Article VIII of the Protocol sets forth the line between the two countries. In paragraph 1, clause B of this article, it is established that the boundary shall follow along "San Francisco creek, the 'divortium aquarum' between the Zamora river and the Santiago river, to the confluence of the Santiago river with the Yaupi". As soon an demarcation of the border starting at San Francisco creek was undertaken, problems arose in the identification of that border, for which reason both countries requested the cooperation of the United States Air Force. The latter prepared an aerophotogrammetric map of the area, wich was delivered to the Parties in February 1947.
That map showed that, between the Zamora and Santiago rivers, there extended for a distance of more than 190 kilometers (118 miles), a new, independent water system, that of the Cenepa river, a direct affluent of the Mara$on, which with its sources reaches the northern ridges of the El Condor mountain range.
Until then that river had beeb considered a creek of little importance, whose northernmost headwaters did not extend beyond the latitude of the mouth of the Santiago river.
If the Cenepa river was interposed for a long distance between the system of the Santiago and that of the Zamora, it was evident that for the entire length of such interposition there was no watershed between those two rivers and that, for the same reason, there where it had beeb supposed that a single "divortium aquarum" existed, there were to be found at least two main watersheds: the one interposed between the Cenepa and the Zamora, and the one which ran between the Cenepa and the Santiago, neither of wich had been considered as a boundary line in the text of the Protocol.
The inesistence of the geographic feature expressly referred to in the Protocol of 1942, in Article VIII, paragraph 1, clause b, thus determined the inexistence of the boundary line in that sector and, as a logical consequence, that situation prevented reference to implementation of the treaty in one sector where due to a basic and unavoidable error it was set up that the line should follow through a non-existent geographical feature.
The impossibility of implementing the Protocol in the southern sector of the Zamora-Santiago area likewise made it impossible to continue demarcation work in that stretch, since there was no line along which to set boundary markers. For this reason the Government of Ecuador, through direct dealings with that of Peru, sought a means to solve the problem that had arisen. In effect, on September 15, 1949, the Abassador of Ecuador in Lima, on instructions from his Government, delivered to the Peruvian Foreign Office a note requesting the setting up of a special mixed commission which would be entrusted with the task of a broad and sufficient reconnaissance an stuty of the Zamora-Santiago area, especially the course of the Cenepa river, in order to ascentain the true geography of the area. Peru replied to this communication by a note on October 13, refusing to accept the proposal of the Government of Ecuador and requesting that demarcation of the area continue, with the assistance of a Brazilian technician, Ecuador, in replyind to this document on March 25, 1950, insisted on its initial requirement. No reply to this insistence was received.
In view of Peru's reluctance to consider the problem and accept the fair and adequate suggestions of Ecuador, the Ecuadorian Foreign Office placed the controversy in the hands of the mediating countries, guarantors of the Protocol of 1942, which on May 16, 1956, contacted the two Parties to advise them that they wished to have available the data necessary to seek a solution to the "matter of boundaries" existing between the two countries. In this connection, the guarantors suggested the advisability of a survey that might be entrusted to the Inter- American Geodetic Survey, USA, and they requested that the two countries facilitate the work that the said institution would carry out. Ecuador hastened to accept the suggestion of the guarantors. Peru, on the contrary, declined to give the acquiescence and cooperation requested, obstinately standing by its thesis that there was no problem to discuss between the two States.
Peruvian disavowal of the problem can not affect the actual existence of the Ecuadorian-Peruvian territorial controversy, not this specific situation of the inexistence of the watershed considered in the Protocol. For the former, suffice if to refer to the denition of "controversy" given in international law and jurisprudence: "controversy" is a disagreement on a point of law or of fact, a contradiction of juridical theses or of interests between two persons" (Judgment of the International Court of Justice, August 30, 1942, in the case of the Mavrommatis concessions in Palestine). "The existence of controversy must be established objectively. The mere fact that the existence of a controversy be disputed does not prove that the controversy does not exist" (Consultative opinion of the International Court of Justice, March 30, 1950, regarding the Treaties of Peace between the Allies and Hungary, Bulgaria and Rumania, I.C.J. Reports, 1950).
Peru has stated that the Zamora-Santiago matter has already been settled by the award of the Brazilian arbiter Braz Dias de Aguiar, made on July 15, 1945, in connection with several differences that arose in the process of demarcation of the eastern sector of the line of the Protocol of Rio de Janeiro.
