Grover Cleveland, President of the United States, to whom
it shall concern, greeting:
The functions of arbitrator having been conferred upon the President of
the United States by virtue of a treaty signed at the City of Guatemala
[Page 457] on the 24th day of
December, one thousand eight hundred and eighty-six, between the
Republics of Costa Rica and Nicaragua, whereby it was agreed that the
question pending between the contracting Governments in regard to the
validity of their Treaty of Limits of the 15th day of April, one
thousand eight hundred and fifty-eight, should be submitted to the
arbitration of the President of the United States of America) that if
the arbitrator’s award should determine that the treaty was valid, the
same award should also declare whether Costa Rica has the right of
navigation of the river San Juan with vessels of war or of the revenue
service: and that in the same manner the arbitrator should decide, in
case of the validity of the treaty, upon all the other points of
doubtful interpretation which either of the parties might find in the
treaty and should communicate to the other party within thirty days
after the exchange of the ratifications of the said treaty of the 24th
day of December, one thousand eight hundred and eighty-six.
And the Republic of Nicaragua having duly communicated to the Republic of
Costa Rica eleven points of doubtful interpretation found in the said
Treaty of Limits of the 15th day of April, one thousand eight hundred
and fifty-eight; and the Republic of Costa Rica having failed to
communicate to the Republic of Nicaragua any points of doubtful
interpretation found in the said last-mentioned treaty;
And both parties having duly presented their allegations and documents to
the arbitrator, and having thereafter duly presented their respective
answers to the allegations of the other party as provided in the treaty
of the 24th day of December, one thousand eight hundred and
eighty-six;
And the arbitrator pursuant to the fifth clause of said last-named treaty
having delegated his powers to the honorable George L. Rives, Assistant
Secretary of State, who, after examining and considering the said
allegations, documents and answers, has made his report in writing
thereon to the arbitrator;
Now, therefore, I, Grover Cleveland, President of the United States of
America, do hereby make the following decision and award:
In testimony whereof, I have hereunto set my hand and have caused the
seal of the United States to be hereunto affixed.
[Inclosure in No. 314.]
Arbitration between the Republics of Costa Rica
and Nicaragua in relation to the validity of the treaty of the
15th April, 1858.—Report to the
arbitrator, the President of the United States, by George L.
Rives, Assistant Secretary of State.
To the President:
Sir: On the 24th day of December, 1886, the
Republics of Costa Rica and Nicaragua, by a treaty signed on that
day, agreed that the question pending between the contracting
Governments in regard to the validity of the “Treaty of Limits” of
the 15th April, 1858, should be submitted to arbitration. It was
further agreed that the arbitrator of that question should be the
President of the United States of America; that within sixty days
from the ratification of the treaty of arbitration the contracting
Governments should solicit of the arbitrator his acceptance of the
charge; that within ninety days from the notification to the parties
of the acceptance of the arbitrator they should present to him their
allegations and documents; that the arbitrator should communicate to
the representative of each Government, within eight days after their
presentation, the allegations of the opposing party, in order that
the opposing party might be able to answer them within thirty days
following that upon which the same should have been communicated;
that the decision of the arbitrator must be pronounced within six
months from the date upon which the term allowed for the answers to
the allegations should have expired; and that the arbitrator might,
delegate his powers, provided he did not fail to intervene directly
in pronouncing the final decision. It was further provided that if
the arbitrator’s award should determine that the treaty of the 15th
April, 1858, was valid, the same award should also declare whether
Costa Rica has the right of navigation of the river San Juan with
vessels of war or of the revenue service; and that he should in the
same manner decide, in case of the validity of the treaty, upon all
the other points of doubtful interpretation which either of the
parties might find in the treaty and communicate to the other within
thirty days after the exchange of ratifications of the treaty of
arbitration.
In accordance with the procedure thus agreed on, the Republic of
Nicaragua communicated to the Republic of Costa Rica a statement of
eleven points of doubtful interpretation in the treaty of the 15th
April, 1858, which it proposed to submit to the decision of the
arbitrator. The Government of Costa Rica did not communicate any
corresponding statement, and now declares that it finds nothing in
that treaty which is not perfectly clear and intelligible.
The two Governments having thereafter solicited your acceptance of
the charge, you were pleased, on the 30th day of July, 1887, to
signify your acceptance of it, and the representatives of both
Governments were duly notified of that fact.
On the 27th day of October, 1887, both Governments presented to you
their allegations and documents. These were duly communicated to the
opposing parties, and on the [Page 460] 3d day of December, 1887, they both presented answers to the
allegations of their opponents. The Spanish documents were
subsequently translated and printed.
On the 16th day of January, 1888, by an instrument in writing, you
were pleased to delegate your powers as arbitrator to me, in
pursuance of the provisions contained in the last sentence of
Article V of the Treaty of Arbitration, and to direct me to examine
into the questions at issue and report my conclusions to you.
In accordance with these directions, and after a careful
consideration of the allegations of the respective parties, of their
answers, and of the documents submitted by each, I have now the
honor to submit the following:
report.
The questions to be passed upon by the arbitrator, as will be
observed from the foregoing statement of the Treaty of Arbitration,
are capable of being classified under two heads:
- First. Whether the Treaty of Limits
of the 15th of April, 1858, is valid.
