Papers Relating to the Foreign Relations of the United States, With the Address of the President to Congress December 5, 1916
File No. 817.812/248
Minister Long to the Secretary of State
San Salvador , September 28, 1916 .
Sir: I have the honor to transmit herewith the Diario Oficial, No. 196, of August 29, 1916, containing the demand of the Salvadorian Government against Nicaragua with regard to the Bryan-Chamorro Treaty.
I have [etc.]
Demand made before the Court of Justice of Central America by Salvador against Nicaragua, concerning the Gulf of Fonseca
The Honorable Court of Justice of Central America:
The Chancellery of Salvador, representing the Government of Salvador, and, basing itself upon the convention that gave to the Court its legal existence, and with the high consideration due to the Court, complains of the Nicaraguan Government as follows:
On August 5, 1914, the Nicaraguan Government through its Minister, Don Emiliano Chamorro, accredited to the United States Government, signed a treaty with the Honorable William Jennings Bryan, then Secretary of State, by which Nicaragua consented to give certain privileges to the United States for the construction of an interoceanic canal, and ceded to the North American Republic for a term of ninety-nine years, renewable at the end of that time for a term of like duration, a certain part of the Gulf of Fonseca, for the purpose of establishing a naval base.
The clauses of the said treaty—which was approved by the Senate of the United States and by the Congress of Nicaragua—together with the amendments made by the said Senate, are contained in Annexes H and J hereto.5
The stipulations of said treaty are by the Salvadorian Government considered highly prejudicial to the supreme interests of the Salvadorian nation, because they endanger its integrity and preservation, violate Salvador’s undeniable rights of codominion in the Gulf of Fonseca, and injure her wholly legitimate aspirations as to her future as a Central American nation. The danger, the violation and the injury caused by said treaty are of such magnitude that the Government of Salvador is obliged to make this complaint, hereby made through this Chancellery, against the Nicaraguan Government, resting it on justice and the legality and proof of the principles which brought it into existence.
I
the treaty is an official act of the nicaraguan government which endangers the security of salvador.
No one can fail to see that the effect of establishing a naval base by a powerful State in the immediate vicinity of Salvador constitutes a serious menace to its free and independent life. This is not only because of the natural influence that the United States would perpetually have to exercise in regard to the most Important questions concerning the national life of small neighboring States, as a necessary means of developing the efficiency and security of the proposed naval base. It is also and especially because the territory surrounding the Gulf of Fonseca, to an extent that cannot now be calculated, owing to the also [Page 854] incalculable future range and power of offensive armament, would be converted into battlefields on which the fate of the proposed naval base would be decided in any conflict between the United States and one or more military powers—to the certain destruction of the independence and sovereignty of the weak Central American States, as has already happened in somewhat similar conditions to the smaller nationalities during the present European War.
It appears indubitable that the Government of Nicaragua has not considered her action in this matter sufficiently to appreciate what she has done; there is no other explanation of her attempted defense of her action in making the Bryan-Chamorro Treaty. This defense is based on the inadmissible argument that she has limited herself to negotiating only in regard to the territorial jurisdiction which she alleges to belong exclusively to Nicaragua as a State, without “harming in the least the legitimate rights of Salvador or of any other Republic of Central America.” (Annex M)5
In order to justify the foregoing assertion, this Chancellery will analyze Nicaragua’s allegation of exclusive territorial jurisdiction, in the light of municipal and international law, and will show its scientific and legal worthlessness.
In the first place it denies that the Government of Nicaragua, in making the Bryan-Chamorro Treaty, has respected one of the most legitimate rights of a nation; that is, to defend its security and its very existence; since no nation has the right to place in danger the security and, least of all, the very existence of another nation. But this Chancellery declares that the fears entertained by the Salvadorian Government in regard to the national rights of Salvador are far from being unfounded. The Governments of even powerful States, for reasons not so clear and precise as those in the present case given, have recently shown signs of alarm, whereas they might have been expected serenely to rely on their material strength for the protection of their political existence whenever it was threatened.
