File No. 817.812/181

The Minister of Salvador to the Secretary of State


Excellency: In compliance with instructions received from my Government I have the honor to enclose herewith a certified copy of note No. 177 of March 3, 1916, in which the Minister of Foreign Relations, Doctor Don Francisco Martinez Suarez replied to the communication of the Chargé d’Affaires of the United States in Salvador, dated February 21, 1916, informing the Government under instructions from the Department under your worthy charge, of the ratification by the American Senate of the Treaty between the United States and Nicaragua.

I take this opportunity [etc.]

R. Zaldivar

The Minister of Foreign Relations to Chargé Tennant

Mr.Chargé d’affaires: The Department is in receipt of your courteous communication, in which you state that, acting under instructions from the Department of State, you are informing my Government that, under date of the 18th of last month, the Senate of the United States, by a vote of 55 to 18, consented to the ratification of the Nicaraguan Treaty, with certain amendments which you have the courtesy to point out, the third of these being as follows:

Provided, That whereas Costa Rica, Salvador and Honduras have protested against the ratification of said convention in the fear or belief that said convention might in some respect impair existing rights of said States, therefore it is declared by the Senate that in advising and consenting to the ratification of the said convention as amended, such advice and consent are given with the understanding, to be expressed as a part of the instrument of ratification, that nothing in said convention is intended to affect any existing right of any of the said named States.

[Page 828]

In taking note of your courteous information, my Government feels that it would be failing in the discharge of a prime duty not to offer some pertinent comments in a matter of such importance, not only as an effective safeguard for its rights, but also to be consistent with the loyalty that governs its diplomatic relations with the United States Government.

First of all, my Government expected from the high sense of justice of the Government of the United States, that the negotiation of the treaty, pending the ratification of the Senate could not be completed while its protests against said treaty, lodged in due and proper time had not been disposed of.

This hope rested mainly in the assurance that your Government would give ample consideration to the facts presented by my Government in its last protest, to the effect that the Nicaraguan Treaty also violates the neutralization of the Honduran territory, which is one of the reasons for the existence of the Central American Conventions made in the city of Washington on the 20th of December 1907.

My Government believes, Sir, that the Nicaraguan Treaty has no legal basis to constitute legitimate rights, because it is manifestly contrary to the treaties in force and the principles of international law, and, consequently, to the justice and consideration that nations must adhere to in their friendly relations.

The object of the General Treaty of Peace and Amity, which is the main foundation of said conventions, is the maintenance of peace in Central America as the only possible means of accomplishing the lofty ends sought by the Central American Conference which met in Washington in 1907. It is thus set forth in Article I of said diplomatic document, in which the five Central American Republics do solemnly declare that they consider as a duty that cannot be disregarded in their mutual relations, the maintenance of peace by such means as are provided to that end. The first of these means should be to secure in said Republics the benefits which are derived from the maintenance of their institutions, contributing at the same time to the strengthening of their stability and the prestige with which they ought to be surrounded, and in order to attain such lofty ends it is declared in Article II that every disposition or measure which may tend to alter the constitutional organization in any of them is to be deemed a menace to the peace of the five Republics. Now, therefore, constitutional organization may be altered in many ways; but there is no possible doubt that the most menacing, grave and dangerous manner of making such alteration, is the extraordinary occurrence in America that a strange, strong and powerful nation should seize a portion of Central American territory to establish therein a military control, which undoubtedly would shortly create political control over all the dismembered country as the only pracitcal means whereby the military power imbedded in such territory could become strong and secure. The domain, sovereignty and jurisdiction of the dismembered country thus impaired, it is evident that the constitutional organization must be profoundly altered, as the establishment of the constitution or constitutional organization has as its principal end the free exercise of sovereignty and the unimpaired integrity if its territory. When a powerful nation seizes even a small portion of the territory of a weak country, the line of demarkation of the exercise of both sovereignties cannot be determined, morally, although they might be marked physically; as it is impossible that the stronger power should cease to enlarge constantly the sphere of its control, its influence and its interests, at the expense of the weaker country, and this even in the absense of ambitious tendencies, as the mere effect of a natural and logical tendency and the necessity of maintaining the security and stability of the military or political establishment which the powerful country is trying to create. The instinct of self-defense will compel the powerful one, as an unavoidable necessity, to enlarge constantly the sphere of its control, either by seizing the stragetic points that may be a menace to the safety of its military base or by controlling the political and even the financial interests of the weak country that might cause annoyance abroad or at home, which might compromise the security and existence of the zone that the powerful country reserves to itself, even if such zone has been mathematically marked out. The tendency to invade under such circumstances, is a fact established beyond doubt by the history of the colonization of the European nations in America, Asia and Africa, from the 15th century to our day. There is no doubt that the political Constitutions of the States of America, in order to stop such encroachments, which are always dangerous, have forbidden, as the Constitution of Nicaragua emphatically forbids in its Article 2—the alienation to a strange nation of any portion of the national territory; since the intrusion of a strange sovereignty [Page 829] would alter the organization that the Constitution safeguards in an effective and transcendent matter by the exclusion of foreign Powers because of the constitutional principle of the inalienability of the territory of the nation. It is undoubtedly for this reason that the illustrious President Monroe declared in 1823 that