- Second. If valid, what is its true
meaning in respect of the right of Costa Rica to navigate
the river San Juan with vessels of war or the revenue
service, and also in respect of the eleven points submitted
for decision by the Government of Nicaragua? If the first of
these questions is decided in the negative—that is, if the
Treaty of Limits is decided to be invalid—it will not be
necessary to consider at all the questions under the second
head.
Before discussing the grounds urged by the Government of Nicaragua,
on the one hand, as proving the invalidity of the Treaty of Limits,
and those urged by the Government of Costa Rica on the other, as
establishing its validity, it will be essential to consider briefly
the evidence submitted to show what were the recognized boundaries
prior to the date of the treaty, and what were the powers of the
respective Governments in regard to it. This historical inquiry, it
must be remembered, is not a matter of immediate concern, nor is it
directly involved in the decision of the questions now submitted to
arbitration; but it is important as elucidating the nature of the
principal controversy, and as showing the facts upon which the
parties base their respective arguments.
Two questions, essentially distinct in their character, were in
discussion in 1858 touching the boundary of the two Republics. The
first of these was the question whether the district of Nicoya
lawfully belonged to Costa Rica or to Nicaragua; the second, as to
the true boundary line between the Republics from the Caribbean Sea
to the borders of Nicoya. The evidence in regard to each of these
disputed questions must be reviewed in its order. The district of
Nicoya lies on the Pacific side of the continent, and—roughly
speaking—is triangular in shape, its apex lying toward the south. It
is bounded on the westward by the Pacific Ocean, and on the eastward
by the Gulf of Nicoya and the Rio del Salto, or Tempisque, a small
stream emptying into the head of the Gulf and having its sources not
far from the southerly shore of Lake Nicaragua. The northerly
boundary, or base of the triangle, seems to have never been
accurately fixed, and its position is a matter of dispute between
the Governments of Costa Rica and Nicaragua. The argument of
Nicaragua, submitted to the arbitrator, cites the authority of Don
Antonia Alcedo and the historian Juarros to the effect that it is
bounded by the Lake of Nicaragua on the north, which seems to imply
a further boundary line running from the southern end of the lake to
the Pacific Ocean. The arguments of the Costa Rican Government, on
the other hand, place the northern boundary as far up as the La Flor
River; and the records of land titles, and the statements of
Stephens and Baily, are cited in support of this view. It is wholly
unimportant, however, for the present purpose, to decide which of
these opposing Views is correct. It is only needful to point out
that a diversity of opinion exists, and that there is no grantor
agreement precisely fixing the boundaries of the district.
As to the title to the district, the facts are plainer. Nicoya, or,
as it is sometimes called, Guanacaste, was undoubtedly recognized as
a part of Nicaragua prior to 1826. It is asserted by Costa Rica that
at times Nicoya was temporarily united with it, or placed under the
control of its authorities; and some evidence is produced tending to
show that such a change was made in 1573, 1593, 1692, the middle of
the 18th century, and even as late as 1812. But any such connection
with Costa Rica can have been but temporary, and it may be regarded
as settled that at the time of the declaration of independence from
Spain in September, 1821, Nicoya formed a part of Nicaragua. This
condition of things seems to be distinctly recognized in the
constitution of Costa Rica, adopted 21st January, 1825, in which it
is stated that “the territory of the state extends at present from
west to east, from the Rio del Salto, which
divides it from Nicaragua, etc.”
It would seem, however, that about 1824 the inhabitants of Nicoya, or
some of them, asked to be annexed to Costa Rica. This question was
referred to the Federal Congress of Central America, the Federal
Republic of Central America having been [Page 461] theretofore formed and its constitution
adopted 22nd November, 1824, and that body on the 9th December,
1825, passed the following decree:
“The Federal Congress of the Republic of Central America, taking into
consideration, firstly, the reiterated petitions of the authorities
and municipal bodies of the towns of the District of Nicoya, asking
for their separation from Nicaragua and their annexation to Costa
Rica; and, secondly, that the said towns and people actually annexed
themselves to Costa Rica at the time in which the political troubles
of Nicaragua took place; and, thirdly, the topographical situation
of the same district has-been pleased to decree, and does hereby
decree:
- “Art. 1. For the time being, and
until the demarkation of the territory of each State,
provided by Article VII of the Constitution is made, the
District of Nicoya shall continue to be separated from
Nicaragua, and annexed to Costa Rica.
- “Art. 2. In consequence thereof,
the District of Nicoya shall recognize its dependence upon
the authorities of Costa Rica, and shall have, in the
legislature of the latter, such representation as
corresponds to it.”
It further appears that the Government of Costa Rica thereupon took
possession of Nicoya, and has been continuously in possession of it
ever since; and was so at the date of the treaty of 1858.
The Government of Nicaragua, however, has not always acquiesced in
the validity of this act of annexation. It has, on the contrary, on
several occasions protested against it; and in its arguments, now
before the arbitrator, it contends that the decree above referred to
was not recognized at the time; that Nicaragua was not then
represented in the Federal Congress; that the decree was, by its
terms, only temporary; and that the municipalities of Nicoya as well
as the legislature of Nicaragua protested against the action of
Congress as soon as they were aware of it.