Peru has added that further discussion in unwarranted, given that the problem was settled by an award. This position lacks a basis.
The award of Dias de Aguiar was made on July 15, 1945. The problem of the southern sector of the Zamora-Santiago area did not arise until 1947, after delivery to the Parties of the aerophotogrammetric map that revealed the true geography of the area, poorly know until then. How could Dias de Aguiar have solved a problem that had not yet arisen?
The award of the Brazilian arbiter referred only to the northern sector of the area, where at the time a difference had shown up, a difference whose contents and solution are totally dissimilar and independent of the problem in the southern sector.
The arbiter recognized that the "divortium aquarum" Zamora- Santiago does not terminate in the confluence of the Santiago river and Yaupi. In his award he established a line accepting the Ecuadorian position, Peru officially acknowledget that the southern sector of the Zamora-Santiago area was not the subject of arbitral decision. As an example of the acknowledgement we can mention the note that the Chairman of the Peruvian Demarcation Commission addressed to his Ecuadorian counterpart on April 2, 1945.
It is true that the arbiter in his award referred to the "divortium aquarum" between the Zamora and Santiago rivers, which he supposed existed from the San Francisco creek. But this has no meaning other that being a repetition or quoting of the provision of the Protocol. Yet even in the case that this reference were in reality a definition of the arbiter's will that the boundary line follow along this geographic feature, the award would not have defined the boundary in that sector, since, upon confirming with its provisions those already set forth in the Protocol, it would suffer from the latter's own errors and defects. It would be inapplicable.
Before the true geography of the Zamora-Santiago area became know by means of the aerophotogrammetric map of the region, the demarcation commissions improperly placed 10 boundary markers along the line of the El Condor mountain range, under the mistaken supposition that they were demarcating the line of the Protocol of Rio de Janeiro. On that suppositions, these 10 markers were approved by the Chairmen of the Demarcation Commissions. Demarcation work in the area was suspended for some time, and when in began again in 1947 two additional boundary merkers were emplaced. At this time Ecuador had the aerophotogrammetric map prepared by the United States, and it was able to ascertain that the work performed by the demarcation commissions was not in the geographic feature mentioned in the Protocol. Thus the last two markers were not approved. North of these markers there is nothing, neither approved nor unapproved markers.
Peru sought to find proof of the existence of the line in the southern sector of the Zamora-Santiago area, in the fact the aforementioned 12 boundary markers had been placed there erroneously. This thesis had been refuted by Ecuador no more than on occasion. Thus, in 1954 Peru was advised that, since it was not possible to doubt the inexistence of the geographic feature mentioned in the Protocol, "the sovereignty of the two countries in the aforementioned sectoe" was consequently undefined "because of the inexistence of a boundary line therein.
This lack of line is what international law is called a lack of delimitation, a very different idea, of course, from the mere lack of demarcation or inexistence of boundary markers, which, in orden to have legal standing, requires not only the prior existence of a boundary line, but further, that the said line be real, feasible of implementation and, consequely, valid".
Since the area in dispute has not been delimited, in order to delimit it an agreement to that effect between Ecuador and Peru would be necessary in this case. So long as such an agreement does not exist, one of the two countries between which the difference has arisen can not compel the other to accept a line of delimitation. For the same reasons, even less can it arrogate to itself absolute sovereignty in the territories not delimited.
Consequently the Protocol of Rio de Janeiro, whatever may have been its legal standing, did not establish a boundary line between San Francisco creek and the headwaters of the Coangos river, due to the inexistence of the geographic feature it provided for as a line in that sector. There is no instrument whatsoever, that will remedy the lack of a line in the sector.
The area without delimitation, located north of the Mara$on and west of the Santiago, has been always Ecuadorian. In this connection, one must, of necessity, be guided by the rights that each of the two countries has in the region. It must be remembered that Peru, in relation to this area, has acknowledged that "nowhere else is" Peruvian law "less worthy of being upheld"; that it cannot allege "even a shadow of right" in connection with it; that it could not demand it "with any right worthy of being heeded"; that one cannot discern the title "nor even the pretext with which Peru" might claim it; that it could not be claimed by that country "under guise of justice" (Report sent to the Government of Peru by Dr. Arturo Garcia, Envoy Extraordinary and Minister Plenipotentiary in Quito, Lima, August 9, 1980).