the United States would consider any attempt on the part of the European Powers to extend their political system to any portion of this hemisphere as dangerous to their peace and safety; that the American continents by the free and independent condition which they have assumed and maintain are henceforth not to be considered as subjects for future colonization by any European Power; and that the United States would never view any interposition for the purpose of oppressing or controlling in any manner the destiny of those nations, by any European Power, in any other light than as the manifestation of an unfriendly disposition toward the United States.

Thus, the Monroe Doctrine is based on the right of self-defense and the safety of the country which proclaimed the principle; and in this sense, it is permissible to say, that Article II of the General Treaty before mentioned, inasmuch as it provides in the inalterability of the constitutional organization of the Central American States a means to prohibit the alienation or colonization of their respective territories, is as valid as the famous Doctrine, and rests upon the same principle, the right of safety of nations. Therefore, any action or measure taken by a Central American State which may alter its constitutional organization, because it alienates its territory, and allows the introduction therein of the sovereignty of a strange Power, is a flagrant violation of the express fundamental principle upon which rests the General Treaty of Peace and Amity, even when such alienation or colonization of a portion of its territory should appear in the form of a secular lease. The alteration of the constitutional organization of Nicaragua is so plain and evident with the establishment of the naval base created by the Treaty, that Article II of said instrument reads as follows:

and the Government of Nicaragua further grants to the Government of the United States for a like period of 99 years the right to establish, operate, and maintain a naval base at such place on the territory of Nicaragua bordering upon the Gulf of Fonseca as the Government of the United States may select. The Government of the United States shall have the option of renewing for a further term of 99 years the above lease and grants upon the expiration of their respective terms, it being expressly agreed that the territory hereby leased and the naval base which may be maintained under the grant aforesaid shall be subject exclusively to the laws and sovereign authority of the United States during the terms of such lease and grant and of any renewal or renewals thereof.

The alteration of the constitutional organization of Nicaragua could not be more evident, as a portion of its territory is separated from its own sovereignty, to be subject to the control and sovereignty of the United States.

Moreover, by the second amendment of the Senate, the Government of the United States reserves to itself a complete and absolute control of the object, form and determination of the disbursement of the three million dollars granted as compensation to the Nicaraguan Government, and the allotments made by the Government of the United States to that Republic shall be disbursed upon orders drawn by the Minister of Finance of Nicaragua and approved by the Secretary of State of the United States or by such person as he may designate. All of this impairs the sovereignty of Nicaragua, subjects the same to a strange supervision and does alter, most undoubtedly, the constitutional organization of Nicaragua, which rests on the principle of absolute independence of the Government of the nation, and the inalienable integrity of the national territory.

But it is not only the Washington Conventions that have been so gravely violated by the contracting parties by the establishment of a naval base. It is also a violation of Article III of said General Treaty of Peace and Amity which establishes the civilized and pacifist principle of the neutralization of the territory and the waters of Honduras, as one of the noblest and most useful conquests aimed at by said conventions. The manner and the extent to which the neutrality of Honduras has been consecrated, necessarily implies that all the consequences growing out of the principles of international law in respect to the permanent neutralization of States should be applied in this case. Neutrality—which is one of the judicial forms adopted to maintain the right of safety of nations—imposes on the country guaranteeing it the inevitable obligation of not violating such state of neutrality by any act whatever that may menace or destroy such State, no only within the neutral zone, but even beyond it and in the very territory of the State which is a coguarantor; and it cannot be doubted that the establishment of a naval base in the proximity or in the maritime zone of the neutralized territory, is an act of violation.

It has always been thus understood in international practice, as shown by many instances, and it is a recognized and respected principle that the neutrality [Page 830] of the navigable waters creates for the riparian States the obligation of not fortifying their own coast. It has thus been declared by the European Powers at the Congress of Paris in 1856 in Article 13 of the Treaty of March 30, as follows:

The Black Sea, being neutralized in accordance with the provisions of Article XI, the maintenance or establishment on its coasts of military and naval arsenals is unnecessary and has no object and consequently His Majesty the Emperor of all the Russias, and His Imperial Majesty the Sultan agree not to establish or maintain on said littoral any military or naval arsenal.