Here, again, it is not necessary for the arbitrator to decide the
question of title. But it is clear that in 1858 Costa Rica had been
continuously in possession of the district of Nicoya, under a claim
of title, for more than thirty-two years.
As to the boundary line between the Rio del Salto and the Caribbean
Sea, the question was purely one of fact; and it can hardly be said
that any very clear or satisfactory answer was possible.
The Government of Costa Rica, in the arguments submitted to the
arbitrator has presented an elaborate historical review of the two
provinces of Costa Rica and Nicaragua under Spanish rule, which, it
may be assumed, contains a reference to all the important documents
bearing upon the question of boundaries. Passing over the history of
the discovery and first settlement of this region in the early part
of the XVIth century, it appears that in 1541 the Emperor Charles V
decreed that the upper fifteen leagues of the San Juan River should
belong to the province of Nicaragua; that the lower or remaining
portion of the river should belong to the Government of Costa Rica;
and that the use of the river and lake, for purposes of navigation
and fishing, should be common to both provinces. In 1561, King
Philip II appointed Licentiate Don Juan Cavallon to be “alcalde
mayor” of the province of New Cartago and Costa Rica, describing it
in the preamble of the letter of appointment as extending along the
Northern Sea “up to the outlet, this being included” (hasia el Desaguadero inclusive). In 1573, by
articles of agreement between the Spanish Crown and Diego de
Artieda, who was appointed governor and captain-general of Costa
Rica, the boundaries of that province were denned substantially as
they continued to be down to 1821. The limits of Artieda’s
jurisdiction are thus defined:
“From the Northern to the Southern Sea in width; and in length, from
the boundary of Nicaragua, on the side of Nicoya, right to the
valleys of Chiriqui, as far as the province of Veragua on the
southern side; and on the northern side, from the mouths of the
outlet, which is towards Nicaragua (desde las
bocas del Desaguadero, que es d las partes de Nicaragua),
the whole tract of land as far as the province of Veragua.”
No subsequent grant or decree by the Spanish Crown is cited, and,
apart from some evidence of acts of possession by the respective
Government, there is nothing further to define the boundaries of the
two provinces.
Soon after the declaration of independence, Costa Rica and Nicaragua,
then States of the Republic of Central America, adopted
constitutions defining generally their respective boundaries.
The constitution of Costa Rica, adopted the 21st January, 1825,
provides as follows:
“Article 15. The territory of the State
extends at present from west to east, from the river del Salto,
which divides it from that of Nicaragua, up to the river Chiriqui,
the boundary of the Republic of Colombia; and north and south from
one to the other sea, the limits being on the north [sea] the mouth
of the San Juan River and the Escudo de Veraguas, and on the south
[sea] the mouth of the river Alvarado and that of the Chiriqui.”
Nicaragua, by the constitution adopted the 8th of April, 1826,
defines her boundaries thus:
“On the east, the sea of the Antilles; on the north, the State of
Honduras; on the [Page 462] west, the
gulf of Conchagua; on the south, the Pacific Ocean; and on the
southeast the free State of Costa Rica.”
These are the last declarations ante litem
motam. It will he observed that all these documents leave
the precise boundary vague and undetermined. Indeed the line to be
followed between the Rio del Salto and the “mouths of the Outlet,”
is nowhere laid down. Nicaragua contends that a straight line from
the mouth of the Rio del Salto to the mouth of the Colorado, the
most southerly of the three mouths of the San Juan, is intended.
This is met by the argument that as the Rio del Salto was the
boundary, that river in its whole length, and not the mouth or any
other part of it, was the dividing line; and that the San Juan River
proper the northernmost of the three channels at the mouth of that
stream—formed the end of the line on the Caribbean Sea. Costa Rica
further contends that the boundary line was not straight, but that
it followed the course of the San Juan in its whole length and the
southern shore of Lake Nicaragua; and she alleges that she was in
possession of the territory up to that line—an allegation not
admitted by Nicaragua.
In my judgment the evidence establishes that the boundary of Costa
Rica, under the terms of the Spanish grants (leaving Nicoya out of
the question), began at the head of the Gulf of Nicoya, ran
northerly along the river del Salto to its source, and thence ran to
the mouth of the San Juan River, at the port of San Juan del
Norte—this being at the time the mouth of the principal channel or
outlet of the stream. But the evidence is not sufficient to form the
basis for any satisfactory judgment as to how this line was to be
drawn between the source of the del Salto and the month of the San
Juan. I perceive no reason for thinking that it should have been a
straight line.
No decision of this question is, however, necessary; for it is only
important, for present purposes, to point out that no precise line
of demarkation can be found in any of the earlier documents. Nor is
this surprising in view of the fact, to be inferred from the
evidence, that the region through which the line ran was a rough,
densely wooded and thinly settled country, where no need was felt of
any exact delimitation in the days of the Spanish dominion.
But with the establishment of the Federal Republic, and, still more,
with its dissolution, the questions of boundary began to assume
importance.
The Federal Constitution seems to have provided by its Article VII
for the demarcation of each State; but nevertheless nothing was done
towards the establishment of the line between Costa Rica and
Nicaragua.
