File No. 817.812/227
The Minister of Costa Rica to the Secretary of State
Washington, June 20, 1916.
Mr. Secretary: I am in possession of your important note No. 10 dated May 22, last, in which your excellency, referring to the information given by the Legation to the effect that my Government had brought action against that of Nicaragua before the Central American Court of Justice in the matter of the unlawful conclusion of the Bryan-Chamorro Treaty, is pleased to tell me definitely that your Government cannot see in Costa Rica’s action anything more than a desire to prevent Nicaragua from complying with its contractual obligations.
Your excellency reaches that conclusion upon considering:
- First, that the treaty that gave birth to the court in which suit has been entered was not signed until a long time after the signing in Washington of a protocol by which the Governments of Costa Rica and Nicaragua undertook to open negotiations with that of the United States for the cession of the rights required for the construction of the Nicaraguan Canal;
- Second, that neither the convention which created the Cartago Court nor any of the others concluded on the same day by the five Governments of Central America had in view to affect in any way the international relations between the United States and any one of those Governments; and,
- Third, that after the declarations made by your Department of State and the resolution passed by the Senate of the United States to the effect there shall be inserted in the instrument of ratification the clause that “nothing in the said convention (Bryan-Chamorro) is intended to affect any existing right of any one of the aforesaid States (Costa Rica, Salvador and Honduras)” the position taken by my Government against Nicaragua’s freedom of action cannot be viewed except as I have hereinbefore mentioned.
With your excellency’s leave and with professions of the utmost respect for your very learned opinion I venture to offer the following remarks:
First: The protocol of December 1, 1900, as I had the honor to say to your excellency in my note of May 23 last, is not an instrument in any way binding on Costa Rica. As to my Government, the said protocol was still-born, since it was not even brought to the knowledge of the Constitutional Congress, the President of the Republic having omitted to send it on its way with his approval.
Wherefore, Mr. Secretary, I make bold to hope that your excellency will admit that Costa Rica’s freedom of action was not in any way curtailed by the said protocol when my Government subscribed the Conventions of December 20, 1907.
Second: If what your excellency meant to say in the statement that the Central American Court of Justice was not instituted to regulate international relations between the United States and any one of the Governments parties to the Convention of December 20, 1907, is that the jurisdiction of the said court does not reach the North American nation, your excellency is quite right in that assertion. [Page 847] But if your excellency opines that any one of the five nations bound by the said conventions is fully competent to repudiate the action of the court in any case in which a nation that is not a party to those conventions is concerned, I much regret to have to say to your excellency that I cannot consider this to be the just and true proposition.
An extreme example will make things clear: Will your excellency suppose for an instant that the articles of the Bryan-Chamorro Convention contain a clause under which Nicaragua would cede to the United States, with a view to the preservation and maintenance of the canal, the Costa Rican port of Limón? Would your excellency believe in that case that, inasmuch as the United States does not appear among the nations signatory to the Central American Conventions of 1907, my Government could not summon Nicaragua before the Cartago Court in vindication of its divided rights?
In that hypothetical case your excellency would assuredly not doubt for an instant the perfect right of Costa Rica to bring the action and it would be equally certain that in the presence of so perfect a proof of the Costa Rican Government’s rights the United States would never have inserted in the treaty the hypothetical clause I have taken for an example.
And what difference in principle is there in truth between the actual and the hypothetical case?
I am sure that your excellency will admit that there is none in reality and that therefore the discussion we are now conducting can be actuated by no other cause than a mere difference of opinion.
In fact, neither the Government of the United States nor that of Nicaragua would ever have concluded a convention knowing that they were thereby violating the rights of a third party. If they did, it was because they supposed they were acting in accordance with reason and justice; that is to say, because in their judgment the objections raised by Costa Rica against the project were ill-founded.
But as my Government for its part is thoroughly convinced that the Bryan-Chamorro Treaty invades Costa Rican rights that are as plain and as vital as those that would have been trampled upon if the treaty had actually dealt with the port of Limón, it has no resource left but to refer the decision of the question to an umpire after exhausting, as it did, the diplomatic remedies without arriving at a direct agreement between the parties.
And who is the umpire to whom we have applied?
Precisely that tribunal which has jurisdiction over the very party which appears legally responsible for the alleged trespass: Nicaragua; that is, the nation which existing pacts preclude from negotiating canal concessions regardless of Costa Rica.
I say again: The question, then, reduces itself to a mere difference of opinion, viz: Has Nicaragua the right to sign the Bryan-Chamorro Treaty or has it not?
If the Court finds that it has, Costa Rica will contentedly bow to the decision and tender her very humble apologies to the Governments which signed the challenged convention for the groundless claims with which it importuned them so long. But if the award should go otherwise and the Court should recognize the right of Costa Rica which is so clear to me, your excellency would grant [Page 848] that from that moment no further value could attach to the Bryan-Chamorro Convention, since the perfect capacity possessed by the United States in concluding it would not suffice to remove the disqualification of Nicaragua, just as the circumstance of your excellency’s full enjoyment of civil rights would not validate a contract you might enter into with a minor or bankrupt.
And coming now to the third of the conclusions presented in your excellency’s note, viz: that after the declaration of your Department of State and the resolution passed by the Senate that “nothing in the said convention is intended to affect any existing right of any one of the aforesaid States,” an endeavor on the part of Costa Rica to hamper Nicaragua’s freedom of action in this matter cannot be viewed by the North American Government otherwise than as a desire to prevent Nicaragua from complying with its contractual obligations, I must say that there is nothing more remote from the mind of my Government than the fallacious thought of curtailing the exercise of a legitimate right by Nicaragua or any other nation. The fact that my Government does not believe that Nicaragua, whose freedom of action in the specific case under consideration is restricted by the terms of an international treaty it has with Costa Rica, possesses that right is the very reason that impelled its intervention in the form it has adopted; and that intervention if properly considered has done nothing but develop and fully and duly broaden the proviso pronounced by the Senate that in approving the convention it did so on the understanding that no existing right of Costa Rica, Salvador or Honduras was violated thereby.
On that occasion, Mr. Secretary, the Senate taking into consideration the fact that the protests of these different countries might very well rest on some substantial foundation, did not deem it appropriate to grant its high approval without making the foregoing reservation, for it understood full well that the contract could not live from the moment that it was proved to be null and void in its genesis.
The time to adduce that proof has come and if, as my Government expects, it is found to be what Costa Rica has maintained, the subsequent fate of the convention has already been fixed by the Senate with this necessary corollary of its resolution: “From the moment in which it violates rights of a third party let it be regarded as not approved.”
I do not wish to conclude without again registering that which I have repeatedly said in my various previous communications: In the event of the Bryan-Chamorro Convention’s final collapse, my Government is animated by the most cordial wish to treat with the Government of the United States in the matter of the cession of canal rights; provided, that when the concession is made the provisions on the subject contained in the Treaty of April 15, 1858, between Costa Rica and Nicaragua, and the Cleveland Award of March 22, 1888, shall be duly taken into account.
In the light of this reiterated declaration of my Government there is no justice in ascribing to it any intention to check the purpose of the United States to acquire the right to build and maintain a canal over the so-called Nicaragua route. Costa Rica is willing to lend the quantum of the rights of which it holds sovereign ownership and which are absolutely necessary to effect a valid and perfect conveyance [Page 849] of the canal rights to the United States; but it does ask and expect of the high sense of equity of your excellency’s Government that it be recognized that it is an act of justice as well as a duty to conform to the stipulations of the public instruments above mentioned.
It is my high honor [etc.]