Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 7, 1911
File No. 417.00/115.
[Untitled]
Managua, December 16, 1911.
Sir: I have the honor to report that the Nicaraguan Government of its own initiative having reached the conclusion that European claimants should first exhaust the remedies afforded by Nicaraguan courts, including the mixed claims commission, before presenting demands through diplomatic channels, has forwarded to the ministers to Central America of France, Germany, Great Britain, Italy, and Spain the identic note of which I inclose herewith a copy and translation. Copies of this note have been delivered to all consular representatives in this city, have been published in the local newspapers, and forwarded to the other Governments in Central America for their information.
I have, etc.,
Identic Circular Note of the Nicaraguan Government to European Towers.
Managua, Nicaragua, December 9, 1911.
Mr. Minister: Owing to the grave situation, aggravated by a long civil war, in which the country found itself as the result of a prolonged period of administrative abuses which culminated in the illegal distribution of the national wealth and in the immoderate augmentation of the debt through claims and concessions onerous to the country, some in the hands of foreigners, there has devolved upon the Government which emerged from the revolution the fundamental and immediate duty of giving its especial attention to political and constitutional reorganization of the Republic and the rehabilitation of its finances upon a stable basis, having in mind the refunding of its debt and the meeting of its obligations through a just and equitable settlement of all pending economic questions.
To this end a loan has been contracted in the United States to afford the Republic the necessary means for the prompt fulfilment of its obligations, securing at the same time permanent domestic peace and welfare.
In order to accomplish such purposes, the Government of the Republic in exercise of its sovereign rights, and by a decree of the National Constituent Assembly sanctioned by the Executive the 18th of May of the current year, established in this capital a tribunal or mixed claims commission which will ascertain and adjudicate, without further recourse, all pending claims against the Government of Nicaragua, including those which may arise out of the cancellation or suspension of the monopolies, concessions, lease’s, or whatever other classes of contracts made by former Governments of the Republic.
Subsequently, and by a law of the same National Constituent Assembly with the due approval of the Executive on October 9 of the current year, various amendments to the preceding decree were made, some of which limit the scope of the mixed claims commission to cognizance of such claims as may arise or have arisen against the Government of Nicaragua from the beginning of the administration of President Zelaya until the commission closes its work, including claims which arose out of the belligerent operations of either faction during the recent civil war, giving preference, in the order of examination, to those arising out of military loans, requisitions or exactions of the factions during the recent civil war; empowering the commission, whenever it may deem [Page 647] best, and to facilitate the better examination of these claims, to meet, after due notice to the parties interested, in places other than the capital.
For the better understanding of your excellency I herewith inclose a copy of the decree establishing the mixed claims commission, and a copy of the decree amendatory thereof, seizing this opportunity to call to the attention of your excellency the fact that the mixed claims commission enjoys sole jurisdiction to declare valid or invalid all the claims referred to.
In establishing the tribunal or mixed claims commission in its present form the Government of Nicaragua believed it had found a satisfactory solution of pending claims, and of safeguarding equally the legitimate interests of the State and of foreign or domestic claimants.
The high respectability of the members that compose it, and the significant fact that two of its judges are foreigners of recognized ability and of unquestioned integrity, neither of whom had any part in the controversies and struggles of which unhappily the country has been the scene during a long period of political and economic disorganization, vests the tribunal with a character of such unimpeachable impartiality that it could hardly become a question for discussion.
That foreigners must observe the laws of the country wherein they reside is a principle of public law. Article 13 of the Nicaraguan constitution of 1893 provides that foreigners can not make claims or exact indemnity from the State except in the cases and in the form permitted to Nicaraguans; and article 8 of the constitution of 1905 provides that Nicaragua is under no obligation to foreigners and recognizes no responsibilities other than those which by the constitution and law it assumes in reference to Nicaraguans. Applying then the principles laid down, it is evident that foreigners on entering the republic submit themselves thereby to the laws in force on an equal footing with nationals, and under no circumstances can they, in violation of the law, have any rights that would give them advantage over Nicaraguans.
It is also an admitted principle of international law that parties who are aggrieved by acts of the public authorities which they consider unlawful, are bound to exhaust every legal means given by the constitution of the country to obtain due reparation and justice. But if they, being foreigners and perfectly entitled to appeal to the courts of law, neglect to do so, they are not entitled to invoke the intervention of their government to obtain for them indemnity. Protests, whether made by the parties themselves or by their representatives, can not be held to supply the place of an appeal to the tribunal competent to deal with the subject matter, nor do they render the right of intervention complete. It is in accordance with these principles that article 11 of the constitution of 1905 provides that foreigners can not have recourse to diplomatic channels except in cases of denial of justice.
This being a generally accepted doctrine I feel that no further explanation is necessary, especially because there is no international law obliging a nation to take upon itself the collection of the claims of its citizens against another nation when within the reach of these citizens are sufficient means for obtaining justice in the country without the intervention of their government.
Hence, and after mature consideration upon so important a subject, the Government of Nicaragua deems it proper to inform the interested powers that pending claims against the Government of Nicaragua, including, those which may arise out of the cancellation or suspension of monopolies, concessions, leases, or whatever other class of contracts made from the beginning of Gen. Zelaya’s administration until the closing of the commission, as well as claims which may be presented as a result of the operations of-either belligerent faction during the recent civil war, must be submitted for ascertainment and adjudication to the tribunal or mixed claims commission that was established for this purpose by decree of May 17, 1911, whenever said claims by their nature fall within the scope of its jurisdiction; it being evident from the foregoing that only in the remote case of not being heard, which is not to be feared, given the lofty attributes of impartiality and integrity of this high tribunal of the Republic, would there be cause for resorting to the extreme means of diplomatic negotiation for the determination of these claims.
I avail, etc.,