In 1838 Costa Rica seems to have urged upon Nicaragua—then assuming
the rank of an independent State upon her withdrawal from the
federation—a desire for a recognition of the annexation of Nicoya.
In 1846, 1848, and 1852 other fruitless negotiations were undertaken
with a view to settling the boundary; and in 1858, when the Treaty
of Limits was signed, the question, in one form or another, had been
before the two Governments for at least twenty years.
That the documentary evidence was slight and unsatisfactory, has been
already shown; and that Costa Rica had for nearly the same period of
twenty years laid claim to more territory than she obtained under
the Treaty of Limits, fully appears from her decree of “Basis and
Guaranties “of the 8th March, 1841, which asserts as the boundaries
of Costa Rica the line of the river La Flor, the shore of Lake
Nicaragua, and the river San Juan.
I now proceed to state the history of the negotiations which resulted
In the treaty in question, and of the executive and legislative acts
which are relied on by Costa Rica as constituting a sufficient
ratification.
The long and bitter struggle in which Nicaragua and other Central
American States had been involved, and of which the part played by
Walker and the filibusters was the most notorious incident, came to
an end in 1857. The Republic of Costa Rica had taken part in that
struggle, and her case states as a fact that at the close of the
contest the Costa Rican troops held military positions on both sides
of the San Juan. The argument of Nicaragua seems to imply that such
possession was not taken until after the close of the war; but the
fact itself is not in dispute. It was regarded by Nicaragua at the
time as constituting a casus belli; and Costa
Rica having failed to withdraw her troops, war was declared by
Nicaragua on the 25th November, 1857, although negotiations for a
settlement of the difficulty still continued, but without
success.
In this posture of affairs the Republic of San Salvador offered
mediation through its minister Col. Don Pedro Rómulo Negrete. Owing
principally, as it would seem, to Colonel Negrete’s earnest efforts,
the opposing Governments appointed ministers plenipotentiary, who
met with the Salvadorian minister at San José de Costa Rica, and
there concluded the Treaty of Limits, the validity of which is now
under examination.
By that instrument the boundary line is made to begin at Punta de
Castilla, at the mouth of the San Juan River; thence it follows the
right or southern bank of that stream to a point 3 miles below the
Castillo Viejo; thence it runs along the circumference [Page 463] of a circle drawn round
the outworks of the castle as a center, with a radius of 3 miles to
a point on the western side of the castle, distant 2 miles from the
river; thence parallel to the San Juan and the lake, at a distance
of 2 miles therefrom to the Sapoá River; and thence in a straight
line to the center of Salinas Bay on the Pacific, Ocean. The treaty
further provides that surveys shall be made to locate the boundary;
that the Bay of San Juan del Norte and Salinas Bay shall be common
to both Republics; and that Nicaragua shall have, exclusively,
dominion and supreme control, of the waters of the San Juan—Costa
Rica having the right of free navigation for the purposes of
commerce in that part of the river on which she is bounded. It was
further agreed that in the event of war between Costa Rica and
Nicaragua, no act of hostility was to be practiced in the port or
river of San Juan, or on the Lake of Nicaragua; and the observance
of this article of the treaty was guarantied by the Republic of San
Salvador.
It is admitted by the parties to the present arbitration that the
treaty was duly ratified by Costa Rica on the 16th April, 1858; and
that it was not ratified at all by San Salvador. It is further
established that there was some ratification by representatives of
Nicaragua—but whether or not such ratification was sufficient is one
of the points now in controversy, and it is therefore necessary to
examine fully the powers and the proceedings of the Nicaraguan
authorities.
The Republic of Nicaragua, as appears from the evidence, was a
constitutional government of limited powers, which were defined by a
written constitution. Nicaragua, as one of the States of the Central
American Republic, adopted her first constitution on the 8th April,
1826. Upon the dissolution of the Federal Republic she assumed the
rank of an independent nation; and in 1838 adopted a new
constitution, which her representatives now contend was in full
force and vigor at the time of the execution of the Treaty of
Limits. The full text of the Nicaraguan constitution of 1838 is not
contained in the arguments which have been laid before the
arbitrator; but it sufficiently appears that power was vested in an
elective President and a Congress. It also appears that by article 2
(cited in full below), the boundaries of the State were defined; and
that by article 194, quoted in the argument of Nicaragua, a
complicated method of amendment was provided, of which the only
feature now necessary to notice is that no proposed amendment shall
take effect until it has been approved by two successive
legislatures.
In 1857 the necessity for a complete revision of the constitution of
1838 seems to have been generally recognized. The long and
exhausting conflicts which had been waged from 1854 to 1857, and the
existence, during the greater part of that time, of two hostile
governments, each claiming to exercise constitutional and supreme
power throughout the country, had demonstrated, to the satisfaction
of the inhabitants, the importance of changes in the organic law.
Accordingly a constituent assembly, with ample powers, was duly
elected. The due election, and the full constituent powers of this
body, are facts not disputed in the arguments now submitted on
behalf of Nicaragua.
In November, 1857, the constituent assembly met, and addressed itself
at once to the task of framing a new constitution for Nicaragua, as
well as of legislating upon the ordinary affairs of the nation.
