File No. 817.812/49.
The Minister of Salvador to the Secretary of State.
Washington , October 21, 1913 .
Excellency: My Government has heard that the Government of Nicaragua has signed a treaty with the United States for the building of an interoceanic canal over the San Juan River and Lake Nicaragua and that the convention grants to the United States, among other concessions, that of a ninety-nine years lease, [Page 1028] renewable at the latter’s pleasure, of a point within the Gulf of Fonseca and on the Nicaraguan Coast, for a naval station.
The geographical and juridical situation of the Gulf or Bay of Fonseca is such that the lease of any one of its parts must necessarily affect the other.
From the day when, at the beginning of the 16th century, the Spanish discoverers who occupied and conquered Central America came upon the considerable expanse of water that penetrates the land from Amapala Point in our territory to Cosiquina in Nicaragua, the bay or gulf which was then named “Fonseca,” after the President of the Council of the Indies which from Spain ruled those countries in behalf of the Crown of Spain, has not ceased, even for a day, to belong to three riparian countries—Salvador, Honduras and Nicaragua—under whose sovereignty and jurisdiction the said Gulf of Fonseca was and remains.
During the three centuries of Spanish domination in that part of the continent, the three countries above named held the aforesaid bay without objection or opposition from any quarter, asserting their dominion through the defense offered on more than one occasion by the peoples of Salvador, Honduras and Nicaragua to the filibustering hordes which in those centuries preyed on the Central American coasts and worked their way up to the heart of the gulf in their intention to settle on Tigre Island.
These historical facts, and many others it seems needless to call to mind, suffice to demonstrate that the Gulf of Fonseca undoubtedly belongs in the class of bays styled “historic” by international law and on that ground alone subject to the exclusive dominion and sovereignty of the riparian States no matter how far they run inland or how wide at the mouth, even though it may exceed the six nautical miles recognized by international law for territorial bays, provided that, as is the case with the Gulf of Fonseca, the riparian countries shall have asserted their sovereignty under circumstances that depend on geographical configuration, use from time out of mind and, above all, self-defense.
The bay or gulf of Fonseca therefore possesses the historical character in the same manner and by the same right as the Chesapeake and Delaware bays in the United States and Conception, Chaleurs and Misamichi bays in British America, which have been recognized as such. The rights of the United States to the former and of Great Britain to the latter have been recognized and sanctioned by treaties and arbitral awards as an indisputable title of ownership and sovereignty.
These same rights held by the Spanish Government from time immemorial over the waters embraced inter fauces terrae, whether or not territorial, that form the Gulf of Fonseca, were transferred by virtue of its independence to the Federal Republic of Central America which comprised the said gulf within its maritime limits, as successor to all the rights of dominion and sovereignty which within its territory belonged to the Crown of Castile. And during the life of the Central American Federal Government the possession and dominion of the Gulf of Fonseca were asserted by many acts of legislation and national jurisdiction, laws being enacted in regard to harbors, police and many other matters.[Page 1029]
When the bond of union between the five States that formed the Federation was sundered in 1839, the States of Salvador, Honduras and Nicaragua remained the joint lawful owners and sovereigns of the Gulf of Fonseca as they now hold it, for no convention or agreement has yet been arranged to bring to an end the condition of undivided and joint ownership that the three riparian States found as preëxisting when they erected themselves into free and independent nations, even if there were some occasions when attempts were made to do so, as was the case with the boundary treaty, which failed to be perfected, signed on April 10, 1884, between Salvador and Honduras, and provided in its Article 2, with a view to doing away with indivision, that: “the maritime boundary line between Salvador and Honduras starts from the Pacific, cuts in half the distance between Meanguera, Conchaguita, Martin Pérez Islands and Zacate Point of Salvador, and Tigre, Zacate Grande, Inglesa, and Exposition Islands of Honduras and ends at the mouth of the Goascorán.” The treaty never went into effect having been rejected by the Congress of Honduras and the condition of indivision and community was left as it originally stood.
From the foregoing reasons and facts, the Government of the United States must have satisfied itself that my Government has a right to consider itself concerned in the contemplated lease of a part of the Gulf of Fonseca without the previous advice and consent of the other States which are joint owners and sovereigns, even if it be on the coast of Nicaragua.
In addition to these considerations, others arise, even more troublesome, to make Salvador and Honduras feel that they are wronged by the promised alienation of a part of the Gulf of Fonseca contained in the clauses of a hundred-year lease.
It is a principle of international law, based on universal equity, that a nation must refrain from acts which in their nature may endanger the existence or safety of the others. By virtue of that principle, nations are given the right to appropriate to themselves, even to the point of forbidding admittance, the gulfs and bays naturally defended by islands, sandbanks or reefs, or by the crossfire of cannons mounted on the headlands.