The neutralization of the Baltic Sea was also established in that Congress as follows:

His Majesty the Emperor of all the Russias, responding to the desire expressed by their Majesties the Emperor of France and the Queen of the United Kingdom of Great Britain and Ireland, declares that the Aland Islands shall not be fortified and that no military or naval establishment shall be maintained or created thereon.

And more recently Germany and France upon exchanging the territories mutually ceded in Central Africa, agreed to neutralize the waters of the great rivers which flow through them and to this end they stipulated in the agreement called Congo Agreement, of November 4, 1911, Article 9, as follows:

France and Germany, desiring to strengthen their good relations in their possessions in Central Africa, agree not to construct any fortified place along the river courses, which shall be open to both countries for purposes of navigation. This stipulation shall not apply to forts whose sole object is to protect the posts against the attacks of the natives.

On April 8, 1904 France and England brought to an end their differences over the grave and complicated Morocco question, by means of a diplomatic act which has been called L’Entente Cordiale. Article 7 of said Convention reads as follows:

In order to secure the free passage of the Straits of Gibraltar, the two Governments agree not to permit, the erection of any fortifications or strategic works on that portion of the coast of Morocco, comprised between, but not including, Melilla and the heights which command the right bank of the River Sebou. This condition does not, however, apply to the places at present in the occupation of Spain on the Moorish coast of the Mediterranean.

The British Government considered such stipulation as a compensation for the similar stipulation insuring the neutrality of the Suez Canal, and the question of the Straits of Gibraltar has always been considered by England as of vital importance to its commercial and strategic interests. It is thus established beyond peradventure that, in conformity with the principles and usages of international law, the fortification of places near neutralized territories or waters is clearly prohibited, as a menace to the existence of the state of neutrality. Therefore, the Government of Nicaragua could not authorize the establishment of a naval base, which practically is a menace to the safety of the contiguous neutralized territory. Neither can it be licit for the United States to infringe on Honduran neutrality as the character of mediators they assumed at the Central American Conference of Washington, forbids them to infringe the stipulations of the treaties signed through their own advice and mediation; to act otherwise would be in opposition to their duty as mediators.

Therefore, the fact that the naval base in the Gulf of Fonseca invalidates the fundamental principles of the Washington Conventions, renders nugatory the stipulations in the Chamorro-Bryan Treaty, and invalidates whatever rights the United States may claim because of said stipulations.

The principles of international law referring to the right of safety of nations would also be impaired, because in accordance with such principles, no State can perform any act whatever which may menace the safety of others, and this obligation becomes more strict and imperative if the act which constitutes a menace is performed at a place which, as in the case of the waters of the Gulf, constitutes juridically a state of indivision and joint ownership which would be impaired to the prejudice of States which, as Salvador and Honduras, have not given their consent to the establishment of a naval base in common waters. The danger to the riparian States resulting from the naval base in the Gulf, cannot be doubted, and the State or States which intend to create such menace to the safety of the other States by this sole act, violate the principles of natural law, which is equally compulsory among nations as among individuals. It would be an easy matter to quote a number of cases showing that the danger menacing the safety of a country has given such country the indisputable right to oppose the creation of such situation in fact. The opposition of France and England to the establishment by Germany of a naval base at Agadir, in 1911, is in recent days the most characteristic instance in this matter which is of the highest judicial and moral order.

[Page 831]

Therefore, the flagrant contradiction between the stipulations of the Chamorro-Bryan Treaty and the principles of international law which justify the juridical situation of the Gulf of Fonseca, is another irrefutable reason for holding as invalid and void of any legal value the rights which might be claimed under said pact.

If the Government of the United States, as I do not doubt, is to give a practical and effective value to the amendment of the Senate, which does not desire the existing rights of Salvador to be impaired, it has no other means of satisfying such legitimate rights of safety, sovereignty and joint ownership, than to renounce the idea of establishing in the Gulf of Fonseca any military base or establishment whatever.

In view of the foregoing considerations which are submitted with due courtesy to the enlightened Government of the United States, this Department formally declares: that it does not recognize the validity of the Nicaraguan Treaty, establishing a naval base in the Gulf of Fonseca, and that, in consequence, the Government of Salvador, at all times will make use against such treaty of all the means and remedies that the conventions in force, international law and justice will afford to invalidate its effects.

I beg to renew [etc.]

F. Martinez Suarez