On the 18th of January, 1858, the previous negotiation with Costa
Rica having failed, the assembly ordered new commissioners to be
appointed to negotiate treaties of peace, limits, friendship, and
alliance between Nicaragua and Costa Rica.
On the 5th February, 1858, a further and supplemental decree on the
same subject was adopted, which is as follows:
“The constituent assembly of the Republic of Nicaragua, in use of the
legislative faculties with which it is invested, decrees:
- “Art. 1. For the purpose that
the executive may comply with the decree of January 18
instant, the said executive is hereby amply authorized to
act in the settlement of the difficulties with Costa Rica in
such manner as it may deem best for the interest of both
countries, and for the independence of Central America,
without the necessity of ratification by the legislative
power.
- “Art. 2. Such treaties of limits
as it may adjust shall be final, if adjusted in accordance
with the bases which separately will be given to it; but, if
not, they shall be subject to the ratification of the
assembly.”
What were the separate bases of negotiation given to the Nicaraguan
Executive does not appear from any of the documents submitted to the
arbitrator. But it is not distinctly asserted by the representatives
of Nicaragua that such instructions were disregarded in the
negotiation of the treaty, the arguments relied on to prove its
invalidity resting upon entirely different grounds, which will be
stated hereafter.
On the 15th April, 1858, the treaty of limits was signed by the
plenipotentiaries of Costa Rica, Nicaragua, and San Salvador; and on
the 26th April, 1858, ratifications were personally exchanged by the
Presidents of Costa Rica and Nicaragua, who met for the purpose on
Nicaraguan territory at the city of Rivas. The treaty had not [Page 464] then been passed upon by
the assembly, the decree of ratification being by the President
alone. It is as follows:
“Tomas Martinez, the
President of the Republic of Nicaragua:
“Whereas General Máximo. Jerez, envoy extraordinary and minister
plenipotentiary of Nicaragua to the Republic of Costa Rica, has
adjusted, agreed upon, and signed, on the 15th instant, a treaty of
limits, fully in accordance with the bases which, for that purpose,
were transmitted to him by way of instructions; finding that said
treaty is conducive to the peace and prosperity of the two
countries, and reciprocally useful to both of them, and that it
facilitates, by removing all obstacles that might prevent it, the
mutual alliance of both countries, and their unity of action against
all attempts of foreign conquest; considering that the Executive has
been duly and-competently authorized by legislative decree of
February 26th ultimo to do everything conducive to secure the safety
and independence of the Republic; and by virtue, furthermore, of the
reservation of faculties spoken of in the Executive decree of the
17th instant:
“Does hereby ratify each and all of the articles of the treaty of
limits, made and concluded by Don José Maria Cañas, minister
plenipotentiary of the Government of Costa Rica, and Don Máximo
Jerez, minister plenipotentiary of the Supreme Government of
Nicaragua, signed by them on the 15th instant and ratified by the
Costa Rican Government on the 16th. And the additional act of the
same date is likewise ratified.”
On the 28th May, 1858, thirty-two days after the ratification, and
forty-three days after the signature of the treaty of limits, the
following decree was passed by the constituent assembly:
“The constituent assembly of the Republic of Nicaragua, in use of the
legislative powers vested in it, decrees:
“Sole Article. The treaty of limits concluded at San José on the 15th
of April, instant, between General Don Máximo Jerez, minister
plenipotentiary from this Republic, and General Don José Maria
Cañas, minister plenipotentiary from the Republic of Costa Rica,
with the intervention of Colonel Don Pedro Rómulo Negrete, minister
plenipotentiary from Salvador, is hereby approved.”
On the 19th August, 1858, the constituent assembly adopted the new
constitution, of which it is only needful to cite the first article,
viz:
“The Republic of Nicaragua is the same which was, in ancient times,
called the Province of Nicaragua, and, after the independence, State
of Nicaragua. Its territory is bounded on the east and northeast by
the Sea of the Antilles; on the north and northwest by the State of
Honduras; on the west and south by the Pacific Ocean, and on the
southeast by the Republic of Costa Rica. The laws on special limits
form part of the constitution.”
No further formal ratification of the treaty of limits was ever had;
but the arguments submitted by Costa Rica cite a number of instances
in which the Government of Nicaragua, during the period between 1858
and 1870, recognized the treaty as a valid and binding
instrument.
Since 1870 the Government of Nicaragua has contended that the treaty
is invalid; and that view is now urged upon three distinct grounds,
which are stated as follows in the argument submitted on its
behalf:
“The Government of Nicaragua affirms the invalidity of the treaty of
1858, and insists that it ought not to be bound thereby, for the
reason—
- “First. That it has not received
that sanction which the constitution of the state of
Nicaragua requires to give effect to, and validate, a treaty
of its character.
- “Second. It has not been ratified
by the government of San Salvador, so as to give effect to
the guaranties on behalf of that Government of the tenth
article of the treaty.
- “Third. That the pretended
ratifications of the treaty were exchanged before the treaty
had been submitted to the Congress of Nicaragua, and it was
not approved by the first Congress of Nicaragua until after
the expiration of the forty days provided for the exchange
of ratifications in Article xii.”
I shall consider each of these three reasons in order.
I.