In the case of Agadir, Germany in 1911 sought to possess herself of this Moroccan port in order to establish a naval base. France and Great Britain protested most energetically that Germany’s failure to evacuate this port constituted a casus belli. This compelled Germany to make arrangements whereby without loss of national honor she could remove the naval forces which she had there. France adduced in this case the argument that the act of Germany constituted a menace to France’s national security with relation to her colonies in Northern Africa; and England showed clearly that she was in accord with the reasoning of the Government of France; she could not but consider that the security of her commercial and political interests in the East were menaced by the establishment of a German military base at such a strategic point as Agadir, on the route of communications between England and her colonies in South Africa and so near the trade route between Gibraltar and India.
But the case of the United States with relation to Magdalena Bay is more typical. In this case the North American Government firmly opposed the sale, to a Japanese commercial company, by certain of her own citizens of lands which the Mexican Government had ceded to them, said lands lying on the shores of the bay. The affair went to the Senate and that body passed the so-called Lodge resolution. Senator Lodge’s resolution stated:
That when any harbor or other place in the American continent is so situated that the occupation thereof for naval or military purposes might threaten the communications or the safety of the United States, the Government of the United States could not see without grave concern the possession of such harbor or other place by any corporation or association which has such a relation to another Government not American as to give that Government practical power of control for national purposes.
The American Review of International Law (Volume vi, page 938) where it refers in its editorial comments to the Lodge resolution states:
It is understood that in secret session for the last word but one “national” was substituted “naval or military.”
And it continues:
A Senate resolution is an expression of its opinion. This resolution was intended to be an announcement of national policy to foreign Powers. It was introduced after information had been sought from the President on the subject. This went to show that the conduct of other Powers in regard to those lands had been entirely correct. In the discussion which lead up to and which followed the introduction of this resolution it appeared that its mover chose not to regard it as an extension of the Monroe Doctrine but as based upon [Page 855] the law or right of self-defense which is fundamental, the Agadir incident being a precedent. But in Africa the German action was official, governmental. Whereas at Magdalena Bay, as Senator Rayner had well brought out in May, it was a question of private commercial use only. Has the United States a right to assume that private commercial use of such a harbor as this, could be so easily converted into Government use as to warrant its prohibition before any sign whatever of abuse or of danger was visible? That the Senate so believes is clear, for it passed the Lodge resolution. That the legal mind shares this view is not so clear. Let us state it in general terms. On the ground of self-defense a State may forbid its neighbor to sell lands of strategic value to the private subject of a third Power, there being no act, but mere suspicion to warrant the fear that the third Power will make sinister use of its subjects’ property. What becomes of the sovereign rights of the neighbor to dispose of its lands, for commercial development? If the principle of self-defense is unduly stretched, will it not break down and become ridiculous? Is an attitude of constant suspicion consistent with international good will? These are doubts which can fairly arise from the Lodge resolution.
The Lodge resolution causes doubts to arise in the legal mind because the principle which it upholds does not refer to official or governmental acts but shows—and it is for this reason that this Chancellery cites the case—to what point, in the opinion of the United States Senate, even a very powerful nation can extend its apprehension in its zeal for national security. It further appears in the Lodge resolution that the Senate’s opinion of the treaty conforms perfectly to Salvador’s, in spite of the fact that the Senate, in amending and approving it, declared that the treaty does not contemplate affecting any existing right of Costa Rica, Salvador and Honduras, which it nevertheless recognizes as having protested their fear of the contrary. This declaration of the Senate of the United States does not at all agree with the spirit of the Lodge resolution, nor with the consensus of opinion which the Senate had sustained in making the declaration.
The statement, therefore, made by Nicaragua in justification of the Bryan-Chamorro Treaty—that the treaty was made “without harming in the least the rights of Salvador or of any other Republic of Central America”—contradicts what has been held by other nations, the United States among them; and the fears of Salvador are found to be even better justified than those of England and France in the Agadir case, and of a more real and definite character than the fears of the United States in the case of Magdalena Bay and other analogous cases contemplated by the Lodge resolution.
