Papers Relating to the Foreign Relations of the United States, With the Address of the President to Congress December 5, 1916
File No. 817.812/229
Minister Jefferson to the Secretary of State
Managua, June 17, 1916.
Sir: I have the honor to enclose herewith for the information and files of the Department certain communications between the Governments of Nicaragua and Costa Rica, relative to the claims of each country in connection with the Nicaraguan Canal Treaty.
I have [etc.]
Order to file Costa Rica’s complaint and to maintain the status quo
From La Informatión, May 3, 1916.
The Central American Court of Justice yesterday accepted the complaint of the Government of Costa Rica against that of Nicaragua and decreed the maintenance of the status quo between the two States. The text is as follows:
Central American Court of Justice,
San José de Costa Rica, May 1, 1916, 6
p.m.
Whereas the Government of Costa Rica, through Lie. Luis Castro Ureña, complains of the Government of Nicaragua and alleges that a treaty concerning an interoceanic canal has been subscribed between the Republic of Nicaragua and that of the United States of America; that said treaty is violatory of the Cañas-Jérez Treaty, of the Cleveland Award, and of the General Treaty of Peace and Friendship signed in Washington in 1907.
Now, therefore, considering:
- 1.
- That it is within the jurisdiction of the Court to take cognizance of all questions or controversies between the Central American States of whatever nature or origin in case the respective Chancelleries may not have been able to come to an agreement. (Article I of the Treaty which created this Tribunal.)
- 2.
- That the present case is within the ordinary jurisdiction of the Court, by treating of a controversy between two High Parties signatories of the Treaty of Washington, who thereby agreed to trust the solution of their differences or difficulties to this Court.
- 3.
- That the plaintiff has complied with the requirements of Article XIV of said treaty regarding the preparation of its complaint.
- 4.
- That in regard to the requirement of exhaustion of diplomatic negotiations previous to resort to judicial action, the Court judges that such condition has been complied with, in view of the documents of record; that it appears from the exhibits accompanying the complaint that the Government of Costa Rico claimed before that of Nicaragua its right to be consulted with respect to any convention referring to the contracting for an interoceanic canal; that the Government of Nicaragua replied and alleged that it considered within the exclusive attributes of its sovereignty the making of a canal pact, the execution of which affects only the water and land of its own domain; that an incipient argument was closed because the Government of Nicaragua refused to state the facts of the treaty negotiations to the plaintiff, alleging that for reasons of an international character it considered itself obliged to keep the treaty secret; that the prospect of an agreement concerning the opposing interests was thus made impossible and appeal to this Court necessary.
- 5.
- That Article 6 of the Ordinances and 17 Number first [sic] of the regulation give logical development to the general principle embodied in Article I of the Treaty and leave it to the discretion of the Court to determine in each case sub judice whether the plaintiff State did or did not make reasonable efforts to secure a discussion between the Chancelleries; that this Court adheres to the doctrine “that the discretion allowed in said article has for its object to safeguard the right of the States to compose their disputes by means of an amicable understanding, notwithstanding their engagement to submit them to the Court; but that is not to say that previous resort to diplomatic means is obligatory.” (Decision of December 19, 1909.)
- 6.
- That from the notes addressed by the Ministry of Foreign Relations of Nicaragua to the Secretaria of Foreign Relations of Costa Rica and transcribed to this Court, it appears that the defendant denies the competence of the Court to take cognizance of the subject, and pleads the impropriety of the action instituted; that of the merits of these allegations it is not possible to judge without a hearing.
- 7.
- That in regard to the interlocutory petition which accompanies the complaint, it is in order to decide by mutual consent the point referring to the maintenance of the status quo between the Republics of Costa Rica and Nicaragua; but not in regard to the notification to the Government of the United States, because it is not a party to the litigation. (Article XVIII of the Treaty.)
That in conformity with the doctrines cited, with Articles 19, 22, and 23 of the Convention, 57 and 58 of the Ordinance, and 16 of the Regulation, the judge for Nicaragua dissenting,—
It is ordered that the complaint presented by the Government of Costa Rica against the Government of Nicaragua be filed; that Lie. Luis Castro Ureña be recognized as attorney for the plaintiff; that the defendant be served with a copy of the complaint and invited to answer within sixty days after service; and
It is further ordered that the Government of Costa Rica and the Government of Nicaragua maintain the status quo existing between them before negotiating the treaty which is the cause of the present contention.
- M. Castro R
- Nicolás Oreamuno
- Daniel Gutiérrez Navas
- Saturnino Medal
- Angel M. Bocanegra
Manuel Echeverria,
Secretary
The Nicaraguan Minister for Foreign Affairs to the Secretary of the Central American Court of Justice
Managua, April 1, 1916.