The argument very forcibly presented on behalf of Nicaragua to
establish the first ground of objection—the Jack of such a sanction
as was required by the constitution to give effect to, and validate,
a treaty of the character of the one in question—is as follows: The
constitution of 1838 was in full force on the 15th of April, 1858;
that constitution fixed the boundaries of Nicaragua; the treaty of
limits curtailed the boundaries so fixed by the constitution; it was
therefore, “in direct and flagrant violation of the fundamental law
of the state, and to have validity must receive the same formal
ratification that an amendment to the constitution itself demands;”
the constitution provides that an amendment adopted by one
legislature in the manner [Page 465]
prescribed, by two-thirds vote of both houses, “shall not be
considered as valid nor form part of the constitution until it has
received the sanction of the next legislature the treaty of limits
was never sanctioned by a second legislature; therefore it is not
valid.
This argument, it will be perceived, rests wholly upon the
fundamental assumptions that the constitution of 1838 was in force,
and that it fixed the boundaries of Nicaragua If, as a matter of
fact, that constitution was not in force, or if the boundaries were
not definitely fixed by its provisions, then the whole argument
falls; for the treaty is then a mere treaty of limits, settling
disputed boundaries, and is cot one involving a cession of territory
and an amendment to the constitution. It is not pretended that a
treaty fixing boundaries requires, on general principles, any
extraordinary sanction.
The general doctrine that in determining the validity of a treaty
made in the name of a state, the fundamental laws of such state must
furnish the guide for determination, has been fully and ably
discussed on the part of Nicaragua, and its correctness may
certainly be admitted. But it is also certain that where a treaty
has been approved by a government, and an effort is subsequently
made to avoid it for the lack of some formality, the burden is upon
the party who alleges invalidity to show clearly that the
requirements of the fundamental law have not been complied with. In
my judgment, Nicaragua has failed in establishing a case under this
rule,
In the first place, it may well be doubted whether the constitution
of 1838 can be said to have been in full force and effect at the
time of the execution of the treaty on the 15th April, 1858, The
legislative power was then vested in a constituent assembly—a body,
it would seem, expressly chosen for the purpose of amending the
constitution in any way it saw fit. To say that such a body could
not adopt a decree which in effect modified the constitution, is to
deny to it the power to carry out the very objects for which it
existed.
Moreover, the constitution framed by the assembly, and promulgated on
the 19th August, 1858, defining the boundaries of Nicaragua, adds
that “the laws on special limits form part of the constitution.” If
therefore the decree of the 28th May, 1858, and the other, acts of
the assembly, were in any respect in sufficient as involving some
unconstitutionality, the defect was supplied by practically
embodying the treaty of limits, and the decree approving it, in the
new constitution, thus giving the highest sanction possible to this
legislation.
But whether or not the constitution of 1838 was in full force in
April and May, 1858, I am clearly of opinion that it did not
definitely fix the boundaries of the state. The power of defining
absolute boundaries by a constitution is not denied. The question is
merely whether the constitution of 1838 did in fact contain such a
definition of the boundaries of Nicaragua as to preclude their
adjustment by any ordinary treaty.
The provisions of that constitution respecting boundaries are as
follows:
“Article 2. The territory of the State is
the same as was formerly given to the Province of Nicaragua; its
limits being on the east and northeast the Sea of the Antilles; on
the north and northwest the State of Honduras; on the west and south
the Pacific Ocean; and on the southeast the State of Costa Rica. The dividing lines with the bordering States shall
be marked by a law which will make a part of the
constitution.”
Thus it appears that “the dividing lines with the bordering States”
were expressly not defined. It was plainly the intention to leave
the constitution incomplete in this respect, though a means of
completing it was provided by allowing the passage of an ordinary
law by a single legislature. It is not pretended that any law
marking the boundary on the side of Costa Rica was passed before the
execution of the treaty of limits. The decree approving the treaty
is the only attempt, so far as appears, to comply with this
provision of the constitution. The statement that the boundary is
“on the southeast the State of Costa Rica” defines nothing. What
were the limits of Costa Rica in 1838 was a matter of dispute. No
precise decision was possible, and I have already expressed my
opinion that the evidence laid before the arbitrator is altogether
too vague to afford grounds for any satisfactory judgment. The
constitution of 1838, therefore, did not fix the boundaries of
Nicaragua definitely.
These views are strengthened by a consideration of the evidence
adduced on the part of Costa Rica to prove acquiescence by Nicaragua
for ten or twelve years in the validity of the treaty. I do not
regard such acquiescence as a substitute for ratification by a
second legislature, if such had been needed. But it is strong
evidence of that contemporaneous exposition which has ever been
thought valuable as a guide in determining doubtful questions of
interpretation.
I conclude, therefore, that the first ground of objection stated by
Nicaragua is untenable.
II.
The second ground of objection urged by Nicaragua to the validity Of
the treaty is that it has not been ratified by the Government at San
Salvador, so as to give effect to the guaranties on behalf of that
Government of the tenth article of the
treaty.
[Page 466]
It is argued, in support of this objection, that the guaranty of the
mediating government against hostilities on the river and lake was
of great importance to Nicaragua; that it might well have been the
controlling consideration in the mind of the negotiator of the
treaty that led him to agree to the relinquishment of claims to
great tracts of territory; that the failure of San Salvador to
ratify this treaty took from it one of the chief considerations
moving to Nicaragua; and that, the consideration never having taken
effect, the treaty never became of valid or binding force. It is
added that this was in effect a tripartite treaty, and unless all
the parties became bound neither of them was.
