File No. 817.812/76.
The Secretary of State to the Minister of Costa Rica.
Washington , August 1, 1914 .
Sir: While the communication from your Government to the Department of April 17, 1913,9 has been answered verbally in conversations with you, it has been called to my attention that your note has not received a written reply; and I now beg to embody in this letter the substance of the Department’s position on the subject of your Government’s protest against the proposed treaty between the United States and Nicaragua.
The Treaty of April 15, 1858, between Costa Rica and Nicaragua, to which your note refers, has had careful consideration, and you may be sure that this Government has no intention to produce a violation of any of its provisions, if indeed the provisions of that treaty, referred to in your note, may be considered as still existing.
It is not perceived that Nicaragua, by the proposed treaty with the United States, has done or contemplates doing anything that can be regarded as a violation of the Treaty of 1858. The pending treaty between Nicaragua and the United States provides for the sale of an option on a canal route, which may lie entirely within and affect only the territory of Nicaragua, or which may be along the route which, for a part of the way, may follow the boundary line between that country and Costa Rica. Even without a treaty between Costa Rica and Nicaragua, it is not perceived how the latter could convey any rights not hers to convey, or that she could effectually convey any of the territory or substantive rights of Costa Rica; nor is it perceived that by the pending treaty with the United States Nicaragua undertakes to convey any rights which belong to the Government of Costa Rica.
An examination of the Treaty of 1858 fails to disclose that the parties thereto intended to make the development or improvement of the one dependent on the consent of the other. It is only where their certain stated joint and common interests are directly affected that either can be said to be under any obligation to consult the other. The interests of Costa Rica which the Treaty of 1858 contemplated, and about which Costa Rica should be consulted when the same are directly affected, are from an examination of the treaty clearly not attempted to be granted or prejudiced by the proposed treaty of Nicaragua with the United States.
According to the award made by Mr. Cleveland in 1888, as quoted in your note, it appears that the consultive right of Costa Rica was to exist only “where the territory belonging to Costa Rica is occupied or flooded, or where there is encroachment upon certain 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 its navigation, or that of its branches, where Costa Rica is entitled to navigate the same.” It can hardly be contended that the proposed treaty even remotely affects any of these rights claimed for Costa Rica. As before stated, it is only when a canal constructed through Nicaragua would occupy or flood Costa Rican territory or encroach [Page 965] injuriously upon harbors in which Costa Rica has substantive rights, or obstruct the navigation of a stream which Costa Rica may be entitled of right to navigate, that Costa Rica could claim to be consulted under asserted rights under the Treaty of 1858. But the option secured by the United States from Nicaragua by the pending treaty can not be said to remotely affect any of these rights asserted by Costa Rica under the Treaty of 1858. The claim that an interoceanic canal, when constructed through Nicaragua, might eventually affect some of the territory or rights of Costa Rica is too speculative and conjectural to serve as a basis of a present protest against the grant of the option secured by the treaty with Nicaragua.
The sale of the option does not necessarily involve the immediate construction of a canal; no time is set for the beginning of the work; the Government of the United States secures the right to build a canal in the future, a right to be exercised at any time whenever, in the opinion of this Government, the exigencies make its construction advisable.
Permit me also to direct the attention of your Government to the fact that on December 1, 1900, Nicaragua and Costa Rica separately signed protocols of agreement with the United States, whereby each of the said Governments in the protocol signed by it became engaged to enter into negotiations with the United States to settle the plans and agreements in detail found necessary to accomplish the ownership and control by the United States of an interoceanic canal route from San Juan del Norte on the Caribbean Sea to Brito on the Pacific Ocean, for such of its territory as might be found necessary or advisable on which to construct a canal. The protocol with Nicaragua was signed with the knowledge of and without dissent by Costa Rica, and the principle that the United States might deal with each of said Governments separately in respect to the acquisition of rights and grants for an interoceanic canal was accepted by Costa Rica. Wherefore it appears to the Department that, whatever may have been the treaty agreements between Costa Rica and Nicaragua, the action, of the two Governments in separately agreeing to enter into separate negotiations with the United States for the cession of so much of its territory as might be found necessary or advisable for an interoceanic canal, will estop Costa Rica from objecting to negotiations on the part of the United States with Nicaragua for the cession of any of the latter’s territory, lands, waters, or rights, which may be found necessary or convenient for the construction of such a canal, especially where the negotiations comprehend merely the granting of an option by Nicaragua to the United States for a canal route through its territory. It appears to the Department that whenever it shall be determined that the construction of an interoceanic canal through Nicaragua shall comprehend any of the territory or substantive rights of Costa Rica, it will then be time enough for the United States and Costa Rica to consider negotiations for the acquisition by the former of such territory or rights of the latter as may be found to be involved, and I wish to renew the suggestion made to you in our conversation that the Department will consider entering into such negotiations with Costa Rica, when she shall signify a desire to enter thereupon.
Accept [etc.]