II
the bryan-chamorro treaty ignores and violates the rights of dominion which Salvador has in the gulf of fonseca
In the xvi century this gulf was discovered by the Spaniards that conquered Central America and named the gulf in honor of the President of the Council of the Indies, which was at the head of the government of these territories in representation of the Crown of Castile. It belonged to the mother country throughout the Spanish régime; her right of exclusive dominion over its waters were never in doubt. When Central America was liberated the sovereignty over the gulf passed to the Federal Republic formed of the five States.
The exclusiveness of the Spanish dominion over these waters during the Spanish rule; of the Federal Republic’s dominion after the emancipation of the Central American States; and, finally, of the dominion of the three States surrounding the gulf—Salvador, Honduras and Nicaragua—all these are evidenced, among other things, by the fact that no other nation has used or sought to use these waters for fishing and such other purposes.
The Government of Nicaragua holds that the waters of the Gulf of Fonseca are not held in common by the three States. But as said waters were held many years by single, political entities, first Spain and afterwards the Federal Republic of Central America, it is certain that at the dissolution of the Federal Republic the three riparian States surrounding’ the Gulf of Fonseca acquired in common a dominion over it, since at the Federal Republic’s dissolution no provision was made for delimiting the sovereignty of the said riparian States. And it is not material whether or not Honduras and Nicaragua, in consequence of the Boundary Convention of October 7, 1894, fixed in 1900 a dividing line between themselves in the Gulf of Fonseca; the convention did not include Salvador, indispensable to the validity of any act which was the concern not alone of Honduras and Nicaragua but also of that third sovereign State.
This antecedent, then, affects the question in no fundamental. On the contrary, it shows—as does the ineffective action taken in 1884 by Salvador and [Page 856] Honduras with the same end in view—that the riparian States always considered their dominion over the waters of the Gulf of Fonseca to be indivisible.
The Nicaraguan Chancellery in the memorandum of the Minister for Foreign Affairs presented to the National Congress in the year 1914, after explaining that between Honduras and Nicaragua a fixed boundary line had been made dividing the waters of the Gulf of Fonseca by virtue of the convention above mentioned, states as follows:
There does not exist, then, any community between Nicaragua and Honduras in the Gulf of Fonseca; and as Salvador is not contiguous to us, and the Republic of Honduras being between, there is not and can not be community with Nicaragua as alleged in the Salvadorian protest.
Furthermore, there is a difference between the state of union and indivisibility of the waters of a bay and that of an inheritance or farm; for, respecting the former, the general principle of ownership by the nation of the adjacent coast waters applies, and it is supposed that the land boundaries set the limits of territorial waters. The same principle does not exist with farms or other land property, for the copartners can have recourse to the civil law for a settlement of the adjacent sections owned in common.
No nation can have a right to more of the waters of a bay owned in common with other nations than the proportion marked by the extent of its coast boundary; and with the Republic of Salvador placed at the extreme northwest of the Gulf of Fonseca and Nicaragua placed at the extreme southeast and separated by Honduras, it is impossible that the marine dominion of Salvador can extend an inch farther in this direction than the marks or limits of its coast boundaries which separate it from Honduran Territory. (Annex M)5
The paragraphs copied from the memorandum contain the opinion of the Nicaraguan Chancellery. This opinion presupposes that the sovereign dominion of Salvador does not extend over the waters of the Gulf of Fonseca so as to conflict with the sovereign dominion of Nicaragua and of Honduras. Furthermore, she bases this on the marking made in 1900 of the boundary of the gulf waters between the last two Republics.
This Chancellery will now show: first, that the stand taken as above said by the Nicaraguan Chancellery is not in conformity with the facts as they are regarded by international law; and, second, that the boundary line to which the Nicaraguan Chancellery refers can in no manner produce the effect which that country expects of it, of restricting the co-sovereignty and co-dominion that Salvador has had in Fonseca Bay from the time of the dissolution of the Central American Federation to the present, because it was not a party to the boundary convention, nor intervened in any form in the acts which culminated in the fixing of the boundary.
The Gulf of Fonseca, because of the form, previously explained, in which sovereignty over it was exercised from the sixteenth century, belongs, as the Salvadorian Government showed in its protest to the Department of State of the United States, to the category of “historical bays,” for the same reason as the Chesapeake and Delaware on the coasts of the Great Republic of the North, and those of Conception, Chaleurs, and Miramichi in the Dominion of Canada.