In my opinion this argument is unsound. The treaty was not
tripartite, but was between Costa Rica and Nicaragua only, with an
independent and separable clause of guaranty as to a single feature
of the arrangement on the part of San Salvador. Without the guaranty
the treaty was complete as between the two principals, if they saw
fit to accept it in that shape. The non-ratification by the Republic
of San Salvador was known to the Government of Nicaragua when
ratifications were exchanged with Costa Rica. It follows therefore
that Nicaragua never lost any of the considerations which induced
her to consummate, by an exchange of ratifications, the negotiations
for the treaty.
The facts may be briefly recalled.
On the 15th April, 1858, the treaty of limits was signed. In form it
is a convention agreed upon by the representatives of Costa Rica and
Nicaragua, and declares that they having exchanged their respective
powers, “which were examined by Hon. Senor Don Pedro R. Negrete,
exercising the function of fraternal mediator in these
negotiations,” had agreed to and adjusted the terms of the treaty.
The treaty itself, after reciting the desire of Costa Rica and
Nicaragua for peace, fixes the boundary line between them; provides
for a survey of the line, and for the common use and defense of the
Bay of San Juan del Norte and Salinas Bay, and of that portion of
the San Juan River on which Costa Rica borders; grants the use in
common of the Punta de Castilla until Nicaragua recovers full
possession of all her rights in the port of San Juan del Norte;
forbids the levying of custom duties at Punta de Castilla while San
Juan del Norte remains a free port; defines the jurisdiction over
and right of navigation on the waters of the San Juan River; secures
existing contracts of canalization or public transit made by the
Government of Nicaragua and regulates the execution of future
contracts; and neutralizes the port and river of San Juan and the
Lake of Nicaragua in the event of war between Costa Rica and
Nicaragua. Then follows this:
“Article X. The stipulation of the
foregoing article (that relating to neutrality) being essentially
important for the proper custody of both the port and the river
against foreign aggression, which would affect the general interests
of the country, the strict performance thereof is left under the
special guaranty, which in the name of the mediator government its
minister plenipotentiary herein present is ready to give and does
hereby give in use of the faculties vested in him for that purpose
by his Government.”
Finally, Costa Rica and Nicaragua mutually give up all claims against
each other, and “the two contracting parties “waive all claims for
damages which either have against the other.
This instrument is plainly neither in form nor in substance
tripartite. The “two Governments,” the “two contracting parties
“spoken of in the treaty, are always Costa Rica and Nicaragua, never
San Salvador. San Salvador is not in form a contracting party at
all. And in substance that Government is not a party to the
agreement, the clause containing the guaranty being entirely
separable from all the rest.
As a proposition of international law, it may be regarded as settled
that a guaranty is always merely subsidiary to the principal
contract.
“Le traité par lequel un état se porte garant d’un traité conclu
entre deux autres puissances, est un traité accessoire destiné à
assurer l’exécution du traité principal.” (Bluntschli, 430 note, Lardy’s trans.)
“Lagarantie peut être comprise dans les stipulations annexées au
traité principal qu’on veut garantir, et devient alors une
obligation accessoire.” (Vattel, Droit des Gens. Ed. 1863, Liv. II,
ch. 16, § 240; note by Pradier Fodéré, the editor.)
“Lorsque la garantie est destinée à assurer l’inviolabilité d’un
traité, elle forme toujours une obligation et un traité accessoiré
(pactum accessorium), même quand elle
ferait partie de Facte principal.” (Klüber, Droit des Gens., §
158.)
It follows that the clause of guaranty in the treaty of limits is no
part of the principal agreement, and that on general principles the
rest of the treaty would not stand or fall with this subsidiary or
accessory contract.
The necessity for ratification by contracting powers may be fully
admitted. But even conceding to it as high an importance as the
execution of deeds by individuals, the failure of a guarantying
State to ratify will not necessarily invalidate a treaty which the
principal contracting parties have concluded by an exchange of
ratifications as between themselves.
[Page 467]
The analogy of individual deeds may serve to illustrate the point now
under discussion. The case may readily he imagined of a deed between
two parties as principals, with a third party as guarantor. Leases
of this character are not infrequent. If such a deed were prepared
by the agents of the three parties, and if the two principal parties
were to sign, seal, acknowledge, and formally deliver to each other
duly-executed duplicates of the deed, without waiting for the
signature of the guarantor, it is too plain for argument that
neither could subsequently object, and claim the right to rescind,
because the deed had not been executed and delivered by the
guarantor.
So in this case. The Presidents of Costa Rica and Nicaragua in
person, on the 26th April, 1858, formally exchanged ratifications of
the treaty, without waiting for San Salvador. The arguments now
advanced by Nicaragua as establishing the invalidity of the treaty
might perhaps have been urged as reasons for refusing to exchange
the ratifications until San Salvador was ready to unite in the act.
But the Government of Nicaragua was silent when it ought to have
spoken, and so waived the objection now made. It saw fit to proceed
to the exchange of ratifications without waiting for San Salvador.
