treaty without technically violating it. International law texts emphasize that the guaranteed state must request guarantors to render assistance, and that the guarantors be able to do so at that time. When the guaranteed state itself has not complied with the previous advice of the guarantors, some legal texts suggest it is no longer the guarantor‘s duty to render assistance.¹⁴ Thus, while third parties acting as guarantors may be expected to increase the chances of treaty implementation, this guarantee is subject to the caveats that reduce the certainty of the guarantee itself. However, the proviso that guarantors may refuse assistance if their advice has been ignored gives additional leverage to the third parties in the negotiations. In the case of the Ecuador-Peru border dispute, the fact that both sides, but especially Peru, preferred to negotiate under the auspices of the Guarantors rather than without them gave the four regional powers a measure of influence over the direction and pace of the talks.

     The case of Peru and Ecuador illustrates just why many of these disputes become violent and seemingly intractable. Both sides (but most notably, Ecuador) have at times nurtured a combination of national myths and claims regarding the legality or justness of their positions that tap into deeply held notions of national identity. But as these two countries have matured as democracies, the role of public perceptions has become more complex. In Ecuador, an increasingly independent civilian government must balance an array of economic, political, and social issues that compete on some level with long-held territorial ambitions. In both countries, the military has an important stake in the terms of the settlement. As has been the case with many such disputes in the region‘s history, a regional "third party" (in this case, the Guarantor countries) has facilitated negotiations and has assisted the parties in accepting a binding solution. The resolution of the long-standing conflict between Ecuador and Peru may go far toward consolidating democracy, stimulating economic development, and solidifying peace in the region.

Contents | Key Points | Map | Foreword | One | Two | Three | Four | Appendix: The Rio Protocol | Notes | Author

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