Mr. Secretary: Your telegram of March 25 informed this Office through Dr. Luis Castro Ureña, special representative of the Government of Costa Rica, that suit has been been brought in the Central American Court of Justice against my Government, based on the statement that the treaty known as the “Bryan-Chamorro Treaty” interferes with rights of the plaintiff; you have also communicated the order of the Court regarding the filing of an answer, etc. This office has also received a telegram from his excellency the Costa Rican Minister for Foreign Affairs, giving the same information. Replying to your communication, I am transcribing herewith the reply that I telegraphed on this date to the Minister for Foreign Affais of Costa Rica:
His Excellency the Minister for Foreign
Affairs,
San José Costa Rica.
This office has received your excellency’s telegram of March 25 in which you are pleased to state that, owing to the perfect knowledge which your Government has that the celebration of the Chamorro-Bryan Treaty on August 5, 1914, injures fundamental interests not only of Costa Rica but also of all Central America, it has brought suit in the Central American Court of Justice against my Government and prays that Nicaragua he declared incompetent to contract the obligations stipulated in said convention. The telegram goes on to say that on taking this step the Government of your excellency is not inspired with the slightest sentiment of censure or ill will against my Government; that the result of your action will be to the advantage of the five sections of Central America, and especially to Costa Rica and Nicaragua, which it will more closely bind by the ties of sympathy and friendship that unite the two countries.
My Government, obeying a cardinal principal of its foreign policy, has limited itself in contracting with the United States to the exclusive territorial boundaries over which as an independent State it has dominion, endeavoring only to provide for its welfare and progress as a nation, and respecting in every way the integrity and legitimate rights of the other Central American Republics.
Therefore, we could not help being surprised that the Government of your excellency, on raising a question that could hardly have more than a local interest for Costa Rica, should invoke the fundamental interests of other States of Central America, by supposing them to be injured and constituting itself their representative without observing that Nicaragua forms a part of the geographical division to which your excellency alludes and is, therefore, as anxious as any of the sections of the ancient country to preserve and defend the true and effective interests of Central America.
This action of your excellency’s Government strikes us as an indication of the little faith your Government has in the justice of its cause. On the other hand, Nicaragua has been at all times perfectly qualified to negotiate such conventions as the Chamorro-Bryan Treaty, to which your excellency refers, and is not at all disposed to consent to the discussion of such rights, which pertain solely to the inherent sovereignty of the State.
With respect to Costa Rica in particular, all the disputes that formerly existed with Nicaragua in reference to boundaries and to participation in the interoceanic canal were settled once for all by the decision of President Cleveland. This Republic has strictly complied with the terms of said decision, as it will do when it is a case of granting concessions for building the interoceanic canal; but in respect to the rights which said decision secures to Nicaragua as sole sovereign of the territory on which said canal is to be built and as the absolute owner of the benefits that the country may obtain in compensation for favors and privileges conceded, my Government will not permit discussion of the subject, because by its own nature the decision is not subject to revision nor interpretation [Page 843] by any arbitration tribunal. Likewise it is not within the jurisdiction of the Central American Court of Justice to hear a suit such as the Government of Costa Rica has brought, because, according to Article I of the Washington Convention that created it, said Court acquires the character of an arbitration tribunal only when dealing with controversies or questions arising between the contracting parties, in case the respective chancelleries should not have come to an agreement. But Costa Rica—without taking into consideration the ties of sympathy and friendship that unite our two countries and proclaimed in your excellency’s telegram, nor the fact that, according to the said Article I, the intervention of the Court takes place only in the case agreement between the parties has become impossible after the indispensible resort to the diplomatic channel—has at no time been pleased to protest to this Office, directly or indirectly, against the Chamorro-Bryan Treaty.
My Government therefore considers the suit brought against Nicaragua to be unfounded and out of the jurisdiction of the Central American Court of Justice; and, with full confidence in its rights, it trusts that that tribunal, recognizing said rights to their full extent, will abstain from any further proceedings.
Accept [etc.]
Diego M. Chamorro
I shall only add that the proceedings of the Central American Court of Justice in this matter being void and in violation of the Washington Convention of 1907, my Government expects that the Court will abstain from considering the case in obedience to the clear, explicit and final text of that convention.