This Chancellery refers to the whole of the argument it has laid before the Department of State of the United States, to show that the Gulf of Fonseca is a bay which should be considered as under the exclusive dominion of the States which own its shores.
The doctrines which it has supported in this matter and on other points connected with this pleading (Annexes A, C, Ch, E, I and K)5 since the conclusion between the Governments of the United States and Nicaragua of the Chain or Chamorro-Weitzel Treaty on February 9, 1913, (replaced later by the Bryan-Chamorro Treaty) are clear doctrines which have their foundation in principles admitted in international law.
One explanation only is to be added. The circumstances of there being not one State only, but three—Salvador, Honduras and Nicaragua—who possess the coasts of the Gulf of Fonseca, does not oppose in any manner, as may be supposed, the application of the principle of territorial bays to the Gulf of Fonseca. These three States, owners of the shores which surround the gulf, are not States that in the course of their history have always been independent of each other, but, on the contrary, States that once formed part of a single international political unity and they still recognize in their fundamental codes that they are separate portions of this larger entity. This case cannot be compared, consequently, with that of the Gulf of Bothnia in the Baltic Sea, for example, nor with the Black Sea. In those and all analogous cases [Page 857] certain writers have held that a bay is not to be considered closed unless, among other conditions, its coasts belong to a single nation. But it should not be forgotten nor ignored that this opinion is founded on the fact that the States who own the coasts, have been States which never have formed a single international entity. Russia and Sweden, in the first example, have never been a single nation; nor in the second example the States which surround the Black Sea, as Russia and Turkey (Bulgaria and Roumania, now independent States, formed for three-quarters of a century a part of Turkey).
This is, without doubt, the reason that serves as a basis for the theory of those writers. There was lacking, in fact, all philosophic foundation for the intent to convert into closed bays the waters off the coasts of nations who have always been independent of each other. It is not so when nations are no more than separated parts of a former international political unity, as were Salvador, Honduras and Nicaragua, whose exclusive dominion was derived from this larger international political unity, which continues to be common to the separated States.
The Gulf of Fonseca, apart from being an “historical bay,” presents further the particular condition that its entrance at the Islands of Meanguera and Meanguerita, on a line from Punta Chiquirín on the main coast of Salvador to Punta Rosario in the northeastern section of the Nicaraguan promontory of Cosigüina is not greater than that which international law allows for bays considered as “territorial or closed.” That width is generally fixed by the treaties at ten miles, although some writers have amplified it to twelve miles, establishing the fact that when a line called inter fauces terrae does not go over the aforesaid ten or twelve miles, the bay should be considered as “territorial or closed.”
The geographical situation of the Salvadorian islands in the Gulf of Fonseca which are separated from each other and from Punta Chiquirín by narrow straits whose bottoms are covered with sand banks impeding in some of these straits the passage of ships of larger tonnage, and in others allowing passage only by making soundings, are elements sufficiently in conformity with international law to warrant the conclusion that this chain of islands constitutes a prolongation of the national territory of Salvador in the Gulf of Fonseca; so that the terra firma of Salvador extends, along the line just described, to the island of Meanguerita, and reduces the entrance to the gulf at this place, towards Punta Rosario on the Nicaraguan coast, to less than ten miles.
This Chancery affirms that this entrance is less than ten miles because the scale so shows on the maps used in Salvador, Honduras and Nicaragua, in which it can plainly be seen that the main opening of the gulf is at the widest only 35 kilometres, which, at the rate of 1 kilometer per 539 nautical mile (one sixtieth of a degree of latitude), is 18.865 miles. (See Lloyd’s Calendar for 1916, page 215: Nautical Measures.) The width of the strait between Meanguerita and Punta Rosario is only one-half of this, or less; that is, 9.432 miles. Even so, the sand banks on the Nicaraguan territory prolong that side, so that the opening is even narrower. This is in accord with the technical information contained in the attached documents (Annexes O and P).5
Bynkerschoek, who originated the general maxim imperium terrae finiri ubi finitur armorum vis, in his work Disertatione de Dominio Maris says:
I am of the opinion that the possession of an adjacent sea should extend as far as it can he considered subject to the land; certainly only as far as this can it be well defended, even when it is not constantly navigated, and to that point the possession the law is protected; for there is not doubt that the possession of a thing in such a manner that no other can possess it without permission means that it is possessed continually. So we do not claim dominion over the adjacent sea further than we can exercise dominion from the land… It thus appears more just to say that the dominion of the land (over the sea) reaches as far as the reach of projectiles, for to this point we not only dominate but also possess it. I am moreover speaking of the present, in which we are using these machines; in other times one could say generally that the dominion of the land (over the sea) is limited to where or as far as the power of its arms extended; for this, as we have said, protects possession.