By the same rule it is agreed that bays whose mouths are not more than six nautical miles wide, for police and safety measures, and than ten miles, for fishery rights, are territorial bays forming part of the national territory, and the three miles of marginal sea are counted, seaward, from a straight imaginary line running from headland to headland.
Those principles must in reason apply to gulfs or bays that are the joint property of several States, regardless of the extent of their penetration inland and whatever their geographical configuration may be in respect to the marginal belt of territorial waters belonging to each riparian State.
The foregoing doctrines have been declared and accepted by Great Britain and the United States in the arbitral award made at The Hague, on September 7, 1910, on the fishery dispute.
“It has been contended by the United States,” says the award, “that the reunuciation applies only to bays six miles or less in width, ‘inter fauces terræ,’ those bays only being territorial bays, [Page 1030] because the three-mile rule is, as shown by this treaty, a principle of international law applicable to coasts which must be strictly and systematically applied to bays. But the tribunal is unable to agree with this contention, because admittedly the geographical character of a bay contains conditions which concern the interests of the territorial sovereign to a more intimate and important extent than do those connected with the open coast. Thus conditions of national and territorial integrity, of defense, of commerce and of industry are all vitally concerned with the control of the bays penetrating the national coast line.”1
The same award notes the treaty concluded in 1846 between Great Britain and the United States by which both ended the joint ownership and co-dominion of the waters of the Strait of Fuca, reciprocally and exclusively assigning to themselves the ownership thereof over an expanse as broad as seventeen miles from their respective shores.
The existence of various islands belonging to Salvador and Honduras within the gulf of Fonseca is another reason which lends force to the cited doctrines of law on which rest the rights of Salvador which my Government deems impaired by the concession it is proposed to give the United States for the establishment of a naval station, which would not only of necessity restrict the said rights but also jeopardize highly important interests of Salvador and Honduras.
It must be noted that the interests and rights ceded by Nicaragua to the United States are much less in value and valuation than those of Honduras and Salvador.
As a matter of fact Nicaragua has no port of entry within the gulf of Fonseca whose waters are common to the three States and the ports of Corinto and San Juan del Sur would not come within the zone of influence appertaining to the naval base it is proposed to establish within the gulf. That influence and the predominance flowing therefrom would strongly affect the exercise of the revenue and police rights of Honduras and Salvador which are of great importance to them and would be overridden by such measures of police and safety as the United States might order for the conservation and protection of its naval base.
And, in case of war between the United States and some other maritime power, the three countries that own the gulf would unavoidably become involved in grave danger and most serious difficulties to maintain and defend their neutrality; their territorial waters within the gulf being furthermore turned into a theater of belligerency and surrounded by all the calamities that go with armed conflicts.
These dangers and difficulties are enhanced when it is considered that Salvador and Honduras have, within the gulf, two large ports of entry, La Union and Amapala respectively, whereas Nicaragua has none in the bay. Through these ports, both States move a large part of their internal wealth and import staples of trade on a large scale; so that there would be no exaggeration in saying that Nicaragua, by its concession of a naval station, concludes with the United States a convention by which it touches, rather than its own patrimony, [Page 1031] the vital interests of Salvador and Honduras. Salvador cannot and must not assent to this unauthorized alienation of its rights.
On the other hand, the Constitutions of the Central American Republics, especially those of Honduras, Salvador and Nicaragua, have consecrated the principle that the said Republics are segregated parts of the former Central American Federation and hence recognize it as their positive duty to contribute to the restoration of the Central American nationality.
This fundamental duty, which the United States must recognize and respect, incapacitates them, in a manner and measure, from impairing the integrity of Central American territory without the concurrence of the other and more especially at points and in parts where two or more States have common rights and joint interests.
Such an alienation would require, besides the collective consent, the plebiscitary authorization of the people whose territorial and jurisdictional rights would be curtailed by the contemplated alienation.
On the strength of these grounds and motives, my Government has given me special instructions respectfully to lodge with your excellency’s Government a formal assertion of its rights and interests that would be affected or impaired if the concession were carried out in the Gulf of Fonseca for the establishment of a naval station at any point of the bay, even though it should lie solely within the small part of the coast held by Nicaragua on the said gulf.
On account of the community created by the condition of in-division in the jurisdictional and sovereign rights exercised over the Gulf of Fonseca by the three riparian States it became indispensable to mention the interests and rights of Salvador and Honduras in conjunction as contradistinguished from those of Nicaragua, in the course of this statement; but it is of course to be understood that this protest is exclusively confined to the interests and rights of Salvador in the aforesaid Bay of Fonseca.