I thus reply to your telegram referred to and sign myself,
Your obedient servant,
Dissenting opinion of the Magistrate for Nicaragua
That the Government of Costa Rica invokes the aid of this tribunal to settle its differences with Nicaragua on account of the Chamorro-Bryan Treaty, implies an enlightened homage to the ideals of peace and justice with which it was instituted; but that cannot excuse us from the duty of examining whether the case is within our jurisdiction, and whether, in consequence, we are empowered to take cognizance of it.
The plaintiff adheres to Article I, of the convention cited, the text of which is as follows:
The High Contracting Parties agree by the present Convention to constitute and maintain a permanent tribunal which shall be called “the Central American Court of Justice,” to which they bind themselves to submit all controversies or questions which may arise among them, of whatsoever nature and no matter what their origin may be, in case the respective Departments of Foreign Affairs should not have been able to reach an understanding.
In my judgment the text is clear and conclusive regarding the power embodied therein and prohibits us from taking cognizance of the matter for the following reasons:
From the said text it appears that the Governments signatory of the treaty delegated to the Court the limited power to take cognizance of their differences only when the efforts of the parties to come to an agreement by means of diplomatic action shall have failed. An absolute delegation of sovereignty for the settlement of all questions which might arise between the Central American Republics would have been equivalent to entrusting to the Court the complete direction of all their foreign affairs, and this undoubtedly was not the intention of the High Contracting Parties.
On other occasions the article in question has been interpreted by Doctors Bocanegra and Medal in the sense that the contracting States can not relieve themselves of the obligation to undertake Chancellery negotiations before resorting to the Court. In the record of proceedings of June 19, 1912, it appears that Magistrate Bocanegra, in discussing the order of procedure, was of the opinion “that it is not legally possible to establish an action before this tribunal without previously having taken Chancellery action to arrange the matter,” and cited to this effect the opinions of certain jurisconsults. And Magistrate Medal in the case of Felipe Molina Larios against the Government of Honduras comments on the article in this form:
According to its text, the Government may bring suit in case of ineffectual Chancellery negotiations or of impossibility of agreement for any cause whatsoever. Clause 10 of Article 6 of the Ordinance of Procedure. The plaintiff should therefore accompany his petition with sufficient evidence of having fulfilled such conditions.
In general it can be established that the fundamental limitation of the jurisdiction of this Court, set forth with all clearness in said Article 1, is common to all arbitration tribunals, according to the majority of writers on international law and the practice followed by some nations.
The illustrious professor John Basset Moore, reputed to be a veritable authority on international law, states (page 24, Vol. VII, Moore’s Digest) his opinion in these terms:
According to present practice, the redress of national grievances may be pursued, first, by amicable methods; and, secondly, by force. Of amicable methods the most common is negotiation. There is nothing more conducive to the settlement of differences than a fair and candid discussion of them. Where this fails, we may yet try arbitration or mediation.
The United States gave an analogous opinion, August 13, 1869, expressed as follows:
This Department has for many years past adopted the policy of submitting to a disinterested arbitration claims of its citizens against other governments, when otherwise unable to agree upon an adjustment. (Page 27, Vol. VII, Moore’s Digest.)
The distinguished publicist, Doctor Woolsey, Professor Emeritus of Yale University, expressed himself before the American Society of International Law in these terms (see volume of the Transactions of the Society for 1917):
International arbitration is the means adopted to settle the differences existing between States through the medium of a litigation before a tribunal. These differences might be settled by means of negotiations or by war. It is presumed that there has been recourse to negotiations without success before appealing to arbitration. The clause indicated is inserted frequently in arbitration conventions in express terms; for example Article L of the Anglo-French Treaty of 1903 reads thus:
“The differences of a judicial nature or relative to the interpretation of existing treaties between the two contracting parties, which may arise and which it has not been possible to settle through diplomatic channels, shall be submitted to the Permanent Court of Arbitration, established by the Convention of July 29, 1899, at The Hague.”
It seems unnecessary to accumulate other citations to arrive at the conclusion that, before States resort to this Court, they should use the prudent and reasonable means of Chancellery, in order to reestablish between them the disturbed harmony. This conclusion is evident from the literal tenor of Article I of the convention, and the opinions which I have cited confirm it in its entirety.
Let us see whether in respect to the Treaty that causes the controversy that indispensable requisition has been fulfilled on the part of Costa Rica.
The petition of the plaintiff informs us that, when the Government of this Republic received private notice that the Legislative Assembly of Nicaragua had sanctioned a treaty concluded between the Government of that country and that of the United States, among other things, for the opening of an interoceanic canal through Nicaraguan territory, it communicated instructions to the respective Ministers accredited to the two countries, to address the protests contained in the annexes (“F” and “G”)5 and that by reason of the publication of the treaty in the daily newspaper La Republica in its number 8810, the Minister of Costa Rica in Managua also was instructed to present the communication of July 30, 1913, requesting the Nicaraguan Chancellery “to state in a categorical manner whether the text of the convention published was authentic, and in case of the contrary to make the appropriate rectifications.”