Legal writers have applied the rule of Bynkerschoek to mark the limit of sovereignty of nations over the water; and in order to determine whether or not the waters of a bay were territorial it was necessary that the entrance be capable of being defended; and in this way has come in use the principle of inter fauces terrae which some have placed at ten miles and others at twelve miles.
[Page 858]The celebrated Swiss law writer, Emer de Vattel (“Le droit de Gens ou Principes de la Loi Naturalle,” 1775, Vol. 1, page 142) wrote in 1758 the following:
All that we have said regarding that part of the sea adjacent to the coast can be applied with more reason to bays and straits, for these are more susceptible of occupation and of more importance as security to a nation. I refer to the bays and straits of small size and not to these vast extensions of the sea that occur in Hudson Bay and the Straits of Magellan, over which dominion could not be extended, and much less so the rights of property. The bay whose entrance can be defended is susceptible of possession and can be subject to the laws of the sovereign State; and this is of importance because a country can more easily be attacked from these smaller bays and straits than on the open coast exposed to the winds and the violence of the waves.
Germany, Belgium, Denmark, France, Great Britain, and Holland signed on March 6, 1822, a convention in which the fisheries of the North Sea were regulated, outside of territorial waters. In Article 2 of this treaty was acknowledged the exclusive right of the fishermen of each nation to fish within the radius of three miles from low-water mark.
“For bays,” says the article, “the radius of three miles should be measured from a straight line drawn across the bay at the point nearest its entrance and at the first place in which the entrance does not exceed ten miles.”
The doctrine which we may call the promontory doctrine, was fixed with good judgment in the convention between Great Britain and France of August 2, 1839, in which it was agreed:
That the distance of three miles established as the limit of the exclusive right of fishing on the coasts of the two States should be measured, in the case of bays whose mouths do not exceed ten miles in width, from a straight line drawn from promontory to promontory.
Sir Robert Phillimore, one of the most distinguished English writers on international law of the middle of the nineteenth century, Counsellor to the Crown of England, referring to the limits of territorial waters, in his work “International Law” Vol. 1, page 179, says:
Various have been the claims made and various have been the opinions in different epochs of history as to how far absolute property and jurisdiction extend, but the general rule which can be considered as rationally established now is that property and jurisdiction do not extend, except by special provisions in treaties or by use which has never been questioned, any further than a marine league (three miles) or the distance of a cannon-shot fired from the shore at low tide. . . . . “At sea, out of reach of cannon fire,” says Lord Stowell, “universal custom is presumed.” This is the limit of absolute possession and jurisdiction; but the rights of independence and of self-preservation in time of peace empowers a nation to prevent foreigners from abusing their economic laws even outside of this fixed limit; and Great Britain and the United States have provisions in their laws against frauds being practiced against their economic interests, prohibiting transshipping alien products within the radius of four marine leagues (twelve miles) from their coasts, and they have exercised their jurisdiction in this way in times of peace, and impeding, in times of war, the movements of belligerent ships within that radius as being too near the coasts of neutral countries, because they are a menace and an alarm to the ships in their exit and return to these shores.
The Institute of International Law, whose members are among the greatest statesmen and thinkers of the world, in a session in Paris in March 1894, adopted the following resolutions with relation to territorial seas:
- Article 2. Territorial waters extend six miles from the low-water mark along the whole coast.