The treaty was complete without Article X. To all the other articles
and stipulations it contained Costa Rica and Nicaragua alone might
fully bind themselves. They did so, irrevocably, by a formal
exchange of ratifications; and neither may now be heard to allege,
as reasons for rescinding this completed treaty, and facts which
existed and were known at the time of its consummation.
I conclude, therefore, that the second ground
of objection stated by Nicaragua is untenable.
III.
The third ground of objection urged by Nicaragua to the validity of
the treaty is “that the pretended ratifications of the treaty were
exchanged before the treaty had been submitted to the Congress of
Nicaragua, and it was not approved by the first Congress of
Nicaragua until after the expiration of the forty days provided for
the exchange of ratifications in Article xii.”
It will be remembered that on the 5th February, 1858, the constituent
assembly of Nicaragua passed a decree by which the Executive was
“amply authorized” to treat with Costa Rica “without the necessity
of ratification by the legislative power; “and that it was further
decreed that such treaties of limits as the Executive might adjust
should be final, if in accordance with certain separate
instructions. Acting under this grant of power, the President of
Nicaragua concluded and ratified the present treaty on the 26th
April, 1858, eleven days after its signature by the
plenipotentiaries, without “ratification by the legislative power.”
On the 28th of May, 1858, the constituent assembly adopted a decree
approving the treaty; and this decree was signed by the President on
the 4th June, 1858.
The argument now presented by Nicaragua is twofold, and raises two
points, first, that the treaty is invalid
because ratifications were exchanged before approval by the
assembly, and, second, that it is invalid
because such approval was given more than forty days after
signature.
As to the first of these points, it would perhaps be enough to say
that Nicaragua can not now seek to invalidate the treaty on any mere
ground of irregularity in the order of its own proceedings. If its
legislature did in fact approve the treaty that is enough for the
present purpose. Whether such approval was expressed before or after
the exchange of ratifications is an immaterial matter now, certainly
so far as Nicaragua is concerned.
But it does not appear that there was any real irregularity in these
proceedings. The full text of the Nicaraguan constitution of 1838
not being contained in the arguments submitted to the arbitrator, it
is not made clear just what restrictions upon the treaty-making
power that instrument imposed. Ratification by legislative authority
is not always required, even in constitutional governments. The
necessity for legislative ratification is not to be presumed, but
must be established as a fact. Still less can there be any
presumption as to the form and manner in which the legislative
sanction is to be expressed. In the present instance the constituent
assembly, a body of extensive powers, expressed in advance its
approval of any treaty of limits that might be concluded by the
Executive upon certain bases. It is not shown that the authority so
given was exceeded, and it can not be said, in the absence of an
express prohibition, that this mode of dealing with the subject was
improper.
Again, the fact of the subsequent approval of the treaty by the
assembly is satisfactory proof that that body approved not only the
terms of the instrument, but also the manner in which the Executive
had exercised the authority conferred by the decree of the 5th
February, 1858. The time and manner of exchange of ratifications was
before the assembly, and it was fully aware that the time agreed
upon for exchange had passed. Its action, under these circumstances,
shows that it was of the [Page 468]
opinion, that the treaty had been legally and in due time ratified
by the President, in pursuance of the special powers conferred upon
him.
In any event, all irregularities would seem to have been effectually
cured by this subsequent approval of the constituent assembly. Ratihabitio retrotrahitur, et mandato
equiparatur, is a recognized maxim of municipal law; and
the reasons of that rule may fairly be regarded as applying to cases
like the present.
That irregularities and defects in the formalities of ratification
may be supplied and made good by subsequent acquiescence in and
approval of the treaty, is laid down by Heffter (Droit
International, § 87 ffin.):
“Mais il est constant qu’elle (i. e.,
ratification) peut être suppléée par des actes équivalents, et
notamment par l’exécution tacite des stipulations arretées.”
And this opinion is cited by Pradier-Fodéré in his translation of
Grotius (Vol. ii, p. 270, note 1). See
also Hall’s International Law, page 276.
The second point—that the legislative sanction was not given until
after the expiration of the forty days fixed by the treaty for the
exchange of the ratifications— seems clearly untenable. Costa Rica,
and not Nicaragua, might have complained of this delay. Assuming
that subsequent legislative approval was needed, Costa Rica might,
if it had desired to do so, have declared the negotiations at an end
on the expiration of the forty days. But it was not bound to do so.
It had a perfect right to waive this limitation of time. Either
party to a treaty may extend the time of the other, either by
express agreement or by acts indicating acquiescence. Nicaragua
cannot be permitted to say, as she does in effect say, in this
branch of her argument, “it is true that this treaty was approved
unreservedly by both executive and legislative branches of the
Government; but such an approval is worthless, as it was expressed
not forty but forty-three days after the signature of the
treaty.”
The fact of approval being established, the
time of approval is immaterial, provided
the other party by its acquiescence has seen fit to waive delay.
I conclude, therefore, that the third ground
of objection stated by Nicaragua is untenable.
And having examined in detail the three reasons urged by Nicaragua
for holding the treaty invalid, and finding all these reasons
untenable, I conclude that the arbitrator should decide in favor of
the validity of this treaty.
G. L.
Rives.
Department of
State, March 2, 1888.
