05 Sep 2019
Paulo Fernando Pinheiro Machado FCIArb
The last article in this space – about the Brazilian tradition to resort to arbitration to solve its Public International Law disputes – attracted great interest from readers. It often goes unnoticed that international arbitration is an extremely efficient method for dispute resolution in international affairs. Bearing in mind such interest, it is worth analysing another instance when the genius of Baron Rio Branco, Brazilian Foreign Minister between 1902 and 1912, successfully resorted to arbitration to solve a territorial dispute with France, involving the borders of French Guyana.
The issue involving the border between Brazil and France in the Amazon region was centuries old. Since 1688, Portugal and France disputed an area from Cabo Norte, in the Atlantic coastline, until the Oiapoque river. From 1700 onwards, a sort of modus vivendi was established, pending a final solution.[1] By the Treaty of Utrecht (1713), signed at the end of the War for the Spanish Succession, Paris officially recognised that the territory of French Guyana has its limits on the Oiapoque river. French authorities, however, questioned the actual location of the Oiapoque,[2] in a time when no precise technology for geographical accuracy was available.
After the French Revolution and the Independence of Brazil, the question of the precise location of the border continued to be discussed. From 1842 onwards, both governments initiated negotiations to delimit the frontier. Those negotiations prolonged without success and in 1897 Brazil and France signed an arbitration agreement to submit the dispute to the government of Switzerland. The agreement gave unrestricted freedom to the arbitrator to decide the dispute.[3] Baron Rio Branco was retained as counsel for the Brazilian side.
The main fact in issue was the interpretation of Article VIII of the Treaty of Utrecht (1713), whether the river “Japoc” referred therein was the Oiapoque, as defended Brazil, or the Araguari, located more southwards, as defended by France. Article VIII of the Treaty said that France renounced any pretentions to the land situated “between the Amazonas river and the Japoc or Vicente Pinzon river”. A question of fact related to the precise location of the “Japoc or Vincente Pinzon” was submitted to be decided by the Council of the Swiss Confederation, which sat as arbitral tribunal.
France was the claimant. Rio Branco, as customary in the tradition initiated by him, presented the Brazilian response in a thoroughly detailed document entitled “1st Memoir”, which comprised five volumes, in addition to an atlas and geographic maps.[4] The Brazilian counsel also presented a commented version of a previous research on the matter, conducted and compiled.
by Joaquim Caetano.[5] Rio Branco established that the only treaty in force between the two countries was indeed the Treaty of Utrecht (1713) in whose very text there is an express mention of the river “Araguari”, which France submitted was the same as the “Japoc”. “It will be no less strange that at Utrecht the French plenipotentiaries had written – Japoc – wanting to say that the limit was the Araguary or any other river in the region between the Araguari and the Oyapoc, because, all of them had their names perfectly defined after a century”, submitted the Brazilian counsel.[6]
Faced with such a killing argument, the French resorted to desperate submissions. They claimed that the word “oiapoque” meant “hole” in the indigenous language and that “all rivers and channels in the region are oiapoques”.[7] Rio Branco, after a meticulous study of the native dialects, easily dismissed the trickery: the French interpretation was based on Tupi dictionaries, when the natives of the region are part of a different linguistic group, the Caraiba.[8]
The Swiss Government presented the award on 1st December of the same year. Eduard Müller was the judge rapporteur. So serious and meticulous was the work of the arbitral tribunal that his opinion had no less than 800 pages, being longer than any of the already very long pleadings in the matter.[9] The decision was entirely favourable to the Brazilian side. From the 260.000 km2 that were under dispute, 5.000 km2 were granted to France and the other 255.000 recognised under Brazilian sovereignty.
The case, in short, was a confirmation that arbitration is an efficient method for the resolution of the most complex disputes. The resort to arbitration along Brazilian diplomatic history was the main reason why the South American country developed the highest levels of know-how in alternative dispute resolution, which, in turn, enabled it to solve all its contentions in a peaceful and civilized manner. Arbitration, indeed, can be employed to solve any Public International Law question, reducing, thus, the risks to international peace and security on a global level.
Paulo Fernando Pinheiro Machado, FCIArb is a Brazilian diplomat and advocate. The opinions expressed in this article do not necessarily reflect that of the Brazilian government or of any institutions to which its author is affiliated.
[1] Alvaro Lins, Rio Branco (São Paulo, Companhia Editora Nacional 1965) 222
[2] Ibid 223
[3] Ibid 226
[4] Ibid 228
[5] Ibid
[6] Ibid 229
[7] Ibid 231
[8] Ibid 231
[9] Ibid 239