- Article 3. In the case of bays, territorial waters follow the sinuosity of the coast, except that it is measured from a straight line across the bay in that part nearest the opening into the sea and between the two points of the opposite shores whose distance is twelve miles or less apart, if from continual or immemorial use a larger distance has not been in use. (Annuaire de 1’Institut de Droit International, Vol. XII, 1894, page 329.)
The articles were adopted by the Institute by a large majority. M. Edouard Rolin of Brussels, at the proposal of twelve miles in place of ten, said “that this distance was double the six miles which was fixed for territorial waters, and for this reason it adapted itself better to the logic of the project.”
The doctrine which Salvador sustains with relation to the Gulf of Fonseca has been declared and recognized by both Great Britain and the United States in the arbitration at the Hague on September 7, 1910, of the question of fisheries. The award says:
It has been further contended by the United States that the renunciation applies only to bays 6 miles or less in width inter fauces terrae, those bays only being territorial bays, because the 3-mile rule is, as shown by this treaty, a principle of international law applicable to coasts and should be strictly and systematically applied to bays.
But the tribunal is unable to agree with this contention: (a) 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 [Page 859] 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. (For. Rel. 1910, p. 562.)
In conformity with the axiom of Brynkerschoek relative to territorial dominion over the adjacent sea to as far as the reach of cannon fire, Salvador many years ago declared that the territorial waters of the Republic on the coast of the Department of La Union, include the Bay of Conchagua, that part of the Gulf of Fonseca in which are situated the Salvadorian islands and the territorial waters parallel to the Boca Oriental of the San Miguel River. (Article 13, No. 1 of the Marine and Navigation Law; Annex N)5
Consequently the Gulf of Fonseca is totally closed on that side, because what is called dominium, and especially imperium, extends according to international law, twelve miles, and the distance between Meanguerita and Punta Rosario on the promontory of Cosigüina, as has been said, is not even ten miles. Salvador can and does exercise the right of imperium—that is, the right of policing, for the security of the country and observance of the laws—-to as far as the coast of Nicaragua on the Gulf. Therefore as Nicaragua can exercise the same right to the same extent and for the same objects, the waters between the Salvadorian islands and the main coast of Nicaragua are, from every point of view, common waters of the two States, which neither State can dispose of, exclusively and without the consent of the other cosovereign and coowner, in order to give a foreign nation land for a naval base, or for any other purpose not within the limits of what is known as “innocent use.”
The well-known writer Don Andrés Bello says:
Sovereignty over things is called dominium, while over persons it is called imperium. The functions of the two frequently mix and the same act may pertain to either dominium or imperium according as it concerns things or persons. There are, however, certain objects of domestic administration as to which the exercise of imperium, and consequently of jurisdiction, is tolerated outside of the territorial limits.
He cites as supporting examples a British statute of George II which prohibits the transshipment of merchandise within a distance of four leagues (twelve miles) of the coast without paying duties; and an act of the North American Congress dated March 2, 1799, containing the same prohibition. He mentions the significant words of the noted judge Sir William Scott, who declared in the case of the Louis that:
The right of visit and search in time of peace is given to maritime states within certain limits of the adjacent waters which through the comity of nations have been considered as part of the dominions of those states for various domestic objects and above all for those of defense and revenue, which are those most immediately concerned with their safety and well-being; such are our laws of maritime preservation which subject foreign ships to this examination, at moderate distances from the coasts.
This doctrine has been upheld in many decisions of the Supreme Court of the United States as “being in conformity with the laws and uses of nations.” And France has exercised it by means of her customs ships to the distance of four leagues, or twelve miles, from the coast.
It is not disputable, therefore, that for fiscal and defensive purposes the nations can exercise the right of imperium to the above-mentioned distance, which evidently implies that the jurisdictional waters of Salvador, Nicaragua and Honduras in the Gulf of Fonseca—contrary to the claim made in the above-mentioned memorandum of the Department of Foreign Affairs of Nicaragua—merge in each other and are blended, and that those States can exercise in them the same rights of police and defense; they are consequently waters in which they exercise their rights of cosovereignty and coownership. And it may be added that the mingling of waters belonging to two States, in gulfs, bays, straits or rivers, has always been called condominium or community, as is shown in all treatises on international law and by such writers as Fiore, Bluntschli, Perels and Heffter; and the doctrine of condominium, co-ownership or co-sovereignty was taught by the father of international law, Hugo Grotius, in his work De Jure Belli ac Pacis, Book II, Chapters 3, 7 and 8.