Such were the only acts which the convention of February 8, 1913, called forth from the Government of Costa Rica, the clauses of which were well known to all from the publicity given them by the many organs of the press and in loose sheets, especially in this country, where it was the object of a special study edited in a pamphlet by Ramon Rojas Corrales.
In the middle of August, 1914, the plaintiff goes on to say, they were assured unofficially that the aforesaid canal treaty had been tacitly dropped from study of the American Senate, which was, however, considering another pact of similar importance, in respect to which the Nicaraguan Government also kept the strictest silence. For this reason the Government of Costa Rica could not at that time make concrete charges, nor attack except in general terms whatever convention had been made between the same parties.
Later than 1914 and 1915, the plaintiff Government was informed by the Washington press that on February 2 of the current year the Foreign Relations Committee of the North American Senate had favorably reported the [Page 845] canal treaty, and that in effect said treaty was approved and ratified at the executive session of the Senate held on February 18. On its part the Legation of Costa Rica in Washington made every effort through the Department of State to prevent the ratification of the new treaty; it addressed a memorandum to the American Senate through the attorney of the Legation, Mr. Harry W. Van Dyke; and, the ratification being consummated, it addressed on February 22 last an energetic protest against that act.
To the Government of Nicaragua the Government of Costa Rica did not address a single opinion on the subject, as its Secretary of Foreign Relations informs us. In brief, its Chancellery actions consist solely of a protest before both signatory Governments, and another protest directed solely to the American Government.
The idea of opening an interoceanic canal by way of Nicaragua dates back many years, and to carry it into effect there have been celebrated not only the two treaties to which we have alluded but many other agreements, either with companies or with the American Government, all tending to the same end but differing from each other as to the parties who have intervened, and as to the concessions and privileges which have been granted. This difference is even more marked between the treaties with which we are dealing, because the former referred (annex H) “to important steps in the political and economic life of Nicaragua, taken strictly within her indisputable rights, without reserve or selfish views,” and the subsequent one to the cession for a fixed sum of the rights necessary for the construction, service and maintenance of the canal, the renting of Great and Little Corn Islands, and the right to establish a naval base in any place on the territory of Nicaragua bathed by the Gulf of Fonseca. There is no room for confusing them; and it is absurd to extend to the other the procedure or the objections, which one of them may have originated.
Neither does the protest of itself alone fulfil the requirements of the treaty
The purpose which the High Parties had in mind on signing the convention which created this Court, appears clearly in the preamble: “the purpose of effectively guaranteeing their rights and maintaining peace and harmony in-alterably in their relations, without being obliged to resort in any case to the employment of force.” In harmony with this purpose the efforts of the Chancellery have perforce to seek an agreement, propose means of conciliation and show some interest in an amicable solution, objects which a protest cannot pursue, confined as it is to a statement of a non-agreement with the act which is supposed to be prejudicial.
It is inexcusable, therefore, that the Government of Costa Rica has not complied with the indicated formality so carefully and wisely prescribed by the convention, in order to adjust its controversy with the Government of Nicaragua, and that it has not exhausted even the insufficient formula of the protest. This omission has deprived both Governments of a family solution of an important question without relaxing the fraternal bonds which unite them, in which the interests of neither would have been excluded, but in which on the contrary they are complementary. The President of Costa Rica so understood it at the last moment in proposing to Nicaragua through his representative a personal conference in order to discuss the subject in a friendly way to the end that Costa Rica might obtain from the American Government the greatest possible advantages.
The plaintiff Government not having attempted, then, any Chancellery negotiations with that of Nicaragua, in expectation of an understanding regarding the points submitted for our decision, I hold the complaint to be premature, and vote that the Court reject it and communicate its decision to the Central American Governments.
The precautionary measures solicited by the plaintiff are incidental to the demand and, therefore, should be rejected also.
The treaty leaves for a later convention to determine the details of the terms on which the canal shall be constructed, managed and maintained; it has not yet been decided to carry out the work considered injurious to the rights alleged by Costa Rica; consequently the work in no way affects the status quo between the dissident Republics in regard to the matter.
Finally, the notification to the American Government of the complaint is not in order, as the United States is not a signatory of the treaty that constituted this Court nor is it a party to the action.
San José, Costa Rica, May 1, 1916.
- Not printed.↩