Consequently, only Ecuador can rightly occupy the area. Peru has no title, right, reason or pretext (since the Protocol of Rio de Janeiro is not applicable to it) to demand it or occupy it, if Ecuador has military posts in that area, they have in no way been located in Peruvian territory, nor have they, therefore, been within Peruvian sovereignty, as country's Government has been stating baselessly.
In spite of the irrefutable geographic fact of the inexistence of the Zamora-Santiago watershed and the consequent impossibility of implementing the Protocol in that sector, Peru pretends that the only thing remaining to be done is the demarcation of 78 kilometers (48.4 miles), i.e., the stretch of the El Condor range between the last of the improperly placed boundary markers in the area's southern sector. It has been stated that in the entire southern part of the Zamora-Santiago area there is no delimitation and that, therefore, no demarcation is warranted, However, even should this impossibility not exist, there is noting in the Protocol that allows the interpretation that, for the negotiators, the line should have follewed along the El Condor mountain range. On the contrary, sufficient and very clear documents exist, among them an unequivocal one od Peru's, that the El Condor range could not be taken into account in demarcation because the Protocol does not mention it. This is an official communication from the Chairman of the Peruvian Demarcation Commission to this Ecuadorian counterpart, on October 18, 1943.
The Brazilian arbiter Braz Dias de Aguiar likewise discarded the El Condor mountain range as an element in the demarcation. In the conclusions in his judgment relating to the difference that arose in the northernmost sector of the Zamora-Santiago area, which is different from that of the controverty to which we have been referring, he states specifically that, in accordance with the Protocol, demarcation "should be made along the "Zamora-Santiago 'divortium aquarum', without regard to its being or not beign the line of the El Condor mountain range".
Thus, even if one accepts the Peruvian thesis of the feasibility of implementation of the Protocol of Rio de Janeiro, nothing would oblige Ecuador to accept the El Condor range as the border between the two countries.
The sector that was the subject of serious incidents in January and February, 1995, in which Peru repeatedly attacked various Ecuadorian military garrisons, is not only within the Zamora-Santiago area, in which Peru lacks all rights, but further, is in an area where there were not even acts of invalid demarcation, as ocurred in other sectors. But Peru has attacked not only those garrisons, but also others located in a totally different sector of the conflict area.
Therefore Ecuador can never accept the assertion that it has maintained military garrisons in Peruvian territory, and even less, that this could have served as a pretext for Peru to attack these garrisons and to adpt a war stance against a country that has invariably stated, and continues to state, that the only legitimate manner of solving any type of controversy is by peaceful means within the terms of law and justice, in keeping with the standards of the United Nations or of regional bodies such as the Organization of the American States.
In conclusion:
a) The Protocol of Rio de Janeiro between Ecuador and Peru, in addition to being the result of the armed coercion, suffers from an essential geographical error;
b) The "divortium aquarum" between the Zamora and Santiago rivers stated in the Rio Protocol does not exist, Instead, there are two watersheds, one between the Zamora and Cenepa rivers, and another, between the Cenepa and Santiago rivers;
c) El Condor mountain range is not the watershed between the Zamora and Santiago rivers but rather between the Zamora and Cenepa rivers;
d) The permanent diplomatic action of Ecuador from 1949 to 1959, did not bring any result in order to set up a Special Mixed Commission entrusted with the task of reconnaisance and study of the Zamora-Santiago zone, particularly the course of the Cenepa river, with the purpose of verifying the geographic reality;
e) The Peruvian attitude of refusing the Ecuadorian reasons under the arbitrary argument that there is no problem watsoever, is absolutely unacceptable. However, President Fujimori has accepted the existence of the problem in 1991, and the Peruvian Foreign Minister has also recognized the problem in the OAS General Assembly, Nassau, May 1992;
f) Peru may deny validity to the Ecuadorian position, but it should technically prove the basis of its negation by means of geographical dat;
g) From the juridical viewpoint, neither the Protocol of Rio de Janeiro sets forth El Condor mountain range as boundary, nor the award of arbiter Dias de Aguiar, 1945, could have establisehd it, because the real extension and importance of the Cenepa river was only established in 1947, with the aerophotogrammetric map of the Zamora-Santiago area. In this region, consequently, does not exist delimitation nor demarcation boundaries;
g) This zone without delimitation has been always Ecuadorian, as proved by juridical titles and several Peruvian declarations recognizing it;
h) The area where the military attacks of Peru have taken place lies within the Zamora-Santiago zone, area over which Peru lacks rights..