Referring to the ten or twelve miles to which the dominion over adjacent waters extends, not only England, the United States, France, Salvador, Honduras and Nicaragua have in their laws noted this marginal zone of jurisdictional waters, but also Chile in Article 593 of her Civil Code, and Argentina in her No. 1 of Article 2340 of her laws, hold the same view.
[Page 860]The distinguished North American jurist Chancellor James Kent, in his well-known “Commentaries on American Law,” in speaking of the obligations contracted by States by virtue of international treaties, states as follows a principle that has been received without controversy into the body of international law:
Nations are at liberty to use their own resources in such manner and to apply them to such purposes as they may deem best, provided they do not violate the perfect rights of other nations, nor endanger their safety, nor infringe the indispensable duties of humanity. (Vol. I, pages 25–26.)
The stipulations of the Bryan-Chamorro Treaty are contrary to the principle stated so clearly by Chancellor Kent; for, although they may tend, as claimed by Nicaragua, to the development and progress of Nicaragua as a nation, they nevertheless imperil the security of Salvador and violate and ignore the right of codominion which she has in the waters of the Gulf of Fonseca.
III
the treaty injures the primary interests of Salvador as a central American state.
The Constitution of Salvador declares Salvador to be a separate part of the Republic of Central America, and that, as such, it has the capacity of concurring with any or all of the Central American States in organizing a common national government.
This declaration is made in one form or another in the constitutions of the other States of Central America. That of Nicaragua contains it in Article 2, which will be quoted further on. In that article, after stating that the Government cannot enter into a treaty opposing the independence and integrity of the nation or affecting in any manner the sovereignty of the State, exception is made of treaties “which deal with a union with one or more of the Central American Republics.” Article 262 shows how treaties of this kind are to be ratified and declares that when such a treaty shall have been signed and ratified the Constitution itself is thereby automatically amended, without recourse to the method prescribed in Title xxiii.
Alienation of territory by a Central American State to a foreign power results, consequently, in diminishing an important interest which the Salvadorian people have always had and continue to have in view as one of their greatest and most legitimate aspirations; namely, that of forming with the sister States the Great Nation, mistress—without any diminution—of the patrimony of them all, since all have a common origin, religion and history. Alienation of any of this territory would deeply wound this aspiration and affect the great interests of the Salvadorian people, as a part of the people of Central America, for its territory is of primary importance to its future national life. These interests Nicaragua and the people of the other three States recognize, appreciate and sustain, as is shown by many acts of their independent lives, among them those that culminated at Washington in 1907, terminated with the “Washington Conventions,” one of which brought into being the honorable tribunal before which this demand for justice is made by the Salvadorian Government, represented by this Chancellery.
The preceding considerations serve to explain what follows referring to Article 2 of the General Treaty of Peace and Friendship; for all measures for alienation of Central American territory to a foreign nation, far from contributing to the stability of the States which form the central portion of the American continent, would on the contrary initiate a régime entirely opposed to the purest and noblest aspirations to liberty and progress of their people, the only aspirations that can assure their future stability and the position they should hold in the family of nations.
For this reason the Salvadorian Chancellery lays special stress on this paragraph in support of the demand which it puts forward in the name of the Government of Salvador; and it is sure that this Honorable Court will appreciate in full the intrinsic defect of the Bryan-Chamorro Treaty, as its stipulations are contrary to the constitutional laws of Nicaragua, of the constitutional laws of Salvador and of those of the other central American States, joined together in their larger interests and constant in their desire for the reconstruction of the fair nation which was willed to us by the great men of the Revolution.
[Page 861]IV
the treaty is contrary to article 2 of the general treaty of peace and friendship subscribed to by the central american republics in Washington september 20, 1907.
With reference to this point the argument is sufficiently clear, and the attention thereto of the Honorable Court need be but brief.
