No. 314.
Award of the Arbitrator, the President of the United States, upon the validity of the Treaty of Limits of 1858 between Nicaragua and Costa Rica.

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:

  • First The above-mentioned Treaty of Limits, signed on the 15th day of April, one thousand eight hundred and fifty-eight, is valid.
  • Second. The Republic of Costa Rica under said treaty and the stipulations contained in the sixth article thereof, has not the right of navigation of the river San Juan with vessels of war; but she may navigate said liver with such vessels of the revenue service as may be related to and connected with her enjoyment of the “purposes of commerce” accorded to her in said article, or as maybe necessary to the protection of said enjoyment.
  • Third. With respect to the points of doubtful interpretation communicated as aforesaid by the Republic of Nicaragua, I decide as follows:
    1.
    The boundary line between the Republics of Costa Rica and Nicaragua, on the Atlantic side, begins at the extremity of Punta de Castilla at the mouth of the San Juan de Nicaragua River, as they both existed on the 15th day of April, 1858. The ownership of any accretion to said Punta de Castilla is to be governed by the laws applicable to that subject.
    2.
    The central point of the Salinas Bay is to be fixed by drawing a straight line across the mouth of the bay and determining mathematically the centre of the closed geometrical figure formed by such straight line and the shore of the bay at low-water mark.
    3.
    By the central point of Salinas Bay is to be understood the centre of the geometrical figure formed as above stated. The limit of the bay [Page 458] towards the ocean is a straight line drawn from the extremity of Punta Arranca Barba, nearly true south to the westernmost portion of the land about Punta Sacate.
    4.
    The Republic of Costa Rica is not bound to concur with the Republic of Nicaragua in the expenses necessary to prevent the bay of San Juan del Norte from being obstructed; to keep the navigation of the river or port free and unembarrassed, or to improve it for the common benefit.
    5.
    The Republic of Costa Rica is not bound to contribute any proportion of the expenses that may be incurred by the Republic of Nicaragua for any of the purposes above mentioned.
    6.
    The Republic of Costa Rica can not prevent the Republic of Nicaragua from executing at her own expense and within her own territory such works of improvement, provided such works of improvement do Hot result in the occupation or flooding or damage of Costa Rica territory, or in the destruction or serious impairment of the navigation of the said river or any of its branches at any point where Costa Rica is entitled to navigate the same. The Republic of Costa Rica has the right to demand indemnification for any places belonging to her on the right bank of the river San Juan which may be occupied without her consent, and for any lands on the same bank which may be flooded or damaged in any other way in consequence of works of improvement.
    7.
    The branch of the river San Juan known as the Colorado River must not be considered as the boundary between the Republics of Costa Rica and Nicaragua in any part of its course.
    8.
    The right of the Republic of Costa Rica to the navigation of the river San Juan with men of war or revenue cutters is determined and defined in the second article of this award.
    9.
    The Republic of Costa Rica can deny to the Republic of Nicaragua the right of deviating the waters of the river San Juan in case such deviation will result in the destruction or serious impairment of the navigation of the said river or any of its branches at any point where Costa Rica is entitled to navigate the same.
    10.
    The Republic of Nicaragua remains bound not to make any grants for canal purposes across her territory without first asking the opinion of the Republic of Costa Rica, as provided in Article viii of the Treaty of Limits of the 15th day of April, one thousand eight hundred and fifty-eight. The natural rights of the Republic of Costa Rica alluded to in the said stipulation are the rights which, in view of the boundaries fixed by the said Treaty of Limits, she possesses in the soil thereby recognized as belonging exclusively to her; the rights which she possesses in the harbors of San Juan del Norte and Salinas Bay; and the rights which she possesses in so much of the river San Juan as lies more than three English miles below Castillo Viejo, measuring from the exterior fortifications of the said castle as the same existed in the year 1858; and perhaps other rights not here particularly specified. These rights are to be deemed injured in any case where the territory belonging to the Republic of Costa Rica is occupied or flooded; where there is an encroachment upon either of the said harbors injurious to Costa Rica; or where there is such an obstruction or deviation of the River San Juan as to destroy or seriously impair the navigation of the said river or any of its branches at any point where Costa Rica is entitled to navigate the same.
    11.
    The Treaty of Limits of the 15th day of April, one thousand eight hundred and fifty-eight, does not give to the Republic of Costa Rica the right to be a party to grants which Nicaragua may make for interoceanic [Page 459] canals; though in cases where the construction of the canal will involve an injury to the natural rights of Costa Rica, her opinion or advice, as mentioned in Article VIII of the treaty, should be more than “advisory “or “consultative,” It would seem in such cases that her consent is necessary, and that she may thereupon demand compensation for the concessions she is asked to make; but she is not entitled as a right to share in the profits that the Republic of Nicaragua may reserve for herself as a compensation for such favors and privileges as she, in her turn, may concede.

In testimony whereof, I have hereunto set my hand and have caused the seal of the United States to be hereunto affixed.


Grover Cleveland.

By the President:
T. F. Bayard,
Secretary of State.
[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.

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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.

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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.