File No. 817.812/22.
The Minister of Costa Rica to the Secretary of State.
Washington , April 17, 1913 .
Mr. Secretary: My Government has learned, although in an informal way, that during the latter part of February last there was submitted to the consideration of the Senate of the United States a contract made between the Governments of Nicaragua and Washington for the construction of an interoceanic canal through the former Republic.
This information has caused great surprise to my Government, as the transaction to which it refers could not have been carried out without flagrant violation of the clear treaties now in force which estop Nicaragua from entering into any interoceanic canal agreement without previously consulting Costa Rica in one instance and without its consent in another.
Article 8 of the boundary treaty entered into between Costa Rica and Nicaragua on April 15, 1858, reads as follows:
If the contracts for canalization or transit entered into by the Government of Nicaragua previous to its being informed of the conclusion of this treaty should happen to be invalidated for any reason whatever, Nicaragua binds herself not to enter into any other arrangement for the aforesaid purposes without first hearing the opinion of the Government of Costa Rica as to the disadvantages which the transaction might occasion the two countries; provided that the said opinion is rendered within the period of 30 days, after the receipt of the communication asking for it, if Nicaragua should have said that the decision was urgent and if the transaction does not injure the natural rights of Costa Rica, the opinion asked for shall be only advisory.
The arbitral award made by His Excellency Grover Cleveland, President of the United States of America, on March 22, 1888, declares, first, that the said boundary treaty of 1858 is valid, and, next, after duly construing the tenth point of the eleven of doubtful meaning which Nicaragua proposed in the controversy, decides as follows:
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 8 of the Boundary Treaty of April 15, 1858. 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, 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 [Page 1023] 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.
Upon a careful reading of the foregoing documents, your excellency, will agree that the Republic of Nicaragua has not been empowered to conclude the convention referred to, submitted today to the consideration of the Senate; and that such incapacity, solemnly declared in 1888, as stated before, by the Chief Executive of the United States of America, fundamentally annuls said transaction.
But my Government not only has incontrovertible reasons de jure for opposing the treaty, but powerful, inflexible reasons de facto also compel it to intervene in the matter, because, as your excellency undoubtedly knows very well, it is impossible from every point of view to build an interoceanic canal in Nicaragua without affecting Costa Rican lands and waters to a greater or less extent.
In view of the foregoing reasons, and complying with the instructions of my Government, I very respectfully beg leave to make, in its name, to the enlightened Government at Washington, through your excellency, a formal protest against the perfecting of the convention for canal purposes to which I have referred, feeling assured that the high ideals of equity which invariably actuate the Government of the United States of America will cause it to adopt in this case a decision, which will be in perfect accord with justice and with the traditional friendship with which the Government of Costa Rica has always been honored by the great American nation,
I have [etc.].