According to the text of Article 2 of the Convention of Peace and Friendship, the five Central American States promise not to alter in any form their constitutions. Why? Because, the article states, the delegates considered all alteration in those laws a menace to the peace and security of each one of the States which they represented and of Central America in general, and contrary to their political stability and the prestige with which they should surround themselves. The intention of these Delegates—faithful interpreters of the national spirit of Central America—was to remove danger from Central American peace, and they could foresee that the greatest peril of all lay in possible alterations of the constitutional order, established in each Republic, at the present time established on the most advanced principles of constitutional law.
We should understand “constitutional order” to comprise not only the form of government adopted by the fundamental law of a State, but also all rules or standards accepted by the Constituent Assemblies representing the peoples; and in the highest rank of these are to be found the rules or standards of independence, sovereignty and integrity.
The Constitution of Nicaragua therefore prohibits the negotiation of treaties that in any way impair the territorial integrity or the national sovereignty and not for a moment can it be questioned whether or not the peace, that is, the security and tranquility, of Central America would be menaced by the act of one of the States in adopting in any particular another rule of constitutional conduct and permitting the cession or the abandonment of its territory to alien nations.
V
the treaty cannot be legally consummated.
Article 2 of the Political Constitution in force in the Republic of Nicaragua reads:
Sovereignty is single, inalienable and imprescriptible, and resides essentially in the people, from whom the offices which the Constitution and laws establish derive their powers. In consequence, pacts or treaties cannot be contracted which oppose the independence or integrity of the nation or which affect in any way its sovereignty, excepting those which deal with a union with one or more of the Central American Republics.
This article is a fundamental rule which the former political constitutions of Nicaragua have sanctioned, and which the Nicaraguan people have wished to see respected by the public authorities.
This article explicitly and completely opposes the stipulations of the Bryan-Chamorro Treaty, by which the Nicaraguan Government not only would cede to the Government of the United States a section of the soil of Nicaragua for the construction of an interoceanic canal—the Corn Islands in the Atlantic and a strip of territory to be selected by the North American Government on the coast of the Gulf of Fonseca—but, according to the amendments made by the Senate of the United States in Article III of the treaty, would also limit its sovereignty in fiscal matters.
Consequently these stipulations of the treaty are absolutely invalid, especially in the case of a nation entering upon a treaty with another nation whose fundamental laws oppose such a pact, and knowing beforehand that such is the case, and when, furthermore, such stipulations would damage the primary rights of a third nation.
VI
direct means of agreement employed without success
The Government of Salvador has endeavored to discuss with Nicaragua the right of Salvador to oppose the consummation of the Bryan-Chamorro Treaty, and to this end sent a note to the Nicaraguan Chancellery, copy of which is [Page 862] contained in Annex L. This note was delivered to the Minister for Foreign Affairs of Nicaragua on May 4 of this year. As no reply has been made to that note, there is no possibility of agreement between the Salvadorian Government and the Government of Nicaragua and Salvador is therefore justified in concluding that Nicaragua refuses any negotiation of this affair between the two Chancelleries; consequently, the condition has materialized—which, however, Salvador does not deem essential—which is contained in the final clause of Article I of the Convention for establishing this Honorable Tribunal, as subscribed to in Washington on the 20th of December, 1907.
Note—“in case the respective Departments of Foreign Affairs should not have been able to reach an understanding.”
VII
petition
For all the reasons above stated, the Salvadorian Chancellery, in the name of and representing the Government of Salvador, complains of the Nicaraguan Government, in order that she be ordered to abstain from observing the Bryan-Chamorro Treaty, subscribed to in Washington on the 5th of August, 1914, and prays:
- First, That this Honorable Court receive and hear the complaint hereby made, together with the Annexes which accompany it.
- Second, That in conformity with the text and spirit of Article XVIII of the said treaty, the Court fix the situation in which the Government of Nicaragua must remain and that the things treated of in the Bryan-Chamorro Treaty be conserved in statu quo pending a final decision.
- Third, That in the final judgment Nicaragua be compelled to abstain from fulfilling the Bryan-Chamorro Treaty and,
- Fourth, That the Honorable Court harmonize the rest of the condemnations arising from this action.